← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
A Lawyer’s Guide to Not Caving to the President
01:02:09
Loading summary
Transcript62 lines
- [00:02]
Dahlia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to choiceology@schwab.com podcast or wherever you listen. This podcast is brought to you by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash? Progressive makes it easy to see if you could save when you bundle your home and auto policies. Try it@progressive.com Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states Hi, I'm Dalia Lithwick. This is Amicus Slate's podcast about the courts, the law and the Supreme Court. This week's show will unfold in two stages as we unpack one of the fastest moving examples of autocratic creeps in since January 20th the case of Kilmar Abrego Garcia.
- [01:30]
Mark Joseph Stern
The Trump administration is reading this as, at a minimum, a license to dawdle longer in its half hearted effort to comply with an edict from SCOTUS and.
- [01:41]
Dahlia Lithwick
One of the slower rolling crises of democracy in America, Donald Trump's shakedown of big law firms co opting hundreds of millions of dollars in pro bono work in order to execute his agenda. Later on, we're going to try to talk through this question of what responsibility attorneys actually have in this fight to protect the Constitution and democracy. And we're going to be joined by a lawyer from a firm that has no interest in taking the deal and who genuinely can understand what it means to try to remain neutral in this moment.
- [02:14]
Jesse Weber
It's not enough for firms just to say nothing even if they're not capitulating. I really think the whole profession needs to be speaking in a unified voice, making sure the public non lawyers understand how dangerous this is in terms of our rule of law, our Constitution, and ultimately our democracy.
- [02:33]
Dahlia Lithwick
But first, on Thursday night, the Supreme Court finally issued a decision in the case of Kilmar Abrego Garcia, and it was more good than bad. It was the bare minimum. At least we can say it was unanimous. As listeners will remember from our conversation last week with his lawyer, Simon Sandoval Moshenburg, Abrego Garcia was wrongfully arrested and deported to a prison in El Salvador last month. He has no criminal record or gang affiliation whatsoever. He was in fact legally protected against deportation to El Salvador by a court order from 2019. In the litigation around his removal to this brutal prison that the government pays $6 million to rent out, the Trump administration actually acknowledged that it removed him due to a, quote, administrative error. But it also claimed it had no obligation to bring him home and that no court could ever order it to try. A district court nonetheless demanded that the government, quote, facilitate and, quote, effectuate Abrego Garcia's return from El Salvador. And it set a deadline to do so. Of last, of course, the Trump administration went straight to the Supreme Court asking permission to do nothing. Instead, late on Thursday, the court ordered the Trump administration to do, well, something more than nothing. And here to chew it over with me at the top of the show is Mark Joseph Stern. Hi, Mark.
- [04:03]
Mark Joseph Stern
Hi, Dahlia.
- [04:04]
Dahlia Lithwick
So I guess the first question is, what exactly did the Supreme Court order on Thursday night in response to the government's demand that the courts allow an entirely innocent man to rot away in a Salvadoran prison, I guess forever.
- [04:20]
Mark Joseph Stern
So, as you say, Dalia, more good than bad. The Supreme Court held that the government must facilitate Abrego Garcia's release from custody in El Salvador and return to the United States. That part is very good. But at the same time, the Supreme Court said that the government cannot be ordered to, quote, effectuate Abrego Garcia's return based on some kind of hazy article to presidential powers over foreign affairs. So the court drew a very blurry line where the government can be ordered to try to send him back, but if it tries and fails, then maybe the district court can't do anything at all.
- [05:05]
Dahlia Lithwick
So, as you say, Mark, it's kind of a mixed bag. But we can start with the good news. There was some unequivocal positive news first, as you say, no noted dissents, not even Clarence Thomas, not even Samuel Alito tried to bail out the government's kind of crazed maximalist argument here, which I think sends its own message. And secondly, and this sounds basic, but I think it's really important, it's a good sign that the court gave some relief. They didn't just toss the case out on some standing grounds or pretextual grounds that Abrego Garcia is outside of the jurisdiction of any federal court. Which they could have done, right?
- [05:46]
Mark Joseph Stern
Yes. I mean, one of the big fears here was that the court would simply toss out the case and say, sorry, Abrego Garcia is in another country. The federal courts have no authority to order anything. That's what the Trump administration had asked the Supreme Court to say. And, of course, the court didn't say that. And I think we can say the court implicitly rejected that argument. But by issuing this order saying, government, you have to facilitate this man's return. So that's a good thing, especially in light of Monday's decision from the Supreme Court saying that individuals who don't want to be sent to El Salvador have to file habeas petitions in the district where they're confined. The big question then was, well, what happens to the people who've already been sent to El Salvador? They can't file petitions in El Salvador. It's not the United States. So what do they do? The Supreme Court didn't answer that on Monday, and it didn't squat. Warily address it on Thursday. But I think the takeaway from the decision is that folks who have already been sent overseas do have a right to file these petitions somewhere in the United States in a federal court, and federal courts retain jurisdiction to at least try to bring them home. So the big fear that you and I have been discussing for weeks now that the Trump administration has been arguing in favor of, which is this idea that it can just disappear people to El Salvador and permanently extinguish their constitutional rights by saying they're outside the reach of federal courts, that now seems to be off the table. What is on the table is a little less clear. And we're going to talk about it. But the worst case scenario does seem to be out of the picture. And that's good.
- [07:26]
Dahlia Lithwick
It's. It's good. We both say, shrugging on a zoom. Okay, so here is why it's hard to say. This is an unequivocal win. This is, again, an order that is hard to parse. It seems to be saving face for the court and for the Trump administration. Can you tell me what affirmative obligation the administration has now in order to get this man home?
- [07:55]
Mark Joseph Stern
So I sort of can't tell you that, Dalia, because it's not exactly clear from the Supreme Court's order, which is extremely brief, as befitting a shadow docket order. And of course, it's unsigned. And so we're left kind of guessing exactly what the Trump administration has to do. I mean, the most I can say with certainty is that it has to try to facilitate his release and return what that means. And the scope of that is very much unclear. The district court here wants to move quickly. The district court quickly issued an order after the Supreme Court's intervention saying, all right, let's get the show on the road. Asked for briefing in a hearing on Friday, the Trump administration then came in and asked for more time, said we need a few more days to get our act together. And so to the extent there was urgency in the court's order, the Trump administration seems to be trying to ignore it. And the Trump administration is reading this as, at a minimum, a license to dawdle longer in its half hearted effort to comply with an edict from scotus.
- [09:02]
Dahlia Lithwick
And I think it matters a little bit, Mark, that the Trump administration asked for more time on Friday morning. We know that they are perfectly capable of sending Kristi Noem down there to do a photo op. Right, of course. But it does seem like now they're saying, hey, this is really complicated and we're doing like high level international diplomacy, so we need until Tuesday. And I think the signaling is really quite clear, which is the administration still thinks that it's not anybody's job to tell them how to do this. I guess that we have to go back to this kind of splitting the salami between the government facilitating the return but not effectuating the return. Right. That's the parsing that has to happen now because it sounds like, at least as I read this order, they're saying, we're going to ask you politely, please, please, please to give it your best shot, but we are not telling you to bring Abrego Garcia home.
- [10:09]
Mark Joseph Stern
So that's the big problem here, right, that the court, at least the majority, tries to find this compromise where it says, you have to facilitate his return. And again, that is good. Our, our expectations are on the floor, but this mattress and slightly exceeded them. But then the court also says, okay, we want to have deference to the executive branch and its conduct of foreign affairs. We will not allow the district court to demand that his return be effectuated. And then the question is, what in the world does that mean? The court doesn't really tell us. It is a very opaque order. It picks up on the opinion of Judge J. Harvey WILKINSON on the 4th Circuit, when this case was there, who said something very similar. To some degree, I think this is a distinction without a difference. To some degree, I think it should be read as an almost formalist footnote. That shouldn't matter too much. I mean, what I think the Supreme Court is saying is, look, we acknowledge that the district court has a limited ability to boss around the precise conduct of the executive branch in its exercise of foreign affairs powers. And we think that the word effectuate goes a little bit too far in the district court attempting to superintend the precise actions and decisions of the executive. So instead, again, this is my reading. I think the Supreme Court wanted to give the district court the hint, step back a little bit, tell the executive branch what it needs to do, and then give it some leeway to do that. And if we were dealing with a trustworthy executive branch that complied with the law, this would not be a big deal. This would not be a problem at all. In fact, if we were dealing with an administration that deserved the presumption of regularity, that adhered to court orders, that did not regularly flout the mandates of the federal judiciary, then this order wouldn't be a big deal at all. And this qualification, I don't think we would even be talking about it. But we're not dealing with that hypothetical administration. We are dealing with the Trump administration that is already facing contempt of court from Judge Boasberg for defying his orders, that has treated the courts with contempt throughout this case and the Alien Enemies act case, and repeatedly declared in public that the courts have no authority to tell it to do anything, that these are terrorists, even though we know they aren't, that they're criminals. We know they aren't. But the administration takes the, the posture that it can just decree they are incorrigible terrorists and send them to rot forever in a prison. And if courts try to intervene, well, too bad they can't do anything about it. So, for instance, the administration's reaction to the Supreme Court's decision was this is a statement from the Justice Department. As the Supreme Court correctly recognized, it is the exclusive prerogative of the president to conduct foreign affairs. By directly noting the deference owed to the executive branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the president's authority to conduct foreign policy wrong. That is not what the Supreme Court said. The Supreme Court has actually never said that Congress also has significant powers to conduct foreign affairs. But that reaction from the Justice Department suggests to me that they are going to try to exploit this, again, formalist distinction that the court is making based on its own sort of nitpicky idea of separation of powers and exploit it as a loophole that will allow it to doddle, to drag its feet, maybe even to, we can't bring him home. We tried. We're not going to tell you how we tried. We're not going to give you any details or any information. Just trust us. But we tried and it didn't work. And that's when this becomes a full on confrontation between the judiciary and the Trump administration. So, you know, I'm of two minds here because I don't want to be defeatist or overly pessimistic. I am hoping that the administration gets the gist from this order, that it needs to get this guy home some way somehow. But I'm fearful at the same time that the administration's sees this as another opportunity to show its supremacy over the judiciary, to, you know, continue to consolidate power within the executive branch and just say, nope, we're not doing it. The Supreme Court gave us wiggle room and we wiggled out of our obligation. And too bad for you, District Court, there's nothing you can do about it.
- [14:39]
Dahlia Lithwick
Yeah, I guess we should end on this note. You know, Mark, you and I throughout the first Trump administration kept saying that if there was a shorthand for these John Roberts compromises, it's lie to me better, right? Lie to the court better. And as long as you tell us better lies, we will give you absolutely way to do what you're doing. But you just have to kind of make it palatable. And this feels like another go at face saving. Right? It's the court allowing the Trump administration to save face by saying, oh, to be clear, you have capacious, nearly limitless, you know, power to do whatever you need to do in terms of foreign policy. As you say, that's not true. But it also allows the court to save face. Right, because the court is not picking a fight with Trump again. And I guess the question is, and you've already sort of flicked at this in your last answer is how long can you keep doing this? Zeno's paradox, where the court wants to both assert some level of control and supremacy, and it knows it's dealing with a Trump administration that accepts no boundaries whatsoever on its power. At some point, it's hard to see that the court continually giving Trump massive mass, massive, you know, latitude to do what it needs to do. How long does this go on this way?
- [16:00]
Mark Joseph Stern
I mean, it can't go on forever. And John Roberts, who does seem to be the author of these compromises, he keeps finding ways to avoid this head on collision. And here there was some dissension from the liberal justices. We should note Justice Sotomayor, joined by Justices Kagan and Jackson, had a sharp concurrence, sort of spelling out, hey, we really never should have delayed this case in the first place. We should have just denied the government's request outright. And don't forget, the government still has obligations to protect this man against torture and uphold its duties under international law and all this other stuff, which suggests that Roberts was barely holding together the ship here. Right. He just barely got the liberal justices to sign onto this compromise. They are in a difficult position as well. They want a good outcome. They want to get John Roberts on the right side of the law where they can. They don't want to burn him unnecessarily. But I think they're losing patience with these endless compromise specials that he is cooking up that are failing to persuade as a matter of law and maybe kind of failing to cut the mustard as a matter of just practical problem solving. We will soon see if Abrego Garcia is not back in the United States next week, then I think we should call this decision a failure and say that John Roberts tried to find some kind of middle ground and got outsmarted or outwitted or outfoxed by the Trump administration. So it feels like if we're being really cynical about this, maybe Roberts is waiting for Trump to get more unpopular before allowing a head on collision to occur. Maybe he's just trying to give Trump Runway for his first hundred days or so before having a clash between the branches and a full on constitutional crisis between the Supreme Court and the President. Maybe he's biding his time. That is the most optimistic and generous read I can give this. With each of these compromises, it becomes more obvious that John Roberts is delaying the inevitable. And if this does end up being the case where the administration says, nope, we're thumbing our nose, we're not going to do it, we're going to pretend we tried and then we're not going to do it, that puts the Supreme Court in an impossibly difficult position, a much more difficult position than it was in on Thursday where it has to either call the administration's bluff and say you are lying, bring this man home, we know you can do it, or allow the administration to effectively extinguish the Constitution and smuggle people off illegally to a Salvadoran prison and leave them there to rot by claiming falsely that they cannot practically be brought back home. A really, really bad situation that the court will not want to be in, but that the court may have just pushed itself into.
- [18:46]
Dahlia Lithwick
Inevitably, yeah, it really is this strange through line in so many of our conversations where continuing to do deals with an entity that has no interest in seeding any ground kind of at the end of the day, makes look like a chump. Mark, thank you so much. Mark's gonna head over to the smokeless cigar bar of panic that is the Amicus plus bonus room to talk about more of the action and inaction on the court's emergency docket. This week, Slate plus members are gonna join us there in that bonus episode. Right after this one we're gonna take a very short break and when we come back we are going to talk about loud quitting and quiet capitulation or how to be a lawyer at a law firm. At this moment that we'll see you on the other side. This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The Ship show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates, and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find find it wherever you listen. This episode is brought to you by netsuite. What does the future hold for business? Bull market, bear market? Inflation's up or down. Can someone please invent a crystal ball? Until then, over 41,000 businesses have future proofed their business with NetSuite by Oracle, the number one Cloud ERP bringing accounting, financial management, inventory and HR into one fluid platform with one unified business management suite. There's one source of truth giving you the visibility and control you need to make quick decisions. With real time insights and forecasting, you're peering into the future with actionable data. When you're closing the books in days, not weeks, you're spending less time looking backwards and more time on what's next. Whether your company is earning millions or even hundreds of millions, NetSuite helps you respond respond to immediate challenges and seize your biggest opportunities. Speaking of opportunity, download the CFO's Guide to AI and Machine Learning at netsuite.com Amicus the guide is free to you at netsuite.com Amicus netsuite.com Amicus Vacation season is almost upon us, and this year it's a good time to treat yourself to the luxe upgrades that you deserve with quick Quince's high quality travel essentials at fair prices. Now, you've already heard me talk about the quiet luxury of Quince's Mongolian cashmere sweater, which is kind of perfect for airplanes. But Quince also has a terrific range of luggage and travel accessories for your next trip. I just ordered the Italian pebbled leather sling bag. It's chic, it's compact. It's a good way to keep your valuables close at hand. Quince cuts out the cost of the Queen middleman by partnering directly with factories that use safe, ethical and responsible manufacturing practices and premium fabrics and finishes. For your next trip, treat yourself to the luxe upgrades you deserve from quint. Go to quint.comamicus for 365 day returns plus free shipping on your order. That's Q-U-I-N-C-E.comamicus to get free shipping and 365 day returns. Quince.comamicus it is hard to metabolize news of markets rising and falling, mass ice roundups, threats and reprisals from the White House and the general doom spiral that is life in Donald Trump's America. But there is a story that is continuously misfiled, I think, under what is wrongly considered the business of law elite law firms either buckling under threats from the administration or fighting back against threats from the administration. The story is so much bigger than being mad at former Obama officials who are now in the warm embrace of big law for the sake of their summer homes. Make no mistake, attacks on lawyers are attacks on the law. And when lawyers make a deal to remain neutral while doing free work for the White House, they are not, in fact, serving the rule of law. So this just isn't a business of law story. It's a failure of law story, and I think we need to tell it as such. Just in the last few days, President Donald Trump signed his latest executive order targeting a law firm, this time Sussman Godfrey, the firm representing Dominion Voting Systems in ongoing defamation cases around the 2020 election. The new EO purports to suspend any security clearances held by Sussman Godfrey's 170 lawyers, restricts their access to government buildings, and threatens to cancel federal contracts held by the firm's clients. Sussman Godfrey has supported Perkins Coie in its challenge to Trump's attacks and it seem, seems to be willing to go to the mat before it signs a deal. But this past week, we've seen other mega firms like Skadden Arps, Milbank and Wilkie Farr joining Paul Weiss in deciding to take the deal in which they agree to perform hundreds of millions of dollars of free work for the administration in exchange for being released from the crosshairs. And then on Friday, four more law firms acquiesced to Trump Trump's big law buyout with the president announcing a package deal totaling $500 million in pro bono and other free legal work from Kirkland and Ellis Allen, Oversheerling and Sterling, Simpson, Thatcher and Bartlett, and Latham and Watkins. Solidarity, but when it's for mass capitulation. And so this brings us to the central question this week. We're asking quite simply, what's a lawyer to do? And we want to ask that question of a lawyer who is, at this moment doing. This may or may not be the first in an occasional series of conversations with legal professionals navigating a radically altered landscape. Because every single lawyer I know, and I confess I know a lot of lawyers, is having exactly this conversation in private. We're hearing whispers from lawyers who can't talk about their firm capitulating. And we're hearing whispers from lawyers whose firms are working in the resistance but can't speak about it. We're hearing from lawyers who say that the line of attorneys around the block who wanted to sign on as co counsel in Trump's first term is nowhere in evidence in Trump 2.0. And we are deafened by the silence of lawyers who continue to think that all of this has nothing whatsoever to do with them. So our guest this week is Jesse Weber. She's managing partner at Brown, Goldstein and Levy in Maryland. She's a litigator known nationally for her work obtaining equal access for individuals with disabilities to voting education websites and government information and services. She has served on the boards of the ACLU of Maryland and Free State Justice, Maryland's statewide LGBTQ equality group. And while so many lawyers have opted to stay silent in the face of Trump's attacks on the practice of law, Jesse has taken the decision to speak up. Jesse, welcome to Amicus.
- [26:54]
Jesse Weber
Thank you so much for having me.
- [26:55]
Dahlia Lithwick
I think I just want to start by saying, look, you're a lawyer. Tell me what you are hearing from the attorneys that you know. And also tell me if anything that I said in my introduction strikes you as absolutely flawed or wrongheaded.
- [27:10]
Jesse Weber
No, I think what you talked about is exactly what I'm hearing from my lawyer friends. I have friends at firms, not even the firms who have sort of capitulated to the administration who want to be speaking out, but their firms are concerned about sort of taking a public stance. I feel really lucky to be at a firm where we've always kind of put our necks out there. We've always represented clients or causes that might be unpopular in the country, gone up against the bullies of the world. And so it's very much in our firm ethos to be speaking out. And I'm grateful to be at a firm where that's very supported. But the lawyers I know are quite concerned. And I'm curious to see when. I'm hoping we'll see more and more speaking out, because I think it's really dangerous for the legal community to be remaining silent.
- [27:58]
Dahlia Lithwick
Can I ask you, before we go deep on this moment, I would just love to know why you went to law school and what it is that you think that lawyers can do in the world. I mean, what drew you to this profession?
- [28:13]
Jesse Weber
I was always really interested in the history of social change and progress in our country. And one way to do that is, you know, a protester, part of the social movement, an organizer doing policy work. But I'm a pragmatic person, and I was really drawn to kind of having a trade where I could actively help social movements achieve milestones in the law through our legal system, working in tandem with those movements, kind of building on their work. And obviously there's a lot of examples in our history of the legal system helping to advance the work that social movements have been doing in everything from racial equality, gender equality, sexual orientation equality. And so that really drove me, and knowing as well that we are lucky, we have these wonderful laws on the books, civil rights laws on the books in the US we have a wonderful Constitution that I very much believe in, but those documents are really meaningless if people are not enforcing them. And the way our legal system is set up, it's really hard to enforce your civil rights without a lawyer. It's really hard to be pro se. Some might say it's nearly impossible. And so I knew that it took lawyers to make those laws meaningful. And I wanted to be one of those lawyers doing that work. And that's what drew me to law school and led me to browngold student Levy.
- [29:29]
Dahlia Lithwick
And can you talk a little bit about the kinds of work that you and your firm and some of the lawyers that you know who have been kind of willing to stick their necks out in this moment are doing in this really fraught time? Can you just describe some of the things that you are working on?
- [29:48]
Jesse Weber
Sure. So my firm, we're all litigators, but we have a fairly diverse practice. We've always had a really robust kind of public interest oriented practice. We do a lot of civil rights work within that, a lot of disability rights work, but we've also done voting rights cases on account of race, fair housing work. I have a large Fair housing case right now, employment discrimination. We do wrongful conviction, police misconduct work, but we also do commercial litigation. We have a lawyer here who does family law. So it is a mix of work. Right now, we have been working to take on as many cases as we can handle, given the moment, to help our, you know, our democracy and people who have really been the most adversely affected by the administration. So right now we have a case. My partner, Eve Hill, has a case representing transgender women who are incarcerated in federal prisons. And they were able to get a preliminary injunction to keep those women in women's facilities because it would have been so unsafe for them to be moved to mail facilities. We represent a class of probationary employees of the Small Business Administration. Before the mspb, we just filed a case recently against the Social Security Administration and the acting commissioner challenging the decimation of the Social Security Administration and the impact that has on people with disabilities and older individuals. And for that case, we're representing a number of advocacy groups, disability rights groups, and also groups representing older individuals as well as individuals who've been adversely impacted. And we have some others as well. And we've been doing like, I know I've consulted with individual federal employees who've been subject to these mass terminations with, you know, no, you know, just trying to give them some guidance. So we've been pretty involved. And I will tell you, there's more cases we've been getting, and we would love to take them all, but we have 20 something lawyers, and we just have to kind of be mindful of our capacity. But the need is certainly there.
- [31:48]
Dahlia Lithwick
I guess I'm going to ask another Vibes question, Jesse, which is, when you take these cases on, is there a firm wide like, oh, you know, this is scary. We shouldn't do this. I mean, what is the calculus, what's the conversation inside the firm in terms of taking this risk, Especially in a moment when we're seeing what happens to firms that take risks.
- [32:13]
Jesse Weber
I'm really lucky to be at a firm where everybody who is here kind of shares common, strong core values of we need to be doing the right thing in this moment. And there's a reason we're lawyers and we believe in standing up for the rule of law and our democracy and people who are being harmed unlawfully. And so I feel really grateful that there's been zero question of should we take on this case. Is it unpopular? And to the contrary, I think, you know, even I mentioned we have commercial litigation. I think even the commercial clients come to Us, because we have a reputation. We're not afraid of bullies. We're not afraid of standing up against the Goliaths of the world. And they've seen us do it in civil rights cases, and we do it in our commercial cases, too. As a lawyer, I'm a little surprised. As a litigator, you know, some of these big firms that have capitulated, I think, what kind of a message does that send to their clients that they're not willing to fight when something is so patently unlawful? If I were a big business, I'd want my lawyers to be fighters and to, you know, not to be afraid to make the arguments needed to represent me zealously. And so we see this work as just part of our ethos to really stand up for our clients. Doesn't matter who they are. It doesn't matter who we're going against. And luckily, it's a really supportive environment for that.
- [33:28]
Dahlia Lithwick
One of the things that I always think about, because, like you, I sort of naively went to law school and thought that words mattered, is that, you know, lawyers take an oath to uphold the Constitution, not to uphold the president, not to uphold the executive branch, certainly not to act in the best interest of their M and A Practice. Right. Like, this is an oath to uphold the Constitution. And I would love for you, if you could, to just sort of remind our listeners what that signifies to you, because I think in this moment, that feels very ephemeral. And yet if it's ephemeral, we're in big trouble.
- [34:06]
Jesse Weber
So it means we're certainly not doing anything in our practice of the law that would violate the Constitution or the laws. I mean, certainly as a lawyer, we're driven by the need to zealously represent our clients, kind of whatever position they take. Although there are parameters. Right. If we know that our. And I don't really do a lot of defense work. But my understanding is if you're doing defense work, you should be advising your client, and good lawyers do. Of when you think your client has done something wrong and you advise them how to fix it. You know, I have friends who do employment defense work, and they tell me, yeah, when we know our client, the employer has violated Title VII civil rights law, we tell them, no, no, no, you need to fix what you're doing. And so I do think we have an obligation to be advising our clients about what the law requires of them while still making arguments to defend them as best we can and advocate for their interests. But. But yes, I think we do have a Higher mission to be guided by our Constitution and our laws.
- [34:59]
Dahlia Lithwick
Having said up top that I'm not really interested in yet another sort of business of law show, I'm gonna ask you one business of law question because I think that people don't exactly understand how pro bono work works in the whole ecosystem of law firms. And I think that one of the things that's very, very confusing to people is like maybe 40 million or $100 million in pro bono work. Work isn't that consequential, or maybe if it aligns with the Trump administration's values, but it's still pro bono work, and you believe it's good work. It doesn't matter. So can you just walk us through sort of what that bargain is and how firms think about that bargain?
- [35:44]
Jesse Weber
So, historically, a lot of the big law firms have taken on substantial pro bono work, much of it in cases involving civil rights or areas like prison litigation, where it is hard to kind of recoup fees, or family law cases, things where it's difficult either for civil litigants to afford lawyers to afford counsel, or where it's a fee shifting statute and just the pool of lawyers is small. And I can talk about that more about why that's the case. But yeah, they did a ton of this kind of pro bono work. And so it is a very big deal if that work is shifted to only causes that the President cares about, which presumably are not the causes of immigrants rights or LGBTQ rights or prisoners rights. That's a major shift. And it means that we're going to have fewer lawyers enforcing the Constitution, enforcing people's civil rights. It's already a diminishing pool of lawyers available to do that work, and it's about to get smaller. And so that's really dangerous.
- [36:45]
Dahlia Lithwick
And is that the answer to the question, Jesse, of like, capitalism is why we can't have nice things? I mean, is the answer that this was always kind of a shell game because you got to go to a big firm and you could do good pro bono work and you felt okay about yourself, but now you're going to devote your career doing pro bono work like attacking DEI and doing away with environmental protections? I mean, is this just, you know, when we talk about the flaw baked into the system, this is it, right? Was this was subject to going horribly awry and then taking down the whole notion of what big law really does?
- [37:24]
Jesse Weber
I actually don't know if it's a flaw baked into this system because I. So just thinking about civil rights laws, they're Mainly fee shifting statutes. Right. Which means that if you prevail as the plaintiff, you can get your attorney's fees from the other side. So Congress passed these laws with these fee shifting provisions, with this private attorney general model thinking, if we do this, this will allow people to get representation to actually enforce their rights. Because lawyers can make a living doing this kind of work. If they take meritorious cases, they'll get paid at the end of the day. And I will say, far before Trump came into office, there's really been this trend of pushing back on that and cutting back the ability for plaintiffs in civil rights cases to get legal representation. So the Supreme Court has been, for example, attacking the award of attorneys fees to prevailing parties and civil rights cases for some time now. It started with Buck Hannon in the early 2000s, which I can get into the details if you want, but did away with a catalyst theory. So it wasn't enough anymore. If bringing a lawsuit is what caused the defendant to change their ways and start complying with the law, if you didn't get an order from a court ordering the defendant to follow the law, you were no longer considered the prevailing party and you can't get attorney's fees. That's been followed up just recently with the Lackey vs. Stinney case, which changed the law in terms of if you get a preliminary injunction in the 4th Circuit, at least where I practice, it was considered, that's an order that changes the position of the parties and you count as a prevailing party and you can get your attorney's fees because you probably couldn't get that preliminary injunction had you not been represented by counsel. And the Supreme Court said, no, that's not really an enduring type of relief. No attorney's fees and the imp. And I think, think most of the public wasn't really paying attention to these decisions. And nobody likes talking about attorneys fees because people think of attorneys as greedy. But these cases have a real impact. I mean, I can tell you our firm where we take a lot of cases on a fee shifting basis. If we don't think we can get paid, we can't take on many of these cases. It leaves it to then firms, big law firms really doing this on a pro bono basis almost as a matter of charity. And, and that's not what Congress envisioned. Civil rights are not a matter of charity, they ought to be enforced. And so it's really critical, I think, to look not just at this moment, but kind of the lead up, the judicial decisions that created this moment where we have this very small pool of private attorneys willing to take these cases and ensure people can enforce their civil rights. So I think it's a perfect storm then, with the big firms kind of backing off, doing this sort of pro bono work. But it's not a surprise from where we've been.
- [40:07]
Dahlia Lithwick
So I love what you're saying, Jesse, because what you're saying is this looks like Donald Trump cleverly weaponizing pro bono vulnerabilities. And what you're saying is this has been an ongoing systemic change to how you recoup fees in a pro bono world that long predates the Trump administration.
- [40:28]
Jesse Weber
That's right. Right. Yes.
- [40:30]
Dahlia Lithwick
So I, I do want to sort of flag for listeners that there's this really other frightening element here, which is, you know, Trump suggesting this week that now he's got all these law firms that are, you know, going to work for him for, you know, free. And he's suggesting that, you know, these firms that he's made deals with are going to help him with the tariff negotiations. Right. He, quote, we're going to have to use these great, great law firms. We're getting them for the right price. We need a lot of talent. We've got all these countries coming in. They want to make deals. And then he started saying, maybe we'll use these firms to help the coal industry, you know, leasing federal land. So he's literally sort of bragging about, you know, this is not, oh, accidentally, the firm's pro bono work is in alignment with the administration's values. It's like we are going to press you into service to do things that are sort of anathema to what your firm's values were. And I can't help but notice this is kind of coming at the same moment where, you know, this week we've seen Justice Department lawyers benched for, like, inadequately zealously defending the government's position in Abrego Garcia, one of the El Salvador rendition cases. It feels a little bit, Jesse, like this one, two punch where you're making career Justice Department attorneys very vulnerable, very aware that they're in a precarious situation. But you're building this multi million dollar bench of pro bono Trump lawyers. It feels, though, it's a signal, kind of a clarion signal above and beyond whatever law firms who take the deal, as you say, that lawyers are kind of, at the end of the day, going to be willing to just be an army of Trump's yes men. And as you suggest, it's hard to find people to do this work, but he feels like he has an infinite pool now.
- [42:27]
Jesse Weber
Yeah, I think that's absolutely right. And, and part of the danger, you know, I haven't sat down and thought of all the legal claims that could be brought here. But I mean, certainly compelling lawyers to go and represent the government or defend the government's interests I think raises some free speech problems. But I do say, I mean this is unprecedented, both the attack on the legal profession, compelling lawyers to represent a single viewpoint. And I understand the big law firms have a lot of money at stake and a lot of big clients, but gosh, if we're not speaking up now as a profession, I don't know at what moment we would be. And as you said, we have an oath to uphold the Constitution. And this is the moment where I think silence really is complicitness. And it's not enough for firms just to say nothing even if they're not capitulating. I really think the whole profession needs to be speaking in a unified voice, making sure the public non lawyers understand how dangerous this is in terms of our rule of law, our Constitution, and ultimately our democracy.
- [43:33]
Dahlia Lithwick
We are going to take a short break.
- [43:38]
Mark Joseph Stern
This podcast is brought to you by Progressive Insurance Fiscally responsible financial geniuses, Monetary magicians.
- [43:45]
Jesse Weber
These are things people say about drivers.
- [43:47]
Mark Joseph Stern
Who switch their car insurance to Progressive and save hundreds because Progressive offers discount.
- [43:52]
Jesse Weber
Accounts for paying in full, owning a home and more.
- [43:55]
Mark Joseph Stern
Plus you can count on their great customer service to help you when you need it.
- [43:58]
Jesse Weber
So your dollar goes a long way.
- [44:00]
Mark Joseph Stern
Visit progressive.com to see if you could save on car insurance, Progressive Casualty Insurance company and affiliates. Potential savings will vary. Not available in all states and situations.
- [44:14]
Dahlia Lithwick
This show is sponsored by BetterHelp. Let's talk numbers. Traditional in person therapy can cost anywhere from 100 to $250 per session, which adds up fast. But with BetterHelp online therapy, you can save on average up to 50% per session. With BetterHelp, you pay a flat fee for weekly sessions, saving you on cost and time. Therapy should feel accessible, not like a luxury. Your mental health is worth it, and now it's within reach. With over 30,000 therapists, BitterHelp is the world's largest online therapy platform, having served over 5 million people globally. And it's convenient too. You can join a session with the click of a button, helping you fit therapy into your busy life. Plus switch therapists at any time. Your well being is worth it. Visit betterhelp.comamicus today to get 10% off your first month. That's betterhelphelp.comamicus. let's return now to my conversation with Jesse Weber, managing partner at Brown, Goldstein and Levy. So I want to talk a little bit about again. I think it's unfair that this is cast as, oh, you know, these fat cats and big law just want their seventh boat. I think this is more complicated than that. Tell me if I'm wrong. If it's just about their seventh boat, I'm willing to be told I'm wrong. I think they're genuinely terrified of something. I don't fully understand what they're genuinely terrified of. Can you, to the best of your ability? I realize you're not at Scadden. You know, you're not at Wilkie. But like, when you hear from friends at law firms who are chilled, what are they afraid of?
- [46:04]
Jesse Weber
Right? Let me preface this with I'm not in big law. I spent half a summer in law school in big law just to experience it. But I probably shouldn't be speaking for the big law crowd crowd. That being said, my understanding from talking to people is, first of all, a lot of the big law firms, there's a wide pool of lawyers who work there who hold sometimes differing political beliefs. And the client base can be diverse in terms of their political values and beliefs. And certainly some big corporate clients are. It's in their interest to cozy up to the administration. And would they want to go to a law firm that is on. On the administration's blacklist, basically. So, I mean, I do think it comes from a concern of losing clients. And also, I mean, some of these big firms, even if they don't think of themselves as conservatives, I think they can be conservative institutions that are really afraid to kind of push the needle, to ruffle feathers. But I think what they're missing is that saying nothing is also in these times, saying something, right? It's saying, we think this is fine. We think this is normal. It's okay to kind of boss lawyers around in this way and limit their ability to represent clients of their choosing. I know some of the younger lawyers at some of these big firms have been trying to raise the alarm and say that. I'm hoping some of the leadership of these firms start to listen and realize that saying nothing is indeed taking a position.
- [47:30]
Dahlia Lithwick
And I think it's sort of interesting that, right or wrong, the blame is largely directed at Paul Weiss for being the first firm to take the deal. Subsequently, the firms that have taken worse deals, it seems like they're. They're heaving up more and more and more pro bono work. But I think that there is a sense that with each firm that agrees to this, it makes it easier for the next firm to do it right? And so that there is this kind of wind at our backs feeling like everybody. All the cool kids are. Are taking this deal. And so clearly there's nothing wrong with it. And yet again, correct me if I'm wrong, Jesse, this week feels like there was a turnaround where there was a feeling that, you know, enough is enough. There was a massive effort in the Perkins Coey litigation to get, you know, the amicus brief from the big law firms and then the tiny law firms and then the law projects and the legal academics. Like, it does feel like some kind of tipping point may have been reached this week where law firms world, that was just hoping that this would go away, realize that, as you said, a failure to take sides is not, in fact, courage in this moment. Am I overreading that? Or is it your sense that we have maybe moved from, oh, my God, this was a gut punch. They're going after individual firms to, I think now it's time that we stand up, or am I wish casting here?
- [49:03]
Jesse Weber
I hope you're right. I mean, and I think. I think we're also seeing Wilmer and Jenner pushing back, which is good. And there's law firms representing them, and there will be more amicus briefs. I hope that when those amicus briefs are filed, we will see the groundswell of other big law firms standing up. I'm not so sure I will say, I mean, these big law firms spend so much money recruiting from sort of the top law students around the country, and I think they're gonna start seeing pushback there. I hope they will. I mean. I mean, I've heard anecdotally some stories of kind of some law student groups uninviting some of these law firms and saying, we're not interested in law firms that cave or don't prioritize DEI work and values. So I think some of these big firms will start to see some impact in terms of their recruiting efforts, and maybe that will push the needle. But I certainly hope you're right.
- [49:55]
Dahlia Lithwick
I mean, I want to be right. I guess my related question is that we've seen some spectacular quitting, which I think was also missing. We had, you know, Rachel Cohen sort of bravely leaving a few weeks ago. Just this week, the head of the pro bono practice at Paul Weiss said he was resigning as a result of the deal that Paul Weiss took. And he, you know. This is Stephen Banks, former commissioner of New York City's Social Service Agency just essentially said, look, I'm going back to representing the Coalition for the Homeless with the Legal Aid Society. And, you know, his quote is really moving. Like he said, this time to make a difference as a lawyer is narrowing. And that this has been weighing on me and that I belong on the front lines fighting for the things I believe in. And I wonder if you can keep talking about the work that is to be done. Like, I think it matters to have him go back and do work for the homeless. And I wonder if you could give me a sense of what is the work that needs to be done. Because, and this is just the one part of me that despairs a little, is that I do find that when I talk to lawyers, there is a sense in which they're like, well, but if somebody asked me to do a thing, I would do it, but I don't know what to do. There's an immense amount of work to be done right now.
- [51:12]
Jesse Weber
There is an immense amount of work to be done. And we're certainly hearing from individuals and organizations that could use a lawyer, and sometimes they're in a position to finance the litigation and sometimes not. And then it becomes a, you know, fee shifting type of representation. And I think smaller firms, medium sized firms like ours, we need to be careful about kind of our mix of cases just to keep the lights on. But there is certainly a ton of work to be done. And I can tell you, I mean, we've heard from some organizations that previously nonprofits that would have partnered with big law firms on pro bono matters, and those firms have pulled out and they're looking for co counsel. And I wish we could take every single one of those cases on. But again, we need to be mindful of our capacity. And so I think certainly the need is there. I think the question is, where can lawyers go who want to do that work? Some nonprofit organizations are growing and hiring more lawyers, but, you know, other nonprofits are. Their funding is at risk. And I mean, one thing, and I'm sort of thinking out loud here, but you know, historically a lot of foundations that give grant money, you know, they don't like to fund lawyers or law firms. Right. They want to fund other projects. But I think this is a moment where putting some money behind the need for legal representation and making sure that there are is really an army of lawyers able to take on all of the cases that need to be taken on cases on behalf of transgender individuals who can't get passports, who are, you know, had medical Procedures scheduled, and maybe they're in the military service and now their procedures are called off and they're halfway through transition and prisoner cases, immigrant cases, right? There's immigrants being held even in the US in horrible situations, in places that aren't supposed to really be detention centers, long term detention centers, the list goes on. There's not a dearth of cases to be brought, but we really do need an army of lawyers with capacity to take them on.
- [53:14]
Dahlia Lithwick
I have this very sentimental memory, and you'll boop me on the nose if I'm romanticizing it. But I do remember in the first Trump era when the executive order, the travel ban, the Muslim ban, was signed in the first week, every lawyer grabbing a yellow pad and running to the airport and like teaching themselves immigration law right in the car on the way there without all that much concern to what their firm thought or what, you know, the administration thought. They just were like, wait, I have this like wizardry that I can do and I'm gonna do it. And I think that in the same way that we bemoan sort of that general kind of freaked out, paralytic fear of this moment, that attorneys have been similarly reluctant to say, I'm just going to like grab my blue book and run to an airport and do some good work. I mean, there doesn't feel like there is that sense. And as you point out, the need is dire for lawyers in every one of these cases that we cover on the show. I think they'd be delighted to have a bunch of volunteer lawyers. But there is a sense, I guess it comes back to real fear of real reprisals this time where there is a sense that you will be targeted, your firm will be targeted, that your clients will be mad at you. That really feels seismic as compared to what we saw eight years ago. Am I overstating it?
- [54:45]
Jesse Weber
Yeah. I mean, I think that fear is there because it's real. Law firms are being targeted for their representation, which is not something that we've seen before, at least in terms of the federal government. I think the other part, honestly, with the Muslim ban, it was really clear this is the action item. We're going to go to airports and, and do intakes and try to help people versus now. It's really an onslaught. I mean, there are so many terrible things happening at once. I think it's a little overwhelming and it's hard for lawyers to figure out where am I most needed to plug in in this moment? Which is, I think, the challenge with the second term beyond lawyers. I mean, I think with lots of activists, how do we focus our efforts when every day there's 10 new awful things happening? So, I mean, I would encourage lawyers, particularly, you know, to connect with issue advocacy groups working on specific things, Immigrant rights groups, LGBTQ rights groups, prison litigation organizations, to kind of figure out the best way to be plugged in. I suspect they have a high need for attorneys, and my hope is that it becomes less scary for folks at the big firms to go and volunteer.
- [55:51]
Dahlia Lithwick
I want to end almost where we began, Jesse, which is at this notion that I think you and I went to law school because we had a really deep sense that lawyers were the key to protecting the vulnerable, to ensuring sort of access to justice systems that are locked away from most Americans. We hold the key, and I would love for you to just, to the best of your ability, I know this is a big ask, but in an era where lawyers are the butt of every joke, and as I said at the beginning, I think the impulse is to disdain this whole conversation about lawyers as, like, well, you know, none of us believed in them in the first instance, just to remind us what it is that you can do, you personally, the work that you're doing, but that other folks can do in a moment where it's just too easy to sort of succumb to cynicism and say, nothing mad matters.
- [56:54]
Jesse Weber
So, yeah, we do have this unique set of tools, and I. I do think a lot of my friends who are non lawyers, they've been kind of constantly Texting me since January 20th with, oh, good, there's another case, like, thank you to the lawyers. This is great. And I do worry a little bit about people putting too much faith in lawyers to kind of save the day. Who knows what the Supreme Court will do in all these cases. But I do think this is our moment to stand up, be on the right side of history, uphold our oath to the Constitution, represent, Represent unpopular clients. Right? That's our whole system of checks and balances, and help them get the relief they need through our judicial system to use our skills to enforce the law, enforce the rule of law, help preserve our democracy. And if we're not standing up now, I just don't know when we would. And there's something everybody could be doing. And again, there's plenty of cases to be working on, lots of organizations doing good work, looking for pro bono counseling. And so I do think this is a moment to step up. Ideally to be taking on cases, but at a minimum, to be speaking out and helping show the public that this moment isn't normal and not normalizing it through our silence.
- [58:03]
Dahlia Lithwick
There's two really profound things that you just said, and I wanna center them as I say goodbye. And one of them is that this doesn't have to be your full time job. Right. This can be a side hustle. Like you can help in, you know, much the same way that you're coaching Little League, you can help on the weekend no matter where you. But also, and this is, I think, exactly why we wanted to talk to you this week, it's that I think we can embody what it is to respect the rule of law. Right. And I think it's not just what the Supreme Court decides in a case, it's what we believe the law to be and what we fight for the law to represent. And I really, really think that we forget that sometimes that we each have that sort of individual responsibility to embody that in a moment where everything feels law. You know, who isn't lawless? We are. Not necessarily. Unless we give it away.
- [58:59]
Jesse Weber
That's right. And to be making the arguments, no matter what courts end up ruling, I think it's really important that there be a record that we fought, that we fought for our rights, that we fought for the Constitution, that we fought for people who are really being targeted by this administration. And hopefully we do win. But if we lose, I don't want history to reflect that we went down without fighting.
- [59:20]
Dahlia Lithwick
Jesse Weber is managing partner at Brown, Goldstein and Levy in Maryland. She's a litigant known nationally for work obtaining equal access for individuals with disabilities to voting, education websites and government information and services. Jesse, it has been really like a bomb to talk to you this week. I thank you both for the work that you are doing and also for the reminder of what we all need to do to put some skin in the game. Thank you.
- [59:48]
Jesse Weber
Thank you so much for having me. And thank you for all that great work you're doing as well.
- [60:02]
Dahlia Lithwick
And that is all for this episode of Amicus. Thank you so much for listening and thank you so very much for your letters and your questions and your comments. You can keep in touch@amicuslate.com or you can find us@facebook.com slate amicus podcast for our plus members. It's time to hop on over to our bonus episode of Amicus Plus. Mark Joseph Stern and I are talking about the pileup of honking huge constitutional matters all pending alarmingly on the Supreme Court's shadow docket. And we're going to talk about what could happen next if you are not yet a Slate plus subscriber. You can join us in the Amicus Rumpus Room of Doom by subscribing to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's senior producer, Our producer. Our producer is Patrick Fort, Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.
- [61:30]
Mark Joseph Stern
Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.
- [62:01]
Jesse Weber
The great lesson of this for me is that people will come to their own conclusions based on what their prejudices are.
- [62:08]
Mark Joseph Stern
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.