The Case That Could Finally Stop Trump (with Dahlia Lithwick)

Welcome once again to the oath and the office podcast. I am John Fugle saying so humbled and honored to be here joined by one of my favorite people the Ivy League professor the author of the oath in the office a guide to the US Constitution for future presidents the great Corey Brechneider Corey I gotta be honest I wasn't really ready when we started doing this for how colossally popular this podcast would become I feel like we need to like I don't know have like a stretch limo and some coaxing escorts every time we meet up because I just like it's we you're the Mac sir the the response has been so great congratulations thanks and thanks to you John I think frankly it's the dynamic that people want these in-depth discussions and most excited Lee I happy to let people know that in the second half we're gonna have one of the really world's premier commentators on constitutional law in the Supreme Court Dahlia Lithwick and we had this amazing discussion with Congressman Ted Liu last week of course and and that was amazing we're hearing from listeners about that what I will say about it is it's not the normal thing that you would get on you know what's your response to the shutdown what's your response to that the normal kind of interview we're talking about the structure of our democracy the threat to it the ongoing self coup and so what was so important about that is you heard Congressman Lou talk about reclaiming our Constitution that we've done it before in the period after Nixon and that he wants to take the lead in doing it again and he already is crafting legislation to rein in presidential power and it also you know I think this podcast although of course we're critical of Trump it isn't just the normal politics as usual it isn't just partisan bickering we're talking about how to preserve our democracy in the face of a threat to it and so the fact that he talked about the need to do that in a democratic presidency I thought that was insightful because that is often how we've done it the Ethics and Government Act which created a real check on all presidents democratic and republican was signed during the Carter presidency and when he was investigated for his Chief of Staff Hamilton Jordan was involved with drug use I think accused of drug use at Studio 54 of all places in that moment you know you didn't hear him say no you know Studio 54 has no drugs he said yeah investigate it I don't care if it's somebody close to me that's how the law works nobody is above it and this was an inspirational interview I urge people to go back and listen to it because it helps us not just for the past but looking to the future think about how we recover our democracy and as much as the theme of this podcast is about the destruction of our democracy right now it is also about how we can have hope that we'll recover in the future well let me ask you about that because Axios is reporting that this administration has been scouring social media for posts that are critical of the government which we've known they're thin skinned they're vicious they're deeply insecure but now unions are suing saying that this going through social media to find you know free speech critiques is a direct attack on the first amendment Cory how does this fit into your understanding that free speech is not about citizenship but about personhood well I just think one of the most tragic and dangerous things that we're facing right now is this administration's contention not just in the media not just for political game but in court that the United States Constitution in its protection of free speech is only a right of citizens and that when it comes to non-citizens they have the right to just expel or keep out critics and that's what they're saying again and again and in court we've seen case of a student at Columbia University and activists some pushing back and a victory actually in a district court in Louisiana and now we're seeing also the case of this union fighting back and saying the administration scours social media looking for critics of non-citizen critics of our administration we're going to kick them out no I don't think so and let me just say what the constitution says it says Congress shall make no law abridging the freedom of speech and what that means is the government the federal government including the president congress is a stand-in for the federal government there and it doesn't talk about the rights of citizens so this is really a battle I mean more more desperately you know they they're talking about the future mayor of New York stripping his citizenship because of his discourse and this division between citizens and and not recognizing that our constitution protects people persons correct correct human beings the constitution is a limitation on government power not a limitation on human rights but what does it mean when the government is using surveillance to chill dissent including against organized labor I mean my god this is the kind of authoritarian power the first amendment was written to prevent these people are so stupid gory yeah I mean this case comes out of NASA and you know they they're gonna make all sorts of claims in court national security is different well that's not really the workers that are at issue in this case are not involved in national security and they're calling this out for what it is attack in all sorts of ways on the first amendment what's interesting about this lawsuit too is it talks about a basic fact which is how are you able to organize to use your rights to unionization to collective bargaining to fight back if you're frightened of being deported and the thing about the first amendment that this brings out is that the first amendment isn't just some discrete small right of you know I want to say what I think no it is the fundamental right in democracy it makes voting possible it makes proposing deciding about public policy possible it makes organizing possible and so this isn't just a one-off you know discrete right that we could say oh you know that one's not a big deal it is our democracy and when we talk about threats to democracy it's why we're focused so much on the first amendment right of free speech and absolutely I will say one other thing too John is that there's a lot of discussion now as recline had a very interesting empirical analysis of the democratic party which is showing that increasingly working class people are gravitating towards republicans despite the long history of working class people and unions being associated with the democratic party but this union saying hey we are sticking up for the first amendment shows it's just a lie to think that there's a difference between pocketbook issues and civil liberties we talked last week with congressman lu for instance about tariffs and I was trying to make the point that look you know inflation is a result of the tariffs which is a result of the destruction of congress's rightful power and I'll say that here too that if you care about organizing you better care about the first amendment you better care about free speech and the democratic party I think should start tying these things together unionizing collective bargaining economic pocketbook issues are constitutional issues we saw that so brilliantly from the attorney general Raul Torres of New Mexico that was one of our older discussions right it really sticks with me because he's one of the people trying to pioneer how you think about these issues together I mean I also want to remind everyone that you know as Heather McGee documented so beautifully in her book The Sum of Us racism is how they broke up the unions right we know the divide and conquer mechanism when I hear working class people drifting to the party of billionaires we know how they've always done it they've always done it by demonizing brown people who are coming here to take something away from you that's how they broke up organized labor you want that guy on the line that black guy to be paid the same thing as you I mean Heather McGee did it much better than me but this is traditionally part of the divide and conquer mechanism but one more question on this and then I want to move on to I want to move on to guns and weed but okay go ahead I just think it's such an important point because what we're talking about right now is how you craft a strategy that combines the constitutional issues that we're talking about with the pocketbook issues and the idea that you could simultaneously allow for the erosion of civil rights which this administration is trying to do not just to destroy civil liberties but basic rights to not be discriminated against and also be for the power of citizens to organize workers to organize and to collect a bargaining it's not possible civil rights and workers rights go hand in hand and civil liberties I'll add especially the right to free speech is part of them absolutely although I wouldn't say they're letting civil rights die by erosion it's more like no rotting and then bury them in a lead box all out assault let's talk about guns and weed gory I've been waiting all day the supreme court just heard arguments on whether people who use legal cannabis can be barred from owning guns not people who use prescription meds not people on oxy not alcoholics people who use legal cannabis maybe the one demographic we most want to have guns the stoned people who are not the ones causing fights at the discotheques and the sporting events this case is going to pit second amendment fervor against the federal government's own very contradictory drug laws there's so much to unpack here I know the NRA is going to have a lot of feelings about this but once again we find occasionally yeah they're they're all for limiting the rights of citizens to arm themselves I mean we we've seen it happen with stop and frisk if they find the right person they want to pick on they don't care about the second amendment so much anymore so what constitutional tensions does this expose and does this have any chance of ever passing it seems really stupid well look you know I'll say what the issue is the question is whether or not the second amendment which although it is really about militias a sort of ancient and no longer relevant idea the second amendment should be a dead letter and it was for a long time but in the heller case just as Scalia succeeded in reviving it as an individual right now over time the court has moved from the way Scalia thought about it which was in terms of the text of the first amendment that's how he made his argument to a different kind of originalism that says look if there's a limit on the first amendment that's constitutional you've got to show that there was an equivalent kind of limit anyway in the 18th century when the country when the second amendment was ratified as part of the bill of rights so now you know to my mind it's just obvious that some restrictions on the second amendment after all the second amendment talks about regulation well regulated militia is how it starts right regulation is part of it so on the one hand I want to say like of course they could have limits it's not a violation of the second amendment to bar convicted felons for instance and yes I think that it's sensible too to have limitations in all sorts of ways but the problem is the selectivity of going at why are they going after medical marijuana users and I think here you can't or recreational legal recreational yeah it's not this isn't a constitutional principle I think you know we have to think of it in terms of the non-principled coup that Trump wants to go after his opponents and I think you know this administration views people who use medical or recreational marijuana as hippies as as their opponent yeah that it's that simple so constitutionally I think the best thing to do is to say yes they're really you know I'm for anything that erodes the absolutism of the second amendment but at the same time I want to recognize the weirdness of this case which is that it is just part of the attempt to attack opponents and the reason why the administration is taking a stand against the second amendment expansion against the nr a is because they want to attack opponents it's a weird case that can only be understood in this unprincipled way with this administration now what should the court say it should limit the second amendment it shouldn't have any protection for it but let's also call out what's going on here which is an attack on opponents and you know if we could use this if this is a moment where the court does limit the second amendment you know just as thomas had an opinion in the rahimi case in which it just looked like there was going to be no limits like even keeping a nuclear weapon in your backyard would have been protected under the second amendment they're finally pushing back against this this might be part of that trend but at the same time i'm trying to be careful and say you know there's nothing in the trump administration that's principled here no now why why start now yeah yeah yeah but let me i mean but like all right so so the doj is defending the restrictions and which feels odd to me again because we know how deeply right-wing politics fetishize the second amendment so like is this this seems like it's just another example of the movement using constitutional freedom quite selectively to serve an ideology but not to serve a principle i mean is this case a larger pattern where rights are interpreted hierarchically gun rights first civil rights last i think that's giving them even too much credit i mean the the idea i hope yeah i'd say that it that it serves i and that might be the first time you've given them too much credit usually i'm giving i was gonna say yeah i think the ideology that it's serving to go to your main point is trumpism and trumpism is about us versus them and the marihuana users are them and us is not them let's not forget either that this is the law that was used to convict hunter biden and to the extent you know hunter biden's been pardoned so not a lot for him hinges on this but if it turns out that you know this law is unconstitutional that was used to convict hunter biden that might revive the idea that somehow he did nothing wrong and they don't want that so maybe they're still litigating in a weird way this hunter biden criminal conviction that could be part of the psychology but i do think the simplest explanation is they don't like drugs and they don't like people who use drugs because they think that they're their opponents now when you know there's a difference of course between hard drugs and medical marijuana but i think they they think these are hippies and we don't like the hippies so there is no principle here it's that you know a friend enemy that's right so it's anti it's not just anti civil liberties it's not just anti freedom right it's anti capitalist as well i mean this is legal cannabis this is a business now you've got all kinds of bright wing douchebags getting all into the cannabis game now that they can make a profit off of it so i think we need to mention this is anti freedom it's anti liberty it's anti business yeah i think when we talk about politics you know i'm all for the podcast has this ideal the oath in the office it's about principle we often are breaking down the principles and trying to understand conservative ideas i mean maybe we could do a better job of trying to build them up but when we're trying to understand trumpism there are no ideas it's just you know what i want what what my people want and the enemies have to be silenced and i think that's how you understand this that that it's a way of restricting the rights of his enemies and it has nothing to do with the second amendment or the constitution because he doesn't think that way he thinks about people i like and people i hate as he said i hate my enemies i don't understand how how others don't hate their enemies i i hate my enemies he was talking about charlie kerr that didn't hate his enemies yeah well we gotta take a quick break we'll be back in just a moment with the oath and the office here's what you've been missing on the stephanie miller happy hour podcast okay donald trump jr has gloated about his father's family jewels what what oh and i truly i mean seriously from him saying that he wants to his daughter on howards turnout from many years ago that he would date a vanke this is the weirdest family okay uh okay so he shared a wild post on his instagram uh he the post reads the real trump ballroom is the room he gives his balls in comparison to the leg crossing policies like nuesome and obama what what leg crossing this was the post by adam corolla and so dun jr reposted that uh okay so there's a it's there's a picture of a tired looking trump with his knees apart you know how he makes his little d tent as bobsasca says right he has his fingers like you know yeah making a little tent for his little tiny d uh see alongside images of obama and nuesome sitting with their legs crossed which oh my god what i just i i don't understand oh because anybody man spreads he does yes junior man spreads so anybody who doesn't is a anybody is within the sound of my voice imagine posting anything about their father's balls could someone no no no i just want to make sure it wasn't me taking crazy pills subscribe to the our podcast on apple podcast stephanie miller dot com or wherever you get your favorite podcasts welcome back to the oath in the office i'm john fugelsang joined by professor cori brecht neider cori it's time to talk about something that should scare the hell out of anyone who still believes in democracy supreme court justice amy coney barrett just told the new york times that if donald trump defies the court there's basically nothing they can do about it the woman who sits on the highest court in the land just admitted the court is powerless if the president decides to ignore it and blow them off no purse no sword no spine so let me ask you about this i mean you've written so much on the constitutional limits on presidential power and the duties of the court to defend democracy not a man barrett just admitted the court lacks the power of the purse or the sword it can't enforce its own rulings if a president blows them off and she reaffirmed her belief in in our favorite topic the unitary executive theory because they want to open the door to the president being an unchecked ruler especially if congress or the courts are sidelined but cori justice amy coney barrett said that she's unsure whether the court has an obligation to protect the judicial branch from attacks by a president should the supreme court see itself as the guardian of judicial independence i mean what does it mean if these justices start treating presidential intimidation as acceptable or inevitable or meh i mean it's terrifying how she's playing dumb and rolling over for this guy well i think that what you're bringing up was one of the most concerning parts of the cbs interview and i'll just lay it out a little bit what she said but to remind listeners we talked about this in the casacase about birth rights citizenship the court for the first time took away the power of the district courts to impose universal injunctions and what this was was a tool that to my mind goes back to the founding and it simply says look if something's unconstitutional in my little part of the country it's unconstitutional period and we better stop it and the supreme court in the birthright citizenship case which really is really illustrates the point because if it's not just one person's birthright citizenship entitlement that's being threatened by trump's executive order revoking it it's the entire countries so there had been a district court national injunction multiple actually stopping this executive order and for the first time in american history the supreme court of the united states came along and said we don't think this long-standing procedure is appropriate we're going to get rid of these universal injunctions that allowed birthright citizenship to be revoked through executive order throughout the country as this case works its way through the courts and they still haven't taken it now she defended that by saying look you know there's a law that limits the judiciary act um an 18th century judiciary act limits these universal injunctions and what she was failing to see as she tried to give answers and i couldn't it was a word salad i couldn't really get what the answer but that the real threat to democracy i think when it comes down to she thinks his courts and judicial imperialism not the president the most powerful branch and here she really got into it uh and she was asked with justice jackson who said you know the threat here isn't from the courts they're enforcing the law it's from a president that wants to be a dictator again and again in the interview she refused to acknowledge that this is anything unique that we're facing she said look i'm concerned about the next president or the president after that or pat i don't think about this president what if this president is the president forever what if he destroys democracy honestly no understanding of any of this and this idea really and this is what was said at the same time she says we're not a political branch she's parroting the talking points of the idea of a judicial coup and you know i i found that really worrying look if i had cavanaugh and clarence thomas and elito around to make me look more likable i you know i take advantage of it as well but i i'm hung up on this one professor i mean she suggested the court's job is to interpret the constitution and make the most with the tools we have which sounds to me like she is very publicly lowering expectations for what the court should do in checking authoritarian behavior if the court admits it won't enforce its own rulings and congress is either gridlocked or complicit are we not witnessing a collapse of the constitutional checks and balances the founders designed where does that leave the american people yeah the interview and her statements generally left me with a combination of feelings one is there's an element of condescension when you say repeatedly these cliches of i'm just enforcing the law there's a disagreement about what the law is so you have to defend it and claiming that it's somehow not political or there are no value judgments i found all of that really both condescending and yet at the same time deeply worrying because the job of the court is very clear it's to enforce the law especially against a president who would threaten to destroy it and when she was asked for instance by cbs about trump's statements about whether or not he could have a third term you know she in her book my understanding is very clear no you can have two terms and that's what the interviewer brought out but then when she was asked about it even there she backed out and she just referred to the amendment the abstract that limits a president to two terms but she left open the possibility that she wasn't going to say the obvious thing which is no we can't do that and she also missed the obvious fact that when you have a president threatening to stay in power especially january 6 the attempt to stay in power illegally that this isn't a normal situation so it's somebody who frankly struck me as having her head in the sand now you know i have an amicus brief i think actually when listeners are listening to this the tariffs case is going to be argued and i i try to be you know critical of the justice's opinions and not them personally but it was very hard for me to watch this interview and to not come to the conclusion that this isn't somebody who really is understanding what needs to be done to uphold the rule of law i mean yeah i don't think they care i think they have careers and they're doing just fine and they're well compensated and if you're clarence thomas remember when we were all shocked at how much he was taking bribes a year ago and it's just forgotten now i mean it was in bribes the bribes are legal the bribes are public there's no accountability and i hear amy koney barrett and this combination of originalism and the unitary executive theory and the president can't be held accountable for crime c commits and i'm seeing a constitutional theocracy a system where presidential power and right-wing narrow religious ideology are inherently going to override any kind of democratic checks okay quick break back in just a moment i'm so excited that uh dialythic will be with us this is the oath in the office hey all glenn kershner here friends i hope you'll join me on my audio podcast justice matters we talk about not only the legal issues of the day but we also talk about the need to reform ethics in our government here's one example the oath of office you know the one i do solemnly swear to support and defend the constitution against all enemies foreign and domestic let's add 22 words to that oath quote and i will promptly report any instances of crime and or corruption by government officials and employees of which i become aware friends our democracy is worth fighting for join us in this fight because justice matters look for justice matters wherever you ordinarily find your podcasts welcome back to the oath in the office it's my pleasure to welcome back to the show actually one of two returning guests listeners loved our discussion with her so much they've asked that we bring her back and i loved it as well and it's of course dahlia lithwick dahlia is one of the country's leading legal journalists she's the longtime host of the wonderful podcast that i've been honored to be on amicus and she's senior editor at slate and i'll also mention her great book and you can listen to our past episode where we talked about it in depth lady justice women the law and the battle to save america dahlia lithwick welcome back to the oath in the office it's really a pleasure to have you here it's always a treat to talk with you kori thank you for having me back so great it is great to have you back unfortunately the topics of course that we're going to talk about are worrying rather than great and i just wanted to jump right in the last time we spoke to listeners a three judge panel from the nine circuit had greenlit the deployment of the military to portland but there's an update in that case so i'll just begin by asking you what happened and of course it had to do two possibly or what was involved with some misleading information from the trump lawyers so give us an update i mean the update is essentially that the thing that almost never happens kori which is that the justice department says holy cow we misled the court we fudged the numbers and it was a non-inconsequential fudge where they represented that far more employees were being surged into portland so much so that you know they couldn't do their jobs and the numbers were just way off and part of the reason it's interesting is because the dissenting judge on the three judge panel of the ninth circuit that heard this case at the time when she was kind of on the losing end of it was like these numbers feel really hinky to me i don't know that they're representing this correctly and she got spanked for it by the way by the other two in the majority and it turned out that the doj had to come back and say yeah no that we were wrong we the math didn't math and it's appalling and it's part of you know we're in this crazy i mean as you and i are taping there's literally a hearing going on in dc for sandwich guy right the guy who threw a sandwich at an officer and and it's cartoonish because literally the testimony which everybody in lawland is gobsmacked i know it's trivial next to the real existential legal problems but it's literally like the guard is being cross-examined on like oh he could feel the sandwich hit him through his bullet proof vest and it exploded the sandwich detonated and then they show like footage of the still wrapped sandwich on the ground and the guy's like oh well you know some of the stuff is oozing out like it's crazy and the only reason it's sort of important is that this lying this sort of perpetual lying that we're seeing almost never gets caught and when it gets caught and you have you know a court that has to be like yeah no they lied to us the aggregate harm to the justice department cannot be overstated it is so bad for the yeah and i want to ask you more about what this says about the general disregard of the truth by this justice department disregard of the law but i guess i wanted to just dive in a little bit deeper here i mean one of the dynamics that we talked about on the podcast last time and that's certainly relevant to what we're talking about now is the argument of the department of justice and and as i understand it the the two judges who gave the green light and the three judge panel to the deployment is that really we're not supposed to second guess the president so the president of course in this case is saying that the reason for the deployment is the protection of federal the federal building here and don't second guess me now you know i guess i wanted to ask you how this fact of the blatant lying you know what it says about that idea of deference to the president right i mean there's there's sort of two layers to it one is and it goes to this structural argument about how the justice department has to operate and there is this thing called the presumption of regularity and it's just a long-standing presumption that courts give doj lawyers why because they come in hundreds of times on hundreds of cases and if every single time we start from the presumption that the justice department is lying then they don't get anything done right every single case is appealed and so right or wrong like stipulated the justice department doesn't always get it right but there are efficiencies in presuming that when the government represents something to you particularly when they are repeat players right the same folks who are getting up and saying that government represents courts tend to treat that as though it's essentially truthful and by the way the sort of sidebar there is that it is one of the reasons when the justice department screws up they're so quick to correct things right because you don't want to mess with that presumption it does massive violence to the justice department's ability to function and uh ryan goodman at myu just came out with this staggering report of how many dozen uh judges have now said to justice department lawyers i think you're lying i think you're not telling the truth you've squandered in 10 months years and years of capital built up so that's a piece of it right how does the justice department operate when judges are starting to say uh you're lying and also you didn't correct the record the larger thing and i think it's the thing you're flicking at and it's so important is that there has been particularly when the president says this is an emergency a presumption that judges are not experts right on national policy on military law right so there is a strong presumption and Brett Kavanaugh likes to say this in opinions that when there is some exigent particularly foreign policy i know we're going to talk about that in the tariffs context but that we don't second guess and it's part of this larger sort of univeritary executive theory right the president is the head of all things but with it there is this corresponding sense that we are not going to raise questions and so what you're saying and i think it's the thing that has shifted is that the the majority judges in that portland case but we're seeing it around the country are grappling with this almost existential question of i'm sorry you're telling us that we're not allowed to scrutinize anything not the record not the facts you know not testimony not affidavit everything is off the table when donald trump says the sky is orange we have to defer to that and there are reasons that in many serious exigent national crises you want judges to defer and as i say that's a long-standing assumption but holy hell when you have just shot a canon through that presumption and essentially told judges that when donald trump says the sky is orange and when the justice department comes to you as they did in the portland case and says you know right we totally lied and said the sky was orange and there's no rules for judges in questioning that now you're really really like in orwell territory yeah and that that was such a great breakdown that there is a presumption that the department of justice is telling the truth partly for pragmatic reasons and when they lie blatantly not just here but as you've said in these many other cases we start to question whether that's right or not and whether or not there should be a presumption but the more troubling maybe worry here and that is a straightforward argument that says well maybe we shouldn't trust the department of justice if they're lying but where it gets complicated and you brought this out so well is when and i think this is exactly related to the unitary executive theory there is an idea of trusting the president more generally and deferring to his or her power so in the travel ban case for instance we saw that that was part of the argument well assume it's not animus in the final analysis because we'll trust the president says there's security rationales and here maybe we should trust the president who thinks that these buildings are under fire i mean the reality really strikes at the heart of that presumption i'll shift a little bit on that second point and just say you know one possibility here is that trump won't continue to lie and say this is about protecting these buildings but instead will shift or federal workers instead will shift to the insurrection act and to say well i've got this more powerful tool and he certainly knows about it he's been saying that in interviews so what do you think happens in that that moment i mean once you invoke the insurrection act are they more likely to just defer to the president's sense that there really is a sort of lawlessness and to not engage in that second guessing is that is that the end game when it comes to deployment and we might just see the the courts back off i mean in so many of these cases i think of it as this galactic game of chicken right between the courts and and probably more essentially the u.s supreme court because that's where the rubber meets the road and the president right and so what you are seeing is this kind of weird little i'm now going to confuse my metaphors for which i apologize but it's kind of a a game of chicken and it's also zeno's paradox right where they keep getting closer and closer and closer to this thing that is the nightmare scenario for the supreme court which is what the so-called constitutional crisis right where the supreme court issues in order and the president doesn't back down and that is what i think at many levels especially when you've got congress who's like you know like pinned under something heavy and not going to move at eight times soon that's it that's that's the crisis is that the court is trying i think if i'm imputing the best possible motives to the center of the court you know that doesn't want you know the the flaming dumpster of american democracy to happen on their watch then i think we have to really ask like what is the end game here for john robertson brett cavanaugh and amy coney barrett who i don't think are complete nihilists and i think a lot of what we are seeing is this inching inching inching toward how do we sort of save enough whatever you know social political legitimacy capital we have at the court and not turn every single issue with donald trump into a constitutional crisis right saving our powder for when it really matters and i think you're exactly right there is a strange way in which we've seen the administration in multiple cases not necessarily do the big swing thing you know test the water let me see if i can you know put people on planes to sea cut prison and you know lie to the courts and say that uh they're all you know convicted drug dealers and gang members and see if the court calls me on it right and time and again the court hasn't really actually that's the one exception where the court does slightly call them on it but for the most part we've seen this kind of you know think of a toddler testing the waters right now i've like eaten all the snickers and all the mars bars now i'm gonna see if i can eat you know all of the all of the tootsie rolls and i think there is a way in which the court thinks that it is saving its capital for the big thing whatever the big thing is and it may be tariffs by the way and in the meantime the pattern that we are seeing is on crazy issues right impoundment we know that the president can't you know impound funds that have been appropriated by congress and designated right we know that you can't fire heads of of agencies but he does it right and and the courts largely on the shadow docket right and late at night unsigned orders has blessed it and so it's a form of appeasement and i think the question you're asking i don't want to be too meta about it is what wins right the appeasement or the president just pulling the nuclear option and of course the insurrection act is the nuclear option when it comes to right how do we get around posse comatotus how do we get around you know all the the sand in the gears that comes up in these lower court cases when you are short of the insurrection act but i think that what we are seeing in case after case after case including these extrajudicial assassinations you know in in the waters in the pacific in the Caribbean i think what you're seeing is the president inching inching inching toward the sort of mega intervention that the sort of thermonuclear thing and the court appeasing and appeasing and appeasing and appeasing waiting for some thing that is so profound that they have to act and i guess if i were to bet which is i think your question about the insurrection act i think the president wins i think the person who is willing to be absolutely bonkers and has no regard for law or you know the institutions yes that's exactly my worry that you know i think the way they see it or is exactly how you put it that they think okay we've got to balance this out this is the president we've always deferred to the president barrett for instance says we you know in the past have deferred for instance to biden we can't just think about it being this president i don't yeah i think that's certainly less true than she claimed in that interview but at least the way they see it and then the question is well on one of the huge issues namely the insurrection act the use of the military after all to shut down our civil liberties are they going to push back they might see that as part of the bargain that has to be made are they ever going to push back we'll come to the tariffs case soon and talk about that perhaps i hope that is the place that they will start to push back and it's not an insignificant place to push back but first i did want to ask you about a place where i don't know how where the checks are in this dynamic but not a conflict between branches or oversight but one within the executive branch itself which is after all so powerful more than two million people in the executive branch and of course the department of justice is within the executive branch so tell us about this shakedown i think you've called it of the department of justice where the president wants restitution for the as he falsely claims the harassment and false accusations in regard to the investigations of his criminal activity so how much money is he seeking is he likely to get it what's going on here and it seems just perfect to call it a a shakedown so so maybe say something about that too no i mean i think i i almost want to put it in the bucket with the sandwich guy right kori like at one level this is cartoonish that the amount is 230 million dollars from the justice department based on things he's already filed in the past right he's not actually filing something he's just got like a running tally of all of the federal investigations after he was in office so whether it's the russian investigation or the search of mara lago like he's just been like had the meter running like a taxi and he's really mad and he thinks that the justice department owes him 230 million dollars and of course the reason this is a cartoon is a i mean it's it's laughable on its own terms but it so goes to this issue of the corruption at doj because the very people who would be determining oh we're the arbiters of whether the justice department owes president trump 230 million dollars which almost covers the ballroom by the way although i'm i gather now that's been covered right by by captains of industry so he says he's giving the money to charity but i think that the folks who are going to be determining whether the justice department harassed the president to the tune of 230 million dollars are the people who were his private lawyers right when he was out of office and now are all lackeys at doj so i i'm not laughing out of joy i'm laughing out of how absurd this is and it feels a little bit like i mean i think that he sort of walked it back there was this deeply strange comment he gave where he was like this would be so weird it would be me deciding to pay myself um exactly even he understands that it's ludicrous which is where we got the charity line from but i think that the two things that are important are everything is a grift everything is a shakedown this is you know i've been calling this administration you know the the mo is protection racket and every step of the way it's just how do we squeeze money in this case i should have been clear taxpayer money right yeah this is this is you and me paying for this how do we squeeze money out and then like bestow our largesse on charities and make it seem as though this is justice and i think that's part of it that's really frightening but it really i think is a story that is emblematic of who is not in the room in this 2.0 administration right because he had lots of people around him in the first term to say that is unutterably insane please don't even float this idea and there's no one there now to say bad idea they're all like actually an idea sir yeah and i think it fits with our other theme that there was an assumption that judges would trust for instance the department of justice to not lie because there are lawyers who are concerned about their own integrity and would not do so and would not put the department's reputation at risk and in the same way in trump 1.0 there might have been civil servants and members of the department of justice around who would say even if i'm a political appointee i don't just serve you the department of justice is independent but what i hear you saying now is in both cases as he replaces people who are concerned to well take their own seriously and the law seriously and the truth seriously with loyalists that the checks are largely gone i mean in this one you know we'll talk about the terrorist case we talked already about the question of deployment of the military there's at least some back and forth in question about whether there's going to be a check is there any check here on this deal any hope that we could keep him from essentially stealing out of the public treasury more than 200 million dollars i mean i think that this is a bunch of kind of nuisance suits that are filed in in weird places under you know administrative structures and so i think the argument is this is never going to amount to anything that's probably the check but i don't think there's a sort of structural check to say this is a horrifically bad idea please don't shake down the american public while you're cutting snap benefits and while healthcare is skyrocketing and there there's one other piece i'd be curious if you agree with me but there is a piece of this that is just vintage steve bannon flood the zone with shit right am i allowed to swear on your yeah yeah okay because i think that this i also group this with you know the whole conversation last week about is he running for a third term right where like you and i are lawyerly enough to be like oh you know is this a sound legal proposition right like i think both you and i think that the outer bounds of the law is where the conversation stops and i do you know i always think of this particularly after the immunity decision right where the lawyerly answer to that case was okay well we'll figure out what are the you know the outer perimeters right what is what is in and outside of the bounds of the supreme court opinion and i think that that's at one level look that's what we do i mean that's how the law works but i think that there is this you know weird like maelstrom of lawlessness that we then chase around to be like well that can't be legal right we we have constitutional amendments that say you can't run for a third office and i think i want to just pause it tell me if i'm wrong but i think that so much of this stuff gets chummed up a is a distraction from snap and from you know trashing the east wing but also i think it's the kind of performative the law doesn't matter and people like you and i yeah words matter language matters truth matters right this is like the gravamen of this conversation get crazy when they say stuff like yeah we're just gonna like sue the american people for 230 million dollars i think the question isn't always is it lawful i think the question is what are they trying to signal to us about the role of law and that i worry about it's a great question and it's one that we're grappling with on our podcast really every week and i know you are too on on yours i mean one thought i have is it might start off often that he says okay how can i distract from say the upstain files or from the shutdown and okay i'll ask for this money but it's so outrageous what he asked for and the unfortunate truth is the checks are so few which is part of what we're talking about that he might get away with it so then the distraction becomes the thing becomes so much worse and then what are we going to do there that if we just look away and say it's just a distraction well we miss the new just the new thing that is the threat to democracy so i think that yes they are flooding the zone but all the things they're flooding it with are real threats and that also as we start to think about the question we're grappling with like how can we fight back and yes court should do you know should stop this and then we've talked about in the last discussion they really might not that there are all sorts of ways in which he might get around it or their own balance even barrett in the interview said you know she had said very clearly it sounds like at one point that no he can't run for a third term because there's an amendment prohibiting it and then when she was really pressed she was like well you should read the amendment and what does that leave open that i don't know what it is but as they did in birthright citizenship which is clear in his day that they'll come up with some magic words or some magic theory that says you know some equivalent of subject to the jurisdiction you know that allows a you know non-consecutive term so that's my worry that really all these things start as distraction and then they become part of the real threat to democracy i mean i'll throw that back to you no i think you're saying two really vitally important things one is we make this category error again in this business of thinking that the law is what the supreme court says it is right and so if there are five justices who are willing to say and they may say birthright citizenship although it is clear as day and has been understood to be clear as day for since the amendment was passed doesn't mean what it says it means that doesn't mean the law changed that means that this entity that we call the us supreme court who you know for all the reasons we don't need to get into does not necessarily represent nine people who were duly you know appropriately vetted and seated on that court that that's what they decide and i think it's really useful for listeners to just keep remembering that just because the us supreme court determined that you can foment an insurrection and not get tossed off the colorado ballot doesn't mean that that clause of the constitution doesn't say exactly what it says it means and by the same token just because the majority of the supreme court plucked out of thin air this notion of maximalist near boundless immunity for presidents including by the way you know in conferring and working with their attorneys general which sows the seeds for all the mayhem at doj we see now doesn't mean that's the law and i think we have to be really clear right about that but i think that the second sort of part of it and it's also really really important is that we now know the tells right we know when the supreme court is going to do something that is just objectively indefensibly lawless as you just said we know the tells right you pull out some like half cooked originalism in order to end roe v way right you pull out some completely batch it unprecedented theory about you know the major questions doctrine which is not a thing right and you use it to get rid of biden initiatives but not we'll find out in the tariffs case trump initiatives so i just think like i'm trying to train my mind and it's hard because i went to law school this is not how i was raised not to watch what the law is but watch what the supreme court's tell is yeah once they start doing one of their little tricks uh you can sort of say oh they're doing that at you know 11 o'clock at night on the shadow docket with three sentences okay that's a tell yeah yeah well we're looking at these things in very similar ways every week and i should remind listeners i did last time too that you are a few years ahead of me at stanford law school so we had a similar kind of introduction to all this and look at things in a similar way i don't think any of our professors could have imagined it would have seen too wild a hypo any of these cases i do want to ask you before we say goodbye this has been a great topic and we're going to continue on the theme but about the tariffs case of course you interviewed one of the litigants you've been following it closely and it is a moment i've been saying as listeners know and and you know i have an amicus brief saying if you look at aipa the statute at issue it's not only not granting power to the president it's retracting it and if you want to ask the question of whether or not this newly created idea that comes from this court of major question this is pretty major question no taxation without representation tariffs are kind of tax so all the law points in the direction i would think of saying no way is the this emergency use of tariff power constitutional but threading the conversation back to what we've been talking about i mean what do you think how do you see them handling it is this the moment to go back to your your point from our our first part of the discussion where they've got to just say this is too embarrassing we can't hand over power here we've got to push back you are seeing in the litigation team a combination of more progressives like neil kathiel and and then judge mcconnell for instance so it's not ideologically obvious you know what what the answer to this is it it seems to me to be obvious in terms of the law you had a great headline from one of your discussions about i don't remember what the age was but it was something to degree of even a child could understand why this case has to be decided against trump so what do you think about the case are you you know and and what do you think is going to happen yeah i mean well listen by the time this conversation drops we'll know a lot more right it was heard wednesday and i think what you're surfacing are you know the tensions that make this harder in some ways than birthright citizenship than immigration even then i would say you know militarized police on city streets like i think those all kind of i could see the court putting that in the box of you know capacious executive power and of story this one's going to be hard both because as you say everybody hates the tariffs including the you know big business world the folks who really require and i would say demand of the courts that we have an economy that is predictable right that is that you can make plans and you're exactly right the the conversation with rick woldenberg that i had on amicus last week he's the ceo of learning resources which is this family owned business one of the small businesses that are suing and and winning we'll see how they do at the court you know one of the things he said in addition to his sort of schoolhouse rock construction of like any little kid can tell you uh that the president doesn't set tariffs that is you know exclusively reserved to the congress but the other thing he said and it was really i thought moving and distressing is that this falls heaviest on small businesses right that if you are a huge company you can absorb the tariffs and eventually pass on the cost to consumers you can't do that you can't plan if you don't know what you're going to be paying next year and and it was interesting to hear him he's also a lawyer interesting to hear him say that which is should be obvious to anybody who wants stability in the economy which is you know you you can't muddy the waters and have everybody just hope that because you're the president and you say you're getting good deals someday that we all just live with it the other thing that you're asking and i think it's really important is that you know the president presumably has these powers under a if there's an emergency but there's no declared emergency there's like a made up fentanyl crisis with canada at the border if there's an emergency there are emergency powers so this is another one right to loop back to where we started where there's kind of an emergency but it's a fake emergency yeah and how much is the court going to just credulously say okay if he says that you know everybody's screwing us on tariffs then that must be an emergency and the final thing we flicked it but let's like land the plane is this question of the major questions doctrine right which was used to stymie president biden's initiatives right notably on loan forgiveness but you know every time the court was like oh you can't do that without express congressional permission right that that was a biden thing and so the court's now gonna have to sit with the fact that was that only an operative principle yeah when biden was the president so i don't know how it's gonna go i know it's pinchy um linda greenhouse has a great sort of shot for a piece about how much we're gonna watch them sweat but i do think you know in some sense if the sort of defining question of this conversation kori has been like what is going to be the big thing that the court says no on i think there are reasons that this could be the big thing that the court says no on yeah at some point it just becomes embarrassing for them when you have a statute that tries to reign in power and you're saying no it expands when you have a doctrine that you've announced not a very long time ago this isn't roe versus way this is the previous administration the major questions doctrine that says if we're not explicitly and clear if congress is not explicit and clear and it's delegation then there isn't one all of these things from their own jurisprudence and then you know the way of textualism the statute has restraints in it i mean it talks about unusual and extraordinary emergencies that are you know proceed from outside none of those seem to hold here so now the question is are they are they so willing to disregard the law and their supposed own theories for pragmatism or for whatever their rationale is to defer to the president and to not second guess him i certainly hope not and i think on this one we'll see it's a close question the betting markets i'm told are split but uh you know that the law might actually prevail here in which case we can feel good about our legal education although it might be getting in the way some of the other analysis i know that you have to go and so i really want to thank you dahlia lithwick and to ask do you have anything that you want to promote or or say as a final goodbye to our listeners it's really been a pleasure to have you on the oath in the office no i think i have nothing that i want to promote i want to remind people to donate to food banks and i want to remind people to be kind because there is a dearth of grace in the world but more than anything kori i am saying over and over to my listeners and i really want to make a pitch for the notion of the constitution means what we think it means we get to have opinions and i always cite my friend jay willis at bulls and strikes who says you know don't don't wait for the oracles uh on high to tell you what you know to be true which is just basic precepts of equality and dignity and yes birthright citizenship and aipa and that the law is the law and i think we we seed a lot of ground when we think like pop popcorn and hope for the best the courts will tell us i think it's it's we have to be a part of and this includes bolstering district court judges who are not only being unbelievably brave in the face of you know threats from trump but you know threats of impeachment and doxings and threats to their families and i think we have to really figure out how to stand up for you know principles we know to be true legal principles and constitutional principles and to not think that this is something that is like out there in the sky it's really really like in our pockets and we have to not seed that ground so that's the only thing i want to say oh i i love it and it really shows how much your journalism for slayed and for amicus how much were kindred spirits because i think what we're both trying to do is to say just because a president is trampling on the oath and the obligation to preserve protect and defend the constitution and the law and just because the court is enabling it and just because the congress is going along with it it doesn't mean that there aren't laws and that there isn't a constitution and it's up to all of us to reclaim it so thanks so much dalio lithwick one of my favorite legal journalists i'm so proud to have gone to the same law school and uh to get the chance to talk to you again and i know the listeners feel the same thank you dalio lithwick for joining us on the oath in the office thank you for all the work that you guys do on this show i'm grateful for it and it was a treat to be with you this has been the oath in the office podcast thank you to our guest dalio lithwick thanks to john who had to jump off and i just want to remind you to subscribe on apple or spotify wherever you get your podcast you can also watch us on our new youtube channel and finally we have a weekly newsletter on substack so check us out there what an honor to do this every week to be in conversation with john and all our wonderful guests and thank you also for these continued five star reviews it's really been a pleasure and an honor to do this show and we'll see you next week on the oath and the office