Trying To Undo A Coup, In The Courts

Summary

Amicus Podcast Summary: "Trying To Undo A Coup, In The Courts"

Podcast Information:

• Title: Amicus With Dahlia Lithwick | Law, justice, and the courts
• Host: Dahlia Lithwick
• Episode Title: Trying To Undo A Coup, In The Courts
• Release Date: February 8, 2025
• Description: Amicus explores the intricacies of the law and the role of the nine Supreme Court justices in interpreting it for America.

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Introduction

In the February 8, 2025 episode of Amicus, host Dahlia Lithwick delves into the alarming attempts to undermine the U.S. constitutional system through legal maneuvers by the Trump-Musk administration. The episode, titled "Trying To Undo A Coup, In The Courts," features in-depth discussions with prominent legal figures, including Judge Nancy Gertner and Slate senior writer Mark Joseph Stern. The conversation centers around the surge of lawsuits aimed at resisting executive overreach and preserving the rule of law amidst what many describe as a constitutional crisis.

The State of the Rule of Law

Dahlia Lithwick opens the episode by painting a grim picture of the current state of American democracy. She describes a scenario where Elon Musk and his associates are exerting unprecedented control over federal agencies, leading to the dismantling of government programs and harassment of federal employees. Lithwick emphasizes the severity of these actions, stating:

"The United States is in the throes of a constitutional collapse that is a function of Elon Musk and Doge not elected, not a government agency simply exercising a crude line item veto of the entire US Federal government."
— Dahlia Lithwick, [02:36]

Legal Resistance and Court Cases

Judge Nancy Gertner’s Efforts

Judge Nancy Gertner, a retired U.S. District Judge and senior lecturer at Harvard Law School, provides a comprehensive overview of the legal battles underway to counteract executive overreach. She outlines the vast array of lawsuits filed across the country, many spearheaded by volunteer lawyers and legal organizations such as State Democracy Defenders. Gertner highlights key areas of legal challenges:

"There are numbers and numbers of lawyers... People have brought lawsuits with every inappropriate executive order... spread out across the country."
— Judge Nancy Gertner, [05:42]

Gertner discusses specific cases, including those challenging executive orders on birthright citizenship, immigration policies, and the impoundment of funds. She underscores the strategic legal approaches being employed, anticipating that while the Supreme Court may not address every case, these lawsuits create vital "sand in the gears" that impede unlawful executive actions.

The FBI Personnel Case

A significant portion of the discussion centers on a lawsuit aimed at protecting FBI agents involved in the January 6th investigations. Gertner explains that the administration's actions threaten the privacy and job security of these federal employees by attempting to disclose their identities and roles:

"The fear is that it's not unreasonable under the circumstances that the names of these individuals will be released... Workers are being harassed or let go... This is unconstitutional."
— Judge Nancy Gertner, [08:15]

She elaborates on the implications of these actions, emphasizing that targeting law enforcement officers undermines the very fabric of lawful governance:

"You're talking about ordinary law enforcement. So there's a brazenness to this that gives me pause."
— Judge Nancy Gertner, [32:41]

Other Key Lawsuits

Gertner categorizes the ongoing legal battles into major "buckets," including:

1. Immigration-Related Issues: Challenges to executive orders affecting birthright citizenship and sanctuary cities.
2. Access to Information: Lawsuits against Musk's DOGE team for unauthorized access and manipulation of federal data systems.
3. Removal and Firing of Officials: Efforts to prevent the unlawful dismissal of career civil service employees.

She warns of the administration's possible disregard for legal boundaries, suggesting a deliberate strategy to act unlawfully with the expectation that courts may be unable to contain their actions:

"It's possible that they're intentionally violating the law and court orders will not matter. Then we have a full-fledged coup."
— Judge Nancy Gertner, [11:32]

The Challenge of Enforcement

Mark Joseph Stern joins the conversation to discuss the existential threat posed by the administration's tactics. He highlights instances where governmental bodies may be undermining court orders, potentially rendering temporary restraining orders (TROs) ineffective. Stern points out the discrepancy between the administration's public statements and investigative reports revealing unauthorized system manipulations:

"...it remains unfortunately unclear whether these temporary restraining orders and injunctions will have the full impact that they should."
— Mark Joseph Stern, [42:47]

He underscores the importance of continued litigation to enforce legal boundaries and urges the judiciary to consider imposing sanctions to uphold court decisions effectively.

Judges Standing Up: Judge Kunauer’s Ruling

A pivotal moment in the episode features Judge John Kunauer's decisive injunction against President Trump's executive order on birthright citizenship. Judge Kunauer's ruling is a robust defense of the Constitution, rejecting the administration's attempt to alter fundamental rights through executive fiat:

"The rule of law is, according to him, something to navigate around or simply ignore... Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow."
— Judge John Kunauer, [52:53]

Dahlia Lithwick and Mark Joseph Stern analyze Judge Kunauer's statement, interpreting it as a powerful condemnation of executive overreach and a reaffirmation of judicial independence. Stern elaborates on the judge's frustration with the Justice Department's misleading arguments, emphasizing the judiciary's role in resisting constitutional violations:

"Judge Kunauer... is trying to amend the Constitution by executive fiat. You cannot pass that off in euphemisms about correcting a misunderstanding."
— Mark Joseph Stern, [55:13]

Conclusion and Calls to Action

In the episode's closing segments, both Judge Gertner and Mark Stern advocate for active civic engagement and legal resistance. Gertner urges individuals to participate in demonstrations, contact legislators, and support legal organizations fighting against unconstitutional actions:

"People have to know about it. The judges have to know about it as well. These are the boundaries of our democracy."
— Judge Nancy Gertner, [27:06]

Mark Stern emphasizes the necessity of continued litigation and the judiciary's role in maintaining checks and balances:

"Litigation can help sort that out. The mere clarity that it will provide... will be useful in helping progressive groups and other groups resisting Trump finesse and shape their litigation strategy moving forward."
— Mark Joseph Stern, [48:26]

Dahlia Lithwick wraps up the episode by reiterating the critical nature of these legal battles in preserving the nation's constitutional integrity and encouraging listeners to stay informed and involved.

Notable Quotes with Timestamps

• Judge John Kunauer [52:53]:

  "The rule of law is, according to him, something to navigate around or simply ignore... I refuse to let that beacon go dark today."

• Judge Nancy Gertner [05:42]:

  "There are numbers and numbers of lawyers... People have brought lawsuits with every inappropriate executive order... spread out across the country."

• Dahlia Lithwick [02:36]:

  "The United States is in the throes of a constitutional collapse that is a function of Elon Musk and Doge... This is unconstitutional."

• Mark Joseph Stern [42:47]:

  "It remains unfortunately unclear whether these temporary restraining orders and injunctions will have the full impact that they should."

Key Takeaways

• Surge in Legal Action: A multitude of lawsuits are being filed nationwide to challenge executive orders and actions perceived as overreaching or unconstitutional.

• Judicial Resistance: Judges like Nancy Gertner and John Kunauer are playing a crucial role in upholding the rule of law, issuing injunctions, and setting legal precedents against executive overreach.

• Challenges in Enforcement: Despite legal victories, there is apprehension about the administration's commitment to respecting court orders, potentially undermining the effectiveness of judicial interventions.

• Call for Civic Engagement: Legal experts stress the importance of public involvement, from supporting resistance groups to active participation in democratic processes, to counteract attempts to erode constitutional safeguards.

Final Thoughts

This episode of Amicus serves as a stark reminder of the fragility of democratic institutions and the paramount importance of the judiciary in safeguarding constitutional principles. Through insightful discussions and expert opinions, Dahlia Lithwick underscores the ongoing struggle to maintain the rule of law in the face of unprecedented challenges.

Transcript

[Dahlia Lithwick]

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[Judge John Kunauer]

It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain. Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.

[Dahlia Lithwick]

It is hard to express how truly horrifying the week's events have been in the bloodless language of the nuts and bolts of democratic governance, the agencies, the agents, the federal workers, 40% of whom are people of color, and the contracts and the recipients of funding. But the United States is in the throes of a constitutional collapse that is a function of Elon Musk and Doge not elected, not a government agency simply exercising a crude line item veto of the entire US Federal government. Musk and his cadre of young tech bros in training have taken over the Office of Professional Responsibility, the General Services Administration, the financial information housed at the treasury, and they are just canceling out government programs that Musk disfavors, including usaid, the United States Agency for International Development. Workers are being harassed or let go. Data is disappearing, hearing, identifying, personal information being released to the whims. This is unconstitutional. It violates a whole host of laws. It's taken a week for the corporate media to call it illegal, or what it would be called were it happening anywhere other than the United States. A coup. But we do seem to be getting there. And the courts are catching up too. The clip you heard at the top of the show was from John Kunauer, a Reagan appointed judge in Washington State slapping an injunction on Trump's attempt to overturn birthright citizenship with a stroke of the pen. Later on in the show, Slate senior writer and amicus sidekick Mark Joseph Stern will be joining me to try to sort the trees from the forest, the temporary restraining orders from the nationwide injunctions, and the facts from the flack. Now, last week when we talked about what was happening with Kim Lane Shepley, an expert on autocratic takeover, she said.

[Judge Nancy Gertner]

Everything that this administration does now that is bringing down democracy and causing pain should be met with friction. You may not be able to stop it, but you can slow it down.

[Dahlia Lithwick]

I want to commend that episode to you if you're struggling to understand what is happening right now and why. But this week we want to turn to the lawyers of the Resistance, because there are a lot of them and they are, at least thus far, absolutely winning in court. Slowly, yes, because the law is a turtle with a limp. But wins in court equals sand in the gears. Judge Nancy Gertner is one of the lawyers laboring to slow it all down. Judge Gertner is on the board of State Democracy Defenders, one of the many, many groups of extraordinary volunteer lawyers who have scrambled to file emergency lawsuits. They represent FBI employees threatened with retribution, Americans whose data has been compromised at the treasury and many targeted in the opening weeks of Trump's second term. Judge Gertner is a former judge of the United States District Court for the District of Massachusetts. She retired from the federal bench on September 1, 2011. She's a senior lecturer at Harvard Law School. Along with a broad coalition of volunteer lawyers, law firms, good government groups, and others, Democracy Defenders is bird dogging every step of the Elon Musk takeover of the government and of Donald Trump's rule by fiat. Judge Gertner, welcome back to Amicus. And I know you're running in a million directions at once, so thank you very much for taking a little time to sit down and sort us out this week. So welcome back, Judge Gertner. You've been on the show before and we really I know you're running around putting out fires everywhere, but thank you for taking a little bit of time to be with us today.

[Judge Nancy Gertner]

You're welcome. It's great to be here.

[Dahlia Lithwick]

Judge Gertner, the state of play right now is extremely disorienting, and I wondered if you could help lay out what you see from where you are sitting, which is a wave of lawsuit after lawsuit being brought by an array of lawyers and groups. Can you just describe the landscape of the various legal fights that are happening right now?

[Judge Nancy Gertner]

There are numbers and numbers of lawyers. I get calls all the time from people who want to volunteer. And people essentially have taken with every inappropriate executive order, people have brought a lawsuit. The lawsuits are largely in the District of Columbia, and there's an interesting relevance to that, but they are, in fact, spread out across the country. There are lawsuits in Massachusetts. There are lawsuits all across the country. What's really extraordinary about this is that in my part of this, which was just dealing with the FBI agents whose identities are likely to be on the verge of being disclosed, that would be both preparatory to harassing them personally and also being disclosed on their way to being fired. My piece of it is really only one part of it. There are people who are challenging the various executive orders, access of musk to the omb, people who are challenging the immigration, the birthright citizenship issue, the various impoundment issues. There are people who are bringing those cases. They're largely in the District of Columbia, as I said. But there's also a very interesting reverse Supreme Court logic here, Dalia, which you'll be interested in. These cases are going to go to the district court. Trial judges are going to say there should be an injunction or there should be an injunction. At that point, whoever loses will go up to the court of appeals. Everyone is saying we'll wait for the Supreme Court. They are surely going to sadly bail Trump out for all of these orders. Supreme Court, as you know, cannot take 45 cases. Supreme Court is not in a position to tamp down on all of the orders that are percolating up from the district court. Would they take birthright citizenship? Yes. Would they possibly take the impoundment cases? Yes. But all of the other cases which we can talk about, they cannot possibly address, not because they wouldn't want to, but they are simply not equipped to be a court of appeals over all of these cases. They take very few cases. So, I mean, I don't know of any action anywhere that has not been met with a lawsuit. But who knows at this point?

[Dahlia Lithwick]

Can we talk for a minute about the FBI case that you're working on? Judge I want to really flag for listeners. We are taping this on Thursday. Things are going to change. But can you just walk us through what the claims are and what the relief sought is?

[Judge Nancy Gertner]

So on February 2, FBI leadership from the acting attorney general instructed agents to fill out a survey identifying their specific roles in the January 6th investigation. Very interesting, right? They probably could have figured that out from their own assignment sheets, but they literally asked everyone to fill out a form identifying their role. There are two cases that deal with FBI personnel in the January 6 investigation. One is a class action which was brought on February 4, and the other is representing individual John does, just individuals who had been granted anonymity because it would make no sense, of course, for their names to be released in a lawsuit when we are trying to protect their names from being released by the FBI. The fear is that it's not unreasonable under the circumstances that the names of these individuals will be released. They have been assured that they won't be. They've assured that these were for internal purposes. But actually, that doesn't make any sense. The FBI has the records of who worked on what. So the question is whether this is just hastening a release of this information. In addition, it is anticipated that people who worked on the January 6th investigations will be fired or demoted. I can't begin to describe how outrageous that is. They had already swept clean the senior officials who had been in charge of these investigations. The FBI investigators who were dealing with people who in any other setting would have been prosecuted are the ones that our lawsuit is dealing with in any other setting. If you went up and took a, you know, a fire extinguisher and bopped a cop on the head with it, that would have been actionable. So going after people who were essentially investigating what amounted to ordinary crime just because it was at the Capitol is outrageous. Is outrageous. And that's what this level. Not the senior people, not his challenges to Chris Wray, who then resigned from the FBI. But now you're talking about people who were charged with investigating what any law enforcement officer would have investigated. And the notion that there should be consequences to this conveys a different message, which is that we are lawless. We are lawless.

[Dahlia Lithwick]

I want to just commend to people because there's such a huge number of lawsuits, as you said, more coming every day. I want to just tell people to keep an open tab. You can use just securities litigation tracker. Democracy 2025 has a good one. Court Watch News has a good one. But I wonder, Judge, if you would just take a minute and pan back and just help us make sense of the sort of various columns of lawsuits that are happening right now. We've mention the impoundment, we've mentioned birthright citizenship. Can you give us, like, the very, very, very 40,000ft view of the big buckets of actions that are being challenged?

[Judge Nancy Gertner]

Well, there are issues with respect to immigration, a bunch of executive orders like the order on birthright citizenship. There are orders purporting to end sanctuary city policies, very vague. Who knows what they're talking about. And that has its own constitutional issues. There are a bunch of issues about getting access to immigrants in detention. So there's a bucket that is immigration related, which is what we anticipated. There's no question about it. And then there's a bucket that has to do with executive action, which is. First is lawsuits challenging the reinstatement of Schedule F for career employees. Schedule F was something that Trump tried before that would reclassify people protected by civil service to political appointees to make it easier, no doubt, for him to fire and replace them. What's, of course, interesting is that with respect to the FBI officials, they're not waiting for Schedule F. The FBI officials that they are going after are career employees who are protected by civil service from being wrongfully discharged or discharged on a political basis. And then there are the various lawsuits that came out of Doge. I sort of want to have a Star Trek screen when I say this, which has to do with Elon Musk and his band of renown trying to get access to various omb, the Office of Management and Budget. We've heard that he's trying to get access to noaa, the National Oceanic Administration. There's a lawsuit having to do with the disclosure of people's personnel records to Doge. So access to information is the second big bucket. So there's immigration, access to information by Elon Musk, and then there's a removal, the firing of individuals, one of which is the likely firing of the FBI officials. There are challenges to the pause, quote, called temporary pause of grants and loans. Those are the buckets. I don't for the life of me know what hasn't been challenged. But once it's announced, there is a mobilization of lawyers to go into court. Because this is more than your question, but I'm happy to go there. There are three explanations for what they're doing. One explanation is that they don't even realize that it's illegal. That's hard to believe. That's hard to believe. The other is that they know it's illegal and they're likely to lose in court on the illegal actions, but they basically want to scare the hell out of government employees, so they leave. And the third bucket is that they know it's illegal. And this is the scary one. And they don't care. And they don't care. And that they will therefore barrel on through knowing that it's illegal. That third alternative should chill all of us. This is a government intentionally acting lawlessly. And as I said, it's possible they don't know. That doesn't make any sense. It's possible that they'll go whoops, frankly, as they did with the impoundment issue. Right. They tried to impound funds. A court said, you can't do that. Or with birthright citizenship, you can't do that. They go whoops. But they have scared the hell out of people in the interim. Or the third bucket is that they are intentionally violating the law and court orders will not matter. Then we have a full fledged coup.

[Dahlia Lithwick]

I wanted to touch on your case concerning the FBI personnel. Again, you've asked the judge for a temporary restraining order, or TRO, to block the list of agents from BEC Public. And I want to just ask whether these TROs even matter if the dismantling of government at this breakneck pace, the mechanisms by which they are doing a lot of it, they're just in a black box held by the White House. Does any one temporary court order even matter?

[Judge Nancy Gertner]

Why does it matter? People in the first Trump administration talked about the guardrails, and I remember giving speeches about that. And one guardrail was the civil service, the independent civil service, that you'd have people who'd be able to say who were in the government no matter what the administration was, who was a professional staff. And if Trump or his other allies wanted to do X, someone would say, Mr. President, X is illegal or X is wrong or X is improper. So his first attack was on the civil service, was on career employees in various parts of the government, including the FBI. So he's trying to eliminate the civil service career employee guardrails. He has silenced the Congress. Silenced the Congress. That, of course, is another separation of powers, limitation of presidential power, and they are effectively silenced. Where are they in the impoundment questions? Where are they with respect to, you know, legislation creating sanctuary cities which have constitutional roots? Where are they? So the courts are a backstop. The court has jurisdiction obviously over the executive branch in these cases, and the court is a backstop. And as Kim Sheppoly said last week, you have to use wasn't clear to me. Having been on the bench for 17 years, it wasn't clear to me that judges appointed by someone other than Trump would stand up. There was clearly a very big difference between the people that were put on the bench by Biden, Obama and Clinton and even Bush and Reagan than the people that Trump was putting on the bench in terms of their willingness to be involved in national security issues, their willingness be involved in immigration issues. But they have stood up. They have stood up. The most notable example is the judge in Washington state who didn't just say no to Trump on birthright citizenship, made it clear that this was completely wackadoodle. So the courts are where the pushback has to come. From what I've seen, I'm confident that they will and that the Supreme Court will not save him.

[Dahlia Lithwick]

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[Judge Nancy Gertner]

Let'S.

[Dahlia Lithwick]

Return now to my conversation with Judge Nancy Gertner. Judge, I'm going to ask another version of the same question I just asked, but this time it's about the case brought by some of your colleagues at State Democracy Defenders representing three federal employee unions who are trying to block Elon Musk's Doge folks from accessing the Treasury's payment information. Now, it's been reported that these folks got into the system and they were able to write code into it, but they were also able to access massive, massive swathes of data, including the names, Social Security numbers, birthdays, bank account numbers and addresses of taxpayers. And then Thursday morning brought news that the treasury has agreed to temporarily halt DOGE employees access to treasury payment systems and reduced access to just two DOGE employees who will have read only access while the judge hears the arguments play out in the case. Now, at this point, I just have to repeat, DOGE is not a department. It is not elected. It is not constructed by Congress, although it apparently is now operating under the auspices of the US Digital Service. It feels to me as though this might be a case of closing the barn door after the horse has run. Is this all just too little, too late, or am I wrong? Did the law do its job and put up a speed bump and deliver a big win for privacy? What, if anything, is the likely impact of all this?

[Judge Nancy Gertner]

It's hard to know what the impact is on the ground. So the statement that it is illegal reflected in these complaints and by the judges, even the order that the government has agreed to is critical. People have to know that no one can just walk into an agency. You know, someone like Musk walk into an agency and say, I'm sorry, can I see your files about Dahlia Litwick? So the statement of illegality is terribly important. The act enforcing the statement of illegality, which are agreed upon, limitation, is also important because it tells the government they do not have free reign here. The impact on the ground? I don't know. I don't know. Doge was trying to get access February 3rd. The TRO has come down what, within the past day or so. So who knows what he has already done? But there's no sort of more clear indication of the dissolution of boundaries, that Musk was allowed to walk in, bring couches, have his people take over the computer system. So I don't know about the impact on the ground. I only know that we have to fight.

[Dahlia Lithwick]

So this actually goes to this larger question, and I'm thinking about just a kind of unbroken string of wins on birthright citizenship, on impoundment, on pretty much every issue, as I understand it, that's gone to a court, including, let's say it again, a Reagan judge on birthright citizenship, has resulted in a big win. And whether that sustains itself at the appeals court, as you said, whether it even makes it to the Supreme Court, it does seem to be really essential storytelling, Judge about what lawyers do and what the law means. And I, and I ask this question partly because you and I both remember after the travel ban came down, you know, everybody flooded the airports. Everybody was with bated breath watching this play out in the courts. There is something about this diffuse, you know, 10 orders a day, mayhem everywhere. That means it's really hard to focus on any one lawsuit. Anyone win in the court, anyone restraining order. And I think that's by design. It's hard to tell a legal story of, you know, wins all over the place if nobody even knows lawyers are filing suits. But I think what you're saying when you say, we have to fight isn't just, this is, you know, what lawyers do. This is what law can serve at the moment. But a story about this is still a nation of laws, not men. And these wins, whether you see them or not, halt behaviors that are unlawful.

[Judge Nancy Gertner]

It's more than just halting behaviors that are unlawful. I wrote a piece for Contrarian in which I talked about the expressive function of law. When you go roaring into court and you say, this is illegal, and a judge responds, yes, it is, you begin to create a narrative so people have a sense of what the meats and bounds of our democracy are. And so, even if so far there have not been losses that I know about, but even if there were, it's critical to challenge these behaviors. It's critical to challenge these behaviors, not just to stop them, but to let people know that there are challenges to these behaviors. Because, as I said, one reason why the administration may be doing it this way, I said there were three possibilities. One is they didn't know it was illegal, which can't be right. And the other is they don't care. And then one is, they'll say, whoops, and they'll get people to leave the civil service, and then you'll wind up accomplishing what the order had tried to accomplish. People shouldn't leave. People should stay and act the way the civil service has acted for decades. So I think both to let people know that there are boundaries here, that you don't have anticipatory compliance, you know, sort of thinking, well, if he's doing this, then maybe this will be illegal and therefore back off something else. People have to know and have to listen to the constitutional and other challenges to these acts. There's no question about it. Everyone has to know about it. The judges have to know about it as well. These are the boundaries of our democracy.

[Dahlia Lithwick]

Judge Gertner, I want to ask you, in your capacity as a former judge, about a piece you wrote in December in the New York Times about the ways in which judges are going to have to be brave right now and they're going to have to stand up. And I want to lump that together with a question about what I'm seeing from big law firms who are very, very inclined to stand down and wait this out, what I'm seeing from a lot of lawyers, which is maybe it won't be that bad, or maybe there's no lane for me here. What I'm seeing from some law school, some, which is, man, we were in the fight in 2017, and either we've normalized it or our bottom line doesn't really jibe with it, but a sense that our profession is not exactly covering itself in glory right now in terms of being fearful. I want you to help me think through this question of what, particularly if you're a lawyer, a law student, a judge, a law professor, what bravery looks like in a climate of real fear and chilling of the impulse to just do the right thing.

[Judge Nancy Gertner]

What I wrote about judges in December, before President Trump took office, is I was saying that there are all sorts of times in the law when you defer to the government, all sorts of legal doctrines that start with deferring to the government because you're assuming that the government is legitimate and careful and wants to follow the law. We see that all the time in challenges to selective prosecution. You claim I'm being prosecuted when the guy next to me who's similarly situated would not that the prosecution was politically motivated. Those are very difficult to win because the assumption is that the government doesn't go after people for political reasons. And I went through the kinds of presumptions in favor of a regular, careful government that we have been indulging in for 200 some odd years. And I said that if you have people like Kash Patel or Bondi who said we're going to go after people and the implication is regardless of whether they've committed a crime, then perhaps we should look twice at those assumptions. When you have to indulge in those assumptions, you should look twice. And then just recently, I was writing about the judges who had to dismiss January 6th criminal prosecutions. And they could have dismissed those prosecutions by coming out on the bench and saying in response to the government's motion to dismiss, they could have said allowed and sat down. But instead, numbers of them, virtually all, I believe, who had January 6th cases, I may be wrong, said, of course I have to dismiss. That's what my lane is. I don't determine what charges are brought. But let me tell you what I saw from the testimony from the videos. Let me tell you what I saw. And they made sure to say that they were acting in their lane, but they were informing people about what this was and the illegitimacy of it, not as a matter of law, because they had to dismiss these cases, but as a matter of public policy. I think for there are law schools, universities, that have federal contracts hanging in the balance. I think that they should stand up regardless, as they have done in the past. But I think that's part of the fear. And as far as law firms are concerned, it's not overwhelming that all of them, the sort of big law, is steering away from these cases. But certainly some are. I want to go back and read about McCarthy and I want to read about all the other times in our history when it seemed like the government had gone off the rails and tell people that if lawyers don't stand up, not sure who will. Either lawyers standing up to represent individuals who are wrongly targeted or law firms standing up to do these affirmative cases, in other words, where you're challenging a policy. And maybe the more that they see successes in courts, the more people will do that. But you can't direct people to be courageous. You can't order people to be courageous, which is why these lawsuits are so important.

[Dahlia Lithwick]

You've sort of answered this, but I think I need you to really go there with me to the dark place for one minute. Because the very definition of a constitutional crisis is when a court enjoins some government action and the government persists in doing it. And you've already said if that's where we are. Oh, boy. Buckle in. And I'm wondering, you know, in the first Trump era, by and large, when the courts said stop, sometimes it wasn't a district court, sometimes it was an appeals court, sometimes it got rocketed up to the Supreme Court. But by and large, when a court said stop, they stopped. Is that going to be the pattern for Trump 2.0? Are we gonna sort of see versions of the travel ban where, okay, it was a stupid executive order, we're rewriting it, we're burnishing it, we're, you know, scraping off the worst of it, and at some point we come to some kind of agreement to do something that's only, like, somewhat unlawful, or are we just barreling into an emboldened Trump administration with no breaking mechanisms that I can see that's just going to steamroll over the courts.

[Judge Nancy Gertner]

There are areas where certainly an executive has more authority, not unlimited authority, but more authority. National security, immigration. And that the Trump administration was active in those zones in the first administration made sense, given who he was, and makes sense now. It's the movement into career civil service and access to information, which is unquestionably illegal. And it's the sort of brazenness of those efforts that gives me pause. Again, I said, I can't believe they didn't know that it was illegal to fire FBI agents who had career civil service protections. And so the brazenness of that, which was not the case in the first Trump administration, I believe, and correct me if I'm wrong, that they were mostly in the area where there was at least a contest about the executive power, but could go into these areas is really a horse of a different color, it seems to me, and suggests that if they're going to be brazen about that, what else will they be brazen about? So that's the part that gives me pause. There really was. It was wrong. But I could understand them firing the upper echelon senior employees, assuming they didn't have. Have civil service protections, but going after line officers investigating this assault or that punch, I mean, you're talking about ordinary law enforcement. So there's a brazenness to this that gives me pause, that they will say, if the court tells them to stop that they'll say, the hell with it, we're going to continue. Sue me. Sue me some more. That's the difference between the first administration and this. The travel ban was ridiculous and badly drafted, but they ultimately came up with a way to justify it, at least to the Supreme Court. I don't see how you Justify firing a swath of employees that have civil service and some with even labor contract protections. How you could possibly do that without understanding that it is blatantly illegal and you don't care.

[Dahlia Lithwick]

Yeah, No, I think it's a move from a president who claims to have capacious authority over immigration and over protecting the nation. That's why the immigration parts of this don't really surprise me, even though they're illegal. But I think when you're hollowing out the civil service, when you're gutting government, you're in a whole other realm. And it's some version of the broadest possible theory of the unitary executive. You know, they all work for him. I agree. I don't think there's been any coordination with the office of Legal Counsel. You know, I think that there is a posture here, Judge, of we're going to break all the laws and they'll stop us if they can, which is quite different from we're at least going to try to have some colorable claim that this is lawful. And I think that's the distinction you're drawing. If we can. And on some kind of positive note, you know, you've said it and I've said it, and we keep saying on this show the reason for some of the existential dread is that things are really bad, as we have agreed. But also the reason for the existential pain is that it looks like nobody's doing anything. And in fact, as we have said throughout, a lot of people are doing things. What do you see? Your lane.

[Judge Nancy Gertner]

My lane?

[Dahlia Lithwick]

Your lane. And what do you tell listeners about what their lane is, lawyers and non lawyers alike?

[Judge Nancy Gertner]

Well, I mean, I think people have talked about the absence of demonstrations in the streets this time. And people should get into the streets. People should call their congressmen and their senators to basically light a fire under the legislature. Cause that was a check on government power. They should care that he is impounding funds that they allocated. So, yeah, people should do all the, you know, the stuff that you tell people in civics classes, call your legislatures, call your congressmen. And I think that people have to demonstrate. I think that lawyers have to align themselves with the organizations that are doing the resistance. And my lane, I am the least retired human being ever in the world. I mean, I participate in these cases, write about it. In one sense, you know, I'm in the last third of my career and so it's easier for me to do this, but that's what we all should be doing. Because the worst thing is not to label it illegal and then not to do something about it being illegal. I keep on hearing about senators who are afraid that they will be primaries. It's like if you have to weigh the destruction of the republic versus you having a primary opponent, it seems to me it's clear which way you lean. So I think that we all have to, because the worst thing of all is to pretend that this is normal and to pretend that this is legal and it really is not.

[Dahlia Lithwick]

Judge Nancy Gertner is on the board of State Democracy Defenders, one of the many, many groups of extraordinary lawyers who are filing lawsuits, getting TROs, standing up in court, doing the work. She retired as a United States district judge of the United States District Court for Massachusetts, and she teaches law at Harvard Law School. And in her spare time, she comes on this show to tell us not to give up hope. Thank you so much, Judge Gertner.

[Judge Nancy Gertner]

You're welcome. Take care.

[Dahlia Lithwick]

We are going to take a short break and when we come back, Mark Joseph Stern will be here to take us through the week's developments in so many courtrooms around the country that are all grappling with this avalanche of lawsuits calling out the illegality of the second Trump regime.

[Leon Nayfak]

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 proved Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in a movie. In real life, it took about two years.

[Judge John Kunauer]

Five men were arrested early Saturday while.

[Dahlia Lithwick]

Trying to install eavesdropping equipment.

[Mark Joseph Stern]

It's known as the Watergate incident.

[Leon Nayfak]

What was it like to experience those two years in real time 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.

[Dahlia Lithwick]

One of the things that has been really impossible to keep track of is the sheer volume of the lawsuits. This week has just been a cascade of, I think, just, just across the board wins in courts around the country, including, but not limited to injunctions against Trump's assault on birthright citizenship, injunctions in the absurd fork in the road federal buyout system, a judge blocking the transfer of three transgender women to a men's prison, an injunction against the release of personal information about FBI agents who worked on January 6th investigations. A limited limit, but a limit nonetheless on Doge's access to sensitive treasury data. But there's a second piece of instability here, and I wanna probe it a little bit more with Mark Joseph Stern. He's Slate's senior writer. He covers the court and the law with me in our indefatigable jurisprudence team. Mark, welcome back.

[Mark Joseph Stern]

Hi. I can't say I'm happy to be here, really, frankly, but I'm always happy to talk to you. Even when it's mostly bad things.

[Dahlia Lithwick]

It's pretty much bad things. And we talked to Judge Gertner about, you know, what I think are just unequivocal big wins in the court. But there's another layer to it, and it sort of undergirds a lot of the uncertainty right now about these court wins. In a hearing about access to and dissemination of a whole bunch of private data that's housed at Treasury Department, lawyers for the Justice Department just kept insisting that the Musk operatives who have access to data at the treasury have only, quote, unquote, read only access to those computers. But Talking Points Memo and Wired have deep dive independent reporting saying it's not true. They don't have read only access. They have full administrator privileges and they've already altered the code. Done and done. By the same token, in that FBI suit we just talked to Judge Gertner about. Yeah, yeah. The FBI may or may not have blocked the release of names. It's hard to know what government lawyers are saying and whether that maps onto truth. So I think we just have to break down not just what is being enjoined and halted, but A, is it too late? And B, in case after case, whether it even matters.

[Mark Joseph Stern]

Right. I think this is the dichotomy and the tension that we're both experiencing right now, which is a slew of court wins. Great, objectively good news. And yet a lingering deep existential angst that the winds might not have the impact that they should because this is an administration that has shown no commitment to adhering to the law, to following court orders, to presenting the truth in court to judges. And so it remains unfortunately unclear whether these temporary restraining orders and injunctions will have the full impact that they should. Our friend Chris Geiner has written eloquently about this at law dork. It's not a reason to stop bringing lawsuits. It's not a reason to give up all hope. But it means that there needs to be a conversation not just about the fight and the immediate wins, but how those wins are enforced and what should happen when the administration refuses to follow the law. And I think this treasury controversy is a perfect example of it. As you just said, the Trump administration represented to a federal court that members of dogecoin, the roving Elon Musk team of alleged cost cutters, had read only access to this incredibly sensitive treasury payment system. This is a system that disperses trillions of dollars a year to fund all kinds of benefits and programs, that has an immense amount of super sensitive personal information, including Social Security numbers of taxpayers. This has historically been one of the most closely guarded systems in all of the federal government. Government. And the Doge team and the Trump Justice Department say, hey, we're just looking at it, right? We're not actually going in there doing anything, changing anything. We're just examining it. But there has now been extensive and I think credible reporting from Wired, cnn, Talking Points Memo, other media outlets showing that the Doge team actually did have access to alter the code, that it had already begun to alter the code, and that its end goal is to essentially manipulate these systems to halt payments to federal agencies and programs and individual beneficiaries that the administration disapproves of. So this would be just a unilateral funding freeze, but imposed technically through the back door. And all of that is troubling. I think what, what we as lawyers maybe find most disturbing is that it seems that Doge and the Justice Department lied about this to the federal court. And so when the judge said, okay, I'm, I'm issuing this sort of mandated agreement, she was operating under false information. She thought that the Doge team only had Reid access. So in this sort of stipulated agreement, she said, only two members of the Doge team will have any access. Their access will remain Reid only access. And, you know, we'll, we'll circle back when the plaintiffs have, you know, more concerns that need to be addressed in court. And the plaintiffs are already racing back to say, hey, actually they've had access to manipulate this system all along. They were lying to you. And the stipulated agreement probably isn't worth the paper that it's printed on because it's based on a false premise. This feels like new terrain to me, Dalia. I mean, yes, in the first Trump administration, the Justice Department sometimes played fast and loose with the facts. Solicitor General Noel Francisco sometimes made some questionable representations to the court. But this is a whole other league. And the fact that they're testing it out in this case suggests to me that it is not the only litigation in which Trump, Musk and their merry band of raiders are telling judges what they want to hear, but what is not, in fact, the truth.

[Dahlia Lithwick]

Yeah, just a couple of tiny glosses. One, it really struck me that we're living in an analog legal system that makes no sense is the whole question about whether Elon Musk himself had access to the data. As though that matters at all. Right? As though it matters. Who on Doge's team, Like, certainly, you know, nobody's going to pass anything along. It was so old school. The other thing I really thought, just listening to you talk right now, Mark, is how interesting it is that the reason DOJ lawyers, and we can remember they, some of them, quit en masse in the first Trump administration rather than, you know, stand in front of a court and lie to a judge.

[Judge Nancy Gertner]

Right.

[Dahlia Lithwick]

Which is supposed to be a career ending proposition. If there are no consequences for standing the court lying, then that goes away. Right. And I think one of the real knock on effects of mass pardons and of election denialists being launched into Trump's cabinet is that there's just no consequence for telling lies, no professional consequence, and as a result, I would say no governmental consequence. Like, nobody cares if you lie. And that feels really immeasurably different to me. I want to give you one minute, minute to answer the question because again, you know, you and I keep knocking on this door, but we need to talk about it. There was, when that mandated agreement came out on Thursday, kind of half of our legal industrial complex was like, yay, big win for privacy. And half were like barn door horse clothes. Like, that information is out there, they've tinkered with the code. What is your operative theory of why, if these lawsuits still matter, even if we're not stanching the bleed?

[Mark Joseph Stern]

So, I mean, first of all, there are certainly other cases in which the restraining orders and injunctions are having their intended effect. Right. There are now multiple injunctions against Trump's birthright citizenship order, which we'll talk about shortly, that are preventing the federal government and federal agencies from stripping citizenship from the children of immigrants. That is supposed to take effect soon. It will not be able to because of these injunctions in this case and others like it. Look, it's better to have a court order than not to have a court order. I think everyone would agree on that. But the administration seems to be working behind the scenes to undermine the court's authority as much as possible and to prepare for a higher court, potentially the Supreme Court, to step in and rule for the Trump Musk regime. Right. That's the case with the treasury repayment systems. I think it's the case with the FBI agents. Right. Who Trump is preparing to purge. A federal court has limited the administration's ability to release names and information about these FBI agents who worked on January 6, because that was their job. But we now have information that the acting Attorney General is trying to force the acting FBI director to start collecting and potentially soon releasing names and personal information of FBI agents. So they think they're going to win soon and just go on without any legal constraints. So, yes, it's important to have the constraints. No, I can't say they're meaningless, but at some point, courts need to start considering sanctions. And I think what's really tricky about that in this situation is that it's not even clear what authority some of these people are operating under. Right. These DOGE employees, are they operating on behalf of the executive? Are they members of the executive branch? Are they temporary government employees? That's what Elon Musk is. What about everybody working under him? Are they operating under the aegis of the state in their official capacities? Are they working in their personal capacities? And I do think that some of this early litigation is actually going to be helpful in flushing that out. It may, in fact, be the only way that we can force the government to state on the record, for whatever that's still worth, how these DOGE operatives are working, how they envision their own functions, and what their relationship to the federal government is. You know, right now, frankly, it's unclear whether they should be sued in their official capacity as agents of the state or in their personal capacity as chaos makers scurrying around behind the scenes messing up billions or trillions of dollars worth of payments that keep our government running. Litigation can help sort that out. And so the mere clarity that it will provide by forcing the government to put forth declarations and assertions and attestations, all under oath, I think that will be useful in. In helping progressive groups and other groups resisting Trump finesse and shape their litigation strategy moving forward.

[Dahlia Lithwick]

So I just want to plug for listeners who just cannot get enough of these deep dives on Doge and who these people are and why they only disclose their first names. Slate's what Next TBD has a really good breakdown of all these technical moves by the baby bros that are embedded in the federal government. Host Lizzie O'Leary interview Wired Senior writer Makena Kelly. This episode is called Is Elon Musk Unstoppable? You can search what Next TBD to listen Mark we talked a couple of weeks ago, which was 40 years ago, about U.S. district Judge John C. Kunauer. He is an 84 year old Reagan appointee and he was the guy who issued the very first big restraining order against Trump's Birthright Citizenship executive order. That was a temporary decision in Seattle Thursday. He slapped a big old injunction on that order for the duration of a lawsuit that's been brought by four states and an immigrants rights group challenging it. There's another ruling from a federal judge in Maryland in a separate case. But I want us to listen for one quick second. I think I'm turning this into my ringtone. Mark. Here is Judge Kunauer on the bench on Thursday announcing his decision to enjoin the Birthright Citizenship executive order. Let's just listen to him for a minute.

[Judge John Kunauer]

It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or or personal gain. Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow. I said this two weeks ago and I'll say it again today. There are moments in the world's history when people look back and ask, where were the lawyers? Where were the judges? In these moments, the rule of law becomes especially vulnerable. I refuse to let that beacon go dark today. As a judge, my job is not only to uphold the law, but to protect the rule of law itself. Birthright citizenship is a fundamental constitutional right. The 14th Amendment secures the blessings of liberty to our posterity by bestowing on all those born in the United States and subject to its jurisdiction the rights of citizens citizenship. We are all citizens subject to the rule of law. No amount of policy debate can change that. And the fact that the government has cloaked what is effectively a constitutional amendment under the guise of an executive order is equally unconstitutional. The Constitution is not something with which the government may play policy games. If the government wants to change the exceptional American, American grant of birthright citizenship. It needs to amend the Constitution itself. That's how our Constitution works, and that's how the rule of law works. Because the president's order attempts to circumscribe this process, it is clearly unconstitutional. The preliminary injunction is granted on a nationwide basis.

[Dahlia Lithwick]

Like I said, Mark might be my ringtone. I might just, like, meditate to it. The beacon of the law. I would love to parse for one minute what it is that the judge was saying, because it sounds like it's just kind of magisterial words about the law. To my mind, it was a taxonomy, a really efficient taxonomy of what Donald Trump is trying to do to the law.

[Mark Joseph Stern]

So I think Judge Kunauer is sort of doing two different things here. The first is just expressing righteous outrage toward the Trump administration's legal arguments and outrageously cruel efforts to strip citizenship from the children of millions of immigrants. Right. Rendering many of them stateless. It is an attack on infants, of all the most vulnerable people to attack, and I think he's disgusted by it. But beyond that, he's frustrated with the administration's legal arguments. He thinks the Justice Department is putting forth a pile of slop that doesn't withstand scrutiny. He's also frustrated with how the Justice Department is even approaching this case. So one thing that the Justice Department keeps saying in their filings and in their oral arguments is we and President Trump seek to clarify a misunderstanding about the 14th Amendment. It's not that we're trying to rewrite it or subvert it. We just want to help everybody see that there's been this terrible mistake that's been, you know, the reigning law for well over a century, and we just want to fix that. And I think think that false modesty, the claim that through an executive order, you can just sort of tweak the law to correct this misunderstanding, really was the ultimate offense in Judge Kunauer's eyes, because the Justice Department could not admit what's really going on here, which is, as he said correctly, an effort to amend the Constitution by executive fiat. You cannot pass that off in euphemisms about correcting a misunderstanding that is fundamentally an attempt to restructure the government around a king like executive who can just issue these decrees and change the law on a dime. And I think a subtext of Judge Kunauer's monologue here is that Congress is letting that happen right now. You know, Congress is not trying to stop any of this outrageous consolidation of power in the executive branch, this seizure of congressional authority. It's going totally unremarked upon among congressional Republicans. Some Congressional Republicans are cheering on Trump and Mike, they don't seem to mind that Trump is just taking away all of this power that the Constitution assigns to the legislative branch. And here Judge Kunauer is saying, I'm not going to let that happen to the judiciary. I am not going to let this president act as a sovereign, as a monarch, and gobble up all of this power that is constitutionally assigned to other branches and in particular my branch. I think that's what he means when he says his courtroom will remain a beacon, that even if other members of the government abdicate their duties, he will not. And the 14th Amendment means what it says. No amount of wordplay or lies or cherry picked bogus history can change that. And the judiciary, at least his court is going to stand strong in the face of this onslaught and resist in the bluntest terms possible what the Trump administration is cynically trying to pass off.

[Dahlia Lithwick]

It's interesting. I was also really struck Mark by his willingness to say the thing that seemingly impossible even for the media to sometimes times say, which is they are breaking the law. That's where he starts. They are breaking the law. Whether it's for personal gain or for political gain. Like this is not, as you say, you know, hey, we're just like putting our toe over the line to test it out. It's that there is no line. The line is where Trump says the line is. And I think that he's balking at that. It's just really going to be interesting going into this weekend. One of the things you and I learned last weekend is that Elon Musk loved, loves the fact that everybody goes on snooze in the weekend. Cause that's when he can be at his most breaky. It will be really interesting to see if this weekend is different from last weekend with I think an agreed upon understanding that this is smash and grab. This is not governance. Mark Joseph Stern covers the courts and the law and the current troubles for us at Slate. Thank you very, very much, Mark.

[Mark Joseph Stern]

Thanks Dalia.

[Dahlia Lithwick]

And Mark Joseph Stern is right now making his way directly over to the Amicus plus cigar bar Slash plusketeers Treehouse. We are going to dig in on some of the stuff we couldn't quite cram into the main show, including Trump's Attorney General Pam Bondi and her crusade against equity. That includes threatening private corporations with criminal penalty penalties for deviating from MAGA's anti diversity agenda. You can subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicusplus to get access wherever you listen. That episode is available for you to listen to right now, and we will see you there. That is all for this episode of Amicus. Thank you so much for listening. Thank you so much for your letters and your questions and your support. Keep them coming. They inform our coverage. Absolutely. And they lift our spirits. You can keep in [e-mail] or you can find [e-mail] Amicus Podcast Sarah Burningham is Amicus senior producer. Our producer is Patrick Fort, Hilary Frey is Slate's editor in chief, Susan Matthews is executive editor, and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.