← Outrage Overload: Rethinking politics, division, and media
Outrage Overload: Rethinking politics, division, and media
93. The Structural Battle for the DOJ – Alex Lovit
00:51:52
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Welcome to Outrage Overload, a science podcast about outrage and lowering the temperature. This is episode 93. Back in February 2025, we ran an episode titled the Imperial Presidency.
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In that episode, we looked at a
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presidency stretching its boundaries, defying court orders, dismantling agencies and and overriding traditional corruption safeguards, all while our standard checks and
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balances struggled to keep up.
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At that time, much of our focus was on the newly minted Doge efforts and the broader civil service bureaucracy. But as we move through 2026, the battlefield has shifted to a critical center of gravity in American the Department of justice. For 50 years, the DOJ has operated under a powerful post Watergate norm. The idea that while it sits within the executive branch, it operates with a degree of independence from direct presidential control to ensure the impartial administration of justice. In 2026, that norm has been explicitly and structurally rejected. The Trump administration argues that an independent DOJ is a constitutional myth. They assert that under Article 2, the President has absolute authority over executive branch agencies. And we've seen the rapid operationalization of that theory, the swift dismissal of federal indictments against political allies, targeted pressure on political opponents, and a massive ideological realignment
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of the DOJ staff to include the
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FBI, DEA, ATF, and the U.S. marshals Service. Is this a radical, unprecedented departure from American history? Or is it the culmination of a long standing vulnerability that built into the very design of our system? To help us deconstruct this, we're joined today by a very special guest.
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Hi, I'm Alex Levitt. I'm a senior program officer and historian at the Charles F. Kettering Foundation. Charles F. Kettering foundation is a nonprofit, nonpartisan foundation focused on inclusive democracy, headquartered in Dayton, Ohio, the home of Charles F. Kettering. And I also host Kettering's podcast, the Context.
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Alex Lovett holds a PhD from the University of Michigan. On his show the Context, a sister podcast in the Democracy Group Network, he regularly engages with Pulitzer Prize winning authors, major political figures, and top scholars to unpack the roots of modern civic life. He brings that same deep historical lens and sharp analytical insight to our conversation today to help us trace the structural lineage of DOJ powers from the department's founding in 1870 through the Palmer Raids, the Teapot Dome scandal, and Watergate. To understand exactly how we got to the institutional landscape and of 2026, here is our conversation.
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Alex Lovett, thank you so much for making time for our little program.
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Yeah, thanks for having me.
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So, as you know, we talked about it before that we. Last year we did this Episode titled the Imperial Presidency. And at that time we were kind of looking. They the things in the current news were sort of the Doge efforts and all these efforts, a lot of efforts to sort of scale, you know, bringing back some of the civil service ideas of being able to fire everyone without much reason. And this kind of thing in civil service was a big part of it. So we sort of looked at the larger administrative state then, but specifically we're going to talk more about the DOJ today. So when Congress created the DOJ in 1870, I believe, what was their intent? Like? Did they realize they were centralizing this much power under an Attorney General or, or was it envisioned as something more modest?
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Yeah, well, so the Attorney General was there from the beginning. So when it was one of the first cabinet officers. The Constitution doesn't specify what the cabinet officers are going to be, but it mentions there's going to be a cabinet. So that was, you know, one of the very first things Congress did in 1789 is sort of start delineating what, what are the departments going to be. An Attorney General was there from the start. It was underpaid. It was a part time position. So basically the entire DOJ was one part time guy. And the idea was that, you know, lawyers can make money in the private market and you know, the US Government is just one client. So at that point it was very decentralized. There was one guy in Washington kind of serving as Attorney General for the United States as a whole. There were circuit circuit attorneys, prosecutors across the country, and those were not under the Attorney General. So the Attorney General did not have any authority over all the district attorneys throughout the country. And that could sometimes be a problem because it meant that district district attorneys in different districts could make different arguments. The federal government would kind of contradict itself in what it was arguing. But then the reason in 1870 that it was decided to kind of centralize that department and bring those district attorneys under the Attorney General and put this whole structure in place in Washington is of course, this is in the immediate aftermath of the Civil War. So this is a point at which for one thing, the federal, federal bureaucracy had expanded a lot. So that tends to happen in war. You know, you're expanding the military and then you need a lot of civilians overseeing the military. And then while you're at it, let's just expand the federal government overall. So that had kind of just happened. But also Congress at that point really did not trust decentralized power down to the local level. So, you know, half the country had just. Had just attempted to secede from the union. So this idea of kind of district attorneys, you know, often southern states without oversight in Washington was suspicious, and they wanted to kind of bring that into a centralized organization.
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And as we look through the history of some of these scandals, they seem to fall kind of in this category of either sort of shielding allies from accountability or maybe attacking specific groups. And I know there's references to, like, the Teapot Dome and we have Watergate and there's Palmer Rays and after World War I. So I know you know about a little bit of those, but only mostly from what you. You've showed me. And when we look back at those chapters, were these cases of like, a few bad actors, or did they expose some of these bigger vulnerabilities?
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Yeah, well, it varied. So sometimes it was kind of one bad actor or a small number of bad actors. So Teapot Dome, nobody remembers this anymore, but at the time, it was the biggest scandal in American history. Up until Watergate. It was kind of the biggest scand. And this is in the 1920s. It's under the president as Warren Harding. And the central scandal is not within the doj, but so it was the Secretary of the Interior, Albert Fall was his name, and he basically got caught taking bribes. You know, so he was in charge of leasing federal land to oil companies that they could drill on. And he basically took bribes to lease it at favorable rates to certain companies. So the real corruption, and it was sort of one guy at the time, there was this idea of the Ohio gang because Harding and Fall were all from Ohio. And also Harry Daughtry was the attorney general at the time. He was also part of this Ohio gang. And he wasn't involved in the core corruption. He probably didn't know about it beforehand, but he did try to help conceal it. And there's a complicated story about his brother ran a bank in Ohio, and then some of the proceeds from this corrupt scheme were being deposited in this bank. And then his brother was refusing to testify in front of Congress. So kind of a whole messy situation. But that's a real case of, you know, when you have the power to investigate crime and criminal activity is within the White House, you know, who's going to investigate it when somebody in the White House commits a crime? So, you know, that's an example of that. But that is sort of just one bad apple. You know, in other cases, you mentioned the Palmer Raids there. So that was actually just before. So we had a kind of bad record of attorney generals back to Back. So the Palmer raids are 1919, 1920. Woodrow Wilson is president and the Attorney General is Mitchell Palmer, a Mitchell Palmer. And, you know, it was a time of. This is just after the Bolshevik Revolution, you know, coming out of World War I. And there was a lot of fear of communism. So this is kind of the first red scare, the first of several red scares in American history. And. And there were, you know, there were legitimately some anarchists that were committing violence. There is this Italian immigrant, Luigi Galani, who his followers were mailing bombs across the country, including to the Attorney General. Not a few people were killed, not that many, but still, it's scary to be sending bombs to the postal service. And so Palmer, the Attorney General, it's a moment of public fear of Bolsheviks. I mean, it's not just that the government is scared. It's that the public is really upset and fearful. And Palmer, he's a politician himself. He's. He's a former House member. He's has political ambitions. And in part because of that, he sees, you know, that, boy, I can get rich. I can get famous by, you know, being seen to crack down really hard on. On these Communists. And so he ends up arresting 6,000 people across the country. And, you know, this is before a lot of the Miranda warning or any of that, but, you know, real clear abuses of power where people are being arrested without warrants, without real evidence, or they're held in jail for months in overcrowded conditions without access to lawyers. You know, so a kind of clear overreach. And that's not just one bad apple, really. That's. That's the whole system seeing, you know, this communist threat and then being willing to infringe on liberties. I'll say one more thing about Palmer. You know, I know I'm going on here, but that. So, you know, it turns out when you arrest a bunch of people without much evidence, it's real hard to prosecute them. And so a lot of these folks did end up going free, but he. He discovered that that one group of people that was particularly vulnerable were immigrants. And in fact, that he targeted a lot of immigrants because it was, you know, this was Russians, Eastern Europeans, Jewish people. These are the people that were being suspected of being communist infiltrators. And so several hundred people were. Ended up being DEP with limited due process. But that was a little easier than putting everyone in jail in there.
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You mentioned, you know, the idea of if the president or maybe his allies are committing crimes, who's going to prosecute that? And let's just talk about that a little bit because, you know, we sort of see this now and sometimes it feels like this has never happened before. And, you know, this is all new stuff. So I'm curious, like, how new is it? How often or how much have we seen this in the past where, you know, the selective prosecution, the presidents have been protective of their allies, or let's just go with that side of it, of the equation first and, you know, how different is what we're seeing now?
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Well, we have definitely seen it in the past. So, you know, the Teapot Dome is an example of that, of protecting a political ally. Watergate is an example of that. So John Mitchell was the Attorney General under Watergate, under Nixon. And the thing he primarily got in trouble for wasn't being Attorney General, the thing he, he was also Nixon's campaign manager in 1972. And so not totally clear who knew what, but it seems like Mitchell was probably aware of some dirty tricks being played, including possibly the break into the Watergate Hotel, the Democratic National Committee's headquarters, you know, as it was basically an attempt to, hey, let's find out what secrets the political opponents are, are holding. And, and then Mitchell does try to cover it up too. So he, he ends up. There's a crazy story from this where, you know, the Watergate story breaks originally, which is just, hey, some guys got arrested breaking into the Democratic National Committee. And no one really knows what that means yet, but one of the guys that gets arrested had been part of the Committee to Reelect the President. And Mitchell's wife, Martha Mitchell was, she was kind of a right wing commentator. You know, she was famous in her own right. And so John Mitchell, the AG sees that his wife, you know, you know, he's worried that she's going to find out that she, he's like, oh, she's going to realize that this guy was connected with us. And so he has her sedated. He had, you know, he has psychiatrists, you know, diagnose her with mental illness. And in an attempt to kind of keep her quiet, he ends up resigning just one week after that initial Watergate story broke. But even within that one week, he already had taken some steps, had met with Nixon to try to cover up the crime. So that's certainly an example of Attorney General, the Department of justice failing to investigate. Another example would be Iran Contra. So once that story breaks, Ed Meese is the Attorney General at that time under Reagan, and some questions about how, how thorough edmies was in trying to investigate the Iran Contra affair. But what we're seeing now, yeah, I think it's different. I think it's a different scale. You know, I think for one thing, the widespread pardoning of people with criminal convictions or under criminal prosecution, that is not totally new. You know, that, that's happened before. But the only thing, you know, so, so pardoning, what is it? 1600-1-6 riders pardoning, you know, its first term. Trump pardoned Manafort and just a bunch of Michael Flynn, a bunch of his own sort of people involved in his own campaign. The kind of, the scale of that, the only thing that compares is after the Civil War, Andrew Johnson is a conservative that is in the White House after Lincoln is assassinated. And Andrew Johnson, you know, the, the people in Congress are kind of are radical Republicans and they actually are radical. They're, you know, really trying to enforce racial equity. You know, and Johnson just wants Southerners back in the country as fast as possible, and he's not on board with any kind of racial justice. And so he just starts handing out pardons left and right and then ends up before he leaves office, he just issues a blanket pardon to every Confederate, every former Confederate. So that, you know, that is obviously a bigger scale than what Trump's doing now, but actually somewhat similar. You know, just pardoning everybody that was involved in an insurrection attempt.
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You know, another difference that, that seems to me there and again, sometimes we have rose colored glasses where we just don't remember is it's so open and so transparent that like no one's trying to cover it up. Like, it's not like behind closed doors, he sort of tweets about it and says, I want you, somebody in the DOJ to do a thing or arrest a person. You know, and then we obviously, if we see the tweet, there's probably a lot more going on that we don't see. But that seems to be a big difference too, as any. I mean, there was never Twitter before, so it would have to be some other way to be public. But I'm curious if that's a difference too, that he just sort of puts it out there that he's going to do this.
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Yeah, well, and the selected prosecution of political enemies, I'm sure that has happened in American history. I don't know of a lot of great examples of it. So some of the ways that Trump has very publicly made clear he sees James Comey as an enemy. He would like James Comey to be in jail. And now two attempts to indict James Comey on, in my view, Flimsy grounds, and the first one was already thrown out of court. You know, so it does feel like there's a vindictive kind of motive behind it that's just right out there in the open. As you said, you know, Trump is not tweeting anymore. He's truthing. Yeah. So I think that is somewhat. Now it's worth pointing out that, you know, the Justice Department has a lot of powers. I mean, Justice Department can do a lot of things to make people's lives miserable. Most of the time, most of the things the Justice Department can do end up having a backstop of the courts. So there's a difference between the Justice Department, which is. Which is within the executive branch, you know, and the. The judicial branch, the actual court, where these things are tried. So Comey's an example of that. You know, the Justice Department indicts him, it goes to court, the court rules it out, you know, throws it out, because it is actually not. Not a strong case. But you don't want to rely too much on that system because. Because the, you know, you can still really make people's lives miserable just by indicting them. So, you know, it. It. Even though there's the. The court to prevent the worst abuses, you know, people's lives can still be ruined for years while they're waiting. And then the pardon power, which you were talking about earlier, is, you know, that's one of the least checked powers in the Constitution. The president can just pardon whoever he wants, and there's no. No one can overturn that. So, you know, that's. That's a power that, you know, and that's not really within the doj. I mean, that's just the power the President has traditionally, that's an office, and the DOJ is suggesting who to pardon. Trump is. Is pretty much ignoring that office and just making its own decisions.
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Right.
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There's a lot that would be in this category of norms that. There's a lot of the ways we have been doing things that. That they aren't really enforced. There's nobody forcing it to be that way. After some of these larger ruptures, like. Like Watergate, you know, we had responses to try to build some checks on this, like inspectors generals and ethics officers and some civil service protections. And some of that was with the goal of trying to keep some of these departments more insulated from political pressure. And today we're seeing kind of reversal of that as much as possible.
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Right.
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They're trying to really put in loyalty tests and things like that. And really try to have anyone in the executive branch pretty much be in line with the president's agenda. So I guess how effective, from a historical perspective, how effective have those guardrails been to try and to try to keep these organizations somewhat independent, especially when an administration decides they're going to challenge them?
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Well, I think the guardrails have been effective to a limited degree, and those guardrails have changed a lot over time. So Teapot Dome, you know, one of the things that came out of that was Congress is trying to investigate this, you know, these, this corruption in the White House in the executive branch. And so Congress is trying to hold hearings and subpoena people. And then there's this legal question of does Congress have the right to do that? You know, because they're, they're supposed to be, you know, they're supposed to have powers to investigate, but for legislative purposes. And is this not a legislative purpose? And there's an important Supreme Court ruling that says no, Congress does. You know, Congress can subpoena people and, you know, they can hold people in contempt if they fail to show up. And, you know, they can face criminal penalties for that. You know, so that's an important kind of bolstering of Congress's role of oversight, something Congress is not doing a whole lot of lately, after Nixon, a ton of reforms. And partially that is to build independence within the DoJ. So partially, again, it's empowering Congress to do investigations. Partially, it's about, okay, within the doj, which is going to be under the executive branch, which is going to be under the president, but still, let's build some independence in there. Let's. Let's guarantee some independence in there. And so they create the system of independent councils. That has changed a bit over the years, but that's basically what Robert Mueller was, you know, so that is a system that has continued to exist where if there is a investigation being happening into the White House itself or the White House staff, then the Department of Justice is supposed to kind of take a step back and create this independent council. And then they have their own budget. They can kind of run. You know, they, they are fairly free of, of presidential oversight. You know, and so that. That has been effective to some extent. But it's worth mentioning that that Trump really hated that system, and that's why he fired his first Attorney general, Jeff Sessions, specifically because Sessions stepped aside and made room for an independent counsel. So, yeah, I think the systems have held to varying degrees.
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Yeah. I mean, and you mentioned something like with the Mueller investigation, they may have been protected then, but, I mean, subsequently, now Trump is going after anybody that was involved in that, that, that investigation. So, you know, and. And there doesn't seem to be a lot anybody can do about that.
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Yeah, well, one thing that Trump is doing in the Justice Department and really throughout the federal government, the Justice Department, less so than some other branches or some other departments, is just firing a ton the size. He's fired something like 250,000, 300,000 people, or that's the total decline of the federal government because he's also hired a few people. And as you mentioned, those hirings are being now subjected to loyalty tests. So everyone applying for a federal job at above a certain pay grade, and it's a pretty low pay grade, has to answer an essay question that is basically, how will you advance the goals of the Trump administration? So that's kind of a problem. And then, yeah, he's fired. In the Justice Department, particularly, he has fired a lot of people that were involved in investigations into himself. So that seems pretty direct, just vindictiveness against people that he sees as his enemies. And then he's also fired. The civil rights division of the DOJ is. Has declined by like, 75%. So a lot of people have left that particular agency or that particular oversight power. Yeah, so that is. And part of the whole idea of civil service back in 1883 was to protect government bureaucrats from being fired. That was. Prior to that, there was the spoil system, and the spoil system was basically, president comes in, he fires everybody and hires whoever he wants, hires his own loyalists. It doesn't really fire everybody. I mean, Andrew Jackson was famous for doing this in 1828, and he only actually was only 10% of the federal workforce, but still, that's a pretty large chunk of the federal workforce. And, you know, these people were supposed to be protected. And that has not really played out very much in the Trump administration, in part because the courts have not stepped up to prevent these mass firings and have at least allowed them to continue in a lot of cases without holding full hearings. So the Supreme Court has said, okay, you can go ahead and fire these people while we're deciding whether you can fire these people. And then, of course, you know, maybe a couple of years from now, they'll get around to saying, no, you can't fire, you know, most of the Department of Education. But by that point, it's already happened. All those people lost their jobs long ago. So, you know, at least in the short term, it's. It's Trump has been allowed to, you know, fire whoever he wants.
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Yeah, I mean, the timelines of this, you know, stuff, it doesn't always work out well for us, you know. So the other side of that, though, I mean, is this idea that, that, you know, the executive was supposed to have a lot of power and they do have a mandate, and therefore all this stuff is the right way to do it. You know, there's this. There's been reported that there's this slang that has arisen in the current administration. They talk about being Article twoed, which is where if you were fired because you were not seen as sort of actively supporting the agenda enough, then you get fired. And that really relies on this sort of. Of expansive view of Article 2 powers, you know, and how do historians view that, that balance, you know, the doj,
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is it really meant to be a
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direct extension of the President's Democratic mandate, or is it supposed to be something that's more insulated? And how, how do you see that from a historic historian's perspective?
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Yeah, well, so let's do a little Civics 101 here. So, you know, three branches of government. Legislative branch creates the law. The judicial branch is supposed to interpret the law, and the executive branch. The reason it's called the Executive branch is because it executes the law. So Congress decides to do something, you know, they say we want to give pensions to Civil War widows, or we want to make cocaine illegal. And somebody's got to do that work. Right? Somebody's got to, like, figure out who the Civil wars widows are and write them a check. You know, there just needs to be an office for that. Somebody's got to investigate cocaine trafficking and figure out who to prosecute for the crime and do the actual prosecution. So all of that is within the Executive branch. Now, it's worth mentioning, you're saying it's Article two. And Trump famously said, I'm not sure I'm going to. Quite right. But you know that I have an Article 2 that allows me to do whatever I want, but it's Article 2.
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Right.
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So Article 1 is about Congress. And I think most historians would agree that the original design of the US Government was that the legislative branch was really supposed to be the primary branch. You know, there's this idea of co. Equal branches and, you know, they are supposed to check and balance each other, but. But from the legislature was the most representative, or that was the idea, because, you know, it's, it's representing all the different parts of the country. And especially at the beginning, the the founders were very concerned about sort of geographic representation. But, you know, so Congress is supposed to generate the laws, and then somebody's got to execute them. Somebody's got to oversee that. That department that is, you know, the various departments that are. Are doing all the various things. But, you know, originally the idea there was less of an idea that the president would have a lot of power to. To interpret the law in different ways. And a lot of this is because the federal government was a lot smaller. You know, so today the federal government, including the military, is like 5 million people. You know, that's. That's a big. You know, it's the largest employer in the United States is the federal government. Back in Andrew Jackson's time, it was like 10,000. Still a pretty decent sized organization, but it is just a much larger organism now, and it does a lot more things than it did at the origin of the country. And part of that is that Congress is, you know, we have a much more complex economy. We have more complex laws, you know, so Congress has. It's more complicated to say we want to prevent harmful chemicals from being released into the air and water. And that's a more technical question. You've got to get some scientists and experts on board to help you figure out what the harmful chemicals are, you know, to figure out, you know, what is possible to regulate how you're going to monitor this stuff. So then you end up with the epa, which is a larger agency with more technical expertise, you know, and then there's this real question of, well, where does. So the President is supposed to execute the law. The president is supposed to oversee the, you know, the EPA and all the other departments doing all the things, you know, but where does the. The line stop between interpreting the law and, you know, intentionally misinterpreting the law? You know, you're still supposed to protect the environment. In the Environmental Protection Agency, you can't just say, you know, okay, this agency is the energy production agency now and we drill for oil. You know, you're supposed to. You still have to execute the laws. And, you know, so that. That's kind of how the whole system was structured over the last. It's not just Trump, for sure. There's been this shift in power towards the executive branch really for a long time now, certainly starting in the early 20th century, you know, with World War I, World War II, big expansions of kind of the executive offices of the country, you know, and some of that is just because, you know, it's a more complicated government doing more stuff so to some extent, it's maybe even inevitable that with more and more offices doing more and more complex things, that the executive branch was going to grow in power. But that's really on steroids today where Congress, I mean, they barely pass any laws anymore, let alone investigate the executive branch. And the judicial branch is in some ways seizing power for itself. But in a lot of ways it's just saying executive branch, do whatever you want. So that is certainly not how things were envisioned as part of the original design of the country.
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Yeah, I mean, as you note, the courts have been pretty hesitant to restrict the executive branch, kind of citing that the President has a mandate from the voters to execute their policies. And so, you know, this gets us back to when we spoke to James Goodwin in the Imperial Presidency episode. He talked about, you know, how if it comes to a battle between the court and the executive, that would be like two suns colliding. And, you know, if the courts either won't step in or maybe can't enforce their own rulings and, you know, impeachment seems to be the remedy the founders put in there. But in our political environment, impeachment seems like an impossibility. I mean, what's left to hold the line?
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Well, we'll see. I mean, I think elections are still how, if we are any kind of democracy, elections are the ultimate backstop. I mean, that's how you hold power accountable. I have some questions about how free and fair the election this year is going to be. And I think, you know, there's no such thing as a perfect election. You know, it's pretty complicated to count tens of millions of votes and keep it all anonymous and make sure so, you know, the election system is secure. It is. You know, the votes are counted accurately, but there's plenty of way, little ways and maybe medium sized ways that elections aren't fully accountable. You know, so there's, there's policies about voter ID that exclude a lot of people. There's voter roll purges, you know, various policies that make it hard for every portion of the people to vote. You know, gerrymandering certainly is part of that. So, you know, but elections are the ultimate way that we're, that we're supposed to hold power to account. I think the Trump immunity decision from a couple of years ago from the Supreme Court is very damaging. It's just broad immunity for anything the President can plausibly is related to his office. You know, so that means it's almost impossible to hold a president accountable legally in a way that isn't True. You know, you can prosecute a senator or a House member, but not the president. And you know, there's a lot of other examples around the world of successful democracies. You know, so I think the Supreme Court was worried about, or said they were worried about this idea of kind of kangaroo courts. And there's just gonna be. Each administration will try to try the previous one, you know, and that. That is a concern. But now we've created a system. They've created a system where it's almost impossible to hold the executive to branch to account legally. And then Congress, at least recently, isn't working too hard to investigate or, you know, hold them to account legislatively. So that leaves elections.
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Well, that's not super. That's not super good news to hear. I guess I'm trying to figure out if there is anything structurally that we need to start thinking about reforms to some of this. Just the fact that you say that as you say that because there's so many laws and they're so complicated and because the president, due to Article 2 is that's the branch that enforces the laws, that it requires this large administrative state to do that, but that implies some goodwill and some adhering to norms and things like that to not selectively enforce those laws. And it seems like the framers just left everything to impeachment. That's like the only mechanism besides elections for a rogue president that isn't adhering to those norms. And again, I still like to come back to that argument that someone on a conservative side might say, it's like, no, he's got the right to do this. He was elected. People wanted this mandate. And again, in a 50 plus 1% environment, I don't know if mandate's really the word we should even be using, but, you know, because that's not exactly how that works. But. And especially when you do polling today and find that, you know, large percentage of these individual policies are not particularly popular. So is that really a mandate? But, but that's the argument from the other side that, you know, all of this kind of trying to curtail the president is not Democratic.
- [34:02]
C
Yeah. Well, I think it's important to point out that the president is not the only elected office at the national level. So as I said earlier, Congress was really supposed to be the primary branch creating the law. So if anybody has electoral legitimacy, it's Congress more than the President, at least as the, the original design of the Constitution. Yeah. In terms of what reforms might be possible, I. So I might be getting out over Meskis here, because I don't, I don't, this is not something I've heard other people say, but there was a decision a couple years ago at the Supreme Court, Loper Bright, that overturned Chevron deference. And what that was, was Chevron deference was this idea that the court should defer to the executive branch. So if there's any ambiguity, so Congress passes a law and says, whatever, we're, you know, I'll go back to the epa, we're, you know, regulating the amount of lead you can put in your water or whatever. And, or maybe it's not even that clear. It's just we're regulating the, you know, harmful chemicals you can put in your water. And then somebody's got to determine how to interpret that, you know, what, what counts as a harmful chemical, how, what level of it is harmful, you know, how all that stuff and Chevron deference was a long standing legal principle that said the courts had to def to the executive branch. So if the executive branch had a plausible interpretation where they say we don't think this chemical is that harmful and you know, these levels are fine, or we think this chemical is super harmful and that could change administration to administration. You know, the law doesn't change, but the interpretation could. And then what the court did was get rid of that and say, okay, we, the court are going to be in charge of deciding that. And in some ways that's, you know, that's certainly more power to the, the judicial branch. In some ways that's more power to the, you know, it's certainly less power to the executive branch. And you know, at the time, a lot of the concern about this decision was that it would disempower experts in the, in the executive branch. And that is definitely a concern. So you know, you have scientists at the EPA saying no, I know what's harmful. And you judge, don't understand this stuff as well as I do. But it also does give a little bit more of a check on the executive branch being able to interpret whatever it wants willy nilly. So it's possible that, that some of this stuff could get blocked through courts, but that's a slow process. I don't know what reforms will come out of this moment. There were major reforms after Watergate, after Teapot Dome. But in both of those cases, those scandals that were widespread realization, you know, the broad public agreed that something had gone wrong and that allowed for large electoral majorities or at least the threat of large electoral majorities, I don't think we're in the same place today. You know, I think a lot of Americans feel that what's happening in the Trump administration and in particular in the Justice Department is a scandal, is a crisis. I believe that. But I don't know if we have enough national agreement on that to make widespread reform possible. And I'm pretty worried about what that means.
- [37:31]
A
Yeah, well, that takes me.
- [37:32]
B
That's a great lead into sort of this core challenge, this idea that we could be heading into a pretty scary feedback loop here or a spiral. If, if the public loses faith in the neutrality of the doj, which I think a large percent of the public has already, the response from the political opposition isn't sort of necessarily just a return to norms. It can be something more like just use the same tools against them. Right. I mean, and you're seeing these kind of calls in the Democratic Party today when they've regained power and if they were to regain, regain power, let's say, for instance, we have all these purges that we've talked about with that, that has left mostly MAGA loyalists throughout the executive branch. So would, this is, would kind of, I guess, would look more like the spoil system, but maybe on steroids. Would a Democratic president be bold enough to do the same thing and have their own loyalty test and then fire all those MAGA people? And, and should they? I mean, is that the president we want? And if these legal frameworks alone can fix this, like how. And the informed norms have sort of gone out the window, how do we break that kind of cycle?
- [38:54]
C
Well, you know, if I knew the answer to this. Yeah, no, I am pretty worried about that. And I think it's important that we don't get into a vindictive cycle. So how do we do it? You know, I think there's one element of it is, is, you know, is public accountability. I mean, I come back to elections, you know, so I think, I don't think the public really wants that. I mean, an easier example maybe, and this isn't doj, but is gerrymandering. I mean, you know, you know, gerrymandering is not popular. People don't like it, and it is really increasing, you know, so there has been, as we all know, a spate of mid decade redistricting this year to try to maximize partisan advantage, you know, which I think the Republicans started it in Texas, but the Democrats have been, you know, willing participants and it's, it's just contributing to a situation where very few House seats are even competitive anymore. That's terrible for democracy. It's also very unpopular. And so possibly that is something that the public could get upset enough about that legislation could be passed, you know, that there would be bipartisan, at least among the public, bipartisan agreement that this is bad, this is a problem we need to fix. And possibly the same could be true about, you know, the civil service in Washington. Now, it's not that Trump has fired, you know, everybody, you know, he's fired 250,000 or 3, 300,000 or, you know, a little bit more than that because he's hired some people, but, you know, out of a federal workforce of about 2 million in the civilian federal workforce, not including the postal department, you know, so it's, it's a big chunk, but it's not, it's not everybody. So there's plenty of people who have been career civil servants. And in fact, he can't fire everybody because they couldn't hire people fast enough. You know, what happens if a Democrat takes the White House? I mean, I think a fear that I have and, you know, not to be partisan here, I mean, I think that there's legitimate arguments for conservative and progressive policies, but it is, if the argument is about the size of government, it's a lot easier to smash institutions than it is to create them them. So there will be after this. You know, one of the advantages of federal jobs in the past has been they pay pretty well, but in a lot of sectors, they don't pay competitively with the private sector. And, you know, but job security was supposed to be one of the things you get a federal job and as long as you don't, you know, give them a reason to fire you for cause that's the secure job that is now no longer true. I mean, that is going to be a presumption that's going to make it hard to restart staff, federal agencies, you know, who's going to want to go work for the, you know, the civil rights division of the Justice Department if the next Republican president is going to fire you again, you know, so it's going to be hard to rebuild that expertise. And that's a, that's a case where I fear there's kind of a, an imbalance of, of power, imbalance of the effectiveness of that tactic between the two parties, between trying to build government institutions that do things and trying to dismantle institutions that do things. So I really don't know. I mean, this is, I think this will be a major question presuming that, you know, Trump is leaving the, the White House after this term. Which is constitutionally barred from running again. And, you know, without saying anything about the next election. But sooner or later, we should have a change of, of parties in power. You know, if we don't have that, then we probably aren't a democracy, you know, and I think this will be a major question for whoever the next Democrat is to occupy the White House. House is how to, to try to protect, you know, that federal workforce so that it can't just be smashed again.
- [43:03]
B
Yeah. As this hostility builds, you know, they're going to have to somehow appease that angry segment of their own party while hopefully not tearing the country apart.
- [43:17]
C
Yeah, well, I mean, I think,
- [43:21]
A
I
- [43:22]
C
mean, I think that a lot of this has to come legislatively, and that's scary because Congress isn't doing too much lately. But that is a thing that Congress can do is, is kind of set the, the rules for the civil service. And that's the thing they did back when they got rid of the spoil system and created civil service, you know, way back in the late 19th century. Now, I do not want to defend the way Trump has treated the federal bureaucracy. I do think there is an argument against civil service reform, which is. So the, the Jacksonian argument for the spoil system was. So the spoil system was, you know, partisan loyalists get handed federal jobs. They were expected to basically tie the percentage of their income, like up to 10% of their income was supposed to go to contribute to political candidates. And they would. They were also expected to part of political campaigns. So people based in Washington, D.C. would be given leaves of ab. Paid leaves of absences during elections so they could go home and be part of the campaign. You know, and that all sounds corrupt, and it was corrupt, but what Jackson said is it brings government closer to the people. So it meant that everyday people, you know, who had partisan loyalties but not necessarily education, you know, were able to step into those jobs and, and, and that they had maybe a more understanding of what everyday Americans were like. And in fact, when civil service reform started, there is evidence that the kind of, the class of civil servants in economic class, you know, more of them came from wealthier backgrounds, fewer of them came from poorer backgrounds. You know, so I think, you know, I think we've relied on this idea of merit in this country, you know, both in this realm and in a lot of realms where there's this idea of I have earned my privileges because I got an elite education. And that kind of ignores the fact that, you know, I got an elite education because my parents got an elite education and, you know, I was given a lot of privileges growing up, and, you know, maybe I even got alumni access to college, you know, So I think this idea of merit is one that we should be rethinking as a country. If you look at Trump's executive orders to abolish DEI within the federal government and also to try to decrease regulation of affirmative action in other. In private businesses, both of those executive orders have the word merit in them. So he is trying to claim this idea of, we need to get rid of this stuff, we need to get back to merit. And that's also what, you know, Democrats are saying. And there's a lot of. There's a lot of merit to merit, and you do need experts in expert positions. But I, I do think it's important that we have. That everyone has access to these jobs. And, you know, just having a civil service exam isn't enough. And that that's why we had affirmative action programs in government, was to say, we're not just going to rely on the exam, we're going to make sure that these jobs are distributed more widely and more equitably. And that has had an effect, you know, in the 70s, like, 97% or something like that of the federal workforce was white or. Sorry, that's. Of the. The executive. The executive level that's sort of the highest level of the federal government was 97% white. And that starts to come down, and that matters. So, yeah, I think we have some big questions to ask ourselves as a country about how we can build government agencies that are effective and also how we can staff them in a way that's fair and representative of the country.
- [47:32]
B
I know we're pushing against the clock a little bit, but I don't know. Do you have a moment to maybe give us sort of.
- [47:37]
C
Sure, sure. I got all the time in the
- [47:38]
B
world to put some of this, like, in a historical perspective and like, maybe we're all overreacting and maybe system and maybe that this is just a cycle that, that America is in.
- [47:52]
C
Well, I. It would be nice if we were all overreacting. I mean, I, I do think that this country has been through a lot. You know, my particular area of historical expertise, the thing I studied in grad school was Antebellum was just before the Civil War. War. And so often when I look at politics today, I think, oh, well, it's, you know, it's just like it was back then. But then, you know, we also had a civil War. So that's maybe not the most hopeful thought. And the Civil War was the bloodiest war. I mean, more Americans died in that war than any other war we've ever fought. And it was against ourselves. And of course, it was important. You know, the abolition of slavery was an incredible achievement for this country, very important for this country. But obviously, this country has been through moments of deep division, you know, and I think we are at a moment of high polarization again, and I think that's. That's going to be a difficult cycle to break out of. And that doesn't just implicate government. That's about the media we consume. That's about the education we receive in schools. That's about the communities we live in, which are increasingly ideologically sorted. That we're, you know, when we're only hanging out with people that agree with us, then we're. We're not really. We have exaggerated views of the other side. And that is true on both the right and the left, that they have inaccurate and exaggerated views of the opinion on the other side. So that's, That's. That is the most hopeful thing, I think, about this moment is that at the leadership level, I do see a lot of the things that the Trump administration is doing as dangerous. I think it is very dangerous to use the Justice Department to prosecute political enemies and to protect political friends. That is. That is very dangerous. That's not what the average Republican. Republican beliefs or wants. So I think if we can. You know, the hope that I have is that the public does not want. They don't want the vindictiveness and the extremity that's happening in government. And I hope at the end of the day that that brings us back to a more peaceful country, which we all want.
- [50:38]
B
Yeah, 100%. Yeah. Awesome. Well, thank you very much for. For all of this. Thank you so much for making time for us. Alex Lovett.
- [50:46]
C
Well, thank you for having me.
- [50:58]
A
That is it for this episode of the Outrage Overload podcast. You can find Alex's podcast the Context by searching the context on your podcast app or by visiting kettering.org thecontext get links to everything and contact information@outrageoverload.net if you found this episode valuable, please share
- [51:19]
B
it or leave a review. It really helps.
- [51:21]
A
Thanks for listening and I'll catch you next time.
- [51:46]
B
This podcast is part of the Democracy Group.