Podcast Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: The Case Regarding the So-Called Emergency
Release Date: March 2, 2019

Episode Overview

This episode explores two major legal stories:

1. The legal and constitutional challenges to President Trump’s national emergency declaration at the southern border – with guest Stuart Gerson, former Acting Attorney General and counsel for a related lawsuit.
2. A lawyerly breakdown of Michael Cohen’s testimony before Congress – with guest Leah Littman, assistant professor at UC Irvine School of Law.

The focus is on separating legal analysis from political spectacle, providing deep dives into the implications for separation of powers, congressional standing, statutory interpretation, and lawyering in both cases.

Part I: The National Emergency Declaration and the Separation of Powers

1. Setting the Context

• [00:30] Dahlia Lithwick introduces the explosive week:
  • Supreme Court news.
  • The House voting to overturn Trump’s emergency declaration for border wall funding.
  • The ongoing legal and constitutional debates.
  • Stuart Gerson, testifying lawyer and a self-described constitutional conservative, joins to provide legal analysis.

2. Bipartisanship of Legal Concern

• [03:24] Lithwick notes Gerson’s identity as a lifelong Republican, underscoring that the issues transcend party lines.
  • Quote:
    “This is a case about the Constitution. This is a case about what the power of the Congress is under Article 1. It's about how Congress over time has let its power erode.” – Stuart Gerson [03:48]

3. The Legal Layers: Constitutional Foundations to Statutory Confusion

• [04:42] Lithwick and Gerson break down the "layered cake" of legal issues:

  • (a) Separation of Powers: Congress holds power of the purse; the executive cannot override this at will.

  • (b) The Youngstown Precedent: The 1952 steel seizure case is cited – courts must step in when the President openly defies Congress.

  • (c) National Emergencies Act (NEA): The Act gives the president broad discretion but fails to define “emergency.”

  • (d) Statute Misapplication: Trump seeks to redirect DOD funds; Gerson alleges improper statutory use.

    • Quote:
      “You shouldn’t be allowed to referee your own game. And it would be one thing if the statute defined an emergency. It's an entirely different thing when it doesn't.” – Stuart Gerson [06:13]

4. Does the NEA Nullify Youngstown?

• [09:54] Lithwick raises the argument that the NEA gives the President unlimited power, rendering Youngstown obsolete.
• Gerson explains:
  • The NEA was a legislative compromise—Congress intentionally left terms vague, expecting the courts to interpret.
  • There was rare “collegiality and unanimity” across ideological lines during testimony that the NEA is “objectively terrible.”
  • Quote:
    “An emergency can be objectively determined...the argument we’re making...is a very conservative argument.” – Stuart Gerson [12:12]

5. Congressional Responsibility and Inaction

• [14:42] Lithwick points out that Congress gave itself the power to check the President’s emergency declarations, but seems unwilling to act.
  • Quote:
    “It's the job of Congress to act like a Congress. The fundamental business of Congress is to pass wise laws.” – Stuart Gerson [17:04]

6. Statutory Barriers: The Military Construction Statute

• [18:15] They turn to the legal mechanics:
  • The statute Trump cites (10 U.S.C. § 2808) only applies if the national emergency “requires use of the armed forces” for military construction.
  • Lithwick: “There’s no set of facts under which you can say the military needs to be building this wall. Right? Border security is generally a civilian function.” [21:16]
  • Gerson: “I don’t have to say anything more than yes.” [21:50]

7. Judicial Reluctance and the Absence of Facts

• [22:22] Lithwick asks: Won’t courts just defer to presidential judgment on emergencies?
• Gerson pushes back, arguing there are no facts supporting this being an emergency.
  • Quote:
    “If there’s an emergency, there need to be facts to support it...but here there’s nothing that suggests that there’s an emergency. So the determinant is not weighing facts. It's the absence of facts.” – Stuart Gerson [24:35]

8. Lawsuit Details: Standing and Ripeness

• [25:36] Gerson describes his suit (El Paso County and Border Network for Human Rights):
  • Their clients face immediate harm (land seizures, family disruptions) unlike more speculative state claims.
  • “Our clients are immediately affected and have to do something right now.”

9. Principles and the Rule of Law

• [29:24] Gerson is motivated by nonpartisan commitment to the Constitution, influenced by George H.W. Bush’s advice: “Country before party.”
• The issue isn’t about future presidents; it’s about upholding the core separation of powers now.
  • Quote:
    “If we let things like the current problems slip by, we’re going to move ever closer towards tyranny...you’ll have this slow evolution towards all power residing in one place. And that isn’t a good thing for the country.” – Stuart Gerson [34:22]

Notable Moments & Quotes:

• “This is a case that I would expect that were he alive, James Madison would sit by my side and agree with what we’re saying.” – Stuart Gerson [00:05, 03:20]
• On the NEA: “It’s a bunch of different meats larded together, except that there’s no definition. What you have here is first no emergency.” – Stuart Gerson referencing “turducken” [08:50]

Important Timestamps:

• [03:20] – Gerson: Madison would side with constitutional argument.
• [12:55] – Lithwick: Unanimity that the NEA is bad law.
• [18:48] – Shift to military statute and “constitutional avoidance.”
• [25:36] – Discussion of standing in the El Paso lawsuit.
• [29:24] – Gerson explains his personal and philosophical motivations.

Part II: Michael Cohen’s Congressional Testimony – Legal Analysis

1. What Cohen Revealed and What Remains Hidden

• [37:54] Dahlia Lithwick with Leah Littman
• Cohen was limited (ongoing investigations, SDNY referrals, closed-door testimony).
• Hinted at broader ongoing Southern District of New York investigations.
  • Quote:
    “We all kind of collapsed under the sheer weight of the volume of crimes that Michael Cohen alluded to in his testimony.” – Leah Littman [39:20]

2. The Potential Legal Violations & New Revelations

• [41:00] Littman lists the many legal issues touched:
  • Election law crimes (hush money payments).
  • Perjury.
  • Tax and insurance fraud.
  • Nonprofit (Trump Foundation) abuses.
  • “General crimes against stupidity and humanity.”
• Notable new angle: Insurance fraud suggested by Rep. Alexandria Ocasio-Cortez’s questioning.
  • “I don’t know that we have ever really gotten a glimpse of the potential insurance fraud that might have been going on in addition to potential tax fraud.” – Leah Littman [41:30]
• Payments continued into Trump’s presidency; implicated the White House directly.

3. Cohen’s Testimony and Future Investigations

• [44:03] Prosecutors likely already aware of some issues, but new witness leads may have emerged.

4. Cohen, Roger Stone, and WikiLeaks: Mueller Relevance

• [46:14] Cohen’s testimony that Trump knew about WikiLeaks dumps could:
  • Strengthen factual basis of Trump campaign's ties to Russia.
  • Possibly expose Trump to perjury charges (if his written responses to Mueller contradict Cohen).
  • Quote:
    “It does potentially relate to the Mueller investigation, specifically in that...there might be a case of perjury there, either perjury by the president or perjury by other people who spoke to the Special Counsel’s office about any contact between Roger Stone and WikiLeaks.” – Leah Littman [46:40]

5. Lawyers Reviewing Congressional Testimony

• [49:53] Trump’s lawyers allegedly reviewed and edited Cohen’s (false) congressional testimony—raises risks for legal ethics and potential obstruction.
  • “That's a big deal if the lawyers were involved in those changes...his name came up as one of the individuals who potentially reviewed Michael Cohen’s testimony to Congress that was false. And Abby Lowell is a well regarded attorney.” – Leah Littman [50:12]

6. “Dear Diary” Approach and the Limits of Legalism

• [53:36] Trump’s own officials (e.g., Don McGahn) resorting to “write a note to file” as a passive way to register dissent.
  • Quote:
    “Dear Diary, today I witnessed one facet of a constitutional crisis.” – Leah Littman [53:36]

7. What’s Next?

• [56:09] Littman forecasts:
  • Subpoenas, deeper investigation, more fact-finding.
  • Additional potential witnesses.
  • Development of facts will be key for any criminal or political consequences.

8. Lawyering and Congressional Performance

• [57:38] Littman offers lawyering tips after watching the hearing:
  • “Don’t ask questions you don’t know the answer to.”
  • “Listen to answers, and to what your colleagues are asking.”
  • Praise for Rep. Ocasio-Cortez’s focused questioning, in contrast to bad practice.

Memorable Quotes

• “If separation of powers means anything, it has to mean that Congress, not the President, has the power of the purse.” – Dahlia Lithwick [05:07]
• “I know the technical reasons why the government is failing. A lot of other people do, too. And we’ve begun to unite and to express ourselves on rule of law questions. They may produce answers that the left likes. This is such a case, but they could come in other areas as well.” – Stuart Gerson [30:24]
• “You know, the number of times representatives would ask things of Michael Cohen they didn’t know what was coming back, was shocking to me.” – Leah Littman [57:38]
• “It can't be the case that the best and only thing a lawyer can do is make a memo or a note to file.” – Leah Littman [54:06]

Key Segment Timestamps

| Time | Topic / Moment | Speaker(s) | |----------|--------------------------------------------------------------|-------------------------| | 00:05 | "James Madison would sit by my side..." | Stuart Gerson | | 03:20 | Nonpartisan constitutional critique | Gerson, Lithwick | | 09:54 | Does NEA nullify Youngstown? | Lithwick, Gerson | | 12:55 | Unanimous criticism of NEA | Lithwick, Gerson | | 18:48 | Statutory analysis: military construction | Lithwick, Gerson | | 24:35 | “Absence of facts” as legal basis | Gerson | | 29:24 | “Country before party”; Gerson’s personal mission | Gerson | | 37:54 | Leah Littman on Cohen testimony constraints | Lithwick, Littman | | 41:23 | Three “shocking” revelations from Cohen hearing | Littman | | 46:40 | Legal significance of Stone/WikiLeaks Revelation | Littman | | 49:53 | Cohen’s testimony vetting by Trump lawyers | Lithwick, Littman | | 53:36 | “Dear Diary, constitutional crisis” commentary | Littman | | 57:38 | Lawyering tips from congressional hearing | Littman |

Conclusion

This episode of Amicus offers a richly detailed, lawyer-focused examination of both the legal underpinnings of President Trump’s emergency declaration and the broader rule-of-law implications from Michael Cohen's congressional testimony. The episode weaves partisan divides with bipartisan legal concern, stresses the vital role of Congress and the judiciary in upholding constitutional checks, and spotlights the challenges facing the legal profession in a turbulent political climate.