The FRONTLINE Interviews
Barton Gellman
Brennan Center for Justice
Barton Gellman is a senior adviser at the Brennan Center for Justice in New York. He was a staff writer at The Atlantic and The Washington Post, and is the author of Dark Mirror: Edward Snowden and the American Surveillance State.
The following interview was conducted by the Kirk Documentary Group's Mike Wiser for FRONTLINE on April 1, 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
We’re thinking of starting the film with the moment where President Donald Trump goes to the Justice Department and speaks in the Great Hall to what he sort of now sees as his Justice Department.What do you make of that moment, of him there, of his relationship with the Justice Department?
Well, he goes there and makes what is almost a campaign speech.It’s almost the only kind of speech he knows how to make.And he puts his arm around the Justice Department and its lawyers, not in the way that presidents normally do, which is in support of their mission of doing justice, of enforcing the law without fear or favor, and instead he essentially recruits them into his mission to take control of the government in its entirety and, in the kind of Orwellian guise of ending weaponization of the Justice Department, actually weaponizing it.
Should we see that in personal terms, because he talks a lot about how he was treated?Is this about personal retribution, or is there something bigger going on, or both?
I actually think with Trump, everything is both personal and transactional.For a lot of the people working for him, for the people involved in preparing Project 2025, for example, and for the ideologues who he’s brought into the administration, there’s a greater mission and a more ideological mission.
What is that?Does he buy into that?What is that mission?
Well, they want to use the power of the federal government to impose their own values.They want to quash opposition.They want to stretch or break the boundaries of law in many places, in many respects, and they want to take power as completely as possible. …
I’ll ask you a little bit more about that in a second, but while we’re at the Justice Department, what do you make of him calling out individual lawyers by name, somebody like Norm Eisen or Andrew Weissmann, people who he identifies as “scum,” with the director of the FBI and the attorney general there with him?1What do you make of those kinds of comments in a moment and in a place like that?
It’s profoundly out of norm.It’s profoundly unpresidential language.It is the unambiguous declaration of an enemies list, people to be dealt with, people to become the targets of retribution from the federal government under his command.And he takes that in very personal terms.They came after him, and, as he has said so many times in his public life, he believes in hitting back 10 times harder against anyone who ever comes after him, even if they come after him in terms of simply trying to enforce the law of the land.
Is he delivering on a campaign promise there?A lot of this rhetoric about weaponization, about the Justice Department, are things that he had campaigned on, and they often said they have a mandate to do what he is doing.
He said a lot of things in the campaign, and he tried to cast his enemies as the enemies of the people, another one of his favorite expressions.And so journalists are enemies of the people, but so are prosecutors who investigated and took evidence to grand juries and indicted and prosecuted him.He casts that as a kind of giant “they”—deep state “they”—who are coming after the interests of the American people.Now, in fact, they’re actually coming after law breaking by the now-president.He is saying, "My enemies are your enemies."
And he campaigned on this.I personally am a little bit doubtful that the majority of his voters voted for an authoritarian president.That’s to say, I think people voted for him for a lot of reasons—they felt the government didn’t care about them; they had less money in their pockets; inflation was frightening them.And there was a broader sense that the elites in Washington didn’t care about them, and Trump represented, for them, someone who would tear down an existing structure that wasn’t friendly to them.That doesn’t mean, I think, that they wanted a tyrant or a despot.
And there are a lot of things that I think, when they see what the consequences are, they’re not going to want.This idea of a tax cut for millionaires and billionaires that is paid for in part by cutting government benefits to them I don’t think will be popular once they realize what’s happening to them.
So I think in effect, Trump does not have as much of a mandate as he claims.
Trump’s Executive Orders
Let’s go back to the first day of the administration, where he signs a number of executive orders and executive actions, including in an arena with crowds looking on and then later at the White House, which is something a lot of presidents do in their first days—not in an arena but signing executive actions.What do you make of what Trump does?Is it different his first days, the kinds of actions and orders that he’s signing?
… I think Trump’s executive orders have been notable in at least two ways.One is, they are, generally speaking, press releases.They’re written in campaign-type language, and they are making big promises and claiming false premises, and they’re intended for public consumption: “See?I’m a man of action.I’m doing what I said I would do.”
The other way that they’re notable is that, in so many cases, they are blatantly illegal or unconstitutional.They’re claiming power he doesn’t have.Let’s just take, as an example, birthright citizenship.2It says right there in the Constitution, in the 14th Amendment, that if you’re born in the United States, you are a citizen by dint of your birthright.There’s one exception, which is foreign diplomats, who are technically not even living on American soil by the international legal conventions.Their embassies and homes are these sort of—the sovereignty of those places belongs to the nation they represent.
But as a general rule, you’re born in the U.S., you are a citizen.It’s in the Constitution.The president clearly doesn’t have the power to amend or disregard the Constitution.That’s in court now, and I am pretty confident he will lose that case.
But the point is, he didn’t even care.
Let’s go back to another administration that had a very strong view of the breadth and depth of executive power, and that was the Bush-Cheney administration back in the 2000s.And the difference is that, although they claimed broad executive power, they also believed in adhering to the law as they understood it, and so they wouldn’t issue an executive order, for example, without consulting the Office of Legal Counsel in the Justice Department and getting a formal opinion saying, “This is lawful for the following reasons.”
Now, there just aren’t any serious lawyers working for the Justice Department or elsewhere who would claim the birthright citizenship order is lawful, and Trump is simply flagrantly disregarding that.
And what does that signal on the first day?
It signals a very different kind of president and a president who doesn’t want to be bound by either the Constitution or statutory law, who wants to be unbound and unlimited in his power.It represents someone who has authoritarian aspirations and who much more closely resembles [President Recep Tayyip] Erdogan’s Turkey or [Prime Minister Viktor] Orbán’s Hungary or even [President Vladimir] Putin’s Russia in terms of his approach to consolidating and exercising power.He just doesn’t see limits on himself.He doesn’t accept those limits.
Is there a strategy behind the scenes?Sometimes people talk about [White House Deputy Chief of Staff] Stephen Miller having a “flood the zone” strategy or that they have a strategy that they’re going to test all of these things in court to sort of push the boundaries.Do you see a strategy behind what is going on with all these executive actions?
I do think the strategy is to flood the zone, to overwhelm the opposition by a kind of continued drumbeat of orders and actions that stun people who are used to the legal constitutional order and the rule of law.And I think it represents a mentality that if they just burst across the legal lines 20 times, and the courts are either too slow or the opposition is ineffective or the courts actually rule for them in five cases, then the score is not 15-5; the score is 5 to nothing.They have moved the boundaries.They have shifted the power.They have removed restraints from them, and they figure they’ll win at least some of these cases.
You mentioned Project 2025 before.Help me understand where that fits in, and do you see that connected to all of these actions?
Well, the personnel who wrote Project 2025, which had dozens of contributors, most of them were veterans of the first Trump administration.3Many of them have been brought into the second Trump administration, and although he sort of denied it in the campaign, it has become a playbook for him.
3
The New York Times: The Many Links Between Project 2025 and Trump’s World
I don’t think Trump personally cares very much about all of the ideological warfare going on inside this playbook, but he cares about power and his own power, and he believes, as he once said, that Article 2 of the Constitution means that he could do whatever he wants.4He believes that if the president does it, it can’t be illegal, and he believes that he is, in effect, the commander in chief of the whole country.The Constitution calls him commander in chief of the U.S.military, and even there it limits his power.But he’s not commander in chief of American industry or of the economy or of civil rights or of election procedure for that matter, despite the fact that he is behaving as though he thinks he is.
4
One other thing he does that day is issue a series of pardons and commutations for almost everybody involved in Jan.6.What was the message of that, do you think?What did you take away?
The Jan.6, pardons were extraordinary.5These were people who, many of them, had been convicted of violent crimes, of assaults on police officers, in some cases of sedition, and by pardoning them, he was saying, “If you’re on my side, the law can’t touch you.If you’re on my side, you can break the law.In fact, I encourage you to break the law.”
5
These are people who tried to overturn the results of an election.Almost the most profound crime that a president can be involved with is not to accept the people’s vote as binding, of trying to stay in power when you’ve been voted out of office.And the people who helped him do that he is saying were patriots, and because they’re on his side, he will make sure they face no consequences.
We talked a little bit about what he promised in the campaign before.How much do you think of Trump coming comes out of real frustrations about the way Washington works, its inability to deal with problems over decades, from immigration to other things?Is he tapping into real structural problems?
I think he is tapping into real structural problems.He is exploiting the fact that, for many Americans, Washington appears feckless and inauthentic and not addressing their real problems.He also is tapping into the idea that elites are serving only themselves, that the coastal elites are indifferent to or even kind of amused by the problems of middle America.And of course, ironically, he is coming in as a billionaire in a Cabinet full of billionaires and multimillionaires who are by every definition the elite, and they are serving themselves over and over again.
You have the extraordinary situation in which literally the richest man in the world, the largest funder of Trump’s campaign, who helped him win the presidency, is then installed in the White House and given sweeping powers over the whole federal government, many of which are completely illegal, which the president has no power to grant him, which have been restrained in dozens of court rulings now, but they are just continuing to plow ahead forward.6
Elon Musk has taken that same approach in his own companies.He just does whatever he wants to do and sorts out the legal problems when he has no other choice and sorts out the operational problems when he has no other choice.If it turns out that you fire the whole staff and suddenly you can’t cut Social Security checks anymore, well, then you go back and you adjust course, or you claim that the checks that aren’t going out are actually because the recipients were perpetrators of fraud, for which he’s presented zero evidence.
But talk about an elite that is serving itself with impunity and hostile to the actual interests of ordinary Americans.That’s the definition of what’s happening right now in the first months of the Trump administration.
You said before that you didn’t think voters necessarily knew what they were buying into, and what I was wondering with this line of questioning is, what was the appeal of what he was offering?Because the Democrats he was running against did push right on democracy, on rule of law, sort of made that case, and he was sort of making a case he was going to make Washington bend to his will.What was appealing in that environment, as you described Washington?
One of the things you find out from public opinion polling and from focus groups is that a lot of people like Trump because he doesn’t resemble an ordinary politician.Politicians are hedging their words and taking care to avoid positions that might be controversial, and they seem fake, and by unleashing his id and using profanity and using unpresidential language, unpolitical language, Trump gives the impression of authenticity.
Now, in fact, he’s changing his positions constantly and literally not getting through any day of his presidency without telling a lie or multiple lies, but he has a gift for looking as though he is a completely authentic person.
The Unitary Executive Theory
As you said, and you’ve done reporting about the push for executive power inside the Bush administration, how important do you think the legal theories about things like the unitary executive are in the Trump administration? …
Well, the Republican Party has been attracted for many years to a theory called the unitary executive.It’s a little bit hard to pin down exactly what that means, but it’s a broad matter, and there are variations on it.But as a broad matter, it’s the idea that the Constitution places the executive power in the hands of the president of the United States, who is also the chief law enforcement officer, the commander in chief and so on.And it’s a broader claim than that.It’s a claim that the other branches of government, legislative and judicial, have no lawful power to restrain the president in anything he does as the chief executive.
So that is not what I would view as a correct understanding of the structure of the Constitution, so even on military questions, the president is the commander in chief of the forces, but Congress reserved for itself the power to declare war, to fund the military, to define the composition of the military, and that’s a shared power.
The Constitution is best understood as a shared power.Since 1804, the judicial branch has been universally understood to be the branch that defines what the law is since the famous case of Marbury v.Madison.7And Trump has come right up to the edge of saying, “You don’t get to tell me what the law says.I get to say what the law says.” That would be a radical departure from 200-plus years of understanding of what our constitutional system says and means.
7
National Archives: Marbury v. Madison
And how important is it that there are lawyers around him who are pushing these kinds of theories?
It’s important in the sense that they try to make plausible arguments that justify the president’s power, but the president isn’t even interested in those arguments very much.He simply asserts the power and attacks anyone who tries to restrain him.
And so a judge grants a temporary restraining order preventing the president from doing something blatantly illegal because he’s just run right across the line without any regard for it, and he attacks the judge as a leftist … and calls for the judge’s impeachment.8A judge rules against you, and you say he should be impeached?That is just—that is what a strongman does.That is what they do in Hungary, what they did in Poland until the recent election, what they do in Turkey, what they do in Russia, although by now in Russia, nearly all judges know better than ever to rule against the government.It is a tyrant’s attitude toward what the law is.
And on the other hand, he does have these lawyers around him who are writing sort of abstract justifications for what he’s doing, and he has a very conservative Supreme Court, multiple justices of which he has himself appointed, and I think that there are going to be some cases that he wins.
It’s been widely understood for many years that Congress has the power to create independent agencies and restrain the president’s ability to control what they do because what they do is understood to be sort of important in an apolitical way, ranging from the Federal Reserve, Federal Trade Commission, National Labor Relations Board, FDA [Food and Drug Administration] that controls the safety of food and medicine and so on.
And there is a theory of the unitary executive that says Congress has no power to restrain the executive in any quasi-executive agency, and Trump may win on that because he has an extremely ideological, conservative Supreme Court that is prepared to throw away decades and in some cases centuries of law and simply overrule old cases and say, “That’s not the way it should be.”
Was the case over the summer, Trump v.the United States, a sign for you of that?9What did you take from that?Because certainly some of the president’s supporters have taken that it was a sign of the president having really broad executive power.
9
Oyez: Trump v. United States
Well, Trump v.the United States was a stunning case, a stunning ruling.It had to do with immunity.It resulted in a ruling that the president had complete and total immunity for any presidential act. …
That was a far broader question, by the way, than the case presented.The Supreme Court over the years has generally hewed to a position of judicial restraint that says, “You don’t decide a question that’s not before the court; you decide hard questions as narrowly as you can to leave room for exceptions later as cases present them.” This court decided questions that were not before the court at all, that it did not have to decide, and it was deciding basically on its own view of public policy, its own view that the president could be unduly restrained, could be afraid of exercising executive powers if he or she could be exposed to prosecution afterward, and therefore it had to be ruled out in its entirety.
No one asked the Supreme Court to decide that, not even Trump.It was a, frankly, lunatic decision, a plainly wrong decision and a decision that I strongly believe will be overturned one day when the court comes back to its senses.
… When you look at who’s he put in the top of the Justice Department—Pam Bondi; at the beginning it’s Emil Bove; we talked about [Director] Kash Patel at the FBI; and Ed Martin is the U.S.attorney for D.C.—what do you make of the people that he’s appointing, and what does it tell you?
Well, a distinction between Trump’s first term and his second term is that he is entirely disregarding the idea that he should appoint experienced and knowledgeable people to positions of power in which they exert control over complex questions that require experience and knowledge.
And so the idea that he was going to appoint [former Rep.] Matt Gaetz to be attorney general, a legislator of zero legislative accomplishments, who was under a profound ethical cloud and actually under criminal investigation, who had never been a prosecutor or worked at anything like an analogous position to the Justice Department, you’re going to put that person in charge of, I think, about 20,000 lawyers in the Justice Department and be the chief law enforcement officer of the United States?10It was preposterous.It was something no other president would have imagined doing.
10
When Gaetz dropped out, he appointed Pam Bondi, who did have some prosecution experience but has behaved as though she were a personal lawyer to Trump and a campaign lawyer and made blatantly political statements instead of statements having to do with the rule of law and her very important responsibilities as the chief law enforcement officer of the United States under Trump.
And of course, then Trump has pardoned his friends and political allies.He has appointed his own personal lawyers to high positions in the Justice Department.He’s appointed kind of inexperienced ideologues to many other positions.He simply doesn’t care about qualifications.He cares only now about personal loyalty to him.This is the strongman model of power.
You said it’s different from the first term.Is that something he learned from the first term, do you think?
The thing about crossing redlines is it’s not just a question of norms; it’s a question of personnel. And in the first term, he appointed, in large part, traditionally qualified Republicans to jobs in the administration, and when he asked them to do crazy things, they either pushed back openly and said, “Mr.President, I’m sorry, that’s crazy,” or they pretended they didn’t hear him, or they passively resisted, or they did all the things that bureaucrats can do in terms of further study and committees and interagency meetings and waiting for him to forget about the crazy idea.
Just for example, he said to Mark Esper, his then-Defense secretary, in reference to protesters who were demonstrating against his political policies, “Can’t you just shoot them in the legs or something?” And this was said in front of the chairman of the Joint Chiefs, and they were both stunned by this idea, and they just changed the subject.
Today he is surrounding himself with people who, if he says that, are going to carry it out.He is surrounded by people who are, as literally as you can mean this, yes-men and yes-women who see themselves as sort of deputized to do whatever he says, whatever he wants, whatever his whims bring him to order.
You said that he sees this leadership of the Justice Department as his lawyers, and I think the attorney general, when she wrote a memo early on sort of directing the department to get in line behind her and the president, used that phrase.11What is wrong with that idea of the Justice Department being his lawyers?
11
Department of Justice: Office of the Attorney General Memorandum
Well, for many decades now, the Justice Department has exemplified a culture in which the Justice Department was the government’s lawyers.Its mission was not just to win cases but to do justice, and that meant using its discretion to make the right choices for the people of the United States and the government of the United States.
When you prosecute someone for a federal crime, the case is titled United States against Defendant.It is intended to be the majestic voice of the government.And you are not the president’s lawyer.The president has lawyers.The president has the White House counsel, who represents his view of what the government should be doing, and the president has personal lawyers, lots of them, who represent his interests as a private individual.
And Trump is trying to collapse the distinctions.Trump has actually collapsed the distinctions between a government lawyer, a White House lawyer and a personal lawyer, and indeed has appointed his personal lawyers to run the Justice Department.In his own mind, there is no distinction, and that is just wrong.
The Eric Adams Case
The case that we’re focusing on, because it brings all this to a head, is the [New York City Mayor] Eric Adams case, where there’s a conflict with the Southern District of New York and Main Justice in trying to withdraw, at least temporarily, the charges.Help me understand that case and that conflict at the top of the Southern District and the Justice Department and what it tells us about the Trump administration.
So Trump’s outlook and his general approach to life is transactional, and it is intended to make a deal.He believes that deals are generally zero-sum games in which there’s a winner or a loser.He wants to exert dominance.And he came into a situation in which prosecutors had indicted the mayor of New York, and based on the—what are called speaking indictments, which display a lot of evidence in the indictment itself, they had a very, very strong corruption case on multiple grounds against Eric Adams.
Adams, who understands Trump’s transactional approach, approaches his lawyers and approaches the government’s lawyers, who are Trump’s personal lawyers, and say, “My client, Eric Adams, can do a lot for the president, and we can withdraw New York’s traditional approach and its long-standing approach of not complying with extreme anti-immigrant policies by the administration.We will help, we will help you deport all these people.We will remove constraints on, for example, walking onto school grounds to take kids into custody if you’ll drop the charges against Eric Adams.”
And Trump says, “That’s a good deal; I like that.” He’s almost always on the side of public officials accused of corruption, regardless of party.But he adds a twist.He orders the Justice Department to drop the charges against Adams without prejudice.And without prejudice means that although they’re dropping the charges now, they can bring the indictment again at any time they want to.They’re asking a judge to say, “We’re removing the charge, but we’re still holding it over the head of the mayor of New York,” which is a remarkable thing to do it.It doesn’t mean—and they never said they didn’t think he was guilty or there was any problem with the evidence.They simply said, “We’ll hold back for now.Let’s see how you do in keeping your promise to help me.And then, if I’m not satisfied, I’ll bring the charges again.”
That is an extraordinary thing to say; “I’m going to hold you in peril of criminal indictment if you don’t do what I say.Even if I don’t have the legal power to tell you what to do, you’ll do it because you’re personally under the gun.”
And the judge said, “You’ve given absolutely no reason why I shouldn’t dismiss the charges altogether.” So the judge said, “OK, you want to dismiss the charges despite all this evidence?I can’t stop you, but I’m not going to let you hold that sword of Damocles over the mayor’s head.”
What do you make of the conflict with the acting U.S.attorney?Danielle Sassoon says she doesn’t think that she can make that case to the court and ends up being forced out.12A number of people at the top of the Justice Department are forced out because they don’t want to be involved in it.What does that part of the internal discussions at the Justice Department tell you?
12
What you see at the Justice Department is a lot of career employees or people who came up through the ranks and believed that they are there to serve the interests of the United States, that they are there to serve justice, to do the right thing, and when they are asked to do something that is just obviously corrupt, they’re saying, “I just can’t put my name on that.I just can’t in good conscience do that.”
And when they say that, they know they’re going to be fired, but they feel obliged to do it.And we’re talking about a prosecutor, … Danielle Sassoon, who was the acting U.S.13attorney in that office, was not a Democrat or liberal.She was very conservative, a member of the Federalist Society, a former clerk for a very conservative judge who nonetheless was not going to take the president’s side when he asked her to do something just so plainly unethical.
13
And the president and his appointees—again, his own personal lawyers who are running the Justice Department—are systematically removing people of conscience from their jobs.They are systematically making sure that only someone with 100% blind loyalty to Trump will exert the powers of the U.S.government in the Justice Department.
So we’ve talked to you before, and you’ve reported about the dramatic moments in the Bush administration where Justice Department officials threatened to resign.In this case, those resignations happened.And what does that tell you about President Trump’s power, the fact that the resignations threatened and they didn’t change anything?
Well, in the Bush administration, the people who threatened to resign were generally his top political appointees.… They were people that Bush himself had appointed to those jobs and the Senate had confirmed in those jobs, and so the result of their resignation in any normal administration—and Bush’s was a normal administration in that sense—would be gravely politically damaging.
It was being compared to the Saturday Night Massacre under President [Richard] Nixon, in which his attorney general and deputy attorney general had resigned rather than carry out the illegal orders.And Cheney actually was willing to have that happen in order to do what he and the president wanted to do, but Bush, who was a better politician, retreated from that position and walked away from that cliff.
So in Trump’s case, they are lower-level officials who are resigning or being fired because the higher-level officials are his own lawyers, his own loyalists, who are not going to try to stand in his way.That’s different, again, from the first term, and I think he learned the lessons of the first term, that he doesn’t want to appoint anyone who cares more about doing the right thing or cares more about the law or cares more about ethical policy questions than they care about doing as Trump says.
He is looking for obedience above all.
Where is Congress in this?There’s no hearings.The former U.S.attorney’s not called before Congress.Where is Congress?
Congress is in the hands of the Republican Party, which has been thoroughly dominated by Trump and Trump’s base for some years now, and so when Trump defies a judge’s order and says the judge should be impeached, Congress jumps, and you have a number of members of Congress introducing impeachment resolutions to impeach the judge.14There is no, or next to no direct opposition to anything Trump is doing from his party in Congress, and his party has majorities in both the House and the Senate.
Is that unusual?You’ve covered other times when the party in Congress was the same as the president.
The design of the Constitution and the history of the United States is that each of the three coequal branches will defend its prerogatives, will defend its power, its slice of the shared powers of government against the president, and will insist, for example, that it has the power to judge and confirm or not confirm the president’s appointees, that it has the power to define the budget and authorize an appropriate federal spending.It has the power to say what, in general, the agencies will do and what the laws are that regulate the agencies.
And this Congress has almost completely abandoned that position.This Congress is not defending the prerogatives of the legislative branch, so when the president says, “You, Congress, have authorized and appropriated money and said the executive branch shall spend this money as we direct,” and the president then says, “Nah, no thanks, I’m not going to spend that money,” Congress is sitting back and doing nothing.It is not defending its prerogatives, and that is, to say the least, unusual in American history.
Elon Musk and DOGE
The case where we’re sort of looking at that a little bit closer arises with Elon Musk and DOGE [Department of Government Efficiency].You mentioned him before.How unusual, and I know you did sort of answer this, but how unusual is the task that he’s given, especially when it comes to this idea of defunding agencies, shutting things down?How unusual is he in American history?
Well, it’s unique in American history that you would give government power to a private party who happens to be the richest man in the world and the biggest contributor to your own political campaign and say, “You have free rein to rampage through the government, cut tens of thousands of employees with no grounds for cutting them”—that is to say, no process, no claim that they were misbehaving or performing poorly even—that you could break leases, shut down buildings, arbitrarily move large numbers of people to new locations.
There are many lawsuits against this behavior by DOGE, and judges have sided with the plaintiffs against Trump, against DOGE in more than a dozen cases so far.15And we haven’t seen the like of it before.No one has ever just decided to completely disregard civil service rules or congressional appropriations.No one’s tried to abolish an agency on the president’s say-so alone when Congress has created that agency and appropriated money to spend by that agency and directed the agency on how to spend it.No president has imagined that he had the power to say, “Never mind, I’m against it, so it’s not going to happen.”
15
The New York Times: Tracking the Lawsuits Against Trump’s Agenda
Again, this is the behavior of a tyrant.This is the behavior of a strongman.This is anti-democratic, anti-constitutional, and Trump thinks he can get away with it.And it is a profound test of American democracy and constitutional rule of law whether he can get away with it.
How important is the framework behind the scenes of Project 2025, of the theories of Russell Vought, of the idea of impoundment?Because we see a lot with Elon Musk with a chainsaw at the Conservative Political Action Conference.16But how important is whatever groundwork was laid before and someone like Russell Vought?
Well, [Director of the Office of Management and Budget] Russell Vought believes in the kind of most extreme version of unitary executive authority, the version in which the power of the purse that is wielded by Congress under our Constitution and under the design of the founders and, you could say, what the Supreme Court has taken up the original intent of the founders, that that power doesn’t exist, actually, that the president can simply override that power, that the president can say, “What you say we should spend, I won’t spend.”
The president doesn’t have his own budget.Congress is the entity that creates and funds a budget.Congress is the entity that decides on taxation.And Trump is saying that he can spend money or not spend money as he sees fit, no matter what Congress says, and he has a completely supine Republican Party in Congress that is not standing up and saying, “Hey, wait a minute.That’s our power.”
The first big case is USAID, a congressionally created agency funded by Congress.Do you think that that agency was chosen as a test case?What was the significance of that particular move as the first one?
I think Trump’s advisers have carefully chosen his most radical tests of executive power to focus in areas that they consider to be politically favorable, which the valence of the issue in the eyes of the American public favors the president.Americans, kind of famously, misunderstand what foreign aid is.… Polls show that Americans believe we spend about a third of our budget on foreign aid, when in fact it’s a piece of 1%; it’s under 1%.17And foreign aid is not especially popular at a time when Americans are worried about their own economy, their own households, their own lives.
17
The Brookings Institution: What every American should know about US foreign aid
And so Trump is taking what could be a fairly popular stand in saying no more USAID.But regardless of what you think about what serves American interests—I happen to think it’s a very important component of American soft power to help the poorest and neediest people around the world to save literally hundreds of thousands, if not millions, of lives by spending a little bit on vaccines.Even if you don’t agree with that, Congress created the agency; Congress funded the agency; Congress directed the agency to do these things.Trump’s job as the chief executive is to execute those laws, not to disregard them.
… One of the other things he targets is he lets a large number of inspector generals [sic] go.After that, the USAID inspector general apparently snuck under the radar and is let go later.Why would he target inspector generals [sic], and what did that tell you?
So one of the first things Trump did was to fire most of the inspector generals [sic] from most of the agencies in the federal government.18What are inspector generals [sic]?Their literal job is to root out waste, fraud and abuse.Their job is to make sure that what the department is doing is lawful and in accordance with the president’s policy, and they are often called watchdogs.Why do you fire the watchdog? …
We talked to somebody who is a proponent of executive power, who said, “Well, Congress has subpoena power.19You don’t necessarily need an independent watchdog.” What do you make of that?
Well, first of all, Congress doesn’t always use its subpoena power, and increasingly, in recent years specifically, when Congress is controlled by one political party, it goes easier on a president of that political party, though much more so in the case of Republicans than in the case of Democrats.But Congress also invented the inspectors general.Congress passed laws saying, “There shall be an inspector general to protect the government and protect the public from abuse of power.”
And Trump had no cause, and gave no cause, pretended to have no cause, to fire any of these people.None of them had done a bad job.… So the idea that Congress is another possible instrument of accountability is fine.It’s true.It’s not especially effective right now, but the inspectors general and the courts and other institutions are also agencies of accountability, and Trump has systematically tried to shut down accountability.
A lot of the questions that we’ve been talking about, from the inspector generals [sic] to shutting down USAID to many of the president’s executive orders, from birthright citizenship and other things, end up in the courts in over 100 lawsuits.What do you make of the state of play and the court’s ability to handle this onslaught of cases that it’s being asked to handle?
So sometimes people talk about activist judges who are trying to set policy or, for political reasons, stop the president from doing something the president wants to do.That is not what we’re seeing here.What we’re seeing is not exactly an activist president but a lawless president, a president who entirely disregards whether the law allows him to do what he wants to do and is simply doing it.
… So judges appointed by presidents of both parties, including some appointed by Trump, have said, “Hey, wait a minute.20You can’t do this,” and they’ve granted temporary restraining orders to pause the president from doing those things while they consider the merits of the case.They’ve granted preliminary injunctions, again, to restrain the president, and the president’s response has been to attack those judges and has been, at least obliquely, to fail to comply with what the judges order.You have important members of the administration, including the vice president, who have openly said, “We don’t care what the judge says.We’re going to do it.”… And at the Brennan Center, where I work, we organized a tabletop exercise, a role-playing game in which we tried to test what would happen if Trump disregarded judicial orders, as he has already begun to do at the margins.Could a judge enforce those orders?And it’s difficult.Judges have the power to hold anyone in contempt.Judges have the power to summon people to testify, and judges have the power, under law, to exact financial penalties on noncompliance.But they have very limited means of enforcing those orders, and it’s going to become an extralegal problem if Trump ultimately decides simply to disregard.
Right now, Trump is, and Trump’s Justice Department are, trying to fuzz up the question.They are refusing to do some things that judges are ordering them to do, but they’re making quasi-legal arguments to do that.
For example, in the case that challenges Trump’s ability to invoke the Alien Enemies Act of 1798 to declare Venezuelans to be members of a gang and to deport them without any process to a third country, in El Salvador, the judge said, “Stop doing that.I need to examine carefully whether the Alien Enemies Act allows you to do that, and I have my doubts.”
And the judge even said, “If you have a plane in midair, turn it around.” Well, in fact, they did have planes in midair, two of them, and they did not turn around.And the judge said, “I now order you to show cause why you’re not in contempt of court.I order you to give me evidence of exactly when these planes took off, where they were at the time of my order, when they landed, etc.” And the Justice Department has said, “Those are national security secrets, and we won’t tell you,” even though it’s public information, because these planes are tracked by publicly available systems that show where they were when the judge’s order came through.
The government claims that it’s a matter of national security not to tell the judge, and the judge has—it’s still in progress as we speak.But it is a significant act of defiance by the Justice Department, and it’s unclear what would happen if the judge held the government in contempt.Who would he hold in contempt?Would it be the secretary of homeland security?Would it be the lawyers in court?
What would happen if he ordered the U.S.marshals to arrest them?U.S.marshals are governed by two statutes.One of them says they shall obey and enforce the orders of the court.The other one says they shall follow the direction of the attorney general, who is appointed by the president, because the U.S.Marshals Service comes under the direction of the Justice Department.
What happens if a judge orders someone to be arrested, and Trump’s Justice Department orders the marshal not to arrest them?What happens if the marshal arrests them anyway?I think we know what happens then.Trump is going to fire the marshal and replace the marshal with someone compliant.
So it’s not going to be judges ultimately who can enforce the law if Trump is determined to violate it.It’s going to be the American public more generally.It’s going to be the American constitutional system and society as a whole who are going to have to respond to that and decide whether they are prepared to accept a president who makes up his own laws and who defies the courts.
Large majorities of the American public say that it’s very important for the president to follow judicial orders.They may have to back that up in every way they can to make sure it happens.
Trump Takes on the Courts and Law Firms
… When you gamed it out, was there any circumstance where the courts themselves could deal with a president who is unwilling to follow a judicial order, or really the only scenarios where things could be reined back in required other bodies to be involved, either Congress or the American people?
We played two scenarios, and we went through it twice, and in one case, the president backed down.And in that case, not only had the Supreme Court ruled against him, but civil society had mobilized.And I won’t get into all of the details because I don’t think I want to tell Trump exactly what worked, but civil society mobilized, and people took to the streets, and people had job actions, and there was some falloff of Republican support from the president.
And as my colleague Michael Waldman likes to say, the laws of political gravity have not been repealed.If the American people are not prepared to accept a dictator, then they won’t.Trump does not have the hard power to impose his will on a dissident majority of the American people.
But in one case, the judges were afraid of creating a crisis point.The judges were afraid of giving an order that they couldn’t enforce.The judges were afraid of being emasculated by giving an order and finding that no one carried it out, and in that case, Trump was able to get away with it in their scenario.
And I think one of the lessons for me is that although judges are generally, manifestly reluctant to pick a fight that they can’t win and look for off-ramps from conflict with the executive, that the fastest way to erode the rule of law is to pretend that the president is following the law when he’s not; is to disregard obvious evidence of noncompliance in hopes that no one will notice that the court has been emasculated already.
So the court, even if it’s not sufficient, is sort of necessary to retain it in that scenario.
I think even if the court cannot, using hard power, enforce its ruling, the court can lead to enforcement, can create an environment in which the president complies by plainly stating, “I have given this order.I have held a hearing.You are not in compliance.21You are in contempt of court, and I will not tolerate that.” And then the other elements of civil society and other elements of government can come in and say whether they are prepared to accept that or not.
21
And I think the American people are not prepared to accept that and are going to have to exert the power of collective action.
One of the other things in this battle with the courts as all these things are going on that doesn’t involve the courts directly, but there’s a series of executive orders targeting law firms.How important are those?What do those say, and how are they related to what we’re talking about?
This is one of the most blatant authoritarian moves by the president, which is to attempt to destroy law firms that have represented clients who were in opposition to him personally or his policies.And so any law firm associated with [former special counsel] Robert Mueller or with one of Mueller’s deputies, Andrew Weissmann, or any firm that once had a lawyer who was one of his prosecutors in the New York state case, he has issued orders declaring them a threat to the rule of law in this country, banning them from federal buildings, and also, crucially, telling their clients that anyone employing that law firm would no longer be eligible for government contracts.
He was trying to simply destroy the business of these law firms.It’s a blatantly, grotesquely illegal order.Where it has been challenged in court, it has been restrained.22But the threat against these law firms is so existential for those firms that some of them have bent the knee, have given in, have tried to negotiate a truce with Trump that undermines their independence.
And to the great shame of the legal profession, there have been cases in which Trump issued this order, this broadside assault on a law firm, and other big law firms have come in and tried to take that opportunity to steal the clients of the targeted law firm to lure away the partners of that law firm into new employment and basically said, “While they’ve been weakened by this illegal executive order, we’re going to pounce and try to take their money away.”
And that is something that is to the eternal shame of the partners of those firms and is a very destructive thing that—we’ve seen that sort of behavior in other authoritarian countries, including Turkey, including Hungary, including Poland, and that’s how we lose our democracy.
On the other hand, there have been firms that stepped up and said, “First of all, we’ll fight it in court.” And there have been other firms who were not targeted—and I’ll just single out one of them, Williams & Connolly—which said, “We will represent a firm that’s been targeted by one of these illegal orders, and we will represent them in court, and we will help them fight this even though our own interests have not been directly placed at risk.” … And that’s what we need to see more of.
Why is the order effective if it’s illegal, if every time it gets before a judge, they find it so?Why would somebody settle?Why would a Paul, Weiss [Rifkind, Wharton & Garrison] settle?
Just think of the big stick that’s being wielded here.Suppose you’re a big law firm, and Donald Trump has issued an executive order that says you can’t ever enter a government building to represent your client, and your clients will be ineligible for federal contracts.Suppose you represent Lockheed Martin, which makes its living from government contracts—or the bulk of its living—that has huge, multibillion, multi-tens-of-billion contract with the Defense Department and other national security departments of the U.S.government, and Lockheed Martin has now been put on notice that if you don’t fire this law firm, you’re not eligible for government contracts anymore.
Who’s going to place a multi-tens-of-billion-dollar bet that courts will stop this order from being carried out?What is that big corporate client going to do?There’s a very strong risk that they’re going to switch lawyers, that they’re going to say, “We’re not in this fight.They’re not targeting us.We don’t have a dog in this fight.We don’t have to keep letting ourselves be represented by a law firm that Trump is trying to destroy.The prudent course for our shareholders would be to move on.”
And what in fact we need is for big corporations to say, “That’s a blatantly illegal order, and we’re standing by our lawyers, and we’re keeping our contract there.” But that is not the way self-interested parties tend to behave in the face of an authoritarian threat.And the difference between saving our democracy and losing our democracy is going to be whether big, powerful interests bend to Trump in hoping that they won’t be targeted themselves, or whether they band together and say, “That’s not the society we live in.”
You used a phrase just now, “bend to Trump,” “bend a knee.” The president has used that phrase in relation to some of the law firms saying, “They want to bend to me.” What does that way of phrasing things imply?Does it imply something more than the terms of whatever the agreement is between Paul Weiss and Donald Trump?What does that phrase mean?Because it seems unusual.
I say "bend the knee" advisedly because it is the kind of feudal term for literally standing before a king, bending down, kissing the ring, acknowledging the unrestricted power of that king to do as the king wishes.Donald Trump wants to be a king.He tweeted it.He tweeted an image with himself wearing a crown and saying, "Long live the king." He believes he has literally unrestricted power.23… And so bending the knee is accepting, for fear of consequences if you don’t accept, that Trump can do whatever he wants to do.And he can’t if we don’t let him.
And what this society needs in order to save itself is to stop pretending that Trump has any redlines.Stop saying, “Well, he’s doing this, but if we just mollify him, he won’t do that.” There is no restriction on him, and every time that someone makes a deal and violates their own principles or the law in order to do so, they are encouraging Trump to do it again.
One law firm made a deal with Trump to spend $40 million of free legal fees in the service of causes that Trump directs.24The next time he made the deal, it was $100 million.25He said, “Well, if I could get 40, let’s see what else I can get.”
24
The New York Times: How a Major Democratic Law Firm Ended Up Bowing to Trump
What makes any law firm think they’ll be exempt from this if they represent someone who sues the government?When universities come under attack, why isn’t Silicon Valley and the tech sector, why isn’t Big Pharma standing up for the universities and saying, “Actually, we need this scientific research that Trump is cutting; we need the educated graduates that these universities are producing in order for our business, which is some of the foundation of the American economy, to function the way it should”?
Don’t arbitrarily go after universities.The country needs them.We need them.Who’s saying that?Nobody.And again and again, I say, everyone has to stand up for rule of law and a constitutional democracy, everyone who has influence, or we’ll lose it.And if they do stand up, we won’t lose it.
Is this another example of sort of targeting law firms, elite universities, of sort of setting an example with a test case that might not provoke as much outrage from people?Who wants to protest over a Wall Street law firm being targeted in this way?
The cowardly approach is to say, “Well, it’s not me, thank God, and I’m going to keep my head down in hopes that Trump doesn’t notice me, in hopes that Trump doesn’t notice that sometimes we actually represent clients who sue the government.” A functioning legal system needs representation for people who say the government is doing something unlawful.They need that no matter who the president is, and they especially need that when the president is so frequently and flagrantly breaking the law and vandalizing legal institutions.
And so the self-interested, frightened response is to say, “We’re keeping our heads down.We won’t say a word.We won’t come to the defense of Trump’s latest target.” And they are disregarding, failing to grasp the magnitude of the threat, failing to grasp their own long-term interests when they don’t stand up.
Trump can’t fight the whole legal system if it stands together saying, “We represent something absolutely vital and irrepressible in our constitutional system,” but he can pick off targets one at a time if nobody else is going to stand up.
Fear in Washington
To drill down on another word that you’ve used, that we’ve heard a lot, which is “fear,” in a lot of these contexts—fear in Washington after USAID was taken down, fear amongst law firms.How important is fear to what we’ve been talking about, how the president is operating?
Well, fear and greed are both vital to the form of government that Trump is trying to institute.He gives gifts, presents to his friends, whether they are pardons from convictions of crimes or whether they’re government contracts.You have Elon Musk, for example, who is exerting enormous power over the Federal Aviation Administration, which has restrained his space company in the past, which regulates his space company, which—and he’s allowed to gut that institution and decide who’s going to be enforcing its regulations at the same time that he’s being offered new defense contracts because he’s on Trump’s side.So the message is, “If you want the bounty of government, do as I tell you.”
And there is also a very real fear that if you don’t follow Trump’s orders, that the government will be weaponized to penalize you.And so Trump has tried to impose his will on state authorities, which have, along with Congress, the power to regulate the time, place and manner of elections, to say, “If you don’t do it the way I say, then I’m going to remove all federal funding in support of running an efficient and secure election in your jurisdiction.”
That is another illegal order that will be challenged, and probably challenged successfully, in court.But Trump is doing so many of them that he is intimidating people.
If you’re a state election official and you rely on tens or hundreds of millions of federal dollars to make sure that your election is run securely and efficiently, it is a very big stick to wave and to tell you that you might lose all that if you don’t obey the president’s orders.
And by the way, what are the president’s orders in his elections executive order?26He is saying that every state must disqualify any voter who can’t provide proof of citizenship in the form of a birth certificate or a passport.What does that do?There are 21 million Americans, according to Brennan Center research, who don’t have ready access to those documents.27Most Americans have never had a passport, for example.28I don’t know whether—if you are sort of viewing this documentary, you know where your birth certificate is, but 21 million Americans don’t, and those tend to be poorer and younger and minority groups, and it’s a blatant effort to disqualify more than 10% of the electorate from voting.
26
27
Brennan Center for Justice: 21.3 Million American Citizens of Voting Age Don’t Have Ready Access to Citizenship Documents
Trump doesn’t have that power, but he’s using his control of federal funding, illegally, to try to impose that on the states.
How pervasive do you think the fear is?We’ve been talking a lot about the courts, lawyers.What about outside in civil society, in corporations that might not like the president’s policy on tariffs, that might have been lobbying or speaking out in other administrations?Do you have a sense of how much what we’ve been talking about, the examples that have been said, are affecting outside in the corporate world and the civil world?
It looks from the outside as though fear has dominated the corporate response to Trump up until now.We know that many, many U.S.employers rely on immigrant labor to fill their personnel requirements and can’t actually function without it.We have a demographic shift in this country towards the elderly.There aren’t enough young workers to fill all the jobs that companies require, and it’s immigrant labor that has made the economy viable, that has paid into Social Security so that the older Americans can retire.But they are not speaking up in large part, or they’re speaking very softly.
A great majority of corporations rely on free trade and are alarmed by the imposition of tariffs, including wildly fluctuating decisions on tariffs—one day it’s this; one day it’s that—and for that reason, the financial markets have gone down.That’s one measure of dissent, is that the stock market has lost several percentage points and has veered into correction territory in some cases, meaning it’s lost 10% of its value because of Trump’s policies.29
29
The Economist: Tracking the presidency
And yet there are very few companies that are speaking up.There have been reports that the three major car companies talked to Trump about how they depend on foreign parts to build American cars, and it’s been reported that Trump warned them, “Don’t you dare increase your prices.” Since when can a president order a company not to increase its prices?30It’s just one more extraordinary example of the powers that Trump is claiming that don’t come with the presidency, that he’s not entitled to.
And you’re seeing a kind of meekness from companies who are afraid of being targeted, who are afraid of being regulated by a hostile agency, who are afraid of losing government contracts, and therefore obeying, or at least not opposing, Trump’s dictates.
… It’s early yet in the Trump presidency, but we are walking down a road in which he can badly damage our democratic institutions, in which he can remove accountability from the president, in which he can emasculate the rule of law, in which he can intimidate opponents who would dare oppose what he’s doing.
And every sector of society—political and civil and legal and corporate—has to stand up and defend the country that they live in, because if they don’t, we could lose it.
Deportation of Venezuelan Migrants
You talked about the Alien Enemies Act already and the judges’ interactions, which I was going to ask you about, but do you think that’s an area like foreign aid that was sort of carefully chosen as a place to make a stand on immigration?
Trump has chosen targets early on that are unpopular.This is what dictators do in every country—“Well, at least they’re going after these people who I don’t care about and not me and mine.” And that doesn’t tend to last.But yeah, sure, he has tried to claim extraordinary and legally baseless powers to deport people who he calls gangsters and terrorists.
Now, the Alien Enemies Act of 1798 has been used three times in American history, only in wartime, and in many ways in very disgraceful circumstances.That’s the law that justified the internment of Japanese Americans in camps during World War II, which led to a Supreme Court decision, Korematsu against the United States, which is widely considered to be one of the low points of the Supreme Court in its history, one of the morally and legally lowest decisions the Supreme Court ever made.
That’s the law Trump is invoking.The law requires that a hostile foreign power has invaded the United States.Trump can’t invoke it unless there’s been a hostile foreign power that invaded the United States.He has claimed that a particular Venezuelan gang is somehow affiliated with the Venezuelan government and that the presence of some hundreds of gang members in this country is an invasion.31It’s nonsense, legally and factually, but that’s the basis for him saying, “I don’t have to follow any of the usual laws to deport someone, and in fact, I can deport them to a third country that has nothing to do with them and can pay that third country, El Salvador, to put these people in one of the worst prisons in the world.”
… And even on top of that, it turns out that the Department of Homeland Security has been grossly negligent in even identifying these people as gang members.It appears that they have rounded up any Venezuelan person who had any kind of tattoo.An "I love my mother" tattoo, a tattoo saying "Support people with autism," is the sole evidence used to decide that someone is a member of this Venezuelan gang.
So it’s absurd.It’s sweeping up innocent people on top of everything else.But even if they weren’t innocent people, they weren’t given an opportunity to prove that, which U.S.law generally requires.
So Trump is using the Alien Enemies Act as a pretext, and he’s using his foreign policy powers in a grossly unlawful way by doing this, and so far, the court that’s considering it has said, “You have to stop.” We’ll see whether he stops.
We hadn’t been planning to focus on this in the film, but … the Tufts student [who] was arrested, who was here on a visa, and there’s other cases of that—what do you think?I’m curious what you think is going on.Does that send a message when we see these sort of images and these stories?
Trump is having people arrested and deported, people who have valid visas, who are legally in this country or who have green cards, who are lawful permanent residents of this country.… And the reason is that they expressed “wrong” opinions, that they exercised First Amendment rights to protest.
Now, it happens that I don’t agree with many of these people who have been targeted.I don’t like the speech that they engaged in, but it is absolutely within the boundaries of the First Amendment for them to have done that.And Trump’s saying, “I’m going to punish particular forms of speech and designate some individual student or graduate student or professor as a threat to the foreign policy interests of the United States for writing an op-ed article”?That’s simply un-American.
I guess part of that atmosphere of this moment, with all of these things that we’re talking about are going on sort of simultaneously in only a short matter of time, are we able to digest that?How are we as a country responding to all of these things happening so quickly?
Well, I think it was explicitly part of the plan of Project 2025 to overwhelm the opposition with kind of extraordinary claims of authority on many, many fronts at once, to flood the zone, to create a kind of a “shock and awe” campaign against the American legal system and against political opponents, and it has done a pretty good job of creating shock and awe and of overwhelming the system.
But people are fighting back in the courts and in the battleground for public opinion, and it’s early days yet.This is going to be a four-year term, and I think you are going to see a coming together of opposition, not strictly speaking political opposition but opposition to authoritarian rule, support for democracy and constitutional order and rule of law.
And I think those forces are going to coalesce, and I have faith in my fellow Americans that they are not going to stand for an autocracy in this country.But the early signs are that we’re not pushing back enough, and we’re going to rely on courage and collective action to come.
Especially as that pushback happens, are there things in [Project] 2025 and authorities that we haven’t seen yet in this administration that worry you or things to look for?
In the summer, in May and June, I oversaw five tabletop exercises to think about ways in which you could restrain an authoritarian who was elected.And we allowed the people playing Trump and his administration to do whatever they liked in two of the games, and in three of them, we limited action to one particular policy area.
In the two free-play games, which we called "Everything, Everywhere, All at Once," we found that—well, in those games, the Trump character did in fact try to overwhelm the opposition, and we wondered whether it was realistic that he could move so fast on so many fronts.It turns out it is realistic, and he has done that.
… Somebody who worked for Cheney once talked about the iron agencies, the ones that exerted the most power in terms of hard power—the military, the Justice Department, the Treasury—and Trump has moved to consolidate his control over all those institutions in his earliest weeks and months.
So he’s fired members of the Joint Chiefs of Staff arbitrarily to appoint a political loyalist to be in charge of the military.He has not yet used the military as a tool or attempted to use the military as a tool against political dissent at home.
In our exercises, we did test what would happen if there were big demonstrations and Trump declared them to be insurrections and invoked his powers under the Insurrection Act to deploy the U.S.military domestically.Ordinarily, a president can’t do that.There’s something called the Posse Comitatus Act, which prevents the use of the military for law enforcement, but if the president declares an insurrection, he has that power under an old statute.32
32
Brennan Center for Justice: The Posse Comitatus Act Explained
And I just think it’s important for people to realize that just because Trump has not done something yet doesn’t mean that he’s afraid to do it or wouldn’t do it or won’t do it.There were people in his last administration who urged him to declare martial law at one point.There were a number of others among his appointees who strongly discouraged that, who said, “That’s crazy.” He doesn’t have those people anymore.He doesn’t have the adults in the room who are prepared to represent anything but loyalty to Trump.
And I actually don’t think there’s anything that he’s not willing to do if he thinks he can get away with it.That’s why I think there needs to be a unified pushback against illegal behavior by the president.
Chief Justice Roberts and the Supreme Court
… Let me ask you about Chief Justice [John] Roberts, who issued that—wrote that decision in Trump v.United States, also recently responded to Trump’s threats of impeaching a judge for a ruling he didn’t like, so pushed back in that way.33And you said that the court may be cognizant about pushing too far to the point where they might marginalize themselves.Can you help me understand the dilemma that he’s in and that the Supreme Court is in at this moment as it faces all of the things we’ve been talking about?
So under Chief Justice [John] Marshall, way back in 1804, the court declared itself to be the final arbiter of what the rule of law means.34What the law is is up to the court to decide.And Chief Justice Marshall claimed that power and made it stick, and it has stuck for the next 220 years.
34
Oyez: Marbury v. Madison
And it is now up to Chief Justice Roberts to make sure—even though he is in sympathy with a great deal of Trump’s agenda, including at least some of Trump’s expansive view of executive power—he is an institutionalist who cares about the courts and the judiciary branch of government and its powers.And there’s a big question facing him, which is, if Trump does something blatantly illegal and, whether overtly or covertly, disobeys lower-court orders, is he going to put the full moral power of the Supreme Court behind a defense of the judicial branch and order Trump to do something, or is he going to be afraid that he will look feckless and weak if he orders something and Trump doesn’t do it?
And I think he does care about the rule of law.I think he does care about the institutional prerogatives and necessity of the judicial branch, and I think, based on the exercises that we played out in recent days, that the best way to preserve judicial power is to assert it; that if he somehow manages to ignore or justify or pretend not to notice disobedience of judicial orders by the Trump administration, he will have done much greater damage to the institution and to the rule of law than if he declares that the president is out of compliance and behaving unlawfully and leaves it to the rest of society to respond to that.
It sounds like you’re saying that in fact he can’t do it himself; he would need society to back him up.But that the court really is crucial to how all of this is going to play out.
Even though the Supreme Court has become very controversial in recent years—and perhaps it always has been, certainly the Warren Court was controversial—even though it is politically controversial and even though I personally believe the court has become much too political and ideological, most Americans still believe that the court orders need to be followed and that the law matters.
And I think the Supreme Court cannot afford to give up that advantage in the face of defiance by the executive branch; that the court must assert that role even if it can’t directly enforce it.
How unprecedented is this moment, everything we’ve been talking about?Is there an analogy in American history or history?
There’s no analogy in American history to what’s happening right now.No president has ever been indifferent to the law or openly defiant of the law the way Trump has been.No president has tried to take control of or to disregard the prerogatives of the coordinate branches of government, but we have seen this overseas.We’ve seen it in Venezuela; we’ve seen it in Hungary; we’ve seen it in Poland.In its most extreme form, we’ve seen it in Russia.And we are at the point—we are at an early stage of authoritarian consolidation of power, and we still have the power to resist it and to restore the rule of law, but we may not have that power in a year or two years or three years.
The history of this sort of thing is that the autocrat takes one step at a time, intimidates and suppresses dissent, and keeps on going and going and going.And so Erdogan in Turkey neutered the courts pretty quickly and restricted the opposition, but several years into his administration, he progressed to arresting thousands of opposition politicians and removing them from the ballot so that you could not even vote for them if you wanted to.In the early days, there were elections he lost.He’s not losing elections anymore.He’s not allowing himself to lose elections anymore, and that’s because society did not stand up early enough and strongly enough and in a unified, collective way to his clear path towards authoritarian government.
We have that opportunity not to repeat that mistake right now.
John Yoo and Trump
[Director Michael Kirk] … We interviewed John Yoo.Could you set up John Yoo for us?Who is he?Who was he?What did he do?And then turn the corner into whether you’re surprised or not that he supports Donald Trump.
John Yoo is a very smart guy who stands at the very far end of a spectrum of legal opinion about the extent of executive power under the Constitution.He believes that the president has enormous discretion as the chief executive and because of the—there’s a clause in Article 2 of the Constitution known as the “Take Care Clause”: The president shall “take care that the laws be faithfully executed.”
… Yoo is on the extreme of legal debate over presidential power.That doesn’t mean he’s wrong, but it means—the vast majority of legal thinkers say he’s wrong, and it’s a position that the Supreme Court has certainly not endorsed, and I hope will not endorse.
It was, for those of us who first ever heard of him in stories you wrote, Pulitzer Prize-winning stories for The Washington Post and other places.Right on the day of 9/11, he was in the catbird seat in some way and seemed to drive those policies. …
Well, back in the Bush-Cheney administration, it was Cheney and Cheney’s top lawyer, David Addington, who helped install John Yoo in a position of great influence in the Justice Department as one of the lawyers in the Office of Legal Counsel, which has the job of defining for the executive branch what the law is.
And he was prepared to write that the law allowed the president to do extraordinary things after 9/11, including secret rendition to black sites, including torture, including spying on Americans with the NSA.And he was a critical enabler of things, and those things were nearly all repudiated, either by his successors in the Office of Legal Counsel or by courts who said, “That’s not legal; no, your theory is not a very persuasive one.”
But at the time, the Bush administration relied on Yoo more than any other lawyer in government to justify what they were doing.
And as we find him now, articulating support for what President Trump is doing in lots of ways, does that surprise you?
I’m not surprised that John Yoo’s inclination is to favor an almost unlimited freedom of action for executive power because that’s what he has always stood for.I’m a little surprised that the very broad repudiation of his positions in the Bush administration has not given him second thoughts.
Media’s Role
Let me ask you one other question, and that’s about a force of people rising up, your prescription, your necessary prescription for what has to happen if the courts fail or even if they don’t, and the president decides to go it alone, go it without the courts.You didn’t mention the press, the fourth estate, the power of journalism to tell this story, especially given your long and glorious history in the journalism business.Do you have a fear that perhaps journalism isn’t going to be able to deliver the goods?Can journalism deliver the goods?Are there things President Trump has done vis-à-vis the business of journalism that could give you pause?
So Trump has, from the beginning, declared a free press to be the enemy of the American people, and he has persuaded many millions of his followers to disbelieve what they read or what they hear from the mainstream press.In this administration, he’s going further.He is, again, exerting kind of brute power against the owners of the free press to stop opposing him.
And so Jeff Bezos, who was his enemy in the first administration, has decided he does not want to be Trump’s punching bag anymore.And although he’s the second richest person in the world and commands enormous resources, he is not willing to stand up in direct opposition to Trump, and so he paid a tribute of $40 million to [First Lady] Melania Trump for rights to her life story, an absurd price in business terms.35He ordered The Washington Post not to endorse [former Vice President] Kamala Harris in the 2024 election, and he has imposed other restrictions on the editorial page.
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So far, after many years of being an excellent owner from a journalistic point of view, he has not restricted the newsroom of The Washington Post from reporting aggressively about what the Trump administration is doing, but what he’s done up until now is not going to be enough for Trump.
So Bezos is going to have to draw the line, or he’s going to destroy the newspaper.We would know if the news reporters were being told they can’t cover Trump aggressively, they would quit, and they would be very loud about it.It hasn’t happened yet, and I hope that Bezos has gone as far as he’s willing.
But then you look at ABC News, owned by Disney, which was sued by Trump under an absurd legal theory that had no merit, that they would have easily won in court, and yet they settled and agreed to pay millions of dollars for Trump’s presidential library in order to settle the suit because they didn’t want to be in opposition to Trump.What does that say about the coverage of ABC News?
And CBS has been in negotiations to do the same thing over an even more absurd Trump lawsuit.So that’s concerning.
I think we’ve still seen some very good accountability reporting from the news media talking about the consequences of what Trump is doing, talking about the gross vandalism of DOGE going through the U.S.government and what the consequences of that is.
On the other hand, I think a lot of the coverage is not quite meeting the moment.It’s not quite making it clear that we are approaching the edge of losing our democracy, and so when Trump issues an executive order that’s blatantly illegal and that is just, on its face, well beyond the powers of the president, the bulk of the news stories have said, "Trump today ordered that such-and-such happen." They don’t say, "Trump purported to order something that he has no power to do," which is what the story is.And I think news media still needs to adjust on that.
… Just purely in journalistic terms now, how important is it that we approach balance in the telling of this tale that we’re about to do and that you’ve told?How important is that?Because I feel a lot of our brothers and sisters are in that world and trying to do that, but I don’t know. Is this a case where maybe … this is so big, maybe there isn’t another side to this story?
One way to look at the journalistic problem is to say, “Are journalists taking sides?” The longtime mainstream journalistic imperative has been balance, has been to give all the major players in a controversy their say.And there has been a more recent debate in which many journalists are saying, “You’re allowed to take sides on at least one thing, and that is what’s true,” that the deepest, most fundamental imperative of journalism is to say what’s true.
And so if one person says something that’s backed by evidence, and another person says something that is manifestly false, that’s demonstrably a lie, you don’t do a both-sides report on that.You don’t say, “Well, this one says this, and that one says that, and who knows?It’s up to you to decide.” You need to be on the side of truth.
And I also believe, along those lines, that journalists are allowed to be and, in fact, are obliged to be on the side of democracy and the rule of law, because without that constitutional system, without the rule of law, without the First Amendment, our political system and journalism itself can’t function the way they’re supposed to.
And so you can’t take a partisan approach supporting one political party or another, but you can take a pro-democratic, small-d democratic approach in upholding the rule of law.
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Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation
Koo and Patricia Yuen
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Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Additional funding is provided by the Abrams Foundation; Park Foundation; the John D. and Catherine T. MacArthur Foundation; and the FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
