The FRONTLINE Interviews
Andrew Weissmann
Former Federal Prosecutor
Andrew Weissmann served as a lead prosecutor on special counsel Robert Mueller's team investigating Russian interference in the 2016 United States election. He is the author of Where Law Ends: Inside the Mueller Investigation and co-author, with Melissa Murray, of The Trump Indictments: The Historic Charging Documents With Commentary. He currently teaches law at New York University and co-hosts the MSNBC podcast Main Justice.
The following interview was conducted by the Kirk Documentary Group's Mike Wiser for FRONTLINE on April 4, 2025. It has been annotated and edited for accuracy and clarity as part of an editorial and legal review. See a more complete description of our process here.
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Trump’s Speech at the DOJ
One place where we’re thinking about starting, because it is such a dramatic moment, is when the president goes to the Department of Justice to speak in the Great Hall.Help me understand that moment from your perspective, what the president did and what you saw in what he was doing.
I think it’s important to think about the fact that a president going to the Department of Justice, while it’s unusual, it’s nothing that in and of itself is something that should be alarming or people thinking, gee, isn’t that inappropriate?The concern that you would have in any administration when you have the president of the United States going to the Department of Justice is that, since Watergate, there has been a norm that the Department of Justice is treated differently, that it is not completely under the thumb of the White House, that policies can be dictated by the White House.If you want to go more after immigration or drug dealing and less after white-collar crime, that’s a decision you can make.
But deciding who gets prosecuted and who doesn’t get prosecuted is something that post-Watergate, the White House has left, under Republican and Democratic administrations, to the Department of Justice and to the attorney general.
And so if the president goes to the Department of Justice to make a speech, the concern would be—for instance, if you were the White House counsel—would be to make sure that you make clear that you’re not violating that norm, that you’re there to talk about policy or to give a speech commending those people, or, as [former President] Barack Obama did when he had all of his attorney generals [sic] show up at the White House to give them sort of an introductory talk, he said, “I want to be clear with you that although I nominated you, you do not work for me.You are independent of me.”
And so that would be the context that you would think in a normal world, Republican or Democratic, that you would be focused on.And so here, this was everything but that.This was sending the message that it is part of the executive branch and was going to be dictated to, and in fact, we’ve seen that in a whole course of steps that the White House has taken and Donald Trump specifically has taken with respect to the Department of Justice, where he has not left decisions to the independent judgment of the Department of Justice.
And so a lot of the speech, as many people have said, focused on sort of like a stump speech that he would give on a campaign, but it was now being given within the heart of the Justice Department, so the message to me at least was this is not business as usual post-Watergate; this is going to be the Department of Justice that is basically the right hand of the White House, which from a democratic institution’s point of view is really horrendous.1
If you were thinking about the attack on the rule of law, having a Justice Department that is not making decisions based on the political party or whether you’re an opponent or a supporter of the president is absolutely central.It is in autocratic regimes that you see that other type of behavior that we’re seeing going on now.
… The other thing about it was that it seemed almost personal for him.He had been prosecuted by that department not that many months before.He talked about weaponization of the Justice Department.2What did you make of his description of the department, of whether it was a personal thing for him?
2
The White House: ENDING THE WEAPONIZATION OF THE FEDERAL GOVERNMENT
I think that’s a fair assessment.I’m not in his head.I don’t know to what extent this was sort of a victory lap.The term “weaponization” is one that gets bandied about because you have Donald Trump saying that was what was going on in the [former President Joe] Biden administration; you have people like me and others saying that’s what we’re seeing now.And I think one way that I think it’s useful for people to think about this is that facts matter, and to look beyond sort of labels and verbs and adjectives and say, “Well, when you’re looking at this description of whether there is weaponization, what are the facts to support that?”
Do you see facts to support the steps that were taken by the Biden administration in bringing their cases that warrant what they did?Was there precedent for bringing these types of cases?For instance, all of the Jan.6 cases were brought, so the idea that the president somehow would be immune doesn’t seem like an example of weaponization; it seems to me as an example of treating him like everyone else.In fact, the argument is that he is more culpable and so should clearly have been in that group of people.
And so now when he’s saying, “I don’t want weaponization,” is that something that we’re going to really see carried out?It seems to me it’s sort of the opposite, and an example of that would be the Eric Adams case in New York, the mayor here, because when you’re looking at the independence of the department, one of the things you look at is who is being prosecuted and who isn’t being prosecuted.There’s a series of pardons that have been given out to people who have done horrendous things, from violent crime to serious fraud, and now you have the government moving to dismiss a case against the sitting mayor of the city of New York, and they said that the reason is that they want him to be better able to carry out the federal immigration policies of this president.And the idea that you would use the criminal justice system as leverage for that, which is essentially what the judge found was happening here, is an example of, to my mind, the misuse of the criminal justice system.
… As he’s calling out this idea of weaponization, the other thing he is doing is naming individual people.He names Norm Eisen.3He names you individually as “scum.” What was your reaction when you heard him say that in the Great Hall?
So I still remember the very first time the president tweeted about me.It was during the [special counsel Robert] Mueller investigation.And I can honestly tell you that my first reaction—I think I have a very healthy ego—is, in spite of that, I was thinking to myself, doesn’t the leader of the free world have something more important to be focused on than me?So it was certainly surprising, and I think that the individual attacks need to be viewed in the context of “What is the goal?What is the purpose of that?” And sort of leaving me aside—obviously I speak a lot on MSNBC, and I have this podcast—but to take Norm Eisen or to take the law firms that have been targeted, that is really insidious.That is saying that, “I’m going to target you if you take positions and bring cases in front of judges.”
In order to have a functioning judiciary, you need to have a functioning bar.You need to have lawyers who don’t feel threatened by bringing good-faith litigation—and by the way, that’s true on both sides.That’s true whether it’s a conservative cause, and those people should be able to go to court and bring cases in good faith.That’s what the courts are for.
And it, to me, it’s sort of the height of hypocrisy that during the Biden administration, the conservatives were saying that the Biden administration was trying to browbeat the private sector to adhere to the messages that they wanted to send.A specific example of that was saying that tech companies and social media companies should not be disseminating disinformation about COVID, and a lawsuit was brought saying that the Biden administration was sort of browbeating these companies to adhere to their—what they wanted to hear.And the lower court had said this was actually a huge violation of the First Amendment.Ultimately it went to the Supreme Court, and the Supreme Court said the administration should not do that, but they didn’t think factually that was what was happening.
Now the shoe is on the other foot, and that is exactly what we’re seeing: private companies being browbeat into submission simply because they are taking on, as is their right, causes that the administration may not be in agreement with, and that is what the private sector is entitled to do.But to me it really is an attack on the judiciary.
Thank you.That is one of the things I want to talk to you about.But I just want to say in the moment, what I think you are saying is that when you hear your name, you don’t think that it is about you or Norm Eisen, necessarily.It’s a message that he’s delivering?
Obviously it’s about—it’s a message where there are examples that are being given, but it’s really important to understand why.What is the goal here?What is the reason?To take Norm Eisen, he is actively litigating and winning a series of cases, but even if he were losing, as long as the cases are brought in good faith, that is what the courts are for.And I really want to make sure people understand that’s true if he was bringing conservative causes to the courts and was winning or losing.That is, you need that healthy system.You need lawyers who are skilled advocates who are willing to do that.
I attended much of the New York criminal case where the state had the criminal case against Donald Trump, and one of the things that was wonderful to see was not just the judges in action but also the prosecutors and the defense were really good on both sides.And that’s what you want to see in our system, and you don’t want to be denigrating one side or the other for taking on a particular point of view.A lot of people have talked about—I’ve talked about John Adams.Before he became president, he represented a number of British soldiers.He actually got a number of them off.I think two were convicted of misdemeanors.4
4
National Park Service: Boston Massacre Trial
And if you can imagine a cause that was not exactly popular was British soldiers in the 18th century.And we have come far in the wrong direction in going from a president who thought that that was an important thing to do for the rule of law to denigrating the sort of current-day John Adamses who are representing causes and people that you might disagree with and not understanding the principle involved and just being transactional about it.
… You said it’s sort of a political speech, but he is specifically calling out lawyers for a reason.
Yeah.But I think—as I said, I think it’s really important to remember that for a functioning—there are three parts of government.You have the executive; you have the congressional; and you have the judiciary.In order for the courts to work, people have to be able to bring cases and not be deterred.If you have the Paul Weisses of the world, who are entitled to be partisan, representing either paying or pro bono clients that want to take on the administration in various ways, so long as it’s in good faith, that is something that is part of our legal system.If that is something where those people are terrorized as happened in the [Sen.] Joseph McCarthy era, you are not going to have a functioning judiciary.
Trump’s Executive Orders
If we go back to the first day of the administration, when he signs a number of executive actions and executive orders, which a lot of presidents do, some are on the weaponization of the Justice Department and birthright citizenship.There are dozens.Did you sense something different about this presidency, about his second term?
I don’t know if I would say it was so much the first day as looking at where we are now.I sort of divide it into two buckets.There’s a whole panoply of things that have happened that are at the very least legally questionable.A lot of it hasn’t arrived yet in the Supreme Court, but there are dozens of lower courts that have said it’s not just legally questionable, it violates the Constitution.
That’s sort of one bucket, the things that may be unconstitutional, including, you mentioned, birthright citizenship, which might be the classic example of something that—to quote a judge who was nominated by [former President] Ronald Reagan, he said, “Where are the lawyers who looked at this and thought this was OK to do?” That falls into the sort of, are they taking steps where they’re just disregarding congressional statutes and the Constitution.
The second bucket is things that are legal but, in my view, highly problematic.So the pardon power: There is no question that the president has the power to pardon people, but the idea of—just to quote the vice president and the attorney general, before it happened, they said, “Well, we will be doing triage to make sure that we’re not just pardoning everyone, including people who had committed truly violent acts against law enforcement officers.” Well, that’s not what happened.
And so who can actually say, “Oh, it’s a good thing to pardon violent criminals who had due process and had their day in court”?And you could add onto that a whole series of corrupt politicians, fraudsters who are getting pardoned, which is to me, is lawful but completely undermines the rule of law.
Let me ask you about that, because that is the first day, when he issues the pardons and commutations for pretty much everybody who was involved in Jan.6.As you say, that is the power that he has, but what is the message that is sent when he does that?
So one of the messages goes back to something we talked about, which is that he issued pardons with respect to the people who had previously been convicted.He also, with people who were pending trial, directed his Department of Justice to dismiss the cases, to go to court and move to dismiss.And going back to this issue of his speech at the Department of Justice, that direction to the Department of Justice is a clear signal that he is in control of the Department of Justice.There is no post-Watergate norm that he is going to leave to the department these decisions of who to prosecute, so you won’t have a sense that he is, “Prosecute my enemies, and don’t prosecute my friends.” So that to me was one clear signal of the big picture.
And then the small picture is this attack.We all saw with our own eyes what happened on Jan.6.At the time, it was appalling to the vast, vast majority of the United States, and to me, this idea that you could somehow whitewash that into—as if somehow these pardons make it go away.I agree with the district judges who were dealing with all of this saying, “Nothing about those pardons changes the facts of what happened.” But I think that’s the tension, is that there is this effort to sort of rewrite and sort of have people just not see what is happening before their eyes and say, “I will tell you what the reality is.”
And I just wonder if it’s a message going forward about who his supporters are or a message to people who might not be his supporters.
Well, that’s the most dangerous in terms of this small picture, the idea that these people are now in a category of people who can recidivate and won’t have to worry about being prosecuted again.And there are lots of stories, what’s commonplace is that people—not everybody who has had a brush with the law learns their lesson and continues to commit crimes, and we have examples of that.And obviously, when you take away that deterrent value and you actually are saying, “No, no, no.If you’re committing crimes that I approve of,” are you giving a green light to that kind of behavior?
And that’s the kind of thing—we can sit here and try and put a rational screen on that, but this is not actually sort of debatable for anybody who is sort of grounded in reality.
The Unitary Executive Theory
Before Donald Trump ran for office even, there was discussion about presidential power and unitary executive theory, what the president could do, and one of the things that some of his supporters and lawyers have pointed to was the Supreme Court decision right before he came in in his second term of Trump v.the United States.5How do you see that?Because they see that as a real endorsement of this view of presidential power.
5
Oyez: Trump v. United States
Yeah.So I think that’s a fair reading of that decision.I strenuously disagree with the decision.I actually think that the dissents and the concurrence by [Supreme Court Justice] Amy Coney Barrett are much better reasoned, and I have a private theory that Amy Coney Barrett was trying to sort of muster the fifth vote for—because I think her concurrence is something that is very, very rational about—there is no question that there is an area in the Constitution where the president is given conclusive and exclusive power.The pardon power is a good example of that.
But as she said, that’s a narrow area.But that’s not what the majority signed on for.They have a more expansive view.But while I think that decision is pernicious, I think that it’s important to see what the president is doing here, because that deals with presidential immunity for criminal prosecution.What we’re dealing with here, in my view, is not a unitary executive power.That’s the idea that the executive is in charge of all components of the executive branch.Many people listening to this might think that’s not such a crazy idea.
Even though there is a norm that the Department of Justice should be treated differently, I think what we are seeing is the idea of a unitary government power where “I get to ignore the Congress,” which we’ve seen.Just take the TikTok ban.6That was just completely blown through, including the expenditures that Congress has authored and appropriated and that the president has also decided, “I’m going to do what I want.” And so I think what you’re seeing is, “I’m not planning on adhering to any of the other branches.” And that is something—one of the most concerning things as a lawyer is the extent that’s playing out in the courts where the sort of third rail everyone is worried about, including me, will there be court orders where this administration says, “You know what?Go ahead and try and enforce it”?
Do you see the kind of power that they’re claiming that they can exercise is much broader than the unitary executive?
I do.I do.There is no question that you see that with respect to Congress.I gave you a couple of examples where it’s like basically, since Congress is not standing up for itself, they’re just walking right over them, and you see that playing out in Judge [James] Boasberg’s courtroom and the litigation over the Alien Enemies Act, where that is as close to sort of a microcosm of this issue playing out, which is the judge saying and trying to figure out, “Did you violate a court order?” That is something that the administration in its paper says, “Oh, that’s a picayune problem.7You’re focusing on something myopic that is not important.”
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It could not be more important.That is about the rule of law, where the court said, “Do not have these planes take off.To the extent that they have taken off, turn them around, and bring them back.” And he is trying to find out, was that order complied with, and if not, what the ramifications of that will be.And this administration is trying to not even answer that question and has even said, “We don’t have to answer that based on the state secrets privilege,” which I have to say I think is laughable because the idea of not answering who knew about an order and what you did is hardly a state secret, especially when you have what seems like many of the same people on a Signal chat talking about war plans, and they’re saying that’s not even classified.8
So this sort of cognitive dissonance between the Signal chat and that not being something that’s classified, but when a judge asks you questions about whether you complied with a court order, sitting there saying, “Oh, no, I can’t answer that because that’s a state secret,” smacks of abuse of process.
Let’s go back to the Justice Department for a second, because in a way, you talked about the pardons of the Jan.6.There are also the firing of prosecutors who were involved in Jan.6, the request for a list of FBI agents who worked on cases.What do you see in that approach in that moment?
So let’s just focus on the Jan.6 component, and there’s many, many things to talk about in terms of how career people are being treated.But let’s just focus on the Jan.6, the prosecutors and the agents who worked on the Jan.6 case.If you want an example of “the inmates are running the show,” and I mean that, in many ways, almost literally, you have a president who is a convicted felon.9You have people who have gone to trial or pled guilty to the Jan.6 events, including all sorts of really horrendous crimes, those people are now free as a bird, the people who have been adjudicated criminals.
But the people who had the obligation under their oath of office to investigate those crimes are now the hunted.What does that tell you about the rule of law in this country, that FBI agents, of which there are thousands who worked on these cases, the prosecutors who worked on these cases—and just to be clear, by the way, the irony here, Emil Bove, who is the principal deputy attorney general, former Trump counsel, criminal counsel, was one of the people who worked on the Jan.106 cases—and so the hypocrisy of that.But to me that is just—that is a symbol of exactly what is going on right now.
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The New York Times: Justice Dept.’s No. 2 Targets Old Office Where He Rose as a Prosecutor
What do you make about his choices of who he is going to put in the top of the Justice Department?What do you get a sense that he’s looking for, or what do you make of that leadership?
Well, I think he’s clearly looking for loyalty, and the problem with that is that, as I mentioned, when Barack Obama as president met with his U.S.attorneys, he made a point of saying, “Look, I have nominated you, but you do not work for me.Your oath of office is to the Constitution.” He understood the norm of post-Watergate.And I want to make it clear, I’ve worked for many, many different administrations.When I worked on the Enron case, that was under a Republican presidency, and not for one moment was there any effort that I’m aware of that there was any interference in our work whatsoever.…
Do you think it is something he learned from his first term, where he publicly berated [former U.S. Attorney General] Jeff Sessions for recusing himself, which eventually leads to Mueller’s appointment?You obviously—you know about the conflict with [former FBI Director James] Comey and that firing.He clashed with [former U.S. Attorney General] Bill Barr after the election.Do you think he came into his second term with some lessons that he had taken from the first?
Yeah.I think he realized—he saw where there was friction, where there would be potential pushback, where there would be checks on executive power, and so that includes Congress; it includes judiciary; it includes the Department of Justice; it includes the White House counsel—anybody who is in close proximity to the president, who is needed to carry out his orders, who is going to be thinking about the rule of law and their oath of office and what they can and cannot do.And by the way, that also includes the media.And that’s why I think you’re seeing where there are—there’s areas where there can be potential pushback, I think you are seeing that crumble.
The White House counsel is a good example.During the first Trump administration there, [former White House counsel] Don McGahn was there, and by all accounts at various ways was pushing back on what could and could not be done, and I think that is very much something that he has learned over the course of the four years, and I think the real concern now is there isn’t any sense of those people being in the room.That is one of the reasons that the judiciary has played such a sort of outsize and important role as one body that can push back and with some real teeth in that pushback.The other, obviously, is the media, for programs like this and others to be doing good investigative reporting.
The Eric Adams Case
You mentioned the Eric Adams case, which also stood out to us as sort of an early test case.Help me understand what happened and why that case was important.
I don’t think people understand just how important the decision by Judge [James] Ho a couple of days ago, how important that decision is.The backdrop is that the sitting mayor of New York was charged with five felonies under the Biden administration.I’m not dealing with would he be convicted, would he not.The strength of case not relevant to this discussion.He was charged; he is entitled to his day in court.The government moved to dismiss the case without prejudice, and the “without prejudice” is the key part.That means that if that were granted that at any time and for any reason, the charges could be reinstated.
And they gave two reasons for why they were doing this.One was, they said, that this gave an appearance of impropriety because the government had brought this case too close to the primaries.Well, the judge in his decision said, “That is just a load of”—to quote our last president—“malarkey.That is just not true”; that it complied with Department of Justice guidelines; there’s ample precedent for it; and said that he found that—I’m going to paraphrase the court’s quote—“This is not just thin but pretextual.”
And then the second reason is the one that’s the really dangerous one.The second reason was that the criminal case was interfering with Eric Adams’ ability to carry out Donald Trump’s immigration policies.The idea that there could be a choke chain on a politician with the sword of Damocles being the reinstitution of a criminal case if you do not go along with our policies, that is such a loaded gun.If you think that the executive has power to get people to adhere to what they want you to do now, the idea that they could use the criminal justice system to do that has never been sought, has never been approved, and was rejected by Judge Ho in his decision, and as he noted, that is the reason why you saw so many career people, including career people with deep, strong Republican ties, resigning rather than carry out what they viewed as that quid pro quo.
Help me understand this—we’ll tell the story in chronology—what it is that the acting U.S.attorney in New York, Danielle Sassoon, says or how she sees it and how it comes to a head.11
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Department of Justice: Acting US Attorney Danielle Sassoon's resignation letter
Sure.So when this all played out, we learned that Emil Bove, who was then the acting deputy attorney general because Todd Blanche had not yet been confirmed—so Emil had been one of Donald Trump’s criminal defense lawyers, and he wants to file a motion to dismiss the case without prejudice, and Danielle Sassoon, by all accounts, goes to Washington with her team, meets with Emil Bove and his people and Eric Adams and his counsel, and she says, in a very lengthy letter she wrote to [U.S. Attorney General] Pam Bondi saying, “Don’t do this, and you should hear from me,” says at that meeting it was tantamount to a quid pro quo, where the mayor was basically saying, “I will toe the line on your immigration policies if you dismiss the case.”
And Eric Adams, since then, and Emil Bove said that didn’t happen, but Danielle Sassoon and her people say it did.You have a number of career people at the Public Integrity Section in Washington that does this for a living not signing onto it, presumably because they see it, too, as a quid pro quo.
An interesting and important tidbit here is that Danielle Sassoon, in her letter, makes it clear that her team took notes of that meeting and that before they left, Emil Bove confiscated them.He has not denied that, that he did it.He said, “I did that because I was concerned about leaks.” Well, again, to paraphrase Judge Ho, that’s pretty thin if not pretextual because there’s nothing about taking notes that prevents leaks.You don’t need written notes to leak information.All it would seem to do is suggest that there is actual hard evidence to corroborate what Danielle Sassoon said happened at that meeting.
You said that they denied that there was a quid pro quo.When you read Bove’s letter he says, “You know, I haven’t looked at the facts of this case.” What do you see when you read those letters back and forth and what he wrote?12
Well, you have to understand a lot of his explanations were changing over time, so he said, “I’m not basing this on the facts or the law.” Later he says, “But I do have questions about the facts and the law.” The attorney general said the case was very thin.What I don’t understand about that is, if it’s based on that, that the facts and the law are problematic, that’s a reason to dismiss the case with prejudice, not without prejudice.Remember, that’s the key issue here is that choke chain, the leash that would be on a candidate for office.
Let me just give you an analogy, so people can understand just how horrendous this could have been if the case came out differently.Imagine that we are dealing with a member of Congress, and the Department of Justice said, “We’re going to charge you unless, during the next five years, you vote the way we tell you to.” The Department of Justice’s view before Judge Ho is that’s lawful.Imagine saying, “You know what?We are going to charge you unless you pay me $10 million.” That’s another quid pro quo.Their view was that a quid pro quo is totally fine.13
And so this was an outrageous thing to be trying to support before this judge, and it is the reason you saw something that—I want to make sure you understand—does not happen in any normal world.People in the Department of Justice don’t just up and resign.People are used to the fact that there are policy differences, that you know what?I’ve worked in many, many different administrations.There are things I agreed with; there are things I disagreed with.And as long as it’s within the rule of law and you can stomach it, elections have consequences.That’s totally fine.
When you resign it’s because it’s either, in your view, amoral, or it’s a quid pro quo that you think is illegal, and that is the reason that you saw so many career people who do this for a living, including conservatives, say, “I can’t stomach this.This is an abuse of process.”
The judge may have taken the sword of Damocles off the wall, but …what is the effect on the Department of Justice at the end of this incident?
I think the same thing that you’re seeing in law firms, the same thing you’re seeing in the corporate world, which is the use of fear and intimidation to silence adversaries, and that’s where I think this is true at the department, but I think it’s true just in life in general, whether you’re at a company, whether you’re at an academic institution, certainly when I was at the department, both at the FBI and in Main Justice, you want pushback.A healthy system is where you’re surrounded by people who bring up things that you may have overlooked.And you may agree with things, and you may disagree with things, but the people I most valued when I was running things were people who came to me to say, “You know what?There’s another way to look at this,” or “I think you’re making a mistake.” That is a useful thing.
The idea that you basically are just like, “Just keep quiet and don’t raise anything,” those people—what makes you think that you are always right and that you haven’t made a mistake and overlooked stuff?And let’s just take an example.In the Alien Enemies Act case before Judge Boasberg, all sorts of reports are coming out that one of the reasons the judge is focusing on due process, that there be a hearing before you remove people from this country, is it turns out that we’re getting reports that those people were not who the ICE agents thought they were.And that is what a hearing is for, is that, “Guess what?The government can get things wrong, and it’s useful to hear that before you deprive them of their rights.”
The last thing on this is when Bove writes back and says, “You can leave,” I think the argument is that, “You are being insubordinate.This is a democracy.The president was elected.The attorney general is appointed by him.And if you’re a government employee who is not carrying out what they want, … what you are doing is almost an affront to the Constitution.”
So this is where facts matter.You know what?On its face, that is true.If you are given a lawful order to do something, then you as an employee—you’re not an indentured servant—you can decide, “You know what?I can’t stomach that.I disagree with it,” and you can leave.But if you stay and it’s a lawful order, you’re expected to carry it out.That’s not what was going on here.Here, the concern by the people who ultimately were either fired or resigned and who were career people was that what was being asked was not lawful, and the proof of the pudding on this, in terms of they’re saying that this is improper, is that a judge who heard all of this rejected the government’s position that this should be dismissed without prejudice.14He thought that that leash, the sword of Damocles that would be on Eric Adams, was exactly right for these people to identify that as a problem, and that is why the court rejected it.
14
The American Presidency Project: Letter from U.S. Attorney for the Southern District of New York Danielle Sassoon to Attorney General Pam Bondi
So that is really a vindication of what these people were saying.And so it’s one where facts really matter because, in theory, what Emil Bove is saying is fine, but it presupposes that the action that they’re taking is entirely within the law.
Elon Musk and DOGE
When you were talking about these claims of presidential power as being even more than the unitary executive, and when you see Elon Musk and DOGE [Department of Government Efficiency] go to an agency like USAID and take the letters off of the wall and defund it, a congressionally created agency, and say they are feeding it into the woodchipper, how unprecedented is that, and how does that fit with the description of presidential power that you were talking about?
Well, I’m going to paraphrase Sen.[Lisa] Murkowski because I think she got it exactly right.15One, the manner in which the president has acted had been found by various judges to be illegal, that it was not carried out lawfully.But as Sen.Murkowski said, much of what they’re trying to do, there are ways to do that through lawful means and by adhering to lawful processes, and as she added, with just a modicum of respect and showing a dignity to the public servants who have done nothing wrong.
15
And so to me, it is a combination of sort of lawlessness, cavalierness and a real lack of decency.These are public servants, and even if you think that you want to curtail the role of a certain agency or you think it’s bloated, these are human beings, and they’re entitled to be treated with respect.And so you have this enormous combination of attributes that are not things that you would look to have in your own children in terms of how they behave.
And the final thing, which I do think is reminiscent of Trump 1.0, is there was a lot of talk that Trump 2.0 would not show the same incompetence that you saw during Trump 1.0 because the administration would be more experienced.And you are seeing that same kind of problem here, where you have people who are fired one day only to realize, “Wait, we really—oh, you know what?They’re there to protect the nuclear arsenal or nuclear power plants?Yeah, that was probably a mistake, so let’s bring them back.” All of this in a responsible administration would be done very differently.Having been part of those discussions, there’s nothing wrong with saying, “You know what?I think we can be more efficient,” or that “We should reallocate people from the main headquarters to the field.” But it would be done in a much more thoughtful way, where grown-ups would be in a room, and they wouldn’t be doing it just to play to the press, and you’d be thinking about what is the right thing for the public to do here.
When you see him do something like the inspector generals [sic] are fired en masse, and some of them later—we talked to the USAID inspector general, who survived for a little while until he wrote a report and was let go.16Is that part of the pattern of what we are talking about?
I think there are sort of two points to this.It is definitely part of the pattern of disrespect for the rule of law.You don’t get rid of those people just like getting rid of the top three judge advocate generals in the Department of Defense.You don’t get rid of them because you want independent judgments.You’re doing it because you don’t want that.The other is it does put a lie to “Oh, this is all being done to save costs.” You’re not saving costs by saying, “I’m going to just lop off the heads of the inspectors general.” That’s not a cost-saving measure.That is being done for a very different reason, which is to make sure that you have only loyalists with no sort of civil service pushback.
I just want to make a quick pitch for civil service, because I think there is such a—they’ve come in for such denigration, and the idea that the trope that I think this administration wants people to think is that these are people who are lazy, they don’t work, they’re making tons of money on no-show jobs.And first of all, in every sector of the world, there will be some people who might fit that category.It is not unique to civil servants.And these, the vast, vast majority, are people who are doing this because of deep patriotism and a sense of service to this country, and it’s—to me, the idea that you would be the leader of the free world and denigrating the people who are there serving the public is really hard to stomach as a matter of decency.
Let me add, when we talked to the inspector general, he thought part of their job was to report back to Congress, and that was how Congress saw the inspector generals [sic], as somebody to sort of help them.USAID is an agency that was created by Congress, funded by Congress, and yet there haven’t been hearings called about these things.There hasn’t been much pushback in an official way from Congress.What do you make of that in this story?
This is that you do not have a functioning second branch of government.The legislative branch of government is one—and obviously both parts of Congress are controlled by the Republican Party, and we have not seen a sufficient number that have pushed back in any meaningful way in just a whole range of areas.And there are just so many examples, but to take one that is dear to my heart is I don’t think anybody could argue that [Secretary of Health and Human Services] Robert Kennedy [Jr.] is the most qualified person for the job and has articulated policies that put at great risk the health of the American public, and you would think that would be an area where there could be bipartisan support to—when you’re dealing with science and health.
But even there, you did not see pushback against this president, and so that falls into a category of “It’s lawful”.It is no one saying that anyone in Congress did something that broke the law.It is just a sign of a democracy where the checks and balances that were put in place by the Constitution didn’t foresee how insidious this would be, and they thought that Congress would have enough self-regard that they would be husbanding and be protective of their own power, and you’re not seeing that.
Trump Takes on the Courts and Law Firms
That means that a lot of these battles have been in the courts, with over 100 lawsuits and various injunctions.Can the courts—tell me the status of what is going on in the courts with all of these things, because the people have been sent home, and the letters are off of the building at USAID.Some of these things have happened.Are the courts up to the challenge?What does it look like?
Talk about a huge question.Are the courts up to the challenge?What I think the answer is—unfortunately, I’m a lawyer.It’s sort of yes and no.In many ways, it’s sort of the best we have at the moment.They have acted faster than I think a lot of people expected, and they are, in a bipartisan way, showing an adherence to the rule of law.
You can tell there is a “but” there.And the but is that I don’t think that can be the long-term, ultimate salvation for this country, and I think part of it goes to when I was talking about—I think of this in terms of things that are going on that may be illegal, and the courts can step in, and things that are just horrendous policies.
So let me give you an example.I think economists would say it’s tariffs, but within the Department of Justice, something I know well, the idea that you would dismantle the group that looks at election interference by foreign nations, why would you possibly do that?17It’s lawful to dismantle that group, but why would you do that, unless you are—what message are you sending by saying that this is not something that we care about and we don’t want to prosecute?Foreign Corrupt Practices Act, the FCPA, foreign bribery— why would you be getting rid of that except as it applies to drug cartels that don’t violate the FCPA?18
17
The New York Times: Trump Dismantles Government Fight Against Foreign Influence Operations
So to me that’s not something that’s susceptible to going to court.Those are things that are lawful but are insidious in terms of their effects on America as a rule-of-law country to the extent it still exists.And so I really think that falls more to the media and ultimately to the public in making a decision about how much do they care about these things.
So there are these big battles.What can be litigated inside the courts are going on, and they are being litigated inside the courts, and outside the court, in the Oval Office, the president is signing executive orders about law firms.What are those executive orders?What do they do?What is the effect of them?And how does that fit into that battle that’s going on in the courts?
So the executive orders themselves have been litigated, so the executive orders do a variety of things.They say that security clearances will be pulled, that the people at the firms may not be able to enter into federal buildings, that they shouldn’t have federal contracts or any grants with the federal government; the people there shouldn’t be hired by the federal government.And the main issue with them is this idea of the chilling effect and that the message is if you’re viewed as sort of an enemy that you’re going to be targeted, and clients should beware, and you would not want to choose that law firm because they’re now PNG [persona non grata], and so you should pick a favored one.
And so let’s say you’re at the ACLU [American Civil Liberties Union], and you’re like, “You know what?We normally, on this kind of case, we need help, we would normally go to Paul, Weiss [Rifkind, Wharton & Garrison], a very reputable law firm, and say, ‘Do you want to partner with us on this challenge to X-policy of the administration?’” That goes on every day of the week.But now the law firm, the Paul Weisses of the world, will be saying, “You know what?I don’t want to be the subject of another executive order.It’s going to hurt me with retaining business because I have so many corporate clients who are going to be saying, ‘We don’t want to use a law firm that is going to be targeted in this way and isn’t going to be able to advocate for us.’” And so it sends a message to these law firms: Don’t challenge.Don’t support anything that we don’t support.
… This is one where, even though three separate judges, three different judges of all sort of political stripes in terms of who nominated them to the bench, have all found that these orders, these executive orders violate the Constitution, and yet, by the way, the president keeps doing it.And talk about disrespect for the rule of law.It’s like court one, “This violates the Constitution.” Does it again.Another court … strikes it down.Another one, struck down.But the sort of inter rerum effect is, I think, the reason for it is that you have a whole bunch of firms that are caving, that agree to pull back to support administrative causes, and the sort of shock waves to—when you really, to me, just go back to the Joseph McCarthy era, and this is blacklisting.19And that, plain and simple, is what’s going on.
And I can tell you a quick story, which is during the Trump 1.0 administration, I was talking to my very elderly parents about how they viewed the McCarthy era versus the Trump presidency, and I remember them saying, “Look, obviously Donald Trump is the president, and so he has more power.But what was scarier in the McCarthy period was that no one was speaking up, and you felt so isolated, and you felt alone.” And so it was terrifying in the way that it was carried.But they said, “Now you can see lots and lots of voices speaking up.”
And I think that one of the goals of these executive orders is to create and instill that sense of fear.And whether it’s within the Department of Justice, as we talked about, or whether it’s in law firms and what you will say and speak up about, and to bring us back to the goal of blacklisting in McCarthy period.
How do you feel about being one of those targets, having your security clearance pulled?I went back to see what he wrote about you going back to the Enron prosecution in an executive order.20
20
The White House: Addressing Risks from Jenner & Block
So the security clearance was sort of—he shouldn’t have done it; there’s no grounds for it.I don’t have a security clearance, so it was a little bit like snow in winter.I’m not sure, given climate change, you could say snow in winter anymore.But in any event, it was a little bit like, “Fine, knock yourself out.” To me it was—again, it wasn’t about the specific.I have to say, obviously, on a personal level it’s like you don’t wake up in the morning and go, “That’s great.” But it’s really hard not to view it in a more systemic way in terms of what he is trying to accomplish.
And again, I am such a small piece of this.There [are] people who are much, much more important in terms of what they have done and what they are accomplishing and bringing legal challenges.I view my role very much like yours, which is I have a certain expertise on the law, and I want to make sure that I can communicate to people how I’m viewing what is going on in the legal system.
Do you see it as a badge of honor?
It’s a badge of honor that I’d rather not have.I mean, the thing that I don’t want to have happen is—my job is to be as objective as possible as a legal analyst.I never for a million years when I left the department thought I’d be in this role, but I do think given how much is going on in the legal system, translating that to lawyers and non-lawyers is something I want to make sure I can continue to do, and that’s why I just don’t want to be part of the story, because I think it’s really important to maintain objectivity and to be able to talk about something where I’m objective about what’s happening.
I understand that.When you read the letter that Paul Weiss sends out to its associates, the reasoning for making the decision, signal sent, what’s your reaction?21
21
The New York Times: How a Major Democratic Law Firm Ended Up Bowing to Trump
I have a lot of different reactions.I want to start with this, which is—one of the reasons it’s particularly upsetting is because of the caliber of the lawyers at Paul Weiss.This is such a well-respected firm, and I’ve dealt with a lot of the lawyers there, and they’re second to none.And so that’s one of the reasons I think it sort of sent shock waves through the legal community, but it was because of just how well respected they are.
Two, it is important to remember, even though I disagree with what they did, that they are a victim here.They were targeted improperly.There’s no question that the executive order would have been found to be unconstitutional, just like the other—it’s a duplicate of the other executive orders that have been found to be unconstitutional, so with those two caveats, I think it was the wrong decision.I understand that there were a lot of financial pressures, and I understand there are a lot of fiduciary obligations that probably fell to the firm in terms of their employees.That’s thousands of people.
But at some point, principles matter, and money isn’t everything, and I think it was the wrong decision with really pernicious effects, because it sent a message to the administration that this works, meaning do it again, which is what’s happened, and it was a permission structure to other firms to say, “Hey, if we did it, you can do it.” And so I really think it is important in those situations to see if something like that is so wrong—and we know there are three judges who have said it’s unconstitutional—that is the reason that you have collective action and people banding together and sort of a NATO approach to the problem, and I think they fell into the sort of divide-and-conquer strategy of the president.
How much fear is there in the legal community?
I don’t know the answer to that.I’m in academia now; I don’t practice.I’m not sure it’s fear or just concern over financial concerns and a financial concern over being targeted.It is really worth remembering what we’re talking about here is fear or concern over the financial consequences that could befall them for unconstitutional action by the executive.And again, that’s not me saying it; that is three federal judges saying that.
And so it’s really important to remember sort of like—while we’re talking about sort of how Paul Weiss responded to this, and I don’t mean to sort of bless that in any way, but it is, at the heart of the problem, is the action that was taken.
Deportation of Venezuelan Migrants
You talked about some of the conflict with Judge Boasberg.Help me understand that case and why it stands out, the idea of sending people from Venezuela to El Salvador and the judge getting involved.
Sure.I think, like the Mayor Eric Adams case, this is the other, the second case that I would say is sort of the critical case that is going on, and there are two components to it.One has to do with due process, the substance, which is before you remove somebody from this country, should they have an ability to be heard as to—let’s just take this simple fact: Are they part of the group that you think is so bad?If they are, then you know what?Deport them.Absolutely.No one is saying, “Don’t do that.” And that is a legal means that this administration could have taken any day of the week.They could have just given them process, have them be able to challenge it.
My hypothetical, which unfortunately now is not a hypothetical, when this first started was you deport 100 people, and you don’t have a hearing, and it turns out five of them are you and me, and we’re not part of any gang, and we never had a hearing to be able to say, “Wait a second.You got it wrong.The tattoo on my arm is not a gang tattoo.I got it there in honor of my mother,” whatever the explanation is.
To give you a sense of how outrageous the government’s position is here is that they had a lawful means to do this: Post-World War II, the leading case on this that was cited by the government in this case, the government wanted to deport Germans, post-World War II, and you know what?The attorney general of the United States agreed to and thought was right?That they had a right to a hearing, and as was pointed out by the court of appeals here, even Nazis were given more due process than they are giving these people who are just alleged but never proven to be part this gang.
So that is the reason that the due process concern is so important, that you can’t just scoop up anybody that could be—and this isn’t sort of like, “Oh, it’s about them.” This could be about us because there’s no hearing to differentiate who and why the government is taking unilateral action before removing them from this country.That’s the substance.
And then the other part is the judge saying, “I gave you an order that when this first started, which was to keep everything, the status quo, where it is right now.Nobody is to be removed while I’m considering these issues.… Just freeze everything, and so nobody should be flown out of the country, and to the extent that people are in the air, turn the planes around.” And that is what the judge is hearing right now, and he’s going to be issuing a decision on whether he thinks there was contempt, and if so, who and why and what the ramifications are.One of the things he raised was if there was contempt of court, contempt of his order, that he will say, “Bring those people back because you were not allowed to take them, and it was in defiance of my order.”
This is the constitutional crisis.The thing that Judge Boasberg is like being a dog with a bone, appropriately, is the idea that there a court order and trying to find out was there somebody in the executive branch who said, “I don’t care.” That’s the constitutional crisis, and that is why it is so important that Judge Boasberg has a backbone.Now obviously, if he cites factually, he thinks there wasn’t an intentional violation, so be it.Then great.That will be good news.But if he finds there was, that is something which is highly, highly significant to the rule of law in this country.
This is all going on inside the court, and outside of the court there is the way the administration is describing it, and some of the statements almost sound like sort of, “Bring it on.You want to have an argument about these alleged gang members who we say are terrorists, this is a great battle, and we’re ready to have it.” What do you make of the way the administration is describing this?22
So one of the things I think is really interesting, and I love this question, is this sort of inside the courtroom and outside the courtroom.Inside the courtroom, the administration has not and I don’t think will ever say, “There was a court order, and we just violated it.We intentionally violated that order.” They are making, in my view, some thin arguments, but the judge will find whether they are good faith or not.But people are entitled to make good-faith arguments, and they are making arguments about why they actually complied.
That’s a good thing in terms of the rule of law.That is saying—like they are not just saying, “We don’t care what you think.” They’re trying to make arguments to say, “This is why we actually don’t think we are in violation of your order.” And that’s fair.They’re making their arguments; the judge will rule on them.That’s what courts are for, and I have no problem with that within the courtroom.
What’s remarkable is outside of the courtroom, you have a very different story.You have sort of like, “The judge should be impeached,” which the chief justice of the United States had to essentially weigh in on, to have his back to say, “That’s not appropriate.23That’s not how you respond to it.If you disagree with a case, you can appeal it.” … You have the attorney general of the United States saying that the judge is siding with the terrorists.24That’s not what the judge is doing by saying, “You know what?You have to comply with due process, or you have to put things on hold.” That’s not siding with one side or the other in terms of agreeing with goals of either the plaintiff or the defendant, any more than in a criminal case, if you allow evidence in or don’t allow evidence in, it’s not like you’re saying, “I agree with what the defendant is accused of doing here.” And that was the attorney general of the United States saying that, which is really sort of a political attack on him.
24
Office of Public Affairs: Statement from Attorney General Pamela Bondi on Federal Judge Blocking Deportations
And you have others saying, essentially, “We’re going to go forward and do this.We don’t really care what you say.” Now they have backed off of that because I think that so far is a sort of third rail if we get to that point where there really is that finding of a court order where the administration has just flouted it.
Trump and the Courts
Do you have a sense of what they’re doing?At that Justice Department speech, the president talked about how he said the Democrats were “playing the ref”.25He was talking about the case in Florida and the criticism of Judge [Aileen] Cannon.26Is that part of what is going on is playing a ref, is trying to influence the judges or undermine the courts?What do you think is going on outside?What’s the strategy?
25
Well, the president’s comments about playing the ref, which is so preposterous because he’s saying, “Gee, it should be illegal to criticize judges,” and he was talking about Judge Cannon.He says, “It should almost be illegal to do that.Maybe it should be illegal to do that.” This is in the same breath where they have no problem criticizing Judge Boasberg and saying he should be impeached.So again, this is not a principled argument.This is a transactional argument.It’s like it’s fine to criticize as long as you criticize the person I want you to.
And there, I think, as we’ve talked about it, I think—if you think about what are the institutional checks on the executive branch, and one of them is, by design, the judiciary.You’re seeing a full-on attack on judges the way you see that on lawyers and on the media and anybody who is standing up to the administration, and so it’s really hard not to view it as just part and parcel of that larger picture.
The other threat, which the president has disclaimed, but, as you said, members of his administration seemed to imply, which is that if it goes too far, maybe we’re not going to be able to comply, because these judges are just so far out of bounds that we’re going to have to do our own thing.That threat, for it to be on the table, what is the effect that has?
I’m not a huge fan about worrying about that.It may happen; it may not.And the reason I don’t think that’s like the thing that’s the biggest worry that we have to think about is I think that our institutions—it’s not a question of, “Oh, they may crumble down the road, and this is what we have to worry about down the road.” We’re there now.It is true it could get worse, but I think talking about, “Gee, well, this might happen later,” that’s true, but I think it distracts from core things that are happening now that are deeply disturbing and, in many ways, just as pernicious, where you are talking about impeaching judges or you’re—we’re talking about ignoring court orders, but there is no question they’ve ignored congressional mandates, so I feel like we’re there now, and we don’t need to be talking about, “Gee, what will happen later if something else bad happens?”
As you mentioned, Justice Roberts made a statement about not impeaching judges for decisions that you disagree with, that you should go to appeal.How much of this is going to end up in his lap, in the Supreme Court’s lap?What does he have to consider?And that’s really what I’m thinking about this sort of threat, because he must have a lot to consider as far as what the law is, how far or narrowly to have a case and this president.
I think a lot of it is going to end up in the Supreme Court, because you have a president who is testing boundaries, and the issue of the scope of executive power vis-à-vis the courts and vis-à-vis Congress is something that is necessarily going to need to be decided by the courts.It will be interesting to see how much the court either builds on or restricts the presidential immunity decision that was extremely controversial when it came out, and we already have some inkling of that because we’ve had two decisions that have been 5-4 against the government where you have Amy Coney Barrett and the chief justice have sided with the so-called three liberal justices.27
27
The New York Times: Tracking the Lawsuits Against Trump’s Agenda
And so I’m not saying that’s what is going to continue down the road.I imagine there will be splits depending on the facts are and what the case involves, but I do think that much of this litigation is going to end up in the Supreme Court.
I think about—you have already suggested this, but that the court itself might not be enough to—whatever the Supreme Court decides.What else is required?What else is at play besides what the Supreme Court decides?
Years ago, I was an intern in college one summer at the ACLU, and I remember hearing from the revered head of it that he talked about that democracy has to, regardless of what the courts do and the ACLU does and lawyers do, it has to be embedded and enshrined in the hearts of its citizens.And I remember at the time just being like, “What’s he talking about?” I didn’t get it.I just didn’t—it went way over my head.And now when I think back at that—and it’s sort of interesting that it stayed with me—I really do understand it, which is that, as I said, there is so much that’s going on.Some of it is legal and will be for the courts, but a lot of it is policy and norms, and ultimately whether we remain a democracy is really going to be about the import and the importance of these principles to us and what we believe in our hearts.If we want to live in an authoritarian regime and not have checks and balances and have sort of the superficial trappings of a democracy without the heart and soul, the beating heart of a democracy, that’s one thing.But I think that really depends on citizens more than the courts.
When you describe it in those terms, and you are saying that the crisis is already here, and the stakes are that high, that the country’s democracy, that’s already on the line in this moment?
Absolutely.In so many ways.And it’s hard for me to think of a moment, certainly in my lifetime and at least from what I understand from before my lifetime, it’s hard to think of a situation which was as dire unless you go back to the Civil War and the founding of the nation.
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