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- [00:00]
A
Hi, Bill Kristol here. Welcome to Bulwark on Sunday. Very pleased to be joined today by Nathaniel Zelensky. I met what, 10, a little over 10 years ago when he was a law student at Yale. And I was kind of a conservative law student and I was a conservative speaker. And that's I guess how we met.
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B
And I think we met when I was an undergrad.
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A
Is that right?
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B
It was almost 20 years ago. Yeah.
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A
Conservative undergrad, Yale. Right.
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B
Yeah.
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A
And I was a conservative editor of the Weekly Standard. And things have changed in those two decades or even in the last decade. I've forgotten that we'd met earlier than that. Anyway, Faniel spent a, went on to a distinguished career as a appellate and Supreme Court lawyer in big law. Quit his law firm in 2025. But it was one of the firms that took the deal that Trump offered. As you recall, all those law firms were being pressured to cut deals with Trump and his did. And you, Nathaniel, you quit, you started a, a boutique appellate, well, law firm, Washington Litigation group, which is a 501C3A not for profit entity with several other fine lawyers, younger ones, also some older ones, your managing counsel of that firm. And that firm defends individuals and institutions and the rule of law more generally in the era of Trump. And you've done a great job. And one reason I wanted to talk to you about in general about the state of play and introduce you to our audience. But also you were the lead counsel on the Kennedy center case, which, which there was a pretty notable decision Friday. So I thought we should begin with that. Anyway, Nathaniel, thanks for joining me here.
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B
Happy to be here.
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A
Bill, I think you also wrote a couple of pieces for the Bulwark, right? When you were.
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B
Yeah, yeah, Back in back, I think in 2020. 2021.
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A
Yeah, yeah, yeah. Good. Yeah. Okay. So Kennedy, tell us about the, I mean, people probably know the headline of the Kennedy center case that the judge found against the Trump appointed board's decision to rename it and to and close it per Trump's orders and so forth. But yeah, talk about the case and how, what your role was and where we stand.
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B
Yeah. So back In December of 2025, Donald Trump, having stacked the Kennedy center board with sort of hand picked appointees, that board then voted to rename the center after himself. And I mean, this is extraordinarily shocking, Right. This is an institution that is named by Congress, by statute for a fallen president. It's a memorial to John F. Kennedy and it's been that way since 1964. And the board voted to put his name up there. The next day, the name goes up. We represent alongside, I should add, our good friends, I think a mutual friend of ours, Norm Eisen at Democracy Defenders. We represent Congressman Joyce Beatty. The congresswoman is a ex officio member of the board. There are a handful of ex officio members, including members of Congress. And she sued. She sued because she was prevented from speaking at the board meeting and voting in December to voice her opposition. And also because as a trustee, you can sue to protect the institution which you're charged with overseeing. Then In February of 26, the President had this true social post where he said, we conducted a one year review with all the best experts in the world. And we're going to, we've decided the best thing for the Kennedy center is to shut it down for two years to conduct renovations. Now, everyone has known for a long time Kennedy center has needed some renovations. This has been something that they've been planning for years. Well, before this administration, it had always been the plan that these would be conducted in a sort of phased approach that you would do part renovation, you know, part performances, keeping maybe one hall open and, and renovating another. There was, I think, a not unreasonable assessment that this closure was done really to hide embarrassment that artists had canceled, tickets had dropped and donors had left after President Trump's takeover of the center. And at that point, Congressman Beatty amended her complaint to also challenge the unlawful shutdown. Fast forward to Friday. We had argued twice in front of Judge Cooper, who's a really wonderful judge, kept us up there for a long time. There were long arguments. And on Friday, he issued a decision that is, you know, lengthy, it's scholarly, it's 90 plus pages. And it comes to the conclusion that I think is eminently correct, that Congress named the Kennedy center for John F. Kennedy, and only Congress can change the name. So President Trump can't wave a magic wand and rename this institution. It orders the center to, within 14 days, pull the name down and to attest to that fact in court. And then it also enjoins the unlawful shutdown, saying that they didn't do the things you would expect a prudent board to do in this circumstance.
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A
No.
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B
So, a bit lengthy and I apologize.
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A
No, no, no. Very good. No, very clear. And congratulations on the legal victory. You know, just two things that. Two footnotes. I, I know a little bit about, I've heard a little bit about Judge Cooper, who I think is considered a very fine judge and not a particularly partisan one. I mean, so I Think, you know, this is and I haven't looked at the opinion as carefully as you have, but it's a serious opinion and there seems to be clear congressional intent to call it John F. Kennedy center or not the Donald Trump and John F. Kennedy center and so forth. The other thing is just on the renovations, it occurs to me, it occurred to me as you were talking, I hadn't thought about this. I think I don't 100% hope I do this. Well, I certainly hope I do this. Susan and I or my wife and I have had seasons tickets to the Washington Opera for a long time, which has performed at the Kennedy center for since I think the Kennedy center began really. And there was a year or two when they didn't perform there and we went to DAR hall, as I recall, and other places for somewhat it's not really, not really set up for opera. So it's a little, I remember we would always have over comment, oh, it wasn't quite as good because they couldn't get as many musicians in the pit and so forth. But the reason for that was that they were renovating the Opera Hall. So it's not like no one's ever thought that these places could be upgraded. Right. I mean, but as you said, the rest of the Kennedy center was open during that time.
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B
Well, and in fact, we had record evidence from, among other people, the former head of the New York Philharmonic, from people who teach in this, as a professor Andrew Taylor, who's an American Professor Josh Bornstein, who's at Yale, who actually attested that that's what you do if you run a performing arts center. You do everything you can to do renovations that also maintain the center at some level of operational capacity. And you do that because you want to maintain your link with your donors, with your audiences, your staff. You don't want to just shutter the thing down.
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A
Right. And you want to put on the performances.
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B
Right.
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A
So, yeah, no, it's really. So what. So what happens next in this case? And then put it in the context of these other cases that have been decided on Friday on the slush fund. But also some of the ballroom cases, I mean, it does seem like the courts are some at least district judges are stopping more of Trump's power grabs than had been the case before or any case, maybe these cases just happened to come to fruition at this time. But they seem, yeah.
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B
I mean, I will say, look, I think Friday was a good day. Right. As you noted, there were a variety of events that occurred Friday that I think gave supporters for the rule of law, a little bit of hope. And there'll be good days and there'll be bad days. And there have been good days before, you know, this. The past 18 months have been bad days. So I don't want to overread Friday. What I think is important about this particular case, about the Kennedy center, but I think it bleeds over to the slush fund, is these are very visible instances of authoritarianism.
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A
Right.
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B
You know, there are sort of two types, or there are many types of rule of law cases, but, you know, let's just roughly categorize them into two buckets. Right. One are these cases where, you know, at the end of the day, whether it says Donald Day, Trump up there, no one's going to jail. Right. You know, someone's liberty interests aren't at risk. And, but, but it matters. It matters because it's a visible mark of authoritarianism. It's sort of something that's more appropriate for Moscow or Pyongyang than it is for Washington, D.C. and if you treat these things that are in our national trust with such disdain, you're going to treat all the other elements of the office, the presidency that you hold in trust for the American people with a similar disdain. And so I think that very public pushback, to me, it gives me some hope because it pushes back on the most visible element of the corruption here.
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A
Yeah, I guess that covers the ballroom, and I'm destroying the East Wing, and no one gets any notice. And one day later, the bulldozers are there, and then I'm putting up a ballroom. And there they foolishly, I suppose, in a way, went to Congress to ask for money. And that allowed it to be slowed down in Congress. But. But also the courts slowed it down somewhat. The slush fund, obviously, maybe a slightly different category, because there you're settling a fake lawsuit and then just taking money and spending it on a slush fund, which is, again, you're right. It doesn't directly implicate liberty interest quite the way the most grotesque forms of going at the political persecution of a.
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B
Right. You're not authorizing an investigation or a prosecution into your political enemy. And I think part of what is tricky is those cases sometimes can be abstract for people and even the corrupt. Right. If you think about the element. I mean, this is what I think is so, so powerful to people about the slush fund. If you think about sort of the crony capitalism that's going on in the White House and the contracts going out to family members and things like that, it's very hard to grasp onto that. But saying, look, here's $2 billion that he's giving to his supporters. That's sort of something that an ordinary person can easily grasp onto.
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A
And also his supporters in this case being in the first instance, the January 6th insurrectionist. So I do think the slush fund is so big because it's the corruption, corruption, the misuse of government, you know, having a fake lawsuit against your own Justice Department, which then gets settled, you know, which gives you a slush fund to give to precisely the people who once did and might again try to overturn an election result and other random supporters of yours that you happen to pick with a board of five people appointed by your attorney general, which is not public and not. It's a black box, the whole process. I mean, really. So, yeah, I think that it's pretty easy.
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B
Would it be helpful to tell your audience what happened on Friday? Because I think we've been talking about it. Absolutely. Yeah. So, right. There have been two things that happened. Right. One was there was a judge, I don't know if this was on Friday or maybe a little earlier in the week in the Eastern District of Virginia, who put a temporary pause, sort of pressed pause on any funds going out the door. But I think the potentially much more significant development was the judge who the IRS case was in front of in Florida. There was a brief filed on behalf of former judges that asked her to reopen the case and to investigate whether any misconduct had occurred before her. And she seems to be entertaining that she ordered the government to reply to that motion. So, you know, we may see this moving on a parallel track where there are cases on the one hand by folks who are harmed by the slush fund, and then also that judge may have an equity down in Florida and trying to figure out what she lied to. Was the court misled and was the judicial process abused.
- [11:03]
A
The IRS case, just to be clear, was a claim of a $10 billion in damages by Trump for the leaking of IRS documents about his IRS taxes, tax returns in 2018, something by a contractor. No one's ever thought that. I mean, there have been others cases of people's tax returns being leaked. There have been various arrangements made then. And no one's ever thought there was 10, $10 billion of damages to be gotten there. Especially the leak came in his own administration, of course. And incidentally, was he damaged by that much? It seems like he became. Got elected president later. Well, and more importantly is beyond ludicrous as an actual. Yeah.
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B
And they had A variety of threshold defenses that the irs, I mean, apparently the IRS had had a memo, right, where the IRS had said, we have a series of defenses, statute limitations and others that will just totally kick this lawsuit out. And my understanding is that they've used those defenses successfully in other cases. So it was, you know, this was a meritless suit from top to bottom,
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A
which gets settled to give Trump. No, you're right. Then they're leaving aside all this pure corruption stuff, which is less, which is more, not more just, but just, you know, you know, enriching himself and family and allies and friends and all that stuff. I mean, on the rule of law side of it a little more though, now we get to sort of the real. I don't call real. The more the other side, the other bucket of authoritarian cases. In the case Maureen Comey, who was fired from the Justice Department, I believe, but you can explain a little more, mostly for being James Comey's daughter, for what I can tell she was considered, I think, a very well regarded prosecutor there, the that she's been suing for wrongful dismissal. And this week, I think it was the attorney for the Justice Department said the position of the Justice Department, Trump's Justice Department, the US Justice Department, was that Trump could fire anyone for any reason basically anywhere in the federal government. Did I read that right? That's kind of mind boggling.
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B
Yeah, I mean, that has been their position. These are so called Article 2 firing cases. And you got to stop me, Bill, when I monologue on too long.
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A
That's good though. Our people are just so.
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B
So Maureen's case is one of several and we're actually handling many of them. We have an appeal in the Federal Circuit which is sort of the furthest of these cases along in a case called Jackler, where they have fired several hundred people in government under so called Article 2 justifications. And these are people who are protected from arbitrary removal and dismissal and discrimination by things like the Civil Service Reform act, which is the law that applies to protect civil service from things like partisan discrimination. They're protected by Title 7, which is protecting you against race and gender and, you know, national origin discrimination. They're also protected by the Constitution. And in all of these cases, and Maureen's case is a very prominent example of this. But the cases that we're litigating as well, in all these cases, the government has said we can fire anybody for any reason or no reason at all. And we have a case where, you know, we have an immigration judge, it's a new York case in D.C. where they are saying that in response to Title 7 claim, where they've said we can fire her regardless if we did it for a discriminatory reason. I mean, she's alleging discrimination, and they're saying it doesn't matter. Article two gives the president the fire the right to fire whomever he wants. I mean, we can go into it, but. But from my view, this is a baseless theory. I mean, nobody less than Justice Antonin Scalia in his Morrison dissent, which is sort of the shining light for the unitary executive theory. He rejects this theory in footnote four of his dissent. So they've really sort of jumped the shark on this one. And I think, ultimately, you know, we've got very strong arguments, and I expect, I hope we will prevail.