← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
He Quit the Bench to Raise the Alarm
01:20:20
Amid unprecedented attacks on courts and judges, two champions for justice speak out.
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- [00:01]
Dahlia Lithwick
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- [00:27]
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- [00:58]
Dahlia Lithwick
I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts, the law and the Supreme Court. There's a sense of gathering momentum around the idea that the past few weeks have signaled some kind of beginning of some sort of end. The shutdown, the elections, Donald Trump's 30.
- [01:23]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Something, something percent approval ratings.
- [01:26]
Dahlia Lithwick
One court after another, hurling sand into the gears. And this week, the near inevitability of a Jeffrey Epstein revelation that Donald Trump has managed to outrun and to deflect for decades. Adding her voice to that momentum, here is newly seated Arizona Democrat Adelita Grijalva in her first speech to the house after her 50 day wait to be sworn in came to an end this week.
- [01:53]
Adelita Grijalva
Our democracy only works when everyone has a voice. This includes the millions of people across the country who have experienced violence and exploitation, including Liz Stein and Jessica Michaels, both survivors of Jeffrey Epstein's abuse. They are here in the gallery with us this evening. Thank you for being here. Just this morning, House Democrats released more emails showing that Trump knew more about Epstein's abuses than he previously acknowledged. It's past time for Congress to restore its role as a check and balance on this administration and fight for we the American people.
- [02:43]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
As somebody who actually thought it was.
- [02:45]
Dahlia Lithwick
The beginning of some sort of end back when the Access Hollywood tape surfaced, I'm not here to make any promises, but I am here to tell you.
- [02:53]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
That this is not the moment to.
- [02:54]
Dahlia Lithwick
Say nothing matters to the Epstein survivors. This moment matters. It also matters to history. And with all due respect to our friends at the New York Times, to all the women who poured their values and their feelings all over the law for the last two centuries. The reckoning is past due and it still matters. And so we beat on boats against the current. And this week's episode showcases Two extraordinary forces for justice in unprecedented times.
- [03:23]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
In a moment, a clarion voice who.
- [03:25]
Dahlia Lithwick
Answered a question that we've been asked asking on this show for weeks. What would a federal judge say if they could step out of the straitjacket of convention, professional norms and lifetime tenure and say exactly what they think about what is happening right now? My guest, Judge Mark Wolf, did just that last weekend with a piece in the Atlantic titled why I Am Leaving the Federal Bench. Next, we'll speak to California's Attorney General, Rob Bonta, who has joined forces with blue state government officials to work to hold the line against Trump's lawless from militarized forces on city streets to attacks on universities to the withholding of food from hungry children. And while that snap litigation was mooted by the end of the government shutdown, there are some lessons from that particular chicanery that General Bonta says we really have to take to heart. But first, last weekend, Judge Mark Wolf announced that he had retired from the federal bench because, as he then wrote in the Atlantic, quote, I no longer can bear to be restrained by what judges can say publicly or do outside the courtroom. Now, we've been trying to puzzle out what any one judge can possibly do when they stand in this pincer grip.
- [04:40]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Between those who don't even believe in.
- [04:42]
Dahlia Lithwick
The law and their own oath to uphold it. And we've also been thinking about in.
- [04:47]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
This daily vortex of exit, voice and.
- [04:50]
Dahlia Lithwick
Loyalty, when is the moment to exit?
- [04:53]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Mark L. Wolf is a retired senior United States district judge in Massachusetts. He was appointed to the bench by President Ronald Reagan, 1985. He served until last week. Judge Wolf, welcome to Amicus. I'm told this is your very first podcast.
- [05:13]
Judge Mark Wolf
That's right. I was a federal judge for 40 years. I was a federal prosecutor for about four years before that. And whatever we say, as prosecutors or judges properly say, we say in our decisions, in our comments and hearings, but not in podcasts or on television programs. So this is indeed my first podcast and I appreciate the opportunity to speak to you and to some of the American people.
- [05:47]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
It's an honor to have you with us. And I guess I want to note that your piece in the Atlantic that came out this past week about why you had chosen to step down from the bench. It was kind of a thunderclap. It was also a one man autopsy of what President Donald Trump and the administration and his Justice Department have done to the rule of law. As you understand that notion over your career that has spanned many, many decades.
- [06:18]
Judge Mark Wolf
You do an autopsy on somebody who's dead, then my concern is if this effort to destroy or damage our democracy was defeated, was dead, we could do an autopsy on it. How did that happen? But my concern is that it's very much alive.
- [06:38]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Point taken. Maybe we can just call it a diagnosis. Can you talk about how it came to the point where you felt you could no longer do the work of.
- [06:48]
Dahlia Lithwick
Being a judge in this atmosphere?
- [06:50]
Judge Mark Wolf
It was really accumulation of things, I would say. Beginning last February, shortly after President Trump took office, a number of people I respect, including some federal judges, one of whom I know you've had on your podcast, began urging me to retire and to speak out. They felt that as a result of my career, perhaps my reputation, the coincidence that I was appointed by Ronald Reagan, that I would have some special stature to be heard in this cacophony of complaining voices. I was skeptical and I was reluctant because I loved being a judge. I expected to do it as long as I was cognitively and physically able to do it. And I'm almost 79. But it was the almost daily outrageous, egregious things that the president and members of his administration were doing that are an assault on the rule of law in democracy and the fundamental ideal of equal justice under law that finally brought me to agree that I couldn't any longer bear to be silent about what I have to say. And while I wasn't at all confident that I'd have an opportunity to be heard or that it would have any impact, I felt it was essential to join others and try to do anything I can to protect the rule of law, the democracy, and to advocate for judges who essentially are muzzled, properly muzzled, by the code of conduct for United States judges that prohibits saying anything that could cause a judge's impartiality into question.
- [08:43]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
I wonder if we can scroll back. I mean, you recount in the Atlantic piece what your career has involved, and I wonder if we can go all the way back to 1975, soon after you joined the Justice Department. It was reeling in the wake of Watergate and you quote the incoming Attorney General Edward Levy's induction speech where he said, quote, nothing can more weaken the quality of life or more imperil the realization of the goals we all hold dear than our failure to make clear by word and deed that our law is not an instrument of partisan purpose. End quote. Levy looms over this whole piece. It's so clear that this was really formative for you in your thinking about what the Justice Department did. And I wonder if you can just start by Describing for us some of the reforms that you and your colleagues had to put in place after Watergate. What are the things that we take for granted that you had to muscle into place in order to regain the trust of the American people.
- [09:58]
Judge Mark Wolf
The Attorney General also said in that induction speech, which he gave me to read before he gave it because I was working for the Deputy Attorney General and organized his induction on short notice at the Justice Department. He said, if we're going to have a government of laws and not men, then it takes particularly men and women dedicated to being zealous but also being fair to make clear that the law is not an instrument of partisan purpose. And I served for two years as one of his four or five young special assistants. We were 28, 29 years old. And I saw him faithful to that principle every day. And that did have a profound impact on the way I later served as a prosecutor, particular prosecutor, corrupt public officials, but also a steward of the U.S. attorney's office in Massachusetts. And certainly as a judge. There were a number of reforms that were put into place. This was a period where enormous abuses by the FBI, particularly the Director for decades, J. Edgar Hoover, were promulgated by the Attorney General. Guidelines for the use of informants included. I ended up spending nine months and writing a 661 page decision as a judge when the FBI violated those guidelines and protected their organized crime informants and indeed were involved in murders by those informants. James Whitey Bulger, Stevie Flemmi. But informant guidelines, restrictions on investigations of First Amendment activity, peaceful protests by adversaries to the President perhaps, or adversaries to the FBI people J. Edgar Hoover didn't like. And Watergate generated the Foreign Corrupt Practices act that prohibits American companies, but any company that uses the United States banking system from making illegal payments paying bribes to foreign officials. Because one of the constellation of criminal activities in Watergate was a major company, International Telephone and Telegraph itt, getting a serious anti trumps case against them dismissed because in part they made a $400,000 contribution to the Republican National Convention. And then two attorneys general were convicted of crime relating to that. The reforms coming out of Edward Levy's period are the Foreign Intelligence Surveillance Court. There was a lot of uncertainty of whether the Attorney General had the power to authorize surveillance, including surveillance of American citizens in certain circumstances. And the law was quite cloudy. And these warrants had been issued by attorneys General for a long time. In fact, not even by the Attorney General by a career employee who worked for the Attorney General. And Attorney General Levy signed Those warrants starting on his first day in office, or at least after he studied them, which nobody had apparently done before. And he advocated creation of what became the Foreign Intelligence Security Court as a check, even though it's not an adversarial court court with an adversary process. So these were reforms. But I'd say much more important than any institution was a change in culture. When President Ford selected Edward Leafy, the president of the University of Chicago, with a richly deserved reputation for brilliance, integrity and impartiality, nonpartisanship, President Ford told Edward Levy, I want you to be an Attorney General who looks out, protects the interests and the rights of the American people, doesn't look out for the interests of the President. And a number of guidelines were developed that restricted communications between the White House and the Justice Department and limited the number of people who could have those communications, because in that period, the harms caused in Watergate, which were Attorney General John Mitchell, also the President's campaign manager in the 1972 election, involved authorizing the criminal break in of the Democratic headquarters at the Watergate complex and lying about it. The COVID ups. And there was a recognition that the Attorney General was right. The Department of Justice should never be used for partisan purposes. And it would be devastating to democracy if it was for a long time that became the model. I don't think it was always faithfully followed. In fact, I wrote the Attorney General, I now recall a letter on the last day in office, and I said, I was here before you. In effect, I'm paraphrasing, I was here before you came. I know the skepticism that people had and the discomfort that honest members of the department had before you arrived. And you have succeeded, by the way you've conducted yourself in substantially restoring faith in this department and the morale of dedicated public servants. And I wrote that the extent to which your successors fall short of that high standard will be evidence of all you've done, you know, all you've accomplished and contributed. But we've had. How long is it now? Almost 50 years, where substantially that was the ethic. And you would hear presidents say and do, I didn't direct the Department of Justice to do this or that. I didn't prohibit them from doing this or that. And what Donald Trump is doing is diametrically the opposite. What Richard Nixon did periodically and secretly because he knew it was illegal or improper, President Trump does repeatedly, regularly and openly. And to me, that is profoundly disturbing. It's utterly inconsistent with the fundamental ideal of our country of equal justice under law to prosecute your political enemies, perceived enemies, and give a free pass on corruption, possible corruption. Don't investigate possible corruption that might be prosecuted and punished of people close to you or people who have a lot of money and use some of it for purposes that you want it used.
- [17:21]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Judge, one of the things that you're both your article and what you're saying right now, it's such a useful corrective for people like myself who don't remember Watergate and who think that the state of nature is what came after that it simply has always been the case that there were ethics and rules and norms about having a real separation between the Justice Department and the White House and ethics and rules and norms around how prosecutors conduct themselves. It's useful corrective for me to understand that the state of nature actually is the pull toward corruption and the pull toward self dealing. It's why you have to have this edifice and why it needs to be worked on constantly. One of the things that was very striking to me in your piece in the Atlantic is that you, both as a prosecutor and on the bench, you were deeply involved in these high profile corruption cases. Corruption is a thing that you know very well. And one of the hallmarks of this piece is laying out the egregious corruption that we are now seeing. You've referenced some of it. You know, the combination of enriching the Trump family and the pay to play access and the pardons and the conferring of immunity on the one hand and targeted prosecutions on the other, and stopping investigations. And I guess my question for you is how does the conversation we are now having this very week about Jeffrey Epstein and the COVID up, how does that sort of hone in on your thinking about corruption?
- [19:11]
Judge Mark Wolf
Well, if I can apologize for sounding like a judge, which I was until a couple days ago, I would say it's possible corruption. From my perspective, what's profoundly disturbing is that conduct that would prompt serious investigation in any other era is not being investigated. And it would have to be investigated to see whether there's sufficient evidence of corruption to bring a case. And then you try the case. So I'm reserving judgment on whether it's corrupt, but it, but there is conduct that would trigger an investigation. And I'll give you an example. Today's Thursday. I guess there's breaking news about Jeffrey Epstein yesterday and today. I haven't even had time to read very much of it. And I understand why, for political reasons and maybe some principal reasons, there's interest in that Epstein finds. To me, it's not nearly as important to the rule of law and the future of democracy is something that's not receiving, in my view, adequate attention. It's the information concerning Tom Homan, the border czar and Department of Homeland Security. So it's been reported that before the election, the FBI had an undercover investigation. And in the undercover investigation, they met with Homan. They said reportedly, that they wanted him to use his future influence if Trump was elected, to get lucrative contracts for this fictitious company. And they gave him a bag of cash with $50,000 in it, and he took it. Under any ordinary circumstances, when Trump got elected and appointed Homan to a very high position in the Department of Homeland Security and an important one in this administration, you know, he's in charge of getting people who've committed crimes in this country and are here illegally out of the country in high numbers. In any ordinary time, the FBI would have continued that undercover operation, and the undercover operative would have gone to see Homan and offered him more money. And you see what happens. And it's all tape recorded, and it's all structured to develop compelling evidence in court. I used to participate in these investigations, helped shape them when I was a prosecutor. But shortly after President Trump was elected, the Department of Justice closed that case. And the White House said, there's no credible evidence of criminal activity. They didn't say there's no evidence. They decided the credibility of it, which usually juries decide, but there's no credible evidence. And initially, Holman said, I didn't do anything illegal. Subsequently, he said, I didn't take $50,000 in cash. He's quoted. It's in the media. So to me, I don't know whether there was a legitimate purpose for taking $50,000. I don't know if he took $50,000. But what I don't really understand is why the Republicans in Congress, as well as the Democrats, who I think have tried to do something about this, and I'm totally nonpartisan, to me, this is not political. I don't know why Congress isn't saying we want the Holman tapes. Based on my experience working for the Deputy Attorney General and the Attorney General, the Department of justice will not turn over to Congress evidence developed in an open criminal investigation. But it has on a number of occasions, and I dealt with this 50 years ago, responded to Congress by turning over evidence that was developed in closed investigations, because then Congress was investigating whether the undercover operations or the criminal investigations were properly closed. And I think that if Congress, the Senate, the House, asked for the Homan tapes there would be pretty consistent precedent for the Department of Justice to turn it over and then we would know, having heard the evidence. And I these days they videotape it too. You know, the American people could see whether this border czar, who is a leader in the effort of punishing criminals and getting them out of the country, has possibly engaged in criminal activity himself.
- [23:54]
Dahlia Lithwick
More in a moment with Judge Mark Wolf.
- [23:59]
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- [25:30]
Dahlia Lithwick
Now let's return to my conversation with Judge Mark Wolf. Judge, you said at the top of.
- [25:38]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
The show when I noted this was your first podcast.
- [25:42]
Dahlia Lithwick
You made, I think, a point that sometimes escapes listeners, which is judges don't.
- [25:47]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Talk to the press. And it's much to our chagrin. Let me note, I've asked a lot of judges for a lot of interviews over my lifetime, and most of them really adhere to the canons that you laid out at the top. But I would love for you to explain to a listener who doesn't exactly understand why you had to remove yourself from the bench in order to speak.
- [26:14]
Dahlia Lithwick
What it is that those canons say.
- [26:16]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
And what they are attempting to preserve. It's not intuitive.
- [26:20]
Judge Mark Wolf
Well, the code of conduct for US Judges states that federal judges cannot make statements in writing or in interviews that would call into question their impartiality. And there are certain exceptions. If you're testifying on something on which you have experience and expertise, something I did a couple years ago, that's permissible. But in terms of writing or speaking, you can't say or write anything that'll cause a reasonable person to question your impartiality. And that's crucial because we ask people to accept judicial decisions peacefully and as authoritative and legitimate. And it's critical that people have confidence that the judges are impartial, that they're open minded, they're fair, they're seeking to do what's legally correct. And actually, that's a big reason why I left the bench. Because now when judges rule against the President, he says they're crooked. Like the judges who presided in cases against me, they're crooked. They should be impeached. And judges can't answer except by doing their job, which, if it was seen, commands respect. That refutes the idea that they're not crooked, impartial, biased. But what judges say in court, say in their opinions, gets drowned out in what's said in the media. What's said, I guess, in the social media, which I don't follow. And a good number of the American people may believe that federal judges, especially including federal trial judges, are corrupt, they're crooks, and therefore the President shouldn't be expected to obey their decisions. And that, to me, is the critical point. Richard Nixon was ordered by the Supreme Court to turn over the tapes that he made sacredly in the Oval Office that had incriminating evidence against him and his close colleagues. He didn't destroy the tapes. He didn't refuse to obey the order because he knew in 1974 that the American people wouldn't tolerate disobedience of a Supreme Court order, even by the President and he would be impeached and removed. So he turned over the tapes. I'm very concerned about how the American people would respond in similar circumstances now when the judiciary is under unprecedented assault, and I'm hoping to, with others, not alone, communicate that there should be confidence in the courts, the American people should insist that the President obey court orders. And although he says he is, the Washington Post has reported back in July, after careful study, that it looked then like the administration was disobeying or not faithfully following about a third of the orders from the courts. That's really threatening to our democracy, the rule of law. And that's why I appreciate the opportunity to speak that I've now had for several days.
- [29:45]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
And I want to be really clear about something. You're saying, you're not saying that judges are blank slates or have never had a thought in their lives. You're saying that there is a set of aspirations about what it is to be a neutral arbiter, and that judges have to conform to that. And one of the ways that you fulfill that aspiration and obligation is not to speak out. And I think it loops us back into the problem which you flagged right at the beginning of this show, which is judges cannot defend themselves. Somebody has to be the voice of that. And I guess I'm really curious, and I'm sure listeners are curious what that's gonna look like for you. What is it going to look like to be the voice of the federal judiciary that has to keep silent?
- [30:39]
Judge Mark Wolf
Well, I wouldn't say the voice. I said a voice. I want to join a chorus. And there are people out there, individuals and organizations, who've been doing just what I'll strive to do, although it's unnatural for me. I've had many opportunities to speak over the last couple days, including I appreciate it to you and through you, to some of the American people. And that's one thing I'm going to do. I may write some more. I'm going to participate in developing amicus briefs and litigation. I don't foresee going to court myself, but people think I can contribute to developing arguments that should prove to be persuasive to impartial judges. And as I said, do this in collaboration with others, because it's my hope, not necessarily my expectation, that if enough people join this chorus to remind people of how well they and their families have done in a democracy over time, over generations, that the American people will rededicate themselves to this ideal of equal justice under law. My judicial hero is Louis Brandeis. He said, we have to struggle in each generation to truly possess what we inherited. And that's always resonated with me, but I feel that very deeply now. I never thought that my experience as a young lawyer in the Watergate era would be relevant again. And now your questions indicate that it's profoundly relevant. And since I have that experience, I want to share the insights and experience with others.
- [32:37]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
We had Judge Ludig on the show only two weeks ago, and I asked him what judges need to do right now. And some of our listeners were very frustrated by his answers and also frustrated by my failure to press him for better answers. But what you're saying is one of the things that you could do was that you could step down, and you could step down so you could speak out. Your resignation didn't hand an appointment to President Trump. You took senior status 12 years ago. I'm wondering what you tell young judges, judges who are really trapped between these intolerable situations. One, staying and watching what happens around you, or leaving and giving up your ability to perhaps affect change. And I'm just very curious what you are telling other judges about what the right thing to do is as a judge in this incredibly fraught moment.
- [33:48]
Judge Mark Wolf
Well, except in my comments to you and others, I'm not telling them anything. But since you asked the question, I would say do your job properly. A judge's job is to get a legally correct decision. I mean, I agree with the president's spokesperson that judges shouldn't be deciding based on their personal preferences or their own agendas. I believe that deeply. I've made a number of decisions that as a person, I wasn't really sympathetic to the result. But I've worked all over the world with people who live in countries that don't have honest, impartial judiciaries. And to me, more important than the result in any single case was the integrity of the process. And I would say do your work, make it deserving of respect if people understand what you're doing. And then you have to rely on the rest of us to try to counter the unjustified criticism, to promote respect for doing your job correctly.
- [35:01]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Before we say goodbye, I want to quote the end of your piece in the Atlantic, which I really want to commend to listeners because it's such a thorough rebuke of the moment we find ourselves in and a rebuke of the notion of that this is business as usual. You quote Noble Laureate Seamus Heaney, writing, sometimes the longed for tidal wave of.
- [35:27]
Dahlia Lithwick
Justice can rise up and hope and history rhyme.
- [35:31]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
I'm curious what you would tell our listeners who are not judges, who are not lawyers, who are just a whole bunch of people who are quite worried and who sense deeply that much has been lost and it's not clear it's coming back. What they have to do in this moment to fight for the rule of law and the notion of democracy that you have tilted at for your entire life.
- [36:05]
Judge Mark Wolf
Well, I think there's a range of things they can do. They can vote in certain ways, but from my perspective, the most important thing they can do is insist that the president obey court orders, even if he doesn't agree with the outcome, obey court orders if he loses a case immediately or eventually. Because, as Learned Hand said in that famous talk spirit of Liberty, perhaps we rely too much on laws and constitutions and courts, the spirit of liberty dies in the American people. No court, no Constitution can save it. And that's why I'm trying to reach the American people and hopefully eventually not just people who will listen to you and some of the other outlets that are interested in hearing what I want to say. But I hope to get on Fox News, for example, and have a conversation, not just lecture people who watch Fox News and not MSNBC or cnn. I want to hear them as well as speak to them. Because as long as people are in silos, this idea of the marketplace of ideas, the First Amendment concept, the best response to bad speech is better speech doesn't work for two reasons. One, the better speech doesn't get heard by certain people and two, money drowns out the ability of almost everybody to be heard. And these two things, people being in silos and just hearing speakers and speech who reinforce their predilections, I think that's unfortunate and dangerous. And I think that the fact that money really talks in our country now and can drown out the speech of people who don't have enormous sums of money is very dangerous as well.
- [38:16]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Mark L. Wolf is a retired senior United States District Judge in Massachusetts.
- [38:22]
Dahlia Lithwick
He was appointed to the bench by President Ronald Reagan in 1985 and served until last week.
- [38:29]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
His piece in the Atlantic is well worth your time. Judge Wolf, thank you very, very much for spending a little time making visible to me at least the arc of the judicial moral universe and how we get back to it.
- [38:46]
Dahlia Lithwick
Thank you.
- [38:48]
Judge Mark Wolf
Thank you very much, Dalia. I appreciate it.
- [38:52]
Dahlia Lithwick
We're going to take a short break.
- [39:00]
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- [40:07]
Dahlia Lithwick
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- [41:40]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Before that, he held positions in the State assembly where he focused on issues.
- [41:44]
Dahlia Lithwick
Including racial justice, criminal just, environmental justice and consumer protection.
- [41:50]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
He also served as a Deputy City.
- [41:52]
Dahlia Lithwick
Attorney for the City and County of San Francisco. Born in the Philippines, Attorney General Bonta immigrated to California with his family as an infant.
- [42:02]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
General Banta, I cannot tell you how thrilled I am to welcome you to Amicus, and I'm just delighted that we have some time to talk about all the many, many, many things that are swirling around in your universe right now.
- [42:15]
Rob Bonta
Very kind of you, Dalia. I can't tell you how thrilled I am to be with you. Honored to be with you today.
- [42:19]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
So I thought maybe we just start with the kitchen table. This has been a simply disgraceful period of uncertainty for 42 million Americans whose food assistance has been dinged back and forth and turned on and off, pinging between courts and emergency orders and the Supreme Court orders. And no Congress and the Senate and this web has been really hard, I think, for your average bear to follow. Even though the government shutdown is now over, the consequences of this fight, and you've been right in the thick of it, really reverberate and will keep reverberating for some time now. You joined a lawsuit that was filed by several state AGs fighting the USDA's unbelievably confusing Red light, green light directives around SNAP benefits. And last week, a federal judge ordered the Trump administration to fully fund snap. States, including your own, began to do so. And then the administration said it was following the order. Then they said it was unfollowing the order. Then they wanted the states to undo what they had put in motion to follow the order. And then there were threats, penalties for any states that did not comply. So let's start there and just tell me why it is you sued and what the argument was that you were making before the courts, trying to kind of corral this ridiculous on again, off again that was affecting people's hungry children.
- [43:48]
Rob Bonta
Well, we sued 23 Democratic AG states and three additional states with Republican AGs who didn't participate, but whose Democratic governors did, to feed hungry Americans. You know, period, full stop. The SNAP program has never failed to feed those who are eligible. In the past, it has fed hungry Americans during government shutdowns, like in 2019, during the Trump 2019 government shutdown. There is sufficient funding in the SNAP program and in the U.S. department of Agriculture, the law requires the payment. And the United States Department of Agriculture, who oversees the SNAP program to provide food to hungry Americans said that they were going to make these payments during the government shutdown. So that was our goal, to feed hungry Americans. And the Trump administration worked overtime, reached and stretched and did everything in their power. They appealed and they fought tooth and nail, and they reversed course and they contradicted their own position. They violated the law. They lied about the funding that they had in their effort to try to starve hungry Americans. So we went to court with a simple proposition that the SNAP program is an entitlement program. The law says that everyone who's eligible in the United States of America shall receive the benefits. There is a contingency fund for times just like this, like a government shutdown to make sure that payments continue to flow. And we wanted the Trump administration to make those payments. And they were trying to use some of our most vulnerable Americans as political pawns, our seniors, our children, our veterans, our disabled, to force the following proposition on America and on Democrats. We will starve hungry Americans until you let us rip away affordable health care from millions of Americans. And that is not a choice. And we do what we always do as attorneys general, which is we enforce the law. The law requires payment. And so we went to court to ensure that hungry Americans got fed.
- [46:00]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
So on Thursday, we get the news that Justice Department is withdrawing its request for the stay. The litigation is moot. The court never gets to the merits. And I think it's really easy, particularly in this blizzard of news, to say.
- [46:15]
Dahlia Lithwick
Oh, well, no harm, no foul, right?
- [46:17]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Even though we had unbelievably complicated internecine warfare. Justice Jackson temporarily staying the district court order and appeals court, issuing a ruling reinstating the order, and then Tuesday, the Supreme Court taking it away from Justice Jackson, the circuit justice. All of which is quite unbelievable. And I want you to help me understand what you took from all of this, because it actually is harm, it is foul, and it's incredibly dangerous. But it's also think gonna fade from public awareness unless we help really make meaning of what happened to snap, what almost happened, and what we learned.
- [47:00]
Rob Bonta
I mean, it's truly a shameful, indefensible dereliction of duty by the Trump administration. It was a cruel policy by design to leverage vulnerable Americans. It was lawlessness and gaslighting about the facts. For example, the Trump administration saying the well is empty when there was five to six billion dollars sitting in said well for the contingency fund and another 20 billion elsewhere. And, you know, we can never normalize or be desensitized to how unprecedented this is, how cruel it is, how unlawful it is. And. And the fact that we didn't get to a ultimate court decision and the reopening of the government, mooted the case before the U.S. supreme Court can't erase any of that. Starting on November 1st. And, you know, we're midway through the month now. Hungry Americans were waiting. They were uncertain. They were waiting to see if their EBT cards were loaded with the funds that they rely on every month to feed their families. They were forced with decisions like having a roof over their head or having food on their table or eating less to share with their family members, or paying for diapers or paying for food. And it was created, it was a choice, it was the intent and the decision of the federal administration to do that, unlawfully doing it, despite resources being there, despite their commitment to states and their official position, once on a website, then removed, that they would pay SNAP benefits. So there's no such thing as no harm, no foul. It is massive harm. It is unprecedented cruelty. It is something that can never be forgotten in terms of what this administration is willing to do. And we had federal courts who were slapping this unlawful conduct down, two of them at the trial level. And the fact that we ultimately didn't get a final U.S. supreme Court decision doesn't mean that the action wasn't unlawful, wasn't cruel. Cruel was an unprecedentedly inappropriate and a low watermark for America. I've always believed that society should be judged on how we treat our most vulnerable. Our children are poor, our seniors are sick, and the Trump administration gets an F. And they demonstrated once again, why.
- [49:28]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Just develop that idea? Because I think it's something we talk about a lot on this show in reference to the Supreme Court, which seems to just be lacking a very basic understanding of what you do in these emergency cases, cases when you're meant to be balancing equities and weighing competing harms. And we are seeing time and time again, I think, as you just suggested, lower courts acquitting themselves pretty admirably saying like, on the one hand, you know, people don't know if they can feed their children, on the other hand, this is insanity. But we are hearing, I think more and more that the administration's demand is that if you weigh the equities and you weigh the exigent arms, then the harm that the president wanted a thing and he wants what he wants and he wants it now somehow outweighs all of the harms that befall, as you say, vulnerable communities. We're hearing reports of people leaving grocery stores in tears, they can't feed their families. And the equities on the other side are what? That the administration just wants to use this all as leverage to take away healthcare.
- [50:42]
Rob Bonta
That's right. And the executive branch is constantly claiming we are in a state of emergency and you know, whatever it might be, we're in a government shutdown. So it's an exigency where we need the President to be able to exercise his discretion on how to use funding. Or there's been some flare ups during mostly peaceful protests and therefore there's an invasion or there's a rebellion. And, and the whole point of these self declarations of emergencies are to seize the emergency power that accompany them. That saying that emergency powers beget emergencies. And this idea of course, of a unitary executive, an empowered executive branch that has expansive powers well beyond what the constitutional guardrails allow them to have, they consistently lean into that path and, and are trampling over constitutional rights and freedoms, taking away food from the hungry, health care from the sick, militarizing our cities, terrorizing and traumatizing communities with masked immigration enforcement officers. Raising costs through unlawful tariffs again that they say are because of an emergency, using emergency powers that actually don't exist. When the American people screamed at the ballot box that they want costs lowered. So this is their go to move, that they claim emergency powers based on a trumped up, a manufactured and invented emergency. And then they say that when we say there's an emergency, courts you can't second guess us, there's no judicial review. We get to say when there's an emergency and you have to accept. And their backup position is even if you can review it, you owe us massive deference. So you still have to accept our self declaration of an emergency. We're taking those powers and that's what they've done here.
- [52:44]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
General Bonte, you're making a kind of subtle point that I wanna pull at for one second because I really heard this this week when President Trump started truthing or whatever he does on Truth Social with the threat that if the Supreme Court rules against him in the tariffs case, then there will be an emergency, at which point he will have to step in. And this is not just a self created emergency, as you suggest time and time again.
- [53:16]
Dahlia Lithwick
They're rioting on the streets of Portland, right?
- [53:19]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
They're fentanyl charging across the border from Canada. But as you say, the response is then to generate an emergency so that you've got a kind of a win win situation if you are seeking emergency powers, and I'm not that I completely clocked that initially, but certainly when you put militarized police on streets, what you are trying to do is provoke an emergency, as are extrajudicial executions on the high seas. So there's a weird way in which this is a one way ratchet, where if the courts say you're right, there's an emergency, you get to sit with your emergency powers. If the courts say there's no emergency here, you get to call that in and of itself itself an emergency and then invoke your emergency powers.
- [54:07]
Rob Bonta
That's right. The bottom line for them is there's always an emergency. Whether there's an emergency of fentanyl or trade imbalance that allows the President to use what is Congress's power? To tax, because tariffs are taxes and impose tariffs against over 200 countries, or if those tariffs are struck down, then we are in an emergency. We're always in an emergency is what the presidential administration says. That's their go to. And if you listen to Stephen Miller, he wakes up with his hair on fire and goes to bed with his hair on fire. Everything is red alert. We're being invaded, there's a rebellion, The Democrats are in the middle of an insurrection. So we must seize the power that we need. And it's calculated. But you know, the people of this country know what facts are and what lies are and can't be gaslit by the insanity from this administration saying everything is an emergency all the time. And I think if folks see why there are these consistent declarations of emergency by the Trump administration, they just want the power. And if saying that peaceful Portland streets are war ravaged, then say it, they will, because that gets them the power that they want. And Trump will put it on the biggest platform on the face of the earth to convince people that those are the facts. But, you know, that's why courts matter. Courts look at the actual facts. They require evidentiary presentations and application of the law. And in that case involving Trump's declaration of war ravaged Portland, Judge Immergut in the district of Oregon said that the administration's position was untethered from the facts. And courts are saying those things all the time about the Trump administration's position, that they are taking egregious positions, brazen positions, blatantly breaking the law, that they're lawless positions. And when you look at the facts and you apply the law in courts, those appropriate conclusions are drawn by judges.
- [56:03]
Dahlia Lithwick
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- [57:13]
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- [57:34]
Judge Mark Wolf
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- [57:42]
Dahlia Lithwick
Let's return to my conversation with California's Attorney General, Rob Bond. So I want to actually talk about.
- [57:49]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Judge Immergat in a minute, but I also want to talk about just one other sort of piece of news, which is there's another lawsuit pending at the Supreme Court. Troops on the streets. California was, of course, the first testing ground for some of these ideas. But you just signed off on an amicus brief in the Trump vs. Illinois case supporting Illinois's challenge of the federalization and deployment of the National Guard in Chicago. And in that amicus brief, you argued that our good friend Tenusc 1206 doesn't support these claims that, as you say, they're rioting, they're insurrecting, they're going wild on the streets, and therefore we can deploy members of the military. And I wonder if you can just tell us what your sense is of what the progress is of that litigation, what the prospects are. Fine to say, Dalia, I have no idea. But what's your sense of the likelihood that the Supreme Court looks at the facts and says there's no there?
- [58:49]
Rob Bonta
That's I continue to believe that courts, including the U.S. supreme Court, are places where reason and actual facts and appropriate application of the law will occur. As I sat in the hearing in front of the US Supreme Court on Trump's tariffs, I saw that again. I saw justices from different ideological backgrounds and different views of jurisprudence ask important questions about the law and the Constitution and the facts and press Mr. Sauer, the solicitor general for the United States, and really drill down on the key issues here that tariffs are taxes, Congress has that power. Tariffs and tax authority are special. And the president, it seemed to me, likely doesn't have that authority in these circumstances under iipa, the International Emergency Economic Powers Act. So I think the same wrestling with the law, with the facts, with the plain and unambiguous language, the legislative history, the case law, not a lot on this issue on 10 USC 12406 for good reason, because we haven't had a lot of federalizations of the National Guard over the objection of the commander in chief in the states, the governors. But I think they're going to provide thoughtful discussion and get to a good place. I continue to have that faith. I thought the same thing listening to their arguments in the CASA decision in front of the US Supreme Court on nationwide injunctions. Even with their decision that only parties to a case can have have complete relief. That's what you want. You want thoughtfulness and hewing to the facts and faithfulness to the law. And I think we're gonna get that here. And the President is so far out there, like, it's not close. What's happening in Chicago, what's happened in Portland. He's looking literally at peaceful streets and calling them war ravaged and saying, don't believe your own eyes. Don't believe everything in the factual record that shows that these are peaceful streets. Just take my word for it. And justices can't stand for that. They can't allow for that. So I tend to be hardwired, hopeful. So maybe I'm more optimistic and more hopeful than others, but I remain hopeful about the decision that I believe will come out in the tariffs case. And I think the same thing will happen in the National Guard case. A heavy dose of sober, rational thinking that adheres to the facts and faithfully applies the law.
- [61:09]
Dahlia Lithwick
This is my own personal anxiety question.
- [61:12]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
But I think it animates almost everything that we talk about on this show, which is that which we believe to be a law problem, a fact problem, a truth problem, often just turns into a media problem. And who has the platform and who controls the narrative. And so I'm really struck. And you just mentioned this Judge Immergut issuing a permanent injunction in the Portland National Guard case. Just a home run of a reckoning with what is really happening. Right? And she writes, quote, there was neither a rebellion or danger of a rebellion, nor was the president, quote, unable with the regular forces to execute the laws of the United States in Oregon. She's very clear on the facts, what you and I are describing, the facts on the ground. And then I just want to pivot to what Fox News is doing to.
- [62:08]
Dahlia Lithwick
Disturb, distort the reality on the ground in Portland.
- [62:11]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
And, you know, reporting that they are claiming rioting and insurrection. And they are, you know, using doctored videos, they're using old videos. There is an attempt to almost outrun the facts and the truth as seen on the ground, as understood by district court judges grappling with reality. And what they're doing is sort of subsuming that under a fog of manipulated images. And so I need you to kind of give me the shot of Hopium you just offered, which is, how do you think about a world in which they actually don't care about the law, General? They care about winning the narrative. And if and when a court says these are not riots, they turn around and say, yes, they are.
- [63:01]
Rob Bonta
Here's some video well, there's the judicial courts and there's the courts of public opinion. And the Trump administration definitely uses misinformation and disinformation as a tool in the court of public opinion. They have Fox News, which seems to be a 24 hour propaganda machine, pushing out that misinformation, pushing out that disinformation, even saying things that are absolutely unlawful, like Trump needs to be able to have the authority to send the National Guards to cities to tackle crime. And tackling crime is exactly what the law prohibits the National Guard from doing, the military from doing, the federalized National Guard from doing. It's a violation of the Posse Comitatus Act. It's right there in our statute. It's rooted in our history when the British used the military to police the colonies. Can't do it. But they're saying out loud on Fox News and other conservative channels that you can do it. And they're convincing people that it's appropriate. They're saying that crime is rising even though crime is going down in the cities that they're talking about. The good thing about courts of law is that they are sanitized places free of that manipulation, free of that misinformation and disinformation. All that noise falls away and you can only present to the court what the rules of evidence provide for. You need to have witnesses testify who can be cross examined. You need to have authenticated documents that are appropriately presented to the court. And when they, the misinformation that's being used in the court of public opinion comes in to the courts of law, they are struck down as blatantly and brazenly inaccurate. It leads to statements like Judge Emergut saying Trump's view and you know his truth. Social posts are untethered from the facts. You can't say it stronger than that. That's why courts are so important, because they filter out the, the misinformation and disinformation that has been weaponized by the Trump administration to convince the people of this country of things that aren't true. And they're able to get past that, filter that out and get to the actual truth. That's their role, and they continue to do it. And that's why we have Judge Immergut, a Trump appointee, saying that we are in a country of constitutional law, not martial law, and that Trump is untethered from the facts. That's why we had a Reagan Republican appointee in the district court in the state of Washington saying in his 40 years on the bench, the Birthright citizenship position of the Trump administration, the executive order trying to strike it down was one of the most blatant violations of the law that he's ever seen, because that's appropriately how this gaslighting misinformation and disinformation being advanced by the Trump administration should be treated in a court of law.
- [65:47]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
You know, I'm old enough to remember.
- [65:49]
Dahlia Lithwick
I think you are, too.
- [65:50]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
The first Trump administration, when these lawsuits would take a year, whether it was the travel ban or the citizenship question.
- [66:00]
Dahlia Lithwick
On the census, there was a sort of a turtle's pace about much of this. And yes, there were emergency injunctions and.
- [66:10]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Yes, there were emergency hearings, but it wasn't 40 things every day, and it wasn't a judge trying to do a month's worth of work in four hours. And we certainly saw in the Snapchat case a sort of rocket ship of litigation and attempts to get ahead of it.
- [66:26]
Dahlia Lithwick
And I wonder if you have some.
- [66:29]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Theory of the case to explain why we are going at this pace we are going. I always think of Justice Sandra Day o'.
- [66:37]
Dahlia Lithwick
Connor.
- [66:38]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
I'm old enough to remember her, too, you know, saying there are turtles built into the entire Supreme Court building because turtles are, you know, our spirit animals. And we love the idea of this slow pace, but this is not a turtle time. And I wonder if it's just there's some sense of emboldened. You know, we have six justices. We have, you know, a bunch of them on speed dial. They're going to do what we want. They're willing to go after district court judges. There's no internal breaking system. What is your theory for why we are going this quickly? And I guess the CODA question is, can you actually do law right when you're going at this break next speed.
- [67:20]
Rob Bonta
I'd say we're going fast now because justice demands speed. And it is a pace set by the Trump administration. This is their strategy, this is their tactic, this is their approach. Flood the zone. Shock and awe, High speed, high volume. Come at them with a case after case that is based on a fringe theory and violates the law, and maybe they can't keep up and maybe something will slip through and we'll be able to accomplish our goal. I think they found the opposite might be true, that we as ags, my office and my fellow Democratic ags, have responded each and every time the Trump administration has broken the law and hurt our states. And sometimes after we file the TRO and the courts and the law and the legal process work really fast when they need to. We filed complaints with TROs at the same time and within hours secured a TRO. So that's lightning fast when you compare it to some of the turtle inspired pacing of other cases. And it's because the law requires it, Because Trump is moving aggressively and swiftly in violation of the law, in violation of constitutional rights. They're choosing speed. So we must be fast in response as the attorneys general and courts must be fast because they are receiving these cases with urgency. And everyone has been stepping up. My team has stepped up. We've worked through the night to get cases filed when we saw unacceptable harm on the precipice of being visited on our people. I remember being on critical phone calls while my family's sitting down to dinner and I have a earbud in one ear and my son is looking at me being like, dad, are you coming to dinner? Or I'm hearing about the California National Guard being deployed to Oregon while I'm celebrating my mom's 88th birthday. And you do what is required to protect your people. And so we're all stepping up as democratic AGs and the courts. I'm very grateful. I understand the sense of urgency and the assignment and are meeting the moment and making decisions that are very thoughtful as well.
- [69:13]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
I want to give you a chance to explain to our listeners, you are, correct me, if my math is correct, you are signed off as California AG on 45, 46 lawsuits. 46.
- [69:28]
Dahlia Lithwick
That is a lot.
- [69:30]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Maybe not surprising, but I am interested. How does your office decide what's worthy? What do we backburner? What is a priority? I mean, that it just feels as though you've got a finger in virtually every single piece of litigation in this fire hose world that none of us can make sense of.
- [69:53]
Rob Bonta
We have one simple position and we don't have the luxury of choosing. If Trump breaks the law and hurts our state, the state of California, we sue him. If he doesn't break the law, we don't. So he decides. He decides that he's going to issue an executive order on Inauguration Day after he just raised his right hand and swore to defend the Constitution and then go into another room and issue an executive order that violates it. He decides he's going to issue an Office of Management and Budget memo that tries to withhold $3 trillion worth of critical funding to the states that Congress has already appropriated. He decides he's going to impose unlawful tariffs or invade the privacy of Americans through Doge's access to bank accounts and Social Security information. He decides that he's going to deploy the National Guard unlawfully to states. And then we respond. And so we, we stand at the outer boundary of his authority and we say, you cannot cross this line. We are here to push you back and cabin you and hold you accountable to the actual authority that you have. But you can't cross this line. You can't take Congress's authority, you can't take the state's authority. You can't violate the Constitution. And we meet him in court every time. So that's our position. And look, we don't wanna sue him 46 times. I'd rather have sued him 0 times, because that would mean he's following me, the law. So he decides.
- [71:14]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Can you talk about the one other place where I have been hopelessly, Eeyore.
- [71:19]
Dahlia Lithwick
On this show for the last couple.
- [71:20]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Of months, and that is elections. And I know you think about elections.
- [71:24]
Dahlia Lithwick
And election security a lot, and I.
- [71:26]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Know you were thinking about it a.
- [71:29]
Dahlia Lithwick
Lot going into the November elections in California.
- [71:32]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
If every single time this administration loses.
- [71:38]
Dahlia Lithwick
In a court and theoretically loses in.
- [71:40]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
The Supreme Court, the odds are that the elections, the midterms and the presidential election that follow them grow even more perilous for them. How are you thinking about and what are you doing to gear up for what is, I feel, almost certainly going.
- [71:59]
Dahlia Lithwick
To be an attempt to thwart and subvert future elections?
- [72:05]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
The harder they lose, the more there will be no guard war. Rails.
- [72:09]
Rob Bonta
I think you're right that the more desperate the Trump administration becomes vis a vis the midterm elections, the more desperate their actions will be, the more brazen and unlawful and undermining of our election integrity and the right to vote they will become. And so that belief isn't something I created out of nothing. It is a belief that has been earned by Trump and his prior conduct and his administration's conduct so far. Remember, this is a person, Mr. Trump, who in the 2020 election asked the Secretary of State of Georgia to find, find over 11,000 votes after he had already lost. And of course, that 11,000 votes would have turned the outcome of the election had they been, quote, unquote, found. He was found by a court and by a congressional oversight committee to have been involved in an attempt to overthrow the results of a lawful and fair national election election. He has said that he wants to get rid of vote by mail because Vladimir Putin, that champion of democracy, told him so. He has issued an executive order that does try to undermine vote by mail votes, as well as creates additional unlawful barriers for eligible voters to exercise their right to vote. He has weaponized the US DOJ to go after his political enemies. So he has earned his reputation as someone who will try to undermine our elections and weaponize aspects of government. He sent election monitors to California for our election on Proposition 50, and we sent observers to keep an eye on those election monitors to make sure they stayed in their lane and did not interfere with the integrity of our elections. And so we have been thinking about and continue to think about all the possibilities, all the ways that the Trump administration might interfere with an election, whether it's putting National Guard or military or armed ICE agents at or near polling stations, whether it's manipulating the US Postal Service to try to undermine appropriate lawful vote by mail votes, whatever it might be. We are preparing so that we can go to court within minutes to block the unlawful actions. But as Trump's popularity goes down, as the midterms become more and more a likelihood for Democrats to prevail in, I think, as you state, we will see an increasing desperation and potentially desperate actions that are unlawful that follow.
- [74:42]
Dahlia Lithwick
Before we say goodbye, I think I have to ask you about the Netflix movie that plays in my head, in.
- [74:48]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Which all the state AGs are sitting.
- [74:51]
Dahlia Lithwick
Around on zoom calls and war gaming what's coming next and what the states can do. And this is just not really a.
- [75:00]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Model, I think, that we thought about in law school.
- [75:02]
Dahlia Lithwick
Right.
- [75:03]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
This is a new way of thinking about states and federalism and state power. And I guess I'm just very curious about whether you think that this sort of surging into the void of state elected officials and state law and state supreme courts that have really been a bulwark in a lot of ways against terrifying, creeping authoritarianism. It's so not the way we learn to think about justice. But I would love your thoughts on what you've learned from the work you're doing with other states, the work you're doing inside your state, and why this sort of system actually might be the way out.
- [75:49]
Rob Bonta
Yeah. You know, when I was in law school, I dreamed about having a job in the law that was meaningful, that made a difference, that advanced our society, protected people's rights, and wanted to use the law as a force for good. I never could have imagined I would be the Attorney General of California, working with my incredible colleagues, 23 of us, total Democratic attorneys general, fighting to defend the bedrock principles of our nation, our Constitution, the separation of powers, checks and balances, congressional authority, state sovereignty, rights and freedoms, that I would be fighting to protect those things against the federal government that would be weaponizing the government to try to undermine those things. That wasn't on my bingo card. That wasn't what I anticipated. But sometimes you don't pick the moment, you don't pick the scenario, it picks you. And so. So we are all attorneys general in this moment. And I couldn't be more proud of my fellow ags, what we've created as a team, as a coalition of states. This sort of model emerged in Trump 1.0. When AGS started banding together, it was a little more loose. There were far fewer cases. The pace was different, the stakes different. I was a legislator at the time, time in California, watching it up close and personal and seeing the cases filed. And I've always called that the rise of the ags. And we have continued to be on that trajectory. The fact that it would be sort of state AGs exercising state sovereignty, reminding the federal administration the sort of back to basics, separation of powers, checks and balances, constitutional authority, only holding the federal administration in check wasn't necessarily what I thought. But it's the brilliance of the design of our American democracy in the US Constitution that there are checks and balances all over the Constitution and they can be ignited and used at the appropriate time. And here it's states led by state AGs pushing back against the unlawful conduct of the federal administration. And you know, thus far, I'm grateful to say overwhelmingly effectively, with 80% of the orders in our cases being in our favor and blocking and stopping unlawful conduct quite often.
- [78:09]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
I'm not sure that you intended to say this, but I absolutely love it if you did. I think you said we are all attorneys general and I love that as a model of thinking about all of our role going forward, that every single one of us has a responsibility very, very similar to the one you described of seeing unlawful action and calling it out and fighting against.
- [78:34]
Rob Bonta
Can I make one final comment? I just want to build off of what you just said about everyone is a Attorney General and you know, we have our own formal role as attorneys general. We're in courts. Courts are a place where the law is applied to the facts and justice is delivered. But three things are really important right now. I call them the three Cs. Others have mentioned them before. I want to mention them here. Courts, crowds and courage. To your point, AGs are in courts and others are in courts. Private plaintiffs holding this administration accountable. It's important that everyone know that they have a role to call out unlawfulness, to call out injustice. So our crowds are important, whether it be no Kings Day or Hands off, where the people come out en masse and remind this administration who their boss is, that Trump's bosses aren't his billionaire buddies or greedy corporations. They're the people. You and me, us and we, and that we will have the final say. We'll write the next chapter in the story of America. And finally, courage is important. There's a lot of intimidation, targeting, attempts to silence and everyone who is listening. And everyone in this country has a role and I would even say a duty and an obligation, but certainly an opportunity to exercise the most potent power that there is, which is people power, and to speak up against injustice and to call out unlawfulness and to demand more and better of our administration. Ags will play, but everyone has a role and I encourage everyone to lean into that role in this moment.
- [79:58]
Interviewer/Co-host (possibly Mark Joseph Stern or another legal commentator)
Rob Bonta is the Attorney General of California. He serves as that state's top law enforcement officer and has done so since 2021. General, it is just a pleasure to have you on this show. 46 lawsuits is an awful lot and we are grateful for every one of them. Thank you for being with us.
- [80:17]
Rob Bonta
Thank you, Dalia. Thanks for having me. Foreign.
- [80:25]
Dahlia Lithwick
And that is all for this episode. Thank you so much for listening. Thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Amic Apple Podcasts. Why not slide on into the Amicus plus Cigar bar right now with Mark Joseph Stern and I in this week's bonus episode for our Slate plusketeers, a close reading of Judge Karen Immergut's evisceration of the Trump Justice Department's hoopla in the Portland National Guard case and how and why Deputy Attorney General Todd Blanch got completely pantsed but the Epstein email dump. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify or visit slate.comamicusplus 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 Senior producer. Our producer is Patrick Fort. Hillary Fry, Slate's Editor in chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.