“Some of this conduct is illegal. It's just not criminal. … I think criminal law is often ill-fitted to address inherently political problems. And we want to be careful not to overextend or misapply criminal laws because of our outrage, our visceral reaction to repugnant political conduct.”
The Lawfare Podcast: Patreon Edition · US Politics · October 2026
After arguing that several recent deals between companies and the administration probably don't meet the legal bar for bribery, Keller clarifies he isn't giving them a clean bill of health. He says the remedies are courts, Congress and voters, and that stretching criminal law risks eroding the protections people are worried about.
Transcript
…order targeting Paul Weiss was probably illegal and unconstitutional given federal court decisions regarding other executive orders targeting other law firms that were actually challenged in court. Now, we don't have an appellate decision yet affirming any of those district court decisions.
But just to jump in, but we did have the administration notice an appeal just at the end of June. And so we will presumably have an appellate decision on this at some point. But anyway.
…for a potentially more robust check on executive power here. And then finally, you have the legal community. So you need lawyers to file lawsuits. You need lawyers to challenge this conduct. You need lawyers to talk about the different implications of the conduct. And you need prosecutors to be thinking about whether or not this conduct does satisfy the elements of various criminal statutes. But I think criminal law is often ill-fitted to address inherently political problems. And we want to be careful not to overextend or misapply criminal laws because of our outrage, our visceral reaction to repugnant political conduct. Because one, those prosecutions can often run into serious legal challenges. And two, when you make exceptions or you make extensions of criminal law to fit certain facts that you find that are their political nature, but as repugnant as they may be, I think you run the risk of furthering the kind of erosion of constitutional protections that we're all concerned by, given the conduct of this…
Yeah, I think that that's extremely well said, and I think it should be resonant coming from someone like yourself who spent so many years as a criminal prosecutor. And I think there's too often the kind of public perception that for, you know, criminal prosecutors are the hammer and every problem…
Thank you, James. It was great. As always, I appreciate it. And yeah, look forward to the next time.
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