Amicus with Dahlia Lithwick | "Animus Amicus" (May 13, 2017)

Podcast Overview & Detailed Summary

Main Theme

This episode of Amicus centers around the legal and political turmoil following the abrupt firing of FBI Director James Comey, and the complex role of Deputy Attorney General Rod Rosenstein in that saga. The conversation delves into questions of neutrality within the Department of Justice, the pressures facing career officials under the Trump administration, and the breakdown of norms around political independence. The second part of the episode pivots to the Fourth Circuit oral arguments regarding President Trump's revised travel ban (Executive Order 2.0), exploring deeper constitutional questions of religious animus, executive intent, and judicial review.

Key Discussion Points & Insights

I. The Rosenstein Memo and the Comey Firing

(Approx. 00:32–18:36)

• The Context of Comey's Firing

  • The week was marked by chaos at the DOJ after FBI Director James Comey was fired, reportedly learning about his dismissal via TV news (00:32).
  • Rosenstein, the newly confirmed Deputy Attorney General, wrote a memo critiquing Comey's handling of the Clinton email investigation. This document was publicly used to justify Comey's firing.

• Who is Rod Rosenstein?

  • Described as principled and apolitical, Rosenstein was expected to be a “steadying force” in the DOJ (02:16).
  • But his quick involvement in the Comey firing placed his neutrality and independence under question.

• Was Rosenstein Complicit or Manipulated?

  • The hosts debate whether Rosenstein was a “secret hack” or an unwitting pawn, noting his memo never explicitly recommends Comey's dismissal (03:07–05:39).
  • Rosenstein’s discomfort as the sole justification for the firing is highlighted:

    “It does seem like he was not comfortable with the way he had been used as a prop...and he apparently called the White House counsel..." – Leon Nayfak (06:55)

  • The White House narrative shifted rapidly, hinting at deeper motivations (i.e., the Russia investigation) (08:02).

• Neutrality and the Justice Department

  • The conversation broadens to whether career officials can be neutral in such a polarized environment (11:11–12:30).
  • Rosenstein's good intentions contrasted with the reality of being thrust into partisan crossfires.

• Possible Redemption: Special Counsel

  • Calls for Rosenstein to appoint a special counsel to preserve DOJ/FBI integrity (13:57).
  • Rosenstein as the one person with the authority, but unclear if he’d act or face repercussions (15:31).

• Attorney General Sessions' Role

  • Sessions was recused from Russia matters but not from firing Comey; he remained silent about his role, possibly due to focus on other initiatives (16:22).
  • Sessions instructed prosecutors to always charge the most serious drug offenses, reversing Obama-era policy (17:38).
  • He also launched a voter fraud commission, perceived by guests as a political maneuver (17:49).

Notable Quotes

• “Rosenstein might really believe, and probably does, that Comey messed up...but, like, that's not my job to think about that.”
  — Leon Nayfak (00:01, also reprised at 10:07)
• “If the alternatives are Jeff Sessions...are we simply at a time where there are no neutral entities left?”
  — Dahlia Lithwick (11:11)
• “He thought he could be a positive influence, and I think he has found very quickly that his good intentions aren't really enough.”
  — Leon Nayfak (13:05)

II. Fourth Circuit Oral Arguments on Trump’s Travel Ban

(18:38–49:16)

• Setting the Stage

  • The 4th Circuit heard the revised travel ban (2.0) en banc, an unprecedented move signifying the stakes and likely Supreme Court review (19:33–20:20).
  • The new order removed Iraq from the ban and provisions privileging religious minorities, focusing on travelers from six Muslim-majority countries (20:53–22:16).

• Is It Really About National Security?

  • The administration argued the ban was a temporary, minor measure for vetting, but most judges appeared skeptical (22:39).
  • Dahlia: “The government has a pretty plausible argument that...there's clearly no [Establishment Clause] problem because we've taken out anything that smacks of even a discussion of religion.”

• The Intention Behind the Ban

  • Arguments turned on whether statements and campaign promises revealing religious animus should guide judicial interpretation (23:50).
  • Professor Micah Schwartzman explained the Establishment Clause violation hinges on animus, not just the formal text.

• Judges Grapple with Presidential Statements

  • Judges referenced Trump’s campaign and post-inauguration remarks as relevant to intent—a highly unusual but, they argue, constitutionally warranted approach (26:02).
  • Acting Solicitor General Jeff Wall urged ignoring campaign rhetoric; courts were largely unpersuaded (27:01–29:07).
  • Judge Niemeyer worried about slippery slopes: Should courts consider college speeches? Where does intent evidence end? (30:06)
    • Schwartzman: “We're not faced with the line-drawing problem in this case...there's so much evidence this is such a clear case...” (31:21, 45:12)

• Doctrine Collisions: Mandel, McCreary, Animus

  • The government invoked Mandel, saying courts shouldn’t probe motive if an order appears neutral.
  • The ACLU brief (which Schwartzman helped write) argued that constitutional prohibitions against government animus run through the Establishment Clause, Free Exercise, and Equal Protection.
  • This case, they argued, exemplifies when courts must look behind the text to intent (32:51–35:34).

• National Security Deference vs. Judicial Duty

  • Judge Shedd worried that judges should not second-guess the President’s national security choices unless there was clear animus (37:20–38:12).
  • Schwartzman replied, “It’s fine for the President to make national security determinations, but he has to do it in a way that doesn’t discriminate on the basis of religion, and he simply hasn’t done that here.” (38:41)

• Historical Parallels and the Shadow of Korematsu

  • The looming fear: repeating the Supreme Court’s infamous approval of Japanese internment during WWII.
  • Guests stressed the risk of “national security” justifications being infected by prejudice (40:49–42:59).

• Intent Fatigue and Legal Realities

  • Dahlia raises “intent fatigue”—the exhausting but essential exercise of parsing the administration’s true motives (44:00–45:12).
  • Schwartzman: “I don't share that kind of skepticism about purpose or intent inquiries. I think judges do this all the time...there’s so much evidence this is such a clear case...” (45:12)

• Trump’s Judicial Appointments

  • Trump’s early judicial nominees are young, deeply conservative, and meant to shape the judiciary for generations; contrasted with prior Democratic strategies (46:44–48:33).

Notable Quotes

• “Is there anything other than willful blindness that would prevent us from getting behind those statements?”
  — Judge Henry Floyd (25:08)
• “There is a conflict between the government’s position that you can’t look at evidence of purpose and...the brief...that says not only can you look at evidence of purpose, but you’re required to under the Constitution.”
  — Micah Schwartzman (35:16)
• “The idea that there's presumption of regularity that should be applied to President Trump...the dissonance about that claim in the courtroom, I think, was palpable.”
  — Micah Schwartzman (29:07)
• “It’s fine for the president to make national security determinations, but he has to do it in a way that doesn’t discriminate on the basis of religion.”
  — Micah Schwartzman (38:41)

Timestamps for Major Segments

• 00:32–13:57
  Rosenstein, Comey, and DOJ neutrality
• 13:57–18:36
  What can/should Rosenstein do next? Sessions’ actions in the background
• 18:38–32:51
  Fourth Circuit oral arguments on the travel ban: procedure, substance, judicial approach
• 32:51–38:12
  Legal doctrine and arguments: Mandel vs. Establishment Clause cases, role of "animus"
• 38:12–42:59
  National security deference and historical lessons (Korematsu)
• 44:00–49:16
  Judicial intent, fatigue, judicial appointments under Trump

Memorable Moments

• “He probably wrote things that he believes are true in that memo. And maybe he thought, yeah, probably this is going to be used in some political way, but that's not my job to think about that.”
  — Leon Nayfak (10:07)

• "There is nothing regular about this president. And to kind of give that deference is to give away the thing we're meant to pierce, which is what is he really trying to do?"
  — Dahlia Lithwick (29:07)

• “It is not our job to second guess Department of Homeland Security, to second guess Jeff Sessions...what you're doing, judges...is unsettling what we all agree is the president's duty to keep us safe. What's the answer?”
  — Dahlia Lithwick (38:13)

• [On Korematsu] “There's a lesson to be learned from that, which is that that racial animus, that discrimination and prejudice can infect the national security justifications that are presented.”
  — Micah Schwartzman (41:26)

Conclusion

This Amicus episode provides an incisive, sometimes darkly humorous analysis of a Justice Department in crisis. It demonstrates how legal institutions and principles—especially ideals of neutrality—are tested under intense political pressure. Meanwhile, the Fourth Circuit travel ban arguments reveal how courts handle, or struggle to handle, clear evidence of animus from an unorthodox and highly public president, and the enduring challenge of balancing executive power, constitutional rights, and the pursuit of justice.

Recommended for listeners seeking: Legal analysis, insight into DOJ inner workings, and clear explanations of the stakes behind high-profile Trump-era legal battles.