Podcast Summary: Amicus with Dahlia Lithwick
Episode: How Donald Trump Weaponizes the Law
Date: September 28, 2019
Host: Dahlia Lithwick
Guests: Walter Dellinger, Jim Zirin
Overview
This episode dives deeply into the legal and constitutional events surrounding the opening of the impeachment inquiry into President Donald Trump. Host Dahlia Lithwick is joined first by renowned legal scholar Walter Dellinger to clarify the rapidly evolving impeachment process, constitutional mechanics, and the precedent—or lack thereof—guiding Congress and the courts. Later, she speaks with Jim Zirin, author of "Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits," about Trump's long history of using the law as a personal weapon—both as a business tactic and as President.
The episode offers a rigorous, at times sobering, examination of executive accountability, the interplay of law and politics in impeachment, and Trump’s unique strategy of using litigation as both shield and cudgel.
Key Discussions & Insights
1. The Mechanisms and Precedents of Impeachment
With Walter Dellinger (03:00–46:14)
The Impeachment Inquiry
- Status of Proceedings: Lithwick and Dellinger clarify that a House majority supports starting the impeachment process, but this is only an inquiry—not articles or a guarantee of removal.
- [05:13] Dahlia Lithwick: “Is it fair to assert that the impeachment process has begun?”
- [05:29] Walter Dellinger: “The impeachment process has begun. Be careful, though. … They have not yet committed to how they would vote on any article of impeachment.”
Role of the Senate and Chief Justice
- Senate Trial Uncertainties: The Constitution and historical precedent provide little guidance. The Chief Justice presides over a presidential impeachment trial, not the Vice President, making tie-breaking scenarios more complex.
- [08:46] Dellinger: “It’s not clear to me that it’s Mitch McConnell rather than John Roberts, Chief justice, who decides to commence the proceedings.”
- Senate Procedure: The possibility that a motion to dismiss from Trump’s legal team could end the process purely on a majority vote is discussed, but Dellinger suggests this would be politically fraught for senators.
- [10:24] Dellinger: “I am not at all confident that the Majority Leader of the Senate can successfully make this go away without having at least an initial vote.”
Courts’ Role (or Lack Thereof)
- The Supreme Court is unlikely to intervene in impeachment.
- [11:57] Dellinger: “The court has made it very clear that they want to stay out of impeachment processes.”
- If the president stonewalls subpoenas, Congress's sole recourse might be to make the refusal a separate article of impeachment.
Scope: Go Big or Go Narrow?
- On Impeachment Strategy:
- Dellinger advocates focusing on the Ukraine call, not a sprawling list of prior offenses.
- [15:44] Dellinger: “I think going small is the way to go. … A single article of impeachment focused on the president’s call and interaction with the chief official of Ukraine as a single article of impeachment is the way to go for the following reasons…”
- Dellinger advocates focusing on the Ukraine call, not a sprawling list of prior offenses.
- The comparison to Watergate: Using presidential power to influence elections is the “crime against democracy.”
- [19:43] Dellinger: “…Both Watergate and the Ukrainian situation are attempts by a sitting president to distort and control the outcome of a presidential election, which is a crime against democracy.”
Refuting Defenses of Trump’s Conduct
- The “Not in the Room” Argument:
- [23:42] Dellinger: “It would be ironic if the defense was, we don’t have firsthand testimony from the people in the room and the White House were to say, and you cannot question the people who were in the room. Right. That’s a real catch 22.”
- The “No Quid Pro Quo” Argument:
- [25:45] Dellinger: “Two answers… One, There is a clear suggestion of a quid pro quo. And two, it doesn’t matter whether there is a quid pro quo or not.”
- The offense is not merely criminal; impeachment is for abuse of power, not just technical statutory violations.
Articles of Impeachment—Potential Grounds
- Obstruction of justice (covering up the phone call), abuse of power (pressuring Ukraine), and defiance of subpoenas all echo the precedent of Nixon's impeachment articles.
On Trump’s Threats Against Whistleblowers
- [43:59] Dellinger: “What Donald Trump said… should be subject to a unanimous bipartisan condemnation, a vote of censure … he has really put in danger the life of an American who did everything he could to do it exactly by the book… This is witness tampering and it should be universally and easily condemned.”
Ethical Concerns: Giuliani and Barr
- Giuliani’s role as personal lawyer versus government actor is “a muddle… it’s almost as if Giuliani has to have liability one way or the other.”
- [33:23] Dellinger: “Make up your mind what your role is and stick to it… I’m not even sure that Giuliani could assert attorney client privilege.”
- Attorney General Bill Barr’s failure to recuse himself when personally implicated in the Ukraine call is “a mystery.”
- [36:11] Dellinger: “Why haven’t we heard about his recusal from these matters? … he has no business being involved in any way.”
Concerns about OLC’s (Office of Legal Counsel) Integrity
- Dellinger laments a shift from a tradition of neutral legal guidance to advocacy for the White House.
- [39:44] Dellinger: “But what’s distressing is that the memo reads like an advocacy document, like they’re finding every way to avoid presenting this information…”
2. How Donald Trump Weaponizes the Law: A Deep Dive
With Jim Zirin (49:15–78:10)
Trump’s Legal Worldview
- Trump treats the law as a commodity—a weapon for power, not a search for truth.
- [49:40] Jim Zirin: “Trump weaponized the law. Part of it was something he inherited from his father, Fred Trump… The second great mentor for Trump was Roy Cohn…”
Early Influences: Fred Trump and Roy Cohn
- Both men exemplified using the law to evade accountability and beat the system.
Lessons from the 1973 Racial Discrimination Lawsuit
- Roy Cohn led Trump to attack the Justice Department, counter-sue, and claim victory even in defeat—a template repeated in Trump’s future litigation.
- [53:01] Zirin: “You spin it out, you delay it, you attack the lawyers. No matter what happens, even when you enter into a settlement agreement or a consent decree, you say you won.”
Trump’s Litigation Playbook
- Delay, obfuscate, counterclaim, attack adversaries, try the case in the press, and always declare victory.
- [56:14] Zirin: “Another precept that he learned from Cohn: No matter what happens to you in the litigation, claim victory and go home.”
The Law as a Tool to Intimidate
- Trump routinely sues critics, partners, even customers, often just to wear them down or to make examples of them.
- [72:13] Zirin: “He uses his litigation to grind people down. … And there’s a way in which the cost of being in litigation with him, literally the cost financially, but also the emotional toll… means he wins. Even when he loses, he wins.”
Notable Legal Battles
- The “Polish Brigade” case: exploited workers, then lied about it in court, ultimately forced to settle for “100 cents on the dollar.” [63:07]
- War on Native Americans: smeared tribes as unfit for casino licenses, reflecting a pattern of racially charged attacks for business gain.
- [66:06] Zirin: “…he tried to drive them out of business. And he actually hired Roger Stone to smear an Indian tribe.”
- Suits to protect his name: threatened small businesses, critics, and even people with the surname Trump who operated in unrelated fields.
- [69:15] Zirin: “He did use litigation as a weapon for no real reason… It was simply to teach people a lesson…”
Trump’s Pattern of Punching Down
- From small business owners to Trump University students, he uses his resources to batter less powerful litigants.
- [73:13] Zirin: “As you say, almost always punches down, rarely punches up.”
The Limits of the Law—Cynicism and Accountability
- Lithwick queries whether Trump’s success at “spinning” legal outcomes has led Americans to see this as “smart” rather than corrosive.
- [74:49] Lithwick: “…much of what you do is surface that which was kind of known about him all along. And yet, and yet … we all say, yeah, this is how business is conducted in America. He’s not doing anything that Rich people don’t do every day. This is how people get rich. … am I too cynical?”
- Zirin responds that Trump’s flagrancy anesthetized the public but concludes:
- [58:36] Zirin: “I happen to believe that sooner or later, however it catches up with you, you can’t play the game indefinitely.”
Notable Quotes & Memorable Moments
- “We have one very key witness to presidential attempt to interfere in the 2020 presidential election, and that key witness is Donald J. Trump.”
— Walter Dellinger, [00:03] - “What Donald Trump said… should be subject to a unanimous bipartisan condemnation, a vote of censure from both houses of Congress without further ado. Because he has really put in danger the life of an American who did everything he could to do it exactly by the book. … This is witness tampering and it should be universally and easily condemned by every member of both parties.”
— Walter Dellinger, [43:59] - “The legal system is filled with many contradictions. It's supposed to be a search for truth and justice. … Cohn and Trump perverted the system.”
— Jim Zirin, [53:01] - “Deflecting, delaying, creating a smokescreen, but basically undermining the adversary, accusing the adversary of partisanship.”
— Jim Zirin, [00:16] and reinforced at [56:14] - “This attempt to use foreign interference to turn a potentially winning candidacy into a losing candidacy and to distort the outcome of the American people's Democratic vote is so profoundly wrong.”
— Walter Dellinger, [29:59]
Timestamps for Key Segments
- Impeachment Process Clarified: [05:13]
- Senate Trial and Chief Justice’s Role: [08:46]
- On Courts Avoiding Impeachment: [11:57]
- Scope of Impeachment (Big vs Small): [15:44]
- Comparison to Watergate: [19:43]
- Defenses: “Not in the Room"/"No Quid Pro Quo”: [23:42]/[25:45]
- Obstruction, Abuse, and Defiance—Articles of Impeachment: [31:13]
- Rudy Giuliani’s Legal/Ethical Quagmire: [33:23]
- Bill Barr’s Recusal and OLC Concerns: [36:11]/[39:44]
- Trump Weaponizing the Law—Zirin Interview Begins: [49:15]
- 1973 Housing Discrimination Lawsuit as Template: [53:01]
- “Polish Brigade” Case: [63:07]
- Weaponizing Lawsuits Against Critics and Small Businesses: [69:15]
- Trump University & Litigation as Punishment: [72:13]
- Cynicism and the Limits of the Law: [74:49]
Closing Thoughts
This episode thoroughly dissects both the constitutional mechanics at play in the Trump impeachment inquiry and Donald Trump’s personal legal ethos—a blend of Roy Cohn’s street-fighting adversarialism and a unique capacity to convert legal and political institutions into weapons for personal gain. It’s a sobering portrait of both a presidency in crisis and the broader challenges facing American legal and democratic norms.
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