← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Tanks On DC’s Streets And A US Senator In Handcuffs
00:47:55
Yup, seems pretty bad.
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- [00:00]
Dalia Lithwick
Foreign.
- [00:05]
Mark Joseph Stern
I'm Dalia Lithwick and this is Amicus Slate's podcast about the courts, the law and the Supreme Court. When you listen to this on Saturday morning, the sun will be rising on two Americas. In Washington D.C. dozens of tanks will thunder through the streets in a military display that putatively marks the Army's 250th birthday, but very clearly marks Dear Leader Donald Trump's birthday. Around the country, thousands upon thousands of people will be getting on buses, making signs and gathering friends to march in no Kings protests happening at state capitols right enshrined in the First Amendment. Many of them worried about being arrested simply for speaking and assembling. And in that same America, millions of people will be afraid to go to their jobs or to church or the corner store for fear of being rounded up by masked ICE forces. We have no idea how this day will end. And as I try to type these words and to record this introduction, I am quite honestly overwhelmed by the events of the past seven days, not to mention the past five months. Mark and I are so honored that so many of you trust us to make sense of things for you. But sometimes events just defy sense making. Let's try to pick a path through all of this together.
- [01:42]
Dalia Lithwick
On Saturday morning, when federal agents jumped out of an unmarked van near a Home Depot parking lot, they began grabbing people, a deliberate targeting of a heavily Latino suburb. A similar scene played out when a clothing company was raided downtown. In other actions, a US Citizen nine months pregnant was arrested. A four year old girl taken, families separated, friends quite literally disappearing.
- [02:09]
Mark Joseph Stern
Last weekend, in response to unprecedented ICE raids across LA county, protests sprung up, protests that in no way, shape or form constituted a national emergency. Between Sunday and Monday, the President of the United States pressed 4,000 California National Guard members into his service and deployed 700 Marines to Los Angeles over the stated objections of city and state officials.
- [02:37]
Dalia Lithwick
Hundreds of National Guard troops now on the ground deployed by President Trump, even though state leaders say they didn't ask for them and don't want them there. You see members of the National Guard with weapons, with body shields and tear gas canisters, all as protesters gather for day three of demonstrations against federal immigration rates.
- [02:56]
Mark Joseph Stern
On Monday, California Governor Gavin Newsom filed suit against the Trump administration. On Wednesday, the Secretary of Defense refused to confirm that he would abide by the orders of courts in this matter.
- [03:10]
Alex Padilla
Whatever the federal district court decides, will you abide by it? Well, this is a pending. This is a situation. So will you agree though that it's not My legal view. It's not your legal view that makes the decision in America. It's the federal judiciary. If the federal court in California, in the San Francisco, this district judge has an orders, a preliminary injunction, will you agree to abide by the federal courts? What I will tell you is my job right now is to ensure the troops that we have in Los Angeles are capable of supporting law enforcement in. Sir, I agree with that. But will you. And we know. Can you have the constitutional and statutory authority? That's fine, but can you do that? Can you just assure us that you'll abide by the decisions of the courts? We've always looked at the decisions. Well, the vice president has said that he doesn't believe that the court should be respected in military matters. This is not. Not my lane. But we also recognize that the way in which the judiciary has expanded its powers. But can you just give us a simple. Okay, let me ask you this. Two simple questions. You got 30 seconds. I'm not trying to trick you. I just. I think it would assure the American people because we shouldn't. It shouldn't be Ro Khanna's view of the Constitution, and it shouldn't be Secretary Hegset's. It should be the Supreme Court and the federal courts. Can you assure the American people on two things. You will respect any Supreme Court decision on this matter about whether the Marines are constitutional, and you will respect the district courts when they rule before the Supreme Court rules. What I can say is we should not have local judges determining foreign policy or national security policy for the country. So you're not willing to say you would respect those decisions? What I'm saying is local district judges shouldn't make foreign policy for the United States. Gentleman's time's expired.
- [04:48]
Mark Joseph Stern
On Thursday, Department of Homeland Security Secretary Kristi Noem at a press conference described the department's intentions. We are not going away. We are staying here to liberate this city from the socialist and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into the city. The we here includes the National Guard in the Marines. California's senior senator, Alex Padilla tried to ask her a question. The sitting senator in a secure federal building. He was there for a meeting and heard about Secretary Noem's press briefing, and he went in, he shouted a question at Noem, who was talking about occupying an American city with federal troops because the regime disagrees with the political choices of city and state leaders. You saw what happened next.
- [05:50]
Dalia Lithwick
I'M Senator Alex Pad. I have questions for the secretary because the fact of the matter is a half a dozen selling criminals that you're rotating on your. On your.
- [06:06]
Mark Joseph Stern
You saw a United States senator pushed and then dragged out of the press conference, forced to his knees and then pinned to the floor by three men and then cuffed while a fourth man stood over him, and a fifth told Padilla's staffer he was not permitted to film. Hands behind your back.
- [06:21]
Dalia Lithwick
Hands behind your back.
- [06:23]
Mark Joseph Stern
Get in my hands.
- [06:24]
Dalia Lithwick
Go ahead, hide behind my back. All right, cool. One hand. Lay flat.
- [06:27]
Mark Joseph Stern
Lay flat.
- [06:29]
Dalia Lithwick
Other hand, sir.
- [06:30]
Alex Padilla
Other hand.
- [06:37]
Mark Joseph Stern
There's no recording allowed out here.
- [06:41]
Dalia Lithwick
I did not know. There's no recording allowed out here.
- [06:45]
Mark Joseph Stern
Mark Joseph Stern is here now to talk with me about what is, by any measure, I think, the crossing of the Rubicon, the arrest, tackle, indict and seize power from the opposition party, period, in this long sweep of the demise of democracy. Hi, Mark.
- [07:06]
Dalia Lithwick
Hi, Dalia.
- [07:09]
Mark Joseph Stern
I guess I shouldn't be surprised, right? And yet I am just. I'm gut punched, and I'm sick about Senator Alex Padilla being dragged from a press conference, wrestled to the ground by Secret Service members and FBI agents. I mean, no, I shouldn't be surprised. They came for the mayor of Newark, then they came for a black congresswoman from New Jersey, then they came for a judge, they came for a union leader. And yet I am still just. Got it. This is a sitting U.S. senator. He's in a secure building. He identifies himself, first thing as a senator. He's speaking to somebody that he has met on multiple occasions, who then dismisses him as just a scary man lunging or charging at her. The racism here, it burns.
- [08:02]
Dalia Lithwick
So I don't think that we should be surprised. I do think that we are entitled to feel disgusted and horrified by what we're seeing. Trump did promise to be a dictator on day one. And shortly after he reentered office and started issuing patently unconstitutional orders, his own Justice Department declared that the mandate of the electorate gave him kind of super constitutional powers to do whatever he wants without the interference either of the judiciary or of Congress. And so he is very much speedrunning the dictatorship that he promised. One of the key strategies is clearly to cow the opposition into submission using all of the tools of the state at his disposal. Right in the first term. He did not race so quickly to law enforcement, to wrongful arrests, to illegitimate prosecutions and indictments. And I think in the interregnum, he learned his lesson. And so this time, fresh out of the gate. He is using his Justice Department, he is using his law enforcement agents, which he does very much view as his own, as his own personal army to enforce his rule. And he is claiming the so called mandate of the electorate to push aside the other branches of government and consolidate all power in not just the executive branch, but in the White House in his own person. And so that doesn't just look like filings arguments in court that you and I have been covering now for five months, right, where these lawyers go out and say President Trump is the leader of this country and if he does it, it can't be illegal. It also looks like him sending out armed agents to arrest, indict, tackle judges, sitting lawmakers, people who dare call his bluff, who dare stand up for the very principle of the separation of powers and a constitutional democracy. And that is what we saw so vividly in, in the clip of Senator Padilla being tackled and detained. That was, in some ways an un American image, right? But also in 2025, I fear, all too American to see a president so empowered by the Supreme Court, so empowered by years of rulings that have insulated him from criminal immunity, that have allowed him to amass all of this power in the executive branch and push aside the other branches that have really reduced to a vanishing point ability of people to bring suits against federal agents who violate their rights. This is Trump and his cabinet secretary and his supporters saying, you will not stop us. And even if you want to exercise your basic First Amendment right and your basic privilege as a senator to ask a question as we invade your city and purport to liberate it from its own elected leaders, we will use violence to subdue you and stop you. And that is what's so nauseating about this image and what, again, feels in some ways un American, but in other ways perfectly emblematic of what Trump seeks to transform this country into.
- [11:18]
Mark Joseph Stern
You said a couple things that are really important, and one of them that I want to flag is kind of who is visible in Trumplandia and who is invisible. And it's not an accident that most of the people who are sitting officials who get arrested and tackled and indicted are people of color. And it's not an accident that Kristi Noem can say, oh, this man was lunging at me, and have Mike Johnson echo that as though there was something sinister and dangerous about this man whose parents were Mexican immigrants. Just by definition, he couldn't be there for any good reason because he can't possibly be a sitting senator. It's an Easy mistake to make. And that keeps happening over and over. And I just want to, like, lift it up in the context of. There's video. There's video. There's video of the assault that happened to the mayor of Newark. There's video here of Senator Padilla saying, I'm Senator, there's video. And yet we're being told by Trump and his supporters that what we saw didn't really happen, that it was an assault, that it was a lunch, that it was an attack, that a congresswoman who had every single right to inspect that Newark facility was assaulting and impeding officers, that Senator Padilla, who at no time was out of control, was somehow part of some nefarious plot that could be reasonably understood as an attack on the secretary. And the video shows that's not true, and the audio shows that's not true, and it doesn't matter. And I think that that's part of a tipping point that we really have to take seriously, because what we are being told time and time again, it's of a piece with, there's an invasion happening, there's an insurrection happening, there is a rebellion happening, there are armed insurgents who are burning LA to the ground. And. And that's not supported by anything that anybody could see. And what we are being told is, it doesn't matter if you can see it. What matters is what Secretary Hegseth and Secretary Noem and the president see. They're telling you that their reality is actual reality. And I just want to just flag that. People like Ruth Ben Guillot and Kim Shepley and the folks that we talk to about authoritarianism keep saying that a hallmark of authoritarianism is getting people to buy into your lies.
- [14:00]
Dalia Lithwick
It sounds so simple, but I still want to say it. I think one of the most powerful acts of defiance that anyone can undertake right now is to tell the truth and to say what they witnessed and refuse to lend any credence to the spin and propaganda and lies that the administration is attempting to build up in order to obscure the brutal reality. It is, as you say, a quintessential tactic of any authoritarian regime to attempt to contort the truth in order to subdue defiance of the regime, in order to push back protests, democratic outcry, exercise of First Amendment rights of speech and assembly. They want to trick everyone into not believing what we saw with our own eyes. And they are asking their allies to buy into and repeat this fiction, which is, in some ways an easy way to tell who is on board with this horrible project of authoritarianism and who is still resisting. Right? It's a cheat code. Anyone who goes out there and says that the senator lunged at Kristi Noem is absolutely on board with this effort to bend and twist and conceal the truth and turn every single fact and every single reality out there into a lie. That furthers the propaganda mission of this government. And everyone who refuses to buy into this bs, everyone who stands up and says that is not true, that is not what happened. We are the ones standing against this really dark, disturbing effort to transform America into not a democracy, not a constitutional republic, but a cult of personality around an authoritarian leader. We are the ones who have to stand up at this time and if only for the history books say we know the truth and what the regime is telling us is a lie, we still know the difference between those two things, and we will be the ones to defend, defend that difference and to defend the truth. Even if the government starts to attack us, indict us, throw us to the ground and arrest us, the truth must still live. And I think it's really notable it didn't get a lot of commentary that the FBI and federal agents in that room tried to shut down recordings of the incident. Federal agents saying that the cameras need to be turned off, that there can't be any recording of it. Why might that be? I mean, I think the answer is quite obvious, right? They do not want a record of the truth. They want to have an even easier time gaslighting us and twisting this into propaganda and furtherance of the regime. They do not want to have those visuals that every single person can see with their own eyes and draw their own reasonable inferences and conclusions from. They want to be the only ones who can tell the story. They want to have a monopoly on their version of reality, which is, in fact, not reality at all. And so, you know, this, I think, goes more broadly to something that has faded into the background a little, but is still so important in democracy today, which is the ability of everyone to film what's happening, to film these protests in Los Angeles, to provide that footage to the media, to put it out on the Internet, to show everyone that when Fox News plays a reel of, you know, a trash can on fire or a Waymo overturned, that that is not emblematic of these protests. That is an outlier. That is an aberration. There will always be a handful of violent individuals who cling to, you know, some kind of broader protest in order to engage in acts of destruction. And that does not render the entire protest illegitimate or unlawful. And it does not undermine the message of the protest because a few bad actors want to make it about them and engage in violence. And the way that we reiterate and reaffirm that message is by ensuring that there is as much footage out there of the peaceful protests and push back against what the White House puts out, which is highly selectively edited clips of a handful of acts of violence that they have drawn upon to justify what I think is quite obvious an illegitimate and illegal use of force against these peaceful assemblies.
- [18:31]
Mark Joseph Stern
Let's pause to hear from some of our sponsors. I want to pull on one thing you said that is so important going into this weekend of protests, which is that it is a profound act of resistance to just tell the truth. And we forget that. And when people ask, you know, what can I be doing? What should I be doing? I think one of the things that ordinary citizens can and should be doing now, and you and I have been saying this since Inauguration Day, if not before, is being a chronicler of truth and a teller of truth and a debunker of lies. That is such a, like, signal, useful, important mission right now. And I think folks don't realize that they all have skin in that game. The other thing that you're saying, and I really think it's important, is that one of the turns we have seen very quickly in this second go round the ballroom with Donald Trump and his minions is a willingness to say that Trump and his appointees are the only lawful arbiters of what can be done and what is legal. And I just want to connect Pete Hegseth saying at a hearing this week that he didn't feel all that bound by district court judges, you know, local judges, who have nothing to do, in his view, with military policy or international law. And so they can be disregarded. We're hearing statements, including from Kristi Noem, that they are in Los Angeles, the federal government is in Los Angeles, to liberate the citizens of that city from elected officials, that they voted for their mayor, their governor, people who they chose to represent them, and that those are not legitimate voices of legal authority. And I just want to, again, make the point, because you and I wrote the piece about this right from the beginning, that there's this fake mandate that they continue to cite, that the mandate that they were given was not just to be the law, but to vaporize any other institution that purports to interpret or enact or embody the law. And this is really different, and this is really pernicious. And I just think like to miss that turn where you have the secretary standing there saying that the government of California in its entirety is illegitimate and needs to be taken over for some unspecified amount of time by the Trump administration. Should chill folks to the bone.
- [21:12]
Dalia Lithwick
So our friend Jamelle Bouie has opined eloquently about this that essentially the regime's message is that there was one election, just one, that mattered, Trump won the election, and there need never be any others, and those that have occurred don't matter at all, are irrelevant. That all of these other elected leaders, including those in the federal government, are irrelevant to Trump and his agenda and his so called mandate because he has been given an almost divine right to rule. This is what comes up over and over again when his cabinet members go on tv, when they go before Congress to testify. You hear it constantly, this drumbeat that Trump is the one true leader of this country, that no one has any legitimate authority to stand in his way, and that anyone who does deserves to be bowled over, to be smeared in public, and to have their power completely sapped from them. This is, you know, what's driving the push to impeach district court judges. This is what drove, I think, the unlawful arrest of, of Sen. Or Padilla. This is what is leading Kristi Noem, you know, the DHS secretary, to say we have a right to liberate California residents from their own state government because in their view, none of these other elected leaders matter, none of them have any legitimate claim to power. I don't think we need to explain to our listeners what an utter perversion of America's constitutional structure that is. I don't think that we need to lay out how disgusting it is to claim that Congress has no role here, that the judiciary has no rightful claim to authority, and reigning in the excesses of the presidency, something that Chief Justice John Roberts himself recently reminded us, or that states are in some ways most representative of their citizens wishes and that states retain under the Constitution, as we will discuss, significant powers to push back against the agenda and overreach of the federal government. All of that. That is basic civics. And I think it's another indication of the regime's effort to forever sort of blot out the truth that they're pretending not to understand, something we all learned in seventh or eighth grade and reorient our entire constitutional democracy as this cult of personality around Donald Trump. I do just sort of want to expand out from that. And since this is amicus, put in a word of gratitude for the lawyers who are doing a lot of what you just described, which is marking the truth and standing by the truth and insisting that we all acknowledge the truth in the face of extraordinary opposition. One place where you can still find the truth unvarnished by spin and propaganda is in the many, many briefs that have been filed in the 200 plus cases against Donald Trump and his administration. And I think that in the future, these will serve as evidence that they're there was mass resistance to what Trump is trying to turn this country into. Because these lawyers are having to swim against the tide of a Justice Department that has been corrupted in a totally unprecedented way by a White House that insists that every federal attorney works directly for President Trump. Right. We are seeing now US Attorneys and Trump himself claiming that the Justice Department only works for him. That is untrue. That is not how Congress structured the Justice Department. That is not how it has traditionally operated. It has long had a meaningful degree of independence from the White House. Trump has changed all of that. He has collapsed the White House and the Justice Department into one kind of legal army that now goes out there and peddles these outrageous lies in court that stonewalls judges orders, that refuses to comply with them, that defies, in the most contemptuous possible terms, the restraining orders and injunctions of federal judges. And so it falls to the lawyers to say, even as they are sometimes losing. Right. We know the Supreme Court has not been as staunch a defender as democracy and civil rights as we would want it to be under Trump's second term. So far, even as these lawyers are losing, they are putting this on the record and they are standing up for the version of this country that we thought we deserved and we're going to live in and pass on to our children until quite recently. And the judges who are going out on a limb, who are showing real backbone, who are ruling in their favor, even if they get thrown under the bus by the Supreme Court, they are playing their part, too. And so, you know, Dalia, you gave a speech some years ago where you said, look for the helpers, right? Look for those who are standing up in a disaster zone and trying to do whatever they can to assist. I mean, this is the corner of the legal profession that I have so much admiration for now because of that.
- [26:07]
Mark Joseph Stern
Well, that's a perfect segue to a truth teller and finder of truth, which is Federal District Judge Charles Breyer, who took to heart the responsibility to tell the truth and find the truth in this lawsuit that was brought by California Governor Gavin Newsom. California's Attorney General Rob Bonta when the DHS and the president federalized the National Guard, they sought an injunction in his court. And they essentially made the argument that you just offered up, which is states have powers, and by statute and by the Constitution, you can't just say that that goes away. And at this hearing on Thursday, Mark, I think that the judge was not just crystal clear about the law, but I think he went further. He was crystal clear about what is actually happening on the ground in California and about not believing something just because the government says it.
- [27:16]
Dalia Lithwick
Yes. And that carried through to his written opinion, which he issued a few hours later, which is longer than I had expected, because so many pages of it are devoted to simply a factual recitation of what is truly happening contrasted with what the government claims. Right, so we'll get into this, but one of the central arguments that the government brought here here was that there is a rebellion on the ground against the federal government and that Donald Trump therefore has a right under this statute. For those taking notes at home, it's 10 USC section 12406, that under this statute, he can issue an order federalizing California's National Guard, even over the objection of Governor Gavin Newsom, send them out into the streets to enforce order. And before addressing the nitty gritty details of the law, Judge Breyer said, well, wait a minute. Let's just ask, is there a rebellion? Or is this, in fact a largely peaceful protest protected by the First Amendment, that the government is attempting to round up absurdly to a rebellion by drawing out a handful of isolated instances of violence and using it to tarnish the entire assembly? And of course, Judge Breyer reached the right conclusion and said, this is no rebellion at all. This is what the First Amendment protects at its core. This is citizens of this country and the state peacefully assembling to express their contempt for the administration's immigration raids and roundups and its antagonism toward migrants? This is all so clearly protected by the First Amendment. And the fact that a handful of individual might be going out and, you know, overturning a Waymo or lighting up fireworks to scare the police does not strip the thousands of other peaceful protesters of their First Amendment rights. And that was so important to put on the record, especially as this case rockets up to the Court of Appeals and eventually to the Supreme Court, because this will be not just a fight over the law, but a fight over the facts. And. And that means a fight over the truth. And the truth is that this is about as far from a rebellion as you could imagine, that this is not constitutionally prohibited, but constitutionally. And we are lucky that the case got assigned to a judge who was willing to put that out there on the record.
- [29:42]
Mark Joseph Stern
We are going to take a short break. Let's head back to my conversation with Mark Joseph Stern. Just for the scholars and dorks among us, do you want to just lay out quickly, Mark, what the sort of statutory argument was here and what the constitutional argument was? There's a lot happening here, and I think when you and I spoke earlier in the week, I actually wasn't sure this lawsuit was gonna succeed on the merits.
- [30:13]
Dalia Lithwick
Yeah, I mean, I think a lot of people have that first impression because, of course, in some circumstances, the President can federalize and mobilize the National Guard over a state's objection. Right. That is what President Eisenhower did to protect the Little Rock Nine, what JFK did to enforce desegregation orders. Everyone agrees that the President has this power. The question here is whether Trump has invoked and exercised this power lawfully. And the answer, Judge Breyer writes, I think, quite plausibly seems to be no. And here's why. When a president wants to mobilize the National Guard to overrule a state's own lawlessness, it has to draw upon the Insurrection Act. That is a long standing statute that allows the President to say, basically, send in the troops. Doesn't matter what the governor says. This is a lawless situation and we need to bring order. And it allows him to suspend what's known as the Posse Comitatus act, which generally prohibits the use of military troops, including the National Guard, to engage in general domestic law enforcement. Right. This is a key foundational principle of America that we do not generally allow our military to engage in, participate in domestic law enforcement. So Trump could have tried to do that. He could have invoked the Insurrection Act. He could have invoked this exception to the Posse Comitatus Act. He could have said, we're sending in the Guard because California has devolved into a state of lawlessness and we need troops on the ground to enforce order and enforce law. But Trump didn't do that. I cannot be clear enough about this. Trump did not do what a president must do in order to send in and federalize the National Guard over a state's objection. Instead, he invoked this completely different statute. Again, it's 10 USC section 124 06. Call it up on your computer if you want, because you will not see in that law the powers that Trump is now claiming to exercise. So first of all, it applies in a much more limited set of circumstances. Chiefly here in the case of rebellion. Right. And Trump has claimed there is a rebellion, but as Judge Breyer said, obviously no such rebellion exists. But perhaps, perhaps just as importantly, it says that when the president wants to invoke this law, their orders shall be issued through the governors of the states. So this is not the statute that a president uses when a governor is defying lawful orders and needs to be overruled. Quite the opposite. This is the statute that a president uses when he wants to work with a governor together to cooperatively engage the National Guard on the ground. And of course, Trump didn't do that. Trump did not issue this order through California Governor Gavin Newsom. He issued it over the objection of Newsom. And to try to get around that. This is going to sound like I'm making it up, but I promise I'm not. They wrote on the order, like the federal government, Pete Hegseth, the Department of Defense, just wrote on the order issued through California Governor Gavin Newsom without sending it to him, without asking for his approval, without engaging his office at all. They just wrote that on the page. And then they had the gall to go to court and claim that by writing those words on the page, they had complied with the statute and issued the order through the governor. And Judge Breyer said, are you kidding me? Is that really the argument that you are taking to my court? And said, that will not suffice under the law. This is simply not the statute that the president thinks it is, and held that this order that Trump issued is thus procedurally invalid and must be set aside. And then, and I think this was surprising to a lot of people because this was a bit of a stretch argument. But he also embraced California's constitutional claim. California argued that Trump is violating the 10th Amendment, which reserves powers to the states. 10th Amendment claims rarely prevail. I do think this was a little bit of a reach. But Judge Breyer said, look, under the Constitution, states have primary control of the National Guard, and states get to deploy the National Guard for purposes that they view as urgent and proper, putting out wildfires, for instance, as California has done with its National Guard. The president is not always and inherently the commander in chief of the National Guard. That only happens when he lawfully and properly mobilizes them, which he has not done here. And so by federalizing the National Guard illegally, Trump is taking away California's ability, California's constitutional prerogative, to deploy the National Guard as it sees fit. And he, in fact, explains that Governor Newsom may want to deploy the National Guard for other purposes. And he can't, because they're busy right now, because Trump is using them for his own illicit purposes. And so Judge Breyer found that these orders also violate the 10th Amendment by depriving California of its constitutional authority to use the National Guard as it sees fit. And I think, again, and maybe that's the most tenuous of these conclusions because it breaks new ground, because it really is a kind of unprecedented chain of logic. But that's only because we've never really been in a situation like this before where a president has improperly federalized the National Guard. And so I think it stands a chance of holding up on appeal. I really do.
- [35:37]
Mark Joseph Stern
Two quick glosses on what you just said. One, this district court ruling does not go into the question of the lawfulness of, of the Marines being on site, Right?
- [35:48]
Dalia Lithwick
Absolutely.
- [35:49]
Mark Joseph Stern
Limited to the National Guard. And so we should be really mindful of the fact that there are Marines who are trained to kill foreign people in war situations, who are still on the ground in la, policing their neighbors, policing other citizens. And that's a source of some worry. The other thing that I think we should talk about is that this immediately was appealed to the ninth Circuit, who state it, and it's going to be heard by a three judge panel on the ninth Circuit next week. Two of whom are Trump appointees.
- [36:23]
Dalia Lithwick
Yes, but they are two Trump appointees who are not maga, who are not super far right and for whom I do have some respect, Judge Bennett and Judge Miller are the two Trump appointees. And then the third member of the panel is Judge Sung, who is a Biden appointee. They unanimously, as far as we can tell, stayed Judge Breyer's.
- [36:41]
Alex Padilla
Really?
- [36:41]
Dalia Lithwick
And Judge Breyer had stayed his own ruling. In fact, to ensure it didn't go into effect, he stayed it until Friday at noon. And then the 9th Circuit stayed it further. That's no surprise. I, I think almost any panel was going to do that to ensure that the legal questions here get a full hearing. And I don't know what this panel will do. I think there's a chance it could stop. Judge Breyer could freeze his order further. I also think there's a chance that two of these judges, maybe even all three, could say that Judge Breyer has some real points here and at least put some limits on the National Guard's ability to enforce Trump's orders. I mean, the court has a middle ground available to it. It doesn't just have to either undeploy the Guard or let Trump do whatever he wants. It could also issue an order saying, you know, to the extent that the guard is being deployed to engage in civilian law enforcement, it's violating the Posse Comitatus Act. It could say that the Trump administration must go back and attempt to corre its procedural error and engage with Governor Newsom to deploy these troops lawfully and see if Newsom is willing to play ball. It has options available to it. But of course, I think we all know that if it rules against the government in any way, shape or form, the government will be at the Supreme Court banging down its door for full relief within minutes. And I really fear that the Supreme Court is going to bungle this one because the justices, especially on the right, show so much deference to the president as the head of the military. Now that would be bizarre here because as I've said, he actually does not have automatic constitutional authority to serve as commander in chief of the California National Guard. If he has not mobilized the guard properly, then he is not currently their commander in chief. Governor Newsom is. But you know, Brett Kavanaugh and John Roberts are obsessed with this idea that when the president says the word military, when the president says troops, when the president says I need to do this because it involves national security, he gets utmost deference. And so I do worry very much how this will shake out at a conservative Supreme Court, that we should note when it's convenient for them, profess fidelity to the rights of states to control their own affairs.
- [38:58]
Mark Joseph Stern
A lot of folks are hearing us around the country getting ready to march to speak and assemble as is protected under the First Amendment who do not feel super confident right now that they won't be also tackled to the ground by people with masks. What's your best guidance? Let's be clear. Neither Mark nor I are giving you legal advice. We are not your attorneys seek counsel. But what's your best advice for people about how to keep safe in a situation that just as we said at the beginning, feels like it is powder keggy and feels like it could tilt into something really lawless and still feel confident that they have not just the right, but as you said, the respons ability to speak truth now and going forward.
- [39:53]
Dalia Lithwick
Yeah. And I guess when you say it feels like it could become lawless, we should clarify that may be because of the actions of so called law enforcement. Right, Right. It's not just a trash can on fire or two. It's that we could see federal agents acting illegally and using totally unjustified and unconstitutional violence against protesters because that is what Trump wants. And he has made that demand so clear. I think he liked the gassing of Lafayette Square during his first term and he would like to see more of that. So people should know going into this that there is some risk. This is not a president or an administration that feels remotely constrained by traditional constitutional limitations. I don't want to scare anyone. I think most of these protests will be safe. I think it is urgently important that everyone involved remain peaceful, remain calm, ensure that they separate themselves from any agitators who want to commit acts of violence. As soon as a single act of violence is committed, the regime will try to twist that as evidence that this is a rebellion, literally a rebellion or an insurrection against the government, you know, 50,000 times worse than what we saw on January 6th, and use it to try to quash everybody else's First Amendment rights. So stay away from that to the extent possible. Go with friends, go with family, go with a support group, go with other people you trust. Film everything. That footage is going to remain a critically important document for the future. So if it looks like you are about to face censorship or violence, that needs to be on camera and disseminated to the public and those of us in the media as quickly as possible. But also, I mean, I think just, you know, this is going to sound easy for us just sitting here recording this podcast, but I do think American citizens have a responsibility to try to uphold democracy. I do think that, as we often say, democracy is not a spectator sport. Voting is the most important thing in, in a lot of ways, but protesting is a very, very close second. There is a reason why it has such strong, enduring constitutional protections. And so don't let everything that I've just said scare you out of going, because I do think that if you want to pass on a better country to the future, you do have an obligation to get out there and to make your voice heard and to go with other like minded people to show en masse, right in the thousands, maybe even in the millions, that this President has not crushed all dissent, that this President has not stamped out all opposition, and that there is still a huge portion of the country that stands ready to fight his lawless takeover of the entire government in the nation. And so I am proud of everyone who puts their bodies on the line. I wouldn't say it's an obligation, but I do think it comes very close to a democratic duty.
- [42:47]
Mark Joseph Stern
Two quick notes. One, my friend, one of my favorite Angelenos, my friend Jeff Berman, would add to what Mark just said, carry an American flag, because it's really, really important. And we're starting to see more and more of this to signal that the real American values that real Americans fought and died for for centuries are the ones that we are fighting for on the streets. And don't be afraid to reappropriate what it means to hold up the Stars and Stripes and to fight for the Stars and Stripes. The other thing I want to say, and maybe we can end on this. You made the point, Mark, and I think about this all the time. There was an easy way for Donald Trump to do what he wanted to do, which is invoke the Insurrection Act. He didn't. He got the skeleton key and crept in up the drainpipe and, you know, used a back door and tried to be too clever by half. Right. To do this with a statute that is in no way appropriate for what he sought to do. And why is this that? I think it's because the administration is afraid. They're much more afraid than they signal. And so I just really, really want to flag that when you ask yourself, why did they do this the stupid way and not the way that was well trod and almost unfailingly successful? And I think the answer is because there's immense power in pushing back, and they need knew there would be an enormous pushback to invoking the Insurrection Act. And so I think that's a sign of weakness. And I think we need to really, really pivot from the sense that this administration is all powerful and all is lost and pivot to a place of they're afraid and they're nervous and they're doing this in cunning, sneaky ways because they think we won't notice. And that is a position of enormous, enormous popular public and democratic strength.
- [44:54]
Dalia Lithwick
And we're not as afraid as they say we are. In fact, we're not afraid at all. I don't think we thought this would be easy. I don't think we thought this would be immediate. We learned lessons from the first term. This is gonna be a slog. I mean, I'm here in D.C. watching tanks going through the streets, right. For Dear Leader's great military parade. He wants to project awesome, total power. And we just can't believe it because it is not true. And as long as we understand that he can have all the tanks he wants and we can rest assured that he will still lose.
- [45:31]
Mark Joseph Stern
Mark Joseph Stern, there is no one I would rather be with right now than you. Be very, very safe in the coming days and weeks and just know how grateful I am for your big brain and bigger heart. Thank you.
- [45:45]
Dalia Lithwick
You thanks Dalia.
- [45:53]
Mark Joseph Stern
That's all for this episode. Thank you so much for listening and thank you so much for your letters and your questions. You can keep in touch@amicusatslate.com or comment on Spotify if you're listening to us there. And you can always find us@facebook.com amicus podcast Slide on over to today's Amicus Plus Opinion Palooza Bonus episode. Mark and I will be digging through the Supreme Court decisions that came down this week, including a really significant ruling on potential consequences for police related to a harrowing case of a wrong house search. Plus you'll get to hear about a disability rights case that is good, maybe, but also bad. Actually, you can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.comamicus+ to get access wherever you may listen. That episode is available for you to listen to right now. We'll see you there. And make sure you're following Amicus in all the ways for this opinionpalooza season and and do not miss a thing by subscribing to our newsletter, Slate's Legal Brief. We'll keep you up to date on the Supreme Court and beyond with a weekly roundup from us here on amicus and of Slate's Jurisprudence Desk's latest articles. That's slate.com legal brief. Sara Burningham is Amicus Senior Producer. Our producer is is Patrick Fort, Hilary Fry is 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 will be back with another episode of Amicus next week. Until then, take good care.