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.

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.