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- [00:00]
Ben Wittes
Foreign.
- [00:11]
Charlie Sykes
It is hard to believe that Today is the one month anniversary of the Trump 2.0 presidency. Welcome to the to the Contrary podcast. I'm Charlie Sykes and I am joined by my good friend Ben Whittis, who used to be on every single week in the Before Time. So, Ben, good to have you back on.
- [00:32]
Ben Wittes
Yeah, I don't, I. It's lovely to see your face, Charlie, but I think if, like, if we're talking and it's not about the Trump trials, it's not a good sign.
- [00:44]
Charlie Sykes
No, it's not a good sign. Look, I don't like to be the guy that says this. I really work hard not to be the guy that says this. But it's really bad. I mean, today I am feeling it is really bad. And part of it was I was making notes for what you and I would talk about, and I couldn't decide, should we talk about, should we just talk about the assault on the Department of Justice, the complete collapse of the independence of the Department of Justice? Should we talk about Cash Patel on track to be confirmed as FBI Director, or. And this is where I want to start, Ben, the complete betrayal of Ukraine. And this is one of those moments where we knew it was coming, we warned it was coming. And yet to watch what's happening right now with Marco Rubio sitting across from the Russians, I think I quoted in my newsletter yesterday, Robert Tracynski saying a lot of us worried that this would be like Munich. And in fact, it feels more like the Molotov Ribbentrop alliance that's going on. And I know that you, for our listeners, you have been very, very involved in supporting Ukraine. I mean, you have gone above and beyond doing things to show solidarity with Ukraine. So let's just start with this. The breathtaking, astonishing betrayal of Ukraine with Donald Trump now actually parroting Kremlin talking points, blaming Ukraine and the United States for starting Vladimir Putin's genocidal war. Give me your take on this, because I think it's breathtaking, as somebody that has been predicting this was going to happen, still watching it in real time is gobsmacking.
- [02:34]
Ben Wittes
Yeah. So let's start with the premise that you just articulated, which is that there is, at some level, nothing surprising about this. If you listened to Donald Trump's statements during the campaign, he promised he was going to do this. If you listened to his statements going back to 2019, he has a vindictive hatred of Ukraine, which, you know, is completely baseless in, but he seems to feel it. And if you go back to his statements from 2015 and 2016, he has a deeply untoward admiration for Vladimir Putin and a fetish, you can call it. A fetish, you can call. There's something weird about it.
- [03:31]
Charlie Sykes
There's something very weird about it rooted in.
- [03:34]
Ben Wittes
And so at one level, there is nothing surprising about this.
- [03:38]
Charlie Sykes
Yeah.
- [03:39]
Ben Wittes
At another level, I was trying to think of the last time the US had, you know, essentially sided with the bad guys. You know, not just we've betrayed allies before. Right. You know, you leave people behind in Afghanistan. Right. The world is an unpleasant place and we've done a lot of unpleasant things. And I don't want to sugarcoat that. I cannot think of a time when we looked at an authoritarian, totalitarian society waging an unprovoked war against a what had been an ally up until the other day, and said, you know, not just blame the victim, but adopted the narrative of the aggressor. I can't think of a time that we've done that. The only example I can think of that's rough, you know, that's similar. Ish. Is the posture of the America first movement in the run up to world war to. But of course, they were not the government, they were the opposition. And they were silenced by, finally by the attack on Pearl harbor, which completely discredited them. But it's as though, you know, Charles Lindbergh were, were president. And, you know, I, I have spent a lot of the last three years with Ukrainians. In the. The night before the Riyadh summit, I went and projected on the Washington Monument with a young Ukrainian woman, don't betray Ukraine. In a fashion that was. The aim was to be visible from the White House. We knew it was going to happen. And yet there is something just cosmically shocking about watching it happen and watching the United States be very self consciously and deliberatively on the wrong side of a conflict between a genocidal dictator and a democratic country.
- [06:00]
Charlie Sykes
I want to stay with this point because it is one thing to appease Vladimir Putin or to make concessions to him, but what you're describing is switching sides is basically saying that, that we, we now are, have not only let down our NATO allies who have made so many heroic sacrifices, but we've actually switched sides and are embracing Putin's narrative. And this is the part that I think is what makes it so genuinely shocking because, you know, we have lived through Vladimir Putin's genocidal war against Ukraine. There was a broad bipartisan consensus. We saw this in real time to hear Donald Trump articulating the blame America first line, which used to be just sort of weird conspiracy theorists, you know, fever swamp stuff is amazing. And the Russians sound genuinely surprised at their good fortune. They sound kind of blown away by the fact that it is the President of the United States who is whitewashing their genocidal war. And I think it was. Was it Lavrov or Said, or was one of the spokesmen saying, and I believe this is the first time that any statesman has articulated, you know, the, the fact that, yes, blame Ukraine, blame the United States for all of this, because beyond the wildest dreams of Kremlin propaganda is now coming out of the mouth of Donald Trump, the President of the United States.
- [07:30]
Ben Wittes
Well, and it's, you know, from their point of view, Charlie, it's even better than that because think about what Congress has done over the last few weeks. It has confirmed Tulsi Gabbard to be the Director of National Intelligence. Now, if you watch Russian media, which I don't do very much, but I do do sometimes, the way they talk about Tulsi Gabbard is the way we talk about Alexei Navalny, like she's their girl. And they'll even talk about it that way. We have installed to run this foreign policy on behalf of Donald Trump. We have installed Marco Rubio, who as chairman of the Intelligence Committee, as you know, a Foreign affairs member of the Foreign Relations Committee, is very tough on Russia. He is now been removed from the Senate. He doesn't vote. And he is running, going to run this policy in a fashion that is, you know, the policy that he must know at some level is completely at odds with everything he's ever represented about the region. And so they have stumbled into this incredible good fortune in which the President is spouting their origin story of the war, their talking points. Tulsi Gabbard is one of their faves on rt and she's the new dni. And even their Republican foes, people like Rubio, have been completely co opted and turned into instruments of this appeasement.
- [09:35]
Charlie Sykes
Okay, so they've done.
- [09:38]
Ben Wittes
It's been a really good week for Moscow.
- [09:41]
Charlie Sykes
My God. Yes. You know, it has. Okay, I feel like I'm embarrassed to even ask this question because it feels like we've been having this conversation now for eight years. But can you explain Marco Rubio to me in a way that does not include the phrase dickless? How do you go from Marco Rubio, who is a hardliner on Russia, to the man sitting across the table capitulating to the Russians I mean, what can you explain what's happened? And then I'm going to get to the Republican supporters of Ukraine and Congress and what they must be thinking now.
- [10:21]
Ben Wittes
Right. So I think that, look, I think the answer to the what happened to Marco Rubio question is really more of a question in your area of expertise than in mine. There was a very fine book about this subject called how the Right Lost Its Mind. And you have spent the last eight years chronicling how people like Marco Rubio went from being people who represented something and something honorable to being people who are willing instruments of the precise opposite of what they've ever.
- [11:05]
Charlie Sykes
But even that this felt like the final frontier that you had Republicans who were caving into Donald Trump on issue after issue after issue, except for Ukraine. And there was that core belief that we are the United States of America, we have our Western allies, we are the forces of freedom against the forces of tyranny. And now that it just seems to have crumbled, it feels like almost overnight. So, I mean, in Marco Rubio's mind, is it so worth it to be. I mean, remember, in Trump 1.0 people would take these jobs because they would be the grown up in the room. Right. They would be able to stop the worst things that were happening. Jim Mattis was, was there, you know, and variety of others. And yet there's Marco Rubio in the room pushing the worst conceivable timeline scenario.
- [11:59]
Ben Wittes
Yeah. So I think the answer to that question is it's, it can only be answered with reference to the economist's idea of revealed preferences. Right. Don't. And his revealed preferences are that, yes, it is so important for him to be Secretary of State that he's willing to be in the room kissing the ass of Sergei Lavrov. And I don't really know if you're asking me to explain, I can't, but I observe that it is true.
- [12:37]
Charlie Sykes
All right, so what then does happen? Because there is a very strong bipartisan majority in favor of aid Ukraine in the Congress. Has that now also just evaporated?
- [12:49]
Ben Wittes
Well, so, of course, Democratic support for Ukraine will operate. And you know, here we get into the question of whether there is a coalition of the vertebrates among Republicans out me skeptical that the answer to that question is ever yes. But I do think the Democrats have some leverage here, which is to say that the government's going to shut down in a few weeks absent a budget agreement that Democratic votes are necessary for. And so I do think that there's a, a confrontation coming up in Congress that Democrats have an opportunity to decide, hey, what are the parts of the first Trump month that we are going to put our foot down and say, we are not giving you a single vote to keep the government open. You can do it irely on your own or you can do the following things. And we're going to learn a lot about what Hakeem Jeffries is made of and also what he cares about, because maybe the answer is he doesn't care enough about Ukraine for that to be on the list. Maybe the answer really cares about American kitchen table issues. Or maybe the Democrats see an opportunity here to be the party of, of our allies overseas who are fighting for their independence as well as, you know, the kitchen table issues. And so how the Democrats construct their own posture over the next of which we've had very little hint, by the way, of the next few months is going to matter a lot. The other thing that matters a lot is what Europe does. And this arguably matters more because Europe can operate quite independently of Trump, whereas Democrats in Congress, it's a little bit more complicated, as shown by the fact that they appropriate money for all kinds of things and then Trump refuses to spend it. Right. So, you know, even if Congress were to do the right thing here, it's not, it's, it's actually hard to force the executive to spend money. And that's going to be a matter that the Supreme Court is going to have to resolve. So, but Europe, look, this is the crisis Europe needs to step up. And the good news here, and there's scant good news, but I'm going to give the good news.
- [15:26]
Charlie Sykes
Throw us a scrap. Throw us a scrap.
- [15:28]
Ben Wittes
Force Ukraine into an agreement. They have people on a front. They are fighting. They have the weapons that they have. And Russia is actually incapable of beating them. And so we can negotiate with Russia. We can have a fancy table with Sergei Lavrov on one side and Marco Rubio on the other side. But at the end of the day, Zelensky gets a vote here whether we put him in the room or not. And we can set up terms that are highly disadvantageous to them, but they do get to say no. And if the Europeans can keep them in the fight, and that would require a significant change of European policy. But if the Europeans can keep them in the fight, they can. They don't need our permission.
- [16:26]
Charlie Sykes
All right, but can, that's a big if. Can Europe keep them in the fight? What does it look like? Because again, we're in this extraordinary moment where Europe is suddenly realizing that The United States is not a reliable ally, may actually be an adversary in some of these cases. We've heard reports that Trump is going to pull troops from the Baltic countries. So what can Europe do? What will it look like? Will it look like an army of Europe? Will it look like NATO without, without America? What. What can they do practically?
- [17:08]
Ben Wittes
So I am not an expert on European security, but let me offer the following three principles. One, some European countries are extremely cash rich and can finance a great deal in Ukraine if they want. I'm looking at you.
- [17:27]
Charlie Sykes
I'm sorry, what I miss? I missed that you're looking. Who?
- [17:29]
Ben Wittes
Norway.
- [17:30]
Charlie Sykes
Norway.
- [17:31]
Ben Wittes
Norway, yeah. Norway is per capita the richest country in the world, or one of them. It's basically the United Arab Emirates in the, in the, in the, in the Nordics. It's an enormously capable of writing checks.
- [17:51]
Charlie Sykes
There are in an enormously democratic country with really deep traditions of resistance as well. I mean, people should not underestimate the Norwegians. And I mean that very seriously.
- [18:03]
Ben Wittes
Estimate in fighting capacity, weapons development capacity, people like the Finns and the Estonians. And so there are European countries that are very capable and very eager to help Ukraine. Now, can the. The problem in Europe is two giant countries that are treating this in a little bit too much of the regular order. One is Germany and one is France. So you have a problem where the closer the countries are to a Russian border, the more sense of urgency they have, with the exception of Slovakia and Hungary. And so the real question is, can the Nordics, which are quite united on this, by the way, and the, and the Eastern European frontline states, pull the rest of the European Union with them? And I think there are three components of it. One is keeping Ukraine in the fight. The other is showing Trump because Trump believes from the bottom of his heart that the Europeans are parasitic and are just taking advantage of the United States and will never say, pardon me, go fuck yourself. Can they just say, we will defend ourselves, we will build our defense industrial complex so that we can do that, and we are not going to rely on the United States. And then number three is an industrial question. You know, we've had trouble building back our defense industrial base to support a rapid response here. The Europeans are even worse. They need to correct that. And, you know, but I feel as, I think those of us who are, whether from the traditional left right or whether, you know, who believe in an alliance of democracies at this point, have to support Europe acting without US Participation because we are on the wrong side.
- [20:22]
Charlie Sykes
Isn't that an Amazing thing. That is something, frankly, that I never thought as an American that I would be. And to see us switching to the wrong side, led by the party of Ronald Reagan is just, it continues to blow my mind. Okay, so one of the big questions is, of course around Article 5, and we, you know, we danced around that in Trump 1.0. Article 5, of course, being the NATO, the NATO treaty that says that we will come to the defense of any NATO member that is attacked. It's only been invoked once when our allies came to our defense after 9, 11. Am I correct about this? That's correct. So I guess the question is with Donald Trump essentially inviting Vladimir Putin to go into the Baltic states, at some point the Europeans are going to have to look Marco Rubio in the eye or Donald Trump in the eye or Elon Musk in the eye and say, okay, are you still going to honor your Article 5 obligations? And I don't know what the answer is. I sense the answer is going to be no.
- [21:28]
Ben Wittes
And then I think it is critically important for the Europeans not to beg. And this is, this is what Trump wants. Right, okay. Because what Trump wants is, you know, he dangles the possibility of us non, you know, scuttling NATO and everybody comes and begs him and then he demands concessions on things, trade. Right. And if you allow, again, I'm not in the habit of giving country's advice for how to manage the United States, but you know, weird times. If you allow the United States to run an extortion racket against you in a protection racket, NATO will become a protection racket. And that is the one thing worse than not having NATO is, you know, that is. Would be actual us. Right. The left has talked about US Imperialism for a long time. We don't extract resources. Right. This would be a conversion of. That will protect. You will honor our Article 5 commitments. Probably if you give us highly advantageous trade terms. You're starting to sound a little bit like the British East India Tea Company. Europe cannot be. And so I think the only way to not be in a position where you're begging is to be capable of defending yourself. And Europe is collectively a bigger economy than the United States. It has more people than the United States. It is actually capable of organizing itself to. And, and by the way, it has like four times as many people as Russia, even before Russia lost 750, 000 of them in, in, in Ukraine. So, you know, you're Europe itself against a depleted power if it chooses to. And it needs to choose to. Yeah, The Only other option is accepting a protection racket from Donald Trump and that they cannot do.
- [23:55]
Charlie Sykes
Okay, so I want to move on to domestic stuff in just a moment, but you got me stuck here on this. What Europe has to do and whether it will have the political will to do it. And obviously it's not irrelevant that Elon Musk and J.D. vance have been throwing their support behind the, frankly, neo Nazi party in Germany because of course, they now want to play in European politics as a way of undermining the kind of will that you are discussing. So that on the one hand, while Donald Trump is switching sides and aligning himself with Russia, his administration is also undermining the political basis of, of the, of the Western alliance as well in these elections. Correct.
- [24:43]
Ben Wittes
Who are intimately related.
- [24:45]
Charlie Sykes
Exactly.
- [24:46]
Ben Wittes
Party is not just any old neo Nazi party, it's a pro Putin party. Right. It's an all but openly pro Russian party. And so if you could, if you imagine you're J.D. vance, Donald Trump, and you are trying to betray Ukraine and you can get the largest country in Europe, the largest economy in Europe, the cornerstone of the EU in a pro Putin posture that's very similar to your own, you know, then it becomes very, very difficult for, to imagine the kind of European coalition that really needs to exist. And so, you know, you have to imagine the Germans are slow enough under a social democratic government.
- [25:38]
Charlie Sykes
Yeah.
- [25:39]
Ben Wittes
And they're, it's a, it's a big lumbering ship to turn. And now you put it in the hands of a Trump like party that admires Putin, gets money from the Russians, you know, you're going to have a very, very difficult time. And that will further isolate the Estonians, the, the Finns, the, the Poles, who are, you know, much closer to the front lines here.
- [26:12]
Charlie Sykes
All right, so on this one month anniversary, and by the way, every time I say that we're only one month out, it kind of like things go off and go off in my head. So let's talk about what's been happening domestically. You and I used to have a weekly podcast devoted to the Trump trials. And I was thinking about that yesterday that if any, if we, if somebody would have told us back when we were walking through the various trials and the indictments that nothing would come of it. Absolutely nothing. I think that I wouldn't have believed it. You perhaps were more cynical. But you look back on the way that Donald Trump was able to delay and wipe away everything with the help of the U.S. supreme Court. And now we have, he is a convicted felon, but it doesn't seem to matter to anybody. He is, comes back into office. Day one, all the prosecutors are gone. But day one pardons all of the rioters from January 6th, including the ones that attacked the cops. I admit I, I knew he was going to pardon the rioters. I didn't think he was going to, I thought he might make a distinction between the, the violent ones. What did you think? Were you surprised at all about that?
- [27:27]
Ben Wittes
You know, again, surprised in the same way that I'm surprised, Not surprised. Right. Like I sort of imagined there would be a, almost everybody except the hardest core. But I also took seriously the things he said, and I did, too, but he never said the words, I won't pardon people who were, you know, convicted of killing or attacking cops. And so I, you know, I, I, I tend to think that he is not capable of emotional transparency. And when he says, I'm going to betray Ukraine, he generally means, I'm going to betray Ukraine, I'm going to pardon the January Sixers. He tends to mean, he's going to pardon the 1-6-ers. And yes, despite that, I was shocked.
- [28:12]
Charlie Sykes
Well, and you and I spent much of 2024 talking about what Donald Trump would do with a presidency based on retribution, how he would weaponize the Department of Justice. And once again, I feel like we're repeating ourselves. Going back to what we said about Ukraine, actually watching it happen continues to be breathtaking, including the fact that Pam Bondi, who had bipartisan support, some Democrats, voted for her to confirm her. She is presiding over exactly the kind of dystopian scenarios that we had discussed. So let's talk about that, because one of the things that began to dawn on Me during Trump 1.0 was listening to a lot of folks talk about the norms of the Department of Justice and the traditions of the Department of Justice and the guardrails of the, of the Department of Justice, but then listening closely and realizing most of those are norms and they're sort of on, on the honor system, and that if the president wanted to blow this up and said, I want you to indict Ben Wittes, I want you to indict Charlie Sykes, that he has the power. Well, he can do that or drop all of the charges. So in the first Trump term, you could understand why lawyers would want to stay because they would be in the room and prevent the worst things from happening. Talk to me about the dynamic now of the career lawyers who now have to make this decision, do I stay or do I go? And last week, we had the Thursday Night Massacre, where you had all of these really elite attorneys from, you know, the Southern District of New York. We now had another senior attorney, resigned, fired. So what is going on? And how badly damaged is the Department of Justice in just the first month?
- [30:10]
Ben Wittes
Well, so let's take the second. The last question first, because it's the easy one. How badly dam is it? Terribly badly damaged. And the FBI Terribly badly damaged. You know, people don't understand this about the FBI, but, you know, a good FBI agent is a. It takes many, many years of creation. So think of like the prosecutors as the elite and the investigators are just kind of the cops. It's kind of actually the other way around. Like, the law schools churn out. The great law schools churn out, you know, hundreds and hundreds of people who can be good prosecutors a year. But an FBI agent, particularly one who works in, you know, bomb forensics or counterintelligence, you know, there's. These are exquisitely specific areas of expertise, and these people are. When you lose one because you force them to retire over a political loyalty matter, you're losing a lot of capacity very quickly, and it's very difficult to replace. Look what happened at the Justice Department. And, you know, people don't connect the norms conversation to this convert. The institutional damage was resignation, quitting in protest conversation. The norms are the only thing that make it ethical to be a Justice Department prosecutor. Because, you know, it is perfectly normal for a Justice Department for a politician to horse trade with another politician to say to Eric Adams, hey, I'll vote for your appropriation if you help me on immigration, right? That's a normal thing for politicians to do. We don't even call it quid pro quo following we. We have a respectable name for horse trading, right? You do that as a prosecutor, you should be disbarred, right? I'll drop charges against you if you help me on immigration, unrelated immigration policy matters, right? If I say to you as Representative Charlie Sykes, hey, would you oppose Democrats and all their works? And you say, yeah, I'll vote. I'll fight them on the season in the air, right? That's a normal thing for a politician to do. Oppose the other party, right? You do that as a prosecutor. Like, that's corrupt to say, I'm going to. Oh, Democrats who commit this crime, we're going to let them go, but Republicans we're going to go after that would be weaponization of the Justice Department. The only thing that perhaps prevents that from happening are the norms. The norms that say you don't behave that way, the ethical requirements, right. It's not law. It's not. And it's a norm of separating the jud. The, the prosecutorial function from politics. And what Trump did in the first couple weeks is he ripped that down. He again said he was going to do it. Right. Went ahead and did it, fired a whole bunch of people for no reason other than that they were politically unreliable because they had worked on the special counsel's office, because they had worked for, on January 6, prosecutions, he goes and he does this. And what happens the next week? Well, once you've established that the President can reach down into the Justice Department and say, hey, I like this guy Eric Adams, drop charges against him, you've gotten rid of that wall that says, hey, we're going to insulate the Justice Department people from these inherently political decisions. We're going to let them be pure, and we're going to. And so what happens, you put them in an ethically untenable position within just a few weeks of taking office, and they being irrespective of whether they're Democrats or Republicans, Scalia clerks or Justice, Chief Justice Roberts clerks, they respond the same way, which is, I'm sorry, Dave, I'm afraid I can't do that. And they quit. And so you have. Because actually, the normal horse trading for a politician, and actually one of the prosecutors who resigned in a letter said, I understand why the administration wants to do this, but, you know, no, no respectable AUSA would file this motion for.
- [35:15]
Charlie Sykes
These reasons that you'll find a fool or someone, you know, who's dumb enough or cowardly enough to do it. And of course they did.
- [35:22]
Ben Wittes
And of course they did. But it was, but here's the key line. But it was never going to be me.
- [35:28]
Charlie Sykes
I love that.
- [35:29]
Ben Wittes
And so, you know, and that is, you know, somebody who clerked for the Chief Justice. And I think the, the really important lesson here, which is what I've been trying, I've been screaming about this for eight years, is the norms aren't there so that we're nice to each other. They're not there. It's not like some political comedy things.
- [35:54]
Charlie Sykes
Not etiquette.
- [35:55]
Ben Wittes
It's not etiquette. It's the only thing that makes it ethically acceptable to be a Justice Department prosecutor. The moment you take it away, it becomes ethically impossible to work for the Justice Department. And so people quit. And that, by the way, it's not going to stop. Because if you insist, it'll, you know, it'll be fine for people who do, you know, routine non sensitive cases. But if you work on something that the political echelon cares about, someday you're going to get a phone call that says, right, you know, make sure you come down hard on Witness or Sykes, or make sure you go easy on witness or Sykes. And you're going to have to say, I'm sorry, Dave, I, I'm afraid I can't do that, or Emile, and you're gonna have to quit. And that's what last week was about.
- [36:50]
Charlie Sykes
So, yeah, it did feel like last week. Well, you, you tell me what the, what the mood has been, because I think there was a little bit of like, you know, waiting and watching and trying to figure out it's going to be bad, how bad will it be. But it felt like those resignations which were so eloquent and full throated, you know, might have also inspired others because, you know, in, in the context of watching one institution in government and out of government, one institution after another bend the knee to Donald Trump, you know, the premature capitulations, it really did seem like a clarion call when this one lawyer said it was never going to be me. The acting U.S. attorney who had been put there by the Trump folks essentially said, you know, this is a quid pro quo, called them out. I mean, just laid it out in very, very clear language. So what is the mood? Did that inspire others to say, I want to be like them rather than Emil Bovey, you know, the low rent Roy Cohn knockoff that is apparently calling the shots?
- [37:55]
Ben Wittes
Yes. So Emil Bovey, whom I had the privilege to spend six weeks in court with when he was, you know, line counsel on the, on in the Trump defense in New York. And look, Emil Kovy is a very smart man. He is a very, yes, he is a very capable lawyer and he is all in, all in for the devil right now. And we should not underestimate his capabilities. And you know, he is okay forcing the resignations of a lot of the Justice Department's career expertise. And that is an extremely dangerous thing. But yes, that said, I agree with you. What we've seen from the Justice Department and frankly less visibly from the Bureau has been inspiring.
- [38:53]
Charlie Sykes
Yeah.
- [38:54]
Ben Wittes
The problem is you're going to hiring resignations and they're not going to be there. And the people who are going to be elevated in their places are people who are going to be the ones who are willing to sign documents. And that is a very worrisome thing. It's also playing out at all of these other agencies too. And so, you know, I have mixed feelings about it. Some part of me would rather, you know, it is a problem that it is an ethical selection process for the least ethical.
- [39:36]
Charlie Sykes
I mean, that is the dilemma. I remember, you know, remember, I mean, we're talking about last Thursday, you know, when the resignations came down. I thought this is a good thing. I'm glad that they, they are doing that. And, and the, and the pushback was. Well, I'm guessing the Trump folks are delighted by this. This is what they want. They want all of these ethical lawyers to go so they can replace them with their, you know, a trumpified lawyer. But I guess the point is that if it's widespread enough, will they, as you point out, it's not easy to find FBI agents, is it? I mean, are, is it going to be easy for them to stock the SDNY with people willing to sell out their legal reputations?
- [40:19]
Ben Wittes
So I, I mean, I think this is a very profound and important question. And the honest there is. Well, we know the answer. In the case of the FBI, it's very hard. You know, you have to put them through Quantico. You have to like, you know, like creating an FBI agent is a, is a problem. And it's, and it's hard. And they already have recruitment issues creating, you know what. The Southern District of New York will continue to exist. It will just continue to exist as a much less elite prosecution office. Right. It'll be much less good at things like public corruption. But that's actually the point. Right? That's what they want.
- [41:00]
Charlie Sykes
Yeah.
- [41:01]
Ben Wittes
Now, one really interesting question here and one of the very elegant features of what Danielle SASSON did the U.S. the acting U.S. attorney, you know, she wrote, she could have written that letter in a couple paragraphs and she wrote it eight single page pages. And the audience for that was, you know, principally not the press, though the press latched right onto it and you know, was the letter that sparked a thousand news stories, but her audience was a judge, a judge named Judge Ho, who happens to be the guy who's presiding over the case. Now, I believe that hearing, a hearing on that is happening today.
- [41:46]
Charlie Sykes
Yesterday, actually. But yeah.
- [41:48]
Ben Wittes
Was it yesterday? Yeah, sorry, yes, exactly. Yesterday. I believe a hearing on that happened yesterday. I have, because we are recording this a day early. I have not yet seen the results of that hearing. Look, you know, this is a very unusual presentation of a question before a federal judge, which is the prosecutor appointed by this president, alleges that the acting Deputy Attorney General tried to force her to engage in a quid pro quo deal with a criminal defendant acknowledging that the charges were merited. And she has blown the whistle on this in considerable detail. And he has responded, but not challenged the facts of her contention. And so I think one question that we have here is, first of all, does the judge allow the dismissal of the case under these circumstances? That is, you know, normally it is a pretty ministerial thing. When the Justice Department wants to drop charges against you, the courts don't stand in the way. But here you have a genuinely unusual situation that I think a judge in that district is likely to, to take a very close look at. And then second, what message does that send to other prosecutors?
- [43:27]
Charlie Sykes
Well, also, let me, let me, you got me thinking about something here. You, you, you mentioned that she writes this eight page letter which was really, you know, the audience of one, but maybe not just the audience of one. You know, she obviously knows that the entire judiciary is watching this as well. And, and that's the part we haven't gotten to yet with the, you know, the, the attempt to, you know, break down all the norms in the FBI, break down all the norms in the Department of Justice. Well, there's a third branch of government that also gets a vote in all of this. And it is interesting that these, these, some of the strongest pushback against what's happening are coming from judges, I mean, coming from prosecutors with very, very solid conservative credentials, Federalist Society members, people who had clerked for, for Justice Roberts, the Supreme Court justices are reading this too, aren't they? Appeals court judges are reading this as well. And so I wonder, I don't disagree with anything. You're saying that she was obviously, you know, addressing this to Judge Ho, but also she's also creating a record. It feels like sending up a flare. This is not normal. This is not usual. You need to understand what is happening here. And somebody that a Justice Roberts is going to take seriously, a Justice Kavanaugh is going to take seriously, a Justice Barrett is going to take seriously. Because right now the judges have to realize that they are the last remaining guardrail under the Constitution. And we don't really know how they're going to hold up, do we? Because.
- [45:03]
Ben Wittes
And mostly that is presenting that question, is presenting in civil challenges to Trump administration action. This is a challenge in the context of a criminal case to Trump administration corrupt, refusal to act. And, you know, it's a very different presentation of the question than some of these others. And it has an incredibly attractive pair of faces, which is Danielle Sassoon, the attorney, and the line attorney Hagen Scott. And who.
- [45:41]
Charlie Sykes
Very impressive.
- [45:42]
Ben Wittes
It's never going to be me letter. These are people who are now sort of like almost basically fact witnesses at this point to an alleged corrupt deal. And I think that is going to be an interesting question. How Judge Ho handles it in the first instance, how the Second Circuit and the Supreme Court handle it potentially down the road and finally. And how that, as you say, percolates across the judiciary and critically among the other AUSAs in the southern District and of New York and elsewhere.
- [46:20]
Charlie Sykes
No, exactly. And of course, I feel like we're burying the lead here because it was just a few days ago that the, the President of the United States quoted Napoleon Bonaparte, allegedly Napoleon Bonaparte, claiming he who saves the nation cannot break the law, essentially saying that he is above the law, and of course proved in 2024 that he was in fact above the law. That seemed to be a, seemed to many people to be a very direct challenge, says challenge, slash threat to the courts that I am prepared to ignore you and to defy you and create a constitutional crisis. So how does that play? Do Supreme Court justices look at that and go, okay, he doesn't mean he's blowing, or do they say that, that what Trump is really saying, Nice court you got there, Justice Roberts. It'd be a shame if I had to, if I had to ref reveal and expose that it was all a sham, that it was all a bluff, that I don't have to follow your rulings. How does that play with, with the courts?
- [47:28]
Ben Wittes
So we don't know. Right. You know, the, the question of would Trump at the end of the day defy a court order and what would happen if he did is one of those questions that everybody likes to jump to early. And I want to actually hold back on that by way of, by way of dealing with the proximate issues first. Right. So before he defies a court order, he's going to appeal it. And I want the, you know, the order that is finally there that he's got to decide whether to follow or not. I want it to have as many justices on it as possible. And it's different if it's a five to four thing, you know, than if it's a seven to two or nine to nothing thing. Right. It's different if it's the court rather than the justice's least friendly to Trump. It's different if the person defying the court order is Trump himself or if it's maybe Elon Musk or some, you know, some kid, 19 year old named Big Balls who Works for, for Elon Musk. Right. And so, you know, going through our.
- [48:57]
Charlie Sykes
IRS data right now, probably the 19 year old kid named Big Balls Data.
- [49:03]
Ben Wittes
Look, I, you know, you can't not take the threat seriously because he's making the threat and that is a, and, and he's getting encouragement in that from the Vice President, from senators, from, you know, opinion leaders. And so you have to take it seriously. But I do think it's important not to catastrophize and jump to and say he's going to defy a court order because he might. And like, I want to actually follow the process out and posture that court order as strongly as possible by way of disincentivizing it.
- [49:48]
Charlie Sykes
So what do you think the big supreme court case of 2025 will be? Will it be on impoundment? Will it be on some other issue? What, what's, what's the one that is the, will be the decisive answer to the question, will the court be a, a guardrail against Trumpian excess?
- [50:07]
Ben Wittes
So I think there's, broadly speaking, three or four different issues that the court is going to have to address. They're all big, they're very different from one another. First of all, there's the birthright citizenship stuff. Right. Now that one's a relatively easy question.
- [50:28]
Charlie Sykes
We thought immunity was too, though.
- [50:30]
Ben Wittes
Exactly. Right. So, you know, Trump hasn't won a single motion in a single court on that subject. But you don't want to make assumptions about where the Supreme Court is. Number two, impoundment. Right. He is trying to create a revolution in the relationship between the branches of government by interpreting the idea that Congress holds the purse strings to mean Congress holds one of the purse strings and the President holds the other. The Congress can appropriate the money, but the President has an independent judgment as to whether to spend it. If he can get that by the court, that is a revolution in American Constitution would be separation of powers law. If he cannot get that through the court, that is a major, major, major setback for him. And there's a foreign policy element of that and there's a domestic side of it. They're both hugely, hugely important. Number three, and this is the one that I think he is most likely to win on, on is The President's Article 2, Power to Fire people in the bureaucracy. Now, you know, he has postured this in the most unsympathetic possible way, you know, terminating a whole bunch of bird flu people by accident. Right.
- [52:03]
Charlie Sykes
What could go wrong, go wrong.
- [52:06]
Ben Wittes
But you know, there is a, at the Supreme Court There is a idea that has caught on over the last, you know, really 40 years that the president has to have vertical hiring and firing authority across the executive branch under what's called the appointments clause. And this has two presentations that are relevant now. One is, you know, can he fire people who are appointed for terms to independent agencies? Right. Little bit further down, can he fire inspectors general who have a. For, you know, you're only supposed to be able to fire them with a, with what's called cause or a real reason, but can he do it just because, you know, he runs the executive branch? And then the extreme version of this question is, can he fire civil servants? Right. The U.S. the Civil Service has been around since after the Civil War to get rid of the Jacksonian spoil system. Right. That every guy who runs a lighthouse has, you know, gotta be a friend of the president's. Was that system always a myth, constitutionally? And so these questions that would, that would be.
- [53:32]
Charlie Sykes
Yeah.
- [53:35]
Ben Wittes
Just to finish the thought, I'm pretty confident that he's going to win on the independent agencies question. And so I think, you know, you're going to see some, you know, there's some real, he's got some real arguments based on current case law that, you know, he gets to fire, you know, Democratic appointees to, who supposedly serve a term of years. I'm, I think he's going to lose on the civil service stuff. And so I, you know, like how he does matters as to what that order is going to be that he might be tempted to defy.
- [54:19]
Charlie Sykes
Yeah, no, we, again, we're just in the first month, and these are the big questions. And there's no question about it that he's aiming for a constitutional revolution. I mean, he is looking for not just incremental change, but really a fundamental shift in power. Benjamin Wittes, thank you so much for joining me for what I think is one of the smartest podcasts I have ever hosted. Thank you so much. We covered an awful lot of ground. It's good to be back with you.
- [54:49]
Ben Wittes
It's so good to see you again. I'm so glad your voice is back in my ears. And congratulations on the new podcast.
- [55:00]
Charlie Sykes
Well, thank you. And thank you all for listening to today's to the Contrary podcast. I'm Charlie Sykes and we do this several times a week because we all need to remind ourselves that we are not the crazy ones.
- [55:13]
Ben Wittes
Thank you.