Amicus Podcast Episode Summary: "The Gangster Presidency"
Amicus with Dahlia Lithwick | Law, Justice, and the Courts
Episode: The Gangster Presidency
Release Date: February 15, 2025
Host: Dahlia Lithwick
Guest: Harry Littman, Former U.S. Attorney for the Western District of Pennsylvania
Additional Guest: Sam Bagenstass, Frank G. Millard Professor of Law at the University of Michigan Law School
Introduction to the DOJ Crisis
In this pivotal episode of Amicus, Dahlia Lithwick delves into a seismic upheaval within the U.S. Department of Justice (DOJ). The discussion centers around a series of unprecedented mass resignations triggered by allegations of corruption and political interference.
Mass Resignations and Their Significance
Dahlia opens by describing a "Thursday afternoon massacre" within the DOJ, where key officials resigned rather than comply with directives to dismiss corruption charges against New York Mayor Eric Adams. Specifically, six lawyers, including Danielle Sassoon, the interim U.S. attorney for the Southern District of New York, stepped down in protest (00:56).
Harry Littman emphasizes the gravity of the situation:
"This is humongous beyond anything I think in DOJ's history." (01:04)
He elaborates on the conflict between upholding the rule of law and yielding to political pressures, highlighting changes in DOJ leadership under Emile Beauvais that have exacerbated the tension (03:00).
Historical Comparisons
Drawing parallels to historical events, Dahlia and Harry compare the current DOJ crisis to the infamous "Saturday Night Massacre" during the Nixon administration and the 2000 showdown involving Acting Attorney General Jeff Rosen. Harry notes the lack of immediate resolution, citing the ongoing cascade of resignations as an indication of deeper systemic issues (04:30).
The Crackdown from DOJ Leadership
A critical moment in the episode is the reading of Hagan Scotten's resignation letter (08:00). Scotten, a John Roberts clerk, articulates his refusal to allow political maneuvers to override legal and ethical standards:
"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." (07:56-08:00)
Harry discusses how Beauvais' directives to dismiss indictments without regard to facts or law undermine the DOJ's foundational principles:
"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." (05:00-06:00)
The Role of Elon Musk and Administrative Breakdown
The conversation shifts to the influence of Elon Musk and his role in the administration's efforts to dismantle federal agencies under the guise of "improving efficiency." Dahlia outlines the reckless shutdowns of agencies like USAID, which have led to severe human costs, including untreated HIV patients and halted cancer trials.
Harry Littman warns of the dangers posed by Musk's "Silicon Valley credo of move fast, break things," which disregards legal and ethical boundaries:
"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." (44:57)
Implications for Rule of Law and Constitutional Principles
Sam Bagenstass joins the conversation, providing an academic perspective on the structural implications of these actions. He underscores the erosion of the rule of law and the Constitution's foundational principles, stressing that the President's refusal to adhere to laws passed by Congress is fundamentally anti-constitutional.
Sam Bagenstass states:
"This president...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." (71:04)
He further explains how the administration's disregard for the Administrative Procedure Act (APA)—a cornerstone of regulatory compliance—has led to arbitrary and capricious executive orders that undermine democratic governance (59:22).
Executive Orders and the Administrative Procedure Act
The discussion delves into the misuse of executive orders (EOs) by the Trump administration. Normally, EOs are subject to rigorous review to ensure they align with statutory authority and undergo public consultation. However, the current administration bypasses these safeguards, implementing sweeping changes without legal backing or transparency.
Sam Bagenstass critiques this approach:
"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 we're seeing right now is this just incredibly ham-handed, reckless effort to take what the President said and just do it yesterday." (37:04)
The Role of the Courts
Dahlia and Sam explore the judiciary's role in responding to these administrative oversteps. While courts can issue orders to enforce compliance, they face significant challenges in curbing executive overreach without comprehensive legal reforms.
Harry Littman predicts a "morality play" as courts scrutinize the DOJ's actions:
"There are folks who are willing to take an oath and they will not lie. Just really basic stuff." (08:15)
Sam adds that the Supreme Court's conservative roster further complicates the enforcement of administrative norms:
"We have seen in the lower court appointees of Republican presidents, a massive attack on the career civil service, on expertise within the administrative state..." (69:18)
Consequences for Government Functionality
The episode highlights the tangible impact of these administrative failures. With hundreds of thousands of federal civil servants losing their jobs, essential services like healthcare, agriculture, and infrastructure are at risk. Rural areas, already grappling with limited resources, face the imminent threat of losing critical support systems.
Sam Bagenstass emphasizes the broader societal implications:
"This was about... 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." (54:49)
Concluding Thoughts: Is This a Constitutional Crisis?
In assessing whether the current turmoil constitutes a constitutional crisis, Dahlia and Sam offer nuanced perspectives. They agree that while judicial interventions are crucial, the core issue lies in the executive branch's blatant disregard for constitutional checks and balances.
Sam Bagenstass concludes:
"You have a president who's not just saying, look, I disagree on this. I read the law differently... They 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." (71:04)
Dahlia encapsulates the urgency of addressing these multifaceted threats:
"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." (74:35)
Final Remarks
Amicus underscores the existential threat posed by the current administration's actions to the U.S. legal and governmental framework. Through incisive analysis and expert insights, Dahlia Lithwick illuminates the critical juncture at which the nation stands, urging listeners to recognize and respond to the erosion of democratic principles and the rule of law.
Notable Quotes:
- Harry Littman (01:04): "This is humongous beyond anything I think in DOJ's history."
- Hagan Scotten (07:56-08:00): "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."
- Harry Littman (05:00-06:00): "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."
- Sam Bagenstass (37:04): "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."
- Sam Bagenstass (71:04): "This president...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."
Disclaimer: This summary is based on the provided transcript and podcast information. For a comprehensive understanding, listeners are encouraged to subscribe to Amicus on Apple Podcasts, Spotify, or Slate's website.