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Will the Supreme Court Yield to Donald Trump?
00:27:55
The contributor Ruth Marcus looks at resistance to executive orders by federal judges—and whether the Supreme Court will ultimately allow Trump to remake the government in his image.
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Ruth Marcus
Listener support WNYC Studios.
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David Remnick
This is the New Yorker Radio Hour, a co production of WNYC Studios and the New Yorker.
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Ruth Marcus
This is the New Yorker Radio Hour. I'm David Remnick.
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David Remnick
The persistent question that runs through everything Donald Trump is doing, deporting legal residents, shipping people off to a Salvadoran prison in the middle of the night, demolishing government agencies, and on and on. The question is, can he really do that? Federal courts across the country are weighing that question in a huge number of lawsuits. Will judges ratify Trump's view of his own power as effectively limitless? And if they do not, will Donald Trump bother to listen? Now, his defenders in the Republican Party will argue that Trump is just pushing at the limits of his power, as many presidents do, but ultimately, he'll obey court orders. So far, the Trump administration doesn't show a lot of evidence of respecting the authority of courts. Ruth Marcus is the author of Supreme Ambition, a book about Justice Brett Kavanaugh. Marcus was a columnist for the Washington Post until last month. She resigned after an executive killed a piece that she wrote that was critical of the paper's owner, Jeff Bezos. In fact, Ruth Marcus ended up publishing that column in our pages in the New Yorker, and she's continued covering Trump in the courts for us. I spoke with Ruth Marcus last week. Now, Ruth, we just recently published a piece by you.
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Ruth Marcus
And.
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David Remnick
And it said that Trump's legal strategy had been backfiring. That was just a while ago. Are you still right?
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Ruth Marcus
Well, tbd, Trump's legal strategy has been backfiring, I think demonstrably in the lower courts.
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So on what kind of cases?
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Everything from challenging DEI orders to challenging the orders against law firms, to challenging the. The administration's attempt to undo birthright citizenship, to challenging putting USAID and every other federal agency that distributes grants into the wood chipper. But I'm talking about orders from Reagan appointed judges, from Bush appointed judges, both Bush's, from, yes, Democratic appointed judges. But we do have to say, acknowledge that we have this thing called the Supreme Court, which is, in fact, supreme. And we had gotten until this last few days, very few tea leaves from the Supreme Court on how it is going to think about this blizzard of Trump litigation. So there have been several orders from the Supreme Court in the last few days that were surprising to me. I thought the Supreme Court was going to send a message to the Trump administration, back off, guys. If you come running to us and call everything an emergency, nothing is gonna be an emergency. So let these things go through the normal course and we'll get to it down the road. That's not what's happened. I don't think anybody expected that the legal strategy was going to be this intense, this fast, this broad based. In addition, the kind of fundamental rudeness. You know, the worst sin you can commit in federal court is to be rude to the judge. This administration, they used language about judges. You know, they accused Judge Boasberg in the district court of micromanaging.
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You're referring to James Boasberg, who ordered these deportation flights, turned around.
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Yes. And who President Trump called for his impeachment. Not gonna happen. But a rather extraordinary thing to do. How do we know it's extraordinary? Because the chief just of the United States felt moved to weigh in and say, excuse me, this is not a good idea to be calling for impeachment of judges. And the administration, time after time, has come into court with really preposterous legal theories offered up by lawyers who do not know the facts of the cases before them. When did these flights take off? Can't say how many people were on these flights. Can't really tell you that. Judges do not take well to that. And it tends when you get the judge in a bad mood, he or she may tend to rule against you.
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David Remnick
So we've all seen the spectacle of these government flights full of people accused of being members of gangs. What's the legal recourse for innocent people who get caught up in all of this? The Supreme Court just weighed in on it this week.
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Ruth Marcus
The court said, Judge Boasberg, you issued this order saying, stop these flights. The problematic thing that the court said was, okay, you Venezuelans who have sued in Judge Boasberg's court, you're in the wrong court. You need to be in court where you're being held, which is in Texas. You need to be using a different theory of law, which is bringing a case under what's called habeas corpus. As a practical matter, you need. Things would be much better off for these Venezuelan plaintiffs if they remained in Judge Boasberg's court.
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One of the cases we've heard a lot about this week involves a Salvadoran man who was sent to the supermax prison there. The government conceded in court that it was wrong to deport him to Salvador in the first place, but refused to bring him back. So where does that case stand? As of now?
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I think this is the legal doctrine of oopsie. You may remember that the president of El Salvador famously tweeted after the Venezuelans arrived, he tweeted, oopsie, and that's a little bit what the administration is saying in the case of this Salvadoran man, which is, oopsie, we made a mistake, but he's in El Salvador, so can't really fix that. First of all, of course they can fix that. But I think the thing that is important about this case is not just that it seems like this absolutely scary moment that is happening to this poor guy who was living a perfectly normal suburban life in Maryland. If we take this theory of the case to be true, that there's no recourse to be had once he's in El Salvador, that could happen to any of us. They could pick you or me up on the street. Even though we're American citizens and do much the same to us.
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We keep talking about whether or not we're in a constitutional crisis. And we imagine, or some imagine, that this will come to a head somehow, that a case will come to the Supreme Court and either the Supreme Court will rule against Donald Trump or it won't. And if it does rule against Donald Trump, will the precedent obey the court? So are we headed toward that, or is that too simple to imagine as our near future?
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There is going to be a set of cases that come to the court, and the Trump administration, from my point of view, is pretty much guaranteed to win some of them. I'm thinking about cases that challenge the ability of the President to fire the commissioners of independent agencies. That's going to be just a clear win for, for President Trump. But there's gonna be other cases in which I think it's very clear the administration is going to outright lose. The clearest one to me involves its effort to unilaterally, through executive order of all things, rewrite the constitutional guarantee of birthright citizenship. Trump knows he can't get this through. Congress has issued an executive order. Every court at every level that has looked at it has said this is blatantly unconstitutional. There was a Reagan appointed judge who basically said to the Justice Department lawyer who appeared before him, I can't believe you have the nerve to come to me and make this argument, though he didn't say nerve. And then there's a bunch of cases that range the gamut of the things that we've talked about that are much more jump balls. And I think the picture of where the Supreme Court is gonna come down on this is only going to emerge as we fill in the dots and then start to connect them of what the court is and isn't going to tolerate. And then on the bottom line, question of Whether we are going to see the President of the United States outright defying a clear order from the Supreme Court of the United States. It's clear that the administration, as much as it wants to thump its chest and look like it's being tough towards judges, would prefer to avoid that particular showdown, because I don't think the public is going to take well to that particular showdown. And if the public doesn't take well to it, then Congress might not take well to it. But push may come to shove on that. And we've certainly seen arguments from the likes of The President and J.D. vance and others suggesting that if they really have to, they will defy.
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Where would they defy?
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I think that their best kind of case to do that on would be a case that touches on national security or a case that touches on immigration and the President's ability to defend our borders against foreign invaders. And I do have those foreign invaders in air quotes because that's the area in which two things are in the administration's favor. One is legal because the courts have said the President is at the apex of his powers when he is involved in deciding issues of national security, and they're very reluctant to go up against him on that. But the second thing is it's the area in which he probably has the most amount, the greatest amount of public support.
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We've seen in a number of cases where ICE has made arrests of legal residents, students here on real visas. What is the legal justification for that? Or is it just pure politics? And again, the administration doesn't care.
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There is some authority that I'm not an expert on for the Secretary of State to kind of declare you to be someone we don't want in this country. But as a general matter, it has always been understood that people who are here legally, even if they are not citizens of the United States States, enjoy protections under the First Amendment.
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Will these students be able to stay in the country? Will the government's case against them be dismissed?
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It depends on which authority the government is using. It's going to be a lot harder with the cases that involve the Secretary of State's kind of unilateral authority. But as a general matter, to say that individuals who engaged in pro Palestinian demonstrations saying things that you and I as American citizens would be allowed to say, are somehow no longer entitled to stay in this country. I think we've seen the lower courts say, whoa, do not send him back. Do not send her back. We have to take a much closer look at this. And so I think they have a reasonable chance of being permitted to stay.
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Pam Bondi was on Fox News Sunday this weekend and she was bemoaning the 170 or so lawsuits that had been filed against the administration. And she said this.
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David Remnick
We've had over 170 lawsuits filed against us. That should be the constitutional crisis right there.
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Ruth Marcus
That should be the constitutional crisis right there. What did you make of that comment?
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I thought that comment really encapsulated everything that is wrong about the Pam Bondi, Trump lawyer view of the world. If someone is aggrieved and has standing to sue and an argument, they go to court and they get a hearing. That is not an indication of a constitutional crisis in our system. It's an indication of our Constitution working. You know, if you don't like a court order, there's a solution to it. You appeal it, you don't ignore it, you don't tell the judge he's out of line or he should remove himself from your case or anything else. She's not arguing to the American people. I think she is, like so many people in the Trump administration, arguing to an audience of one.
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I'm talking today with Ruth Marcus. She's covering the Trump administration's legal cases for the New Yorker of late and will continue in a moment.
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David Remnick
This is the New Yorker Radio Hour and we've been speaking about the Trump administration and its various fights in the court. As in Trump's first term, he came out blazing, firing off executive orders and taking some actions that seem to be firmly against the law. He's called for the impeachment of judges who ruled rule against him, which is shocking, yet somehow entirely predictable. If you read Project 2025, people in Trump's cabinet, like Attorney General Pam Bondi, will say that quote unquote, unelected judges shouldn't be able to constrain the president, even though that's exactly, exactly how the Constitution intended things to be. So I'll continue my conversation with columnist Ruth Marcus, who's been covering Trump and the courts for the New Yorker.
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Ruth Marcus
So many of these cases are eventually going to end up in the Supreme Court. How are you gaming out or any clues about where the court is going to come down eventually in terms of helping Trump or getting in his way?
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Well, we've seen a few cases so far where the chief justice has not aligned himself with the other conservatives. We've seen a few cases where either the chief justice or the chief justice joined by Justice Barrett or Justice Barrett by herself. Justice Barrett being one of the three Trump appointees There. But she's turned out to have a quite interesting independence streak. But when you have a six justice conservative majority, that means that you have a Justice to spare. We're gonna see the degree to which the conservative justices are offended, appalled, concerned. Find your verb by the extremeness of the administration's position. And as we get past some of the hurdles to getting to the merits, we'll see whether they agree with the administration on things like birthright citizenship or the congressional power of the purse or things like that, where the administration is on the weakest legal footing.
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Should we assume that Justices Thomas, Alito and Gorsuch are completely reliable for Donald Trump?
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I think Justices Thomas and Alito are completely reliable. Justice Gorsuch. It depends on the particular case before him. For example, he has been much more supportive of trans rights. And those are the most reliable three. And then you have, I would think, in order, Justice Kavanaugh, the Chief justice, and Justice Barrett. And then there's this very interesting kind of four female justice group that is creating itself, not in all cases, but in some cases where you have the three liberal justices who are all women, joining with Justice Barrett and then looking for a fifth.
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It used to be that a Chief justice of the Supreme Court would have influence beyond his own vote, that there was also the power of persuasion that the Chief justice might have. Is that all gone? Are those days long gone?
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I think they are.
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What happened?
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Well, one thing that happened is maybe Chief Justice Roberts says, no Chief Justice Earl Warren, but the Court has made change.
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You mean the court composition is different or Chief Justice Roberts is weak?
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Well, weaker. But, you know, Chief Justice Earl Warren was famously able to help the Brown Court to become a unanimous court and issue a unanimous ruling in Brown v. Board of Brown vs Board of Education, the school desegregation case. Chief Justice Roberts may not have that kind of persuasive power with his colleagues, but. But he also has different colleagues. And especially when his majority went from five to six, that didn't enhance his power. It weakened his power. Cause it meant that he was a little bit disposable for the other Justices. And by the way, some of them are really angry at him for, you know, alleged perfidy on his part to do things like vote to uphold the Affordable Care act case. So they're not inclined necessarily to go along with him if. If he says, which they wouldn't say this directly. This one's really important to me.
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The mythology, or maybe it was the fact at one point, is that the justices would argue things out in private. Is that fiction at this point?
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No, I think that happens. And I think if we look at the evolution may be too strong a word for it, because Justice Barrett has not been on the court for that long. But her profile has changed over the years from a Justice who was reliably. Reliably in the conservative camp to a Justice who is conservative, but a less reliable conservative vote than the justices on the end of the spectrum. Well, I think some people would say that Justice Elena Kagan did a really good job of convincing her and finding alliances with her. And a lot of times when you're writing a story with somebody, if you disagree about a word, maybe you could find a third word. Maybe you could go along with their word on some other thing. And so strategic justices make alliances and sometimes pull their punches on things that they would say in order to get another justice to come along with them. And I think behind the scenes, that is something that it appears is happening with Justice Barrett.
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How do you know? How do you do it with the Supreme Court, which at least presents to the world as Vatican, like in its level of secrecy?
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I think it might be easier to cover the Vatican than to cover the Supreme Court. It's like Plato's cave. And you're just reading, you know, maybe you'll find somebody who has talked to somebody who has talked to somebody, so you'll hear something. There's not a ton of people who either know what they're talking about, nine really know what they're talking about, or who are willing to talk to you about it.
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Let's talk about another major subject attached to the law in the Trump administration, and that's the campaign against big private law firms, which I think is without precedent, isn't it?
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But there's nothing even close to precedent.
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Explain the executive order that targeted the law firm Paul Weiss.
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Several law firms have been subject to different versions of this same order. But it basically says, because I don't like, the things that you've been doing here are things that you can no longer do. You can no longer go into government buildings. You can no longer meet with government officials. That is lawyer's bread and butter. Hi, can I get a meeting to talk about these tariffs? Hi, can I get a meeting to talk about this pending indictment? Hi, can I get a meeting to explain why you should approve my client's umpty, ump, billion dollar merger? Your clients are at risk of losing their government contracts. You can no longer have security clearances in cases where you need those in order to be able to represent your clients. Oh, by the way, we won't hire lawyers for government jobs after that. And it's, you know, many lawyers go to private firms and then want to go become prosecutors or something after that. So it's basically saying, nice little law firm business you have there. $2.6 billion a year. In the case of Paul Weiss, it'd be really a shame if all your clients left you and it crumbled before your eyes.
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And I don't mean to be naive, but why couldn't Paul Weiss, with 2.6 billion a year in income, stand up, show some spine? And why did they fold?
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The fear was that clients would start running to the doors. And when you said, okay, fine, you'll lose some clients, but really, seriously, can't you take a hit? You started to hear words like desperate, viral. And it is true that immediately after these orders are issued against law firms, other law firms were doing two things. They were suggesting to the law firm's clients that, gee, it might be better off to have a firm that isn't on the government blacklist. And they were suggesting to some of the really highest paid and most highest billing partners at these law firms that, gee, it might be better for you if you weren't tied to this firm that's on the government blacklist. So why don't you take your book of business and come to us?
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So Paul Weiss and Scadden Arbs, for example, came to agreements with the government. Put it in very politely.
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I call them plea bargains.
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Yeah. But other firms decided not to. Decided to fight these orders. What was their rationale?
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Their rationale was that how can you live with yourself if, if you agree to settle something, settle a matter in which you have done absolutely nothing wrong? Take, for example, one of the charges in the indictment. It's not obviously a technical indictment of Wilmer, Cutler and Pickering, which is one of the firms that got the executive order, was that it had the temerity not just to hire Bob Mueller in the first place, but to take him back after he served as special counsel investigating Russia and. And the first Trump administration in election interference.
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Yeah.
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And I think the law firms were unwilling to acknowledge blameworthiness when they weren't blameworthy. They were unwilling to pay the extortion price that Trump had set. And I think for some firms, they couldn't figure out the way into the administration to try to negotiate the same deal. Deal that firms like Paul Weiss and Skadden had.
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Ruth both is somebody who knows a hell of a lot about the law, but Also a lot about politics and Donald Trump. When you hear him talking about running for a third term, how much should we actually stress out about something like that? Is this a business of trolling, part of his kind of political rhetorical game? Or is it something that should be taken very seriously?
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I'm kind of 75, 25 on this. Somebody asked me several weeks ago to go on a podcast to talk about a Trump third term and I blew them off. I was like, that's ridiculous. It's not even a close question. And I think that was probably wrong on my part because since then the President has famously told us that he's not kidding. And the one thing that I have learned is that when he says he wants to do something, you should not just dismiss it as idiot trolling by somebody who has never read the Constitution and doesn't respect it at all. He is going to try to push this in some way. And so I am way less dismissive of his craziness than I used to be.
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That's interesting. He's always asking, where's my Roy Cohn? Where's my Roy Cohn? He always wants stronger lawyers who play by Roy Cohn rules. Has he found his Roy Cohns? It seems he has.
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I think he has found none of them are actually Roy Cohn, but in their totality they're a lot of mini Roys. He has excluded the people who will stand up to him. Think about people like Bill Barr, even Jefferson Sessions, like the head of the Office of Legal Counsel.
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And these people seem like Louis Brandeis in retrospect.
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Exactly. On top of that, in their place has brought in the most pliable people that he can imagine. And I'm talking about that from Pam Bondi down.
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Now you've been out of law school for a little while.
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We don't have to add it up.
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But I have a final the theoretical but practical question. We have three supposedly CO= branches of government, but only the executive branch has real enforcement authority. That is people who carry out its orders, armed if necessary. Is that a flaw in the Constitution? Could it have been done and written better discuss.
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They used to give us take home exams. I think the framers of the Constitution fully understood that arrangement. And whether it's a flaw or not, they understood that the judiciary was in fact the least dangerous branch. But it did have the power, as Justice Marshall told us in Marbury vs Madison, of being able to declare what the law is and at least until recently, of having a public that that was gonna be behind it in terms of respecting the court when it issued orders. So I don't think it's a constitutional design flaw. I think as with so many things, Trump just puts the Constitution to a stress test and some of us have failed our stress tests in the past.
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Ruth Marcus, thanks so much.
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All right, that was fun, if scary, especially on the take home examination.
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The take home exam can be difficult. I don't think with AI though you get take homes anymore.
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It's all blue. That's true.
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And in the room.
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Yeah, I guess it is.
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Ruth Marcus is a contributor to the New Yorker, and you can read her piece as Trump's Legal Strategy backfired@newyorker.com and of course, you can subscribe to the New Yorker there as well. New yorker.com I'm David Remnick and that's the New Yorker Radio Hour for this week. Thanks for listening. See you next time.
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David Remnick
The New Yorker Radio Hour is a co production of WNYC Studios and the New Yorker. Our theme music was composed and performed by Meryl Garbus of Tune Yards, with additional music by Louis Mitchell and Jared Paul. This episode was produced by Max Balton, Adam Howard, David Krasnow, Jeffrey Masters, Louis Mitchell, Jared Paul and Ursula Summer, with guidance from Emily Botin and assistance from Michael May, David Gable, Alex Barge, Victor Guan and Alejandra Deckett.
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And we had additional help this week from Jake Loomis.
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The New Yorker Radio Hour is supported in part by the Tsarina Endowment.