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- [00:00]
A
It's funny, just listening to you, I think, well, that doesn't sound like they're not going to do that. But then. Then there's the part of me that's like, I don't know. Why would I have that confidence? They have done nothing to earn that confidence. For me, this is the problem. Hello, everyone, and welcome to the Illegal News. I'm Sarah Longwell, publisher of the Bulwark, and as always, I'm not a lawyer. So each week I've got a real lawyer who joins me. And today is the great Leah Littman, co host of the Strict Scrutiny PODC podcast, professor of law at the University of Michigan. Go Blue, my producer put that in. And author of the book Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes, which is out on paperback today. Very exciting.
- [00:49]
B
Yeah, I'm very exciting. It's like a sequel. I'm calling it Leah's Version in the spirit of Taylor Swift, since I got to write a new section and a bunch of updates.
- [00:56]
A
So I was just gonna ask that. Is that. Is that what gets to happen? Because this is the. When you write a book about this particular moment in. There's so many parts in the book where I say, at this moment, this thing is happening. It's like I was just in Minneapolis and this was happening, and then I just read it for the audiobook, and I was like, well, that feels like a long time ago now.
- [01:16]
B
Exactly. So my initial manuscript kind of wrapped up in January 2025, before Donald Trump really assumed office, and we saw how his relationship with the Supreme Court might play out. And so I asked my publisher, basically, can I effectively write a new chapter and more about the Court's relationship with Trump and what that says about the court?
- [01:35]
A
And.
- [01:36]
B
And they said yes. So I just spun out a new section on the unitary executive theory, and a lot of what we've seen the Supreme Court do vis a vis the Trump administration, which was fun in a dark kind of way.
- [01:47]
A
Yeah, I mean, I'm glad you did that, and I'm glad you're here today, because we're. It's June, and so I want to talk about the Supreme Court. So I needed a Supreme Court expert, which you are. But first, I do have a couple of illegal news stories that I want to talk to you about that are just in the news. Have you been following the Gavin Newsom stuff? Like, this is breaking news, as we are. Ish. Yet last night, Gavin Newsom says that he is being investigated and his wife Jennifer is also seems to be part of this. And so when he announced this, he's like, he doesn't have any details as to the nature of the probe, but he is. Says he's being investigated. Any details that you know about this investigation or what it means.
- [02:30]
B
So I watched the video he released. I also read the stories detailing this. We don't really know exactly what they might be looking for. I do think this is another example of a politically vindictive investigation and potential prosecution, given that it seems Newsom and Newsom's family were targeted because he's a potential political rival of the president. I also think that Newsom's response to this, which is to say this is happening and to get out in front of it, is the right one. This is what, you know, Federal Reserve Chair Jerome Powell did when he was also the target of a politically motivated investigation and prosecution. I think it is horrific that the administration is targeting Newsom's family, seemingly, you know, who isn't herself, you know, an elected political official or running for office. And it is, of course, ridiculous, just ridonkulous, that this administration might give two shits about how people are spending the money of a nonprofit or an institution. I mean, this is the president who attempted to take $2 billion in taxpayer funds and gift it to himself so he could give it away to his friends. It's absurd.
- [03:42]
A
So my first thought when I saw this from Newsom, it seems 100% plausible that Trump is investigating him and his wife just for shits and giggles, like, just to be a jerk, because this is what they've been doing to all kinds of people. On the other hand, I also think that for some politicians who have bigger aspirations, like, getting investigated by Trump is the new hotness. It's like. It's like, yeah, because they haven't actually gotten a subpoena yet. It doesn't. It's unclear whether it's a real investigation or whether somebody just called and asked questions, which is still bad because, I mean, they do this, right? They just. They call people up and, you know, make them. Make them sweat a little bit or make them feel uneasy. And using the power of the state for that is obviously terrible. But, like, Newsom's just one of those guys that you feel like maybe enjoys it just a smidge, like, oh, yeah, I want to take you out. And, you know, Mark Kelly, I did see a tweet from somebody that said, congratulations to Gavin Newsom's fundraising team. There is this thing, right? If Trump's investigating you and you get to. And I'll admit I have respect though for this because so many people are cowering in the face of just the idea that somebody might ask questions. And so everybody whose posture in the face of it is go pound sand, like, fine, let's do this. Which has been kind of how Newsom has been like, he has decided to adopt to the point of performance art adversarial posture to try Trump. And that's good. But do you think. I guess, I don't know. I don't need you to ask. Answer the political question. But do you think that he's getting out in front of it in part as a, like, this is a good political space to be in.
- [05:25]
B
I think that that could be. And I think that opportunity for him is an important contrast with other lower profile organizations and individuals, you know, who haven't been able to do that same thing. You know, this last week, Ms. now reported that the Ohio voting rights organization subject of FBI raids and potential subpoenas where they were going around to staffers and canvassers asking for their electronic devices. And those individuals don't have the same sort of platform. And so even though some people like Gavin Newsom and his family, or let's say Jerome Powell have the opportunity to push back and potentially use this to their advantage, the weaponization of law enforcement is still a serious concern. And it's also a concern because it is causing us to ask these questions and basically dismiss out of hand the possibility that this investigation might be onto something. Because so much of what the administration does is bullshit. Right. Like for all we know there are probably some people breaking the law, but any time, right, this DOJ issues a subpoena, calls a grand jury, starts a prosecution. Initial thought and not unreasonably so is why are you doing this? It's probably for a bad reason.
- [06:39]
A
Yeah, I mean I felt this way about John Bolton who like according to my off offed co host on this podcast, Andrew Weissman said basically like, no, that was a clean hit right on. On him. Like he did. He did a bad thing. And if you were in DOJ and they asked you to investigate that, you would say, yeah, I'll investigate this. This looks, this looks bad versus and so like we don't know though about Noosa. But you are right that because Newsom's not really my cup of tea, as people who listen to me regularly know. But my first impulse is this is obviously political. Like no part of me is taking it seriously. And you're right, it's the idea of she's using a nonprofit in some way that they want to, like, get in. I'm like, oh, whatever. Crypto scam.
- [07:30]
B
Exactly.
- [07:31]
A
These guys. These guys are manipulating nonprofit law for profit law every single day. I mean, I'm sorry, I was told the White House, you weren't supposed to be political on the lawn. And I'm pretty sure they just held a UFC rally with, like, motocross jumpers. Like, what are we even doing here? There's no part of me that's like, yeah, you should really check into Lady Newsom's financials. Like, it's. It's preposterous, but also not good, I guess, that we start to feel sort of like, yeah, this is just where we are, right? Where, like, we just anticipate the weaponization of government in this way. But now we've seen it.
- [08:06]
B
It.
- [08:07]
A
Yes. So much.
- [08:08]
B
We've seen it repeatedly. And we're seeing the spillover in cases out of Chicago, for example, where after, you know, the bombshell flame out of the Broadview Six case, the indictment of the protesters at the Broadview Immigration Detention Facility, you know, kind of went down in flames. And then we saw the release of the grand jury transcripts, which just shows obvious prosecutorial misconduct. There are now being questions raised in a bunch of other cases out of Chicago involving the same prosecutors and other cases elsewhere. And so every instance of a clear political weaponization or clear prosecutorial misconduct is just further poisoning the well of DOJ as an institution.
- [08:44]
A
Yeah. So, last question on Newsom. I guess it does seem crazy that Trump is able to just direct DOJ to go after all of these people, because even with Bolton, where, like, he did the bad thing, you do wonder whether Bolton would have been in the crosshairs if Donald Trump hadn't wanted to mess with him. And so how is it that Trump can just stand up there and be like, and you're in trouble, and you're in trouble? Like, how does that even possible?
- [09:13]
B
So we can thank the Supreme Court in part for this. And I'm not just saying that because my book is about the Supreme Court. You know, in the Court's immunity decision from 2024, the court flat out said explicitly that the President's powers over the DoJ, over investigations and prosecutions, were so expansive and so exclusive, it didn't matter if he was ordering sham investig or prosecutions for an improper purpose. The President's powers were so exclusive, he could do with them basically whatever he wanted, and no law could touch him. And if that kind of green Lighting for the president is above the law. I think that has invited a lot of the abuses that we're seeing now.
- [09:52]
A
I want to talk about the Supreme Court in a minute, but is there a way to walk back what they've done with the complete immunity now that they're seeing the way that this is working now? I'm not saying this particular court gives a damn, but presumably in the future we may have courts that give a damn.
- [10:11]
B
One can hope so, yes. There's always a way to walk back previous Supreme Court opinions. I mean, this current court is walking back and lighting on fire so many previous Supreme Court opinions. It's a case in point. But yes, a previous Supreme Court could address any case where some statute subjects the president or other executive officers to legal restrictions and say it's fine. It is fine for law, for statutes to tell the president he can't order agencies to carry out investigations for political reasons or for personal retribution. Or it's fine to impose some limits on the president's powers, even when those are powers that strike us as pretty executive in nature.
- [10:52]
A
Okay, well, good. We can have some hope for that in the future. Another big news story in the New York Times. This is like the Jonathan Swan, Maggie Haberman. Did they have tapes? Like, do they have recordings of the Situation Room? We don't know.
- [11:06]
B
I hope there are tapes.
- [11:07]
A
I hope there are tapes. But one of the they're like sort of next drop in their big reporting after talking about the Epstein files and the way that the vice president and the Cabinet took to the Situation Room to figure out how to manage the fallout from the Epstein files. It also turns out that the White House seriously considered suspending habeas corpus last year as part of its immigration efforts, something no president has done since Lincoln and the Civil War. I actually do know about habeas corpus, mainly as a like political science major because I remember my teacher asking like the theoretical question of us, was Lincoln right to suspend habeas corpus during the Civil War? And my answer as a 19 year old with all the benefits of historical hindsight was of course, of course he was correct to do this. As I've grown up, I could see how it's a much stickier thing. Anyway, I don't know if you think Lincoln was right or not, but I'm pretty sure you think Trump would be wrong to do it because what they want to do is use it to, without any trials, just deport as many immigrants as possible. Tell us about this.
- [12:21]
B
Yes, exactly. So it seems like some people in the Administration were banding about the possibility that the President could suspend habeas corpus. Again, in the cases where they were seeking to carry out their mass deportation plan. The number of constitutional problems with this is so many, it would be not possible to cover all of them. But one is that the Constitution allows Congress to suspend the writ of habeas corpus, not the President. Part of the reason the Lincoln, the Lincoln situation was sticky is the President suspended the writ. Now, he did so in part because the country was at war, Congress wasn't in session, and Congress came back to subsequently ratify his suspension of the writ. So it wasn't like a circumstance where he was just evading Congress and doing something he knew that the legislature wouldn't adopt. But second, the Constitution only allows suspension of habeas in limited circumstances, including war. And indeed, habeas has only been suspended in wartime, whether that's after the bombing of Pearl harbor, the Civil War, or whatnot. And the idea that the President can just declare, I want to carry out my mass deportation plan, and therefore I get to suspend habeas corpus because I, I don't like the fact that these judges are giving people due process and determining whether I can actually deport or expel people is just antithetical to the concept of due process, the concept of the rule of law. So it was a pretty horrifying revelation, even if it wasn't an entirely unsurprising one.
- [13:49]
A
Yeah, this did not get as much play as the Epstein stuff, which is sort of a bummer because while the Epstein stuff is super explosive and really demonstrates what a political liability they thought it was and that they're really engaging in it. Active cover up. This is a tell in how far Trump is willing to go to find what they would say are like, legal means or, or the, the predicate of legal means to do some terrible things. You teach a class on habeas? I do. And actually, maybe, maybe it's worth for the audience since not everybody was a political science major at Ken College. Like, talk about what habeas is and why this is such so important.
- [14:36]
B
Habeas corpus is just Latin for have the body. And it's basically a right that guarantees you the ability to challenge your detention by an executive official in a court of law, to ask a court to determine whether your detention is legal, whether the executive made a mistake and you actually can't be detained under the law, or they misidentified you as someone else. And so many cases we've seen in the Trump administration underscore why due Process is necessary. We have seen them detain American citizens prisons for almost a month. We have seen them expel people to a notorious torture prison because of a paperwork error. And those are the things that due process and habeas are designed to safeguard against, to ensure that the executive isn't wrongfully detaining people, isn't wrongfully removing them or expelling them. And that's the thing that the administration tried to get rid of. And it's such a core legal protection. It was included in the Constitution, it dates back to the Magna Carta. It was one of the colonists complaints, you know, against the crown. And it has just been a core feature of our constitutional system and all systems of the rule of law for so long.
- [15:43]
A
Right. And so you can see with Lincoln, you're in the middle of the Civil War, half the country's trying to secede, they are doing attacks or whatever. And so you're, you're, you're arresting people and you're holding them. And that is why they did this, because they were American citizens who were rising up against the country. You could see how that's different. A little like, Right, like just on the margin, but pretty different from what Trump is trying to do here with immigrants. And so according this news, Stephen Miller wanted to suspend habeas. And a lawyer within the White House wrote a memo to Susie Wiles and said, basically, don't be ridiculous. Suspending habeas is nuts. Like, what are you talking about? Did I summarize that correctly?
- [16:28]
B
Oh, completely, Yeah.
- [16:30]
A
I guess it's good that that happened. It means that there are still lawyers in the White House that are saying, no, you can't just do this. Yeah, good.
- [16:40]
B
I mean, yes, ish. This was also a lawyer who had been on and assisting with the immunity case that we were just talking about as having such kind of disastrous consequences and far reaching executive claims. So the fact that it is now a major news story that we have a lawyer in the executive branch telling the President you can't unilaterally suspend habeas corpus is a testament to exactly how wild things have become.
- [17:06]
A
This is Stephen Miller though, right? I mean, this is Stephen Miller trying to figure out any way around the law to hit whatever deportation numbers he's got in his head.
- [17:15]
B
So it is Stephen Miller, but also according to the story, it's JD Vance as well, because he was also pushing the administration to invoke what's called the Insurrection act, which is a law that allows the President to deploy the military for ordinary law enforcement purposes. You know, that's a law that has been invoked, you know, during the Rodney King riots, but that was at the request of a governor. You know, it hasn't been invoked over the objection of state governors or state officers, you know, except when, you know, you had southern state officials engaged in massive resistance to integration. And those were times when you had state officers effectively lining up state officers to block students from attending schools. The idea that you need an insurrection act because there are some middle aged white women in pussy hats blowing whistles when they see ICE agents is absurd. But that is what JD Vance was pushing for.
- [18:09]
A
So when I think back to like Minnesota, because it really was middle aged women with whistles looking at ice, I hung out with them. They were all wearing long underwear, standing in the snow. And it was incredible.
- [18:18]
B
I'm Minnesotan. They did our state proud.
- [18:20]
A
Oh yeah, congrats. It's. It was wonderful, actually. It was. I will, I did write about this in the book. It was like such a striking thing at the time about what it looks like to resist in a like very civically responsible way. Not just. And cause it wasn't just the resistance, wasn't just the way that they were tracking ICE and all this, but also the ways that they built all this infrastructure basically from nothing to help people. Like they had a doula network. I this was just really struck me. They had a food network, they had people there to give people who were coming out of the detention centers like coats and stuff. It was incredible thinking about this going into 2026. It's always been Trump's go to move to be like there's an invasion, right? Like the caravans, the caravans were coming. Every time there's an election, suddenly there' big threat. Do you think that this, the fact that this was, you know, kind of shot down because this thing about J.D. vance is, you're really right, he is, he is not somebody interested in following the law at all either. But do you suspect, do you think that they will use this again? Like do you think this could come back up or do you think this is dead now that they've uncovered this and people have seen it?
- [19:36]
B
So my guess is there will still be some people in the administration who are pressing this legal theory or trying to find other ones that would allow them to deploy federal officers around the election, particularly in swing states, in order to depress voting and voting turnout. But I think the one thing or a thing that I took as reason for optimism from the story is that the possibility of the Insurrection act and suspending habeas got batted down because they understood it would be a public relations disaster. And so the fact that people were up in arms about suspending habeas or invoking the Insurrection act was enough to get the communications director and other people in the room to say, we just don't know if we can pull this off, and it's not going to be worth it, given the political damage this is going to cause us. And so I think it's important to continue talking about this and to get people to understand exactly how consequential and catastrophic it would be to have the President exercise these authorities to raise the costs if and when they attempt to consider them or exercise them in the future.
- [20:40]
A
I would not put it past them.
- [20:41]
B
No.
- [20:41]
A
I mean, I wasn't remotely surprised to see this. And you know what? This is part of what's crazy. Disappointed that this isn't getting as much attention. It. Not that it's getting none, but, you know, it's just not. It wasn't exploding the same way. I think it's because it feels like an arcane legal issue when actually it is, like, essential to what we're dealing with and how far they're willing to go. Okay, to wrap up, but also, let's have an extensive conversation about this because there's a lot going on. I want to ask you about the Supreme Court, because you're an expert in that. You were a Supreme Court court clerk, and there's like, 19 opinions that we're still waiting on. It's June and June. I know what you're thinking. That's Pride Month. But no, no, what it really is is Supreme Court Big Decision Month. I don't know when does the term officially end, but we are just a couple weeks away. Like, there's not a lot of time left, and they got a lot of big decisions to get out. So can you tell us what are we really waiting to see?
- [21:39]
B
So, by tradition, the Supreme Court releases opinions and argued cases before July starts before the end of June, and then the officially won't start until October. But again, by convention, past practice, they try to release all their opinions by the end of June, so they get their summer vacays. So we are waiting on 19 cases, including some really huge ones. It is an unfortunate reality that Pride basically now includes us all sitting around our computers, refreshing our screens frantically to figure out what rights, like, we might lose and which rights we might have, et cetera, because we're waiting on cases like birthright citizenship, we're waiting on cases like whether There are going to be independent agencies waiting on cases involving absentee ballots and just a host of other big cases that the court is going to release without really announcing that in advance. Like, we never know what's coming and when.
- [22:30]
A
And so let's talk about the 19 decisions, the big cases. So there's birthright citizenship, but what else are we waiting on?
- [22:37]
B
So I mentioned the case involving independent agencies. This is a case about whether the Supreme Court is going to say that the president has to have the power to fire people who have every single independent agency in the federal government except the Federal Reserve Board. And that case sounds kind of, I don't know, like technical or abstract. But it's so important, given how much authority these different independent agencies have. I think people who have been following the news might have heard about the Department of Justice approving the settlement between Paramount, Skydance and Time Warner. And that's a case where it looks like the administration is basically doing a solid solid to a company that did the administration a solid when Paramount took over CBS and effectively forced the network into giving more favorable coverage to the Trump administration. And so handing the president that.