← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Trump’s Slush Fund Is Even Worse Than You Thought
01:11:56
A former Jack Smith prosecutor and a veteran corruption reporter map the vectors for lawlessness that many have missed
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- [00:00]
Jake Stauch
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- [01:03]
Dahlia Lithwick
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- [02:48]
J.P. Cooney
Trump has engaged in actually practiced skillful corruption and. And enlisted every arm of government to accomplish it.
- [02:57]
Jake Stauch
Why should taxpayers be paying to settle a $10 billion lawsuit that was brought by the President of the United States? We're not just writing a $1.8 billion check. We're gonna take a lot of people
- [03:09]
J.P. Cooney
who are gonna apply and say that
- [03:11]
Jake Stauch
they have been mistreated by their government. We're gonna handle those situations case by case. Just to be clear, people that hurt police get money all the time. Okay?
- [03:19]
J.P. Cooney
This settlement is just a small measure of the justice that they are owed.
- [03:23]
Andrea Bernstein
What it is saying to people is not only if you violently defend Trump's interests, will you face no legal consequences, but if you violently defend Trump's interests, you will be rewarded.
- [03:44]
Dahlia Lithwick
There is zero doubt that Donald Trump's $1.8 billion, quote, anti weaponization fund for victims of lawfare is a staggering act of corruption. As one commentator put it this week. A third grader could tell you that. But the Trump administration's newest staggering act of corruption is more than just that. It's Watergate on steroids. It is theft from the American people. It is designed to reward violence and insurrection, to incentivize future violence and insurrection. And it's engineered to shield Donald Trump and his family from not just accountability, but any possibility of scrutiny or inquiry that remained after the Supreme Court's immunity decision. The challenge with this outrage is not explaining why it's unlawful. Of course it's unlawful. The challenge lies in mapping the many ways it's unlawful and why that matters. Because if the constant refrain of the first Trump administration was, can he do that? The drumbeat of his second installment in the White House has to be, what are we going to do about it? Our guests this week are JP Cooney, a top prosecutor in Jack Smith's special counsel's office, who helped lead the investigations and prosecutions of Donald Trump, and friend of the show, Andrea Bernstein, who knows more about the Trump corruption beat than just about anyone. Later on, you're gonna get to hear from Slate's executive editor Susan Matthews about the newest season of Slow Burn Becoming Justice Gorsuch playing right now in Slate's Slow Burn feed, Susan will discuss why she picked this moment to do a deep dive on this justice and what she unearthed about him. But first, the slush fund and all the ways it perfectly embodies a poisoning of the law and American democracy. Here to discuss it, J.P. cooney, who was a career federal prosecutor for 18 years, he was also the top deputy in Jack Smith special counsel's office and before that led numerous complex corruption investigations into public officials. He's now a founding member of Gaston and Cooney, a small public service oriented law firm and a senior fellow at Berkeley Law School's Edley center on Law and Democracy. Welcome JP thank you for having me here. Also with us is Andrea Bernstein, a Peabody and DuPont Columbia Award winning investigative journalist, author and professor. Andrea covered five trials of Donald Trump and his business for NPR and has co hosted the podcasts Trump Inc. Will Be Wild. We don't talk about Leonard and this one is very close to our hearts, the Law according to Trump that she did right here on Amicus. She's the author of the best selling book American Oligarchs, the Kushners, the Trumps and the Marriage of Money and Power. Andrea, welcome back to the show.
- [06:37]
Andrea Bernstein
So great to be back.
- [06:39]
Dahlia Lithwick
Okay, before we even really start, I want to ask each of you a very short situating question in orders of corrupt, unlawful magnitude, where would you place this so called settlement on what we might call the Watergate scale? Andrea, you want to go first?
- [06:55]
Andrea Bernstein
I think this is off the Watergate scale because it's just being done in front of us. It's being memorialized in a document that is enshrined in DOJ records that says, among other things, no one can oversee this but Trump and the Justice Department and nothing can be done about it. Somebody in Trump's legal community was paying close attention when they came up with this. You know, I feel like I'm sort of, you know, constantly stepping on a rake with Trump for all of the years and years and years and probably hundreds of thousands, if maybe not a million pages of documents that I've read. I am still shocked but not surprised at what is going on here because this is somebody who is acting entirely consistently with everything he has done since he was raised by his father, Fred Trump. Fred Trump did this. Maybe not this exact thing, but everything. All the arrows have been pointing in this direction.
- [08:00]
Dahlia Lithwick
How about you, J.P. if you put sort of like American politics as usual in some imaginary halcyon past at 1 and Watergate at 10, where's this for you?
- [08:11]
J.P. Cooney
This is definitely off of the scale. And what I think places it off the scale is, I agree, Andrea, it's happening right in front of us. But here, Trump has engaged in, actually practiced skillful corruption and enlisted every arm of government to accomplish it. Think of where he started with a lawsuit that he brought, allegedly in his personal capacity against the administration he controls. So he has enlisted the court system into this corruption he has then enlisted, of course, his own attorney general and IRS into it by leveraging this settlement agreement. And he has done it to both enrich himself, but also to enrich the insurrectionist loyalists who attack the Capitol to try and keep him in power and to erase history. And so it is just an incredible rigging of the system, but doing it in the court system, in his own branch, and then with his loyalists, it's just stunning to me.
- [09:16]
Dahlia Lithwick
Okay, well, that was an incredibly sobering answer from both of you. But I wonder, Andrea, will you just walk listeners through JP Just mentioned this lawsuit. Can you walk us through the genesis of the litigation in January and why and how Trump as a private citizen, manages to sue the IRS and the treasury for $10 billion?
- [09:38]
Andrea Bernstein
Yeah, well, that's a made up number. You know, it's just so Trumpian has to be the biggest, the loudest, the best and the most. The history of this is very briefly. Two news organizations, first the New York Times and then ProPublica got ahold of Trump's tax returns. And he considered this a great affront. I mean, what we learned from that mostly is that I think the top line was that Donald Trump had paid almost nothing in taxes, despite his status as a very wealthy person. So he and his family filed a suit at the outrageousness of this against his own irs. You know, this is not like, I mean, you can't really imagine, say, Joe Biden suing the irs, but Joe Biden was sort of hands off with the irs. You know, name every president, George W. Bush. I mean, just go back in history, no one was overtly saying, I will control the irs. I mean, even Nixon tried to hide his tapes. But there is Trump controlling the doj, controlling the IRS very obviously, and also suing both an agency of the U.S. government. And the lawyers who are purportedly defending the suit are people that he sees as his lawyers. In fact, in this case, Todd Blanche has been his lawyer. So that is the setup behind the suit. Of course, it makes no sense. The judge seemed like she was on the verge of, you can't have this because you don't have adversarial parties. And that is not how the justice system works in the US but before that could happen, there was this settlement which I have here before me and I read this morning. And I just want to sort of underline how alarming it is. I mean, JP Was talking about how it sort of enshrines a non truth. But look at what it says in section B, which is very obviously close to the top, it says, based on the unlawful raid at Mar a Lago, the Russia collusion hoax in Section C, the sustained use of the levers of government power by Democrat elected officials. I mean, this is political language. It is not true language. And it is now enshrined in a US Government document which is supposed to contain some kind of truth. So the exact opposite has occurred in this settlement.
- [11:53]
Dahlia Lithwick
So, jp I guess just following on with that massive query whether this could have succeeded at trial. Right. This is filed in Florida. I guess they're hoping to get Judge Cannon. They actually don't get Judge Cannon, as Andrea just suggested. The judge is like, very worried about kind of Trump being on both sides of the V here. And so she's asking these case and controversy questions, trying to get it briefed out of the blue. We get this settlement and then when we think we've seen it all, we get the addendum. J.P. can you talk about what's in the addendum? Because that's kind of the part that makes my eyes do that cartoony buggy Eddy thing. It's beyond even what Andrea just described in the settlement agreement.
- [12:36]
J.P. Cooney
The addendum is what directly enriches Donald Trump. And it is stunning because on the heels of the settlement, the first statement that the Trump administration made about and that the department made about it is Donald Trump is not even benefiting from this settlement. He's waiving his claims against the IRS to create this fund for people who have been the victims of a weaponized doj, as if he has done something for the people and for the victims. And then what comes out, basically in secret the next day is a gift that could benefit him to the tunes of hundreds of millions of dollars. Right. And the gift is that the IRS will not conduct an audit or any enforcement proceeding, nor will the Department of Justice based on any tax returns that he or his families or his businesses filed up until the date of execution of the agreement, which was May 19 this week. It is an incredible gift or benefit to him. But also what is notable about it is that it is signed by Todd Blanche, the acting Attorney General. And if you go back to the lawsuit to just add a couple additional facts, Andrea, to what you noted, you know, no member of the Justice Department ever entered an appearance in that case. You know, usually when the government is sued, somebody from the government will enter an appearance and begin to litigate the case. No one ever did. His personal attorneys conducted it throughout. His personal attorneys filed the notice of dismissal. His personal attorneys filed the settlement agreement. And the settlement agreement was signed by Stanley Woodward, the Associate Attorney General who oversees civil matters of the Justice Department and the CEO of the irs. Right. The subject of the suit, not Todd Blanche. Todd Blanche is the signatory of this separate agreement to not conduct any audits or to conduct any enforcement proceedings based on those tax returns. And why this was practice corruption at its best, because after the Watergate scandal, Congress passed a statute, a criminal statute, that forbid the President, along with basically all members of his cabinet or his administration, from directing, interfering with stopping audits conducted by the irs, because Nixon had weaponized the IRS against his political opponents. But there is one exception to that, and it is the Attorney General. And so the Attorney General has, on behalf of the United States government, but really on behalf of his former personal client, Donald Trump, waived these enforcement proceedings, these potential enforcement proceedings against Donald Trump. So this was actually skillful corruption.
- [15:28]
Andrea Bernstein
If I can just add to that, we have discussed, or we did discuss in 2024 when Trump v. US was decided that what this is doing is it's giving Trump a get out of jail free card. And if ever that was underlined, it is in this settlement. Trump's company, you know, I was there when this happened, was found guilty on 17 counts of criminal tax fraud in New York. Trump himself was found guilty of 34 felonies of falsifying business records. And he does not want to have his taxes investigated. That has been a animating force. And now Todd Blanche has given him the ability to avoid that not just forever, but forever in all caps.
- [16:18]
Dahlia Lithwick
JP You've done a really nice job of explaining what it is that the acting Attorney General is doing in the middle of this ostensibly, you know, Trump in his private capacity case. Andrea, one of the other pieces of this that I just want to nail down is, is the taxpayers are funding now. The taxpayers, right. We're paying for this a $1.8 billion slush fund of money that is going to go to pay. And JP Started to, like, spin this out, but, like, please explain who is going to get paid out now.
- [16:53]
Andrea Bernstein
Right. Well, what it says, and I think this is also capitalized, is, yes, victims of lawfare and weaponization. Now, who are these people? I mean, I think we should be very clear eyed about what this is. It's being described this week and, you know, we're all sort of just kind of overwhelmed by this news. It's being described as Trump allies. But who is it? It is people who tased police officers, who caused traumatic brain injury, who squeezed police officers heads indoors, who rammed the Capitol with police shields, with flagpol, with other weapons, who caused injury, who caused death, people who were convicted of seditious conspiracy. I mean, it's very hard to get a conviction. Jamie can talk more about this on seditious conspiracy. That's what happened. These are people who are being portrayed as the victims here. What is the message that this sends? I mean, I just want to be clear. This is a step above. I have a pardon or I want a pardon, or for violating money laundering laws, or I want a pardon for this other corruption crime I did. What it is saying to people is not only if you violently defend Trump's interests, will you face no legal consequences, but if you violently defend Trump's interests, you will be rewarded. That is extraordinary. What does that mean? It means that in some potential future date, someone would not be so foolish for concluding, I could do this for the president and I will have not only no sticks, but I will have a carrot at the end of it.
- [18:41]
Dahlia Lithwick
Jp, you know, the very first thing that we all learned in law school is who are the deciders here? And one of the pieces of this that maybe hasn't gotten quite enough attention is that the terms of the settlement say this is going to be run by five members who are appointed by the Attorney General, including one in consultation with congressional leaders. Todd Blanche, as you've just noted, is Trump's former personal defense lawyer. He gets to unilaterally appoint these members. Trump can unilaterally correct me if I'm wrong, remove anyone without cause. This is kind of like layer upon layer upon layer of what might look like neutral decision makers, but are, in fact, just people who 100% conceivably work for Todd Blanche and the president.
- [19:26]
J.P. Cooney
100%. And what is stunning about it is you just read Dahlia. Those are the plain terms of the agreement. That's not just. You get to that at the end. If you play out all the pieces on the chessboard, that's what it says. Todd Blanche, who has demonstrated that he is a personal attorney for the President, not an attorney general for the American people, he gets to pick the five, whatever congressional leaders means. He consults with congressional leaders on one of them, but he gets to pick the five. But Trump, he really gets to decide because he can remove any of them at any point. So he doesn't like who they're giving the money to or who they're not giving the money to. He removes them and they start over.
- [20:04]
Dahlia Lithwick
There's no accountability for who these deciders are, but the board also functions under procedures that can also be kept secret, and the identities of the recipients can be kept secret. So there's another layer of we have absolutely no idea what is gonna happen in this black box. That's correct, right, Andrea?
- [20:25]
Andrea Bernstein
Yes. It is spelled out that the settlements are confidential, and there's no mechanism spelled out for waiving it or for public access. This is so perfectly Trumpian in every way. He's on both sides of the deal. Everybody controlling it is beholden to him. He can overrule anyone at any time, and no one can do anything about it. And because of the law under which this was set up, there is no judicial review. All we can do. I mean, you know, I'm interested to see creative legal arguments developed, and I suspect there will be some to try to stop this in its tracks. But, you know, there's not an obvious way in which it's apparent immediately to people who read this about how to sort of undercut it. A new law in Congress seems to be the. The only way to stop it, which is not impossible, but is obviously a high bar.
- [21:19]
J.P. Cooney
And can I add on to some of the additional layers, the procedures for how they're going to decide the claims? Those can be kept secret. It says in there we can publish them if we want, but we don't have to. And what is also incredible is that the fund must be expended by December 1, 2028. That would be the last month of the Trump administration. And then whatever balance remains in the fund is dispersed at the direction of the President of the United States. So it's absolute insulation for Trump and his objectives. In this, in plain language, right before all of us, without any judicial oversight or any other mechanisms to control it.
- [22:01]
Dahlia Lithwick
I want to make just one observation about what Andrea has just said. We know that Jamie Raskin is already lodging a bill, that it's an attempt at a legislative fix here. And as our friend Steve Vladek earlier this week pointed out in his substack, this is not a judicial problem. This is a political problem. This is not something the courts are going to solve. This has to be a problem for Congress to solve. Time now for a short break. This episode is brought to you by NetSuite. Every business is asking some version of the same question. How do we make AI work for us? The possibilities are endless, and guessing is really risky. But sitting on the sidelines is not an option because one thing is almost certain. Your competitors are already making their move. No More waiting with NetSuite by Oracle. You can put AI to work today. From software and IT services to healthcare equipment manufacturing, financial services, and many other great American industries, NetSuite delivers a customized solution for your business. If I needed this product, netsuite is what I would use. If your revenues are at least at least in the seven figures, get our free business guide demystifying AI at netsuite.com Amicus the guide is free to you at netsuite.com Amicus netsuite.com Amicus
- [23:28]
Mark Bittman
this episode is brought to you by Planned Parenthood Federation of America. The courts matter. The law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day this year. Attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from millions of people, but they urgently meet. Need your help? You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference. Helping Planned Parenthood protect access to care when it matters most. Don't wait. Donate today@plannedparenthood.org defend. Hi, it's Mark Bittman from the podcast Food with Mark Bittman. It is getting warmer and it's time to go outside and start grilling. You can find quality meat, fresh organic produce, seasonal bakery treats. It's all there at Whole Foods Market. Ready to cook beef or chicken kebabs, corn, asparagus, great on the grill. And Whole Foods has Teton waters, ranch hot dogs and sausages made from grass fed beef. Shop for all of your summer favorites at Whole Foods Market.
- [24:59]
Dahlia Lithwick
Let's return now to my conversation with JP Cooney and Andrea Bernstein in lieu of Congress finding a spine and doing its job here. Andrea, I'd love to hear from you about who's already at the trough, who's already coming to ask for a disbursement, please.
- [25:14]
Andrea Bernstein
I mean, we obviously don't know, but at Todd Blanche's congressional hearing this week, it was raised whether a January 6th defendant who was later convicted of child molesting was reported to have said to his victims, I will pay you off with money that I expect to see from this settlement. And Todd Blanche was asked, well, would this person qualify? And at first the acting attorney general said, well, that's not true. And then he sort of just didn't really answer. He didn't rule anybody out. He didn't rule out people who had attacked Police officers, which, you know, of course, as soon as Trump pardoned everybody, which he did within hours of being sworn in on January 20, 2025, it was pretty clear that no one was off limits. I mean, there was a question, you know, he gave clemency to the Oath Keepers and the proud boys. They were also later let off entirely. So I don't think anybody is ruled out. And that is really something. I mean, it's sort of like, you know, I just feel like if you were going to have a political situation where you're going to say, okay, will you give money to somebody who is convicted of attacking the Capitol, let off, convicted of child molestation, and saying he will gag his victims with the money he's going to get from a settlement, you couldn't think of a politically worse situation, I think. And yet even that is not off the table from my understanding of what the acting Attorney General said at the hearing this week. Jp Maybe you have a different interpretation.
- [26:55]
J.P. Cooney
Oh, I agree. Not only is it not off the table, one of the things that I find stunning about this conversation, I completely agree with Senator Van Hollen. Right. We should not be paying money to people who attacked police officers, violently assaulted them, and to child molesters, of course. But even that conversation appears to legitimize the entire fund as if within them, there's a class of people that should not be compensated. But within the greater class, there are people this fund is targeted all at individuals who've actually been found guilty in court, either pled guilty or been found guilty by a jury, not someone who has been wronged in some other circumstance. And so I completely agree, and I agree with Senator Von Hollen's legislative fix on this, except that it's an illustration of how Trump is so effectively normalizing fraud and corruption because we are actually having negotiations or discussions within the framework that he has established to corrupt our entire judicial and legislative processes.
- [27:54]
Dahlia Lithwick
That's a really important gloss, actually, jp because what you're saying. And JD Vance, I think, said some version of, oh, you know, we're just gonna go back and relitigate these case by case, as though that somehow makes it okay. Like, dude, they've been litigated beyond litigated. And the idea that, well, okay, maybe, you know, people who molest children shouldn't be compensated for the weaponization of the Justice Department, but everybody else should. Right? That's. I mean, you're right. It moves the Overton window, like, so shockingly that it's almost imperceptible. I do want to because you. You just said people pleaded guilty. You know, people like Sidney Powell and Kenneth Cheeseborough wrote letters of apology to the people of Georgia. They pleaded guilty in the RICO interference case in Georgia. Here's Cheeseboro pleading. Let's listen. Has anyone forced, threatened, or promised you
- [28:53]
J.P. Cooney
anything for you to enter into this guilty plea?
- [28:55]
Jake Stauch
No.
- [28:56]
Andrea Bernstein
It is your decision to waive these rights to enter into this guilty plea
- [28:59]
Susan Matthews
because you are, in fact, guilty? Yes. How do you plead to count 15,
- [29:04]
Dahlia Lithwick
conspiracy to commit, filing false documents in
- [29:06]
Andrea Bernstein
indictment number 23 S.C. 1-888-947? Guilty.
- [29:12]
Susan Matthews
Have you and your attorney signed that indictment?
- [29:14]
J.P. Cooney
Yes.
- [29:14]
Andrea Bernstein
Is your guilty plea freely and voluntary
- [29:16]
J.P. Cooney
given with full knowledge of the charges against you?
- [29:19]
Mark Bittman
Yes.
- [29:21]
Dahlia Lithwick
What does it mean to reward people with taxpayer money, no less, for things they have admitted were wrong in some cases were violent, in all cases were illegal? Am I being naive to say, like, it is just hard to understand how any notion of a legal system or the rule of law survives. Survives. If folks have said, I did it, nobody's forcing me to take this plea. I'm totally sorry. It was an abhorrent thing to do. Oh, and now, like, my hands are out for the check.
- [29:55]
J.P. Cooney
I don't think it is over the top to say that it is functionally an overthrow of our criminal justice system and the rule of law. It is actually a hostile takeover of our government in that respect. I do have. I have hope that we can stop that, that we can do something about it, that it's not simply we've crossed the precipice and we can't turn back, but it is functionally, I think, not functionally actually overthrowing the rule of law.
- [30:26]
Andrea Bernstein
Dalia, I just wanted to add to that. What did they all plead guilty or what were they all convicted of? They were convicted of trying to overthrow an election in many cases. And also, you raised Georgia. And I just want to say, I. Obviously, Georgia is not the Justice Department. One of the arguments that the Trump team has made and that Todd Blanche, who defended Trump in the Manhattan District Attorney's criminal trial made was that this was. And Trump and his team, Trump made it often. This is the Biden Justice Department coming at us. There's some kind of collusion between the Manhattan District Attorney Alvin Bragg, and the Biden Justice Department. And we see this as the Biden Justice Department. So they are already creating the groundwork, and we should watch very carefully when they create the groundwork, because it's not accidental. It's not just hyperbole. It signals, almost always intent. What does that signal it signals that the people that are being prosecuted or were prosecuted in New York, Georgia, Arizona, all over the country, are potentially the victims of. Shall we just read this again? The sustained use of the levers of government power by Democratic elected officials to somehow undermine these people. It's not only saying, don't worry if you do this. It's saying, you're encouraged to do this. You're encouraged to come out and break the law on behalf of Mr. Trump. Of course, they don't see that as breaking the law, but under, you know, any other definition, I think There were what, 1500 cases that went through the courts in Washington, D.C. of January 6th. Defendants, judges, Republican appointed judges, Democrat appointed judges, accepted these pleas, oversaw these trials, presided. These people were convicted. This happened. So what this means is that there is this swath across the country of people who could apply for this fund. And let me just digress a moment if I could. One of the podcasts I did was called Will Be wild. It's about January 6th. And I did an episode was called the Tunnel, and it was about the tasing of police officer Michael Fanon. And the perpetrator in that case, Danny Rodriguez, had done a seven hour interview with the FBI, which was in the course of the proceedings made public. And he was filled with regret for having listened to President Trump, for having said, I thought I was following my commander in chief, and I came and I did this thing and it was horrible. What have I become now? There was a lot going on in that tape and that was one moment of it. But Officer Fanon also saw him as somebody who was sort of not the person at fault here. The person he felt was at fault was President Trump, then President Trump, for fomenting it. And that is a situation that we're creating. Is that all the future Danny Rodriguez's out there, don't have to worry about the outcomes under this settlement.
- [33:19]
Dahlia Lithwick
It's also such a perfect construction of a kind of, you know, the law is me. If the president does it, it's not illegal. In some sense. It's such a consolidation of the argument that the entire machinery of the legal system, every judge, every juror, every attorney, every single player that got to the point where someone was found guilty is irrelevant because the only thing that is relevant at the end of the day is the king and the enormity of
- [33:54]
Andrea Bernstein
what it means to accede to that
- [33:56]
Dahlia Lithwick
in a democracy, in a country that's based on the rule of law. This is beyond the pardon power. This is beyond anything we've ever seen. This is literally systematizing. That power to say nothing that ever happens to you in a court of law is final because there's gonna be a black box that's a hall of mirrors entirely ideolog, ideological and political, in which all that goes away. I mean, it's a stunning setting aside of the entire machine that we have constructed. And maybe I'm reiterating what you've both said already anyway, but I do want to pause for one second on this word weaponization. I mean, you've read it twice to us, Andrea. You know, what the settlement calls weaponization. But I also think it's really important, and maybe this goes to JP's point about not exceeding to the terms of the debate, but that word has no meaning. And, you know, it's become repeated and repeated the ways that witch hunt and deep state are repeated. It now has come to mean the opposite of what it meant when the term was first coined. Whatever it is, it's not a legal term of art. And I just want to ask both of you to reflect on the idea that we can't leave on the table that there's a thing called the weaponization of the Justice Department that makes all laws vaporize. Jp, do you want to react?
- [35:20]
J.P. Cooney
I mean, yes, we can't leave that on the table. That's right. I think it is such a function of. I mean, to put it back in the terms of January 6th in the aftermath. Do you remember there were two weeks remaining in the Trump administration when January 6th occurred? We returned the first criminal complaint charging a conspiracy to obstruct the certification before January 20, before the inauguration. That was the Trump Justice Department. That was what the Trump Justice Department stood for. Right. Was charging these January 6th attackers, and not just charging them for trespass, but charging them with an effort functionally to violently overthrow the peaceful transition of power. And there was in this moment, a realization by everyone in the country, Democrats and Republicans and citizens, that we have crossed a line. I think it was Senator Lindsey Graham said, this is where I get off the train. Right? This is where I get off the bus. And January 6th, attackers, actually, they, in many of their statements to the FBI, they expressed anger at Donald Trump for encouraging them all the way. The realization that I did go too far, and I did it for this liar, for this thief. But by simply using the word weaponization over and over and over again over the course of the next four years, we completely reversed in this country our understanding of what it means to be a weaponized Department of Justice. What the Rule of law stands for what it means to violate the rule of law. That complete arc has turned. You're right. Like, we actually need to change the rhetoric about which we speak about these things, because, I mean, just as a matter of definition, I believe this DOJ has been weaponized, but I never use that term anymore because it is so associated with a falsehood and a false narrative about January 6th and the way in which the Justice Department sought to hold people accountable for those crimes.
- [37:18]
Dahlia Lithwick
It's such a smart point because you're also connecting it up to your initial point about how the animating project here is rewriting January 6th. Right. The animating project is distorting history. And if you just use the word weaponization, it just, with such a broad brush, does that. Right. The entirety of those prosecutions were, you know, an evil, deep state doj. Andrea, do you have other thoughts on this linguistic trick? Weaponization has no meaning to me anymore.
- [37:52]
Andrea Bernstein
Yeah, I mean, I think that this is the word that Trump has been using. I mean, this sort of weaponization and capital. Lawfare is another one that is sort of used as shorthand to mean the unjustified legal tax on Donald Trump, particularly during the interregnum when he wasn't president. And I heard those words so often, so many press conferences by Donald Trump, by his lawyers. This is lawfare. This is weaponization. This is the system being used against us. And, of course, it was projection. It was how Donald Trump saw the world, how he's always seen the world, and what he intended to do if, as played out, he returned to the White House. So I agree we should sort of not use it. It is meaningless. I mean, I think what's so disheartening is that now that we're seeing the actual weaponization, we haven't come up with a good word to describe what is happening because of the way it was misused when applied to Donald Trump.
- [38:54]
J.P. Cooney
You're right, we haven't come up with a good word. But I think what we don't talk enough about is the concept of what's happening here, which it is. You know, prosecutual authority is supposed to be used to hold criminals accountable for their conduct. Right. For their crimes, and to enforce public safety. And now prosecutorial authority is being used to discipline for policy reasons, like in the Eric Adams case, or to discipline political loyalty, as in some of the prosecutions that have been brought, or to punish perceived political enemies and deter people from standing up to speak out in opposition to the government and to Donald Trump in particular. And so it is the way the objectives of the use of prosecutor authority that have been so twisted by this administration.
- [39:42]
Dahlia Lithwick
Two of the police officers who defended the Capitol on January 6th have now sued to block the slush fund. JP the standing argument from officers Harry Dunn and Daniel Hodges describes the daily risk of vigilante violence that they face. What has been happening and what do you fear will happen to the folks who had the courage to do their civic duty and to give evidence and to go on the record in these investigations and prosecutions? This is the water you swim in. I'm trying to think of why anyone would come forward under these conditions. I know they will, but what's the fear here?
- [40:17]
J.P. Cooney
Look, I have said before that I think that Donald Trump's abuse of prosecutorial authority has, in fact, had its intended effect. It is, in fact, deterring opposition. Certainly Capitol Police officers like Harry Dunn, who stand up now to continue to oppose the administration and other advocates for justice. It does not necessarily deter those people who are already in the public sphere, but the people who have not entered the public sphere seen the reaction when people do stand up to Donald Trump, not just from him and his tweets, right, but from his supporters making violent threats against them, against their families, against their children. When others see that, who are not necessarily in the public arena, who don't necessarily come from public service in their background, I think it does chill them from standing up. And I think, as a result, it is beginning to actually tear at the fabric of who we are as Americans. I think that there are people, for example, who in past eras might contribute to a political campaign or post something on social media to support a cause that they believe in who are not doing those things. And it's not always necessarily because they're scared that they're directly going to be threatened, but they're worried about the consequences for somebody they love or know, who works at the FBI or works at hhs, who they don't want to be punished for this. And that is part of what I mean is we seep further and further to a place where it is so much more difficult to come back, because Officer Dunn's always gonna speak up for what's right. Right? He's always gonna stand in that arena, but the legions of people kind of behind him might have a more difficult time doing it. And that is what I think is so threatening and corrosive.
- [42:08]
Andrea Bernstein
10,000% agree. I mean, it is definitely happening. I can hear it as a reporter. People are just afraid, or they don't want the Hassle, and it is pervasive.
- [42:22]
Dahlia Lithwick
JP I wanna ask you, just married to that, what does it mean to you that having prosecuted these events of January 6th, having worked so hard to tell the story of what really happened, what does it mean for you personally that this is all being flipped on its head and your work is being unraveled?
- [42:39]
J.P. Cooney
It is troubling, but it's not troubling on a personal level because it's not about the effort we put into work and things like that to have it undone. And it's to see the rule of law be unraveled so readily and so easily by this administration. And I have frustration with the fact that the institutions of government writ large across the spectrum, not just the presidential administration, but the legislative branch, the public, the media, we all appear collectively ill equipped to do anything about it. Right? Like this is continuing to happen. And yes, we're fighting back. And yes, I do believe ultimately truth will prevail. We will restore our democracy, decency at the Justice Department, et cetera, et cetera, I do believe that these things will occur. But to watch how far they are eroding in real time, that is what I find so troubling. But it's not on a personal level. It is on a everything that I was brought up to believe to work for in public service. And the way we went about doing our work, it turns out that it can be unraveled actually, quite easily and quite readily by someone that can exercise this level of tyrannical control across so many levels of government and so many levels of the public.
- [43:56]
Andrea Bernstein
I'd like to say that I feel bad for all of the work that was done by everyone involved here, by the prosecutorial teams, by the judges. Let's just sort of go back and remember that this happened during a pandemic. And all of these judges were, while running their courtrooms virtually in Washington, D.C. hearing these cases, and their dockets were just full of these cases, so many cases that went through the system. So I think it's okay to regret all of that work, Although I agree with JP that I started to think fundamentally it's not about any individual prosecutor, judge, lawyer who worked on this, but about what it means that something that is so carefully, thoughtfully arrived at can just be tossed out with a settlement fund such as this.
- [44:47]
Dahlia Lithwick
I would add, Andrea, because your work has been invaluable. You know, the reporters who sat in courtrooms and stood in lines and, like, had to eat the same hot dog from the same truck, you know, every day it's not just the machinery of justice. JP Made this point earlier, but it is, you know, the public that, you know, put skin in the game and the many people who are deeply invested in these prosecutions as a mechanism to understand what happened on January 6th and to sort of scramble that, I think is a wound, and I'm prepared to call it that, too. J.P. you wanted to add, it is a wound.
- [45:22]
J.P. Cooney
And here's where I think it is important to the condition we find ourselves in now because there was such a substantial effort across so many lines, prosecutorial, the FBI. Andrew, you said it. The courts, I mean, the District of Columbia court system completely reorganized itself to address the criminal justice system needs of all of these prosecutions. And you're right, journalists lined up every day in the courthouse to cover these trials and to bring truth to them. So to have it unraveled so quickly, that's part of what makes the opposition so much harder to muster. Right? Because you work so hard for such a long period of time, devote so much and sacrifice so much that when it is wiped away as readily as it has been by this administration, it can be difficult, I think, to motivate and muster the momentum to really stand up to it and stop it. That is not to say that I don't think people are, because I know that they are. I know that we are. But in that respect, that blow makes it so much harder to come back right and stand up for what's right.
- [46:31]
Dahlia Lithwick
We're gonna pause now to hear from our sponsors. And when we come back, more from Andrea and JP on the slush fund that broke the Watergate scale. And then Susan Matthews is here to spill the beans on the newest season of Slow Burn, all about the wildest, most neutral man in America, justice Neil Gorsuch. Lately, I've been trying to be super intentional about the clothes I buy and wear every day. And I just, just prefer to wear a few quality pieces that feel effortless and comfortable and still let me look kind of put together. Quince has been my go to on this front. Their fabrics feel elevated, the fits are flattering. Everything just works without me having to give it another thought. Quince makes it easy to refresh your everyday this spring with pieces that feel as good as they look. They use premium materials like 100% European linen, organic cotton, cotton, ultra soft denim, and their lightweight linen pants, dresses and tops start at $30 and they are effortless, breathable, and easy to wear on repeat. Everything at quince is priced 50 to 80% less than similar brands. They work directly with ethical factories and cut out the middlemen. So you're paying for quality and craftsmanship, not brand markup. I'm just going to tell you that I've been wearing three different colored Mongolian cashmere boat neck sweaters on rotation pretty much all winter and spring. They just get softer and cozier with every single wearing. And they're also weirdly the perfect thickness for layering. And every time I think about the price I've paid for wear, I am genuinely gobsmacked. Refresh your everyday with luxury you'll actually use. Head to Quince.comAmicus for free shipping your order and 365 day returns. Now available in Canada too. That's Q U-N-C-E.comAmigus for free shipping and 365 day returns. Quints.comAmicus.
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- [49:35]
Dahlia Lithwick
And we are back with Andrea Bernstein and JP Cooney. Andrea, I want you to talk now as somebody who's been covering the sort of Trump corruption industry as well as, if not better than anyone. And just tell me what it means for Trump to announce like I'm personally not going to benefit from this. Like no, nothing, you know, of any material advantage will come to me. Only the good people out there. I mean this is a trick. He does a lot, right? All the money's going to charity. Can you just lay out how he benefits from this?
- [50:12]
Andrea Bernstein
Except for the addendum which says he is forever immunized from any consequences. You know, and there were estimates that he might have had a hundred million dollar tax bill. I'm going to sort of just turn this a little bit because, you know, as you mentioned, I've been concerned about corruption forever. And as JP Will know, it is not necessarily the most popular field. It's kind of lonely. I think, as we move along in time, people are like, oh, they're all corrupt. That, I think, is the world that we live in. Everybody's corrupt. Republican Democrat Jeffrey Epstein. I've heard people say to me about Trump, why should I care about a rich man getting richer? Or I already know he's corrupt. What do I have to learn? However, I think something really interesting is going on right now, which is that it's finally cutting through. And I've often wondered to myself, what is it that makes corruption important to people, to voters? In other countries, there have been governments overthrown in Ukraine, in Hungary, where people have said corruption is the issue. Viktor Yanukovych was run out of town in Ukraine because of the corruption. There's now a museum of corruption where he lived to show all the excesses. So I think that we are in a situation now where people are beginning to focus on it. They are beginning to care about it. All of us are feeling the squeeze. Yesterday I was in Harlem and I saw gas is $7 a gallon. This is a new time. We've seen around the world, popular movements rise up and say, we don't believe in corruption. That has been something that has really not been integrated into the American political system. And I think what we see with a settlement fund like this is that nobody believes it when Trump says, I'm not benefiting, everybody can see that he's benefiting. And. And we're in a situation where it is becoming upsetting to people who are struggling that Trump and his allies are making so much money and they are struggling. And I, for one, am interested to see how this plays out. There may be a point at which, you know, this seems like, okay, this is just beyond, beyond. Neither JP Or I could put it on a scale of the Watergate scale, but it may mean something politically, which is, as we've discussed, may be the arena where this is solved.
- [52:31]
Dahlia Lithwick
JP I think you might agree with Andrea that there is some utility in having it so in your face that people can actually understand what. I'm not using the word weaponized, but what internally corroded hell for leather prosecuting the enemies of the president DOJ looks like. Is this also breaking through in the way that Andrea's talking about corruption, which is people are starting to finally say, oh, it actually really matters that the Justice Department has, you know, policies and guidance that Keep it from doing this.
- [53:05]
J.P. Cooney
I think the way of putting it is sometimes things have to get worse before things can really get better. Right. They have gotten really bad. One can only hope that they don't get worse. But I think that's right. I think things have turned so ugly within the Justice Department, but also within the country, our economic security, our public safety, our international reputation, that people are beginning to recognize that there is a real tangible harm associated with corruption, and corruption being using the levers of government to enrich oneself, because you can take any of our large national issues. Now, I mean, what I like to talk to people about sometimes is, did you know, because a lot of people don't, that the son in law of the president of the United States, Jared Kushner, is actually responsible for trying to negotiate Middle east peace? And at the same time, his business model is to solicit payments from those governments to his business. Like that's his job. And people recognize that, well, wait a minute. That person then isn't negotiating for the United States, for the American people. That person is negotiating for himself and his bottom line. And you can put that example in almost every single bucket of national problem that we have now. And so Americans, day in and day out, are staring it in the face. They can see with their own eyes that, wait a minute, whether it's gas prices, whether it's groceries, whether it's public safety, because in the District of Columbia, grand juries are refusing to indict people with ordinary crimes because they don't trust the Justice Department. People can see the impact that that corruption has in their daily lives.
- [54:48]
Dahlia Lithwick
Let's maybe end on this note. The danger with Trump has always been this. That which seemed unthinkable becomes inevitable. But while MAGA learned lessons in the past few years, the opposition has learned lessons, too. Democrats seem to have taken note of the speed necessary to respond. And as we've noted, on Wednesday, Jamie Raskin, the top Democrat on the House Judiciary Committee, lodged a bill to block the fund. I think we can agree this alone isn't going to solve the problem. But I do want to talk about this. That question I asked in the introduction to this conversation, what are we gonna do about this? And I wonder from each of your wheelhouses. And we can start with you, Andrea. I'd love to hear how you think through tackling the scale and the scope and the breadth of this crisis.
- [55:35]
Andrea Bernstein
It's important to remember, and I always forget this, but with Donald Trump, you're never at the this is the worst. This is the BOTTOM it can always, there can always be something unimaginable, imaginable, and then it becomes imaginable, as you just said. Now, having said that, you know, I, I think I've ended being a guest on your podcast before with quoting Hannah Arendt. And I'm going to do it again because Hannah Arendt, who wrote the Origins of Totalitarianism, always believed in the possibility of a different outcome and always believed that no matter where we are, human action can change things. And I believe that it may not always be clear how, it may not always be clear what the way is, but I believe it can be done. I think this awakening that we've been talking about is an important part of this awareness, is very important. You know, I believe all the hours that JP spent in court and looking at documents and the hours that I spent in court looking at documents mean something and will mean something and that we can hang on to that as the basis for a future where things are reimagined.
- [56:39]
J.P. Cooney
How about you, J.P. i agree 1000% with what Andrea said. I have optimism and faith in people and in good faith. And I do like to go back and look in history, right, for examples of where we stood up to moments like this in our country. And it can actually be sad to do that because you see it failing. And the example that I always like to use is to go back to the Watergate era and, and after Nixon was ordered by a judge in the District of Columbia to produce the tapes under a subpoena, the Attorney General and the Deputy Attorney general resigned rather than fire the special prosecutor at his direction. Right. Rather than participate in his corruption. That was the Saturday Night Massacre. And after the Saturday Night Massacre, hundreds of thousands of Americans telegrammed their members of Congress or the White House to protest what had occurred. And it was on the heels of that that Republicans in Congress joined with Democrats to begin the impeachment proceedings. The court system continued to move with alacrity to enforce other subpoenas and try the other Watergate co conspirators. The media continued to play its role in holding the administration accountable. And you contrast that with this era when we prosecuted Donald Trump. The Supreme Court certainly did not move with the same alacrity on an issue of national importance. The American people didn't react with the same outrage. Certainly Republicans in Congress have raced to support the President and the media. There are still incredible journalists like Andrea that are holding this administration accountable, but they are countered by non media components that are engaged in disinformation. But to go back in that really long example of what was the thread though that got it going. It was public outrage that motivated the other systems of government, the other institutions of government to really step forward. And to go to Andrea's point, I think we're beginning to get to a point now where people are seeing it in their day to day lives and that will percolate up and that's the kind of confidence that I have that we can actually make a difference here. But it's going to have to start with regular people.
- [58:49]
Dahlia Lithwick
JP Cooney was a career federal prosecutor for 18 years. He was also the top deputy in Jack Smith's special counsel's office and before that he led numerous complex corruption investigations into public officials. He is now a founding member of Gaston and Cooney, a small public service oriented law firm and a senior fellow at Berkeley Law School's Edley center on Law and Democracy. JP thank you very, very much for making my brain work really hard today in the best possible ways. It was great to have you right back at you.
- [59:20]
J.P. Cooney
I'm really privileged at the opportunity.
- [59:22]
Dahlia Lithwick
And Andrea Bernstein is a Peabody and DuPont Columbia Award winning investigative journalist, author and professor. She covered five trials of Donald Trump and his business for NPR and has co hosted the podcasts Trump Inc. Will Be Wild. We don't talk about Leonard and the Law According to Trump. She's author of the bestselling book American Oligarchs, the Kushners, the Trumps and the Marriage of Money and Power. Andrea, thank you so much for being with us. Us.
- [59:49]
Andrea Bernstein
Thank you Dalia and great to talk to you.
- [59:51]
Dahlia Lithwick
JP. And now we turn from the White House and the treasury and Main justice and possibly your wallet, back to 1 First Street. We are almost at the end of May, about to launch headlong into the final sprint of the Supreme Court term, something we around here call Opinion Palooza, which is perfect timing for the newest season of Slow Burn. Becoming Justice Gorsuch. Joining me now is Susan Matthews, Slate's executive editor and host of this deep, deep dive into a Supreme Court justice that, as everyone can agree, nobody knows anything about. Neil Gorsuch may not be the best known justice on the Supreme Court, but Susan says he may just be the key to understanding how and why the current court has come to wield so much power over our day to day lives. For this series, she interviewed folks from Gorsuch's past, along with legal experts, including both your amicus co hosts, to really try to get to the heart of who he is, what shapes his jurisprudence worldview, where he parts ways from some of the other more conservative members of the high court and what you can expect from him in the decades. Yes, I said decades ahead of him on the high court. It's a deeply reported look at how Justice Gorsuch laid the foundation for a SCOTUS supermajority and became its most unexpected wildcard. And if you haven't joined Slate plus, just so you can download all the episodes right now, I promise by the end of this conversation, you will want to. Hi, Susan.
- [61:22]
Susan Matthews
Hi, Dalia. Thank you for having me.
- [61:24]
Dahlia Lithwick
So I want to start by asking, why did you want to make this series? And why Neil Gorsuch and why now?
- [61:32]
Susan Matthews
Longtime listeners of Slow Burn will know that the eighth season was called Slow Burn Becoming Justice Thomas. And that was a look, obviously, at the rise of Clarence Thomas. And ever since we did that series, I had thought Slow Burn really needs to spin off and do each of the other justices, because when we did Clarence Thomas, it was like all of these things about him and his total strangeness on the bench just clicked into place. And I think that one of the things that I've learned definitely from watching Ewan Mark work is that there is a little bit of the palace intrigue of watching these people. But understanding who these people actually are is quite important. They have so much influence on our lives. And we just look at them as like the court. They're neutral. They wear the black robes. They're just these bodies who are ingesting law and spitting something out. And I think listeners of this show are aware that that is not the case. But from when we did Justice Thomas, I really wanted to move on and do everybody else on the bench. And why Justice Gorsuch in general? Because, yes, he's the most boring one. We had this running joke that people couldn't pick him out of a lineup. We actually have a quiz on slate.com where you can try to identify Justice Gorsuch in all these different scenarios. I think that the reason why I really wanted to focus on Gorsuch is because he's so anonymous, and yet his jurisprudence is really interesting and we'll get into that. But I think most significantly, he is this moment where I think the current court has broken. He takes Merrick Garland's seat, and he is the start of this super majority. And we've lived through so much since that, Brett Kavanaugh's nomination, Amy Coney Barrett's nomination that have both been so much more dramatic that I felt like this was a piece of recent history that we do all Remember? But it's been buried under so much muck and excavating. That was a real. This is how this started.
- [63:34]
Dahlia Lithwick
It's so interesting because as you're talking, I'm thinking about last week's guest, Elise Hogue, who reminded us that liberals think of the Supreme Court as a pathway to justice and conservatives think of it as a pathway to power. In some sense, what you're saying is Gorsuch becomes the hinge in which it becomes the pathway to power, whatever the consequences. And so in that sense, he's a really interesting choice because that's sort of almost when I carbon date my own sense that, oh, this doesn't have anything to do with being a court anymore.
- [64:04]
Susan Matthews
Absolutely. And when you look back into his timeline in his life, he maps onto this moment when conservatives realize, oh, we need power at the Supreme Court, the 1980s, post, all these liberal rulings, post Roe v. Wade. This is the birth of the Federalist Society. We get into all of that on the show. He's in law school right at the right time, so his own life tracks on completely to that. And then his elevation to the court is the real manifestation of that taking hold.
- [64:34]
Dahlia Lithwick
Speaking of the 1980s, one of the people you interviewed was his freshman floormate at Columbia undergrad, and she had lots and lots of memories of Gorsuch. One of the most recurring was his propensity to kind of go into the common lounge and debate liberal students. You know, kind of. I'll take all comers, including her. What were the kinds of arguments that they would get into?
- [64:59]
Susan Matthews
He definitely says, and I think that this is one of the most chilling things that she told me. He wanted to go to Columbia because it was liberal, and it was exactly the place where he wanted to cut his teeth on making these arguments. While he's at Columbia, he starts this conservative newspaper called the Federalist Papers. He's the editor of it. They're doing things like defending Reagan during Iran Contra. The one that I think is actually the most hilarious is that there's a running debate about how Columbia is so focused on diversity, but not ideological diversity. Like, it could just be ripped from right now back into the 1980s. So he's at the forefront of kind of all of these annoying arguments. But with Liz in particular, they're obsessed with debating abortion. And it's this moment that I think is really interesting, because Liz is in College in the 1980s. Roe has been at least 15 years before that. So she's come of age with this understanding of, like, I have this Right. And I think that the conservatives and I think men generally in this moment are kind of thinking, this is a pretty new law. Is there something that we can do about this? And so they're just constantly going at it around these hypothetical scenarios of Liz saying, like, what if it's a 12 year old who has been abused? And Neil Gorsuch just reveling in explaining why that is wrong.
- [66:16]
Dahlia Lithwick
So the Liz here is Liz Pleshette who you spoke to. I want to play a little clip from your interview with her because she tells you what those debates are like in a way that I think really chimed with sort of something we were familiar with. Let's have a listen.
- [66:35]
Susan Matthews
A bunch of us had confronted him
- [66:37]
Dahlia Lithwick
in the freshman lounge at some point and said, you're so frustrated with how
- [66:42]
Susan Matthews
left wing everybody is here and you
- [66:44]
Dahlia Lithwick
know, what you consider to be hippie
- [66:46]
J.P. Cooney
culture, loosey goosey supportive policies you don't approve of. Why are you here?
- [66:53]
Dahlia Lithwick
And he said, I am here because I thought this was the best environment
- [66:57]
J.P. Cooney
for me to cut my teeth with the opposition.
- [67:01]
Susan Matthews
By the end of their freshman year, Liz had stopped going to the common room. If she saw that he was hanging out there, she just didn't want to have to deal with debating him anymore. She told me that she had realized that their debates always ended with. With her getting upset and emotional, but they didn't seem to have any impact on Neil and Susan.
- [67:20]
Dahlia Lithwick
You and I talked about this very particular type of guy for your show.
- [67:26]
Susan Matthews
You actually crystallized it for me when you explained it. Dalia. There's just a certain type of guy who loves to debate liberal women on abortion. And the thing that Liz said to me that just broke my heart or just made me feel like, oh my gosh, I know that feeling is, she said, I realized that I would get upset having these conversations and he would just never get upset. And the way that these debates are not intellectual circuses where we're spinning around and pirouetting and doing backflips on a tightrope. They're life and death. The stakes for us are just totally different. And that to me just felt so present to so much of what we talk about when we look at the law and what we're actually talking about. The people who can kind of think of it as this interview and like, what does the Constitution say? How can I find the history that da da da da. Like, it's just totally different.
- [68:22]
Dahlia Lithwick
It always reminds me of that, you know, women are hysterical and you have to sort of drain all that out in order to be as sort of bloodless and neutral as you have to be to really have an opinion about abortion. And in some ways, what Liz is describing to you is this sort of precursor of how that comes to be really, really embodied at the Supreme Court. One other thing that Justice Gorsuch, it's just such a, like, kink of his, and it's so interesting to me is he's obsessed with civility in much the same way that Justice Anthony Kennedy, Sandra Day o'. Connor. Right. There's nobody on the court that doesn't talk about civility and propriety. And I think we had a whole conversation on your show about how that codes really differently for different people. And you make the point in the show. His entire confirmation hearing was a meditation on civility and the need for it. Chief Justice Roberts said the same thing a couple weeks ago. Right. Civility is what we are lacking in discourse around the court. And then they really double down on that and keep insisting that judges and Supreme Court justices are not political actors. For some reason, the core notion of civility is we float on some cloud where politics doesn't exist. So, like, please treat us as such. And we just know that's not true. I mean, empirically it's not true, and objectively it's not true. We are living in a world where it is fundamentally not true. But Gorsuch is super interesting because he's been out on a media tour for the last couple of weeks. He's been on many, many shows and podcasts. He has a children's book about the founders coming out. And for all of these explicit, repeated assertions that he is not political and he is not ideological and politics has nothing to do with the project of being a Supreme Court justice, at least on one of these tour stops, he told Megyn Kelly that young conservatives should have the courage to stand by their beliefs. Let's have a listen.
- [70:25]
Andrea Bernstein
I think our founders would be shocked to see how difficult it is for especially right leaning young people to own their politics. Politics in school that they, you know, if discussions come up about Columbus Day or the Supreme Court or the presidential election, many young conservatives feel the need to keep their mouths shut. What do you make of that? I love our First Amendment and the
- [70:52]
Dahlia Lithwick
opportunity to speak your mind and you should do so freely and bravely. Don't forget, this is on the heels of, you know, Justice Thomas saying that he too is for civility, but also like progressive, progressives suck. And I guess I'm just really, really curious. This kind of Feels like trolling. It feels like I'm trying to be charitable. Maybe they genuinely believe that this is the hallmark of civility, is being apolitical and just telling us that over and over again. I'm a little confounded. Give me guidance.
- [71:23]
Susan Matthews
It's civility for thee, but not for me. But I genuinely think that they don't understand this. And I think it connects back to what we were just talking about with abortion and with neutrality and in. With the way that Justice Gorsuch rules and his jurisprudence. The thing that he says all the time is that he's not outcomes oriented. So he really thinks that because he is just reading the law. And if the outcome is ridiculous, well, then you should go change the law. That is not up to me. I think that that is so interesting because it is. The stakes of all of these decisions is just completely missing from the justices when they're doing this work, even though they do have to understand on some level. I mean, we're having this conversation in the WA of Calais, which still just feels like it's completely ripping through our democracy and having these obvious ramifications right now immediately that we can see. And it's so confounding to hear them say we're just reading the law, like we're totally fine. Then they also, John Roberts, et cetera, has the temerity to talk about the unbelievable threats to judges and justices. And I listened to your conversation a couple weeks ago with the judges who are willing to talk about that. There's no across purposes. We're in it for the entire judiciary. We understand that this is happening across the board, and we can be reasonable and separate out these types of behavior. It's just totally, this is my world, and this is how it reflects to me. And this is their world, and this is how it does to them.
- [72:57]
Dahlia Lithwick
Yeah, I mean, what you're distilling, which I think is so interesting and important, is this meditation on the framers were political. The first Supreme Court justices were political. They are chosen by political machinery. They decide politics. Every single part of the job is inherently political. And the notion. And it kind of dovetails with standing and debating. Liz, in Columbia as freshmen, right? Is that like. No, you're political? Like, what I am is neutral for me. Susan, one of the most interesting parts of your conversation that you had with Mark and I for the show was this, like, Gorsuch, you know, writes this book about how law is strangling us, and he is fighting for the little guy, right. To decouple the little guy. From all of the horrors of the regulatory state that are making it impossible for him to live. But this whole who is the little guy here, apparently it's conservative students who don't feel that they, they can speak. And it's so fascinating that everyone else is political and Gorsuch decides who is neutral and who is the little guy.
- [74:10]
Susan Matthews
Yeah, it reminds me of, like, the analogy here is that, like, it's a horse with blinders on, where when they're deciding, like, what is neutrality, they're just looking straight ahead and the rest of us have to live in the real world. And so we're looking at the entire thing and being like, well, if this input is going in like this, and this input is going in with that, and it's only the people who have the privilege of just turning all of that off that are able to do this. And it's so frustrating. And I just think that in the show in particular, the kind of example of this demonstration of neutrality, when what is happening is so political, is the moment that he gets to the nomination and is seated on the bench because there are all of these machinations beforehand of taking the seat away from Merrick Garland and from Obama to give it to him, and then he is the guy because he can just show up and be like, well, gosh, golly, I just arrived here and I'm just a judge from Colorado who reads the law. Like he, that is his superpower is that he is just able to stand there in front of this tornado of politics and say with a straight face, but it's just me, Neil Gorsuch. I'm doing nothing.
- [75:18]
Dahlia Lithwick
The most neutral man in America. Rapid fire lightning round. Last question, Susan. What is the one thing that you learned about justice, Neil Gorsuch, that surprised you the most or that you want people to know? And it is totally fine to say, hey, you have to listen to the show to find out. But one thing that reshaped the way you think about him after you made
- [75:41]
Susan Matthews
the show, I have to say the main thing that I learned that made me empathize with him is what exactly happened with his mother, which is a story that is kind of of legend. She's the head of the epa. But the thing that I learned for the show is that when his mother became the head of the EPA, his parents were getting divorced. Neil was 15 years old. And they decided that Neil would go with his mother to Washington, D.C. and his two younger siblings would stay with his father in Denver. And that just was kind of a crystallization moment of like, oh, that's why this had such an effect on him. That's why this was so outsized. And I just kind of had this moment of realizing like that was probably pretty weird and pretty hard.
- [76:24]
Dahlia Lithwick
It feels like you're saying he, he got D.C. and his parents divorce, which
- [76:29]
Susan Matthews
is he got D.C. and he got Georgetown prep and he got a Washington scandal. He got a lot in his parents divorce. And I feel for him on that.
- [76:38]
Dahlia Lithwick
Okay, Susan, tell the good people how and where to listen to Becoming Justice Gorsuch.
- [76:45]
Susan Matthews
It is in the Slow Burn feed. You can go to slate.com slowburn+ and the other thing that I would say to listeners that I just learned in setting up my feeds again, I had had Slate plus for a really time. We also have a great website that is slate.com podcast faq where if you are having any trouble listening to anything in any other place, Apple, Spotify, whatever, go there and it will fix it for you.
- [77:14]
Dahlia Lithwick
I promise tech support and a deep dive on Justice Gorsuch with Susan Matthews. Susan is Slate's executive editor. She's host of this season of Slow Burn, becoming Justice Gorsuch's Susan, as always, I learned so much from you. I'm so grateful to work with you and congratulations. This was, I know, an immense amount of work. Thank you.
- [77:38]
Susan Matthews
Thank you for your contributions to it.
- [77:40]
Andrea Bernstein
Dalia.
- [77:45]
Dahlia Lithwick
That's all for this episode, but Amicus plus members are just about to join Mark, Joseph Stern and me in the smokeless cigar bar of Dreams, otherwise known as the Amicus plus bonus episode. In today's Member exclusive episode crammed with all the legal news we couldn't quite squeeze into the main show, we're going to talk about a very weird split at the Supreme Court over a death penalty case. Dissents from Alito and Thomas plumb new depths, but Justices Kavanaugh and Barrett threw in with the liberals. Why? Mark's going to explain all. Also, just when we think thought Justice Department lawyers had faced peak humiliation in court, the transcripts of the Broadview six case in Chicago reveal a staggering level of manipulation, dishonesty and incompetence all called out by the judge. Visit slate.comamicusplus to listen to that. By joining, you not only support our work, you also get loads of extras, games, early episode releases of slow burn and ad free listening and paywall free reading@slate.com you can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and questions. Keep them coming. We are reachable by email@amicuslan. You can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or rate us and review us on Apple Podcasts. Sara Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad Hillary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of Operations. We'll be back with another episode of Amicus next week. This episode is brought to you by the world's leading ESIM brand, Airalo. Summer travel season is almost here, and as gas and airline prices rise, there is one travel cost you can save on this summer thanks to Airalo international data. If ESIMs aren't on your radar, my family have used them. They're incredibly easy and affordable. Airalo offers ESIM packages providing Data in over 200 destinations and is trusted by over 30 million travelers worldwide, including both my husband and me. With Airalo, it's one less thing to worry about. Search for your preferred package, activate your ESIM and you're online the moment you land. No hidden fees and no wild roaming charge surprises travelers using Arrow Airalo can save on average over $70 on a one week trip compared to traditional carrier daily fees. We enjoy travel more when we can stay connected. And with Airalo, wherever you go, you can use your phone the way you do at home, from maps to dating apps, helping you to unlock the most authentic local experiences. Break free of the tourist trails and really connect with the places and the people you visit. Just make sure your device is unlocked. And of course, Airalo keeps you connected to everyone back home because Airalo partners with top local carriers for the strongest, most reliable connection. You can livestream your whole trip to your hordes of adoring fans or just your mom. Get unlimited data this summer@airalo.com that's a I R A L O.com.
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J.P. Cooney
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