Podcast Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: "How Does This End Well?"
Date: November 21, 2020
Host: Dahlia Lithwick
Guest: Joshua Matz, Partner at Kaplan Hecker & Fink LLP, constitutional law expert, former impeachment counsel

Theme of the Episode

This episode dissects the state of the American legal and constitutional system two weeks after Joe Biden was declared president-elect in the contentious 2020 election. Dahlia Lithwick and Joshua Matz explore the unprecedented refusal of President Trump to concede, the barrage of legally dubious lawsuits challenging the election results, the deeper erosion of democratic norms, and the responsibility of lawyers in enabling or resisting these anti-democratic maneuvers. At heart, the central question is: "How does this end well?" for American democracy and the rule of law.

Key Discussion Points & Insights

1. Breakdown of the Post-Election "Interregnum"

• Stalled Transition and Institutional Crisis (00:25 - 02:45)

  • President Trump's refusal to concede has resulted in the federal government "essentially stopp[ing] functioning as a federal government" [(A), 00:05].
  • The General Services Administration (GSA) is blocking a formal transition, impeding Biden’s team, even as the COVID-19 pandemic worsens to 250,000 deaths.
  • Trump’s legal team is flooding courts with lawsuits to overturn state results, all but a couple of which have failed ("Trump's win loss scorecard reads something like 2 and 31" [B, 02:45]).

• The Surreal and Dangerous Legal Fights

  • Rudy Giuliani and Sidney Powell are described as peddling conspiracy theories rather than facts in both court and press (Hugo Chavez, Venezuelan algorithms, etc.), fueling division and disinformation.

2. Why the Ongoing Legal Fights Matter

• Not Just “King Lear in the White House” (08:07 - 13:30)

  • Joshua Matz notes that while it might be comforting to minimize Trump's antics, his refusal to govern is causing harm in the real world:

    “There is a real here and now harm to the fact that the federal government has essentially stopped functioning as a federal government while the president throws this temper tantrum that threatens the guardrails of our democratic system.” [(A), 11:20]

  • The long-term collateral damage is more profound: Trump and his supporters are undermining the peaceful transition of power, grinding the government to a halt, and “unleash[ing] maximum partisan warfare at every level of local, state, and federal government” [(A), 12:50].

3. Enablers and the Spread of Distrust in Democracy

• The Republican Party's Role (15:38 - 19:26)

  • Matz argues it's not just Trump; it's about the party and his base refusing to accept the election’s legitimacy. “There’s some evidence out there that a majority of the people who voted for President Trump, in fact, believe that he won this past election.” [(A), 16:30]
  • Historical Context: This will now be the fourth administration in a row where a sizeable faction believes the presidency has been "stolen." (Bush, Obama, Trump, and now Biden.)

• Poll Numbers and the Failure of Ignoring Disinformation (19:26 - 24:24)

  • Lithwick cites a poll showing 88% of Republicans do not believe Biden won. She challenges the notion that just “ignoring Trump and Trumpism” will make it go away. She warns that the ongoing grievances are burrowing deeper into public consciousness.

    “Ignoring Trump and Trumpism doesn't make it go away. And in this case, it seems to allow it to burrow in a little deeper.” [(B), 19:26]

• The Protracted Legal and Political Endgame

  • Matz: The true aim is to “delegitimize the election, to sow chaos, to make it harder to actually get to an outcome” [(A), 21:21]. The lawsuits are a tool to persuade officials to delay certification, not truly overturn results.

4. Election Lawfare Shifts from Courts to Local Officials

• Subverting Certification & Racial Overtones (25:17 - 32:12)
  • Lithwick and Matz discuss pressure campaigns on state election boards, especially in diverse urban counties (e.g., Wayne County, Detroit).
  • Matz points out the difference between the courts (with rules & evidence) and “a world that is not unconstrained, but constrained differently” when the fight moves to canvassing boards susceptible to raw political and racialized pressure.

    "Our system of election administration does provide rules, but it was not built with this kind of massive bad faith resistance to the outcome of an election in mind." [(A), 27:50]

5. Lawyers’ Roles & Ethics as Democratic Guardrails

• Do Legal Ethics Hold Up? (34:35 - 43:47)

  • Lithwick expresses dismay at how easily legal ethics are dismissed when lawyers file frivolous, bad-faith lawsuits for political ends—especially by big law firms.
  • Matz forcefully rejects the “everyone deserves a lawyer” trope used to defend these actions:

    “This notion that lawyers are just sort of guns lying about for people to pick up and aim as they please reflects an outmoded and, I think, deeply problematic perception of our profession.” [(A), 38:40]

  • He supports the backlash against elite lawyers: “...the backlash that we've seen against some of the individual lawyers and firms...is entirely valid because it's a backlash aimed at defending our democratic system itself.” [(A), 39:58]

• Toxic Civility and Professional Norms

  • Lithwick critiques the legal profession’s use of “civility” to paper over complicity. “It actually gives cover to so much awful, awful behavior under the guise of quote, unquote civility. It's really toxic and I think it needs to be called out as that.” [(B), 41:06]

6. Accountability vs. “Healing” in the Biden Era

• Debate over "Moving On" vs. Pursuing Justice (43:47 - 50:59)

  • Lithwick is skeptical of “turn the page, bring the country together, focus on the future” rhetoric from the Biden camp, likening it to past episodes (Ford pardoning Nixon, Obama and CIA torture).

    "The language of bring the country together... just feels like bring the country together. Particularly in light of the nihilism you have been talking about...One part of the country does not appear to want to be brought together. And so then it just looks to me like appeasement." [(B), 43:47]

  • Matz acknowledges the risk of hyper-partisan prosecutions but warns that total impunity is dangerous:

    “Insisting that there be no accountability, no consequences, no sanctions is, in my mind itself an unbelievably dangerous thing to do.” [(A), 49:25]

7. The Future of the Courts and Progressive Legal Advocacy

• The Next Chapter For Legal Resistance (50:59 - 56:12)
  • Lithwick: Resistance lawsuits (E. Jean Carroll, Charlottesville, etc.) will continue. But the 6-3 conservative Supreme Court will change the landscape.
  • Matz notes progressives will need to rethink their relationship with the courts and the federal government. Under Trump, courts were seen as bulwarks against executive abuse; with Biden, executive power may be wielded progressively, while the courts become more hostile.

    “It'll be interesting to see how progressives come to think about courts and come to think about the federal government... The work of civil rights, the work of upholding the rule of law, never ends.” [(A), 52:20]

Notable Quotes & Memorable Moments

• On the harm of federal dysfunction:

  • “There is a real here and now harm to the fact that the federal government has essentially stopped functioning as a federal government while the President throws this temper tantrum that threatens the guardrails of our democratic system.”
    — Joshua Matz, (11:20)

• On the durability of distrust in presidential transitions:

  • "This will be potentially the fourth presidential administration in a row to come into office with some significant part of the other party believing to its bones that the office was stolen."
    — Joshua Matz, (18:36)

• On legal ethics and complicity:

  • “If there's a limit anywhere, if there's a boundary anywhere on the kind of case that a lawyer can in good conscience take...I would think it has to be a case that is brought in bad faith for the ostentatious purpose of defeating a peaceful transfer of power in our democracy.”
    — Joshua Matz, (38:40)

Important Timestamps of Segments

• 00:05–03:01: Context for Trump's legal strategies and dysfunction post-election
• 07:21–13:45: The real harm of the stalled transition and legal endgames
• 15:38–19:26: Effects on party politics, Trumpism and erosion of trust in democratic institutions
• 21:21–24:24: Lawsuits as political theater and delegitimization strategy
• 25:17–32:12: Local election official pressure and breakdown of procedural norms
• 34:35–43:47: Lawyers’ ethical responsibilities in crisis, and the limits of “civility”
• 43:47–50:59: Debate over forgiveness vs. accountability for anti-democratic behavior
• 52:20–56:12: The future of progressive lawyering and the courts in the Biden era

Tone & Language

The episode’s tone oscillates between dry legal humor (comparing Giuliani’s antics to a “Benny Hill” routine), deep concern (over the durability of democratic institutions), stern moral reflection (on the legal profession’s obligations), and a somber conventional wisdom about the difficulty of “healing” in a country so divided over basic facts.

Conclusion

“How Does This End Well?” is a searching, at times bleak, conversation about the precariousness of democratic norms, the dangers of legal and political bad faith, and the pressing need to balance accountability with the desire for national healing. Lithwick and Matz provide both technical legal analysis and a broader meditation on the fragility of the rule of law and the need for ethical rigor—in law, governance, and public life. For anyone wondering how American democracy weathers this crisis, the episode offers sobering insights and a call to vigilance.