Josherich's Blog

What if Trump Just Ignores the Courts?

I will say, I feel like it’s always a bad sign when I’m reading lawfare a lot. We joked last time around that our motto was we’ll tell you when to panic. Sure. Have you told us to panic? Um, I feel like we’re getting there, you know? Threat level orange? Yeah, yeah, let’s go with that. I think we’re beginning to move into the next phase of this Donald Trump term.

Remember what Yuval Levin said in our episode last week. There’s a rhythm to the presidency. Presidents begin their terms by unleashing their plans. For weeks and maybe months, the world is responding to them. They set the pace of events. But soon, because they have exhausted what they can do unilaterally, or because they begin facing events and actors they do not control, or because of the very things they have done begin creating uncontrollable backlash, they must begin responding to the world. Donald Trump’s second term began at, remember Steve Bannon’s term here, muzzle velocity. They acted, and the world watched, its mouth agape.

But actions create reactions, and we’re beginning to see them and to see how the Trump administration responds to those reactions. Trump delayed his tariffs after markets shuttered. So far, we are not seeing mass deportations. We’re seeing immigration arrests running at roughly Obama-era levels, but being marketed and conducted with a gleeful cruelty. And we are now seeing the courts respond. Tonight, a federal judge temporarily blocked President Donald Trump’s executive order ending birthright citizenship, calling it blatantly unconstitutional.

Tonight, a federal judge has temporarily blocked the Trump administration from transferring three transgender women into a men’s prison. A temporary block on Trump’s order to freeze federal grants and loans. Temporarily blocking its buyout offer for federal employees is also pumping the brakes on Trump and Musk’s plans to dismantle USAID. The federal judge blocking Elon Musk’s Department of Government efficiency from accessing sensitive Treasury Department records.

I’m recording this on Monday, February 10th. All of this is moving extraordinarily fast. By the time you hear it, some of it may have changed. These freezes are not the final word. They are a pause on the administration’s actions while those actions are being litigated. So far, the Trump administration is largely abiding by the court orders. If they began simply saying the court’s authority is illegitimate, that would throw American politics into a genuine constitutional crisis.

Can the president simply ignore the courts? Can he decide for himself what his powers are? And what can or will the courts do if he tries? Over the weekend, Vice President J.D. Vance suggested the administration might try just that, writing on X that, quote, judges aren’t allowed to control the executive’s legitimate power. That word legitimate is doing all the work in Vance’s tweet. Who decides what the executive’s legitimate power is? Typically, the courts. Vance is suggesting that it should be the president himself. That also seems to be Trump’s view.

Then I have an article, too, where I have the right to do whatever I want as president, but I don’t even talk about that. We don’t yet know what Vance is really doing here. We don’t know if he’s carrying out a broader strategy that is coordinated with the administration or just freelancing on Twitter. We don’t know if he’s signaling an imminent constitutional crisis or just trying to make himself look tough to the MAGA faithful or useful to Elon Musk.

Is he trying to influence the Supreme Court’s ultimate rulings by telegraphing that if they rule against Trump too often, the Trump administration will defy them and try to show the limits of their power? Nice judicial review you got there. Shame if something should happen to it. On Friday, I spoke with Quinta Jurassic, a senior editor at Lawfare and a fellow at the Brookings Institution about the fight that it was already clear that Trump was bracing for with the courts and more broadly, the ways in which his actions are creating reactions throughout the government and even throughout society.

And then over the weekend, Vance sent that tweet. And so I called Quinta back to see how it changed her thinking. You’ll hear that at the end. As always, my email, Ezra Klein’s show at NYTimes.com. Quinta Jurassic, welcome to the show. Happy to be here.

So when you look at what Donald Trump has done in his executive actions in the first weeks of his presidency, what looks to you like it’s merely aggressive and what looks like it is actually illegal or a genuine change in the balance of powers? I think that’s actually really difficult to disaggregate because there are a lot of things that might have been lawful but awful. You know, something that is within the president’s legal authority, but not something that you would necessarily want an executive governing in good faith to do.

And then the problem is that some of those things, if they had been done in, you know, a sort of reasoned way, according to the procedures that are set out in law, would have been completely fine. But because of the way that the administration has done them, inarguably, in my view, crossed the line. Can you give me an example of that? Absolutely. So let’s take the dismantling of USAID.

So this is an agency that is created by Congress. If the president felt, you know, I actually don’t think that having USAID as a separate agency is a good idea, I want to merge it with the State Department, or let’s say I want to get rid of it completely, that could be done by going through Congress and saying, I’d like you to pass a law to reorganize USAID or to get rid of it completely. The problem with the dismantling the way that the administration has done it is on a legal grounds that it’s essentially done it by ignoring Congress altogether, essentially kind of arguing for the complete irrelevance of a coordinate branch of government.

And on a policy level that it’s also dismantled it in such a chaotic and, frankly, cruel way that the immediate ramifications are going to spread well, well beyond whatever is stated policy goal. You know, there was reporting in the Washington Post, for example, about, you know, farmers in the Midwest who had been selling an extraordinary amount of products to USAID to distribute. They’re now going to have real economic struggles.

And so, the carelessness of the implementation I think has policy implications and also serious legal implications such that, you know, there are things that they could have done arguably in one way that would have been acceptable but that may be held up in court because they were done so carelessly. Well, when you say held up in court, what does that mean? So, there is a lawsuit being formed and filed right now that’s been reported on and let’s say it works its way through the courts and the court says, oh, you actually can’t do this. You cannot unilaterally dissolve agencies created by Congress.

What is the actual recourse? What does the court order them to do? Right. This is where it gets tricky. I think the question of, you know, what happens if a court says you can’t continue to dismantle this agency and then the administration says essentially try me is kind of the big question. This is moving more into the realm of things that are outright illegal under any circumstance. For example, the birthright citizenship executive order that was an order that directed the government to stop issuing or recognizing paperwork to babies born to parents who, the wording’s a little confusing, but neither parent is either a U.S. citizen or a legal permanent resident, a green card holder, after late February, I think February 19th.

It has now been enjoined in two separate courts with the court essentially saying this certainly appears to be completely unconstitutional. The plaintiffs have a good case that it is unconstitutional and as a result we’re going to block you from putting this into effect. We have no indication that the administration is going to try to put it into effect over that court order. So then the question is, okay, well, what does it look like if they say, you know, we’re actually not going to provide social security numbers, for example, to these infants that were born on U.S. soil and that are under the interpretation of the 14th Amendment that everyone has accepted essentially since it was brought into law.

I mean, I think the sort of short answer is that’s what we call a constitutional crisis and we don’t really know how it would play out. I think it is worth emphasizing that in the first Trump administration, I don’t know of any instance in which the administration flat out ignored an order of a court. He never said, you know, I’m simply not going to obey a court order. He would kind of post on Twitter about it and complain, but then his administration would comply.

When we came into the second Trump administration, I was not actually that worried about him disobeying a court order precisely because of that. I think there are aspects of the way this administration has governed in these first few weeks that make me more worried. But at the end of the day, the answer to your question is, you know, we simply don’t know. Well, let me hold on this question of whether we are in the world of administration that is pushing authority or courting a constitutional crisis.

So you brought up USAID and going through Congress and in some ways I think that’s actually a complicated example because I don’t think they could have gotten that through Congress. I think one thing they are dealing with right now is that they have such slim margins. And have put no effort, let’s say it lightly, to working with Democrats so that they’re going to look a lot weaker when they start having to pass bills. And they’re already, the reporting is having a lot of trouble even just designing their spending bills to get enough Republican support.

So I think they’re quite worried about what happens when they need to start going through Congress and that’s why they’re doing so much through executive action. But there are things they’re doing through executive action that you could do just legally. What did you make of it? Another example is the spending freezes coming out of OMB. One thing that I think has not been communicated clearly, and as a member of the press, that’s maybe partly on my shoulders as well, is just how big a deal it is that the administration came in and immediately tried to cut off possibly trillions of dollars of spending authorized by Congress just all at once.

That’s not just a bull in a china shop. That is, again, an effort to usurp the congressional power of the purse, which is the main power that the Constitution gives Congress as a coordinate branch of government, as a check on the other branches. Because you can see, you know, if Congress says, okay, you’re going to spend this much money on these things, and then the president says, actually, I don’t want to, you’ve really limited the power of Congress to act in a constitutional fashion to exert any power over the executive.

Now, it is true that many of these spending authorizations have particular provisions saying, you know, the executive has this level of discretion in how to distribute these funds in such and such a way. And so, part of the problem with looking at this OMB spending freeze is that so much spending was frozen that it’s actually really difficult to figure out if they had gone, you know, item by item, whether they might have been able to kind of turn off the switches or redirect funding in a way that could arguably have been legal. But because they just did it all at once, it’s, I would say, not only illegal, but an active threat to the constitutional order.

And this also, again, goes back to this question of compliance with court orders because as you say, there have now been multiple court orders saying you need to stop this funding freeze, you need to turn the money back on, and yet there have also been a lot of reports saying, you know, various organizations that were getting this money have not actually received it despite assurances that they would. I think I saw a report that Head Start programs in a lot of states have not been receiving their funding, for example.

I want to try to take the most generous case for some of what they’re doing or trying to do. When I talk to people from the first Trump term, the resistance they faced from the bureaucracy was very radicalizing for them. To them, it was this realization that the executive did not control the executive branch, even though the executive is the only person in that branch who is ultimately responsible for its actions. This realization has apparently led to a cavalier approach to the limits of executive authority in the current administration, which could significantly alter the established norms and checks in place within the U.S. governmental system. Accountable to the voters. And we’re talking about this usurping of congressional power and the power of the person and the alteration of the constitutional structure. But they say, well, look back on history. Presidents used to have the power to not spend all the money Congress has appropriated, which is called impoundment. They did have more power over the federal bureaucracy, right? Civil service protections come in at a certain moment in our history and then they get strengthened over time.

And so what they say is what they’re attempting is not unprecedented. They are trying to go back to something more like the power the executive used to have in the past because they believe that the administrative agencies have become an unelected fourth branch of government out of the president’s control and particularly out of a Republican president’s control. How do you take that argument? Two points. First off, I think that the fact that Elon Musk is playing an increasingly large role going around and trying to cut costs in a maximally chaotic and destructive way at all of these agencies really undermines that argument because if you take the view that, you know, unelected bureaucrats are not under the control of the president and should not have this authority, how do you deal with Elon Musk? Nobody elected him.

It’s not even clear what role he has. Well, I guess I would say he acts at the pleasure of Donald Trump and the moment Donald Trump wants him out of there, he’s gone. The point is centralizing control back in the president. So I don’t want to get us on too far of a detour here. Taking this argument seriously, a lot of the arguments that the conservative legal movement, for example, has made about the importance of centralizing control focus on the role of the appointments clause and the importance of having, you know, a Senate-confirmed official under the appointments clause who can then serve at the pleasure of the president.

Elon Musk has not been nominated or confirmed to any position. And so I do think that even if you take this sort of view that it’s very important to have a unitary executive who can, you know, act with energy and carry out his will, because of course it’s going to be he, that Musk does not fit within that constitutional vision because he is functionally an unaccountable private citizen who has kind of been bolted on, and the people who he has working for him are in the same category. And so I actually do think, I mean, if you look at some of the polling things, for example, on Republican approval of Musk playing a significant role in U.S. government, it has gone down dramatically since the beginning of this administration.

If your argument is we have a serious problem with unelected bureaucrats, that Musk actually is a serious fly in that ointment. So that’s one thing. But the other thing I would say is that, you know, walking out the front door and jumping out a fourth-floor window are both ways to leave a building. And if what you want to say is we need to have greater executive control of, you know, unitary executive control of the government, we want to limit the power of unelected bureaucrats, so on and so forth, if you were saying that in good faith, I don’t think that this is the way that you would carry out that project.

Because what you have seen now is just wholesale destruction in a way that is going to be very, very hard to build back. And you could have made an argument for, you know, slimming down these agencies, having more political employees, increasing the president’s ability to fire individuals leading these agencies at will in a way that did not need to involve this kind of smash-and-grab effort. So then you say, is this an example of an administration that, you know, comes in, wants to push a, let’s say, kindly, extremely aggressive, I think unkindly and perhaps more accurately, extra constitutional vision of executive authority and sort of comes out swinging and says, we’re going to cut off all this money, you know, come see us in court, the court’s going to give us an order and we’re going to disobey it and we’re going to kind of push forward in that way?

Or is it an example of total carelessness and total incompetence? And I think the answer is probably somewhere in the middle. There are reasons to think, certainly, that this administration has been motivated in a lot of its actions, particularly in the OMB actions, by this kind of extra constitutional vision of executive authority. But it is also true that if you were, you know, an evil genius communist and you wanted to pursue that vision in such a way that would kind of get the courts on your side, this is not how you would have done that.

On the other hand, there’s ways in which it feels to me like the Supreme Court that Trump has largely built, this particular majority, has given him extraordinary power, has made the idea that the president is bound by laws into something of a farce. The president has unrestricted pardon power, pretty much, and then they gave him immunity in his own official acts. So, how do you understand the balance of the Supreme Court on the one hand, dramatically expanding the president’s zone of immunity, and I would say impunity, and your confidence and confidence I hear from many other legal experts, that they’re not just going to buy into all of this as soon as it gets to them, because it turns out they’ve been Trump sleeper agents the whole time?

Well, I don’t want to sound too confident, because I was also confident that they would not give Trump the time of day on the immunity issue, and wow, was I wrong about that. So, I do think that I want to speak with a certain level of humility here that the way that I at least understand the court has really changed since the immunity decision, frankly. My metric at this point for whether Trump can get something through the court is, and I’m going to say this and it’s going to sound flippant, but I really do mean it sincerely, whether or not John Roberts thinks that somebody has been rude.

And what I mean by that is that in the first Trump administration, there were a number of things that the administration tried to get through that the Roberts court barred, including the DACA rescission, for example, the effort to add a citizenship question to the census. These are examples where the court kind of looked at them and said, like, come on, you’ve got to do better than that. At least, for the love of God, give us some kind of an administrative record here. Don’t just show up and say, I did this because I wanted to. I think that what happened in the immunity decision was in part that Trump’s offenses were farther in the rearview mirror, and Roberts, at least in his majority opinion, seemed kind of, like, offended by the fact that prosecutors were going after these actions to begin with, that that wasn’t gentlemanly, in some way, let’s say.

And I do think that if, this is essentially like saying, you know, if the moon were made of cheese, but if Trump had come in with a number of very well-designed sort of surgical test cases to really push the limits of presidential power in a way that I think a court that is disposed to a very particular vision of executive authority would have been really sympathetic to, that you could absolutely see the court ruling in his favor on those issues. And it may still, on some of these, you know, like the ability to remove the FEC commissioner, for example. But coming in and just kind of wrecking everything and then saying to John Roberts, like, hey, you’re going to back me, right, I think is not very appealing to Roberts, who wants to see himself as the custodian of this kind of wise, apolitical institution.

And I know that people are going to listen to me and think, but of course the court is just a political institution these days, you know. I think that certain justices on the court, certainly Roberts, I think Amy Coney Barrett, want to be seen as more than politicians in robes and that that is going to guide their behavior as well. And so for that reason, I am very skeptical that things like, you know, trying to assert a really aggressive presidential impoundment authority or assert this sensible reinterpretation of birthright citizenship are going to make it through designed as they have been designed.

You know, there are a lot of ways, like I said, where there are particular authorities the executive could have used to say, we’re going to tweak this funding, you know, we have this authority, et cetera, or they could have said, actually, Congress puts this condition on this funding stream and we think that condition is unconstitutional because, you know, of their national security concerns and we’re going to make an extremely targeted court case to argue that the legislative constraints that Congress has placed and the executive’s ability to impound funds are unconstitutional and, you know, convince the courts and the Supreme Court on that basis.

That would be sort of the clever way to do it, and I think a way that would have given you a lot more luck in the Supreme Court. The way that they have actually done it, just kind of coming in with a sledgehammer and just smashing everything, is not likely to get the courts on their side. And so if this is a kind of evil master plan to destroy constitutional government, they’re not doing it very well. That doesn’t mean that it’s not extremely dangerous. It is. But I think it’s important to be careful about the extent to which we portray this as part of a very well-thought-through plan.

This is a big argument that I’ve been trying to make recently: that part of the danger is believing, one, that he has the powers he’s asserting he has, and believing, two, that everything they’re doing is a good idea. That if they convince everybody of that, then success is a lot likelier. But I don’t think it’s true. I don’t think they have these powers, and I don’t think a lot of this stuff is going to work out for them in the long run. And one thing that I was thinking about while you were saying some of that, and that has become very core to my understanding of them so far, and it’s early, and their strategy might change. They don’t seem to me to have much appetite for backlash and friction.

So when I look around at what’s been going on, they’ve been getting stopped by courts, and they seem to be stopping. Tariffs, which we understood to be the thing Donald Trump cared most about, he announced over a weekend on Canada and Mexico. There was a market reaction. And at least for now, he backed off those tariffs entirely, taking basically things Canada and Mexico either already were doing or would have happily done anyway and pocketing those as, you know, the win. The OMB spending freeze that you were talking about, as soon as he began getting a lot of incoming from the political system saying, wait, you’re stopping Medicaid, right? You’re stopping this, you’re stopping that. They sort of backed off of that as well.

And, you know, USAID does not really have a domestic constituency aside from liberals who believe in it. But they don’t really want difficult fights, at least not yet, which is also why they’re not doing very much in Congress. They want to act like they have all this power, but I’m not sure they want to go through the upheaval it would take to actually claim it. That seems right to me, and I’ll point to another example as well. So one of, I think, the most terrifying things that’s happened in the last week, and it’s difficult to rank them, is the news of Elon Musk’s kind of wrecking crew of young men who have kind of reportedly been dispatched to a variety of federal agencies to supposedly look for efficiencies, but it seems from the reporting like what they’re actually doing is kind of barging their way in demanding access to data and then wrecking as much as they possibly can.

And there are a lot of ways in which that’s concerning. The most concerning has been the reporting about what’s going on inside the Treasury, where I believe two Musk kind of acolytes had access to very, very sensitive Treasury data, and particularly the corner of the Treasury Department that is kind of the nerve system that actually sends out the payments that the United States government is sending around the world. And that is concerning because it could cause a global financial crisis. I think that, you know, imagine the worst possible case scenario, right? The U.S. government says, actually, we’re not going to pay, you know, any of this money that we owe anyone.

Even if they, you know, target that at a very particular sector, you can see how the ripple effects would extend because… Or even imagine they just accidentally break it. Exactly. And they don’t even mean to stop paying everybody, but they stop paying bondholders and the whole thing goes into chaos because nobody knows how to fix it. Sometimes these systems are very complicated. Exactly. And so, reportedly, there are two people who had been mucking around in these systems. There was a lawsuit filed trying to block this. The court stated that those two Musk aides should be barred from being able to change anything, that they should only have read access.

Now, to be clear, their having read access is very concerning, but the fact that it was downgraded, or at least that it was downgraded after this court order, is a very, very good thing. And then the other thing that happened is not too long after that court order was issued, the Wall Street Journal reported that one of those aides, his name is Marco Elez, I think I’m pronouncing that correctly, resigned because the journal had confronted him with a number of extremely racist tweets that he had posted. And by racist, I mean that he posted things like, I was racist before it was cool. So I’m using his own self-descriptor there.

Now, that sequence is reassuring in the sense that they backed down. They blinked. But I was very concerned that we’re going to end up in a situation where a court said, you know, Doge folks, you need to get out of there. Elon Musk said no, and then you have a standoff because the agency that actually carries out court orders in these kinds of situations, the U.S. Marshals, is actually under control of the Justice Department. So what happens if Trump then tells the Justice Department not to comply, right? That didn’t happen.

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So what the Trump administration really fears and hates is the federal bureaucracy. I mean, that is what Elon Musk has basically been tasked with. Break the federal bureaucracy. Buy them out. Push them out. Put them on leave. Fire them. That’s what they’re trying to cow. That’s what they’re trying to control. They’re also at the same time creating a lot of fury and resistance and anger from that bureaucracy, which even compared to the first term, I’m not sure a lot of these people were planning to be opponents to them. So how do you think about these opposing forces?

Like many people in D.C., and by that I don’t only mean, you know, official D.C., I mean D.C., the city where people live. I have spent the last couple of weeks having a lot of conversations and hearing about a lot of conversations with people who work in the federal government, who wanted to work in the federal government, who are connected in some way to the federal government, and who are really frightened and angry. And that includes overwhelmingly people who are civil servants, who have, you know, their own political views, but who were extremely prepared to serve this administration as they have served every other administration.

The Justice Department, for example, has a program that’s called DOJ Honors, that is aimed at kind of pulling in bright young law students and young lawyers to work in the department and kind of bring in talent. It’s persisted for many, many years. People will go into DOJ in that program, you know, whatever their political beliefs under any administration, because they want to work at the Justice Department. They want to be civil servants. That was untouched during the first Trump administration.

During the second Trump administration, I think it was within the first two weeks, they announced that they had rescinded all DOJ Honors acceptances. It’s not clear whether or not they will reopen the program. And the people who are affected by that, they’re Democrats, they’re Republicans, they’re independents. They are not people who were coming in with a particular political agenda. People who go in through DOJ Honors often work for the government for their entire careers across administrations. And so I think there is a real level of hurt that the administration is coming in and treating people in government and people who want to work for the government, people who were excited to go into government, even if their political beliefs were completely squarely opposed to this administration, because they really believe in the project of civil service, apolitical civil service, and serving their country.

And I think to be treated as enemies in this way is kind of radicalizing. And I think you can see this in public if you look at the Reddit, r/FedNews, which I think was previously just a subreddit where people posted, you know, hey, has anyone heard about, you know, this program, that program, whatever. A quite obscure subreddit that has become the center of the resistance now. Not one that I had previously frequented. And it started being a place where people post, what am I going to do? I have to lay off all these people. I have to rescind all of these offers because of the hiring freeze. I was going to start in this role and I moved across the country, and I was so excited. And suddenly it’s been taken away from me.

And I think that was kind of the first stage. And now what you see is a real anger, but also a resistance is kind of a loaded word at this point, but a desire to hold on and kind of not give up the ship through this. And I think that, you know, I am sure that if you are sympathetic to the president, that that may look to you as, you know, these people are hashtag resisting Donald Trump and want to take him down. I really don’t think that that’s what it is. I think that these were people who wanted to engage in the work of apolitical civil service and now feel like they have been stomped on because of nothing that they did and who now have been kind of turned against the administration because of that.

And I don’t mean that, you know, they’re going to try to undermine it from within or anything like that. I just mean that I think there is a willingness to play ball that is gone because of the way that they have been treated. And I think you see that in the bizarre sort of fork in the road emails that the Office of Personnel Management has sent out. So this is kind of clearly an Elon Musk effort. Fork in the road was the title of a subject line of an email that he sent out to Twitter employees when he took over, essentially offering them a buyout program.

And he sent the same email to federal employees saying, you know, we will give you this buyout option if you take what they call a deferred resignation, agree to resign and then leave your position on September 30th. And that part of the problem is that the terms of that agreement keep changing. It’s very unclear what people have actually agreed to. As you said earlier, Ezra, it has now been blocked by a court until there can be another court hearing. So the status is extremely unclear.

But there was a really striking post in the Fed News subreddit where someone essentially said, you know, look, I don’t think these people understand why we are engaged in the work that we’re doing. OPM put an FAQ on their website that said, you know, we encourage you to find work in the private sector. And, you know, this is the way to greater American prosperity is for people in the public sector to find more productive work in the private sector. And this person was saying, you know, look, if I wanted to be in the private sector, I could go to the private sector. I am working a very difficult job for not very much pay compared to what I could make if I left government.

And I’m doing it because I believe in this project of public service. I believe in the work that the U.S. government does and what it provides to the world and what it provides to the American people. And the approach that Musk and the Trump folks who are aligned with Musk are taking of this kind of, you know, we can just come in. These people are enemies. They’ll find other work elsewhere. Who cares? Is just completely orthogonal to the worldview that civil servants take. If you treat people as your enemy, they’re going to believe you. Exactly.

And I think that at a certain point, once you’ve been punched repeatedly, why would you approach the administration with goodwill after that, after the bully has sucked you in the stomach and taken your lunch? I was struck in the reporting on the judge freezing that federal worker deferred pay buyout effort. The reporting revealed something I didn’t know, which is that as they approached the deadline, only a few tens of thousands of federal employees had taken the offer. So the federal civilian workforce, it’s around 2.4 million people. They weren’t all eligible, but a lot of them were.

A few tens of thousands taking the buyout offer when the administration is putting this level of pressure on people to leave did not strike me as revealing a successful effort to get people to leave. The statistics I’ve seen are normally about 6% of federal employees leave the federal government in a year just because they’re retiring or they decided to move on to a different job. And the number who reportedly took the quote unquote buyout was only about 3% of federal employees.

I would point to, I’ll do a little log rolling for my own organization, Lawfare has been publishing and running podcasts with an amazing professor at the University of Minnesota, Nick Bednar, who studies the civil service and administrative law. I recorded a podcast with him where he said that he’d been speaking with a lot of civil servants and his impression was that the people who were taking that offer were largely people who were planning on retiring anyway, so that may be, you know, within that 6%.

And people who were disabled and were not able to comply with the executive order that federal workers return to in-person work full-time because they physically couldn’t. And so these are people who didn’t want to leave but felt forced out. And the other thing that Nick said is that, you know, people are very aware that this is not an offer that they can rely on. I think that, you know, if the government had done this in a more organized way, if it had come from the specific agencies rather than from OPM under the, you know, particular, the vast array of federal agencies here, if it had come through the normal channels, if the terms of the offer had been clear rather than continually changing, if it didn’t have material in the contract that said, by signing this, you’re giving up any rights to sue us if anything goes wrong, if it wasn’t obviously clear to anyone who has spent any time in government that the government was making a promise that it actually couldn’t carry out.

Because part of what this says is that you agree to resign, you’ll leave on September 30th, and we’re going to pay out your salary until then. The problem with that is that the government’s going to run out of funding in mid-March. The federal government actually can’t promise these civil servants that it will continue to pay them that amount because they don’t know where the funding is coming from. And so that runs into legal problems for exactly that same kind of power of the purse issue.

And so the sense that has, I think, been brewing among people who have received these emails is not only that there’s kind of a bullying and hectoring and dismissive and rude quality to the emails, but that they are being sent by someone who doesn’t understand how the government actually works, and that therefore there is absolutely no reason to think that the federal government will hold up their end of the bargain. And under those circumstances, why would you take that offer?

I want to let you do a little bit more log rolling for your organization. Happy to. So your colleague, Benjamin Wittes, had a piece about what is happening at the FBI. The Trump administration has really put the FBI in its crosshairs. It is pretty clearly trying to execute a purge. It is putting a hatchet man and Kash Patel in charge. And the FBI seems pretty unhappy about it. Tell me what is happening, to the best of your understanding, what the Trump administration has been trying to do at the FBI, and then what the sort of reaction is beginning to reveal itself as being.

So before I start, I want to say we’re recording this on the morning of February 7th. And if things change between now and when listeners hear this show, what I say may be out of date, because the story is moving very quickly. As you say, the Trump administration came in clearly with a posture of revenge toward the FBI and the Justice Department as a whole, really, right out of the gate when he pardoned over 1,500 rioters who had been prosecuted for their role in January 6th.

Since then, what we’ve seen is a spree of firings at the Justice Department, including of line prosecutors, so by which I mean, you know, not supervisors, not people with any power, just people who were tasked to, you know, carry out these prosecutions. This had been carried out largely by Acting Deputy Attorney General Emile Bovey, who was actually one of Trump’s lawyers in the many prosecutions against him. Now that Pam Bondi has been confirmed as Attorney General, we’ll see what happens next. An effort to target the many, many FBI employees who were involved in carrying out this massive investigation into the insurrection.

There was reporting that the Justice Department wanted to essentially carry out a purge of everyone who was involved in some way in these investigations. And like I said, that is an extraordinary number of people. One number I heard was potentially 6,000 people. Exactly.

And so I believe off the top of my head, I think the FBI has 38,000 employees. That’s agents, analysts, everyone. It has about, I think, 13,000 agents. So 6,000 people is a lot of people in a way that would potentially really damage the FBI’s ability to move forward as an organization just because, you know, if you fire everyone, this was really an all-hands situation. You know, people were pulled in who had all kinds of expertise. And so if you let all these people go, you know, what happens if you lose a bunch of your, you know, China counterintelligence experts? What happens if you lose a lot of your counterterror people?

Well, you also do get then 6,000 open positions you can replace with people loyal to you. The idea that what they want here is confidence is not obvious to me. That’s fair. I think the point that I’m trying to make is more that I think we should be very worried about what the long-term effects are on the security of the country and on the FBI’s ability to work as a national security and law enforcement organization if this happens.

But the thing is, it hasn’t happened so far. This seems to be kind of an effort from the acting FBI director, Brian Driscoll, who, as a sidebar, is in that role by accident because he was— I’m sorry, can you explain? This is—I didn’t really realize what had happened here. Can you explain what happened here? Because just like as a window into this is not all a masterfully executed and thought-through plan, it’s just an amazing little piece of it.

It’s somewhat deranged, and I’m not totally sure I completely understand. My best understanding is that—so, actually, we have to back up and note the most noteworthy thing here, which is that the FBI director resigned before Trump took office. Christopher Wray, who Trump had appointed after he fired Jim Comey, the FBI director has a 10-year term. Wray had not served out those 10 years. Wray resigned voluntarily ahead of time because, essentially, I think he realized that Trump was going to fire him and wanted to get out ahead of that.

So, it is not normal for the president to come in and not have a Senate-confirmed FBI director. Patel, obviously, has now even been confirmed. So, then we have this question of, okay, what are we going to do? Who are we going to put in charge? The Bureau had selected two agents to serve as the acting director and the acting deputy director. It seems like what happened is that somebody put in the wrong—the names reversed on the FBI website, and they decided that it would be more trouble than it was worth to switch the names. So, the agents were just going to take on the opposite role than the one that they had actually signed up for.

So, the person in charge currently is an agent named Brian Driscoll, who has a great mustache and facial hair. He does not look like what you imagine when you think FBI agent. I encourage everyone to Google him. He looks like he, like, walked out of a saloon. Yeah, I was going to say, it looks like he, like, plays in a ska band, maybe. People call him the Driz, apparently. That is actually what people call him. And the Driz has risen up as a hero within the Bureau because he reportedly has really resisted these efforts to push out these agents and has been standing up for them.

And as of the time that we’re recording, I think the Bureau is kind of locked in this struggle with the Justice Department where the department has not made any of these mass dismissals. And we’re kind of waiting to see what happens next because of the way the FBI leadership has really put its foot down and said no. I think there is a real question about how long they can hold out.

But it is really striking to me to see what is happening there, given the extent of the carnage other organizations like USAID, that the Bureau has been able to hold its own. I think there are a lot of complicated reasons for that. One of them might just be that, you know, you kind of need the security forces if you’re going to run a functioning government. I had thought that the Trump people didn’t care. Maybe they care more than I realized about having a actually skilled, functioning federal law enforcement agency in a way that they did not care about having a functional USAID.

Let me add a little bit of texture here. So, from the reporting, the Trump team basically demanded that FBI agents self-report what they did in relationship to the January 6th investigations and sort of turn in information on themselves, sort of designed to test how loyal they are. And there’s been mass refusal to do so. But I guess this brings up a question across the federal government right now. The understanding six months ago is that there are civil service protections and you have to fire people for cause. It’s actually very hard.

I would have told you a difficulty about managing things in the federal government is it is very, very, very, very, very, very cumbersome to fire people. It is so cumbersome, it’s actually a problem. The Trump people have come in and are firing all sorts of people, right? An FBI agent working on the January 6th investigation because their superior told them to work on this active investigation was not derelict in their duty. They weren’t not showing up to work.

So, firing them for that is in violation of all kinds of civil service protections. So, what is the recourse? All these people are getting fired. They seem to be leaving the building mostly. So, then what? What were all these protections for that all these other presidents were abiding by? Why did people think these were real if you can just do this? What are these lawsuits going to do?

The problem is that you actually have to bring the lawsuit after you’ve been fired. And that takes time. And then the lawsuit has to be litigated. And it takes time to put that together. It takes time to move it through the court. And so, what has held back other presidents is really the fact that, you know, you try to fire this person, you’re going to be grinding it out in court for a really long time.

This is going to take up a lot of resources for the administration in litigating out these cases. They may be doing it because they don’t care. They may be doing it because they want to argue that, you know, these legal restrictions are actually unconstitutional in some way. That would not surprise me at all if they made that argument. I think they are absolutely, you know, trying to set up some of those cases. And so, it’s really a question of, you know, previous administrations having been agreeing to be bound by the existing framework, if that makes sense.

Whereas the Trump people have decided that they simply don’t care and are going to smash through it. And the problem, as we’ve been discussing, is that that has a lot of follow-on effects. But let’s say the court cases come and you have a lot of these court cases succeed. What is the recourse? These people were fired. What, they get back pay? Do they get reinstated?

I believe that they can receive their job back. So, it is a question of, on the part of those people, do you actually really want to fight it out? All of these people are people who have families, they have kids in school, kids in college, they have, you know, they have to worry about having insurance, right? Maybe they’re having a baby, they have obligations, they have lives.

And so, the question of how you should respond, I think, is necessarily for everyone going to be this balance of how do I weigh these other obligations in my life to people I care about against do I want to try to fight it out? Do I want to try to do something else? I mean, there were reports with USAID of the agency calling back people who have been stationed overseas within days. They have kids in school, they have families, they have lives. And now everyone is just, their lives have been completely upended and they’re struggling to figure out what is next.

And it may well be that a significant number of these people say, you know, I’m just going to move on with my life, I don’t want to spend, you know, the next five years of my life litigating my firing. Is it worth it as a matter of principle to fight this out? It reminds me a little bit of the way that corporations fire people who are organizing on behalf of unions and know that they might lose a case at the NLRB later. But they’ve done the damage in the meantime, right? If they have to pay the cost to do a business and they have to pay a fine and maybe when the person gets their job back, so it goes.

But because they can fire people faster than the courts work, in terms of the immediate thing they were trying to do, which is break the back of the union or in this case, break the back of the civil service. They’re able to achieve a lot of their goals simply because of the mismatch in the rhythm. This is actually, when you talk about the separation of powers, one of the big, if not the big, advantages that the executive branch has. It’s the branch that executes. It’s the branch that does stuff. And so it has the ability to kind of create facts on the ground in a way that makes it very difficult to push back or if, you know, the judiciary pushes back, it takes time.

Now, I mentioned the sort of separation of powers issue because I think it’s important that, you know, we’ve been talking about the courts here. And there’s a good reason for that. There have been a lot of lawsuits. The courts are sort of the obvious venue where people are going to fight this out and the courts are the branch that has pushed back. There’s another branch here. And that’s Congress. Is there? Because I haven’t actually heard much from this mythical other branch lately. I mean, I know people have mentioned there’s a Congress to me, but, you know, are you sure? Are you sure?

If you read the Constitution, Article 1 is the legislative branch. And so I think— But did we ever form it? Right. So, look, this is the big problem. I would argue that currently we are in a constitutional crisis in the sense that there is one branch of government, the executive, that is not obeying the Constitution. And the question is, how do the other branches push back? The judiciary, it takes a lot of time. That is the advantage of courts and it is the disadvantage of courts.

Congress has the ability, theoretically, let’s say, let’s sort of set aside the actual people in this actual Congress and talk about Congress as an abstract entity. The theory of the separation of powers is that Congress should be able to step in here as one of the political branches and say, you are usurping our power. You have violated your oath, I would argue, certainly, to take care, to enforce the laws, and to preserve, protect, and defend the Constitution.

And we actually saw this work in the first Ukraine impeachment. Obviously, the removal did not succeed, and I’ll get to that in a minute. But I think what a lot of people forget is that the House of Representatives was extraordinarily successful in uncovering what it was that Donald Trump was doing in attempting to illegally withhold aid to Ukraine. By the way, which in the same way as the government is now attempting to illegally withhold money to any range of states, organizations, individuals.

And that kind of fact-finding and putting that out in the public record can be very successful. Congress could make this stop if it wanted to. The problem is that it doesn’t want to. And this gets to the phrase that has been tossed around a lot, at least in my neck of the woods, is this idea of the separation of parties rather than the separation of powers. Democrats are less likely to push back against executive overreach when a Democrat is in the White House. The same is true for Republicans.

I will say, not to let anyone off the hook, we saw this dynamic in the beginning of the Biden administration. There were a number of proposals on the table that would have significantly restrained presidential power that had been put forward in response to some of the abuses of the first Trump administration. Not very many of them move forward. And a lot of the reason for that, I would argue, is that Democrats in Congress didn’t want to go against a Democratic administration in restraining the executive.

Now, to be clear, I think the dereliction of constitutional duty on the part of Republicans in this Congress and in the previous Trump administration is above and beyond that. And you see that in all kinds of ways, the sort of level of silence or, you know, token protests only as the Trump administration just tramples all over Congress’s constitutional authority to decide how the executive should spend funds. Last night, Republicans voted to confirm Russ’s vote as the head of the Office of Management and Budget vote is really the kind of intellectual architect of a lot of the ideas we’ve been discussing in terms of this really aggressive vision of executive power.

The fact that Republicans voted to confirm someone who has explicitly said that the executive has the power to impound funds is an astonishing abdication of duty. And there was an incredible quote, actually, from Susan Collins that I saw just before I came in here, where she essentially said, you know, I’m voting to confirm Russ’s vote. And I hope that, you know, the litigation succeeds in showing that the executive does not have the ability to impound funds.

Susan Collins, as is often the case, is quite concerned. She’s very concerned. But the thing about that that’s astonishing is that she’s concerned. She has the power to stop it. And she’s saying, oh, actually, I hope that the courts can deal with that. And I think this is consistent with a broader kind of trend in how we think about the separation of power is where people have really come to think of Congress as weak and as the courts, as the kind of strong institution that can provide a check here. To the extent that even the chair of the Appropriations Committee is saying that.

And so I think that there are a lot of different components to the sort of crisis that we’re currently in. But the unwillingness of Congress as an institution to really step up and play its role in the constitutional order is one of the major issues that we are facing right now. I think there’s a lot in this. So two things. One is that I think it is a mistake that we still talk about Congress as an institution. Congress is two parties struggling over institutional power.

But there’s no unitary Congress. There’s only the Republicans and the Democrats acting across Congress, across the presidency, to some degree across the judiciary. There’s this term that I come across sometimes in other domains, which is evolutionary mismatch. So people talk about there being an evolutionary mismatch between our systems for regulating hunger and the hyper-processed food world, where salt and fat and sugar are artificially juiced, that we inhabit. An evolutionary mismatch between the way we pay attention and now what things like the Internet can offer in terms of super-stimulating attentional objects.

And there’s just fundamentally an evolutionary mismatch between our system of government as it was constructed and designed and the emergence of a highly polarized two political parties system. All this talk that we used to have of ambition-checking ambition, I mean, you go back to the Federalist Papers, and impeachment is the actual remedy for a lot of what we are discussing. The idea is that an executive will not do this because that executive would be impeached and removed from office by a Congress that is jealous of its own power and prerogatives before it is anything else.

It’s so quaint. It’s so quaint. And the reality, I mean, and you got at this reality too, is simply that Republicans in Congress either want Donald Trump to have this power or at least they don’t want to take this power away from him and face the consequences of a primary challenge by Elon Musk or, you know, Donald Trump raising up somebody against them. But we do, at the center of our system, is now a mismatch, a deformity, where the system was supposed to have an answer to this.

That answer was not primarily the courts. The answer is primarily Congress, and we know it doesn’t work, and we know it hasn’t worked for a very long time. We know the impeachment power isn’t really a real power anymore because in a polarized political system, you’re not going to get that level of support that impeachment requires. You know, passing veto-proof bills is barely a power anymore. And we just don’t have an answer to it.

And so, like, that to me, among the loopholes that Trump is exploiting or the realities of the era that Trump is exploiting, is that if this were 1970 and polarization was really low, we might be looking at something very different. But it’s not 1970. We have modern political parties in a now antique political system put the two together and the system breaks. And we’re just in the breakage right now, and Donald Trump is seeing how much he can break it.

Americans often think of ourselves as exceptional. There’s a whole term for it, American exceptionalism, as sort of, you know, outside of history, right? But we’re not. And because of that, I think it’s useful to compare what’s happening now in the United States to other instances of democratic backsliding around the world. One comparison you often see is with Hungary under Prime Minister Viktor Orban. He’s been very, very effective in dismantling checks and turning Hungary from a democracy into functionally an autocracy.

An important area where that comparison, I think, actually breaks down and obscures more than it reveals is how Orban was able to do that. The particulars of Hungary’s governmental structure were such that he was able to sort of sweep into power the second time around with overwhelming majority and immediately amend the Hungarian constitution, which was very easy to do because of the way that the system had been set up to, you know, give himself all kinds of powers and really cement his party’s hold on power.

In the U.S., as you say, it’s the opposite problem. The problem is that it’s too hard to amend the constitution. And I think that there’s an argument made by, among other people, Stephen Levitsky and Daniel Ziblatt, that part of the issue here is just the U.S. was kind of first out of the gate when it comes to written constitutions. We were early on. We didn’t have the opportunity to learn from everybody else. And because of the way in which our constitution was drafted, it is really, really hard to amend.

And that means that there is a fundamental inflexibility to our political system in a way that is not true in many other places of the world. There are all kinds of examples of what you could do. You could have multi-member districts in the House. You could have proportional representation. You could turn the Senate into kind of an advisory body. You could abolish the Senate altogether. My favorite ridiculous proposal is an incredible student note in the Harvard Law Review, I believe, that proposes not admitting D.C. as a state, but admitting every neighborhood in D.C. as a state, and then using that to amend the constitution and change the composition of the Senate.

So, you know, dream big. But there are all kinds of fixes that you can imagine. The problem is that because we don’t actually have the political ability to amend the constitution in that way, we can’t make them. And so the question is, how long can we stay in this brittle system before something breaks? Or even if something breaks, and whatever that looks like, what happens then?

That raises the question of not a branch of government, but the public. And we’ve been talking about all this as if it is a competition that will only play out among institutional actors. But public opinion does matter. It matters to the president. It matters to Congress. It matters to the courts, even, in a way. Public protest matters. But from your perspective, how exactly does it matter?

We’re in the very early stages right now, and so I think it is a little difficult to tell. There was a lot of writing after Trump’s election in the first days of the new administration saying, you know, the resistance is over. No one’s in the streets. No one’s doing the women’s march. No one’s, you know, wearing their pussy hats or engaging in sort of ostentatious acts of defiance. I thought that that was premature. And I think it looks particularly premature now that we are seeing real public pushback. Like I said, it’s a little hard to say.

A lot of this is a kind of a, let’s call it a vibes-based check, and I would really love to see some numbers. But there were huge protests in front of the Treasury Department in D.C. this week. There were protests in front of the Capitol. There were protests in front of the Labor Department. The Doge folks were supposed to have a meeting at the Labor Department in person one afternoon this week. It was moved to a Zoom meeting, reportedly, possibly because there was a huge protest organized by a bunch of unions standing out front.

That really matters. I believe I saw a statement from Lisa Murkowski saying that she’s been getting 40 times the amount of calls to her office that she usually receives on any given day. We now have Brian Schatz saying that he is going to put a hold on all State Department nominees until USAID is put back. These are signs of a party that is responding to genuine outrage among the ranks of its supporters and is trying to take some role in stepping up.

Now, because the party is a minority in both chambers, there are real limitations to what it can do. But I do think it certainly shows that the Democratic Party is responsive. Yes, we’ve begun to see protest activity. I do think the fury among Democrats is stiffening the spine of Democrats who are in Congress. And then you imagine a world where Trump just tells the courts to shove it. I find myself thinking about the judicial reform protests that functionally paralyzed Israel from a few years ago.

I mean, now we think of something different when we’re thinking about Israel and its political issues. But prior to October 7th, Netanyahu had tried to defang the Supreme Court. And you had tens and hundreds of thousands of Israelis out in the streets night after night after night for months to save what they believe to be their democracy. And it was not a resolved issue. And then October 7th changed what politics in Israel were about. But it did stop what Netanyahu was doing.

And so there’s a question of sort of protest activity. And there’s a question of like actual civic uprising, not violent uprising, but a genuine unwillingness, you know, in what would become sort of a more coup scenario to say absolutely not. And that seems to matter. I mean, when you say, you know, will Republicans be responsive or responsive to what? There’s a difference between responding to some phone calls and responding to something happening outside the Treasury Department and responding to a huge mass uprising because the system of government is being fundamentally altered.

And I just, you know, the resistance became a little cringe. And that’s fine. The aesthetics of resistance from 2017 don’t need to be what it looks like. I think, you know what? In 2025. Cringe is good. Well, cringe is always something that was popular. Yeah.

And if cringe means believing in things in a corny way, you know what? Fine. I’ll be cringe. I think that’s fine, too. I always say that whenever somebody calls something cringe, you can probably assume the cringe thing is popular. Cringe is only things that are so popular. They now have an elite backlash of tastemakers. Lin-Manuel Miranda and Hamilton can only in any way be cringe because it’s an absolute cultural phenomenon.

But the point is that I do think you will see escalating activity as Trump escalates or if he escalates. And it might look different. It might have a different flavor in some ways now than it did then. It might not be pussy hats. It might be whatever it might be. But I don’t think it’s meaningless. I don’t think we’re all just bystanders in this. The system does respond to pressure, as do the courts.

And a world in which Trump’s assertions of power are treated as something like settled fact, they’re greeted with resignation, exhaustion, overwhelm, is very different than a world where they’re greeted with fury, with a loud and an echoing no. Trump is very good at presenting an image of himself as a figure of overwhelming force. I think that he really honed that on The Apprentice, and I think Americans are primed to think of him in that way.

I think that in his current iteration, he has really tapped into a desire to kind of see someone as the manifestation of, you know, the people. The voice of the people, the figure, like Hegel says, right, you know, the figure of history astride on the horse. This kind of, like, yes, I would argue fascist image of the unstoppable leader carried forward by this popular energy. And that image is very appealing.

I think we’ve seen that it has real cultural appeal, not only to Trump supporters, but also to a lot of people in politics, in the media, in sort of various elite institutions of American life, who seemingly are really swayed by that. And you see that in the kind of desire to go and interview people at diners, right? Like, this really persistent idea that Trump speaks to something deep in the American psyche that must be revered.

And the fact is, that’s not what he is. And I’m telling you things that you’ve written yourself, but he is a weak president. He won his first election. He did not win the popular vote. He lost the popular vote a second time around. The third time around, he won the plurality of the vote in a year that was strongly anti-incumbent across the globe. He squeaked by, and his party fell well short of where it could have been in the House of Representatives.

That is a mark of weakness. He won the popular vote. I always think this is telling. By less in 2024 than Hillary Clinton won it in 2016. And so, in terms of the sort of post-election sense, there was an extraordinary groundswell of political change in the hearts of this country. But he won the votes by less than Hillary Clinton did in 2016. And I don’t think we all thought Hillary Clinton was the harbinger of all politics to come in 2016.

Exactly. And there’s also, you know, we’re still waiting for the full sort of voter file data to come out. But the initial information I’ve seen seems to indicate that he won the popular vote by a plurality, in significant part because a lot of people who had voted for Joe Biden stayed home. There was a real instinctive desire on the part of a lot of powerful people to kind of yield to this image of Trump as the man on the horse who is the manifestation of history. And that isn’t what he is.

And if people act like he is that, they give up the opportunity to prevent him from becoming it. And I think that this is why that initial silence on the part of opposition figures and the initial desire on the part of, you know, various companies to kind of roll over and show their belly or, you know, run to Trump and kiss the ring and show their acquiescence to his authority was really damaging not only for the people who those actions immediately affected, but to the kind of civic fabric of the country, in the sense that if people see that other people and other people in positions of power who are more powerful than them are already giving up, I think it is easier to say, oh, well, it’s all over. What is there to do?

And the counterpoint is that when you see someone stand up, I think that that can be really galvanizing. Maybe that is cringe. I think it, you know what, it is, yes, I’ll say it. It is, it is cringe. So far as cringe is an expression of idealism and real belief in something, as opposed to the kind of nihilism, you know, LOL, nothing matters, that I think Trump is really trying to grind into the fabric of American civil society.

And I think this is why things like Brian Driscoll at the head of the FBI has had such a galvanizing cultural effect. There is a New York Times story about memes being sent around inside the bureau showing him as an orthodox saint or, you know, a challenge coin with him on it. We saw also the Episcopal Bishop who sort of responded to Trump at the sermon at the National Cathedral saying, you know, please have grace, hold off in your cruelty, that seeing people stand up and speak up for their values and do the right thing matters not only for the individual people that those folks might be protecting, but it matters because it gives other people courage.

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But we can fix it and help our kids. The first step is knowing there’s a problem. Learn more at WakeUpCallNJ.com. So that conversation was recorded on Friday, February 7th. Everything keeps moving at lightning speed. Then over the weekend, we had J.D. Vance with the aforementioned tweet beginning to lay the groundwork. He was then backed up by others on the American right, like Senator Mike Lee. For it certainly seemed the administration to begin defying court orders openly, to say that the judiciary’s response here is itself illegitimate, is itself the threat to the constitutional structure.

So I asked Quinta to come back on the show. We spoke again on Monday, February 10th to give us her sense of how things had evolved and where her level of alarm now rested. So over the weekend, Vice President J.D. Vance tweeted, quote, judges aren’t allowed to control the executive’s legitimate power. That seemed like an escalation here. What did you make of it?

I think it is an escalation. Previously, what we’ve seen is an executive branch that is engaged, I would argue, in a power grab, functionally, against the legislative branch, which is so far succeeding insofar as congressional Republicans are completely unwilling to lift a finger to do anything to stop it. And given that they’re in the majority in both chambers, there’s really a limit to what congressional Democrats can do.

And we’ve seen that power grab run into a brick wall, really, in the courts. There have been—I can’t even keep track of how many court cases, how many injunctions, how many temporary restraining orders have been issued at this point. But there are a lot. And so the Vance tweet is sort of hinting at this other aspect of this power grab, that the executive might try to, I would argue, usurp power not only from the legislative branch, but from the judiciary as well, by kind of saying, you can’t make me, essentially. I’m the executive, and I get to do what I want.

Now, I will say J.D. Vance is a smart man. One, there are some—there’s some sneakiness in how he’s worded that particular tweet. What struck you as sneaky here? Yeah, absolutely. So when he says—let me read you the full tweet, because I think the examples he uses are actually important. So he says he ends by saying that judges aren’t allowed to control the executive’s legitimate power. The two examples that he leads in with are, if a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.

So what Vance says is, judges aren’t allowed to control the executive’s legitimate power. And framing it that way, I think, leaves open the question of what is legitimate power and who determines what is legitimate power, right? He’s not quite saying this, but I think the implication is, well, is it the court that determines whether something is a legitimate use of executive power? Typically, we would say that is actually the job of the court. That is the whole point of having judicial review.

Now, it’s a little bit more complicated than that, but at the high level, that’s the whole check that the judicial branch provides. Vance, I think, is not quite saying but hinting, well, maybe if I, the executive branch, decide that a court has intruded on my legitimate power, the constitutionally appropriate thing for me to do would just be to ignore the court. And that, I think, is what pretty much everybody would recognize as a constitutional crisis.

So one interpretation here, I think, is that what Vance is doing is threatening the court. He’s trying to threaten them to push their ultimate rulings, thinking here of the Supreme Court, into at least some alignment with the powers the Trump administration is claiming. Because I think a way of reading this is he’s saying, think twice about ruling against us. Because if you rule against us too much, we will simply say your rulings are illegitimate, and then we’re going to find out if you can enforce them, particularly at a moment when we control Congress, and Congress isn’t going to back you up.

And so it’s a shot at Chief Justice John Roberts and some of the others on the court. Do you really want to cause a constitutional crisis here, or do you want to give us 40 or 50 or 75 percent of what we’re asking for? That seems to me to be right. I mean, I think there is a big question of whether or not it will backfire in the sense that the justices will not take particularly kindly to being threatened. And threatened not only by the vice president, but by someone who is very much within the same kind of elite legal circles that the justices themselves frequent, right? Vance very famously went to Yale Law School.

He’s kind of within that milieu. And so I think there’s also a kind of like intra-legal elite struggle going on here. It certainly seems to me as if he is trying to fire a warning shot. What is less clear is how urgent this threat is. And what I mean by that is that I think this is sort of something that you put on the table, and it’s quite hard to take back. It will be hanging over the court. The question in my mind is how they decide to play it, you know, because you could say on the one hand, they could respond by essentially saying, how dare you? We’re going to do what we’re going to do, and you can’t stop us, you know, kind of pushing back.

On the other hand, you know, as, you know, everyone learns, the court does not have its own enforcement apparatus. It’s dependent on the executive kind of agreeing to follow what it says. And that is really the basis of the sort of agreement that binds together the constitutional structure. And so you could imagine a John Roberts who feels that his hand has really been forced trying to, as you say, kind of thread the needle here and create a situation where he seems to be pushing back, but not quite so much that he feels that it will engender disobedience that could harm the long-term legitimacy of the court.

So even as we are speaking, this situation is changing. There was just a federal judge who ruled that the Trump administration is, in fact, violating his order on the blanket spending freeze, that they’ve been withholding funds from the NIH and the IRA. So the entire OMB spending freeze isn’t in effect, but it does seem that they are being inconsistent in what they’re paying. And so in that way, maybe they’re already defying these orders. And I guess it really then creates this question, what power, before things go to the Supreme Court, do these judges have?

Is it literally just that the administration has to decide to listen to them? Or I’ve heard people talk about holding some of the figures in the administration in contempt. Is there really nothing here? Or as this escalates, before it goes to the Supreme Court, what do you expect the recourses that get tried to be? Courts do have a really, really expansive contempt power. And I think that is worth keeping in mind. They can institute fines. Sometimes they can institute really extreme fines. They can require people to be held in jail. There are a lot of different mechanisms.

I think that courts are probably going to be reluctant to turn to those mechanisms precisely because they are so extreme. The normal way that something like this would be hashed out is, you know, you have a court order. The plaintiff comes back and says, hey, the defendant is not abiding by the terms of the court order. And what we’ve seen now is I haven’t had a chance to take a close look, but it looks like this court has said, okay, guys, you know, you really got to comply now.

And then it will be hashed out in the course of litigation over the course of going back and forth, perhaps appealing up and so on and so forth. And so it will take a while before we reach the stage of a real genuine crisis. You know, it goes up to the Supreme Court. The Supreme Court tells the administration what to do. And the administration says, no, I don’t want to.

I mean, even in the example of the instance that J.D. Vance seemed to be responding to has to do with a question of an order blocking the Treasury Department from sharing access to its sensitive systems. And despite Vance’s tweet, the Justice Department actually filed a motion saying, hey, can you loosen up this order a little to the court, asking for Treasury Secretary Scott Bessent to have access to the systems as well, or at least to clarify that he does have access.

That’s kind of, I mean, this is a low bar. That is what you would want to see, that sort of hashing this out in the course of litigation, rather than the executive just saying, go ahead, make me. There does seem to be differences across the administration in how this is being responded to. And there are the parts that seem to be responding in a somewhat normal way, as if the machinery of government is just somebody pushes a button and continues to operate. And then there’s this thing happening among, I would call it the conservative legal politician elite class on Twitter.

Vance is one of those, right? He’s, you know, trained at Yale Law. But Mike Lee, who’s a senator from Utah, who is, I think, one of the leading legal figures on the elected right, he wrote on X in response to the same ruling about the Treasury payment systems. Quote, this has the feel of a coup, not a military coup, but a judicial one. So at the same time that the administration largely seems to be complying with rulings, it does seem at its highest levels, there is an effort to build an ideological structure, argument, begin sending signals to others in the movement that they should prepare here, that they should understand this, treat this, what the judiciary is doing, as itself illegitimate.

And get ready for this fight, which may not really start today. I think what you see happening here is early information and coordination movement to get ready for something like this a little bit down the road. My one quibble with that is that I’m not sure I would say it is the sort of conservative legal movement that is spinning itself into that. I would say, you know, far right radical, because there is a more traditionally conservative legal movement that is very much not on board with this, in part because the conservative legal movement has been focused on, well, law.

You know, putting judges in these positions and judges tend to like it when courts are powerful. I do agree with you that it seems like there is this sort of frenzy being spun up on Twitter among the sort of intellectuals in this corner, egging themselves into this position of real defiance. And yet, as you say, when you actually look at the stuff that the administration has filed in court, it is way less gung-ho on that motion that I mentioned to allow Secretary Besson access to the treasury systems, rather to clarify whether he does have access.

The Justice Department actually notably included multiple paragraphs saying, we are complying with your order. We would just like you to change it. And that is a real distinction from how Vance is talking. And I think that points to the fact that, you know, these are big, complicated organizations. There are a lot of points of friction along the way. This isn’t a situation where Vance or Trump or Musk can kind of wave their hand and say, go ahead, defy a court order.

You need a Justice Department attorney in the courtroom or filing those briefs to be willing to stand there and get chewed out by the judge and potentially lose their bar card over these things. And so, while I don’t think that that will, you know, save America in the grand scheme of things, I do think that it is a point of friction or of resistance, not in the hashtag resistance sense, but just in the sense of making it more difficult to push through that is really worth keeping an eye on here.

I guess we’re really about to find out if Twitter is real life for this particular administration. I think, unfortunately, the answer, we already know the answer is yes. When we started talking the other day, we were joking a little bit about, you know, the threat level. And I think we said it was orange. After this weekend, where is it for you? Maybe like a slightly redder orange, like a blood orange color, you know. I do think that one of the things that I was worried about after the first few weeks of this administration was Elon Musk and his sense of invulnerability and his willingness to blow through the law, helping talk the administration into a position where it would defy a core order.

That was not something that we saw the last time around, and I think Musk is kind of the new factor here. And it does seem like we may be headed in that direction. Now, again, because of those filings that were much more careful in how they framed things, I think I am less worried that this is going to happen imminently. But I am concerned that, as you say, the sort of intellectual framework for such a move is beginning to be built.

And always our final question, what are three books you would recommend to the audience? I want to start by recommending a book by a friend of mine, actually. Her name is Joy Neumeier, and the book is called A Survivor’s Education. I’m biased, but it’s a really astonishing book about her experience as a graduate student in history at Berkeley, surviving an abusive relationship, and going through the Title IX process. And the reason that I mention it here is that I think what Joy does in a really astonishing way is weave together the details of her experience as somebody who suffered from this abuse, as somebody who was testifying to her own experience, with what it means to do the work of history when the archive is uncertain as to what it’s telling you, and also what it means to live right now in this moment under administration that is not only aggressively contemptuous of women, but I think it is a really useful text that brings together a lot of things that are worth thinking about seriously, as well as the kind of failures of the liberal establishments of universities as well.

And how do you kind of hold on to the existence of fact, the existence of the record, the existence of truth, even when institutions that are ostensibly meant to back you against these sort of figures of aggressive unreality are no longer supporting you and are flawed in their design. So that’s one. The second book I would recommend is by the French philosopher Albert Camus, The Rebel. I think a lot of people are probably familiar with Camus’ book, The Stranger, so he’s a sort of figure of absurdist philosophy. The Rebel is a book where he really tries to put into practice what his philosophy means. The argument that he’s making is essentially that the nature of human existence is to be searching for meaning in a universe that refuses to give you any.

And that we have to kind of walk on that tightrope of wanting things to have meaning and knowing that we won’t receive that from any kind of external force. And it’s something that I have come back to again and again. The last book that I would recommend is by the historian David Blight, and it’s called Race and Reunion. And it’s a history of how immediately after the Civil War and in the sort of subsequent years, Americans worked through their memories of the war individually and kind of collectively as a polity.

The reason that I’m thinking about it right now and I’ve returned to it in recent days is because it’s really about how Americans struggled to build a multiracial democracy in the years after the Civil War and Reconstruction, and then how that fell apart during the redemption years, and how the memory of the war was rewritten and overridden by white Americans who essentially tried to write black Americans out of that story. And again, I think in this moment where we are thinking and talking a lot about what it means to be American, what the American story means, I’ve been thinking about this more immediately in context of January 6th, that keeping in mind how these sort of dynamics of memory and politics have worked out in the past is a useful reminder that this is not the first time that we’ve gone through this.

It doesn’t mean that it’ll turn out particularly well, but I do think that Blight does a really astonishing job in kind of setting out how that worked in the past in a way that, at least for me, has been comforting is not the right word, perhaps, but there’s something that we can draw on there in knowing that this is not the first time that this has happened. Quinta Jurassic, thank you very much. Thanks for having me.

This episode of The Ezra Klein Show is produced by Roland Hu, fact-checking by Michelle Harris with Kate Sinclair, mixing by Isaac Jones with Avim Shapiro and Amin Sahota. Our supervising editor is Claire Gordon. The show’s production team also includes Elias Isquith, Christian Lynn and Jack McCordick. Original music by Pat McCusker, audience strategy by Christina Simulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie Rose Strasser.

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