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- [00:01]
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- [01:20]
Bill Kristol
hi, Bill Kristol here. Welcome to Bulwark on Sunday. Very pleased to be joined today by Nathaniel Zelensky. I met what, 10 little over 10 years ago when he was a law student at Yale and I was a kind of a conservative law student and I was a conservative speaker and that's I guess how we met and lots
- [01:37]
Nathaniel Zelensky
I think we met when I was an undergrad.
- [01:38]
Bill Kristol
Is that right?
- [01:40]
Nathaniel Zelensky
It was almost 20 years ago. Yeah.
- [01:42]
Bill Kristol
Right.
- [01:43]
Nathaniel Zelensky
Yeah.
- [01:43]
Bill Kristol
And I was a conservative editor of the Weekly Standard and things have changed in those two decades or even in the last decade. I've forgotten that we'd met earlier than that. Anyway, Fanulous went on to a distinguished career as a appellate and Supreme Court lawyer in big law. Quit his law firm in 2025 when it was one of the firms that took the deal that Trump offered. As you recall, all those law firms were being pressured to cut deals with Trump and his did. And you, Nathaniel, you quit. You started a boutique appellate, well, law firm, Washington Litigation group, which is a 501C3A not for profit entity with several other fine lawyers, younger ones, also some older ones, your managing counsel of that firm. And that firm defends individuals and institutions and the rule of law more generally in the era of Trump. And you've done a great job. And one reason I wanted to talk to you in general about the State of play and introduce you to our audience. But also you were the lead counsel on the Kennedy center case for which there was a pretty notable decision Friday. So I thought we should begin with that. Anyway, Nathaniel, thanks for joining me here.
- [02:50]
Nathaniel Zelensky
Happy to be here.
- [02:50]
Bill Kristol
Bill, I think you also wrote a couple of pieces for the Bulwark, right, when you were.
- [02:54]
Nathaniel Zelensky
Yeah, yeah, back in back, I think in 2020. 2021.
- [02:57]
Bill Kristol
Yeah, yeah, yeah. Good. Yeah. Okay. So Kennedy, tell us about the, I mean, people probably know the headline of the Kennedy center case that the judge found against the Trump appointed board's decision to rename it and close it per Trump's orders and so forth. But yeah, talk about the case and how, what your role was and where we stand.
- [03:17]
Nathaniel Zelensky
Yeah. So back In December of 2025, Donald Trump, having stacked the Kennedy center board with of handpicked appointees, that board then voted to rename the center after himself. And I mean, this is extraordinarily shocking, right? This is a institution that is named by Congress, by statute, for a fallen president. It's a memorial to John F. Kennedy and it's been that way since 1964. And the board voted to put his name up there. The next day the name goes up. We represent alongside, I should add, our good friends, I think a mutual friend of ours, Norm Eisen at Democracy Defenders. We represent Congressman Joyce Beatty. The congresswoman is a ex officio member of the board. There are a handful of ex officio members, including members of Congress. And she sued. She sued because she was prevented from speaking at the board meeting and voting in December to voice her opposition. And also because as a trustee, you can sue to protect the institution which you're charged with overseeing. Then In February of 26, the President had this true social post where he said, we conducted a one year review with all the best experts in the world and we're going to, we've decided the best thing for the Kennedy center is to shut it down for two years to conduct renovations. Now, everyone has known for a long time Kennedy center has needed some renovations. This has been something that they've been planning for years. Well, before this administration, it had always been the plan that these would be conducted in a sort of phased approach that you would do part renovation, you know, part performances, keeping maybe one hall open and renovating another. There was, I think, a not unreasonable assessment that this closure was done really to hide embarrassment that artists had canceled, tickets had dropped and donors had left after President Trump's takeover of the center. And, and at that point, Congressman Beatty amended her complaint to also challenge the unlawful shutdown. Fast forward to Friday. We had argued twice in front of Judge Cooper, who's a really wonderful judge, kept us up there for a long time. There were long arguments. And on Friday, he issued a decision that is, you know, lengthy, it's scholarly, it's 90 plus pages. And it comes to the conclusion that I think is eminently correct, that Congress named the Kennedy center for John F. Kennedy and only Congress can change the name. So President Trump can't wave a magic wand and rename this institution. It orders the center to within 14 days, pull the name down and to attest to that fact in court. And then it also enjoins the unlawful shutdown, saying that they didn't do the, the things you would expect a prudent board to do in this circumstance.
- [06:11]
Bill Kristol
No.
- [06:12]
Nathaniel Zelensky
So a bit, a bit lengthy and I apologize.
- [06:14]
Bill Kristol
No, no, no. Very good. No, very clear. And congratulations on the legal victory. You know, there's two things that two footnotes I know a little bit about. I've heard a little bit about Judge Cooper, who I think is considered a very fine judge and not a particularly partisan one. I mean, so I think, you know, this was, and I haven't looked at the opinion as carefully as you have, but it's a serious opinion and there seems to be clear congressional intent to call it John F. Kennedy's or not the Donald Trump and John F. Kennedy center and so forth. The other thing is just on the renovations, it occurs to me it could to me, as you were talking, I thought about this. I think I don't, don't 100% hope I do this. Well, I'm certainly hoping to this. Susan and I are, my wife and I have had seasons tickets to the Washington Opera for a long time, which has performed at the Kennedy center for, since I think the Kennedy center began really. And there was a year or two when they didn't perform there and we went to Dar hall, as I recall in other places for somewhat it's not really, not really set up for opera. So it's a little, I remember we would always have over comment. Oh, it wasn't quite as good because they couldn't get as many, many musicians in the pit and so forth. But that was the reason for that was that they were renovating the opera Hall. So it's not like no one's ever thought that these places could be upgraded. Right. I mean, but as you said, the rest of the Kennedy center was open during that time.
- [07:26]
Nathaniel Zelensky
Well, and in fact, we had record evidence from among other people, the former head of the New York Philharmonic, from people who teach in this, as a profess, Andrew Taylor, who's an American professor, Josh Bornstein, who's at Yale, who actually attested that that's what you do. If you run a performing arts center, you do everything you can to do renovations that also maintain the center at some level of operational capacity. And you do that because you want to maintain your link with your donors, with your audiences, your staff. You don't want to just shutter the thing down.
- [07:56]
Bill Kristol
Right. And you want to put on the performances. Right. So, yeah, no, it's really. So what, so what happens next in this case? And then put it in the context of these other cases that have been decided on Friday on the slush fund, but also some of the ballroom cases. I mean, it does seem like the courts are some, at least district judges are stopping more of Trump's power grabs than had been the case before. Or in any case, maybe these cases just happened to come to fruition at this time.
- [08:21]
Nathaniel Zelensky
But they seem, yeah, I mean, I will say, look, I think Friday was a good day. Right. As you noted, there were a variety of events that occurred Friday that I think gave supporters for the rule of law a little bit of hope. And there'll be good days and there'll be bad days, and there have been good days before, you know, this, the past 18 months, there have been bad days. So I don't want to overread Friday. What I think is important about this particular case, about the Kennedy center, but I think it bleeds over to the slush fund, is these are very visible instances of authoritarianism. Right. You know, there are sort of two types or there are many types of rule of law cases, but, you know, let's just roughly categorize them into two buckets. Right? One are these cases where, you know, at the end of the day, whether it says Donald Day Trump up there, no one's going to jail. Right. You know, someone's liberty interests aren't at risk. And, but, but it matters. It matters because it's a visible mark of authoritarianism. It's sort of something that's more appropriate for Moscow or Pyongyang than it is for Washington, D.C. and if you treat these things that are in our national trust with such disdain, you're going to treat all the other elements of the office, the presidency that you hold in trust for the American people with a similar disdain. And so I think that very public pushback, to me, it gives me some hope because it pushes back on the Most visible element of the corruption here.
- [09:38]
Bill Kristol
Yeah. I guess that covers the ballroom. And I'm destroying the east wing. And you got one. No one gets any notice. And one day later, the bulldozers are there, and then I'm putting up a ballroom. And there they foolishly, I suppose, in a way, went to Congress to ask for money. And that allowed it to be slowed down in Congress, but also the courts slowed it down somewhat. The slush fund, obviously, maybe a slightly different category, because there you're settling a fake lawsuit and then just taking money and spending it on a slush fund, which is. But again, you're right, it doesn't directly implicate liberty interest quite the way the most grotesque forms of going at the political persecution of.
- [10:17]
Nathaniel Zelensky
Right. You're not, you're not, you're not authorizing an investigation or a prosecution into your political enemy. And I think part of what, what is tricky, right, is those cases sometimes can be abstract for people and even the corruption. Right. If you think about the, the element. I mean, this is what I think is so, so powerful to people about the slush fund. If you think about sort of the, the crony capitalism that's going on in the White House and the contracts going out to family members and things like that, it's very hard to grasp onto that. But saying, look, here's $2 billion that he's giving to his supporters, that's sort of something that an ordinary person can easily grasp onto.
- [10:50]
Bill Kristol
And also his supporters in this case being in the first instance, the January 6th insurrectionist. I do think the slush fund is so big because it's the corruption, corruption, the misuse of government, having a fake lawsuit against your own Justice Department, which then gets settled, which gives you a slush fund to give to precisely the people who once did and might again try to overturn an election result and other random supporters of yours that you happen to pick with a board of five people appointed by your attorney General, which is not public and not. It's a black box, the whole process. I mean, really. So, yeah, I think that it's pretty easy.
- [11:25]
Nathaniel Zelensky
Would it be helpful to tell your. To your audience what happened on Friday? Because I think we, you know, we've been talking about it. Absolutely. Yeah. So. So, right. There have been two things that happened. Right. One was that there was a judge, I don't know if this was on Friday or maybe a little earlier in the week in the Eastern District of Virgin, who put a temporary pause, sort of pressed pause on any funds going out the door. But I think the potentially much more significant development was the judge who the IRS case was in front of in Florida. There were was a brief filed on behalf of former judges that asked her to reopen the case and to investigate whether any misconduct had occurred before her. And she seems to be entertaining that she ordered the government to reply to that motion. So, you know, we may see this moving on a parallel track where there are cases on the one hand by folks who are harmed by the slush fund and then also that judge may have an equity down in Florida and trying to figure out what she lied to. Was the court, you know, misled and was judicial process abused.
- [12:24]
Bill Kristol
The IRS case, just to be clear, was a claim of a $10 billion in damages by Trump for the leaking of IRS documents in about his IRS with taxes, tax returns in 2018, something by a contractor. No one's ever thought that. I mean, there have been other cases of people's tax returns being leaked. There have been various arrangements made then. And no one's ever thought there was $10 billion of damages to be gotten there. Especially the leak came in his own administration, of course. And incidentally, was he damaged by that much? It seems like he got elected president. Well, and more importantly is beyond ludicrous as an actual.
- [12:59]
Nathaniel Zelensky
Yeah. And they had a variety of threshold defenses that the irs, I mean, apparently the IRS had had a memo right, where the IRS had said, we have a series of defenses, statute limitations and others that will just totally kick this lawsuit out. And my understanding is that they've used those defenses successfully in other cases. So it was, you know, this was a meritless suit from top to bottom,
- [13:21]
Bill Kristol
which gets settled to give Trump. No, you're right. Then they're leaving aside all this pure corruption stuff, which is less, which is more, not more just, but just, you know, you know, enriching himself and family and allies and friends and all that stuff. I mean, on the rule of law side of it. A little more though, now we get to sort of the real. I don't quote real. The more the other side, the other bucket of authoritarian cases in the case, Maureen Comey, who was fired from the Justice Department, I believe that you can explain. Explain a little more. Mostly for being James Comey's daughter, for what I can tell she was considered, I think, a very well regarded prosecutor there. The that she's been suing for wrongful dismissal. And, and this week, I think it was the attorney for the Justice Department said the position of the Justice Department, Trump's Justice Department, the US Justice Department was that Trump could fire anyone for any reason basically anywhere in the federal government. Right. Did I read that right? That's kind of mind boggling.
- [14:19]
Nathaniel Zelensky
Yeah, I mean, that has been their position. These are, these are so called Article 2 firing cases. And you got to stop me when I monologue on too long.
- [14:27]
Bill Kristol
That's good, though.
- [14:29]
Nathaniel Zelensky
Our people are just so Maureen's case is one of several and we're actually handling many of them. We have an appeal in the Federal Circuit which is sort of the furthest of these cases along in a case called Jackler, where they have fired several hundred people in government under so called Article 2 justifications. And these are people who are protected from arbitrary removal and dismissal and discrimination by things like the Civil Service Reform act, which is the law that applies to protect civil service from things like partisan discrimination. They're protected by Title 7, which is protecting you against race and gender and, you know, national origin discrimination. They're also protected by the Constitution. And in all of these cases, Maureen's case is a very prominent example of this. But the cases that we're litigating as well, in all these cases, the government has said we can fire anybody for any reason or no reason at all. And we have a case where, you know, we have an immigration judge, it's a neymar case in D.C. where they are saying that in response to Title 7 claim, where they've said we can fire her regardless if we did it for a discriminatory reason. I mean, she's alleging discrimination and they're saying it doesn't matter. Article two gives the President the fire, the right to fire whomever he wants. I mean, we can go into it, but. But from my view, this is a baseless theory. I mean, nobody less than Justice Antonin Scalia in his Morrison dissent, which is sort of the shining light for the unitary executive theory. He rejects this theory in footnote four of his dissent. So they've really sort of jumped the shark on this one. And I think ultimately, you know, we've got very strong arguments and I expect, I hope we will prevail. But this is, it's a very serious problem that it's sort of, in the interim, honorable people like Maureen who are, you know, career prosecutors suffer real harms because it's going to take some time for justice to work out.
- [16:23]
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- [17:43]
Bill Kristol
And the intimidation effect obviously elsewhere in the government is very, can be very real. These are people's real jobs and livelihoods. I mean, it does seem like the unitary executive, to use something you studied a lot in law school and that I think once had some germs of truth or plausibility to parts of its argument has become this, this claim that the president of the United States can basically fire anyone who wants for any reason, spend any money he wants for any reason, basically ignore kind of any laws he wants to ignore war powers and other such things for any reason, or congressional requirements. The old Civil Service act, which has been around a long time, I mean, I guess, am I exact. I mean it is a really, the, the authoritarianism at the heart of what Trump and, and his lawyers and his, the people who devised all this, Stephen Miller and Russell Vaught and these guys are claiming is pretty extraordinary. Right? I mean, it's not, it's way beyond the normal debates you and I have followed for a long time of, you know, executive power versus congressional power, executive power versus judicial power, the executive shop, war control and foreign policy that in other areas, you know, but cetera, et cetera, et cetera. Right?
- [18:51]
Nathaniel Zelensky
Yeah. I mean it's look, at one point Donald Trump said, I have an article too, and it lets me do whatever I want. And I think he really believes that, right? He really believes that there are no constraints and the positions they're making in court are effectively that there are no constraints that Congress, the courts, the Constitution can impose on the presidency. It's sort of the idea of the presidency as a sort of absolute monarch and, you know, deeply antithetical to every sort of principle baked into our Constitution. Right. This is precisely what the framers are rejecting when they created a separation of powers. But, yes, I think from top to bottom. And each of these cases that we've been talking about. Right. Is a different permutation of it. Right. In. In the Kennedy center, they're saying we have the ability to restructure any entity, which is sort of the core thing that Congress does. It structures agencies and institutions, in this case, a trust instrumentality of the United States. And it's. And they're saying, well, we can just do whatever we want. Now, they're not invoking Article 2 in that case, but it's the same underlying theory that there are no constraints on our power. You know, then you've got the, you know, the slush fund case where they're basically saying, we can do whatever we want by settling our cases. And by the way, because it's. Of their conception of Article 2, Donald Trump's on both sides of that case. Right. He's settling the case with himself because he can direct his Attorney General to do whatever he wants. And then, you know, in these, in these Article 2 firing cases, they've come out and said, there's no limit. We could hypothetically fire, you know, all Jews in the federal government tomorrow, and nobody could stop us.
- [20:21]
Bill Kristol
And they can launch wars, Pretty, pretty big wars against Iran without congressional authorization and blow up drop boats and I don't know. And then, of course, move appropriated funds around and, I mean, it really is pretty. Yeah, I mean, I guess. I guess. And for me, what's extraordinary and what's scary, of course, is that if Trump had these thoughts and expressed them on Twitter, on X, on social media, but the U.S. government was kind of chugging along in a fairly recognizable way and kind of ignoring these thoughts, which sort of characterized some of the first term, I would say. Right. I mean, you know, at least it was a record. I mean, there were things that you and I probably didn't approve of that happened in the Justice Department and elsewhere. But still, now he has got the whole U.S. key instrumentalities of the U.S. key agencies of the U.S. government have been weaponized on behalf of this theory, if you want to call it a theory, or this authoritarian wish. Yeah.
- [21:15]
Nathaniel Zelensky
And I mean, I think one of the problems of sort of the way that we now realize that the way the executive branch had operated is there were a lot of internal constraints on the executive branch. Right. That executive branch lawyers would Say you can't do X, Y and Z. And when I was in law school, I started law school part of the Trump administration. You learned sort of that as a key constraint on the executive. What has increasingly become clear in the second term is those constraints are just gone. I mean, you see stuff coming out of the Office of Legal Counsel that is to call it shoddy would be unfair to shoddy lawyering. You know, it's, it's, it's the worst kind of motivated reasoning. And so, you know, those internal checks are gone. And we have, you know, functionally, almost an honor system where the person who's running it and then all of the underlings have any honor. And so you can't run an honor system anymore. I mean, this raises a broader problem, which is, you know, we have to respond to this, right, on the one hand, and we have to, you know, figure out how do we put some guardrails on this faithless executive, but then what do you do on the back end when the next executive comes in? And they do need a measure of discretion and a measure of freedom. So I don't have an answer to that question, but that's one that I've been noodling through recently, which is, you know, we really have to, we have to control this executive. But you also want to ensure that when the time comes, the next Joe Biden does have some freedom to operate.
- [22:40]
Bill Kristol
I think the internal constraints point is so important. I've tried to make it a little bit myself, having come to Washington in 85 and been in government and discovered very quickly that there was, we were being told constantly, not told in a negative way. Just advise that, look, here's what you can do in terms of your discretion and administering certain. I was just at the Education Department, certain funds, certain programs, certain grant process. But here's what you can't do. This has been set up by Congress in such a certain way. And then there's a whole string of administrative procedures that have been put in place. If you want to change them, you can do that, but that requires notice and comment and whatever. The Administrative Procedure Act, a very major piece of legislation that was passed after World War II to deal with the modern administrative state. You have to follow these different laws and regulations. And if you're going to change the regulations again, you have to do so in an orderly way, respecting due process and so forth and all that. The internal people know about checks and balances because they remember reading, you know, Federal Standard, Federal 61. So they know Congress, the courts are supposed to check the executive. I don't think people fully appreciate how much in the modern administrative state you really want. You need to have internal checks, as you do, incidentally, in every corporation. It'd be like telling a corporation you could violate every HR thing you've got in your handbook at every internal process you've had. And, you know, if you don't like it, take us to court. Some people do run businesses that way, but it's not considered, like, the right way to do it, and certainly not a. An admirable way to do it. It's not even a legal way to do it. Turns out ultimately well.
- [24:04]
Nathaniel Zelensky
And I mean, you know, it's funny you say this because you see it on things big and small. I mean, I don't know if you focused on those, those banners that go up with Donald Trump's face. There's one at the Department of Justice and there's one I run by it all the time on 3rd Street. And Labor Independence at Labor.
- [24:19]
Bill Kristol
Yeah, yeah, we'll talk about that.
- [24:20]
Nathaniel Zelensky
And I mean, those violate a longstanding appropriations rider that says you can't do that. I mean, it's just nakedly unlawful. Now, the problem is, I don't, I don't know if anyone has standing to sue because no one is. You know, it's sort of a potentially a generalized grievance that affects all of us, but it's just nakedly unlawful. And, you know, one would hope in any other administration, many layers of executive branch lawyering and even non lawyers would have kicked in and said, no, you can't do this. You can't engage in what the law refers to as propaganda for a sitting president.
- [24:56]
Bill Kristol
Yeah, the Hatch actors related to that and the whole attempt to. I mean, people were thinking about this at the beginning of the administrative state, and they knew that if you have a president with a couple of million employees being able to politicize all of them, so to speak, and use them for his own political purposes, that's dangerous. And that's why there are all these constraints on everything from Hatch act getting involved in politics to propaganda to even lobbying Congress directly for legislation. The executive branch is supposed to spend resources to do that. I mean, all that's so fallen by the. And again, a lot of that had eroded in ways and was, you know, different people treated differently, and Nixon was different from Jimmy Carter and so forth. But I mean, the degree to which it's just been destroyed, I mean, even in Trump's first term, he would do it. He'd tweet something out about, I want all transgendered people in the military fired. And James Manitis would say, the Secretary of Mattis would say, I'm sorry, we can't do that. And I mean, and it really, the system doesn't work if you don't have some of those internal barriers in place. Now they are backed up by the courts, which I guess gets us back. Ultimately, they should be backed up by the courts and can and have been at many times. I guess that does get us to the question of what do you think more broadly? I mean, we're 18 months in. The courts have slapped down terrorists, for example, which is a major Trump initiative, and went to the Supreme Court and was pretty roundly repudiated. There's now a second wave of tariff legislation, which Trump's finding other ways to try to put on his cherished tariffs. Other things the courts have ducked or even upheld Trump, I suppose we could say, or different courts. District courts have been stronger, but then some appellate courts, not so much. And just generally speaking, where do you think we are in the kind of 18 months in on, well, the rule of law most broadly, but then particularly the courts as an instrument, a key instrument, of course, in upholding the rule of law flow.
- [26:40]
Nathaniel Zelensky
I mean, I'm cautiously optimistic. I think that there has been, especially recently, a series of, you know, events and victories that make me feel better. You know, I fully expect, by the way, on birthright citizenship. Right. I think that there's at least seven votes, hopefully, on the court for that. You know, I suspect that we will start to defeat.
- [27:03]
Bill Kristol
To defeat that.
- [27:04]
Nathaniel Zelensky
To defeat. To defeat the challenge Trump's executive order hold to uphold the 14th Amendment as we've understood it for, you know, 150, 200 years. So. So, you know, I think there will be continue to be some prominent examples where the Supreme Court pushes back. You know, I think the reality at the beginning was that there was just mass chaos and lawlessness, and a lot of courts stepped in. I think an untold part of the story, by the way, is the risk that individual district court judges have faced because they've stood up for the rule of law. And I don't think it's a small thing when a judge issues an order against the administration because they know they might come into the crosshairs and get targeted. So I think that's a part of the story. We should, you know, when this history is written, maybe celebrate those judges who. Who upheld their oaths. So I generally feel cautiously optimistic. What concerns me is there's a long tail In a lot of these cases, you know, take the civil service cases, the fired civil servants like Maureen, like my client, you know, Megan Jack Lampton Niro, that the immigration judges I talked about earlier, they're out of office, they're out of a job. They suffer real consequences for years. And the chilling effect that affects the entire civil service, that's there for years until the courts step in. And so, you know, part of the problem here is that the courts are only a part of the solution. And they're a Layla, a trailing, you know, band aid. That's going to come after the fact that and the other reality is courts can only do so much right. Take the banners up at the Department of Justice. It seems kind of silly, but that should shock all of us. It's a tangible symbol of corruption in the Department of Justice, the way he's using sort of his personal ends. The solution to all these things are voters. They're people mobilizing. It's the no kings protest. And so I think there's increasingly we're going to realize there's a point where the courts can do a lot. And I'm proud of what my firm is doing. I'm proud of what other lawyers are doing in this space, but they can only do so much. The other thing, I think where we've,
- [29:07]
Bill Kristol
I think the intermediate step, of course, in a funny way between voters and the courts is Congress who are elected by the voters, unlike judges who were appointed and confirmed by the president. Confirmed by Congress. And there I've worried at times that some of our lawyer friends emphasis on the courts and touting good court decisions by district judges could gives Congress a little bit of an excuse to say we don't have to deal. Tariffs is a good instance. Tariffs is unquestionably congressional power. It's literally in the Constitution. Congress has authorized the president to have certain emergency tariff powers. Congress has every right and has exercised the right to overturn presidential declarations. So the idea so all these terrorists that people don't like, including many Republicans, don't haven't liked and have thought a little crazy. And how could he just do this? He doesn't like what the Brazilian courts are doing. So suddenly the tariff on Brazil goes up from 10% to 50%. Congress could have stepped in and of course they've ducked. And one sort of excuse they've used as well, they're in the courts. Having said that, I also think I was wrong to worry too much because I think the courts coming down against Trump has also emboldened Congress in some ways to step up a little bit like on the ballroom and we'll see.
- [30:14]
Nathaniel Zelensky
And I also think it's a yes but too, which is because Congress has delegated so much authority over the years to the President, you need veto proof legislation. And so, you know, I think in reality, you know, even if you could get something through a Republican Congress, which just realistically is very unlikely to happen, you're never going to get it through at the levels of support needed to overcome a presidential. Make them.
- [30:37]
Bill Kristol
Well, make. But I'd say on that, just make them veto it. Make the Republicans go on the record and look and I think the Democrats have shown a little bit on the DHS bill, the ICE funding and now the ballroom addendum to the ICE funding. We'll see on the slush fund. But I think there too that just they could do a little more where they shouldn't be too fatalistic about the fact that it's a public Congress. And anyway, it's up to the voters six months from now to decide whether they want to.
- [31:00]
Nathaniel Zelensky
Well, but those are also areas where there's must pass legislation that they can hold up. Right. So I think that it's, you know, it's interesting to identify the areas where legislation may, may be able to work like on, on, on. On the ballroom. Right. Where, where he needs the money versus on the terrorists where the authority's already there and you can't claw it back. So.
- [31:25]
Bill Kristol
Well, you have to try to call it. But yeah. So you're right. Now everything is. At the end of the day, the entire government is funded by must fund legislation in a certain way. Right. Appropriations bills to which riders can be added. So I don't want to give them too much of an. You're right. It's a very different thing if you can stop something with 51 votes as opposed to having to pass something affirmatively with 67 votes. Conceivably anyway. But I do think we shouldn't let Congress off the hook. Anyway, you were about to make a second point that. And I think I interrupted you.
- [31:48]
Nathaniel Zelensky
Well, I forgot what it was. So I don't know. Yeah, it was an excellent point. I know.
- [31:52]
Bill Kristol
Well, let me get back to the. So a month from now, the Supreme Court will adjourn for the summary. We'll have the birthright citizenship decision. We'll have a little more sense of the overall state of play, I suppose, of the courts and the rule of law. One thing that strikes me, and I guess maybe we can close with this. I'd love Your thoughts on this is. I was struck by just this morning, thinking about this conversation, I looked at Trump's pretty insane tweet, tweets, I guess, posts on social media, on Truth Social from yesterday, from Saturday. There's an incredibly long one where he attacks Judge Cooper, attacks his wife, who's a gathering distinguished criminal defense lawyer, but she allegedly, he's doing this because she told him to, I suppose, or something like that at the Kennedy center ruling and caused. The entire judicial court system is rigged, and of course the political system is rigged. That's something he said many, many times. Elections are rigged. And I just thought, reading it, you know, I myself have gotten involved in all these individual fights, all this. But the degree of authoritarianism implicit, the President of the United States saying the court system is rigged and the electoral system is rigged. What does that imply? He's president now? It could mean that he's just venting and he's going to go ahead and obey all the court decisions and he's going to go ahead and obey all the election returns, and he's not seriously going to use the Justice Department to overturn to corrupt elections ahead of time by restricting mail in balloting, mail in voting to those whom his administration says are okay to get mail in ballots and all this other stuff that's going on. But I guess I had a bit of a moment of like, oh, my, you know, we are really. These decisions are great, but the authoritarian threat is very real. But tell me your thoughts.
- [33:25]
Nathaniel Zelensky
Well, look, I will say two things that keep me up at night. One sort of, which is not a very erudite observation, is I'm very worried about the midterms. I'm very worried about having a safe and secure election. And, you know, when you control the federal government, you control a lot of guys with guns. And at the end of the day, you know, folks showing up and seizing ballots is a very real concern. And, you know, maybe then you run into court and you get an order, but that possession is 9/10 of the law. Right. If they've taken the ballots, if, you know, the chains of custody are interrupted, we could be in a very dangerous space in November. So that's, you know, something that keeps me up at night. And the second thing that I worry about is, is an honest to goodness constitutional crisis. What happens when there is a court order? They decide they don't want to follow. And they've kind of played footsie with that line. You know, there was the order from the Supreme Court on a, on a deportation case. Where, you know, with Obrego Garcia, where they've kind of played a little footsie there with outright defiance. But, you know, I worry what happens when they just say, well, you know, it's, it's Mr. Roberts court, let him enforce it. You know, and, and that goes along with the, the delegitization. If you say, well, it's a corrupt judge, it's a corrupt court system, we don't have to follow it. You know, I'm not sure what we do other than resort to, you know, the democratic process and people on the street. Larry Silverman, who's a judge on the D.C. circuit, had a great line in an opinion where he says, we're gonna either go to the barricades or the basement depending on our predilection. And I think that's really where you end up in that circumstance. And that's something that I'm, I'm worried about.
- [34:59]
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Bill Kristol
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- [36:01]
Bill Kristol
is, I do think the corruption of the civic and political culture is real in the sense that I'm struck. Everyone's interested in Iran and what's going to happen there. And then a lot of people assume, well after Iran he's going to, quote, do Cuba. Now, I'm very unfriendly to the Cuban government and a lot of legitimate things one should do to pressure them and maybe even threaten them with the use of force. But normally if you're going to invade another country in American history, you do get some form of congressional authorization. I mean, we sort of forget. And the Iran thing for all the Democrats have Tried to bring up the war powers votes over and over again. I am sort of struck how that's not essential to the debate. I mean these things do get normalized I guess is what I'm saying. Right. And then the Justice Department, the mass firing of career lawyers and you've been involved in these more high flown cases with independent agencies being made un independent and again there was some case that maybe they'd gone a little too far in the independent agencies. But now we're at again at level of just wiping out all barriers on the President's control of everything. So he's going to fire someone and they control the Merit Systems Board that reviews these firings. Is that really the way we want our government to work? I mean, so I guess I am a little. How much are you worried about the kind of normalization of it all or do you think, and this is the counter argument, and I think a true one also, that there's been a pretty healthy reaction to it. So in a way maybe the system is, the antibodies are kicking in. I don't know. What do you think?
- [37:20]
Nathaniel Zelensky
Look, I think that there is an imbalance. What I'd say is this, we're playing asymmetric warfare. Because what has happened is Congress has given a lot of power to the executive. I mean take the, take the independent agency cases that you've talked about and I represent the fired member of the mspb, the merits of Protection Board and the court's hearing the Slaughter case right now, which is whether the President can fire the members of the ftc. Congress delegated a lot of authority to the executive branch under these constraints. Right. You can't just fire everybody at the FTC at will. You can't tell the Merit System Protection Board how to rule in your favor, which is what they're doing right now. They're literally issuing OLC opinion saying rule this way. In that case, you know there's, there's a real problem which is if you then say, okay, well the constraints Congress put are unlawful, they're unconstitutional, but you don't remove that delegated authority, you end up with a supercharged executive. And that's functionally what's going to happen in the short term as a result of a lot of these decisions. So I am worried about that and I don't really see an easy solution other than as you said, for Congress to try to claw some of that
- [38:33]
Bill Kristol
power back or insist on the restraints as conditions of appropriating funds and so forth. But that does get to the 67 vote question and so forth. Yeah, it is. I mean, I guess the conservative world you and I grew up in and you much more intensely in the sense that you grew up in it. And I already came along as I was already.
- [38:49]
Nathaniel Zelensky
Yeah, I will say Donald Trump came along pretty quickly in my. So I became a right. Donald Trump made me a refugee to the Democratic Party pretty fast.
- [38:55]
Bill Kristol
But the sort of arguments that were pretty sophisticated against aspects of this kind of these constraints and president has to have more discretion. I mean, I don't. But when you really step back and think about it, you can't have, as we've been saying in the executive branch of the size and amount of expenditures and so forth that we're seeing without constraints from somewhere. And those constraints do. And Congress wasn't being silly or power grabbing or kind of, you know, you know, just kind of petty when they said, okay, look, we're not going to regulate every trade, every ftc, every antitrust case or every communications dispute or everything is. We're going to set up an agency. It should be sort of independent. We don't want the president to personally pick all of his friends and cut deals with paramount for, you know, mergers and so forth as a condition of FTC action. So we're going to make it sort of independent that we can quarrel about what independence means and who should appoint and the president does Congress confirm. But the idea, it wasn't crazy of Congress to try to set up this kind of hybrid system if you want of delegation and constraints and, and yeah, the, when you remove the constraints.
- [40:02]
Nathaniel Zelensky
Yeah. I mean, one, one. I'll tell you, one sort of personal growth of mine that I often think about is I remember when I started law school, it was in 2015, when there was a lot of discussion around President Obama's use of drones against in some cases. Right. There are people who are working for Al Qaeda who are American citizens. And I remember the, you know, I remember at the time thinking this isn't a big deal. Why are we concerned about this? And you know, I trust the President. The President's never going to do anything. That's totally crazy. And you know, these are folks working for our enemies. You know, does anyone really, is anyone really exercised about this? And I remember there were folks on the other side of that debate who were very exercised about it. And you know what? I was wrong. I mean, they were right. And I think there are probably a whole host of areas where, and it's, and it's funny because it's not always a right left thing Right. In that case, you had folks who I think were more considered on the left who are very worried about the presidential expansion of war powers. You have folks on the right who are concerned about, about the growth of the President's ability to engage in wholesale regulation. Right. What you're seeing is this President abusing both powers.
- [41:06]
Bill Kristol
Yeah.
- [41:06]
Nathaniel Zelensky
So maybe.
- [41:07]
Bill Kristol
Yeah, yeah. We need a real fresh thinking and rethinking and rebounding in a way of the whole system. Right.
- [41:14]
Nathaniel Zelensky
Well, but, but I'm not, but what I'm worried about, right, at the end of the day is you, you put too many constraints on the next executive. Right. The next executive is gonna have to do some things. And so, you know, the real problem here is, right, You're, I'm reminded of the old, right, Shakespeare quote then that Edward R. Murrow, right, says when he In McCarthy era, right. That the fault's really in ourselves here. Right. We, we need to have a, we can't have a faithless executive in its best. Expect the system to function right. If we're all playing constitutional hardball for, you know, four years on, four years off, it's not going to work.
- [41:43]
Bill Kristol
Now that is the deep, deeper truth. And but for now, we need to do what we can to keep the prop up guardrails and establish them where possible, it seems to me. And just prevent the real slides out.
- [41:56]
Nathaniel Zelensky
Sure. No, 100%. You're working 20 hours a day. You got to keep the patient alive. No, I'm with you.
- [42:02]
Bill Kristol
The further down the slope. That's a good way of putting it. Yeah. The further down the slope we get, the harder it is to get that
- [42:06]
Nathaniel Zelensky
cat climb up and you know, we got to make sure we can have free and fair elections. Because I do think that's the key, the key element here, right. If you can't, if you can't right the ship, if you can't reverse it. A lot of the stuff that lawyers like me are doing at the end of the day is sort of window dressing. Right. You're changing the deck chairs on the Titanic. And so I do think that the key question for the rule of law will come in November. You know, I think the lesson from Hungary is you want to win by a landslide and you want to make sure the supporters of the rule of law, there's no way you can monkey with the system. And they would lose.
- [42:40]
Bill Kristol
We still have two more years. Even if it's a Democratic Congress, on the other hand of the president may be trying to do these things. So 26 and 28. Yeah, those are huge. Nathaniel, that's really been helpful, clarifying a little bit cheering and a little bit also chilling, which is appropriate I think, given the situation we're in. So anyway, thanks for all you're doing and thanks for joining joining me today.
- [43:01]
Nathaniel Zelensky
Thanks for having me, Bill.
- [43:02]
Bill Kristol
And thank you all for joining us on the Bulwark on Sunday.
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