← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Gangster Presidency
01:18:58
The DoJ’s Eric Adams shakedown sets off a series of defiant and courageous resignations.
Loading summary
Transcript69 lines
- [00:01]
Dahlia Lithwick
This episode is brought to you by Meundies Underwear Drawers are like the Wild West. You never know what you're gonna pull out or what shape it's in. So upgrade your collection with the buttery, soft comfort of Meundies. Meundies signature fabric is as soft as a warm hug from your favorite sweater. Plus, it's breathable and oh so comfy, making it ideal for all day wear. Get 20% off your first order, plus free shipping at Meundies.com Spotify with code Spotify that's Meundies.com Spotify code Spotify have.
- [00:30]
Harry Littman
I GOT News for you is back for another season. Roy Wood Jr. Amber Ruffin and Michael Ian Black are finding the funny in.
- [00:38]
Sam Bagenstass
The week's biggest stories. Have I got news for you. Return Saturday at 9 on CNN and stream next day on Max.
- [00:47]
Dahlia Lithwick
Hi, I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts, the law, and the U.S. supreme Court.
- [00:56]
Harry Littman
This is humongous beyond anything I think in DOJ's history.
- [01:05]
Sam Bagenstass
What you're seeing right now is a fundamental disregard of basic constitutional principles.
- [01:16]
Dahlia Lithwick
It was a Thursday afternoon massacre in response to an utterly naked and corrupt quid pro quo, a series of events and letters and resignations that would have sunk any administration in the before times. And yet we are in the now times. On Thursday at 2pm the interim U.S. attorney for the Southern District of New York, Danielle Sassoon, quit her job. She was one of six lawyers on Thursday who resigned rather than dismiss corruption charges against New York Mayor Eric Adams, as directed by the acting number two official at the Justice Department, Emile Beauvais. This is an earthquake of courage and principle. On Friday, we are hearing reports that 22 members of the Public Integrity Section at the DOJ were pulled into a room and given one hour to decide who among them would dismiss the Adams indictment or else they would all be fired. Now, before we get started, I want to flag for listeners that we are taping this early Friday afternoon. Events are unfolding very quickly, so these are the facts as we know them right now as of this taping. Joining us to discuss is Harry Lippman. He is the former U.S. attorney for the Western District of Pennsylvania. Before that, he served as a Deputy Assistant Attorney general at the DOJ, an assistant U.S. attorney and a special assistant U.S. attorney. Harry is also the creator, host and executive producer of the Talking Feds podcast. Harry, I know you are everywhere today, but thank you for also being here.
- [02:54]
Harry Littman
Thank you. Diets One of the places to be Amicus you always want to be at Amicus, Always be.
- [03:01]
Dahlia Lithwick
It's like Sesame street for the law dorks. Can you just start with this? Extraordinary mass resignations. We actually kind of know a lot of what happened because we've got both Danielle Sassoon's resignation letter and then the just crazy pants response from Beauvais. And as we're taping, we're seeing responses from other folks. Each of these letters is like a. It's like a love song to the rule of law.
- [03:31]
Harry Littman
These resignation letters, yeah, we know an extraordinary amount. And it's all exploded into the public. We know that that's not what Emile Beauvais, who is playing definitely the mustachioed villain here, wanted. He actually, in a meeting, directed someone to delete notes that they had taken. You know, I'm from, and I spent a lot of time there. So I'll state that as a kind of standing, if not objection, maybe grain of salt. But this is humongous beyond anything I think, in DOJ's history. And the number one point that so distinguishes it. There are two things that so distinguish it to me, Dalia. The first is because of the written record, the naked conflict between a good guy and bad guy side, between the rule of law and raw politics. Because the most, I would say, unforgettable sentence in all these letters so far has been when Beauvais said, well, we are not looking at the facts and we don't question the legal theories. And that, of course, is the absolute DNA of what happens in the department. So to order this kind of prosecution, but specifically not because of facts and law, is just the same as saying, violate your oath and forget justice without fear or favor on the merits. And we'll probably talk more about that. But the other aspect, and as you say, it's as we tape, we're in freefall here. There are two possible analogs or precedents. People think about the Saturday Night Massacre, but when it transpired, basically there were two quick resignations, and then the blood flow was staunched. When the third official, Robert Bork, Solicitor General, stepped up and gave the order that Nixon had demanded of the first Attorney General and then Deputy Attorney General, that was actually all choreographed with Richardson and Ruckelshaus because the department was at such crisis. And then in 2000, I think, 21, the first couple days, the showdown in the Oval Office involving Acting Attorney General Jeff Rosen, they told Trump, we're all going to resign if you do this. And Trump backed down. So here we have a cascade of scandals and of very, very Senior personnel in the department. The U.S. attorney for the Southern District, by the way, a Scalia clerk, impeccable conservative credentials. Her colleague who just filed a blistering letter, a John Roberts clerk. This is, you know, for them, the Beauvais, the cast from hell, and then the ent leadership of the vaunted Public Integrity Section and the acting Assistant Attorney General for all of Crim. So this is very high level stuff. And it is, as of now, there's no stopping point. It's like the Roadrunner cartoon where they're just falling down the cliff, waiting for the boom at the bottom.
- [06:53]
Dahlia Lithwick
Yeah, I want to read just the last couple of lines of the resignation letter from Hagan Scotten. This is the John Roberts cler who walks away. And I just want to read this because I think it so goes to your point, Harry, that this is not about politics. This is about declining to allow politics to poison the rule of law. And what he writes is he's writing to Bovet. Some will view the mistake you're committing here in the light of their generally negative views of the new administration. I do not share those views. I can even understand how a chief executive whose background is in business and politics might see the contemplated dismissal with leverage as a good, if distasteful deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the president is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool or enough of a coward to file your motion. But it was never going to be me.
- [08:01]
Harry Littman
White hot, right? Wow. Every word. Yeah, go ahead.
- [08:06]
Dahlia Lithwick
Yeah, every word. For lawyers, this is like a blistering, like screaming expletive atom bomb.
- [08:15]
Harry Littman
Yeah.
- [08:16]
Dahlia Lithwick
The two things that I think lawyer Scott is trying to get across, and I'd love for you to unpack them, is that he is saying, look, doj, you want to dismiss this, dismiss it. You can pardon Eric Adams, you can. Pam Bondi wants to, you know, but making us do this so that this hangs over Eric Adams and forces him to comply with Donald Trump's demands, that's psycho. And that's what he's really saying, right?
- [08:48]
Harry Littman
Yeah. And more than psycho, kind of breathtakingly corrupt. He's saying, I know there's a political system out there. I am not a reflexive anti Trumper. But guys, you have to understand the Department of Justice and we've seen this DIA over, you know, the Many years of Trump ruled within the Department of Justice. It's clearly seismic within the federal judiciary, by the way. Clearly seismic. Everyone's read the letter. Everyone is steeped in the very culture that he is invoking. Everyone understands there's a truthful good side and a mendacious bad side. But even more, what he's proffering, I think pretty clearly is if you want to do some raw political bag job, go for it. But you cannot ask the Department of Justice that stands up and takes an oath and upholds the Constitution to do it. It would, in effect, and this is what Sassoon said, be a lie. I would stand up in front of a court and say, we believe that it should be dismissed. And, you know, reasons matter for why prosecutors do something. I know that it might sound. And a lot of people are thinking, oh, this is just so twee and pointy headed to me from doj. But I think even generally from the battles of the last several years, I think it is more comprehensible and fundamental than that. One side is saying dismiss it, but don't worry about the facts and the law. And they are dia kind of lying about it. Right. There is a whole established discourse here where Trump and company, including now the new Attorney General Bondi, is trying to say the old regime weaponized the prosecutions, meaning that's a bad thing. And this is just really kind of screaming attestation from some very, very credible folks. This is the best of doj. And their resignations show it that you are the ones who are wanting us to do things for crass, political reasons. If you want to be crass and political, I don't know, maybe you could pardon them or maybe you could be honest about it. You cannot make us stand up and lie to a court. And my final point here is to a court, this still, this motion, when they strong arm somebody into filing it and man, that idea, that image of 22 Public Integrity lawyers locked in a room like truant children until they knuckle under, somebody is going to file it. But then a court has to find it's in the interests of justice. And that means, I think, an investigation, just what the hell happened here? And the facts, I think will be really looked at closely. And as you say, there's a paper record and to my mind, a really foolishly long and intemperate and insulting letter from the acting deputy Attorney general to the acting U.S. attorney. So I would just say the table is set for a pretty clear morality play of trying to strong arm for political reasons and people virtuously and at great sacrifice, standing up, losing their job, the golden ticket of being in the sdny, and the great future that these guys have because they took an oath and they will not lie. Just really basic stuff.
- [12:41]
Dahlia Lithwick
Harry, you're making two really subtle and I think, important points, and I want to. I really want to think about both of them. One is, this is really different from going after the January 6th Prosecutors, by the way, who were just doing their jobs under instructions. This is saying, oh, when we say deep state, we don't mean the people who, quote, unquote, weaponize the Justice Department against Trump. We mean we will decide who's weaponizing the Justice Department. And that is anybody who doesn't do what we want. And I think that the point you're making that is so essential is there's one thing which is purging the folks who you say were on Team Biden. This is purging handpicked people that you left in senior positions at the Justice Department and saying, you, too, are going to be purged because you're not loyal. And I think the other thing, and it's related to that, is that it does put the. To the ways in which Donald Trump and Pam Bondi and Emil Beauvais and everyone else in their orbit has used this word weaponize, weaponizing the Justice Department in the most cynical possible way. It actually doesn't mean what they say it means. It means anyone who does anything we don't like at DOJ is now weaponizing. And I love that it kind of puts the lie to that construct, because now we can call it what it is, which is corruption.
- [14:09]
Harry Littman
Well, that's exactly right. And I'm sorry to hear that it is nuanced, because to me, it screams out, but it maybe it has to be better explained to others. But I will. They do make a subtle point. They actually, in Bove's letter, there's an effort to say you are continuing. He really takes her to task to pursue a weaponized political prosecution. Now, of course, if that were true, that would be a scathing kind of charge. But what would it mean? Or how would you dispute it? Precisely by saying, uh, the same thing with the Trump prosecutions. This isn't weaponized. You know why? Because here are the facts and here is the law. This is exactly how Smith ends his letter to Merrick Garland. We can't charge Trump, but we want to be clear. We believe in the integrity of our prosecution. So weaponized means precisely that you are not doing the Absolute core principle of what DOJ and prosecutors do, going after someone based on facts and the law. So what's that leave? It does leave here politics. And it leaves it pretty much on the surface, as you say. There was on TV this morning an unbelievable to me, little exchange between the immigration czar for Trump Homan and Eric Adams, where home is saying, we made a deal, you better keep it. And they're ha, ha, ha, laughing about it.
- [15:44]
Sam Bagenstass
If he doesn't come through, I'll be back in New York City and we won't be sitting on the couch. I'll be in his office, up his butt saying, where the hell is the agreement we came to?
- [15:53]
Harry Littman
So. So it's very much on the surface and again, to my mind, Dalia, we'll see how things play out. But the notion that weaponizing prosecutions, in other words, bringing them for political reasons divorced from facts and law, that's a bad thing, I think has been really pounded into American heads by Trump making the charge. Trump, by the way, who played as he did in his first term. Oh, I don't know anything about it. It's all at the Department of Justice. That, to me suggests that this is just, we'll see, not so arcane, not so pointy headed, pretty straightforward. And the people who have put it, the letters, this impeachment letter that you just read from, he decided every sentence right, and he decided to be really blistering about it. The lines are drawn and it's just not going away. It seems to me, if nothing else, there's going to be a hearing and the judge is going to want to hear from DOJ on the established principle. Did you do this for political reasons? We already know that's bad. And the paper record against them is just overwhelming.
- [17:17]
Dahlia Lithwick
I read Bove's letter to Sassoon that came out on Thursday night, very much as an implicit threat to also investigate her, to investigate the lawyers that quit. So let's just be really clear. It's not just that these people are losing their jobs. They're also now subjected, as you said, taking themselves out of a career path that is a rocket to success. They're also subjecting themselves to the, you know, investigative and prosecutorial power that Bovet is threatening. I want to make explicit what Dale Ho, who has been on this podcast, is the judge tasked with sorting this out. Presumably at some point, somebody's going to pull the trigger and file a motion to dismiss the Eric Adams charges. And then this goes to Judge, Judge Ho in New York. And you've now said, he certainly has, it's well within his rights to investigate and interrogate why this is happening. And I would love for you to give us a sense of the scope of what he could possibly do to put this to rights.
- [18:26]
Harry Littman
Sure. I mean, what he could possibly do is very broad and we'll see. And it's now a high profile matter. But the legal charge that he has is to find that it is in the interests of justice. And I think again, and this is the great letter that you read from, you know, if it had put, been put in the realm of raw politics or a pardon or whatever, then the notion would be, well, that's politics, but it has been put in the realm of law. And an implicit, not so implicit an assertion and a very threatening one, as you say, from Beauvais to Sassoon, you have violated your oath and we are going to investigate you. I mean, you know, a judge, I think, perceives immediately that he or she needs to call it true and figure out what happened. So even if at the end of the day there would be a possible way in which Ho could say, I'm not going to dismiss it, that would be pretty extreme. But to actually look into it, that would be normal. And I think there's a little wrinkle here, Dalia, because at this point, you can't expect Adams to speak to why this is political in rank nor the department. So I see him as potentially. He certainly has the power appointing someone to make those arguments. Supreme Court does it all the time. And so I think that the claims from the prosecutors and from Beauvais will come into play. There'll be an effort to put Beauvais on the stand. The department will try to resist that, but it'll be ugly. And always underneath to me is the notion that the department now under its new leadership, is scared of, resistant to the truth coming out. The truth being that this wasn't ordered for typical or even vaguely appropriate reasons, but was raw politics. And there's the whole other theme here where it would appear that Adams was coached by Bove to make the right offer. I'll really play ball on immigration if you'll dismiss the cases. That's a whole extra layer of corruption. That's the sort of thing that Ho, I think, will have every right to look into. And I don't see why he wouldn't. I'll just add the whole way things have gone down since the January 6th pardons, which so insulted the entire bench of the very respected bench, bipartisan bench of the D.C. district Court. I think the district court judges in this country really see in the Trump administration a great sort of disrespect for the law and see themselves as maybe the only bulwark to at least push back, scrutinize, get the facts out. So you know ho better than I do. But I expect that this is going to move to a hearing with real evidence of what happened and what didn't. And that's just bad for the department and the posture that it's in.
- [21:47]
Dahlia Lithwick
I think that what you're saying, Harry, and it's a great place to land, is that no matter what emerges from this, the quid pro quo here is that if Eric Adams continues to be the mayor and continues to do what he did, as you noted, Harry, on Fox News on Friday morning, which is say I get to be the mayor as long as I do the immigration dragnet, I promise there's nothing more corrupt. You can laugh about it on Fox, but that is quid pro quo corruption and the promise that he will be removed if he fails to do that. So this isn't just a New York story. This isn't just an immigration story. This is a stark promise that we will keep you out of jail if you do what we want. And if that doesn't scare the face off everybody. This is no different in that sense from the Saturday Night Massacre. This isn't a local New York mayoral corruption story. This is a promise from DOJ that you either play ball and do what we say or we can put you in jail. I don't know how to put it more starkly than that.
- [22:57]
Harry Littman
Yeah, look, you play ball and not on the field. We're supposed to play it on. This is the broader, almost dragnet of Trump's politics, by the way. This has been happening. So basically Trump had a lawsuit against CBS saying the Kamala Harris interview was slanted and he has put his hand picked FCC chair in to basically say we're going to scrutinize your efforts to try to do this huge, profitable merger. Ah, but we're gonna look into how nice you're talking about Trump. There's no other way around it. That's got the exact same structure as the impeachment did, the abusive use of government power held hostage to Trump's private interests. And that just washed by in a moment. Which returns me to the point, you know, I think the sort of main meta point that we're discussing here. Does this have purchase with, with the American people? And I'll just repeat, you know, I am from doj. And I want to say within doj, everyone, assistance all over the country. This is a body blow. It's going to hurt them going before judges. They're ashamed. This is exactly what they're schooled in, not doing the reason they came to the department. But even leaving that aside, you know, I think the themes of corruption and there are multiple layers, as you say, and just the bullying, you know, 22 people now in a room, who's gonna do the right job? The really sort of nasty, overbearing, insulting, threatening aspect to it, to me, that rings home to people generally, even if they're not schooled in the sort of DOJ way that is now coming through in the letters so much what people see their jobs as being about.
- [24:56]
Dahlia Lithwick
I love that image. Harry, this is the breakfast Club, right? Emile Beauvais as the mean principal, locking everybody in the room and forcing them to fold. And as you say, and it's important to say it, none of this is good for the Justice Department. None of this is good for going forward, having the best people doing this job. If the only people willing to continue to do the job are the ones willing to take the knee. Harry Littman is a former U.S. attorney for the Western District of Pennsylvania. Before that, he served as a Deputy Assistant Attorney General at the justice department, an assistant U.S. attorney and a special assistant U.S. attorney. Harry is the creator, the host, executive producer of the Talking Feds podcast, which I hope is on everybody's must listen to list. Harry, this is a huge and developing story. Thank you for taking a little time to make clear for us something that is, as you say, existential.
- [25:59]
Harry Littman
Thanks, Daya. In fact, that's not what I said. You said it, and it's the exact right word within doj. It is existential. Thanks for having me on.
- [26:12]
Dahlia Lithwick
We are going to pause now to hear from some of our great sponsors. And when we come back, I'm going to be talking to Sam Bagenstass. He's former general Counsel to the Office of Management and Budget and to the Department of Health and Human Services. And we're going to be talking about the consequences of the dismantling of government, what the courts can do about it, and why asking if we're in a constitutional crisis is probably fundamentally the wrong question. This show is sponsored by Deleteme. If you're concerned about your personal information, check out Deleteme. Deleteme is a subscription service that removes your personal info from hundreds of data brokers. Deleteme does all the hard work. Sign up and provide Deleteme with exactly what information you want deleted and their experts take it from there. Deleteme sends regular personalized privacy reports showing what info they found, where they found it and what they removed. Deleteme isn't a one time service. Deleteme is constantly monitoring and removing the personal information you don't want on the Internet. Take control of your data and keep your private life private by signing up for Deleteme now at a special discount for our Amicus listeners today. Get 20% off your deletement plan by texting Amicus to 64,000. Text Amicus to 64,000. That's Amicus to 64,000. Message and data rates may apply. See Terms for details. This episode is brought to you by NetSuite. What does the future hold for business? Over 41,000 businesses have future proofed their business with NetSuite by Oracle, the number one cloud ERP bringing accounting, financial management, inventory and HR into one fluid platform with one unified business management suite. There's one source of truth giving you the visibility and control you need to make quick decisions. With real time insights and forecasting, you're peering into the future with actionable data. When you're closing the books in days, not weeks, you're spending less time looking backwards and more time on what's next. Whether your company is earning millions or even hundreds of millions, NetSuite helps you respond to immediate challenges and seize your biggest opportunities. Speaking of opportunity, download the CFO's Guide to AI and Machine Learning at netsuite.com Amicus the guide is free to you at netsuite.com Amicus netsuite.com Amicus I'm Leon.
- [28:49]
Leon Neyfakh
Nayfar and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes. About audio tapes coming out that prove Nixon's involvement in the coverup. The last story we see is Nixon resigns. It takes a little over a minute in a movie. In real life, it took about two years.
- [29:22]
Harry Littman
Five men were arrested early Saturday while trying to install eavesdropping equipment.
- [29:27]
Sam Bagenstass
It's known as the Watergate Incident.
- [29:29]
Leon Neyfakh
What was it like to experience those two years in real time? What were people thinking and feeling as the break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President. The downfall of Richard Nixon was stranger, wilder and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now, wherever you get your podcasts.
- [30:13]
Dahlia Lithwick
There are a lot of ways the new Trump administration is moving fast and very deliberately breaking things. And we've been covering a lot of them in the not yet one month since Donald Trump and his unelected co president Elon Musk took over at the White House. We have talked about immigration and birthright citizenship. We've talked about the purge at the FBI targeting the agents who prosecuted violent January 6th insurrectionists. But among the most reckless involves decimating the federal government under the guise of quote, improving efficiency and quote, rooting out fraud. Thus far, as Musk and his team of tech toddlers run from one building to the next, shutting off the lights, illegally firing federal employees, the theme has been principally to erase agencies that impede Musk's own personal quest for world domination with their pesky regulations, ongoing investigations. So far, the so called Department of Government Efficiency, which is not a department, has produced no evidence of the hundreds of billions of dollars of fraud they allege to be taking place, nor the hundreds of billions of dollars of waste they assure us is being trimmed. Instead, the evidence is piling up a very real human cost. HIV patients going untreated, consumers being bilked by cheating banks, cancer trials being halted Thursday evening saw mass terminations of probationary workers across the government. This is the logical conclusion of a decades long deregulatory effort that benefits billionaires, polluters and banks. Yes, but the new move seems to be that it need not happen in a court if you can just occupy a government building and fire everybody inside. So we turn now to Sam Bagenstass. He's Frank G. Millard professor of Law at the University of Michigan Law School and the Art Charlene Susan Cohn professor of Social Policy at University of Michigan's Gerald Ford School of Public Policy. Sam has held multiple government positions. Most recently from June 2022 to December 2024, he served as General Counsel to the Department of Health and Human Services, or hhs, where he played a crucial role in advancing and implementing policies across the department, including crafting and defending the first ever Medicare drug Price negotiation program, drafting and issuing major on civil rights, health, privacy, Medicare and Medicaid. Before all that, Sam served as General Counsel to the Office of Management and Budget, AKA the omb. There he worked on President Biden's Day one executive Orders. Furthermore, under President Obama, Sam was an appointee in the U.S. department of justice where he served as the principal Deputy Assistant Attorney General for Civil Rights. The number two official in the Civil Rights Division. Sam Bagginstass, welcome back to Amicus.
- [33:11]
Sam Bagenstass
Well, thank you for having me on to talk. Really happy to talk to you.
- [33:15]
Dahlia Lithwick
So I think I want to start with the fact that you were in some sense the guy at OMB who was doing executive orders and big changes when President Biden took over from President Trump in 2021. And let's stipulate that these transitions are complicated and policies can change on a dime. And we know that President Biden acted, you know, with alacrity with respect to Covid and International A in a bunch of areas. So I would love a sort of side by side comparison of the first couple of weeks of that transition that you saw from the inside and what we are seeing now just by way of giving us some scope of how this is different.
- [33:59]
Sam Bagenstass
Yeah, I mean, all new presidents come in and act with speed and try to adopt their new policies. And certainly that happened in the Biden administration. I think the difference that we're seeing here is the complete refusal to be bound by laws that were passed by Congress. One of the baselines of executive orders is, you know, they're not statutes, they're not an edict by the king. Right. What they are is a carrying out of the responsibilities of the president under the statutes that Congress passes. And so if you look at the Biden era executive orders, you know, they were all saying, hey, agency, I want you consistent with this, this responsibility that Congress has given you or this authority that Congress has given you to consider doing these things. And here's the policy of my administration as you're carrying out those authorities. What we're seeing with the Trump administration is something very different. It's, I don't care that Congress has said, you know, we're passing the bipartisan infrastructure law and making investments in green energy or the inflation reduction act and making investments in green energy. I don't want to do that. So we're going to stop all of those investments, investments that were made pursuant to a law passed by Congress. You know, I don't like what I call dei, whatever that is. And I think, you know, that has become, you know, something that is really just basic civil rights. I don't like basic civil rights laws. I'm going to call them dei, and anything that smacks of them throughout the government, I'm going to stop. And that doesn't matter whether Congress has passed laws created for them. I think that is the sort of crucial difference that we're seeing right now. A lot of speed, as in any new administration. But this is a President who claims to be unbound. Certainly you've talked about things like birthright citizenship, changing fundamental constitutional understandings. The President has no power to do that. Congress has no power to do that. But just asserting the power to do that, that I think that's the difference.
- [36:11]
Dahlia Lithwick
So I've been slightly snarkily describing executive orders as letters to Santa. Right? They're like, they're not binding on their face. They are directives to agencies about new priorities. But these are being treated, as you say, as kind of like a fiat, right from the King. And then the authority of that is cited to say, well, you know, the King said that we have to turn off the taps on this or that or we have to end DEI wherever we find it. And so I would love you to just tell me really explicitly in a normal administration what an agency would do with a really broad, sweeping eo. In other words, what would the regular procedure be to try to effectuate something? Because as you said, President Biden had some big swing eo.
- [37:04]
Sam Bagenstass
So usually first, and this has been the case since the Kennedy administration, before the EO were to go out, the Justice Department would review it and make sure that there was actually authority to do the things in the EO that the President has authority to tell the agencies to do whatever the President's telling the agencies to do, and that the agencies would have authority to carry it out. And, you know, that clearly hasn't happened here. I mean, even if DOJ has looked at these EOs, clearly there are so many provisions where there's no authority that they're just not applying the approach that they've undertaken since President Kennedy. So, you know, that's number one. Usually when you get an executive order. And I've been on both sides of this process, both the drafting of them in the White House and also receiving end at an agency. When you get an executive order, you look at it and you say, okay, well, so this is the President telling us that we have to apply our statutory authorities consistent with a particular policy. What room does the statute give us? What room has Congress given us to do this? How Hard would it be to implement these things? Let's figure out a process for trying to implement the President's policy consistent with what Congress has told us. You know, what we're seeing right now is this just incredibly ham handed, reckless effort to take what the President said and just do it yesterday. You know, so president says, I don't like equity. I'm against, quote unquote, gender ideology. And so you have the apparatchiks throughout the government going through, you know, just with a control f looking for the word equity or looking for the word gender in any, any grant application, in any grant notice, in any program, in anything on a website and saying, okay, we're taking it down, we're taking the money back. We're not spending any more money on this because it's inconsistent with the edict about what's the right way to talk about things in the world. You know, I mean, that's, that's just not the kind of thing that happens in any functioning government. And like, we can talk a lot about norms, and I'm really happy to talk about past norms, but that's not the fundamental problem here. I mean, the fundamental problem here is we need a government that works the people through decades have elected officials who have passed laws that create a government to solve problems for the American public, you know, to make sure that people get healthcare, to make sure that people are protected against predatory actors in the economy, you know, and, and if what you do is come in and say, I'm just going to take that all down because I just don't like governance or I just don't like the words that people are using, then what that's going to do is mean that people are going to live shorter, worse lives. And you know, I think fundamentally that's the important thing. And we as a society have decided we want an effective government to protect people, to provide for people's needs, to make sure our healthcare system works, to build infrastructure, to prepare us for the next mixed economy. And all of this breaking of norms, why it matters is because it subverts all of those democratic decisions we've made through the years.
- [40:32]
Dahlia Lithwick
And maybe this goes without saying, Sam, but it's not just norms because it's also breaking of laws, right? I mean, it's also, as you say, some of these don't go by way of the Office of Legal Counsel the way they should have, right? There's a systematic failure to check if something is lawful. It's almost as though. So the presumption is not only have we kind of lifted off without looking at the norms. We actually don't care whether the law provides for this or not because we've decided that, you know, the President's priorities supersede that. But there's one other piece I want to talk about. The other paradox of this just implosion that we have seen in the last couple of weeks of the federal government is that they've made the choice to just shutter agencies the way you would do a hostile takeover where they just, just, they could have said to Congress, just turn off the lights. You know, we don't like usaid. We're not super fond of cfpb. Like they've tried to do this before, but instead of saying in some world in which they actually could do this lawfully, they just bring in this like unelected centibillionaire who just with a, with a bunch of guys and some code are just shuttering entire entities. And, and, and so I wanna flag some reporting on Thursday night that came out of Wired that says that, you know, Elon Musk promising, right, standing at the Resolute desk promising maximal transparency on the DOGE website, which it turns out is just being kind of run out of X. So I think it matters for our purposes. And I need you to help illuminate why that this is done entirely extra governmentally, Sam, because it's very fast and it's hard to catch that this sort of embodies a maximalist theory of executive power. But it's not confined to the agencies themselves. It's just a guy running around with no accountability in a non existent agency with a bunch of kids who may or may not have read only clearance. That is significant. But help me understand structurally why.
- [42:41]
Sam Bagenstass
Yeah, I mean, so I think it's of great concern for all the reasons that you've talked about and many more. I mean, so we have this very powerful individual, Elon Musk, who has very substantial business interests that relate to the federal government, who has been given the keys to the most sensitive systems within the federal government. He has been given the power to turn on and turn off particular payments to particular entities. You know, and he is using that in some ways as a blunderbuss just to shut down entire agencies. Which means, you know, we have examples of people who are providing aid to prevent infectious disease that could ultimately come back to the United States who are being stranded in potentially war torn areas because their money has been shut off for them. So precipitously we have this agency, usaid, being basically shut down, notwithstanding that Congress Created it. That's a big deal. The power to turn on and turn off these payments can be a tool of vindictive addictiveness and oppression, but also it can be a tool of corruption. Elon Musk is a major government contractor. He relies on government business and so do his competitors. Right. And so he is now taking the power without any accountability, without any transparency to decide, yeah, we're going to turn off the spigot on the competitors, we're going to turn on the spigot on these things. That is incredibly dangerous. And you know, the fact that at the same time President Trump is getting rid of the ethical checks, getting rid of the head of the Office of Government Ethics and appointing a political appointee, Doug Collins, his Secretary of Veterans affairs, as the acting head, trying to fire the special counsel who's designed to enforce the bar against using the government for political purposes, and again, appointing a political ally as the acting head. There, there, right? This is all of a piece of creating a massive risk of corruption and then hiding anyone's ability to find out what's going on.
- [44:57]
Dahlia Lithwick
And maybe it's also worth the gloss. Sam, Again, I'm trying to sort of think it through as a structural matter, but it's never quite clear if Elon Musk is acting in his capacity as head of fake government entity Doge or as, you know, billionaire entrepreneur. Right. And I think the eliding of the clean lines, right, Like, I think President Trump wasn't sure if Musk was meeting with Prime Minister Modi of India in his capacity as, you know, oligarch billionaire or in his capacity as government actor. And I think time and time again, just kind of going to your point about a lack of accountability, there is this slight whack, a mole move, which is, oh, no, I'm just doing that as a private citizen, except for when I'm just doing that as a government actor. Right. And that I think really chums up what should be clean lines of what government can and can't do.
- [45:55]
Sam Bagenstass
It's really a kind of three card money game. You know, the cards over here, know the cards over there. It's all a way. I think there is no distinction, right. I think what we have right now is an assistant president or a co president who is also a billionaire oligarch. And everything he's doing is serving, serving both interests at once. There's no reason to believe that it's not. And so the real concern is we have this government that's basically been taken over from within by a billionaire oligarch who is now going to use it perhaps to settle ideological scores, perhaps to settle personal scores, but also very much likely to advance his own personal interests. And the reason, again, you know, this is not just a matter of norms, this is a matter of laws. And the reason why we have these is not technical. It's to prevent exactly this sort of thing from happening. And what we're seeing instead is this effort to sort of skirt or arbitrage all of these ethics principles in a way that creates very, very serious risk of very, very serious corruption.
- [47:07]
Dahlia Lithwick
We are going to take a short break, but before we do, I want to point you towards Slate's excellent LGBTQ podcast and their really important episode about the trans ban in the military. This week, Christina Catterucci talks to Sasha Bookert, who is council and Non Binary and Transgender Rights Project director at Lambda Legal, and Garret Morgan, a trans lieutenant commander in the Navy. Sasha explains Lambda Legal's case challenging the band and the broader constitutional implications, while Garrett shares shares her professional experience navigating, shifting policies, coming out while in service and the uncertainty that trans service members continue to face. Highly recommend. You can search outward wherever you get your podcasts, or you can just go to slate.com podcasts and find it there. We'll be back in a moment.
- [48:04]
Unknown
Planned Parenthood Federation of America exists so that all people can get access to the sexual and reproductive care and education they need to make informed decisions about their health. More than 2 million patients a year rely on the services Planned Parenthood health centers provide, like STI testing and treatment, birth control, gender affirming care, abortion, cancer screenings, and so much more. Right now, all across the country, reproductive health care and rights are under attack from public officials who are out of step with the will of the vast majority of Americans. The constitutional right to abortion, control of our bodies and the health care we need has been stolen from us. And now politicians in 47 states. Yes, 47, have introduced bills that would block people from getting the sexual and reproductive care they need. Planned Parenthood knows that equitable access to health care, including safe, legal abortion, is a human right. Right now, Planned Parenthood needs your help to protect access to health care. Donate today by visiting plannedparenthood Dot.
- [49:09]
Dahlia Lithwick
And we are back now with Sam Bagginsdoss. So, Sam, I think the primary reason I wanted to talk to you this week is because one of the things we're learning, and I've heard you say it elsewhere and in your substack, is that we're dealing with layers and layers of abstractions. You know when government is working, you don't know about it. Right. You have no idea when the law is working, you don't actually see it. And so I think we have what I want to think of as a kind of abstraction sandwich here, where on the one hand you have the law and the rule of law, which we think is immutable and fixed. Right. We think it's this substantial fortress. It's not. And then we have the federal government, which we think is working along, doing its thing, and make the mistake of thinking that it's limited to the brick and mortar buildings, right, Where Social Security and Medicaid and the mail get sorted. I think what we are learning now is that both of those things are ephemeral. They're really ephemeral. And while the federal government is comprised of more than a million workers and many, many contractors and employees, by the way, who do their jobs because they love them and don't get paid a ton of money, I spoke to someone the other day who took a huge pay cut to work in government. They believe in the mission they want to get done. The things that you suggested earlier about health and clean air and international diplomacy, many of those people lost their jobs this week, lost their healthcare, lost their dental. Not sure they can pay rent. And nobody quite seems to understand the order of magnitude of that thing. So I really would love for you, as best as you can, Sam, as somebody who's worked in and out of government for so long, to try to make these two very, very, very inchoate ideas about both government and law as tangible and material as you can for listeners who haven't really thought about this the way you have.
- [51:15]
Sam Bagenstass
Yeah, no, and I think that's exactly right. I really like this idea of an abstraction sandwich. It is too often that people talk about this as, you know, bureaucracy or the government or the rule of law. And what's really going on here is we come together as a people in our system operating in the best, most democratic way we can. We elect people to adopt policies to solve problems, and they adopt those policies through laws. That's the law that we're talking about in the rule of law. And so what does that mean? What that means is that hospital down the street from you where if you get sick, you're going to have to go, that relies on all of the people working at the Department of Health and Human Services to make sure that they can pay their bills, to send them checks, to pay their bills, to make sure that they are providing you safe health care. Right. All of that, if that breaks down, if we lose the highly dedicated career people within the federal government, the civil servants who are now losing their jobs, estimates are, with this mass layoff, we're talking about potentially hundreds of thousands of career civil servants who are incredibly dedicated, highly skilled, losing their jobs. If they can't do their jobs, then you have to worry that that hospital down the street from you or in your town is going to close or is not going to provide you appropriate care. And this is particularly a problem, by the way, in rural areas around the country. I, you know, I live in Michigan. We have a lot of rural parts of Michigan which have very substantial gaps in healthcare coverage that it's the government filling. The government is paying to be able to work in those areas. And if the people running those programs go out of work, then the doctors, the nurses, the folks you're relying on in these rural areas are going to not be there. If you look, there was a terrific article on Friday in the New York Times about the effects on farmers around the country who are relying on the actions of the Department of Agriculture and other parts of the government to help them finance really important state stuff to enable them to continue to grow crops as our climate is changing. And you know, someone said in that article, this isn't hippie stuff. I mean, you know, this is not like some group of 20something college students who are just thinking pie in the sky about the world. This is real farmers who are recognizing that unless they get help, they're going to go under and that's going to be bad for them, that's going to be bad for our economy and that's going to be bad for what we pay for food if farmers go under. And it just, it's like this over and over and over again. We came together as a country. We elected people who passed laws saying we're going to fix these problems. And then along comes Donald Trump and says, you know, for whatever reason, I don't like this, or Elon Musk says, for whatever reason, I don't like this. I'm not making enough money off of this. Let's figure out something that is more, more like it's going to affect my bottom line. Let's invest more in AI and less in this. And then all of those decisions made by the people, made by the people's representatives are just wiped away. So when you talk about rule of law, I mean, that's really fundamentally what we're talking about. When you talk about government, that's really fundamentally what we're talking about. And I could tell 200 stories like that.
- [54:50]
Dahlia Lithwick
I wonder if you could talk just for a beat, Sam, in your inside, outside substack this past week, you explained, I think, in a very, very, very deft way what it was that the decision to decimate the nih, the National Institutes of Health, by way of the limit on, quote, unquote, indirect costs. Right. Looks like another good. You know, we're just slashing and cutting and trimming and making efficient. But the actual effect that this, like, take a little off the sides, trim would do across the boards. Can. Can you just illuminate for us what that was?
- [55:25]
Sam Bagenstass
Yeah, and so it's not even a little off the sides. I mean, we were talking about the Trump regime that took over NIH, proposed. Not just proposed, promised to implement immediately a $4 billion cut in the amount of money that it is sending to hospitals, universities, research institutions around the country to pay for research. And so this was about. About, you know, this thing that. That sounds really wonky. Indirect costs. Basically, all that means is the NIH pays directly for research. You know, so it pays for the people working on the research. It pays for, you know, whatever materials you're purchasing, the test tubes for this particular research, the reagents that you're using. But, of course, that's not all the costs of research, because research has to take place in a building. Research has to take place in a building where you have to pay for things like, you know, heating and air conditioning and lights, and you have to. To pay for other kinds of overhead. And so what the government has consistently done is said, we're going to pay for a portion of the overhead. By the way, it is substantially less than the overhead that actually is attributable to these contracts. But, you know, it looks like a lot of money on a balance sheet. The hospitals around the country that do this kind of research often are in very, very tight financial conditions and a hole in their budget, you know, of $4 billion across the country that was imposed on them over a weekend, really threatened to shut down hospitals and other institutions around the country. Now, court stepped in immediately. I just want to say this is another example of this problem that you could talk about as rule of law, or you could just talk about as this president saying he's not bound by what the people's representatives voted for. Because back in the first Trump administration, Trump proposed to make a cut just like this. And the reaction in a Republican Congress was so overwhelming that Congress passed a law saying, you can't do that. And Instead of following that law, Trump's regime at the NIH acted to defy that law, which is why courts stepped in so quickly. But it wasn't just courts. And I think this is a really interesting and important point. This is not ultimately a red state, blue state issue. This may be something Trump and his ideological friends and Elon Musk, with his sort of blinkered view about the public good, think is important. But it was Senator Katie Britt from Alabama, not a liberal, I mean, a quite conservative senator from Alabama, who was ringing the alarm the loudest, the quickest about this, because she understands that hospitals in her state and universities in her state, big employers, would be shut down by an action that was so reckless as what the Trump administration tried to do. Even Susan Collins mustered a little bit of outrage about this. So I think that we're going to see that these actions that Trump is taking, they may be feeling really good about themselves right now, but the effects are effective effects all across the country on people who voted against Trump and on people who voted for Trump. And I think that that's very important.
- [58:55]
Dahlia Lithwick
One of the things that really walloped Trump in the first go round was the Administrative Procedures act, which nobody knows anything about, but time and time again, courts were essentially saying, you didn't follow the steps. And so he lost so frequently on that basis. And I would love it if you could just explain what the APA requires and why they don't just go through the motions of adhering to it.
- [59:22]
Sam Bagenstass
Yeah, I mean, so a couple of things. Apa, it's a statute that was passed in the Truman administration right after Franklin Roosevelt had died, basically. And it was, I think it's fair to say, a conservative law that was designed to respond to what people saw as Franklin Roosevelt's very energetic use of the government and say, look, we need some regularity here. We need some process here. So you can't just, as the president, act like you get to decide on what the policy of the government is for all time. What you have to do is go through certain steps. So if you're going to do something that is going to affect a lot of people, something that is defined as a rule under the statute, well, what you usually have to do is tell the world you're about to do it, give them a chance to respond, and then take seriously what their responses are. So you get public comment, you consider the public comment, and then considering that comment, you issue a rule. And the rule has to be consistent with the law, and it has to be according to the apa not arbitrary and capricious. And so those are the words, arbitrary and capricious. And, you know, we now have, over the course of decades, a very robust body of law on what arbitrary and capricious means. And it basically, basically means something that is pretty commonsensical. Look, you got to consider the significant issues with whatever policy you're adopting. What are the effects going to be? Are you really taking this policy in a way that's going to maximize the positive effects while softening some negative effects? Are you taking account of the way people have relied on a past policy? When you're changing policy? None of this says a new president. President can't make new policy so long as it's consistent with the underlying statute. That's fine. It just creates a process by which the president is, and the president's appointees are considering sort of all the relevant interests and giving people notice about it, particularly when we're talking about a big change that's going to affect a lot of people. And that is something that obviously, every president gets sued under the Administrative Procedure act and wins some, loses some, some. In the first Trump administration, some of their very signature policy efforts were struck down by the courts under the Administrative Procedure act, including the Supreme Court. So the effort to add a citizenship question to the census, where the Supreme Court, a very conservative Supreme Court, said, look, you might be able to add a citizenship question to the census, but you said you're doing it in order to enforce the Voting Rights Act. That's obviously not the reason why you're doing it. If anything, this undermines the Voting Rights Rights Act. It's arbitrary and capricious. When the president tried to get rid of the DACA program for dreamers, again, what the Supreme Court said is, look, you might be able to do that, but you didn't take account of the ways in which people have been relying on DACA for years and years and years. And you didn't think about ways that you could soften the effects on those people with a slightly differently crafted policy. This is arbitrary and capricious. And I think a lot of us thought that in a second Trump administration, they would be smarter about this, you know, that, that they would be more careful. It would slow them down a click, but it would make their actions much more defensible in court. And I think what you're seeing right now is sort of a war within the administration. So there are folks like the legalists, like Russ Vogt, who's the new head of OMB, who is the brains behind Project 2025. His general counsel at OMB, Mark Paoletta, has the position that I held in the early part of the Biden administration. He's one of the people, if you recall that oil painting that Harlan Crowe has sitting with Clarence Thomas. They're all sitting around smoking cigars and feeling very good about themselves. Mark Palette is sitting right next to Clarence Thom. There they are, the people who were very carefully crafting this strategy to tee up court cases that they felt like they could win and really enhance the power of the president. But now along comes Elon Musk, who has been handed the keys to the government. And his whole credo is this Silicon Valley credo of move fast, break things. Things very much includes the law. The analogy I give a lot is Uber, which went into a lot of c, tried to create facts on the ground, totally heedless of any legal requirements, any legal restrictions, and then said, what are you going to do about it? And I think what that does in this context is it really gets the backup of a lot of judges, including not just historically liberal judges. And I think we saw that in the cases where Donald Trump lost in the first administration. And I think we may see that even more again now. The courts are more conservative now. They're filled with a lot of appointees of Donald Trump from his first administration. I don't think the courts are going to stop all the bad stuff that Trump is doing. I don't think they're going to stop all the stuff that I think is really illegal that Donald Trump is doing. But I think what Trump is doing now, and particularly the reckless, heedless way that Elon Musk is rooting through the federal government, breaking things things, is sort of maximizing the chances to stop or slow what they're doing through the courts.
- [65:12]
Dahlia Lithwick
I want to get to the courts in a minute, but I just need to pause for one quick second and ask you, in your posture as con law professor, to really reflect with me that it's easy to blame all of this hollowing out of the administrative state, the claims about the deep state, the claims about about government inefficiency. It's easy to lay all this on the doorstep of Musk and Trump. But of course, this has been a move that we've seen at the US Supreme Court for decades. Right. In some sense, this is the Neil Gorsuch playbook. And you know, whether it's Chevron, Loper Bright, the major questions doctrine, this is not actually, if you're a court watcher new and I think that Some of the stuff that you said up top, Sam, about, about what that means in terms of expertise and science and consistency across administrations and the fundamental work of solving problems, I really feel like we need to take a moment and say the Supreme Court is as much the author of this misery in some sense as this administration.
- [66:20]
Sam Bagenstass
I think that's right. And I think that's a crucial reason why I say the courts are not going to stop everything that Trump is doing, even everything that I think is unlawful. We have seen in this Supreme Court for years now and very much in the lower court appointees of Republican presidents, a massive attack on the career civil service, on expertise within the administrative state, a refusal to admit that one of the really democratic aspects of the administrative state is we as a people recognize and our elected representatives have recognized and passed laws, recognizing that the problems of the world and the economy are really complicated. And if we want the policies that we have decided on as a people to be adopted, and we want a government that protects us against predatory people in the economy or protects us against emerging threats from pathogens and pandemics, we have a bird flu that is circulating around the country right now. For example. We had Covid, if we want effective responses to that as a Democratic matter, we have to, to some extent empower experts within government to act. Obviously, we want to have checks, and Congress has adopted various checks on that. But we've seen consistently from this court a sort of rejection of the idea of governance at all. And so I think that is very much a trend that people like Trump and Musk are relying on. I mean, I think you saw that in the run up to the inauguration when Musk and Vivek Ramaswamy were saying, we're going to set up Doge. And this is perfect because what we're doing is basically carrying out out the agenda that the Supreme Court adopted and created for us in cases like Loper Bright. So I think at a certain level of generality, that's exactly right. I think it goes back even farther because the Supreme Court, they are political actors. They're all political appointees. The folks who were appointed, Neil Gorsuch, even going back to folks like John Roberts and Sam Alito, these are all folks who were appointed by president presidents who themselves had an anti regulatory agenda. And they were put there in part to carry out that agenda, you know, with a particular jurisprudence that's anti regulatory. So, yeah, I think what we're seeing is not a clean break from either the Supreme Court or the Republican Party in the past. What we're seeing, though, is a massive acceleration of a lot of trends that were already implicit in and in many ways explicit in what they'd been doing.
- [69:18]
Dahlia Lithwick
We're gonna land on this constitutional crisis question, Sam, because I think you've made the point that there's two warring camps at work. There are the legalists and then the straight up hostile takeover people. And the legalists just wanna have a big old fight that lands up at the court about the unitary executive and big principles and the monarchic view of the presidency that they've been pushing for a very long time. And then we just. I don't think Musk cares about that. I think he just cares about getting his Teslas on the streets under the guise of a government contract. And I think part of the answer to is this a constitutional crisis? Is this observation that you've made that on that one part of the split screen, you are seeing this administration not walk over the line, right? A court order comes down, they try to comply, they modify conduct, they say, oh, you know, your mistake, misunderstanding our memo. And then on the other side of the screen, they just don't care. They just don't care. And I would love for you, if you can, answer the question of have we landed in a constitutional crisis? Given that both of those moves are kind of pulling in opposite directions, Sam, and that we can pay a lot of attention to what's happening in courts, but what's not happening in courts in some ways is much more salient. Now, is the right question even the question of, are we in a constitutional crisis? Because when you stand up in a court and you are bound to tell the truth and then you slightly modify your conduct, that looks like maybe the courts are holding and they're not stepping over the line. But that's only half the story as you're telling it, right?
- [71:04]
Sam Bagenstass
Yeah. And I think that's super important. I do think there comes a point where some of these words take on a talismanic significance that's greater than their actual significance. And I think we might have hit that point with Constitutional crisis. Yes. Everybody's asking me this question. I don't know what these words mean at this point. Here's what I can say. I mean, one implicit in what you say is a very, very important point, that the Constitution and whether our constitutional system is working is about a whole lot more than the court and about whether court orders are followed. Because we know, and I can tell you, as a former executive branch lawyer, I definitely saw this, a huge part of the law, probably the overwhelming majority of the law that applies to the executive branch is not something that's ever going to end up in court, because our courts are limited in the kinds of cases they hear. But if you take seriously the structure created by our Constitution, that Congress is the entity that passes laws. And if the president doesn't want to follow a law, the president's job is to go to Congress and get Congress, Congress to pass a new law, changing it. Right. And this president, by the way, has majorities in both houses of Congress. He could do that. If you take that seriously. If you take seriously that it's Congress that has the power of the purse. And you know, that is a fundamental principle going back to the founding of our Constitution, even before the founding of our Constitution in British practice, this is something that Parliament worked really hard to seize from the king and we adopted in our practice. If you take that seriously, seriously, then what you're seeing right now is a fundamental disregard of basic constitutional principles. You have a president who's not just saying, look, I disagree on this. I read the law differently. I think I have authority here. It's, you have no authority over me. You may pass all the laws you want. I'm only going to follow them if they're consistent with my policy. They that is fundamentally anti constitutional and that has nothing to do with courts and court orders. I do think that in the cases that get into court, they're going to bluster a lot. They're going to try to intimidate the courts into thinking that their orders won't be followed, to try to get the courts to back off on the orders they issue. They're going to try to intimidate opponents in the world into thinking that fighting against this administration doesn't matter. So why try? And I think there is a real defeatism. It's a little less than it was a month ago, but there's still a lot of defeatism among the people who don't like what Trump is doing. And I think he's trying to feed that by very cutely suggesting he might violate court orders. But in fact, I think they're going to comply with the orders of courts. But I don't think that means that our constitutional system is safe or we are in a healthy, healthy constitutional moment, because I think we still very much have a president and all the folks working for him among his political appointees and certainly Elon Musk, who believe that they are not bound by what Congress, the people's elected representatives, have done. And I think that's very anti democratic and anti constitutional.
- [74:35]
Dahlia Lithwick
Sam, this is why I wanted you on the show because I've been trying to figure out why is this a constitutional crisis is only a tiny piece of the analysis. And I think you've just explained it. It's a constitutional crisis if you're only focused on what's happening in the courts. But what's not getting swept into court is the part we have to talk about. That is, as Kim Lane Shepley suggested a couple of weeks ago on this show, how other coups happen. And to say the parts of the coup that we are picking apart in a courtroom is of the story misses everything I think that's happening backstage. This is immensely helpful. With that said, I think we're both agreeing and I want to be really explicit. What happens in the courts is essential. It's really important and it is really important to support. Right. Because the courts can't do it themselves. But that we are going to have to pan way, way, way, way back and look at this in a way that isn't quite cramped enough to fit into that very, very, very narrow question of have we reached constitutional crisis yet? Right.
- [75:48]
Sam Bagenstass
Absolutely.
- [75:50]
Dahlia Lithwick
Sam Bagenstass has held multiple government positions. Most recently from 2022 to 2024, he served as general counsel to the Department of Health and Human Services. He is back to teaching the law. Thank you, Sam. I know know you are crazy busy, but this really, really was helpful. Thank you for being here.
- [76:12]
Sam Bagenstass
Thank you so much for having me.
- [76:19]
Dahlia Lithwick
That's all for this episode. Thank you so much for listening in. Thank you so much for your letters and your questions. You can always keep in touch with us@amicuslate.com or you can find us@facebook.com Amazon Amicus podcast coming up for our treasured slate plus members, I'm gonna move from the host chair to the guest chair for a conversation with what Next's Mary Harris, who's asking me about one of the main characters on the jurisprudence beat this week, Eagle Ed Martin, the acting U.S. attorney for the District of Columbia. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus 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's senior producer. Our producer is Patrick Fort. Hilary Frey is Slate's editor in chief, Susan Matthews is executive editor, and Ben Richmond is is our senior director of operations. We'll be back with another episode of Amicus next week.
- [77:39]
Harry Littman
Hair thinning can happen for so many reasons, whether it's stress or hormones or anything.
- [77:45]
Sam Bagenstass
At Nutrafol, we've learned that real change.
- [77:47]
Dahlia Lithwick
Starts below the surface.
- [77:49]
Sam Bagenstass
Surface.
- [77:50]
Harry Littman
Our hair growth supplements take a whole body approach and target the key root.
- [77:54]
Dahlia Lithwick
Causes of hair thinning.
- [77:55]
Harry Littman
So you can see visibly thicker, stronger.
- [77:57]
Dahlia Lithwick
Hair in three to six months.
- [78:00]
Unknown
Hair growth starts from the inside at neutrophil.
- [78:03]
Dahlia Lithwick
Com, that's N u T R A.
- [78:06]
Harry Littman
F O L Com.