The FRONTLINE Interviews
Charlie Savage
The New York Times
Charlie Savage is a Washington correspondent for The New York Times, where he writes about national security and legal policy. He previously reported for The Boston Globe. Savage is also the author of Power Wars: The Relentless Rise of Presidential Authority and Secrecy.
The following interview was conducted by the Kirk Documentary Group's Mike Wiser for FRONTLINE on March 25, 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 may start the film is the moment when Donald Trump goes out to the Justice Department and speaks in the Great Hall.Can you help me understand that moment, sort of what he’s doing, how different he is as president and what he’s saying there?
Trump’s speech at the Justice Department was a moment of triumph for him, of conquering the institution that had sought to hold him accountable in the previous years, that had brought two indictments against him and three major investigations, if you go back to the original Russia investigation.Of course, he had triumphed over those indictments by winning the 2024 election, which required the Justice Department to drop the cases against him, based on its theory that sitting presidents are immune from criminal process.
And so swaggering into the Great Hall of Justice and declaring victory, essentially, denouncing the decisions that had been made in that building, to investigate what he had done and to bring cases against him, and to sort of smugly say, “How did that work out?,” was a moment of particular singularity in his pushback against the criminal justice system and his victory over it.
For that department, was it a sign that he was going to be treating it differently than maybe other presidents, maybe even than he had in his first term?
Well, it certainly fit this broader pattern, which he’s made abundantly clear, not that just he is going to be, but that he has been.The truism that he’s treating the Justice Department as a personal law firm is almost literally true in the second term here, where he has filled its upper ranks with people who previously had been his personal lawyers.Criminal defense lawyers, impeachment lawyers, defense lawyers for him have abruptly gone from trying to counter federal prosecutors and FBI agents as they investigated him and sought to hold him accountable to being the bosses of those people who had done that, and being the instruments of his revenge against that institution.
I talked to Norm Eisen, who was mentioned specifically in that speech.1What does it mean for the president to call out a lawyer who he sort of sees as an opponent in a moment like that?2
Well, it’s not just Norm Eisen.He has called out many individuals by name.He’s issued executive orders targeting law firms because they once hired lawyers, in some cases who aren’t even at those law firms anymore, and he’s nevertheless going to punish them as an institution.And it’s about sending fear to lawyers, a message of fear.Lawyers tend to be risk-aware, risk-averse people.Part of being a lawyer is thinking down the road and identifying things that could go wrong.
And so cowing legal actors, whether they’re in the government or in private law firms or in public interest advocacy group postures, and making examples of people is part of a broader effort to intimidate institutions, entities, organizations that might seek to hold him accountable.
Even before he took the oath of office, you wrote an article about what you saw coming based on the promises he had made during the campaign, statements he had made during the campaign.3How much of what we’re going to watch happen in this film and over his administration were things that he had run on, that he had promised?
3
The New York Times: Why a Second Trump Presidency May Be More Radical Than His First
Overwhelmingly large amounts of it.I think you’re referring to not just an article but a series I wrote with two of my colleagues at the Times, Maggie Haberman and Jonathan Swan.4We spent 18 months documenting the plans that were being made by Trump and the people around him for what they would do if they got back into office, and there were a lot of hot takes in that era that weren’t really grounded in anything real.We tried very hard to keep it grounded into things that were actually coming out of Trump’s mouth, actually on his campaign website, or were being said to us on the record from people who were exceedingly close to him, were advising his campaign and now indeed are back in government.
4
The New York Times: How Trump Plans to Wield Power in 2025: What We Know
And a large amount of what we’ve been seeing in these first few months of the second Trump administration were explicitly laid out and knowable at the time.And from using the Justice Department to go after his adversaries to the extraordinary multipronged crackdown on immigration to the attempt to impose tariffs on allies in a way that had not been done even in his first term in terms of its scope and sweep, and many other aspects, this is stuff that Trump said he was going to do, maybe with the exception of bringing Elon Musk into government to be the instrument of his vow to dismantle the administrative state.But he certainly said he was going to totally destroy the administrative state, and he was quite open about it.
You wrote that there would be a challenge to American-style democracy, that that was what was coming.What did you mean by that?
Well, American-style democracy is not just the notion that people who have power have been elected to wield that authority by a majority of voters.But it’s also about constraints on any particular entity or person having too much power.American-style democracy is about the separation of powers.It’s about checks and balances.It’s about the rule of law acting as a limit or a guardrail on what any one particular person or small coven of people can do.
And part of what we’ve been seeing is an erosion, a very deliberate erosion of the power of Congress to enact binding laws that regulate what the executive branch of government can do, that says you can’t do these things, or you must do those things.You can’t fire certain types of people arbitrarily; there has to be a good reason, or you have to go through certain processes.You have these certain emergency powers but only if certain conditions are met, and if they’re not met, you don’t have them.All kinds of ways in which there are limits within our system of too much power being concentrated in the White House are under erosion as we speak.
Trump’s Executive Orders
So let’s go to the very first day.A lot of presidents come in and sign executive orders on their first day.Was there something different about—I mean, obviously he started doing it in the middle of an arena.But was there something different not just in the style but in what he was doing as he came in on that first day, and the orders he was signing?
Well, for one thing, simply the volume of executive actions, whether they were executive orders or proclamations, other sort of variations of that, that we saw on the first day was extraordinary, way more than other presidents in modern history.And I think part of that is derivative of the fact that it’s very unusual to have a president and the people around him who had been in power before and lost power and had four years to think about what would they do if they got back into power, applying all the lessons they had learned about how government works to take better advantage of a second window of opportunity.
So here we had both Trump, in terms of his campaign itself and also the apparatus of Project 2025, the conservative think tank coalition that had come together to come up with proposed plans and things he could do, to hand off to him if he did get back into power.Of course he tried to distance himself from that during the campaign, but it was transparently false at the time, and many of the most important people of Project 2025 indeed joined his administration.
And so they had a large number, dozens and dozens, of executive orders drafted and ready to go from day one in a way that previous new presidents coming in—of course they were assisted by people of their party who might have been veterans of previous administrations, but not in the same way as this, as a sort of full-on restoration.And the volume of what they were able to do therefore was tenfold.
The aggression of some of the executive power theories being put into play in those orders, some of them at least, was also quite unbounded.And one of the differences between the Trump 2 administration and the Trump 1 administration is that there were greater constraints on Trump and his top advisers in the first term from a variety of factors.There were still Republicans in Congress who were willing to stand up to him occasionally.The John McCains, the Liz Cheneys—those people are all gone now.The remaining Republicans in Congress, who have majorities in both chambers, are completely subordinated to Trump and the MAGA movement.Their greatest fear is a right-wing challenge in a primary campaign that would end their career, and there has been a demonstration of complete subservience by the legislative branch as a result of the changes to the Republican Party, which is clearly now in Trump’s thrall.
There were people in the first Trump administration, the so-called grownups in the room, were traditional conservatives, Federalist Society lawyers who were very conservative ideologically but were also very serious lawyers as well, who were occasionally willing to say no to ideas that they thought were outside the bounds of legitimate legal interpretation or just simply bad ideas, to raise objections to slow things down.
One of the lessons learned for the people who stuck with Trump after his first term and after the events of Jan.6 was that one of their mistakes was having too many people like that around the president, and there was a very deliberate effort during their four years out of power to vet people, both lawyers and potential appointees who were not lawyers, to ensure that they would be more in the MAGA mold, more permissive lawyers, people who were not going to be obstacles, slowing down ideas coming out of the White House, but accelerators.And so that’s a second way in which there are fewer constraints in this second Trump administration than there was in the first.
And thirdly, the federal judiciary can act as a constraint on the executive branch.But the judiciary, as it existed in 2017 and for most of Trump’s first term, was less conservative, less Republican-appointed than it is now.Because of the impact of his four years of appointments, especially on the Supreme Court, he was able to create a, as we all know, a supermajority of Republican appointees and so is much less likely to, in the end, in this sort of blizzard of litigation that’s arisen, rule against him.
So for all these reasons, I think they feel much more unbound, much more aggressive and less cautious in making very assertive theories of executive power in the executive orders that they were issuing.…
I was thinking about one person who’s not a lawyer, who’s Stephen Miller, who sometimes has described the idea of “flood the zone.” How important was he in this, in what happened on that first day?
Well, Stephen Miller is an extremely important adviser to Trump, one of his most important lieutenants.He’s the architect of Trump’s immigration crackdown, and he’s assumed a larger portfolio in the second term as basically the head of domestic policy, although we see that also he’s playing a role in international affairs.And he is extremely loyal to Trump; he’s extremely smart and was running a sort of pro-Trump legal firm during the four years Trump was out of power.A lot of the lawyers that he met and developed, even though he himself is not a lawyer, as part of that effort are the sort of people now who have come into this administration.And in many ways, the policies we’re seeing are part of Stephen Miller’s handiwork.
Indeed, he was open with it.He told us, when we were working on our series, predicting what Trump would do if he got back into power, especially in the context of the immigration crackdown and mass deportations, that part of their strategy would be to overwhelm the advocacy community that they knew would file lawsuits and try to block things they were doing; by doing so many different things, under so many different claims of legal authority at once, that it would be overwhelming, and people wouldn’t know why anything in particular was happening, and they would just have to pick a target here and there.And much of what they were being able to do, trying to do, would then get through regardless because so many things were all happening at once.
It’s so interesting that they were so open about it, because now they use the word “mandate” a lot.
I think that’s right.You know, they use the word “mandate” in a deceptive way, by claiming that Trump’s victory, electoral victory, was much larger than it was.It was a narrow victory in just a plurality of votes, not an outright majority in terms of the popular vote.5But they also can say, and I think they were thinking at the time, “Let’s just say what we’re going to do,” and if they say it publicly, if the New York Times writes about it, no one can say, “Oh, this is bait and switch.” This is what they said they were going to do, and they’re doing it.
One of the things he said he was going to do was to pardon the Jan.6 people who had been convicted.I’m not sure everyone expected him to do it as broadly as he did.What do you think was the message that was sent in what he did and in the way that he did it on that day?
Yeah, because that was one of the really first extraordinary things that he did, which was pardoning everyone in connection with Jan.6 rather than being selective about it.There had been noises about, “Well, he’s certainly going to pardon some people, maybe people who simply trespassed into the Capitol but did not do anything violent.” People around him, up to and including JD Vance, were saying just a few days before the inauguration, “Of course he’s not going to pardon people who beat up police officers.” The mere suggestion of that was greeted with, “Oh, that’s Trump derangement.You’re just assuming the worst because you don’t like him for political reasons.” And then Trump in fact pardoned everyone, including people who had assaulted police officers and people who were serving very long sentences for organizing some of the violence that happened that day, the Proud Boys and Oathkeeper militias.
I think the message of that was one of total impunity and that the government now will have the back of people who are willing to use violence for political reasons for that side of the political spectrum.It’s clearly going to be encouraging people who may already have a bent in that direction and have demonstrated perhaps lack of great judgment, since they were willing to do it before, to do more.We’ll see.We’ll see what happens.
Have you talked to anybody, like at Congress or other places, that got that message, or was afraid?
Did I talk to anyone who was afraid?
Who sort of got that message?Because I’ve read that after Jan.6, there were some legislators who may have been fearful of how they voted because of fear of violence.I was just wondering if you had had any conversations or specific—
I’ve not talked to Republicans who’ve said that.I’ve seen Republicans say that other Republicans have said that.… Liz Cheney and Mitt Romney have both publicly said that other members of the Republican Caucus wanted privately to vote to convict Trump in the second impeachment and were afraid to do so, both not just for their political careers but because they were afraid that they or their families might be attacked.
The Unitary Executive Theory
You did a good job of laying out that framework of what they were walking into.Just one other thing I wanted to get from it is that Trump seems to have an impulse to power, but he also connects up with a legal philosophy, the unitary executive theory, which seems to go back even before he runs for office.What is that that he’s tapping into and those around him are tapping into?
So in the 1980s, the Reagan administration took power in the White House but was faced with an entrenched Democratic majority in Congress, especially the House, which had been held continuously, since 1954, by Democrats.And Reagan was a very activist conservative president.He wanted to push through a lot of policy changes.He had been elected to do so with a real clear majority and was stymied, to some extent, by his fights with Congress.And that caused conservative lawyers working for primarily the Justice Department under then-Attorney General Ed Meese to develop theories for why Reagan could achieve some of his policy ends without new legislation from Congress, theories of expanded executive power for the reason that, at that point, the executive branch was seen as a place for conservatives, the legislative branch was seen as a place for liberals.
One of the key things that developed out of that atmosphere was the unitary executive theory, which is an ideology that the Constitution ought to be reinterpreted [sic] than it had been to tie the hands of Congress when it came to issuing new laws, enacting new laws that would regulate the executive branch in a way that limited the president’s total control of what the government was doing.This particularly mattered in places like the creation of independent agencies that wield executive power without being under the direct control of the president, or even individual officials who maybe have the authority to—say the head of the EPA, the law says is the one who decides how much of a certain pollutant to allow into the air.Maybe that kind of law is unconstitutional.The president ought to be able to make those decisions himself based on a reading of the Constitution that was different than how the Supreme Court had interpreted it going back to the 19th century.
And so this theory, the unitary executive theory, held that laws which limit the president’s ability to fire anyone in the government at will, by saying you could only say—let’s say you’re appointed and confirmed to be the head of an independent agency or a member of the commission that heads it.You have a five-year term, let’s say.You can’t be fired or removed before your term is up unless there’s some good cause, you committed misconduct or malfeasance in some way.
The notion is that those kinds of laws, which the Supreme Court has upheld for generations, should be struck down, and the president should wield absolute control over everything the government is doing, including the ability to fire people who don’t do exactly what he tells them to do, even if some statute says otherwise.So that comes out of the 1980s.The Supreme Court rejects it in a 1988 case called Morrison v.Olson, upholding the notion that Congress can create pockets of independence in the executive branch.6But it continues to sort of inculcate within the conservative legal movement that comes out of the ‘70s and the ‘80s, and gradually has become kind of an article of faith among conservative lawyers, including the types that Trump ended up putting on the federal bench in his first term.
6
Oyez: Morrison v. Olson
And the Supreme Court has been clearly moving toward that direction, striking down on the edges of things the limits that Congress has imposed by law on the president’s ability to remove certain kinds of officials.And what we are seeing now, in the blizzard of firings that Trump has been carrying out, or his appointees have been carrying out in the first few months of his new administration, is very clearly an attempt to set up the new-look Supreme Court to declare that this kind of once out-of-left-field—or maybe right-field—legal theory that comes out of the Meese Justice Department in the ‘80s is actually true, and decades and generations of precedent to the contrary would be thrown out.
So they are firing people without obeying the limits and the restrictions that Congress has set up.They systematically fired almost all the inspectors general in the government, who are not supposed to be fired unless Congress has given a good reason for it, and there’s a 30-day waiting period.7They just summarily ousted them.They’re firing the heads of independent agencies, blocking them out of their offices.They’re, without a good cause, just summarily firing civil servants without obeying civil service protection rules and so on and so forth.
Lawsuits are thus being inevitably filed by these people who have lost their jobs, apparently illegally, in contravention of what federal law is as it now stands.8And these cases are going to reach the Supreme Court, and there’s a good chance that the new-look Supreme Court, the majority that Trump created, will in fact rule that the unitary executive theory is true and uphold the firings by striking down those statutes, thereby strengthening Trump’s hand as president and thus the hands of all future presidents as well.9
Would that be a change to what you described as American-style democracy?
It would absolutely be a change to American-style democracy as it has been experienced going back to the 19th century.Congress has exercised its own constitutional rule, set rules and regulations for how the government should work by occasionally creating agencies and officials that are not subject to the direct control of the president and nevertheless perform certain functions that Congress thought should be insulated from the direct control of whoever happens to be in the White House at any particular time.
Not only would that remove the sort of diffusion of decision-making authority and concentrate greater power in the presidency over all the things that those different agencies and officials do, but it would also concentrate greater power in the White House, a shift from Congress by denying Congress even the ability in theory to make decisions about what the structure of American government should be.
We talked a little bit at the very beginning about the Justice Department and how he saw it as sort of being his own lawyers.When you look at the people at the top—Pam Bondi; at the beginning it’s Emil Bove; there’s Ed Martin; there’s Kash Patel at the FBI—what’s the message that’s sent with the people who he’s choosing to have at the top?
Well, by choosing people who have personally represented him as lawyers in private practice, and especially criminal defense lawyers, and putting them in charge of the federal criminal justice system, for one, Trump is unabashedly erasing any distinction between the role of the Justice Department as the nation’s instrument of criminal justice and personal loyalty to Trump and his interests.And these are not people who even make a show of trying to give lip service towards independence.When Trump came to the Great Hall for that speech at the Justice Department, Pam Bondi declared how great it was to work for him as the greatest president ever and so forth.There was not a sense of like, “I have a role to play that is in our society apart from my personal loyalty to this man.”
And I would add to that there is another element, which is that traditionally, including in the first Trump administration—Republican administrations generally—but there has been a function in government decision-making in which executive branch lawyering plays a very important role.Interagency lawyers, the top lawyers of all the different major departments and agencies and in particular the Office of Legal Counsel in the Justice Department, which is supposed to decide question about how to interpret the law for the executive branch, lawyers from these groups get together before a major decision is made, before an executive order is issued, or proclamation, and they discuss the legal framework within which policymakers can make decisions: Is this executive order compliant with the best reading of the law, or even if not the best reading, a not-off-the-wall reading of the law?Is there a basis for doing this?What is the window within which policymakers have legitimate discretion, and where does the law say you can’t go beyond this and that?That whole structure, at least in these first two months as far as we can tell, has been completely ignored.They have not put an acting head in the Office of Legal Counsel.There is not a nominee to lead the Office of Legal Counsel.10It’s just been totally sidelined.They have not been shunting executive orders, all the flurry of executive orders from the first days and even since, as far as I can tell, through OLC for vetting and approval.They might be notifying them now that they’re planning on doing something, but that’s different than a really rigorous scrutiny and review and back-and-forth about the parameters of whether this is a legitimate thing to do or not legally, separate from what your policy and ideological interests might be.
It appears to be a much broader approach to wielding power and the law in which the desire to do something is the starting point, and then we’ll come up with a legal gloss afterwards that if we need to go into court and defend, we can.And we saw that most recently with the decision not to turn planes around after a judge had ordered the Justice Department not to finish up with some summary deportations of some Venezuelan men to a prison in El Salvador based on a very contentious proclamation that President Trump had issued that was challenged in court.The judge said, “Let’s have a restraining order.Let’s figure this out.Is this legal or not?And in the meantime, don’t act on this.If there’s planes in the air, turn them around.” They did not turn those planes around, and they have come up with sort of a thin excuse for why they didn’t obey that order.It does not sound like something that went through the kind of rigorous executive branch lawyering that was familiar from previous administrations to include the first Trump administration.
The Eric Adams Case
The other example that stands out early on, that bubbles up and becomes public, is the Eric Adams case and the conflict with the SDNY [Southern District of New York], and even internally inside the Justice Department.Can you help me understand what happened there and why it was different, what it tells us about this administration?
The Trump administration inherited a corruption case against New York’s Democratic mayor, Eric Adams, and Eric Adams went down to Mar-a-Lago to appeal to Trump, and his lawyers made a case to the new team at the Justice Department that apparently included that this case was interfering with Eric Adams’ ability to help Trump in his mass deportation agenda.
And they made a deal.And the top of the Justice Department, Emil Bove, ordered the U.S.Attorneys’ Office in New York to drop the case against Mayor Adams, but to do it without prejudice, meaning it could always be brought back.And the U.S.attorney, the acting U.S.attorney… refused to drop the case and then was basically forced to resign as a result.And the Justice Department went forward with dropping this case and asking a judge to do it without prejudice, which would leave it hanging over the mayor, going forward, that they could always bring it back if he did not snap to anything they wanted him to do.11
Numerous people resigned at the SDNY.Numerous people resigned at Main Justice.In another era, you would think that might cause hesitation.It seemed to have even done in the first Trump term; it did during the Bush administration.Help me understand that, that a moment like that doesn’t lead to things change.What does it tell you, that numerous people end up leaving or being fired?
Well, numerous people, including very conservative, traditional conservative people in New York and in the Public Integrity Section [of the DOJ] here in Washington, DC, yes, were not willing to go along with that and left the government instead or were fired.And you’re right: It didn’t stop anything.Part of what has characterized these opening months of this administration has been a scourging of the Justice Department, an ousting of numerous people, both prosecutors—well, especially prosecutors.We’ll see what’s going to happen at the FBI, but very top FBI people have been forced out, but not rank-and-file people to date.12
12
The New York Times: Unease at F.B.I. Intensifies as Patel Ousts Top Officials
And I think in the noise of so many people losing their jobs so quickly, further resignations almost barely register at this point, in the deluge of everything that’s happening almost every single day.But part of the issue as well is, well, why would a mass resignation cause a problem?What would be the mechanism by which that would cause a problem?You know, why did the mass firing in the Nixon Watergate case, the so-called Saturday Night Massacre, when he kept firing people to try to get rid of the prosecutor coming after him, why was that ultimately a problem for Nixon?13Why did it cause blowback?Well, the blowback took a form, and the form was another branch of the government.Congress woke up, right, and held oversight hearings and demanded answers and issued subpoenas.
13
CBS News: What was the Saturday Night Massacre?
Trump is protected in the current environment by the fact that the Republican Party controls both chambers of Congress, so Democrats lack the power to hold oversight hearings and issue subpoenas, and by the fact that, unlike when he was in his first term, there is no one left in an elected position in the Republican Party in Congress who is willing to put his or her head up and even mildly criticize what’s going on.14
Not only does he not fear impeachment, he doesn’t even fear the prospect of oversight hearings.And so something extraordinary, like the mass resignations/firings that we’ve been talking about, just becomes another headline that’s buried under the next headline and the next headline and the next headline without an institutional response to do something about it.
That’s amazing.And I guess, without that response, in a way, they come out more powerful at the end of it.They’ve made an example.
Right.Without a meaningful response, when there’s effectively acquiescence from Congress, that means what they did, they being anyone in the executive—this is a dynamic in any administration.When the executive branch takes an assertive disputed action based on a, let’s say, edgy theory of the executive power, if Congress does not respond as an institution but acquiesces to that, that essentially is ratification, that that’s OK to do that, and it becomes part of the arsenal that’s available to the executive branch going forward.
Elon Musk and DOGE
… It is interesting how Congress keeps playing a role.The other part was, the role of Elon Musk and DOGE and how they are operating inside the government.How unusual is the way that the powers that Musk is given and the way that DOGE is operating?
Well, there’s a lot that’s very unusual about that.Some of what people say is unusual about it is, I think, a red herring.You hear it a lot: “Oh, he’s not even a government official.How could he be doing these things?” He, in fact, has been made a special government employee hired by the White House, and so to the extent he’s wearing his hat as a government official when he does things, that’s not unusual anymore.15
They have set DOGE up in a way that is intended to thwart oversight—obviously Congress will do nothing right now for political reasons, but to thwart outside oversight.They have declined, for example, on paper Elon Musk is not the head of DOGE.He’s just a random White House adviser.Some other person that no one’s ever heard of is the head of DOGE, and then the DOGE staffers who have been embedded in various departments to dismantle those departments don’t work for DOGE; they technically work for those departments.
And the purpose for that is in part to thwart the Freedom of Information Act so that they can have an argument that the DOGE communications and Elon Musk’s communications are not subject to FOIA, not subject to being demanded to be made public, because they’re not really an agency, he doesn’t really have a role in this on paper, even though obviously he’s running the show, and Trump repeatedly says you’re the boss of DOGE when he’s addressing Congress.
There’s this very sort of formal representation of what’s going on that has—obviously just transparently bad faith in those—the actual thing that’s going on.But courts are loath to look beyond what the executive branch says is happening in formal representations to what is actually going on, and they’re relying on that deference to try to shield the inner communications of what’s happening in this effort.
Beyond that, the DOGE effort is one of the Silicon Valley-style “Move fast and break things,” and some of the things that are being broken are laws about how the government is supposed to work, structures of government.Congress has enacted a law saying the U.S.Agency for International Development shall exist as an independent entity that’s not part of a department and shall do these things, shall spend this money, and they are just refusing to spend the money and folding the remnants of that agency into the State Department, notwithstanding what the statute says, and they’re daring someone to do something about it, and since Congress is demonstrably not going to do anything about it, that falls upon the courts.
We’ve seen this blizzard of litigation, and over and over again, judges now starting to say, “Hold on.Don’t do that.Stop doing that,” and more and more, the administration seemingly not obeying those orders with rationales for why they’re technically in compliance that are increasingly thin.So that is a story that is just really beginning and will not end until those cases get to the Supreme Court.
Do you think that USAID was a test case for what they wanted to do?Foreign aid is not the most popular thing among voters.Was it part of a strategy to go after USAID, this congressionally created and funded agency?
Well, it was clearly an early target.They’re now going after the Department of Education, which also has a lot of criticism, especially among conservatives.So they’re picking targets, yes, that would be politically more palatable to establish that this is something that can be done in general.
You said this in your last answer, but to be clear, how shocking is it that they would declare that they have the ability to end a congressionally created agency that’s funded by Congress?Over your career and looking at things, how surprising is that?How surprised should we be?
Well, it’s part of a broader pattern of extraordinary aggression toward the notion that laws enacted by Congress matter at all, when it comes to what a president chooses to do.USAID was not the first step in that.I would say the first step in that is forgotten now, because it’s been buried under a deluge of events, but one of Trump’s first executive orders was to effectively nullify a law that had been passed by bipartisan majorities in Congress and just upheld by the Supreme Court which barred TikTok, the Chinese-owned social media app, from operating in the United States, meaning it shouldn’t be in iPhone stores and Google Android stores.16And that was a controversial law that, on policy grounds you might agree with, you might disagree with.But either way, it was a law that had just been passed by bipartisan majorities, had gone to the Supreme Court.The Supreme Court had upheld its constitutionality.And Trump said to the Justice Department: Not only will you not enforce that law, you will send letters to Google and Apple declaring that if they flout the law, they’re not breaking the law. It’s one thing to say as a matter of prosecutorial discretion, “We won’t prosecute you if you do this thing.” It’s another thing to purport—to just claim to have the power to say that breaking a law the Supreme Court just upheld is not illegal, somehow derives from your powers as president.
In fact, Pam Bondi sent those letters, and the app is back in the stores.And it’s not clear how that’s legal at all, but that’s the new constitutional order that is being created around us.
We see Elon Musk there with the chainsaw and sort of being the front person for it.Behind the scenes, how important is Russell Vought and the theories and what he had been building up in the run-up to Trump taking power for the second time?
So [Director of the Office of Management and Budget] Russ Vought is, like Stephen Miller, one of the very most important lieutenants to Trump.He is strongly ideological.He’s a true believer.I’ve talked to him.We interviewed him at length for that series we discussed.He believes that the United States, over the course of the 19th and 20th century, got far away from what he thinks the Constitution meant is how the government should work.He thinks that the whole structure of independent agencies and having a professionalized technocratic bureaucracy to carry out the functions of government is unconstitutional or undemocratic because it sometimes can act as a counterweight to whoever is in the White House, doing whatever he wants to do in the moment.
And he has been developing many ideas for dismantling the federal government as we know it, and many of its functions.He told us, quite explicitly, he wants to search for pockets of independence from presidential control and stamp them out.He’s made no secret of the fact that he wants to wrest for the presidency more power over spending decisions, away from Congress, by reestablishing the power of the president to do what’s called impounding funds, which is Congress appropriates money and says, “This shall be spent on X,” and the president doesn’t like X, and so he doesn’t spend it on X.He just refuses to carry out that appropriation order.
Congress banned that during the Nixon era, and he thinks that that ban should either be rescinded by Congress or struck down by the Supreme Court as unconstitutional.17And it’s clear that some of these ongoing fights we’ve seen over the first couple months of this administration over spending freezes, both on foreign aid and even on domestic grants, are testing the limits of that impoundment control law, and we are headed towards a showdown in the Supreme Court over whether presidential power over the purse should be dramatically expanded and Congress’ power of the purse should be restricted.That is one of the core things that Vought is interested in doing.
17
U.S. Government Accountability Office: What is the Impoundment Control Act and What is GAO’s Role?
We talked about what that decision might mean to American-style democracy [depending on] the way the Supreme Court goes.But has the Congress, in not responding to this, already shaped, changed that idea of American-style democracy, in not responding to the shutting down USAID or not spending appropriated funds and leaving it up to the courts?
Well, certainly in this moment, we’re not living in a constitutional democracy of the sort that we’ve thought we were living in, where Congress would push back, and if a president openly flouted federal statutes on issues like that, lawmakers, even if they were of his own party, would, for their own reasons of institutional self-interest and protecting their own prerogatives, raise objections and cause problems for the presidency.
Now, whether this takes root as the way the government is going to work for generations to come as opposed to we’re in an aberrational moment that at some point will end, I think is yet to be written.You can imagine a scenario in which, for example, Democrats do very well in the midterm election and then Congress wakes up and for the second half of this administration pushes back very hard, and that would be very different than what we’re living in right now.Or a Democrat is elected president down the road, and the Republican Congress is fierce in protecting its prerogatives.
If this administration succeeds in getting this Supreme Court to ratify what it’s been doing, to strike down the Impoundment Control Act and to limit the ability of Congress to enact laws that restrict a president’s ability to fire anyone in the government he wants arbitrarily, or to restructure governments in ways that go beyond what Congress has said in statute, how agencies and departments should be set up, or to withhold funds that Congress said should be spent, then that would be a permanent change to the shape of government that would outlast the Trump era.And that, we just don’t know yet.
Trump Takes on the Courts and Law Firms
So in this moment, with the Congress very much sidelined, and as you’re describing it, there’s all of these battles going on in the courts, how do you see it?Because it seems like there’s hundreds of—or over 100 lawsuits, and there’s temporary injunctions, and there’s lots of things going on.What is the state of play in the courts?Who is the battle between, and what’s the big picture?
Yeah, there’s an absolute deluge of litigation that has been set off by the very aggressive policy moves of the early second Trump administration.In the first Trump administration, of course there were high-profile legal battles over a handful of issues—you know, the Muslim travel ban iterations, and could he invoke emergency power to spend more money on a border wall than Congress had authorized?And a handful of other issues like that set off very important fights that have reached the Supreme Court.
But all that is dwarfed by the volume of litigation that just the first couple months here has been set off.We’re well past the 100th major case already.It’s becoming a huge burden on the courts, and even on reporters to even pay attention to everything that’s happening, because every day there’s a new set of lawsuits, and the lawsuits that are already filed have new developments, and there’s new restraining orders and stays and appeals and injunctions and so forth.All of it is heading eventually towards that Supreme Court.
Some of those cases are stronger than others, and so Trump will certainly have some victories, and already has had some.And he will have some losses; he already has had some.But the broadest theme that arises from it is a White House that is unafraid to provoke legal challenges; thinks its chances of prevailing in the Supreme Court once those lawsuits get to the Supreme Court are pretty good; thinks that it can change the facts on the ground, such that even if it does eventually lose some of those cases, it might still have achieved some of its policy agenda in a way that’s hard to unwind; and enjoys the fight as an end to itself; is not embarrassed by the prospect that it might be accused of doing something illegal, but revels in it.
One of the things that surprised me … was the decision to go after lawyers, to go after law firms, to issue an executive order starting with Perkins Coie, a number of other actions with other law firms.We’ll talk separately about what happens with Paul, Weiss [Rifkind, Wharton & Garrison].But what did you see going on with the administration issuing executive orders about law firms?Was it to send a message?What was going on?
Yes.I think it’s of a piece with the mass firings of inspectors general and lawyers across the government, from Justice Department prosecutors to the top military lawyers, the so-called TJAGs [the Judge Advocates General] at the Pentagon—the use of government power to punish and intimidate private law firms that have, at least in the past, represented clients that Trump doesn’t like, or like Jack Smith, the special counsel that went after him, or have, through pro bono services, represented people that were challenging policies of his, by stripping their security clearances, purporting to ban their lawyers from entering government buildings, and something that I think has gotten less attention but actually in a way is more pernicious, not just banning government contracts with those lawyers, but suggesting that other companies that hire those law firms would lose their government contracts by virtue of doing business with those firms.He’s clearly trying to put those firms out of business by making them lose all their clients as punishment, and is clearly a message of intimidation, not just to punish those particular firms, but to tell other major firms: You’d better stay on the sidelines.Do not assist in legal challenges to what my administration is doing.
And it’s another way, along with those firings of lawyers inside the government, to suppress voices that might speak up and cause problems, propose impediments to challenge, try to hold accountable this government, its officials and its use of power.
Is it working?We see the deal with Paul Weiss.Assuming we have talked to some people who worked in the legal world and firms.If it’s an attempt to intimidate, is it working?
Well, there certainly have been a number of entities that have, let’s say, bent the knee, is the phrase you hear a lot.Paul Weiss entering into an agreement with the Trump administration to get the order, the almost certainly illegal order dropped against it rather than fighting is a sign of acquiescence.As you and I speak, we’re two months into this administration, and I think it’s a little early to know what this is going to mean down the road in terms of whether there will still be sufficient voices to raise objections and bring cases that want to be brought or not.
That’s interesting you use that term “bend the knee.” The president, on social media, has images of himself as a king, has I guess it’s not an actual quote from Napoleon, about breaking the law to save the country, but attributed to him.18What is that?Is that a joke we should put aside?Does it represent actual views inside of the White House of the president and those around him, this sort of monarchical, “the president is above the law” talk?
18
The New York Times: Trump Suggests No Laws Are Broken if He’s ‘Saving His Country’
Well, one of the problems in this space is everything’s a joke and also not a joke at the same time, and a troll just trying to get people spun up but also not a troll at the same time.Kidding/not kidding.And so some of that I think is noise meant to just drive people crazy, but it also drives people crazy for a reason.It’s not just a random troll.It’s not just a “Your mother” joke.It’s a troll that resonates with a behavior in which power unbound by law seems to be the operating principle of the moment.
Deportation of Venezuelan Migrants
You’ve already talked a little bit about the flights and the conflict with the judge.But to set that up, how did they see their approach to immigration?Because obviously, presidents have tried to get Congress to pass laws about immigration going back decades, and he’s going to invoke a very unusual law from the 1700s.19How did they see what they’re doing?Is it something that they promised that they would do?Help me understand what they see they’re doing legally.
Before the election, during the campaign, even the primary campaign, they were quite open about the fact that they intended to carry out mass deportations.They intended to be much more aggressive than they had been in the first term and that part of that would be invoking legal authorities that existed on paper but had not been used to their maximum extent, maybe in part because it wasn’t clear whether they could be used in this kind of context.This is part of what Stephen Miller told us on the record, this sort of flood the zone, let’s do everything, and see what we can achieve here.
And I think it’s indisputable that, more than any other issue, the reason Trump has political support has been the immigration issue.And so to the extent he does have democratic legitimacy for his policies, this is one in which there’s no dispute that he ran on doing it.Even what he’s doing now has a lot of support in the polls.But there’s a difference between—or it’s more complicated than simply should we have more aggressive enforcement at the border, and should we make a greater effort to deport people who are here unlawfully, and what techniques are acceptable, and what techniques go too far?That’s the fight in these issues.
In the first term, the big fight was, is family separation and taking kids away from their parents as a sort of deterrent so that people won’t come, is that a step too far?That was the place where sort of people really started to push back.So one of the things, yes, that they said during the campaign they wanted to do was to invoke this law from 1798 called the Alien Enemies Act as a way to get around the sometimes cumbersome and time-consuming process of deportation hearings and appeals under the Immigration and Naturalization Act.And the Alien Enemies Act says that you can just summarily oust citizens of a foreign country if the United States is in a declared war with that country or that country’s government is engaged in an invasion or what’s a “predatory incursion,” whatever that means, of the United States.
And so the thinking developed in right-wing think tanks was, maybe an invasion doesn’t mean armies crossing the border.Maybe just individual migrants showing up at the border, either seeking asylum illegitimately or sneaking across the border in great enough numbers, maybe that counts as an “invasion,” quote/unquote, and we could invoke this law, and then we could just summarily deport people without the time it takes and the bottleneck of immigration judges and hearings and appeals of those hearings and so forth.
The problem is that law on its face requires a tie to a foreign government, not just an invasion, even if you reinterpret “invasion” to mean crossing the border as individuals without legal status.And so to test out this theory, President Trump issued a proclamation that claimed that a particular Venezuelan gang called TdA, or Tren de Aragua, that has committed crimes here in the United States, clearly, is not just coming here, members of it, on their own and committing crimes on their own because they’re criminals, but that they are doing that at the direction of the Venezuelan government, at the clandestine orders of the [President Nicolás] Maduro regime, because they want to supposedly destabilize the United States through having this gang come in and commit street crimes here.20
So there’s a question raised by that, which is, is that true?The intelligence community thinks it’s not true.They did an assessment of this, I reported, about two weeks before Trump issued that proclamation and said, “This gang is not controlled by the Venezuelan government.21It’s not committing crimes here at its direction.” But Trump declared that he found, as president, that it is true.
21
The New York Times: Intelligence Assessment Said to Contradict Trump on Venezuelan Gang
So one question is, can this law be legitimately used to summarily deport people?And another question is, even if it can, can you just do that without giving people hearings?Because you say, OK, it applies to these gang members.How do you know that this person in front of you actually is a gang member?What if they say they’re not?What if they say they’re not even Venezuelan?Do they have a right to some kind of process, to go before a judge and say, “Mistaken identity.I’m just a barber, or I’m just a soccer player.This tattoo you say is a gang tattoo is just my favorite team.What’s your proof?”
So the morning or the day after Trump issued this proclamation, he was rushing people onto planes.The ACLU [American Civil Liberties Union] went to court when they just had heard rumors this had been signed before it had been made public.Got an injunction from a judge, Judge [James] Boasberg, saying, “Slow down.Temporary restraining order.Let’s figure out—Let’s freeze the status quo into place.Let’s figure out whether this is legal or not.” ACLU had said they had heard there were already planes in the air.Judge Boasberg said: If that’s true, government, you need to turn those planes around, or if they’ve already landed but they’re still in our custody, bring them back.Bring these people back to the United States so there’s a couple weeks so we can figure out, is it legitimate to use this law to oust people without giving them hearings?It’s not that you can’t deport them under other circumstances, the normal process, but can you do it just summarily, even if they say they’re victims of mistaken identity?
The Trump administration—in fact, there were planes in the air, heading not to Venezuela but to El Salvador, where the authoritarian leader has set up these giant prisons, maximum security prisons, and the United States had struck a deal with him to house people for starting with a year in these sort of prisons that were set up for terrorists.And they did not turn the planes around.They landed the planes.They handed more than 100 people off to go into this sort of forced-labor dungeon.And so that raises the question, not only was this legal to do in the first place, but did they violate a court order?
And the Trump administration has come up with a theory for why it didn’t understand itself to be violating that order, and now it’s invoking national security secrecy powers to avoid even answering the judge’s questions about who was on that flight and details about when it took off and so forth.
We talked about with USAID that it might not have been that popular a thing.And it seems like some of the comments that you get from the White House when you ask them questions about this, that they think that this is like almost a winning issue, if they’re going to go up against the courts on accused gang members being deported.Is that the sense that you get from—
Yes.I mentioned earlier that the thing—even if people support a more aggressive immigration enforcement and strengthening the border and making people who are here unlawfully go home, there could still be tactics that go too far.And that the Trump administration was burned in its first term by the family separation policy, because even people who supported taking immigration enforcement more seriously had their stomachs turned, because the idea that little children were being ripped out of their parents’ arms, and then there was trouble reuniting them later, was like a step too far.We should do a lot, but we shouldn’t do that.
So here, the people, in the abstract at least, who are affected by this are not little children being ripped from their parents’ arms.They are this very—everyone agrees—vicious, dangerous street gang.And that raises the question: Are the individuals who were really taken to El Salvador actually members of that gang?Are they innocent people who were just here because they protested against the Maduro regime in Venezuela and were being persecuted as a result and came here to seek asylum?Are some of those people mixed in with actual gang members?And so they’re still sympathetic victims, maybe, mixed in with this very unsympathetic cohort, because the selection process was sloppy and didn’t afford hearings to really make sure they were taking only the right people.
But certainly the administration has portrayed them all as these gang members.They even call them terrorists, even though that this gang does not appear to be ideologically motivated the way traditionally we think of that term as connoting something like Islamic terrorists or Irish separatists or Communist militias rather than just people who are interested in making money illicitly.
… When you were describing this, the president is sort of saying: I get to decide what the facts are, whether this is an invasion or not.I’m the head of the executive branch.I also get to decide what the law is because the OLC and others are not going to be deciding it. And it seems as they’re invoking these war powers and state secrecy act, is he pushing up against the judiciary at this point and their ability to be an independent branch in the way he was pushing up against Congress?
Let me unpack that, because you said a couple of things.… One of the things that’s happening here, in terms of this extraordinary centralization of power in the White House, expansion of the power of the president and the close advisers, elimination of checks within the executive branch further out, whether they’re imposed by other officials or by Congress, is a claim that the president himself gets to shape the reality upon which these battles or disputes might be contended.
And so we saw, in some of the memos and statements about firing independent agencies, and in the fight over the ending of the corruption case against Eric Adams, the notion that other people in the executive branch are not allowed to interpret the law for themselves, that it’s unconstitutional for anyone, a lawyer in the executive branch to interpret what the statutes mean, what the Constitution requires of them, separately from what President Trump or Pam Bondi, as his attorney general, subject to him, have pronounced the law to mean.It’s almost a totalitarianism of legal analysis that renders independent legal judgment within the government a nullity.
That would join a more longstanding tradition in the courts of generally deferring to the executive branch and the president when it comes to stating the facts or the formal reality upon which legal disputes are going to be adjudicated.Normally, courts don’t look past if what on paper the executive branch is saying is happening.Elon Musk is not the head of DOGE because look, on paper, this woman no one’s ever heard of is the head of DOGE.22He’s just an adviser in the White House.He has nothing to do with DOGE, so how could you use the Freedom of Information Act to get his communications about DOGE?It’s not even an agency.It’s not true, but on paper it’s true.
22
And so there’s an exploitation of that ability to shape the landscape, and that is particularly the case in matters of foreign affairs and national security.The president decides and pronounces that he has determined that this is true.This gang is a terrorist organization.This gang is acting pursuant to the Venezuelan government.Even if subordinates in the executive branch are telling him, “We don’t think there’s evidence for this.We think the opposite is true.It doesn’t meet this criteria,” the president has the authority to say, “I have determined that this is the case, and you just work for me.”
And so the question that’s been queued up by this now, and it’s too early as you and I talk to tell, is how this is going to test the tradition in the courts of deferring to the executive branch, especially in matters of foreign affairs and national security, especially in the formal representation of how things are working on the surface and on paper, and at what point, if at all, judges start to say, “This has been said in bad faith.The evidence does not support your determination.In another era, I probably wouldn’t even look at it, but I’m going to look at it now.” We just don’t know if that’s going to happen or if Trump’s aggression in just shaping the reality upon which these legal battles shall be fought will prevail.
Trump and the Judges
The last substantive area that I wanted to talk to you about is the other way that they’re battling these cases, which is not in the court, which is the rhetoric about the judges, which seems to be ramping up, particularly around this one case.Can you help me understand what is going on, what the president, what the White House is saying about these rulings, about this judge?
Well, we have seen this pattern of intimidation up and down the structures of society, whether it’s firing people inside the government, whether that’s what we talked about, about the executive orders, punishing law firms that represent people that might challenge the government, whether it’s threatening to bring primary challenges against Republicans in Congress who might put their head up and object to something.And so it’s of a piece of that pattern is pushing back against judges who rule in ways that the administration does not like, who issue restraining orders and injunctions blocking some of these moves.And it’s not just limited to the judge we’re talking about.Justice Amy Coney Barrett already has fallen out of favor for ruling in certain ways that the administration didn’t like.But it’s been particularly fierce so far in this case involving the Venezuelans who were sent to El Salvador.Attorney General Pam Bondi accused Judge Boasberg of siding with terrorists, and Trump himself said that he should be impeached.23Members of Congress, Republican members of Congress immediately started saying, “Yes, we should impeach him.” …
23
Office of Public Affairs: Statement from Attorney General Pamela Bondi on Federal Judge Blocking Deportations
But the message is, is the same as it is in all these other areas.It is one of intimidation and pushback against those who would pose an obstacle.
… At what point are we in?And maybe the term doesn’t even matter—“constitutional crisis,” a stress on the system.We’ve talked about Supreme Court decisions changing this idea of American-style democracy.How much stress are we in in this moment?How much stress to our system?
The phrase “Are we in a constitutional crisis?” I think is overly simplistic and not too helpful.It’s constantly asked.And I’m not criticizing you for asking it.My boss has asked it every day.But the implication is, it’s a binary.We’re in one, or we’re not in one.And is this the line that’s crossed?Is he disobeying a court order?Well, what if he has a theory that he’s not doing it but no one believes it?Does that cross the line or not cross the line?
I think a better way of thinking about it is that it’s a sliding scale and that the tensions in the structures of the government and the separation of powers and the traditional checks and balances and the rule of law and obeying the rule of law, and we seem to want to obey the rule of law, are under increasing tension.
And it’s not just any one of these fights, because every administration has a fight over something or another, where the president takes a step that a lot of people think goes too far about this or that.Think [former President Joe] Biden’s purporting to forgive student loans; people, “Did you really have the authority to do that?” But you can sort of count it on one hand; you can name it.
And here it’s not just this thing or that thing.It’s the extraordinary volume that’s happening so fast across so many different fronts that’s really what is testing the idea that it even matters that law is taken seriously as a constraint; that Congress, and what it decides the laws of the country should be and what the spending of the government should be, is taken seriously as something that might give pause to those who are currently wielding power.That’s what’s in question now.
… I wonder what the dilemma is that the court will face, that [Supreme Court Chief Justice John] Roberts will face, all of these cases start to come up to them, and he’ll have to make—not just he; the whole Court will have to make decisions about what the law is, about what is likely to happen, about how are they going to maintain their legitimacy.That’s what I’m wondering, is what is it that they face as these cases come up?
Well, Roberts—and we can’t raise him without remembering that, to some extent, he played a major role in unleashing this with his ruling a year ago that presidents have substantial immunity from their official actions in the Trump Jan.6 case.But I think one of the problems that judges always face is not just in the present moment, but going back to the 19th century, is they are the weakest branch of government.They do not command an army or a police force or government officials really at all, except for a handful of clerks.They can render decisions, but they cannot physically force the executive branch of government to obey those decisions.
And so structures of American democracy, whether it’s Congress, whether it’s the good faith and will of lawyers and others inside the executive branch, whether it’s public opinion, the constraints of some looming election, are what might make those in power over the government obey a court opinion that they disagree with and don’t like.So confronted with a presidency that does not seem to care that much about being seen to be aggressive in these areas, I think one thing that judges are going to have to think about and are already thinking about is how much of a confrontation they want to have and whether the particular case in front of them is the best one for having that confrontation, where it may be that sooner or later, this administration simply says, without a fig leaf of pretending to obey an order, simply says, “I think your order is illegitimate.I know what it says.I’m going to disobey it, and now what are you going to do about it?,” because there’s not going to be much that a court can do about it.And so they may be hesitant to push things to that level.
Do you think Roberts bears some responsibility for where we are now, because of that decision in Trump v.United States?24
24
Oyez: Trump v. United States
I think that Trump is feeling very empowered and emboldened because of the ruling that presidents are presumptively immune from prosecution over their official actions.It was a ruling that was not based in anything explicit in the text of the Constitution or in the history of how the Constitution had previously been interpreted.Of course no president previously had ever done something that led to a prosecution, so that’s why it was untested.But there’s no doubt that Trump coming into his second term—we talked about other ways in which there were fewer constraints than in his first term, in terms of the people around him, in terms of the nature of Republicans in Congress, in terms of the types of judges who now fill out the federal judiciary.
But another one that has to be internal to Trump himself.Because of that ruling that didn’t exist in his first term, he knows that things he does as president are not going to result in criminal charges against him down the road.
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