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- [00:05]
Al Franken
Hey, everybody. Happy fourth of July weekend. We have a great one today, you know, for a change. And this time, this time I actually mean it because Mark Elias is back. Mark of the democracy docket is our favorite election lawyer and he's always great. Tough subjects. Today Mark and I will be discussing the courts and, and Trump's relentless attacks on law firms, on universities, on immigrants. But I wanted to talk about something that Mark and I didn't discuss, and that is the horrific bill that Congress just passed. In short, it's inhumane. The big beautiful bill is a huge gift to corporations and the most affluent and an enormous blow to low income Americans. The millionaires and billionaires will make out like bandits and drive up our debt another 3 to 4 trillion dollars. These figures are from the Congressional Budget Office. And by the way, the Congressional Budget Office is chosen by the party in power. And since both houses are in the hands of Republicans, know that the scoring comes from these Republican experts and they are acknowledging that this bill will add at least $3.3 trillion to our national debt. To put this in perspective, just the interest on our debt will now be more than our entire defense budget. Look at the cuts, nearly $1 trillion to Medicaid, which will leave 17 million people uninsured. Along with the cuts to the Affordable Care act, billions from SNAP will cut food assistance from tens of millions of folks that need it. And you know, like kids, you know, who benefited from food stamps as a child. J.D. vance. I mean, how cruel can this guy get to deny others the exact thing that helped him? We're talking about food for people who can't otherwise afford it. And by reversing the Inflation Reduction act, which was largely funding for a national clean energy program, we lose more than $400 billion in clean energy. Investment in wind and solar and incentives to buy electric vehicles, which means more gas and oil and pollution and smog and asthma and global warming. This past election was a disaster, and they're making us pay for it. They're making us pay for it with this bill. The midterms are over a year away, but we have to start building now. This is why I continue fundraising for progressive candidates and causes with my pac, Midwest Values Pack. You can learn more about our work@midwestvaluespac.org Anyway, we got a great one today with Mark Elias. And this time, this time, I finally mean it. I'm going to start off by talking about 60 Minutes. You were back in May on 60 Minutes. Discuss the story they're doing on Trump targeting law firms. So you were the only lawyer who he kind of named who agreed to be on 60 Minutes.
- [03:27]
Mark Elias
Correct. They came and approached me and said, we think we want to do a program about Donald Trump's attacking lawyers, and will you talk to us? So I had several conversations with their producer, John, on the phone or on Zoom and sort of explained what I thought was going on and why I thought this was terrible. And they said, would you be willing to be on camera? And I said, Look, I've done 60 minutes before, and my experience is they record, you know, between from the point you show up to the point you leave. It's like three hours. And like, ultimately, they use 90 seconds. And so, you know, Al, you were in show business, so you'll tell me that that's actually not unusual, that, like, there's a lot of waiting around.
- [04:13]
Al Franken
Well, they have a high budget, so.
- [04:16]
Mark Elias
This seems like just a lot of. Like, a lot of. Of of time for. And so I told them, like, you know, why don't you find another lawyer who is still at a large law firm, because they're targeting large law firms and use them instead. And I gave them some recommendations. They ultimately came back and said that they could not find a single lawyer.
- [04:38]
Al Franken
Willing to do it, basically willing to do it.
- [04:40]
Mark Elias
And the concern was that if I didn't do it, they might actually not air the episode because they needed some lawyer to do it. And so I said, fine, I'll do it. And they said, it'll be quicker. It was not that much quicker, though they did use more of the time.
- [04:55]
Al Franken
Sure. I thought it turned out well.
- [04:58]
Mark Elias
It turned out well. Yeah. And I'm happy I did it, and I'm glad that 60 Minutes had the guts to. To stand by.
- [05:05]
Al Franken
Now, again, this is about the firms that Trump went after. And some of them capitulated, and some of them didn't. The first one was Paul Weiss.
- [05:16]
Mark Elias
Yeah. So what happened is. So there the Donald Trump targeted a series of law firms. The first one that he targeted was Perkins Coey, my former law firm. He targeted them because I had been a partner there, which even though I was no longer a partner there, that was his reasons for targeting them. And Perkins Coie fought. The next law firm that he targeted was Paul Weiss. And he targeted them because there was a lawyer named Mark Pomerantz who had been a partner there before going to the Manhattan DJs office. And everyone assumed Paul Weiss would also fight. Right. I mean, after all, Paul Weiss is a storied New York firm. It is the first major law firm in New York City that had Jewish and non Jewish lawyers working together. So it was like the first integrated law firm in New York.
- [06:02]
Al Franken
In a law firm that's considered integrated.
- [06:04]
Mark Elias
Yes. It also then, I think, made the first black partner. I don't want to get that wrong. I think it may have made the first black partner in a large New York City law firm as well. Like, it had a very storied history, and it also was very, well, politically connected. You had a lot of Democrats and liberals prominent in the Democratic Party who had practiced law there or were practicing law there.
- [06:26]
Al Franken
So it doesn't seem like a firm that would fold.
- [06:29]
Mark Elias
And then it folded and it capitulated and it made a deal. And that set a precedent that eight further large law firms followed. Four law firms have fought, all of them have won in court. Nine law firms have capitulated and made.
- [06:45]
Al Franken
Deals and agreed to do a lot of pro bono work.
- [06:49]
Mark Elias
Yes. Donald Trump totaled it up at one point and said it was a billion dollars, which it seems to be just shy of a billion dollars. So, as usual, Donald Trump, like, rounding up, but. But, yeah, agreed to do hundreds and hundreds of millions of dollars of pro bono legal work on.
- [07:03]
Al Franken
On subjects that he wanted.
- [07:06]
Mark Elias
Right. So, you know, this is one of these places where the law firms, you know, have tried to wiggle and squirm and be like, well, of course we're going to apply our normal screens nonsense. Donald Trump expects them to do what he wants, and they have already sold themselves to Donald Trump. They've already made their deal with this guy, and they will get what they deserve.
- [07:24]
Al Franken
So what do you see as the danger of these firms folding?
- [07:27]
Mark Elias
Look, I think that the danger is threefold. The first is just pure rule of law, right? Like, you cannot have an administration held accountable in court if you do not have law firms willing to sue him. You cannot have the Constitution defended if you don't have lawyers willing to take cases. Immigrants, poor people who can't afford lawyers rely on pro bono legal services. And large law firms carry a large part of that. Wait, so that's the first thing. The second thing is that we've just seen a lot of capitulation by large institutions. And law firms are large institutions. So are universities, you know, Columbia, Harvard, you know, have been targeted. So are large media companies. ABC paid a large settlement, as have other media companies. But we have seen capitulation by large organizations, and that capitulation begets capitulation. And then the third is that if you believe that in the long run, the thing that will either Save us or delay the problems of our march towards authoritarianism is the ability of the courts to do their jobs. You need to not have lawyers who.
- [08:39]
Al Franken
Are pulling their punches and the courts are standing up for the law firms or have that didn't cave. And also some for Harvard.
- [08:52]
Mark Elias
They are. Yeah. Look, the truth is the Trump administration is having a terrible go of it in court. They are losing an extraordinarily large number of cases. You know, people have focused and Al, you and I have talked about this, about how many cases Donald Trump lost in the aftermath of the 2020 election. The. His administration is losing cases all over the place. There was an academic who did a study. In the month of May, the Trump administration lost 95% of the lawsuits it was involved in at the district court level. So you are seeing the courts doing a lot now. The Supreme Court made that a little harder last week, so that's not great. But.
- [09:29]
Al Franken
But, yeah, let's talk about Supreme Court decisions. The birthright citizenship decision.
- [09:37]
Mark Elias
Yeah.
- [09:38]
Al Franken
This actually didn't decide the fate of Trump's executive order to change the definition of birthright citizenship. Right under the 14th amendment. All person, basically all persons born in the United States or United States citizens. And that seems pretty straightforward. The Constitution was amended to include it, and it seemed unlikely that. Don't you think it's unlikely the court will reverse that?
- [10:04]
Mark Elias
Yeah. Donald Trump's position is preposterous and it will not prevail.
- [10:08]
Al Franken
But what this decision was came down to was at the district courts, they.
- [10:15]
Mark Elias
Couldn'T issue universal injunctions.
- [10:17]
Al Franken
Yeah. So what? Tell us what that means.
- [10:20]
Mark Elias
Okay, so think of it this way. If you are someone who was born in the United States, but Donald Trump has decided that he is going to concoct a theory that says notwithstanding the fact you were born in the United States, you are not a citizen, which is essentially what he's trying to do. You could go to court and you could say, this is unconstitutional. I'm entitled to be a citizen. And if you win, that injunction against that interpretation of the law would typically be that the Trump administration can't take away anyone's citizenship. Right. The question's been brought, it's been tested, and there is an injunction against the administration, then doing the same thing to your neighbor or to someone in another state. What the Supreme Court said is that is not how this is going to work anymore, that district courts can no longer issue injunctive relief beyond the relief needed for the party standing in front of them. Now, the injunction can be broad enough to encompass full relief for that individual or group. But it doesn't apply on a universal basis. It doesn't apply on a nationwide basis. It just applies to that individual. Now, in some areas of the law, this will have raised relatively little impact. But as in the case of immigration, as you can imagine, the idea that we're going to have millions of individuals bringing individual lawsuits is a recipe for chaos and is also never going to happen. So this is, we're now in this very sort of uncertain place about, like, how this all shakes out.
- [11:57]
Al Franken
So, Kenneth, Circuit court put out a, an injunction that covers the whole circuit.
- [12:06]
Mark Elias
So this is a great question. Like, there are, there are. Obviously, you could ask that question about the circuit Court. You could ask that question about the U.S. supreme Court. The majority opinion, which was joined by the six conservatives. Right. The three more liberal justices dissented. But the six justice opinion written by Justice Comey Barrett is a little vague on that point. Like, it kind of doesn't really say. Justice Kavanaugh wrote separately to say, oh, this doesn't apply to the US Supreme Court, supplies to everybody else, but not us. So he doesn't address the Court of Appeals, but he says, basically, don't worry, it doesn't apply to us if we grant relief. It's universal. It's not clear why, why that would be the case, but that's what he says. But of course, his opinion was only signed by him. And so you don't really know how the five votes of a coalition come together in how this actually plays out under a variety of circumstances, one of which being what happens at the Court of Appeals. What happens if a state is a plaintiff? Right. If the state of Minnesota brings a case and says, look, this affects us in our state because we have to issue birth certificates, we have to issue all these other documents, and therefore we need relief for everyone in our state. I think everyone agrees that it would apply to everyone in Minnesota. What does it mean for someone who was born in Minnesota, though, and moved to Missouri? What does it mean for someone from Missouri who's now living in Minnesota? In other words, could Minnesota get nationwide relief on the grounds that that is necessary to give it full relief? So we don't know the answer to a lot of questions about this. We just know that there has been a significant development that is not good.
- [13:46]
Al Franken
Can a class action work? That's another wrinkle. Right?
- [13:50]
Mark Elias
The majority opinion mentions two things. It says class action lawsuits. It also says that, you know, you may have representative standing. You know, what if the AFL CIO brings standing on behalf of all its members. So you could have a class action lawsuit, you could have representative standing. And presumably that is available because it's in the majority opinion, although the conservatives wrote a separate concurrence saying basically we're going to have to look at that and how to tighten those things to make sure that not too many people are able to use them.
- [14:21]
Al Franken
Okay, let's keep going on in the weeds a little bit. Louisiana redistricting case.
- [14:27]
Mark Elias
Yeah.
- [14:27]
Al Franken
Now that was supposed to come up this term, right?
- [14:31]
Mark Elias
Yeah. So this is a very unusual circumstance. The state of Louisiana redistricted after the 2020 census. They drew one rather than two majority Black districts or black opportunity districts. They got sued, they lost and were. The state of Louisiana was forced to draw a new map with two black opportunity districts, which they did. Elections were held in 2024. Under that new map, there are now two candidates who have been elected, two members of Congress who were elected, who are African American candidates of choice. A bunch of white voters then brought a lawsuit saying this violates our rights because this is a racial gerrymander. And I was frankly quite surprised that the Supreme Court took this case for argument. But they did. They had held oral argument, there was briefing, there was argument. And as we got to the last day of the term, we were all expecting, okay, we're going to get the decision in this Louisiana redistricting case. And as the opinions kept coming down, everyone's like, oh, it must be the Chief justice is going to issue the decision because he issues his opinions last. That's the protocol on the court. And then all of a sudden we get to the end and no Louisiana. And instead we're told that the Louisiana case is held over to next term, it's going to be re briefed and re argued with likely a change in the question presented. In other words, the legal issue that they will argue will be brought up.
- [15:55]
Al Franken
Is that like a. Were you like a Citizens United thing?
- [15:58]
Mark Elias
Correct. I'm glad you mentioned that, Al, because the last time I can recall that this happened was actually in Citizens United where the Supreme Court heard a case about whether pay per view movies were covered by the campaign finance laws. That case got argued and at the end of the term, the Supreme Court said, oh, wait, we don't actually want to decide a case about pay per view movies. We want to decide a case about whether corporate spending is in total legal.
- [16:27]
Al Franken
If it's independent, far afield from the original argument.
- [16:30]
Mark Elias
Correct. And so they ordered the parties to brief that issue, even though that was not the issue. In the court in the case below, and we know how that turned out.
- [16:39]
Al Franken
The Supreme Court has agreed to hear a campaign finance case in the upcoming term. The National Republican Senatorial Committee versus the Federal Election Commission. Do you know this one?
- [16:51]
Mark Elias
I know this case very well, so. And in fact, the Department of Justice has declined to defend the law, which has been on the books since the early 1970s and has withstood constitutional challenge in the Supreme Court before Trump's Justice Department said, we're not going to defend the law.
- [17:09]
Al Franken
So who will take this up? Is it the Federal Election Commission or who will.
- [17:14]
Mark Elias
This case is before the Supreme Court, and my law firm filed a motion to intervene on behalf of the National Democratic Party, the three national party committees. And so the Democratic Parties were granted intervention to defend this law. At issue is whether or not the limits on party coordinated expenditures is constitutional. There is a limit on the total amount of money that the DSCC or the DCCC or the DNC and their three counterparts on the Republican side, how much money they can spend in full coordination with their candidates. The Republican Party has been trying to strike these limits down, literally since the mid-1980s. They have failed before, but they are back trying to again.
- [17:54]
Al Franken
Is this about getting more dark money into elections?
- [17:58]
Mark Elias
It's not dark money. Right. This is money that goes into the National Party Committee. So it is. It is disclosed money.
- [18:03]
Al Franken
Okay.
- [18:03]
Mark Elias
But it is allowing them to spend more. It is allowing the national parties to coordinate more of their spending.
- [18:10]
Al Franken
So you're part of that case.
- [18:12]
Mark Elias
Elias Law Group, My law firm is representing the dnc, the dscc, the DCCC in defending the law.
- [18:18]
Al Franken
Here's one that your folks sent me some stuff. And this one I don't quite get. This is the DOJ and Maryland federal judges. Yeah, this is the DOJ is suing every federal judge in Maryland, correct?
- [18:33]
Mark Elias
Yes. Okay. This is like a. This is like a parody, right? I mean, like these.
- [18:38]
Al Franken
Has this happened before ever?
- [18:40]
Mark Elias
No. I mean. I mean, not that I'm aware of. Like, this is not. It's not usually a thing that if you don't like the way courts are ruling, you get to sue all the judges, which is what they've done. They've basically said that they don't like the fact that the Maryland judges have agreed that whenever a petition for habeas corpus comes in for. From a migrant who is going to be sent out of the country, they are going to put in place an automatic stay that prevents the deportation for 48 hours so that the court has a chance to rule on the petition before the person is scurried out of the country.
- [19:16]
Al Franken
And we've seen this issue arise in very nasty ways.
- [19:20]
Mark Elias
Correct? Now, it is obscene that the Department of Justice has been scurrying people out of the country to prevent judges from ruling. But. But, alas, that is the world in which we now live. I mean, that is in and of itself, a national scandal. That. That. That's what the Trump administration is doing and that DOJ has gone along with it. But because they don't like this is happening in Maryland, they are not appealing that order. They are literally suing the judges. They're literally like, okay, your honor, we're suing you. And so, you know, my position is the judges should dismiss this case out of hand and should sanction the lawyers and the people behind the lawsuit, because if. If. If the judiciary doesn't start standing up for itself a little stronger against this nonsense, you know, it's not gonna. It's not gonna get better.
- [20:08]
Al Franken
One of the things I'm interested in is, is that this happened just after the Supreme Court had ruled that immigrants could be sent with very little notice to a country that they're not from.
- [20:19]
Mark Elias
Correct.
- [20:20]
Al Franken
What was the court's reasoning for that decision?
- [20:22]
Mark Elias
What was the Supreme Court's decision? We don't know. They didn't tell us. They just issued an order. So we actually don't know the reason why they said that was okay. But these. But again, the judges in Maryland are saying, look, we understand that, you know, these migrants may be deportable. They may be able to legally be sent abroad, but we as judges need 48 hours to read the pleadings. Like, we literally need some time to hear the arguments.
- [20:55]
Al Franken
Right?
- [20:55]
Mark Elias
And so all we're asking for is 48 hours. Okay? Not. Not 48 days, 48 hours. And the Trump Justice Department literally, not. Like I said, they didn't appeal that. They literally sued the judges. I mean, it's crazy.
- [21:11]
Al Franken
How long is that case going to take?
- [21:14]
Mark Elias
Well, so, again, Al, this is the thing that I'm worried about. The answer is they should throw the case in the garbage. Like, they should say, dismissed. Like, no, you don't get to do this. Like, Al, here's the thing. A lot of people, some of whom are quite troubled, regularly send letters and other things to federal courthouses and to federal judges claiming all kinds of crazy conspiracies. You know, radio waves are controlling their mind, and they want to sue the Pope. And when judges and courts get them, they don't treat them as serious lawsuits. We need to start understanding that Donald Trump has his lawyers, government and private, file those kinds of lawsuits. Okay, like, and so we, like, I understand the inclination of judges to say, well, the Department of Justice filed a lawsuit. It's a crazy lawsuit. Don't give it the respect that Donald Trump wants you to, and thereby legitimize it.
- [22:21]
Al Franken
In a piece in the Democracy docket, you write, trump knows that the greatest threat to his power is a devastating loss in the midterm elections. He knows the best way to secure Republican victories is through voter suppression and election subversion, diversion. What is the DOJ trying to do to encourage voter suppression?
- [22:45]
Mark Elias
So they are now, like, full partners in the Republican Party's plans. You know, gone are the days. Gone are the days in which the Department of Justice saw its job as protecting voting rights. Gone are even the days that, you know, you lamented back in the day of the Bush Justice Department, where they simply sat on the sidelines like we were. We were all upset that they were not protecting voting rights. Oh, no, no. This administration is actually actively filing lawsuits to help the Republican Party achieve its voter suppression goals. They file, you know, you probably followed. There was a very long, contentious recount and election contest in North Carolina for state Supreme Court justice where the Republican National Committee and the Republican candidate were trying to throw out 65,000 votes from North Carolinians. And they ultimately lost. We got involved. I didn't represent the candidate. I represented outside groups. And we. And we ultimately won the case. So it didn't happen, but the RNC put a lot of effort behind it. Well, guess what happened?
- [23:44]
Al Franken
The Democrat won the race.
- [23:46]
Mark Elias
The Democrat won the race. So guess what happened now? The Department of Justice is now taken that same legal theory and sued North Carolina. Like, literally. They picked up the RNC's losing legal theory and are like, oh, we're going to bring this lawsuit ourselves. And so they are doing the bidding of Republicans. Al, I do have to say that I don't know about you. You're gonna say you didn't pay attention. But every day as that recount was going on, people were like, oh, my God, it's been five months and this is still going on. And I kept looking at the calendar and I'm like, do they get to July? Because if they don't get to July, they don't know what a long recount is.
- [24:22]
Al Franken
Right? That was. We're talking about my recount, which still the longest.
- [24:26]
Mark Elias
So this one, people thought that this was the longest. Not the longest.
- [24:31]
Al Franken
And my recount was long. Just because they kept suing. Yeah, it kept. And Minnesota judges are very patient, correct?
- [24:42]
Mark Elias
That's right. I remember. I think I've told this story before. At one point, we were. I think we were in chambers or that or a sidebar, and the judge, one of the Judges said, Look, Mr. Elias, we'd rather get it done right than get it done fast. And I said, you, Honor, you're in no danger of getting it done fast. Like that is, like. Fast. Fast is no longer on the table, so you might as well get it done right.
- [25:06]
Al Franken
Oh, that was very kind of you.
- [25:08]
Mark Elias
I don't think the judge thought it was kind.
- [25:10]
Al Franken
No. You thought it was sarcastic.
- [25:12]
Mark Elias
Correct. Which maybe it was.
- [25:16]
Al Franken
It feels like we've been seeing an increase in law enforcement being involved in roughing up Democratic office holders. We saw the videos of Senator Padilla getting roughed up and handcuffed. And Brad Lander the same by. I guess it was ICE agents in both cases.
- [25:37]
Mark Elias
Yep.
- [25:38]
Al Franken
In New Jersey, they arrested the mayor of Newark and have indicted representative Lamonica McIver for allegedly assaulting, resisting, impeding, and interfering of federal officers. Even though it's all on tape.
- [25:54]
Mark Elias
I know. That's the amazing part.
- [25:56]
Al Franken
And it doesn't look like any of that at all. Looks like she's being pushed around as much as anyone. What is this all about?
- [26:05]
Mark Elias
So I think it's Donald Trump doing exactly what he said he would do. He said that he was going to seek revenge against his political opponents like that. That's what he did. I mean, his FBI director wrote a children's book in which Donald Trump is the benevolent king. His FBI director wrote a different book which contains in its appendix an enemies list, literally entitled Enemies List. Like PAM Bondi in 2020 came to everyone's attention because she was an election denier after the election was over.
- [26:34]
Al Franken
That is pretty amazing. During her confirmation hearings, the fact that she's an election denier. Didn't. She still got confirmed?
- [26:43]
Mark Elias
Oh, yeah, she still got confirmed. You know, they all got confirmed. Pete Hegseth is the Secretary of Defense. Al.
- [26:51]
Al Franken
I gotcha.
- [26:52]
Mark Elias
I mean, you know, it's. It's sometimes hard to know, like, where do you go? Where do you. Like, where do you go with the craziest. Is it PDX at the defense? Pam Bondi at Justice? Is it Tulsi Gabbard at dni? Is it. Is it Kennedy? You know, in hhs, Kristi Noem. Kristi Kristi for honorable mention.
- [27:14]
Al Franken
I love when she showed up at cecot. Is that the name of the prison in El Salvador.
- [27:18]
Mark Elias
Yes.
- [27:19]
Al Franken
Looking elegant standing in front of that cell with these poor guys. Jesus Christ. Those are guys sent to. With no due process at all, right?
- [27:30]
Mark Elias
None. None. You could imagine a cruel and terrible system in which people are sent to a foreign gulag by mistake, you know, or people who are not. Who are not guilty of anything, get sent by mistake, or get sent, in the case of Kilmar Obrego Garcia, get sent in violation of a court order. Like you can imagine that happening. But there being an administration that says, you know what? We're going to correct the mistakes. When we make a mistake, we're actually going to correct them. Yeah. We're going to keep sending people who are the worst of the worst to these, you know, foreign. Foreign places. But where we make a mistake, we're going to be prompt in correcting what's really so, you know, out of bounds, so beyond the pale is that when they make a mistake, they double down and triple down and quadruple down. And that's why you had the court in Maryland issuing this order saying, we need. We need 48 hours. We need 48 hours just to make sure that before you send people away, we have a chance to look at this.
- [28:41]
Al Franken
And then they sue them all.
- [28:43]
Mark Elias
And they sued the judges. Again, to be clear, they didn't appeal the order. They sued the judges. I mean, can you imagine, can you imagine, Al, if when I was representing you in your recount, if I was like, okay, so we got a ruling we didn't like. We have two choices here, Al. We can either appeal it, or we can just sue the judges. Like, that isn't a thing. You don't get to just be like, you know what? We don't like the judges, so we're suing you.
- [29:13]
Al Franken
We also saw Trump deploy the National Guard and the Marines in Los Angeles. The district judge there, Charles Breyer, ruled against Trump use of the Guard, and then the Ninth Circuit ruled for Trump. What do you suppose was going on there? What was the circuit thinking?
- [29:35]
Mark Elias
So I think that the most dangerous legal doctrine that almost no one has heard of today is something called the presumption of regularity. Okay? This has a long history. It really developed most strongly and continues this day from the Roosevelt administration. Roosevelt was dealing with a national emergency. He had an economic depression that he had to deal with. He had growing war threats abroad. And so the courts adopted this presumption that when the President and the administration tell a court a fact, it is presumed to be true. When the administration or the Department of Justice say that There is a, that they did something for a good reason. The judges say, okay, we're going to assume that they, that they did it for a good reason. In other words, it's a, it's called the presumption of regularity. But you could think of it as a presumption of good faith that when a president like Roosevelt in the middle of the Great Depression says, I need to do this thing because it is what is in the best interests of the American people, courts should start with the presumption that he's on the up and up. It doesn't mean they don't do inquiry, but they start with the idea that if he says there's a really good reason to do something, there probably is.
- [30:54]
Al Franken
So you're saying the, the court gave him that presumption.
- [30:58]
Mark Elias
Correct. But it's not just in that case. In all of these cases, the courts are acting like somehow Donald Trump is a normal president. They are acting like he is somehow saying, I need the National Guard because there is some grave emergency and if I don't get the National Guard, there is a risk of a rebellion or an insurrection or something terrible. And so the courts are like, okay, well, the President of the United States is saying this, so we're going to assume, we're going to give them every benefit of the doubt. And I just think, honestly, that is misreading where we are in this country. And frankly, it is turning the US Constitution into a suicide pact for democracy.
- [31:37]
Al Franken
I want to ask you about autocracy and where we are in getting there. What actions by Trump and his administration have made you fear that we are headed to an autocracy or are we already there?
- [31:56]
Mark Elias
Yeah. So look, I think that you can put his actions into three categories that I think are the most dangerous. The first is in early January before he took office. He said, we're going to deploy extraordinary measures to make sure that the worst of the worst are not on the streets, they are deported. His immigration plan was, we're going after the murderers, the rapists. The worst of the worst. Right. As we record this, he is now saying, maybe we need to send US Citizens abroad. He said that? He said that earlier.
- [32:32]
Al Franken
He said that.
- [32:33]
Mark Elias
Yeah, right.
- [32:34]
Al Franken
We're citizens.
- [32:35]
Mark Elias
Yeah. We have gone from the worst of the worst to not the worst of the worst, but people who are here without status. You know, people who are here are migrants to refusing to bring back people who were erroneously sent abroad to U.S. citizens. There was a four year old cancer patient who was deported. We have other instances of US Citizens.
- [32:57]
Al Franken
She was deported with or he with the mother, Right, Correct.
- [33:02]
Mark Elias
Yeah, but he's a U.S. citizen. He's entitled to not be deported.
- [33:06]
Al Franken
Did they ask the mother or did they ask the 4 year old? I mean, the 4 year old isn't in a real position to make that decision. And the mom maybe wanted to.
- [33:14]
Mark Elias
I think there is a question, I think there is a real question as to whether or not the mother consented. And I think that it is part of the problem that we have from this administration that we cannot believe what it says. And so I think there's some dispute among the family as to what happened there. But let me go to the next one. We now have masked heavily militarized individuals grabbing people off the street. And so these people are being disappeared. We don't even know if they're being disappeared by members of the federal government or just by people who are cosplaying like, you know, in this role. And so I am very, very worried that what started with something that I didn't agree with, but which millions of Americans thought was sensible immigration policy is spiraling into something else. We have Marines on the streets of a large city. Right. We have National Guard being federalized over the objection of the governor. And we're only five months into this administration. So I think that's the first thing. The second is, I do think that their attack on judges and their attacks on the courts and the contemptuous behavior they're showing, I think that that is a real risk as well. And then finally, the attacks on the large institutions. The media has not bathed itself in glory. The law firms have not bathed themselves in glory. You know, the universities, the jury is still out. Corporate America has not bathed itself in glory. I mean, you know, watching the billionaires fly and, you know, throw money at Donald Trump around his inauguration didn't exactly inspire confidence that the business community is going to stand up. So I worry that aspects of civil society are also not up to the tasks.
- [34:52]
Al Franken
How about just the corruption that you see?
- [34:56]
Mark Elias
The corruption is off the charts.
- [34:58]
Al Franken
I mean, his meme coin, where people could cozy up to him by buying millions of dollars in his coin and go to dinner and ask for favors later. Right?
- [35:12]
Mark Elias
I mean, what people who don't know about crypto and meme coins need to understand is a meme coin by definition is valueless. Like it is a joke. Right? They began as joke coins. It was like, oh, right. But they don't have any value. So people who are buying as meme coin are either being lied to and suckered and misled and defrauded. Right. That's like category one. Or they're billionaires who just want to put money in his pocket, get something in return, but not in the coin. And so, look, he's hawking perfume, he's talking phones. Right? I mean, doing these while President of the United States from the White House.
- [35:55]
Al Franken
And he does these things, like if you want to have dinner with him at Mar a Lago, you can pay a million dollars and have dinner with him in a group. Or 5 million if you want to have dinner with him alone at Mar A Lago. And a mother who paid a million dollars for one of those dinners got her son off for tax evasion.
- [36:20]
Mark Elias
Yeah. I mean, look, we could have a whole episode just about the abuse of the pardon power. The way he uses the pardon power does not resemble like anything has ever been used before. He has used it to cherry pick individuals who have some political connection or, you know, some personal connection that makes no sense. And of course, he did a mass pardon of those convicted of crimes in connection with January 6th. All of them. You know, remember, this is another thing we were told, you know, don't worry, don't worry. You know, you Democrats, you're over, you're, you're oversensitive, you're overreacting to this. He's not going to pardon the violent people. He's just going to pardon the people who got caught up, you know, walking into the Capitol. He pardoned all of them. Yeah.
- [37:03]
Al Franken
Including the most violent. And we had a number of those, Those Capitol cops die in the wake of that.
- [37:10]
Mark Elias
Yeah. In the news this week, the have I Got News for you podcast is back for another series brought to you by some of the team behind the show. We'll take you through the big stories of the week when the TV show can't. From Kemi Badnock to Keir Starmer, Donald Trump to Nigel, we'll make sure to give every story and subject the complete lack of respect it deserves. We also cover all the silliest stories you've missed that don't make the front page and put your news knowledge to the test with our missing words round. Listen and subscribe to in the News this week, the have I Got News for you podcasts, wherever you get your podcasts.
- [37:44]
Al Franken
Well, the midterms will decide whether Democrats have a check on Trump.
- [37:50]
Mark Elias
I think that's right, because ultimately, you know, J.B. raskin, the congressman from Maryland, and I always give him credit for this. He, he, he said to me, he said, you know, Mark first of all, we don't have three co. Equal branches of government. Co. Equal is not a word, okay? The word is equal. Number two, the founders didn't intend them to all be equal. They intended the legislative branch to be the most powerful. They intended Congress to be the check. There's a reason why Congress can impeach and convict. There's a reason why Congress can do that for judges. There's a reason why Congress is the only body empowered to declare war. It's the reason why appropriations and taxes have to originate in Congress. You know, the President. The President can't just do these things by themselves. But the problem is John Thune and Mike Johnson have completely ceded their constitutional prerogatives to the White House. So there's no functioning Congress in Republican control. It's just another arm of the White House.
- [38:51]
Al Franken
Is that that when the Supreme Court said there'll be no nationwide injunctions?
- [38:56]
Mark Elias
Yes.
- [38:57]
Al Franken
Well, when they said that, that was kind of a way of basically taking power away from all the district courts. Right. And giving just to the Supreme Court?
- [39:07]
Mark Elias
Well, sure. I mean, yeah. I mean, I'd say it's giving power first and foremost to the President. But yes, relative to. Relative within the court system, it is giving power to the Supreme Court and.
- [39:19]
Al Franken
It'S giving power to the President because if these are his executive orders and Congress doesn't stand up to him, then these executive orders can be confirmed by the Supreme Court.
- [39:36]
Mark Elias
But also, and I always point this out whenever I get into discussion of the Supreme Court with anyone on the left, on the right and center, whatever. The Supreme Court hears on average 70 cases a year. 70. The district courts are dealing with hundreds of thousands of cases. And so by neutering the ability of the district courts to do these things, it is not just the consolidation of power to the Supreme Court, it is actually giving power to the President because a lot of these cases will never get to the Supreme Court.
- [40:11]
Al Franken
Of course, that's a really good point. And that's. That's where they did a number on.
- [40:21]
Mark Elias
On our system. Now, I do have to tell you, Al, I did have one moment of levity and all of this terribleness. So I'm not a policy expert, as you know, but as far as I can tell, Ted Cruz wanted to ban states from regulating AI, and so he put together a bill or ban states from regulating artificial intelligence. So he put in place an amendment for this reconciliation bill that would do that. As far as I can tell, it's like there aren't a lot of things the Republicans Said no to other Republican senators about. But even they rejected this, like, thereby proving that once again, Ted Cruz. Like, I'm not even sure I understand what the political judgment that Ted Cruz was trying to do here. Like, why would that ever be popular? It wound up going down, I think, 99 to 1 in the final vote in the Senate.
- [41:12]
Al Franken
Wow. Good for him. A brave man stands head above everyone else in the crowd. Ted Cruz. It's all going to be the midterm now, and I don't think this bill that just got passed. And the House will vote for it, right?
- [41:31]
Mark Elias
Of course. Of course the House will vote for it. I thought the most revealing thing in all of it was Thom Tillis, who, after he announced he was not running for reelection, put out a press release that basically said, now I'm going to be able to vote my conscience. That's like, wait a second. Wait, wait, wait, wait, wait, wait. Were you supposed to be doing that, like, all along? Like, like, you know what I mean?
- [41:55]
Al Franken
What was going on? Yeah. That's amazing. Why would he do that? Oh, well, yeah. Yeah. Well, that's. That's a problem, isn't it?
- [42:06]
Mark Elias
It is. It is among the litany of problems we. We have in our country right now.
- [42:12]
Al Franken
And democracy docket is doing swimmingly.
- [42:15]
Mark Elias
Yeah, democracy docket's doing great. You know, I started it in. In 2020 because I thought that there needed to be a pro democracy source of information about what's happening in the courts and in Congress, everywhere around voting and elections and democracy issues generally. We are now up to 425,000 daily subscribers. Get our newsletters. Wow. We have a YouTube channel with 450,000 subscribers on YouTube. You know, it turns out. It turns out every time I'm a.
- [42:49]
Al Franken
Member, I'm a member.
- [42:50]
Mark Elias
Well, thank you. Every time the Washington Post does something preposterously terrible, democracy docket gains more subscribers.
- [42:58]
Al Franken
And it's just a reaction to.
- [43:00]
Mark Elias
I think that the legacy media can be faulted for a lot of things. The thing that I least understand is how little it knows about its own consumers. Like, at this point, I don't even understand who CNN thinks it is appealing to. Like, I don't understand why the Washington Post, other than Jeff Bezos, may not care about the money. Like, who do they think is reading their newspaper? Like, who. When they decided, like, you know, we're going to do. We're going to cancel our endorsement of Kamala Harris, who did they think that that decision was going to appeal to? Because it's not people who are paying to subscribe to the Washington Post.
- [43:35]
Al Franken
Well, Bezos was planning on donating a million dollars to the inaugural.
- [43:42]
Mark Elias
Yeah. And he didn't care. And I think that you're seeing a new era of media ownership where they don't really care about the publications, you know, their money. They make their money elsewhere, you know what I mean? Like Jeff Bezos makes his money doing things other than selling Washington Post subscriptions. And I think that's true for Disney with abc. It's true. Sherry Redstone and cbs. I think that you're seeing more and more the old families that revered these assets for the work they did. But also they saw the need for them to have integrity for business purposes. I just think has really changed and it's meant that there's a new emergent ecosystem of media companies, you know, that are, you know, benefiting in that space. And you saw a lot of that in the past in the right wing media ecosystem where there are like, you know, Steve Bannon and all of those. And I mean, look, you and I have been literally having this conversation for 20 years.
- [44:40]
Al Franken
I think something like that, you know.
- [44:42]
Mark Elias
When, when before, even before Air America, there was a concern that the Republicans had built an alternative media ecosystem.
- [44:49]
Al Franken
And it was Rush and Hannity and Hannity and. Well, Gingrich was in office, but he was part of that.
- [45:00]
Mark Elias
Yeah, I remember I had summer jobs in the 90s, the 80s actually, that I think about it. I had summer jobs, I was a lawyer in the 90s. I had summer jobs in the 80s that involved driving other people's cars. It was like at a car rental agency and then at an auto auto dealer, you know, like basically ferrying cars. And everyone was listening to the one station that had Rush Limbaugh followed by Sean Hannity. And there was another guy, Bob Grant, I think his name was, in New York, part of that. And Democrats thought, you know, we have this enormous problem. And there were efforts to try to correct that. And I think that now you're seeing there is a real effort again to try to build a more sustainable left of center media ecosystem. Your podcast is, you know, enormously influential and successful and that's, I think, you know, a part of it. You were, by the way, I think the only commercially successful part of it in the last go round. Hopefully you have more company this time. But the legacy meet is not doing itself any favors right now. Yep.
- [46:09]
Al Franken
Okay, well, here's to the midterms. That's our hope, I guess. Right. And I think this bill is going to be a motivation for a lot of Americans to switch sides, I'm hoping.
- [46:22]
Mark Elias
From your mouth to God's ears. I hope so.
- [46:26]
Al Franken
All right, you heard it. My mouth to God's ears. Thanks, Mark. Well, I. I hope you enjoyed listening. That beautiful music is by Leo Kotke. The great Leo Kotke. I want to thank Peter Ogburn for producing this podcast. We'll talk again next.
- [46:48]
Mark Elias
Sa.