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Norman Eisen
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Norman Eisen
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Norman Eisen is an attorney, legal scholar and co-founder of Democracy Defenders Action. He served as special counsel to the House Judiciary Committee in 2019 and 2020 during the impeachment and trial of President Donald Trump. He previously served as U.S. ambassador to the Czech Republic and as special counsel to President Barack Obama.
The following interview was conducted by the Kirk Documentary Group's Mike Wiser for FRONTLINE on March 24, 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
So let's just start at one of the more dramatic moments, which is when Donald Trump goes to the Department of Justice.Did you watch that as it was happening in real time, or did you watch it later?
I was too busy to watch it.I was working on one of the more than two dozen lawsuits that we had been involved in, and suddenly, my phone started buzzing and beeping and blowing up, “Donald Trump is talking about you at the Department of Justice!”
And what did you think when you heard it or when you watched?What did he say about you?What was your reaction to that?
Well, it's not the first time that Donald Trump has taken a swipe at me, but this was the most extended.And he said, “Everything I read is Norm Eisen,” which, in a way, is a kind of a backhanded compliment.And he noted that I have dedicated myself to fighting him over the past nine years.Like so many things Donald Trump says, that's not strictly true, because I actually began that nine-year trajectory trying to be helpful to him.I advised his presidential transition.Then I broke with them, and since then, I haven't been fighting against Donald Trump; I've been fighting for the Constitution and laws of the United States, against his attacks on those.
So I really took it as an inspiration.He said more things about me in that speech.It was one of the more extended passages of the speech, but I really took it as an inspiration to keep on the fight and even intensify my peaceful, lawful effort to hold him accountable.And he said, “Norm Eisen has had pretty good success over the years.”And that's true, and I think it was a bit of a slip by him.It showed what really was going on.This was my ultimate takeaway from his extended remarks.
We are beating him in court in case after case after case.He doesn't like it.He doesn't like losing, so he's lashing out.That's a backhanded compliment and just going to lead me to redouble my efforts.
You might have taken it as a compliment personally, and it may have inspired you.But in the big picture, the president of the United States is at the Justice Department.He's referring to you, a lawyer who's challenged him, as “scum,” as “violent,” as “vicious.”2When you think about that, in terms that are not just about you, but about a president of the United States saying that about a lawyer, what do you think?
Well, he uses terms like “scum,” “violent” and “vicious” the way the rest of us use punctuation marks.They're so overused that they've lost all meaning in Donald Trump's lexicon.Look, I'm a human being.I understand when he said there one of the most ominous things.Todd, referring to Todd Blanche, his former defense lawyer who's now the number two person at the Justice Department, “Todd, this is the only chance I'll get.”First of all, what does he mean by that?He means, “Todd Blanche, use the Justice Department and the weight of the power of the American government against Norm Eisen.”Sure, that's not a great feeling, on the one hand, but on the other hand, it's a sign that this effort to hold Donald Trump and his allies and the members of the administration, above all Elon Musk and DOGE, who are so important to him, and we've hammered them again and again.We got a court order holding Musk and DOGE unconstitutional as they tore down USAID.It was a landmark case in American history.It's headed for the Supreme Court for sure.
All of that is working.So the predominant reaction that I had was a little twinge, yes, certainly, at being targeted personally.But above all, it was a sign that what we're doing is effective.We're beating Donald Trump.We're defending the Constitution.We've been a—myself and my partners at the State Democracy Defenders Fund and all of the wonderful organizations and clients that we work with across the labor movement, the press, champions of the First Amendment, ordinary Americans who have brought some of our over two dozen cases we've filed or worked on, all of that is working.We've gotten 20,000 federal employees their jobs back after they were wrongly fired.
So I took what he said as a pat on the back for that.Six thousand FBI agents he was targeting—we shut that down with a court order.And we got a senior federal official, who Trump wrongly ejected, the chair or the head of the Federal Labor Relations Authority, very important position of the United States relationship with the labor movement, we got her back on the job.She's back at work.And on and on and on, the wins.
And we've enjoyed those wins for years against Trump.So singling me out was, above all, an acknowledgment we are winning, he's losing.He tried to do an autocratic takeover of government, and myself and many others stopped him.It's as if you stopped the German army at the Seine River in 1940, and they couldn't take Paris.
Now, will we be able to continue to hold Trump and autocracy back?TBD. We're going to have to wait and see.But my ultimate takeaway from that Justice Department speech, yes, little twinge of discomfort, being singled out that way, but mostly encouragement to keep fighting and do even more in the courts of law, peacefully, lawfully, but vigorously. …
It's a message to you, and the message to you is, “I'm going to keep going.”But is there also a message to others, that it's not just a message to you but to other people who might challenge the administration?Is part of the message the whole Justice Department might be against you, that you personally might be on the line if you decide to step up against this administration?
Of course Donald Trump was not just targeting me, although you could tell, in the personal and intense way he did it, that there's some personal animus there.Trump and I have had dinner together.He watched me on TV when I was lead counsel in the impeachment.I'm on television in the United States all the time, so there is a personal element to this.
But he's singling me out as an example: “Hey, all you other lawyers, I'm going to make a target of you as well.”And that's why I think it's so important for me to say, “Hey, this is not going to slow me down.It's not going to stop me.I take it as a backhanded compliment, and I'm going to do even more.”And I think what we've seen in this first months of the Trump administration, at this point, there's almost 200 lawsuits that are on file, and whether it's Democratic or Republican judges who are deciding them, Donald Trump is losing the majority of the time.He is being stopped in his most autocratic, authoritarian efforts to seize the government, things that will hurt the American people.It doesn't help the American people for the FAA to be cut back or for bird flu inspectors to be eliminated.But he's doing those kinds of job cuts illegally.
Airplanes are supposed to stay up, and bird flu rates are supposed to come down, not the opposite.So the American people see what Donald Trump is doing because of this litigation.That's why he's so angry.And by and large, lawyers and litigators are not stopping.We're filing even more lawsuits.I've filed five actions, five additional actions, between our conversation last week and sitting here with you today.So we're certainly not stopping, and I think the legal profession as a whole, including judges, because he's also targeted judges, they are undaunted.
But you really make it sound like this legal threat is the biggest threat to Donald Trump, to him accomplishing what he's trying to do.
At my organization, the State Democracy Defenders Fund, we were born out of the success in stopping the attempted coup of 2020, and I kind of got the people who I admired the most.I worked representing multiple parties fighting in court but also in the court of public opinion, in that unsuccessful effort to reverse the legitimate outcome of the 2020 election.I got the best people together, who I thought were the toughest, the smartest, and who won a lot in 2020.
And we added in building our organization.We started this immediately after.This work started on Jan. 7, this new work, 2021, right after the coup failed, when the violent insurrection that Trump inspired on Jan. 6 was defeated.I started combining the most successful coup fighters that I came across in my work in 2020, with experts who had helped study or defeat autocracy internationally.
So we went to places over the intervening years, like Hungary and Turkey, where the effort to oust an autocrat failed.Why did it fail? What did they fail to do?But we also looked at places like Poland, Brazil, Czech Republic—the country where I served as ambassador—where there were successful ousters in recent years of autocratic regimes, and we came together over that four-year period with a plan to defeat autocracy.It's not just litigation.Litigation is very important in our peaceful, lawful, vigorous effort.
Think of litigation, the courts, as the first guardrail.Donald Trump has been loudly banging into that guardrail in this over 150 cases, where we and others have had so many wins.Because we've been winning, that guardrail is holding, but that loud banging is waking up two other barriers that lie—two other guardrails that lie on the other side of litigation.
The next one is political leadership, where we've seen in the United States that elected officials, mostly at the state levels, like the state AGs, they've been going to court.But they have been talking, holding town halls, speaking to the American people.Now Congress is starting to get in the act. …
So that's a second layer of protection.The third and maybe the most important, and this is the difference; this is why autocracy was defeated in Poland and why it is still there down the block in Hungary—the people.When you awaken the American people, which that loud banging in the first guardrail has done, do you know that there’s twice as many protests in 2025 as there were in 2021?2021 was covered as the era of big protests against Donald Trump.There's actually been more in 2025.
Another thing we've done is we've incubated an independent publication at Democracy Defenders.It's called The Contrarian.Jen Rubin quit the Washington Post, I quit the CNN, and we started The Contrarian.In two months, we've got 600,000 subscribers.We're the first publication in America to have a beat on the democracy movement, where we cover all of these protests, sometimes hundreds a week.It's everything from town halls, where people of both parties are telling congressmen and senators, “Why are you going along with authoritarianism that's hurting us?It's hurting the American people.”The veterans' services are being gutted.People are angry about that.Schools are being gutted.Safety for our air and water and our vaccines—there's a measles epidemic.The people are angry.
But also smaller protests, like spontaneous in front of Tesla dealerships.And one of my cases, I had a case locking Elon Musk out of the Treasury Department.I was getting ready to go to court.I turned on the television, and a spontaneous protest had erupted in front of the Treasury Department in support of my case: “Keep Elon Musk out of Treasury.”We did get that order locking him out of Treasury.
And then suddenly I see members of Congress are showing up at the protests because they didn't want to be left out.So those are the next two after the litigation: political opposition, the treetops, but the American people, the grassroots.And when those three things combine together, authoritarianism and autocracy doesn't have a chance.
And I think you're going to see a wipeout at the ballot box, for example, with the House of Representatives in 2026 because people just don't like this autocratic regime.Donald Trump is very unpopular, most unpopular president except for Trump I at this point in his tenure, and Elon Musk, his co-president, is absolutely hated by the American people.3He has abysmal popularity ratings.
3
The Economist: 175 days into Donald Trump's term
Trump’s Executive Orders
… So let's go to the first day, and we'll talk about some of the discrete sort of moments now.As you were watching—I mean, every president comes in and signs executive orders.Was there something different about that first day as you were watching what Donald Trump was doing?
… The first day had a particular resonance for me because I was part of the Obama landing team, and I prepared the Obama executive orders and a similar, but totally different—in some ways similar, some ways different—signing ceremony for Obama.We did it the second day.It was similarly covered by all the networks.We combined it in Obama with the swearing-in ceremony, and he sat at a desk and signed the executive orders that we had worked on, on doing things like bringing ethics and integrity to the government, bringing more transparency to the government, executive orders for increased accountability.
So I couldn't help but think of the distance since that day in 2009, when I stood there, sat there, and watched Obama do the same thing as right after I was sworn in, signing executive orders that I had worked on.I actually know the staff secretary who was standing next to Trump, and so that was another striking moment for me and, of course, had been in that same Oval Office so many times in the Obama administration.
But these orders that Donald Trump was signing, to flood the zone, were so profoundly destructive of American government, setting up the DOGE, the so-called Department of Government Efficiency, that has been anything but.… It's wrongly taken a chainsaw to the American government.We filed the very first lawsuit as soon as Donald Trump was sworn in to stop the DOGE.That's how dangerous it is.It was the first lawsuit against DOGE, the first lawsuit of any kind against the Trump administration.
We saw Donald Trump signing executive orders to wrongly eliminate tens of thousands of federal government employees who were there to protect us all, and our air and our water and our kids' education, and really devastating the government.And now we've seen this.A scalpel is needed when you cut government, and they've used a chainsaw.So I saw a chainsaw in Donald Trump's hands, not a pen, and that was profoundly distressing.
But we knew that Donald Trump was going to flood the zone.My colleagues and I, as part of sounding the alarm, we had national conferences, including one in New York City, Autocracy in America.Over 300 people—conservatives, centrists, liberals alike; current government officials, former government officials, civil society, journalists.We knew this was coming.It was—“A Warning and a Response” was the subtitle of that conference.
We published on a constantly renewed basis, all of 2024, the American Autocracy Threat Tracker.By the end, by Jan. 19, 2025, it was over 300 pages long, exactly what Donald Trump was going to do.We were ready, and we determined to meet “flood the zone” with rule-of-law “shock and awe.”And we have.For every autocratic action, there has been two equal and opposite pro-democracy reactions, litigation in the court of law, but also awakening the American people from the treetops to the grassroots, what we call the court of public opinion, like participating in some of these peaceful, lawful demonstrations.
So we feel that the flood the zone that began on Jan. 20, starting with that very first lawsuit that we filed, has met and equaled Donald Trump.It has stopped him in his worst authoritarian attacks on our government, and he's very frustrated and angry.That's why he keeps lashing out at me.
When you say “autocracy,” they would say you're talking about policies that you don't like, about the environment or about how people are laid off or what's going on.What do you mean by “autocracy”?Because they say you have a policy dispute, and you're using the courts to try to stop him from doing what he was elected to do.
We are not talking about policy disputes here.We're talking about Donald Trump taking that chainsaw to the Constitution and laws of the United States.There's no policy that allows Donald Trump to pick and choose which children born in this country are citizens of the United States, but that's precisely what he claims he can do.He can override the constitutional citizenship provisions.Well, we're not just going to sit there and say, “Oh, it's a policy decision to ignore the Constitution or obey the Constitution.”No. Every American must obey the Constitution.I have a duty, as a sworn officer of the court, to enforce the Constitution.
And that's why we took Donald Trump to court, the very first case, saying his dismantling of the constitutional citizenship provisions is picking and choosing between children born in this country.The Constitution expressly says, “You're born here, you're a citizen.”We filed that case.We got a preliminary injunction, and that group of cases and issues is now on its way up to the United States Supreme Court.
And the same is true of every one of my cases.Elon Musk and DOGE acting unconstitutionally.The Constitution says when someone enjoys this co-president power that Elon Musk has taken, to destroy government agencies—he says USAID is a criminal organization; it must die, and then he says, “We fed it into the wood-chipper”—the Constitution says, if you have that power, that's not a policy decision.You must be confirmed by the United States Congress. He wasn't.We went to court.The court said, “Yes, Elon Musk's actions are unconstitutional.4He hasn't been confirmed as the Constitution requires.”
So these aren't policy decisions.These are gross violations of the Constitution and laws.And as so often, when they claim it's a policy decision, that Donald Trump's administration had the Office of Personnel Management, which is not authorized under the Constitution or the laws of the United States—the statutes that Congress has lawfully passed says Cabinet departments must fire people, and they must follow rules.The Office of Personnel Management can't do it.Well, Donald Trump had his Office of Personnel Management fire tens of thousands of people.5No, that's not what the Constitution says.It's not what the statute says.That's not a policy issue.
We went to court. We got an injunction to stop it.It's not a policy issue to target 6,000 men and women of the FBI who honorably followed the law in prosecuting those Jan. 6 insurrections.It's against the Constitution and laws.We went to court.We got an order stopping it, and on and on, in the over two dozen cases we filed or worked on.These are not policy decisions.They're gross violation of the Constitution and laws, and we're not going to stand for it.The courts are not going to stand for it.Donald Trump is not going to intimidate those judges.He's not going to intimidate me.The American people are awake and aware.Twice as many demonstrations as we saw in 2021.They're not going to stand for it either.
Jan. 6 Pardons
… But when he pardons the people who were involved in Jan. 6, what message—
On Jan. 20.
On Jan. 20—what message do you think he was sending?Or what message did you take from that?Which was a legal action, I presume?
Donald Trump himself is a criminal president.He's our only president who's been convicted of 34 felonies….His original election is tainted by those convictions in a Manhattan courtroom.And he's been sentenced on those 34 convictions.6What I thought was, what do you expect from a criminal president?He's embracing the criminality of Jan. 6.
Elon Musk and DOGE
Let's talk about Elon Musk and DOGE.When you hear about his appointment, about the role that he's going to have, what do you see?How do you respond?
As soon as DOGE was announced during the presidential transition, it was clear that what Musk and this organization were going to do would likely be inimical to the American project.Americans are a very independent nation.We have an independent culture.But we do require government to perform some services to help the American people, so we were profoundly concerned about the nature of what was being done.
So we launched an immediate investigation at the State Democracy Defenders Fund, dozens of FOIA requests during the transition, to get information under the Freedom of Information Act, “What is Musk doing and planning?”And then I applied to be a member of the DOGE.People forget that I helped Trump's first presidential transition….
And so, at any rate, I was willing to volunteer again if they were serious about actual government efficiency.So I applied to the DOGE, again, before the swearing-in of the president on Jan. 20.They immediately said, “We don't want him because he's a Democrat.”That's illegal.You can't pick and choose that way.That was part of the basis for that very first lawsuit we filed.
So we went right to court, first case, as soon as Donald Trump was sworn in, was the first case against Musk and DOGE, also the first case of any kind against the Trump administration, to sue.And we've sued again and again and again since then to stop this gutting of the government, because it's hurting the American people.Veterans, now, are the latest victims.They can't get the services our country provided them.We made a promise when they fought for us that we would take care of them.Musk is gutting veterans' services.We have a measles epidemic; the CDC is being gutted.Our nuclear safeguards, our nuclear stockpiles.So the dangers of cutting back the people who guard our nuclear stockpiles—a bunch of them were fired at one point; then they were rehired.It's back and forth, the turmoil.
So all of that culminated in our big case, where we got Musk and DOGE declared unconstitutional.7First case of its kind in American history because their behavior, shutting down USAID, one of our principal ways that we help people around the world, was not authorized by law.By the way, the help we give with USAID isn't just to help other countries.If we stop Ebola or AIDS or another disease from spreading in a foreign land, that keeps Americans safer.
What we do with our foreign aid, foreign assistance and foreign investment protects us here at home, so they're really hurting the American people—moms and dads and kids, devastating veterans, seniors, infants.And we are going to stop that.That's why there is so much anger out there, and that's why we're litigating, to help protect the American people.
Can you help me understand that, the drama of the moment of the USAID, when DOGE sort of goes in, and how you hear about it, what they do, how you hear about it?
Well, we all saw the pictures in real time of them literally taking down or covering up the signs at USAID headquarters.President [John F.] Kennedy and his administration launched this enterprise, fully authorized by Congress.Congress has commanded that we must provide this United States aid to countries around the world because it's in the United States' interest to advance democracy, to have friends.So, like on 9/11, when we get attacked, the rest of the world will stand with us and help us, but also to stop the bad things, like diseases that start around the world, to help control them.
So I thought of all that as a former ambassador when I saw the dismantling of USAID.This will hurt the United States.And I said, “I'm going to sue.I'm going to go to court.I'm going to file a case.I'm going to argue this is against the Constitution.”It's against what Congress has commanded.Elon Musk is not mightier than the United States Constitution or more powerful than the laws Congress passes.Neither is Donald Trump.Neither is DOGE.We're going to litigate it and win, and we did.
And help me understand what they are doing in relation to the United States Congress and the separation of powers, because again, we can disagree about the value of foreign aid or not.But how did that, as a sort of test case, implicate the role of Congress, the role of the president?
The founders and framers of the United States feared autocracy and authoritarianism and tyranny.They feared that someday we would have a president like Donald Trump.And so, when they built our government, to help the American people, they put in checks and balances.They designed a government where no one branch of government could have too much power.And that's what Donald Trump is kicking out against, but every time he kicks, he gets a hurt foot because the walls of separation are being held up by the courts.
Congress, Article 1, is the first branch.That's for a reason. Congress is the most powerful branch.Their job is, in essence, to write the laws, to pass the laws that govern how Article 2, the president, executes those laws.Congress passes the laws.President signs them, and then he's in charge of implementing the laws.And if there's an argument about what is the role of Congress as opposed to the role of the president, if there's tension between Article 1 and Article 2, or if there's a disagreement on what one of those laws means or what the Constitution itself consists at its core of these Articles means, then you get Article 3, the judiciary.And they are the referees who decide the meaning of the Constitution, the meaning of the laws, and the role of Congress vis-à-vis the president.
Trump is very angry because, in the first months of his administration, again and again, Article 3, the judges, have said, “Hey, Article 2, Mr. President, you are invading either Article 1, what Congress has told you to do, or the structure of the Constitution itself.”So USAID, for example, Article 1, Congress, told Article 2, “You have to keep USAID open.”Donald Trump deputized Musk and DOGE to shut USAID.Article 3 came in and said, “Hey, Article 2, you've broken the law.You've invaded the province of Congress.That's not allowed.”
Now, there is a big debate going on in our country.What will happen if Article 2, the president, for the first time in American history, doesn't listen to Article 3, the judiciary?That's the structure and function of the Constitution as it applies to our current situation.
Congress in Trump’s Second Term
You've talked about the barriers, but one you didn't mention was the Congress, which you talked about the Democrats in the Congress, but the president has almost total loyalty among Republicans.Is part of the system already not working in a situation like this?
The founders and framers envisioned that the system would not work in its entirety as we're seeing today.Congress is controlled by a majority of the president's party.They are not standing up for their own prerogatives.There's so much that the GOP could be doing in Congress.Instead of just embracing President Trump's authoritarian continuing resolution, they could have said, “No, we're not going to give you money because you're invading our prerogative.”Prior Congresses—when I was in the White House, Democrats were in control of the House and the Senate, they'd push back on the Obama administration all the time.Senators would call me personally and tell me, “Norm, tell President Obama we are not going to let him do X, Y or Z.”You can reject nominees.We had that also.Our own party voting against nominees.You can use the bully pulpit of Congress to talk about this.You can pass laws, putting handcuffs on the worst behavior.
The MAGA majority in Congress has refused to do all of that.It's left the minority to speak strongly.Hakeem Jeffries and his Democratic minority in the House of Representatives virtually unanimously objected to that autocratic Trump continuing resolution.899.75 percent of the caucus, just one person broke away from Hakeem's entire caucus, so the minority is increasingly strongly objecting.The majority needs to do more.
But that's why we have checks and balances.If Congress fails, as has happened with the MAGA takeover, you have the third branch.You have the courts, and they are holding firm against Trump.And there is another safeguard, and it's been very active in the United States.It's part of what gives me hope, although nobody knows for sure how all of this will turn out.That's our federalism.Congress, the president and the federal judiciary are only half of the American system.
The Constitution also gives extraordinary powers to the states and their instrumentalities, like local governments, and they have been very active, both in terms of going to courts, state AGs, defending this constitutional structure, but also court of public opinion.They have been speaking out, so that's another bulwark.
So, as I look at this landscape, Article 1 so far failing, MAGA majority is not doing their job.Article 2, actively attacking the Constitution.Article 3 and federalism, holding strong.And the American people actually having more demonstrations than they did in 2021, and I think you're going to see more and more of the American people backing up our constitutional structure.
The founders and framers viewed the American people as the ultimate safeguard.That's why they put the First Amendment in, freedom to petition, freedom of assembly, freedom of association, and, of course, freedom of the press, because that's how we all talk to each other.That's why it's the First Amendment.Think of that as the amendment that, above all, safeguards the role of the American people in this grand experiment.
Trump Takes on the Courts and Law Firms
As you're describing it, it really sounds like battles, like a war with skirmishes in the courts, that are going on.Is that how you see what's going on?
Yes. Peaceful, lawful, vigorous battle.You do have to think of it in those terms, and I think Trump thinks of it in those terms.He falsely said that I'm “violent” and “vicious” in his Department of Justice speech.But what he's getting at, but what he should have said, is, I'm lawful and vigorous, because what he's getting at is that I am fighting in court, as are thousands of other people.I know my inspirations are my parents, who were a Holocaust survivor and a Holocaust refugee.I read my [Winston] Churchill.It's the greatest sustained treatise, in my view, his six-volume history of World War II, the greatest sustained treatise on how to fight a multi-front existential battle, but not an actual physical one.That's a metaphor, as you think about this peaceful, lawful but vigorous effort in the courts to stop what Donald Trump began after the 2020 election, and has continued a coup against the Constitution and laws of the United States.
Your parents' history, does that make this personal for you?You see parallels.
I know, from my family history, with my mom having survived Auschwitz and slave labor camp at Neuengamme in World War II, in the Holocaust, and my dad having fled the Holocaust for the United States, in 1940, got the last boat, worked his way across Europe, got the last boat out of Greece and came to the United States in 1940, actually as an undocumented migrant.He overstayed his welcome, and then he joined the United States Army in World War II and after that became a citizen, as so many Americans have, through military service.
I know, from their experience, how fragile democracies can be.And they would warn me, “It can happen here.”And I didn't believe them.I would say, “It cannot happen in the United States.”I'm not saying that anymore, and the defense of our Constitution and laws is my effort to preserve and protect and give back to the country that has given my family so much by fighting for the Constitution and for the American people that Donald Trump is attacking every day.
It must give you a different perspective, too, than other people, when they say, “Why aren't you afraid of being called ‘scum’ by the president?”
Well, I always wondered, when I would hear my parents' stories, or read my Churchill, or when I was mentored as an ambassador by President Václav Havel, one of the great Czechoslovak dissidents, who kept going through decades of authoritarian communist rule in Czechoslovakia, I would always wonder, if—and I'm not comparing myself to them, truly—but if, in my own, smaller way I ever had my moment where I would be called upon, would I have the courage to fight for and defend democracy, fight against autocracy, endure, as those heroes of mine did?And I really didn't know if, as some are doing in the United States, I would quietly step away and lead my life or if I'd be ready to do my part, to defend.
So I've been pleasantly surprised by my willingness to stand and peacefully, lawfully, vigorously fight against this authoritarian regime.Some days it comes as a surprise even to me.There was a surreal quality to watching that speech at the Department of Justice and thinking, wait a minute—is he really talking about me?And yeah, occasionally, you feel a tremor of concern, but mostly, to my pleasant surprise, what I feel is the honor and the privilege of being able to go to court, of having my legal skills honed over these decades, and being able to stand up and argue for the Constitution, for the laws and for the American people.
What greater honor and privilege?And I always say to people who are scared, who don't know what to do, there's no better therapy for autocracy than filing lawsuits.It will make you feel good.
Thank you.So we've been talking about this legal, peaceful battle that has been going on inside the courts, and you feel like you're winning on a lot of these issues.And into this battle comes these executive orders about Perkins Coie, about Paul Weiss.There's action about yourself and security clearances.How does that—is that trying to win in a different way?When you see those actions, what do you see?
… Well, when I see Donald Trump lashing out against the legal profession, Perkins Coie, Covington & Burling, Paul Weiss, Marc Elias, me, I see a loser acting out of rage at the institution rule of law that he thinks is—and he's right—is holding him back.9I think it's important to note that although Paul Weiss buckled under the pressure, Perkins Coie is holding strong.In fact, they've gone to court.They got an injunction stopping Donald Trump from targeting them.One of the best and most ferocious lawsuits, law firms in the country, Williams & Connolly, is backing them.Covington & Burling hasn't backed down.They're continuing their representations, including of the former special counsel, another main object of Donald Trump's ire, Jack Smith.
9
Business Insider: Here's where all the firms in the Trump-Big Law fight stand
The Paul Weiss capitulation is anomalous because all of this also happens in a context where, obviously, Marc Elias is not backing down; I'm not backing down.And there is almost 200 lawsuits, many successful, that have been brought by thousands of lawyers and law firms and pro bono enterprises and organizations and clients and average people around the United States.
So overall, I see a landscape of holding strong against Donald Trump's predations on the rule of law.And then the last thing I see is, you can't look at him lashing out at the law firms and lawyers in isolation.You have to understand it as part of a broader attack, just like he's attacking the Constitution and all of its parts—Article 1, Congress, Article 3, the judiciary, federalism, the role of the states, the role of the people as exemplified throughout the Constitution, including the First Amendment.He's also attacking the major institutions of civil society that make democracy, democracy.
He's attacked labor.I filed a lawsuit to stop it.And he tried to decertify a union.We filed that lawsuit with labor and other colleagues to stop it.He's attacking the press.We filed a lawsuit to force him to turn the Voice of America back on.It's, among other things, a violation of the First Amendment, we argue.He's attacking civil society groups, trying to intimidate those who organize.We have his Department of Justice criticizing some of the protests, suggesting there's something improper about peaceful protests at Tesla dealerships.No, there's not.That is what was protected in the First Amendment, the right to peaceably assemble.Obviously, if there's some random acts where anonymous people do something wrong to a Tesla charger, nobody condones that.But these peaceful, lawful protests, that should not be criticized by Trump's attorney general.
So I see the attack on law firms as part of this larger attack on labor, where we are pushing back in the courts; on the press, where we're pushing back in the courts; and on the right of the American people to protest and have opinions and express those opinions, where we're pushing back in the courts.No element of Donald Trump's attacks are going to go unmet by deploying peaceful, lawful, vigorous remedies in the court of law and the court of public opinion.
No wonder he doesn't like me.I'm privileged to be one of many helping lead that vigorous opposition, loyal opposition, patriotic opposition.That's the American idea.It's so fundamental that the founders and framers baked it into our Constitution with, for example, the preeminence of the First Amendment in the Bill of Rights.
Deportation of Venezuelan Migrants
… And this may be one of the cases that you're not involved in, or are you, with the Venezuelan detainees?
Yes, we are involved.
You are involved in that, too?
Yeah.
Because that seems to really crystallize, in both that moment and then what happens afterwards.But can you help me understand what that case is and why it's bringing things to a head?
Sure.We represent a coalition of conservative government officials from every administration, from Richard Nixon to the first Trump administration, who are objecting to the abuse of the Alien Enemies Act to deport people to El Salvador without any supervision.10It turns out innocent people appear to have been shipped to that prison in a foreign country.That's what you get when you don't have due process.And ever since the Magna Carta—that's why conservatives approached us on this—there's been an idea of limiting the imperial power of the government because of the abuses that are possible if there is not reasonable checks and balances, including court oversight.
10
So the case of the deportations, possibly of innocent people, was very concerning to my coalition of these two dozen conservative former officeholders, and that's why they filed a brief in that case.It's a terrible abuse of that highly criticized law, the Alien Enemies Act, very seldom used in American history.But of course there's also an issue, in that case, of the defiance of the courts' orders.
And we've seen similar defiance in many cases, in the injunction that I got on the DOGE and Musk case.There have been a series of issues.Is the order being complied with or not?In other cases, those issues have percolated up, really all the way to the Supreme Court, in the case where a federal judge enjoined the government from refusing to pay certain bills.What could be more fundamental than the government honoring paying its bills?The government refused to make the payments, even after the order was in place.They came up with some excuse.That went all the way up to the Supreme Court.The Supreme Court refused to get involved in that.
So in many of these cases, we've seen the Trump administration tiptoeing up to the edge.Now they don't want to say, “We're defying court orders,” because they know that that could have a devastating legal, but also political and popular, effect.We've talked about these three guardrails, legal, political, popular, at the federal level, at the state level, so they say, even Donald Trump says, “No, we will abide by court orders.”
But then they go and kind of get into a posture of testing of contemptuous attitude of how far can they go.How much can they get away with, before they get their wrists slapped by a judge?And these issues are now front and center in the case of the deportations.These are not partisan issues.Donald Trump wants to make them partisan, something about gang members.11No.That's why my conservative clients wanted to be involved in speaking out in this case.This is a case about the idea of America, which is we put limits on the absolute power of the president.He is not a king.That is why we started the United States of America.The courts help oversee those limits.If those limits are not followed and the president can just willy-nilly deport people, innocent people will be swept up, as appears happened with these deportations.We can't allow that, and hopefully the courts will check it.
Do you think that it's an intentional strategy to do that with the courts, to pick people who they accuse of being gang members?Is this a systematic attempt to expand their power, to question how far they can go, to push how far they can go?
To be sure.But it's a stupid systematic attempt.The one concern that I have, the greatest concern that I had in forecasting what would happen in 2025 if Trump won, was that he would do autocracy in a smart way.That was one of the things we learned when we studied why autocracy failed [in] Brazil, Poland, Czech Republic.Why did it succeed [in] Hungary, Turkey?Because they boiled the frog in the latter countries.
Donald Trump microwaved the frog, starting with those orders on day one.He's done a frontal assault, an illegal assault, one that the courts, even the United States Supreme Court, which is dominated by people who have proven to be sympathetic with him, cannot accept.He's 0 and 2 at the Supreme Court so far in trying to stop the worst losses that he's failed.John Roberts, the chief justice of the Supreme Court—extraordinary; I can't remember a time when it's happened before—repudiated and denounced Donald Trump's attacks on judges, rebutting him by saying, “We don't impeach judges,” like the judge in the case of these deportations, unlawful, to El Salvador.12We don't express our disagreement by saying, “We will impeach judges.”We do it through filing appeals.
I don't remember a time when the chief justice of the United States threw that kind of a brushback pitch at an American president.He's even agitated those who were well-disposed to him normally on the Supreme Court, which is probably going to lead to more losing.While we're sitting here, another one of my cases just is being attempted to be moved to the Supreme Court by the government, and in my view—this is the case of the 20,000-plus federal employees who were wrongly fired.Their reinstatement has been ordered by a court.Now, Trump is kvetching to the Supreme Court.In my view, this is going to go the way of so many other cases for him.One way or the other, these employees were not properly fired.
The Judges and The Courts
And you talked about Roberts' response.What about what President Trump said about that judge, about other judges, things very similar to what he's said about you, talk of impeaching judges?What do you see him doing there?What's his strategy?
Well, we know part of the reason that President Trump takes umbrage to me is because I helped lead the first impeachment against him for his shakedown of Ukrainian President Volodymyr Zelenskyy.13He wanted Zelenskyy to promulgate dirt on Trump's then-opponent Joe Biden, and he withheld hundreds of millions of dollars from Ukraine to try to get that outcome.14
Donald Trump complained about that first impeachment that I worked on, but that hasn't stopped him from now wanting to use impeachment as a tool against these judges who are simply enforcing the Constitution.But unlike our righteous impeachment, there's no basis for what Donald Trump is calling for, and that's why John Roberts said to him, truly an extraordinary rebuke, “We don't impeach judges if we disagree with their decisions.We appeal.”So this is another example of Donald Trump lashing out because he's losing, and it's not going to work.
My friends up on the Hill tell me that the Republican Caucus has zero appetite to impeach these judges in the House.If they did, the cases would move to the Senate, where there's not the votes to convict, so this would be more legal losses for Donald Trump.He doesn't care.He just says whatever comes to mind because he's losing.He's angry, and he's lashing out.
It's interesting.In that speech at the DOJ, …do you think he's sending a message to the Supreme Court, to other courts, “You’d better watch out in the way that you rule”?
One of our great jurists, I often work with him, very conservative, Judge Michael Luttig, who was on the Fourth Circuit, wrote a <i>New York Times</i> op-ed that was entitled “Trump Will Lose the War with Judges.”15This is not a battle that Donald Trump is going to win because the laws protecting our judiciary, including under the Constitution, and the tradition of independence of our judiciary, that now dates back almost two and a half centuries, and the caliber, intellectual and moral steel of our judges, and because these cases don't self-activate—you need litigants like me and thousands of others who go to court, the strength of those of us who are litigating these cases, our determination, all of that makes up the rule of law in the United States of America.Donald Trump is not going to win a war on the rule of law.
15
The New York Times: It’s Trump vs. the Courts, and It Won’t End Well for Trump
My fear was that he would move slowly and incrementally and chip away.A full-frontal assault of the kind that he's trying now?No way.It's not going to work.
But are we heading to a moment where he might say, “I’ve delegitimized the courts, at least in the eyes of my followers”?And the vice president has made statements in the past, “Let Justice Marshall enforce the decision.”Could we be heading into a moment like that?
We could be heading for that moment of open defiance.It's different from the moment we're in now, of testing defiance, where the administration says, “We want to comply.We did comply.They're finding legal loopholes, excuses, fig leaves.It's being litigated as open questions.”I think they're cheating, but they're cheating around the edges.And it's attitudinal.It's an attitude of defiance, and then they ultimately did pay those bills, where they had defied the initial court orders using various excuses.
And we could be heading for that moment of open defiance.I believe that that will be the moment that the guardrails of American democracy will all be activated, where even those in Trump's own party will not countenance open defiance of a court order.And the majority does have certain powers.And it's narrow Republican majorities in the House and in the Senate.Only a handful, a few right-thinking members of the Republican Party need to step away and join with Democrats to put political handcuffs on.If there is open, unexcused defiance with the court order, and the courts have various tools—civil contempt, criminal contempt, higher and higher courts making the orders to comply—and ultimately the American people, they're already demonstrating at a rate twice that of 2021, the American people need to be activated.And they will be if Donald Trump openly defies court orders.They're already quite active.You're really going to see them refuse to stand for it.
It sounds like, at the end of the day, you're saying that maybe the courts themselves won't be enough.That is part of it.But you can't just rely on the courts?
The courts alone, plus the other political and popular dimensions of democracy defense, together, I believe, will do the job if Donald Trump openly defies a court order.I'm sure he'd like to, but that's why he hasn't done it yet.
… Have you talked to people and asked them to work with you, or law firms, and they're afraid?Is there a fear among some lawyers to not get involved in this?
Yes. But many more are unafraid.And for every lawyer I approach who's fearful or unwilling to help with one of our cases—we do these cases with pro bono, or low bono, where we pay a fraction of the cost of the legal fees.For every one of those lawyers who is fearful, two or three are stepping up to help.So last week, in all of the discourse about law firms being targeted … and intimidated, I got many more offers of assistance than I lost helpers.And that has been the rule.It's part of this larger story.
Donald Trump has flooded the zone with illegal action and intimidating action.He's tried to scare people.But Trump's flood the zone has been met with rule-of-law shock and awe.That includes the cases that we've won, the judges who have ruled honestly on those cases, judges appointed by Democrats and Republicans alike, but also the lawyers and the clients and the co-counsel and the other civil society organizations that have helped bring the cases, Trump's flood the zone of illegality and intimidation has been met and exceeded by rule-of-law shock and awe.
We don't know if it'll hold up.We don't know what the end of this road looks like.We're at a crossroads.It could go either way.But what I've seen so far gives me hope that that road is going to be an up-and-down one.It's going to have peaks and valleys, but in the end of the day, the legal, the political and the popular safeguards, those three guardrails that we've talked about, will hold, and American democracy will emerge, I think, at the end of this very, very troubling and dangerous journey, but also a journey that's showing the best, not just the worst of America.But every time I go to court with a pro bono law firm, with colleagues from around the country, with brave clients—it's very dangerous for the clients, too—and I appear before a judge, that also gives me hope that our American experiment will endure and survive and come out the other side stronger than ever.What doesn't kill you makes you stronger.
And for you, are you ready if it's more than just talk?He sent a memo saying to the Justice Department, to go back cases, going back eight years, to investigate, to get disciplinary action.Do you think that's a realistic threat?Are you preparing for that?
When Donald Trump targeted me at DOJ, he actually rallied support to my side.He led to people calling me with offers to work on cases together, to provide free legal assistance to me personally and to the larger cause.So the more that they attack, not just me but all of the people who are pushing forward, the worse off they are.My fear was not that Donald Trump and his allies would frontally assault me or the rule of law or the Constitution.My greatest fear was that they would go with baby steps and incrementally in a way that made the case for autocracy most powerfully to the people.That's what Erdoğan did in Turkey.That's what Orbán did in Hungary.That's why autocracy—it's one of the reasons autocracy has succeeded in those places, whereas the more blatant approaches, in a Poland, a Brazil, a Czech Republic, in Israel, where Netanyahu tried to ram through a destruction of the judiciary, and most of the country turned out to protest and blocked him in that dimension.That's the weakest way.Donald Trump is operating from a position of losing and weakness, not of strength, so I'm ready for whatever comes.
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