Mark Joseph Stern (4:02)

Oh, thanks so much for having me. I really appreciate the chance to talk with you.

Dalia Lithwick (4:07)

And I thought if it's okay, we could just start with Jack Smith. On Tuesday morning, in the wee hours, we finally got to see the first volume of his report, the one that concerns the events of January 6th and Donald Trump. What struck you most about the tone of that report? There was a weird back and forth between Smith and Trump's lawyers around the report and then the whole will they, won't they? Drama about, you know, what Aileen Cannon's gonna do and what the 11th Circuit's gonna do and what the Supreme Court might do. What's your kind of top line takeaway from this entire slightly sad trombone end of the story?

Mark Joseph Stern (4:50)

So I don't think there were many surprises in the report for those of us who've been following along with the litigation and with the House Select Committee and the like. And one of the interesting things to me is that although, you know, Trump's lawyers filed this angry response to the report, they didn't actually deny much about what the facts were that were in the report at all. That is, they didn't say, oh, Donald Trump had no knowledge of the election being lost or the like. They just said the report shouldn't have been published. And I think, you know, history will look back on this and be very worried that you had somebody who really sought for the first time in American history to stop the peaceful transfer of power from one party to another, which has happened dozens of times over our history. The one part of the report that talked about things that I hadn't really focused on so much before the report is the decision not to also charge Donald Trump with insurrection, in addition to the things that the report basically charged him with, which was fraudulent attempts to prevent the counting of votes and to prevent the counting of the electoral votes as well.

Dalia Lithwick (6:07)

I actually want to. I wanted to ask you about that, Pam, because there's kind of two ways to read the decision not to charge him with. The thing that we all saw, I felt like we all saw, which is the violent incitement.

Unknown (6:21)

Right.

Mark Joseph Stern (6:22)

But I think, you know, Jack Smith's report says two things about this that are important. One is that that insurrection statute has been used so infrequently that there's not a lot of guideposts on what exactly you have to prove and like. And the other, which I found really fascinating was there's some doubt about whether if you're not trying to replace the existing government, it can be insurrection. And at the time that he's doing all of these things, of course, he's not trying to replace the existing government. He's trying to prevent a new government from coming into power. And so it's uncertain whether that's an insurrection. You know, Mark Graeber, who's a historian, has wonderful discussions of what insurrection meant that I think are a response to that. But again, it's kind of uncertain. And if you're going to try the former president of the United States for a crime, you want to have your case really dialed in and buttoned down. And so I think, you know, Jack Smith went with things that he thought were slam dunks, and I think they would have been if this case had ever gone to trial.

Dalia Lithwick (7:25)

Yeah. I think my reflection on this in some ways was, you know, in reading that, like this was just there's not a ton of case law. We don't fully understand the precedent. Like, this is just such a rare thing that this is, in a sense, you know, our complaint about all the law of Donald Trump is always that it's kind of good for one ride only because he's him. Right. That's his defense half the time. And this did feel like a prosecution editorial faint at that same problem, which is this is just so singular, we don't actually have a template for this. And I. It always makes me anxious when the law of Donald Trump's singularity kind of goes in both directions. But I think you're quite right. I think Jack Smith is a really savvy prosecutor and he wasn't going to charge something that he didn't feel like he could prove, like, end of story. This isn't gutlessness, this isn't milquetoast. This is not his job. And I think, like the people who are frustrated that it wasn't more than it was, I think don't fully reckon with what Jack Smith is.

Mark Joseph Stern (8:29)

Yeah, I mean, I always used to say in class, you know, in both my con law class and sometimes when I taught the law of democracy, that one of the pieces of the Constitution that we didn't we sort of take for granted, but that's really kind of critical to American democracy is we have four year fixed terms for the president. And so we have had an election every four years. We've had elections during the Civil War. That's where we got absentee ballots from, for example, as we had to have the absentee ballots so the Union troops could stay in the field in 1864 and reelect Abraham Lincoln and win the war. We had elections during World War II in 1944. You know, the Brits didn't have an election. And so we've always just assumed as the sun rises in the east every day, that every four years we have an election and whoever wins the election goes into office. And so we didn't have a whole lot of ways of responding because before Donald Trump, I don't think it ever occurred to anybody that we'd hold an election, the results would be clear and somebody would just refuse to move out.

Dalia Lithwick (9:35)

In some sense, the fight about this volume of Jack Smith's report was not a fight about what happened. It was a fight about whether we got to see it. And it feels like there is a subtle pivot here that's really quite scary if you think about the fact that, as you said up top, Pam, there's not much in that report we didn't see with our own eyes on January 6th. We didn't hear about at the impeachment hearing, we didn't hear from again at the House Select Committee presentations we didn't read about in Jack Smith's kind of extensive briefing that was released in the fall. This was layer upon layer upon layer of things we knew. And yet despite that, the effort was to quash it. And I'm so curious why you think that is like, it's a very strange move to say the thing that you all saw multiple times you're not gonna get to read about.

Mark Joseph Stern (10:31)

I think it is in part that he has just a scorched earth Roy Cohen approach to thinking about using the law, which is you just fight on everything because not to fight is to surrender. And of course he has this attitude that you just fight on everything and you deny everything. And so we end up in this kind of Groucho Marx. Who are you going to believe, me or your lying eyes? We all saw this stuff on television. I mean, to say it was a day of love. Look at the film clips. That's not love.

Dalia Lithwick (11:08)

Right? What you're saying, I think is that there is a piece of this that isn't just power and control and erasure. It's also sort of the classic authoritarian, like doubt yourself all the time. Like doubt yourself. You know that the Hannah Arendt, like, I just want you to be so confused that you don't believe anything.

Mark Joseph Stern (11:28)

Well, it's what, it's what Steve Bannon says. They want to flood the zone with shit.

Dalia Lithwick (11:32)

Yeah. I do want to ask about the news that TikTok CEO is coming to the inauguration. As I said up top, we've got Musk and Bezos and Zuckerberg and you know, there's nobody in Big Tech who isn't coming. And we're in this just very strange moment, Pam, where, you know, Big Tech has acted in this like chest thumping alpha male, like, you know, women energy killing America. And the ripple effects just that we're seeing in the last couple of weeks, you know, in terms of, of the fact checking policies to DEI policies, there's.

Mark Joseph Stern (12:10)

Something weird about we need to be more male. So we're all gonna get down on our knees and bow to Donald Trump. There's a contradiction there.

Dalia Lithwick (12:18)

It's very strange that this is how we show our alpha male by like genuflecting to sort of an aging despot. But I do kind of wonder again, it's hard not to contrast this to like democracy dies in darkness in 2016 and the very performative we are arraying ourselves against, you know, authoritarianism. And now we have this strange, as you say, like we're bowing to kiss the ring over and over. There is some explanation for this beyond just, you know, the oligarchs are going to oligarch and I can't tell if it's my sort of dawning theory of this, Pam, is that we keep thinking that we're in a war against lawlessness and totalitarianism and authoritarianism. But we're actually like just in a war against truthful information now. Like, that's the war. We keep thinking this is like a legal problem or a structural problem. It's a truth problem.

Mark Joseph Stern (13:19)

Yeah. And it's a psychology problem more than in that sense, more than a law problem. That is why people who have every reason to care about truth have just ceased to do that. You know, I think some of it is that we now have a media that in large part is part of conglomerates that have lots to lose from the government. I mean, you know, the ABC settlement with Donald Trump is stunning. But why? Why is that settlement there? It's not ABC News pulling the strings, it's Disney. Or, you know, why is Jeff Bezos, who owns the Washington Post, seeing this hemorrhage of reporters and critical thinkers at the Post? It's not because the Post wants to do that. It's because Amazon has all these cloud computing contracts with the government and people are worried that Donald Trump, who announced he's going to be your vengeance, is actually going to be his own vengeance.

Dalia Lithwick (14:22)

More in a moment with Professor Pam Karlan.

Unknown (14:27)

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Dalia Lithwick (15:31)

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Mark Joseph Stern (17:06)

So it is not same old, same old in the sense that the Senate, I think, has given up on the idea and the Republicans in the Senate have given up on the idea that they actually have a role to play in confirmation that involves kind of critically asking questions. I mean, I don't see how anyone who takes defense policy seriously can think that Pete Hegseth is qualified to be the secretary of defense. And yet instead of allowing for some questioning, what you saw is a combination of Senator Wicker not allowing a second round of questioning at all, as if four hours is enough to deal with what close to trillion dollar budget, you know, thousands of people in a world that's increasingly dangerous. And, you know, Jane Mayer's story about this talks about the huge amount of intimidation, I mean, that we've never seen before on a Cabinet nomination to prevent people from talking about the various ways in which Pete Hegseth is not qualified temperamentally or experientially for running the Department of Defense. You know, in the Pam Bondi hearing, what we saw is Pam Bondi, when asked, you know, did Joe Biden win the 2020 election? She won't answer that question.

Pam Bondi (18:31)

Are you prepared to say today under oath, without reservation, that Donald Trump lost the presidential contest to Joe Biden in 2020?

Pamela Carlin (18:40)

Ranking Member Durbin President Biden is the president of the United States. He was duly sworn in, and he is the president of the United States. There was a peaceful transition of power. President Trump left office and was overwhelmingly elected in 2024.

Mark Joseph Stern (18:59)

And the reason she won't answer that question is if she answered with the true answer, which she knows I mean, she's smart enough to know this. It is that Joe Biden won the 2020 election. But if she says those words, she will not be the Attorney general. And so instead she says, well, Joe Biden is the president. And then she says, well, you know, I saw some things happen.

Pam Bondi (19:20)

Do you have any doubts that Joe Biden had the majority of votes, electoral votes, necessary to be elected president in 2020?

Pamela Carlin (19:27)

You know, Senator, all I can tell you as a prosecutor is from my firsthand experience, and I accept the results. I accept, of course, that Joe Biden is President of the United States. But what I can tell you is what I saw firsthand when I went to Pennsylvania as an advocate for the campaign. I was an advocate for the campaign and I was on the ground in Pennsylvania and I saw many things there. But do I accept the results? Of course I do. Do I agree with what happened? And I saw so much.

Mark Joseph Stern (20:01)

She doesn't say, I saw some things happen in 2020 that showed me that he is not the president. She just says, things happened. Things happen in every election. And that doesn't go to whether the result of the election at the end of the day was proper or not.

Dalia Lithwick (20:17)

I think you're exactly right. When she was being asked, what about this phone call to Raffensperger in Georgia? She' I've never listened to it. Right.

Pamela Carlin (20:27)

Yeah.

Mark Joseph Stern (20:28)

I'm the only person in America who hasn't heard any of the phone call.

Pam Bondi (20:31)

Have you heard the recording of President Trump on January 2, 2021, when he urged the Secretary of State of Georgia to, quote, fine 11,780 votes and declare him the winner of that state?

Pamela Carlin (20:44)

No, I've heard about it through clips, but no, no, Senator, I've not heard it.

Pam Bondi (20:48)

What was your reaction to President Trump making that call?

Pamela Carlin (20:52)

I have. I would have to listen to the tape, Senator.

Pam Bondi (20:57)

Well, the quote that I give you is exact. He said to the Georgia Secretary of state, find 11,780 votes.

Pamela Carlin (21:06)

Do you have the entire context of that call? I feel like it was long, much longer than that and may have been taken out of context.

Pam Bondi (21:12)

It was an hour long.

Pamela Carlin (21:13)

Right.

Pam Bondi (21:14)

You can certainly listen to it. I hope you will. Every American should. As a former prosecutor, are you not concerned that the President of the United States called a state election official and asked him to find enough votes to change the results of the election?

Pamela Carlin (21:30)

Senator, I have not listened to the hour long conversation, but it's my understanding that is not what he asked him to do.

Pam Bondi (21:39)

You need to listen to it.

Dalia Lithwick (21:41)

And what about promises to go after this person or that person. You know, Kash Patel has a list, and her answer is she can't. She can't answer hypotheticals. Like, it's like, no, these are not hypotheticals. These are pledges.

Mark Joseph Stern (21:58)

You know, the attorney general is part of the administration, and so when it comes to kind of broad policies of an administration, you expect the attorney general to carry those out. So a president who decides, I want to focus more on white collar crime and less on street crime, you. You carry out that policy. Or a president who says, I want to focus more on street crime than environmental crime violations, you. You follow that. You know, you give advice to the president about the constitutionality of various laws through the Office of Legal Counsel and the like. But what you do expect in terms of independence, and, you know, this has been the policy of the Department of Justice and the aspiration, at least since Robert Jackson in the 1940s and Ed Levy in, you know, the water, the post Watergate era for Gerald Ford is when it comes to actually using the vast powers of the Department of Justice to decide which individuals ought to be investigated and prosecuted, you do not go to the White House on that. And you do not use the FBI or the Department of Justice as a mechanism for going after people because you do not like them or because they oppose some of your policies or because they're members of the other party or the like. You know, and Pam Bondi, actually, when people said lock her up about Hillary Clinton, indicated her affirmative approval of that. Lock her up.

Pamela Carlin (23:34)

I love that. Stay with me.

Mark Joseph Stern (23:40)

Right. She didn't say, no, no, no. She didn't do what John McCain did, you might remember, with the Barack Obama stuff. No, no, He's a good man. You know, I may disagree with him, but he's an American just like me. And so you want to. You know, what you now have is a Justice Department with all of Trump's personal lawyers from either his criminal case or the 2020 election as the people running the department. And Kash Patel, who's already published his enemies list. I mean, Nixon had an enemies list, but he didn't publish it. And those are the people running this incredibly powerful part of the government. It's deeply frightening.

Dalia Lithwick (24:20)

It's frightening. And I think it's also really worth clocking another pivot here, which is every single Republican questioning her starts from these same presumptions. Right. The deep state went. I mean, we heard that Chuck Grassley and the Deep state and the unlawful search by government agents of Mar A.

Mark Joseph Stern (24:40)

Lago, an unprecedented FBI raid on Trump's house, including agents that even searched the former First Lady's clothing drawers. Dalia, do you think they actually start from that premise or they say those things? Because that's what they need to say to stay in Donald Trump's good graces. I mean, he just had, what was it, the chairman of the House Intelligence Committee kicked out of his job as chairman because the guy thinks that our Ukraine policy ought to be to back Ukraine. I mean, I find it hard to believe that Chuck Grassley actually thinks the election was stolen or that Chuck Grassley. I mean, I just find it hard to believe that people who, for what, in his case, like 40 years of his career were standard Republicans all of the sudden lost their minds, although he is old enough that, you know, it might be some kind of cognitive decline. I mean, most of these people, they can't possibly believe this stuff. And one of the ways, you know, that is before Donald Trump was successful, they said exactly the opposite.

Dalia Lithwick (25:47)

Right. And what you're making me think of, which I always think of, is that just unbelievably terrifying interview with Mitt Romney in the Atlantic, where Mitt Romney described, you know, Republicans in the Sen. Senate laughing into their tea saucers about how ridiculous Trump was and then terrified to vote against him.

Mark Joseph Stern (26:09)

My mom, quoting the New Testament, which is not her testament of origin, sometimes says, what profiteth the man to gain the world and lose his soul? I don't know, but a six year term in the Senate seems pretty cheap.

Dalia Lithwick (26:24)

And there is a side of absolute abject terror for the safety of their families. And I don't want to use that as justification, but that certainly comes out loud and clear that Mitt Romney says, look, I'm independently wealthy, I can protect my family. These guys are chill to the bone from acting because they're afraid somebody's gonna hurt their kids.

Mark Joseph Stern (26:46)

You know, there's a great book by Albert Hirschman, and I taught it to my first year law students this year called Exit Voice and Loyalty. And it says when you're part of an organization and something goes wrong, you have essentially three options. Exit, you can quit Voice, you can stand up for what you believe in and protest, or loyalty, which is you just go along with it. And what we're seeing now is a form of abject loyalty that's a complete destruction of what the US Constitutional system is supposed to be about, which is the Senate is supposed to actually advise and consent, not roll over and play dead.

Dalia Lithwick (27:26)

Just parenthetically, I have to tell you this, like the biggest bonding, intellectual bonding that my dad and I had in the first Trump administration was him handing me that book, my dad the Economist, and saying, you have to read A.O. hirschman. And me actually writing not one, but two pieces about it because it was such a revelation to me that this is sort of a. There is a framework for how to think about how long you stick around. And when you go, it does raise this question that I've been dying to ask you about your friends and mine at DOJ and other places in government. There was a really pretty frightening op ed in the New York Times very recently from someone saying, please don't tell me it's my job to stick around and hold the fort, because I too, am terrified. I too, feel like I'm going to be personally targeted and doxed. And I wonder what. You don't have to tell me the advice you're giving former colleagues. But, you know, I was very much of the view that everybody gets out because in the end, you're complicit. I know that's wrong now. I think people stay and hold the line, but there's a real cost this go around to holding the line.

Mark Joseph Stern (28:38)

It's really hard. And there are parts of DOJ where my advice to people would be stay around, because in most administrations, no matter what the administration, people do roughly the same thing. I mean, if you're doing health care fraud prosecutions, probably you'll continue to do health care prosecutions and like. But there are parts of DOJ where it's really hard to stick around when you have a president elect who's announcing he wants to put in a schedule so that you can be fired from your merit selection civil service job and in which you'll be asked to do truly horrible things. I mean, you know, there was an inspector general's report from, I think it was the George W. Bush administration about how in retaliation for their views on civil rights, some of the civil rights attorneys were forced to go around the country and argue deportation cases on behalf of the government. And these are people who did not go to the Department of Justice for the purpose of kicking dreamers out of the country. And so it's a really hard question. And my heart just aches for the people that I worked with, the career lawyers at the Department of Justice who are, they're incredibly fine lawyers who are deeply committed to public service and to enforcing the law, and to have a president or a kind of management of the Department of Justice that does not care about that is deeply, deeply concerning.

Dalia Lithwick (30:07)

Speaking of factual erasure and where we started with Jack Smith. The other thing that's top of mind for me right now, rolling into Monday and next week is this prospect of mass pardons, Pam, for those convicted over the extremely violent events of January 6th. And, you know, Justice Department has secured convictions for well over a thousand people. Trump is making noises like he plans to pardon most of them. And I, I wonder how you're thinking about this problem, not just as a question of, you know, yet more claims that these were, you know, just people in Hawaiian shirts trying to find the gift shop, rewriting history to make it look benign. Mary McCord has a nice piece in the Atlantic making the point. This is such a flouting of the work of judges, of prosecutors, of jurors. I mean, this is an absolute upending of legal processes that were painstakingly put together over years and years.

Mark Joseph Stern (31:14)

Yeah. The idea that he's going to pardon all of these folks, and it's not just the kind of retrospective that you're talking about, which is to deny what actually happened, to denigrate the work of citizens who came in and performed their jury duty, to, you know, disrespect the decisions of judges appointed by both parties, indeed, some of them appointed, nominated by Donald Trump. But it's also suggesting something going forward that's deeply distressing, which is it's telling these folks that what they did was okay. And, you know, for some of them who were just kind of misled dupes of Donald Trump the last time around, well, maybe they've learned their lesson and they're gonna go back home and, you know, return to being law abiding citizens. But what does this tell the people who were the actual kind of instigators and leaders and the people who actually beat up police officers? It tells them, go ahead and do that again. Donald Trump will pardon you and Donald Trump will be in office for the next four years. So if there is stuff going on in your community and you wanna like go after the libs, be his guest. I mean, that's what worries me is this sort of tells people, you wanna be part of these militia groups or oath keeper groups or whatever, go ahead and do it because Donald Trump has your back, right?

Dalia Lithwick (32:36)

No, that's incredibly frightening to contemplate. I also wanted to ask you, if I may, about California. You're in Northern California. I am. You are not in the midst of the real heartbreak of it, but both because of the fires and because of all this resurgent talk, that federal relief is somehow now going to be conditioned on the recipients being like minded or compliant or grateful or voting one way or another. And this, of course, feels incredibly close to a hypothetical that we heard you positivity during Donald Trump's first impeachment hearing over that perfect phone call to Ukraine. Let's have a listen.

Mark Joseph Stern (33:21)

Imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding. What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid that Congress has provided for?

Unknown (33:39)

What?

Mark Joseph Stern (33:39)

What would you think if that president said, I would like to do you, I would like you to do us a favor.

Dalia Lithwick (33:45)

Now, you were talking about a president shaking down the states hypothetically in order to get them to trash an opponent. Boy, that feels on the nose for this moment. We're in where we're saying maybe we just won't give federal aid to California anymore.

Mark Joseph Stern (34:03)

Yeah. You know, we are Americans and we pay taxes to the national government in the assumption that the national government will treat us all as Americans and not as enemies within when something horrible happens. And the idea that you wouldn't provide disaster aid or you wouldn't provide the kind of disaster aid that people are entitled to because you think they didn't support your political candidacy is just antithetical to everything we believe in. You know, California has the fifth, sixth, seventh largest economy in the world and we send more in taxes to the federal government than we get back in spending. And I'm glad to do that every year, even though I know that it's going to go to people on the coast of Florida who voted for Republicans when a hurricane hits them, or people in Louisiana when a hurricane hits them, even though Louisiana is the reddest of red states. I'm glad to let you know the speaker of the House's district get disaster because we're all Americans. And the idea that they should hold us up because of their kind of assumption that somehow this has something to do with being woke and the woke have to be, you know, punished is ludicrous. And, you know, and to then have a cabinet member who's responsible for a lot of stuff, who doesn't even understand that climate change has something to do with this, just is the kind of icing on top of this very poisonous cake.

Dalia Lithwick (35:44)

So I think your response to every one of my questions thus far has been, and that's really terrifying. That's really frightening. This scares my face off. Which leads me inevitably to, I think we're going to see a rash of executive orders. I think we are going to see a whole bunch of actions, much of which has been in the can brought to you by the Project 2025 folks and other. What are you bracing for in the early. We knew the Muslim ban was coming in 2016. What are we bracing for right now?

Mark Joseph Stern (36:22)

What I'm bracing for is there are going to be some, there's going to be some immigration stuff right off the bat, and there are going to be some high profile things designed to strike terror into the hearts of the folks who are in the country without documentation. I mean, they're not going to deport 11 million people in a month. They're not even going to deport 11 million people in the entire administration. But what they are going to do is they're going to do some high profile raids and the like that will terrify people and make undocumented parents afraid to take their American children to schools and the like. And that, that worries me a lot. I think a rollback on regulations of all kinds that are going to make, you know, our air less clean, our products less safe. And like, I'm worried about that. I'm worried about Schedule F more than almost anything else, which is he's going to hollow out the civil service. And we rely on professional experts in the civil service to do everything from predict the weather to, you know, make sure that the trains are running on time in various ways. And all of that is going to be at risk. And that's what I think we're going to see right off the bat.

Dalia Lithwick (37:38)

So this really does lead me to one of the reasons I wanted to hear your voice this week, which is we've been having a lot, lot of debates in lawland about what the law is for right now, you know, and there is a strong but vocal contingent that's like, oh, please, like deep reading Judge Cannon's inscrutable, incoherent order to try to figure out why it was that she was suppressing a matter that was not properly before her and a matter that was properly before Judge Chutkan. Like, doing this work of lawyering everything and approaching it as lawyers is a waste of our time because we have just slid into, you know, Calvin Ball. It's just what five justices say it is or it's just what power says it is. And I would love your theory of what we're meant to be doing as lawyers right now. And maybe sort of more robustly and concretely, I'm thinking of a colloquy between Senator Alex Padilla and Pam Bondi on birthright Citizenship at the hearing Wednesday, and she was like, oh, I'm gonna have to give that some thought.

Unknown (38:51)

Do you believe birthright citizenship is the law of the land, and will you.

Unknown (38:55)

Defend it regardless of a child born.

Leon Nayfak (38:58)

In the United States, regardless of their parents immigration status?

Pamela Carlin (39:02)

Senator, I will study birthright citizenship. I would love to meet with you regarding birthright citizenship. Can I answer your service, your trust.

Unknown (39:10)

General of the United States. And you still need to study the.

Mark Joseph Stern (39:12)

14Th Amendment of the Constitution.

Dalia Lithwick (39:15)

I mean, Pam, she doesn't have to give that some thought. It's in the 14th Amendment.

Mark Joseph Stern (39:20)

No.

Unknown (39:20)

Yeah.

Mark Joseph Stern (39:20)

I mean, maybe she didn't get that far in the amendments. Maybe she's like Donald Trump with the Bible, where it's like, tell me your favorite book. Well, I can't. But ultimately it turns out to be two Corinthians. And maybe she just never got past the second Amendment. I don't know. You know, that's kind of ludicrous. It goes back to the question you were asking about, like, what's the job of lawyers? And the job of lawyers has never been to be the only people protecting democracy. It's always been that lawyers are in the service of a larger movement of people who seek democracy. And, you know, I think it's in some ways almost fitting that Inauguration Day this year is also the Dr. Martin Luther King Jr. Holiday, because if you think about what's really brought the 14th Amendment and the Reconstruction Amendments, what really gave them life in this country, it wasn't just lawyers litigating cases, although it was very important. And one of the great thrills of my life has been being an assistant counsel at the NAACP Legal Defense Fund and then working at the Civil Rights Division of the Department of Justice, both of which have done so much to instantiate the law of the 13th, 14th and 15th amendments. But if you really think about who are the two pivotal figures in equality as we understand it today, in some ways it's Dr. Martin Luther King Jr. Who never went to law school, and it's John Lewis, who, as a student did more to make the 13th, 14th and 15th Amendments real than I think any single lawyer did. And so it's a kind of reminder that the law is a tool for making this country live up to its promises. But there has to be a much larger group of people committed to that than just lawyers.

Dalia Lithwick (41:15)

And to just flesh that out before we say goodbye, you know, we can't possibly, you know, King Kong with the incoming, you know, respond to everything and react to everything. And in fact, that's the Way to exhaustion and I think nihilism. So what do you fashion for yourself as what your work is going to be in the months and years to come?

Mark Joseph Stern (41:40)

So I see my work really going along two tracks. The one is to help out the groups that I've been helping out for years in various ways and the causes that I've done. And my particular skill there is appellate litigation. So, you know, to help voting rights groups and to help reproductive rights groups and LGBT groups and employee groups and the like. But the other, which is longer term, is to be the best law school professor I can be to train a generation of people who will be around to continue this work long after I'm gone. Which is, you know, faster approaching than, you know, than it used to be. I mean, I am now 65 years old. And I mean, I remember when I was in law school, the People who were 65 were people who had been involved in the New Deal. And so some of what I want to do is inspire my law students to care about democracy, to care about individual rights and individual dignity, and to care about having guardrails in the system so that they'll be here to continue this work after I'm gone. I'm gonna butcher the phrase, so you're gonna have to tell me the phrase so I can then say it again. But it's the one about, you know, you're not gonna complete the work, but it's not permitted to you not to begin. You know the one I'm talking about?

Dalia Lithwick (43:10)

Yeah, yeah. It's from Pirkevud. And it's, you are not required to finish the work, neither are you free to desist from it.

Mark Joseph Stern (43:18)

Yeah, you know, that and Dr. King's moral arc of the universe is long, but it bends towards justice. And you've gotta be there trying to do that, bending. Those are the two things that kind of keep me going.

Dalia Lithwick (43:30)

And just as a complete guidance question, what do we do about the inauguration? Are we watching? Are we skipping? Michelle Obama's not going. Some of the presidents are skipping the luncheons. Some of the Dem presidents.

Mark Joseph Stern (43:44)

I'll go, but I won't eat.

Dalia Lithwick (43:46)

Yeah, exactly. I'm not having the pound cake. Yeah, it's a little bit the King Kong question. But what is the balance between paying scrupulous attention, bearing witness, keeping up and clocking it, and, you know, just going to a soup kitchen and volunteering and have the day have meaning, Particularly, as you say, because it is Martin Luther King Day.

Mark Joseph Stern (44:07)

Yeah, I mean, I'm going to treat it as the Dr. Martin Luther King, Jr. Holiday. I'm going to reread some of the King stuff that I read. I'm going to go take a hike because I want to be to the mountaintop and when I come back down, I can read about what was the George W. Bush said, what the crazy shit is that Donald Trump's going to.

Dalia Lithwick (44:33)

Say in his in his inaugural speech, American Carnage 2.0. Pam Carlin is Kenneth and Harle Montgomery professor of Public Interest Law at Stanford Law School, co author of Keeping Faith with the Constitution. In 20, 21 and 22, she served as Principal Deputy Assistant Attorney General in the Civil Rights division of the U.S. department of justice, and she hosts Stanford Legal, Stanford's really, really worthy and Smart podcast, in addition to a host of other things. Pam I am going to let you figuratively at least drag me to a mountaintop in the coming days and weeks and years because I also really always find that I can see more clearly after we've spoken. Thank you so much for your time and for your voice and for your huge heart. Thanks.

Mark Joseph Stern (45:25)

Thank you for having me.

Dalia Lithwick (45:28)

We are going to take a short break and when we come back, Mark Joseph Stern on the TikTok Band case.

Leon Nayfak (45:38)

I'm Leon Nayfak 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 with 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 COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.

Mark Joseph Stern (46:13)

Five men were arrested early Saturday while trying to install eavesdropping equipment known as the Watergate Incident.

Leon Nayfak (46:19)

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.

Unknown (46:57)

This episode is brought to you by nrdc. Our nation's environmental safeguards face their gravest challenge ever. The new Trump administration is moving quickly to dismantle decades of protections for our clean air, water and public lands. The Natural Resources Defense Council has proved it can stop these attacks. NRDC filed the first environmental lawsuit against the previous Trump administration and maintained a blistering pace, filing 163 legal challenges and winning victories in nearly 90% of resolved cases to protect wolves, bees and other endangered species, block the Keystone XL pipeline, regulate chemicals hazardous to our health and more. Now NRDC is launching the Legal Fund to Stop the Trump Agenda. For a limited time, all donations will be doubled to help power their strongest legal defense of our environment yet. From climate protection to endangered species, what we do now will determine the world our children inherit. Make your match gift@nrdc.org podcast.

Dalia Lithwick (48:05)

On Friday morning, the Supreme Court jammed to the last possible second because the TikTok case is fittingly subject to an actual TikTok of a ban that kicks in. Sunday upheld the ban on that app in the United States. This was a per curiam opinion, unsigned and unanimous. The court affirmed the D.C. circuit. No surprises here, Mark Joseph Stern, Slate senior writer and my jurisprudential Ride or Die is here to break all this down for us. Hey there, Mark.

Unknown (48:40)

Hi Dalia.

Dalia Lithwick (48:42)

So we called this last week, Mark, after we heard the arguments, we talked about it on the show, and before we get to the oh my God, what's going to happen next? Can we just talk about the court's legal reasoning?

Unknown (48:54)

I think, and listeners will not be surprised here, that the Supreme Court decision is quite reasonable. And I think that in part because I just found TikTok's arguments all along to be fairly weak and also because I think that the Supreme Court had a few different paths here and I think that it took the right path. So let's recall first, this was not just a ban, it was a conditional ban. TikTok is an American company, but it is owned by a Chinese company called ByteDance that is legally required to turn over any and all data to the Chinese government. Upon the government's request, Congress gave TikTok and ByteDance two options. They said, Look, TikTok can divest from ByteDance, find a different owner, or TikTok can be banned in the United States. ByteDance refused to sell TikTok, and so TikTok faced the ban that is currently set to take effect on Sunday, January 19th. When Congress enacted this law, it provided two possible rationales said, look, we're doing this for two reasons. The first is that TikTok collects massive amounts of user data that is incredibly sensitive data about a person's age, their contact list, their messages, their exact location. And all of that data is available to the Chinese government upon request. And we are afraid that the government of China will use it to spy on American citizens, potentially to blackmail them to do all kinds of bad espionage. Also, and separately from that, Congress said, we are afraid that China and the Chinese government will manipulate the speech on TikTok in order to sow discord in the United States and further aims of the Chinese Communist Party. Now, these are very different rationales. The first rationale really does not target speech. It is all about users data and protecting that data from a foreign government. The second rationale is all about speech. It is essentially targeting TikTok's editorial discretion. And just last term, the Supreme Court held that social media companies have a First Amendment right to engage in editorial discretion. And so the Supreme Court dealt with this problem in Friday's decision by essentially ignoring the second rationale, saying, we're not going to look at this rationale about manipulation of speech on the platform. We are going to base our decision entirely on the first justification, which is that we are afraid that the Chinese government has too much access to very sensitive data through TikTok. We defer to Congress's national security concerns about this. They are clearly rooted in fact and not mere hypotheticals. And so we are going to apply intermediate scrutiny to this law and uphold it on the grounds that Congress has put forth a very strong reason for the. For the statute and that it has tailored the statute appropriately to meet and further the concerns that it has laid out over years of study and legislation.

Dalia Lithwick (52:00)

So I want to take a beat, Mark, and make the point that we haven't always made as forcefully as we should on this show. And I think it's been frustrating to some listeners, which is 170 million Americans use TikTok. It represents the livelihood of people. It is the only source of news and information for people. To the extent that we have been sounding flip or glib or reductionist, like, let's be very, very clear what is on the line if and when this band goes into effect, which at least nominally happens tomorrow, if you're listening to this show on Saturday morning. So this is incredibly serious. We've had both President Biden and President Elect Donald Trump making feints at all. This is going to get fixed and it's going to get fixed in the next seven minutes, quite literally. I am just asking you on behalf of listeners who are really struggling with what happens to TikTok in the next couple of days. What happens next?

Unknown (53:21)

Yeah. So President Biden has indicated through an administration official that he doesn't intend to enforce the ban when it takes effect on January 19th. Donald Trump had filed a brief in this case suggesting that he too did not want to force the ban. TikTok's owner is reportedly going to be attending his inauguration on January 20 in a very conspicuous place. It seems that Trump has essentially been bought off by TikTok to oppose this ban, and so he is unlikely to try to put it into effect. But nobody really knows what will happen on January 19 because the law is on the books and is by rights supposed to kick in preventing app stores from carrying TikTok. And even if the President says, I'm not going to enforce this, there are serious legal penalties if app stores continue to carry the app and if it continues to operate within the United States. So I have a very unsatisfying answer, which is no one really knows what lies ahead for TikTok. I think it's deeply unfortunate that just due to a quirk of timing, the law is going to take effect essentially in between two radically different presidential administrations. It has been caught up in a bizarro transition, and it has, I think, exploited this fact to curry favor with Donald Trump. Again, the owner of TikTok has been really cuddling up to Trump in order to get him to try to save the app. But, you know, corporate lawyers are risk averse, and I think that there may be lawyers at TikTok who say, Folks, we've got to go dark when this law takes effect. Even if two different presidents say they won't impose the ban because they are afraid of facing penalties down the road. Again, unsatisfying answer, and I think an unfortunate situation. I mean, I think it's really weird that we now have the government, you know, broadly getting cold feet about this law that has been years in the making, that had different iterations through different drafts of bills, that has many state level analogs that, you know, two different administrations had previously supported, that Congress passed overwhelmingly, and a bipartisan vote now to have this cold feet. I mean, I think it does sort of make the government's previous arguments for the ban look a little bit weaker. Like, oh, is the government's heart really in this? But that is not for the Supreme Court to consider. I think the court has done its job, done its job correctly, and whatever happens next is not really the Supreme Court's fault.

Dalia Lithwick (55:46)

Yeah, just a couple of quick notes. It's, it's, of course, very, very of the moment that both President Biden and President Elect Trump were for this ban until they were against it. Which goes to this, like, what does anybody really think or feel or understand? And by the same token, I've been thinking all day, Mark, about the fact that the Supreme Court has often positioned itself as the decider. Right. It wants to be the ultimate arbiter of all things. And this is actually amazing counter programming of that vibe, where the court is like, we're just telling you this is constitutional, Best of luck, and sort of sending it off to two presidents to try to hash it out. So there's a tiny, refreshing bit of. I don't wanna call it humility. It's certainly not humble to say we're gonna go ahead and enforce the ban, but it is the court slightly washing its hands of what is just gonna be a shit show, no matter how you process what's going to come.

Unknown (56:55)

Can I just add a little footnote? I would say it's humility, and I actually think it's kind of refreshing. And it's how pretty much every other country operates. Right? We have the most extreme judicial supremacy in the United States of arguably any, any nation on earth. And we are so used to going to Daddy, AKA the Supreme Court, and saying, please resolve this dispute for us on an entire, entire range of issues. You know, the political branches have a say, the states have a say, the people have a say. But at the end of the day, we have to go to Daddy, hat in hand, and say, daddy, please tell us what to do. What are we allowed to do? What aren't we allowed to do? Solve all of this for us, please. And, yeah, the Supreme Court is culpable in this. Like, the Court has seized a lot of power for itself to be the decider. But I think we should, generally, in situations like this where I think that the government's compelling interests clearly outweigh the individual's constitutional claims, I think we should praise the Court for saying, yeah, we're not going to be the deciders, like, you can do this. We're upholding the law and how this all shakes out over this administration and the next one, that is really not our place to decide. I think that was the right call. And I'm not saying that the Supreme Court should just unthinkingly defer to all government claims of national security. But in this case, with this record, with these overwhelmingly important interests at stake. I just think the court throwing up its hands and saying, you guys decide was was obviously the right move.

Dalia Lithwick (58:24)

And while all this was going down on Friday morning at 10am we also got news that sounds really big, but maybe isn't so big about the Equal Rights Amendment, which we are going to talk about in our Amicus plus bonus segment. We're also going to be talking about the pornhub case that was argued at the Supreme Court this past week that raises some pretty serious concerns about free speech and some cringe from Justice Samuel Alito. Mark, you can head over to the bonus rumpus room right now and I will see you there. Mark Joseph Stern writes about the courts and the law for us at Slate. Thank you, Mark.

Unknown (59:03)

Thank you, Dalia.

Dalia Lithwick (59:06)

And that is all for the main episode of Amicus this week. Thank you so much for listening in. Thank you so much for your letters and your questions. You can keep in touch@amicuslate.com and you could always find us@facebook.com Amicus Podcast this week's bonus episode of Amicus plus is waiting for you right after this one. 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 and we will see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort. Alicia Montgomery is vice president of audio at Slate. Susan Matt Matthews is Slate's executive editor and Ben Richmond is our senior director of operations. And we will be back with another episode of Amicus next week.