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Peter Keisler
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Peter Keisler
G. W. Bush Acting Attorney General
Peter Keisler served as acting attorney general and assistant attorney general for the civil division in the Department of Justice under President George W. Bush. He also worked in the Office of Legal Counsel in the Ronald Reagan administration. He is a charter member of the Society for the Rule of Law.
The following interview was conducted by the Kirk Documentary Group's Mike Wiser for FRONTLINE on March 27, 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 Executive Orders
Let's just start on day one, on Jan. 20.The president issues a flurry of executive orders covering all sorts of things.A lot of presidents issue executive orders.Did you see something different when you watched what Trump was doing on the first day of his second term?
Yes. And I think it's helpful to think about the executive order on weaponization and the order on pardons together, because they're so closely related.1So first of all, the president issues an order on what he calls weaponization, in which he says that in his view, the Justice Department had been politicized and weaponized over the past few years.He cited as a specific example of that the prosecutions and convictions of the people who had stormed the Capitol on Jan. 6, and he vowed that he would end that weaponization.2
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The White House: ENDING THE WEAPONIZATION OF THE FEDERAL GOVERNMENT
And then in the same day, he issues pardons and commutations to everybody who had been convicted of crimes in connection with the Jan. 6 attack on the Capitol.He said it was a “grave national injustice,” in his view, that they had been convicted and prosecuted.And he called them hostages who he said he was freeing, and he said that, even though this group included people who had committed some of the most brutal acts of violence, mob beatings of police officers with metal pipes and flagpoles, people who were simply doing their job and there to protect the Capitol and the people inside it.
So there's really no way to understand that decision except as an effort to protect people who had committed serious crimes simply because they committed those crimes in the course of supporting the president's effort to stay in power.We all know that if those people had committed exactly the same crimes but had been supporting the president's opponent, they never would have been pardoned.
So that means there is a different standard of criminal justice depending on which side of the political divide you're on.And so while the president is talking about ending weaponization, what he's doing is exactly the opposite.He's injecting a whole lot of political bias into the criminal justice system in precisely the way he claims to be eliminating.
Both of those actions are, in a way, retrospective, that he says the Justice Department had been weaponized; that he's pardoning people who had been convicted.Did it send a message about going forward to the country about how he was going to approach criminal justice, approach the law?
Oh, I think very much so.I think the message that it sends is that you will be treated differently in the criminal justice system if you're a supporter of the president versus if you're an opponent.
And what's the implication of that?Is that a dangerous message to send?
So look, the government's power to conduct criminal investigations and prosecutions is an extraordinary source of power.When it's used properly, it can help ensure public safety and order and fairness and justice.When it's abused, it's the power to coerce people.It's the power to bestow enormous benefits on your friends and allies, and intimidate and punish, perhaps very harshly, your political opponents.It's the power to turn someone's life upside down.It's the power to destroy someone's reputation.It's the power, potentially, to deprive someone of their liberty.
That's why it's so important that, to be fair and effective and credible, the criminal justice system has to be nonpolitical and nonpartisan.And all these actions suggest that the criminal justice system is instead being used as simply another tool of politics.
In that context, during the campaign, as president, he singled out individual people who he said had wronged him.What's the message to those people, to lawyers, to others who he sort of made very clear are not on his good list?
It's keep your head down.It's don't do anything that might publicly anger the president of the United States, because he is willing to systematically use all the levers of government power available to him to get retribution against people he perceives as his enemies.
One of the first things that happens is a number of prosecutors are laid off or fired, some who had been involved in prosecuting him only a few months before.Tell me about that, what message that sent, what you saw when that happened.
So in the early weeks of the new administration, they fired more than two dozen career prosecutors, people who had worked either on the investigations in cases against Donald Trump himself or against the people who had stormed the Capitol on Jan. 6.3They also forced out about half a dozen or so of the senior career leaders at the FBI.These were people with decades of experience who had been overseeing the most sensitive matters involving criminal prosecutions and investigations, national security, cybersecurity, and there was never any suggestion that any of these people was individually a poor performer or had engaged in any misconduct.They were fired as a group because they were not deemed to be sufficiently politically reliable.
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And the message that sends to everybody else who's still working there, if people, longstanding career public servants are fired simply because they were involved in investigations that were contrary to the president's personal and political interests, the message that sends is, your job may depend on you being perceived as supporting the president's personal and political interests.
And that sets the stage for turning law enforcement into another instrumentality of politics, where, if you're the subject or a target of an investigation, how you're treated may depend on what your politics are.And that's the opposite of what the system should be doing.
There's also a request for the list of all of the FBI agents who had worked on some of these investigations.
Right. That was extraordinary.So they demanded information from every FBI agent or other FBI employee who had worked on the Jan. 6 investigation.4Now, the Jan. 6 investigation was perhaps the largest investigation in the bureau's history, so you're talking about thousands of agents and other FBI employees across the country who are suddenly being asked to account for what they did on that investigation.And the directive to provide that information was in a memorandum that bore the subject line “Terminations.”And the memorandum said that that information would be used in order to evaluate whether adverse personnel action, like demotions or firings, might be taken against people, depending on what they said.
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And FBI agents don't choose the investigations they work on.They're assigned.So this was telling them that just because you did what you were told to do, and did your job by investigating potential crimes that were assigned to you, you could be fired or demoted or scrutinized very harshly.
And I guess it's that same message: Going forward, you should be careful.
That's right. That's right.It is a signal.And we don't know yet what they're going to do with that information.Unlike the termination of the senior FBI leadership, there have not been mass firings of FBI rank-and-file to this point.But simply asking for the information and indicating that it will be used potentially for that purpose sends a chill to everyone.
Trump and The DOJ
Are you surprised?People have told us that loyalists have been in the Justice Department before; the president's brother was the attorney general under John F. Kennedy.Were you surprised at the staffing at the top of the Justice Department, the DC U.S. attorney, including in some cases former defense lawyers for the president?
There are a lot of things to talk about there.You mentioned the U.S. attorney for the District of Columbia.So the U.S. attorney for the District of Columbia is the chief federal prosecutor for crimes that are committed in that area.The interim United States attorney is a man named Ed Martin.He has described himself as the “president's lawyer,” and he has adopted an openly political posture of going after and threatening to investigate people he sees as the president's opponents.
So this has ranged from opening investigations into members of Congress simply because of speeches they have given that he disapproves of.5He's told Georgetown Law School that he wants it to change the curriculum and how they're teaching some of their classes.6And he's told Elon Musk that he will, in his words, “pursue to the end of the Earth” anybody who is acting—and these again, are his words—“simply unethically” in opposing what Musk is doing within the government.7And none of that is within the job description of a federal prosecutor.He is supposed to be investigating and prosecuting crimes that are committed in the District of Columbia, not policing the statements of politicians, not dictating what should be taught in law school classes and not pursuing merely unethical acts, in his judgment, if they don't rise to the level of crimes.And nor is he the president's lawyer.A federal prosecutor serves the United States government as a whole.
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The Washington Post: D.C. U.S. attorney probing Democrats over alleged threats, documents show
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The Washington Post: D.C. U.S. attorney tells Georgetown he won’t hire from any school with ‘DEI’
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Ed Martin: X Post
You say he's not the president's lawyer.The attorney general issues a memo very early in her administration, or being attorney general that says the president's views on the law are binding; my views on the law are binding, I think refers to the office lawyers as “his lawyers,” and says if you don't want to go along with it, you should leave.8What did that memo say to you?
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Department of Justice: Office of the Attorney General Memorandum
Look, at the end of the day, the attorney general is going to set the legal policy of an administration, and ultimately, that is subject to the president's decision-making as well.But that doesn't mean that anything goes.And one of the virtues of the Department of Justice is that there are a lot of people with a lot of learning and a lot of experience over many years, who have important wisdom about what is and is not legal.And certainly the tone of that memo suggests to me that dissent isn't tolerated; disagreement isn't tolerated; deliberation isn't tolerated.I think I'll leave it at that.
We’ve talked about all those executive orders.We have talked to reporters who have told us they didn't go through the normal—at least those first ones did not go through the normal process, where it might go to the Office of Legal Counsel and the Justice Department to be reviewed.It went through sort of its own process with a different set of lawyers or advisers to the president.What do you make of that, of that change in the way that the president is getting legal advice?
Well, I think most presidents, in fact virtually all presidents in recent history before the current president, wanted their executive orders and other decisions to get a careful review at the Department of Justice.They wanted to know if lawyers at the Department of Justice thought that what they were doing might cross some legal lines.So the fact that they don't want these orders to be even reviewed suggests that they're not all that concerned whether the orders meet standards of legality.
The defenders of the administration would say this is a way to test.It's all going to end up in court.Put as many things out there as possible to—whether it's birthright citizenship, whether it's the president's powers.It's a way of testing theories that they have about the law.What do you make of that argument?
Well, there's certainly room for an administration to test a legal theory in court.And every president, to varying degrees, at some point in time, pushes the boundaries of his authority.That's why in part we have courts and why they play such a critical role in checking any president.
But the theories still have to pass a certain threshold of reasonableness.And you mentioned birthright citizenship, and there just really is no good legal case for the suggestion that the Constitution means anything other than what it plainly says, which is that if you are born here, you're a citizen.
Over the years, just in your experience at the Justice Department, and what we have seen from the outside, there has been tension between the attorney general and the president in a number of administrations, from Janet Reno to Jeff Sessions.What had the relationship been like in the past?Because Trump himself, in his first term, found himself clashing with Jeff Sessions, with Bill Barr after the election.
I think there's always an inherent tension in that relationship, because the Justice Department is two things at once.It's part of the administration.The attorney general is part of the president's Cabinet, and within the bounds of the law, the Justice Department should be helping the president achieve the policy goals he was elected to do.But the Justice Department is also the steward of a law enforcement system that has to be free of politics.The decision of what legislation to support in Congress, that's essentially a political decision.A decision about whom to prosecute and whom not to prosecute, that can't be a political decision.
And attorneys general and presidents have mostly, with exceptions, but have mostly recognized that that means that there has to be a significant amount of separation and independence when it comes down to individual law enforcement decisions so that politics doesn't infect the question of who gets prosecuted and who doesn't.And the problem here is that they seem to be obliterating those lines.
The Eric Adams Case
The case that stood out to us as an early one was the Eric Adams case.Can you help me understand what happened there and what the implications of that are?
What was extraordinary about the Eric Adams case was how openly political the reasoning of the Justice Department was.So Mayor Adams was charged with bribery-related offenses, and the acting deputy attorney general sent a memorandum to the chief federal prosecutor in Manhattan directing her to seek dismissal of the charges.Now, in that memorandum, the acting deputy attorney general didn't do any assessment of the actual merits of the case.He didn't make any assessment of the facts and the evidence and the underlying legal theories.He said nothing to call into question the strength of the case against Mayor Adams.
But he said that the case should be dismissed so that Mayor Adams could help the president achieve his immigration agenda in New York City, which is something Mayor Adams said he wanted to do.Now, that's as nakedly political a rationale as you could imagine, because what it says is that, because Mayor Adams had said he's supporting the president's immigration agenda, he doesn't get prosecuted.But presumably, if he had been an opponent of the president's immigration agenda, he would have been prosecuted.
And then they took it a step further, because they said they wanted to dismiss the charges for now, but they were reserving the right to reconsider, in nine months or so, and potentially reinstate the charges later.So they have Mayor Adams dangling on a string.If he delivers what they want him to deliver on immigration, presumably they won't prosecute him.But if he falls short in their judgment, then they can bring everything back with full force.9
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The New York Times: Judge Ends Eric Adams Case, but Sharply Criticizes Trump’s Justice Dept.
So that's using the criminal justice system not simply to reward someone for supporting them in the past, which is itself very bad, but to coerce political support going forward.And that's even worse.
Tell me about the letter from the acting U.S. attorney, that she writes to the attorney general.10
It was a very courageous letter, and it was devastating for the leadership of the Department of Justice.11She said the arguments they were asking her to make for dismissal were ones she could not make in good faith, in court, because they were so inconsistent with her obligation and commitment to enforce the law equally against both people who are politically powerful and people who are not politically powerful.She said it would destroy her ability to lead her office if she endorsed those arguments and substantially reduce the department's credibility in court.And she was right, and very brave to say so.
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Department of Justice: Danielle Sassoon's resignation letter
Do you know why they wanted her to do it?Why didn't Emil Bove just do it?Why was he getting the Southern District involved?
Well, because if he had to do it himself, which ultimately he had to do, that just sends up a flare of how irregular and out of the normal course this is.And it's a big neon sign that says something really strange and unusual is happening that wouldn't be within the normal standards and processes of the Department of Justice.So of course you'd like the prosecutor, who would normally, if the decision was being made responsibly, be the one to implement it, and her resignation made that impossible, which helped illuminate, for everybody watching, what really was going on.
The attorney general had, by that point, sent a memo that said, “What I say, what you get from the department, from the president, is the law, as this department understands it.”Was she the one out of line when she wrote that?
Well, not at all.It's interesting that you raise the question, because Emil Bove, the acting deputy attorney general, accused her of insubordination.There was nothing insubordinate about what she did.She did what any responsible public servant should do, which is, she was directed to do something unethical; she raised concerns about it; she wrote a letter directly to the attorney general saying, “I'm concerned that I am being asked to do something unethical.I would like to meet with you to discuss that.”The attorney general didn't even meet with her.
Now, if any of us were in charge of a large organization, and one of our senior employees, one of our subordinates, said to us, “I want to meet with you, because I'm being directed to do something that is against my oath and against my responsibilities and unethical,” wouldn't one at least want to hear her out?But the attorney general didn't even give her a meeting.She had said at the end of the letter that if the decision remained, she would have to resign.And what she got in response was a letter from Emil Bove, the acting deputy attorney general, saying essentially, “Your resignation is accepted.”12But she did exactly what anyone, a public servant or someone in a private organization, should do, when directed to do something unethical.She raised objections; she tried to argue about it; she tried to persuade people to do otherwise; and when they wouldn't, she resigned rather than perform the unethical act.
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Department of Justice: Emil Bove's letter to Danielle Sassoon
She also talks about meetings in that letter where she says people were told not to take notes, and she sort of describes what she perceives as a quid pro quo, or what appears to be in this.In your experience, had you seen something like what she was describing at the Justice Department?
I have never seen the kind of quid pro quo in which a prosecution is dismissed in exchange for political support on a completely unrelated policy issue, which is what happened here.This was a prosecution for bribery.There were allegations, and obviously they have to be tested in court.Mayor Adams is presumed innocent, but there were allegations serious enough for a grand jury to return an indictment that he had been taking bribes.And to have that dismissed because he's been saying positive things about the president's immigration agenda and would be cooperative with the president on that score, I've never seen anything like that from the Justice Department.
She's not the only one who ends up either leaving or being fired.… Help me understand about that kind of fallout, because it seemed at the time so shocking and unprecedented.
It is shocking.These are people, in many cases, who have worked in their office for many years across administrations of both parties.They love their job, and it takes a lot to lead people to feel that they have to leave.In fact, the process of Emil Bove, the acting deputy attorney general, trying to get somebody to sign the motion for dismissal would be comic if it weren't so tragic.The U.S. attorney, the acting U.S. attorney, Danielle Sassoon, refused to do it.There were other people in the Southern District of New York Prosecutor's Office, they refused to do it.In fact, one of them said you'd have to be a coward or fool to sign a motion to dismiss on these grounds.13Then it was shopped in Washington, where other people in the Public Integrity Section, in the Criminal Division, resigned rather than do it.And finally, at least according to public reports, the acting deputy attorney general just got everyone who remained in the Public Integrity Section, which is the section that prosecutes public corruption cases, and basically said, “Unless somebody signs this, you're all fired.”
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The New York Times: Adams’s Lead Prosecutor Quits Defiantly: ‘It Was Never Going to Be Me’
And so one older lawyer in the group took one for the team and basically decided—and he's a hero to the people around him, understandably, because he said, “I will sign it to protect the whole office from being decimated.”But it should never, ever have come to that.When all of these career dedicated professional public servants are saying, “I'm going to have to resign rather than do this,” that is a flashing red light, and should be to the attorney general and anyone else in the department, and to the public, that something very wrong is about to happen.
It's a striking moment to have everybody … put in that room.
I don't know if it was a room or a Zoom call or what.
Wherever they are, that they have to make that decision, because I guess it isn't a, “Here's a legal memo analyzing the facts and why you should sign this.”It seems like it's about fear.
Yeah. And look, when everybody is resigning right and left rather than carry out this instruction, most of us, if we were the ones initially delivering that instruction, we would think, hey, maybe I should pause for a moment; maybe I'm the bad guy here.
It seems like the message is sort of clear, if you read what he wrote to Danielle Sassoon and what they have said publicly.But what is the message that's delivered at the end of that to everybody who works in the Justice Department?
Well, first of all, the message out there, to the public, is even if you've committed a serious crime, whether it's potentially the allegations of bribery in the Mayor Adams case or, for that matter, the people who beat up police officers on Jan. 6 who were pardoned, even if you've committed a serious crime, if you support the administration politically, you can get off.If you haven't, we'll throw the book at you, but if you've supported the administration politically, you may get off.It sends that message to the public at large.
Within the Justice Department, it tells people you may really have to choose between keeping your job and doing things that are unethical and contrary to your oath and commitment as a public servant.And that's a terrible position to put anyone in.
There are, through history, actual resignations, the Saturday Night Massacre, threats to resign in the Bush administration and the Trump administration, the first Trump administration, all of which affected decisions and policy in the end.14And in this case, it doesn't.It doesn't change things.It doesn't seem to change the ultimate decision or the politics.What does it tell you about this Trump administration, that people are fired and there's some outrage, but that's it?
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CBS News: What was the Saturday Night Massacre?
Look, I don't think President Trump or his top leadership are terribly disturbed if people resign.I think they are eager to clean out what they think of as a hostile deep state anyway, and so I think threats of resignation don't mean as much to this administration as they would to previous administrations.As you mentioned, in the Bush administration, there were threats of resignation from the attorney general on down when the Justice Department concluded that a particular surveillance program was likely unlawful and the president had indicated he might nonetheless reauthorize it.That led the president to change his mind.
In the Nixon administration, the attorney general and deputy attorney general resigned rather than fire Archibald Cox as a special prosecutor.And they did resign, but one thing that happened after that was, after Archibald Cox was fired, the new acting attorney general, Robert Bork, made sure that he was replaced by another special prosecutor who was just as zealous and just as vigorous and continued to pursue the president.But in this administration, I don't think threats of resignation matter as much, because they're trying to fire a lot of people anyway.So resignations may just save them some time.
And it's almost like he comes out of this incident stronger in a sense, because he's delivered his message that they're not going to back down, and threats of resignation are not going to deter them.
I think certainly, within these institutions, he's demonstrated how perilous it can be to cross him.I think he's weaker outside the institutions, because before judges and courts and the public, it lays bare how unscrupulous they are capable of being.
Are you surprised that Congress didn't do something about it, that there wasn't a congressional pushback?
Yeah. I think we're in a very different environment with respect to Congress than the framers of our Constitution might have anticipated.The framers of our Constitution thought that the different branches of government would be very much at odds with each other, that they'd each be ambitious to expand their own power, and so you'd constantly have, for example, a Congress and a president kind of competing over the power assigned to each and being jealous of one another and that that itself would serve as a useful check within the government.
I don't think they anticipated the rise of political parties, and in particular the dominance that Donald Trump today has over the Republican Party.There have been, over time, Republican members of the House and Senate who have stood up to the president when he has crossed particularly important lines.Most of them aren't there anymore.They have either retired or resigned or, in many cases, been defeated.
And I think what's left are people who either very much support virtually anything the president will do or are so afraid of being primaried by somebody who's more supportive of the president that they're unwilling to speak up.So I don't think we're at a point in time when Congress has any interest in imposing a meaningful check on the president.
Let's go back to something we talked about a little bit, which was the power of the Justice Department and the FBI to potentially target individuals.We still have a right to a jury trial.We still have courts.Should individuals be worried if the president has named them, or if the Justice Department might go after them?
So I think any prosecution for political reasons faces an important check, because it has to go before an independent judge, and judges of all stripes are very zealous about protecting the rights of the criminal defendants before them, and particularly, given how well known it is that this is an administration that seems bent on retribution against political opponents, I think an actual prosecution of somebody for being a political opponent of the president would be very hard to sustain.
But prosecutions aren't the only or even the most effective way for the Justice Department to act against a political enemy if it's inclined to do so.Investigations can do almost as much harm and are subject to far fewer checks.If you open up an investigation against somebody, you can destroy their reputation.You can demand documents from them.You can interview their boss, their coworkers, their friends.You can, if you're particularly unscrupulous, leak to the press that they're under investigation.You can do all of that without having to go before a judge, without having any neutral third party having to pass on what you're doing.
And that—by the way, we talked about the interim U.S. attorney for the District of Columbia.He hasn't prosecuted any of the president's political opponents, but he's opened and threatened investigations of people.And in some ways, because that's subject to so many fewer checks, that is a more devastating power.It's certainly easier to employ.
Is there any check on that threat to investigate?If they do see themselves as the president's lawyer, and they do see somebody as a worthy target, is there a check?
There are some checks on some of the most intrusive investigative techniques, like electronic surveillance or search warrants.Those have to go before a judicial officer in most cases.But the simple process of asking questions of somebody's associates, telling the press that somebody is under investigation, there's no judge supervising that.That's something that it's very much within the power of the FBI and the Justice Department to start doing unilaterally.
USAID and Inspectors General Cuts
The other thing that's happening simultaneously to what's going on at the Justice Department are what seem like pretty massive changes in the way that the administration is approaching the powers of Congress.A particular example we're looking at is USAID, where they freeze the funding; they say that they're shutting down the agency.What does a move like that tell you?
Well, when Congress establishes an agency by law and gives them certain statutory duties and responsibilities, that's not optional; that's a law.And the agency exists and then has to discharge the responsibilities that Congress has given it.So when the president tries just to shut down an agency that has statutory responsibilities, that will in many cases be inconsistent with the law that established the agency.There's a similar issue with the president's power to what's called impound funds appropriated by Congress.There are some spending laws enacted by Congress which give the president discretion as to whether or not he will spend money and under what circumstances, and there are others where it's absolutely mandatory where the money is directed to be spent.
And the president's legal theory seems to make no distinction between those situations in which the law gives him discretion to spend or not to spend and those situations where the spending is mandatory.I think he has asserted that he has the right in any case not to spend money, regardless, really, of what the law says.That is not the way the law works.There is in fact a specific statute on impoundment which strictly limits the president's ability not to spend money that's been appropriated and is mandatory.But that's an issue that I think they will try to test in the Supreme Court.
And I guess this is another area where you would have expected Congress to respond, because it goes right to the heart of their power, their ability to establish an agency, to fund an agency.
Absolutely.What's the point of having the authority to enact laws, which is Congress' big power, if the president can then disregard whatever they enact?
… Later he lets go the inspector general of USAID.What do you make of that purge of inspector generals [sic], some of whom he had appointed himself?
Well, inspector generals [sic] are watchdogs within each of the departments and each of the major agencies.Their job is to be somewhat independent of the leadership of the departments and agencies and to look at instances of potential waste or fraud or mismanagement or inefficiencies, or sometimes violations of the law.
They're never the most popular person in the room, because their job is to be an internal critic, but they have performed absolutely invaluable work in identifying ways that the government can be improved and better deliver services to the country under the law.
So this mass firing of inspectors general, the president made some allusion to the fact that there were some performance problems, but that's never been explained, and it makes no sense.He fired a whole bunch of them at the same time, and the only way to really understand the reason for doing that is that he doesn't want that kind of scrutiny.
When you were in government, how did you see the inspector generals [sic]?Were they sort of a little bit annoying to have somebody over your shoulder?
They were very valuable.And it was never relaxing to have something that you were working on investigated by an inspector general's office, but you knew it was highly useful to have somebody outside the normal chain of command with authority to look at it and make recommendations for improvements.And when I was at the Justice Department, the inspector general's office was a very strong contributor to the success of the department, because the inspector general then would make very useful recommendations for how things could be done better.
The argument of the administration, which I think ties into arguments that have been made over a long period of time, is the inspector generals [sic], like everybody in the executive branch, works for the government, and the inspector generals [sic] were not—I think the statement was were not committed to the Make America Great agenda, the president's agenda, and it's his choice to purge them.What do you make of that?
Well, he has the legal power to fire them.There's ultimately no question about that.He may not have gone about it in the way the statute requires, by giving 30 days’ notice to Congress, but ultimately the president has the legal power to fire inspectors general.The question is whether it's wise.I think it's in fact very useful to the government to have people in there whose job is to be an internal critic and to raise concerns.
And look, the inspector generals [sic] don't actually have the power to change anything.They can't act on their recommendations.They can just bring things to light, and then it becomes the job of the Cabinet secretaries or agency heads or ultimately the president to decide whether to adopt those recommendations.But why wouldn't you want to at least know how things could be improved so you could consider whether you might want to do something differently?
And I guess this is another one of those cases where there's a message being sent, which is pretty consistent with the one that was sent to the Justice Department, sent to everyone who works in government.
It's the same message: Criticism isn't welcome.Disagreement isn't welcome.Alternative ideas aren't welcome.Keep your head down, or you may be fired, too.
And how unusual is that, in your experience in government?
Well, there's a natural human tendency to dislike criticism.There's a natural human tendency not to want scrutiny.But government is too important to avoid scrutiny and criticism, and so it's really important that everyone recognize that there is a value in that.And when I was in government, nobody ever liked it when they individually were scrutinized and criticized, but everybody recognized that it was for the good of the broader enterprise.
Role of The Courts
With Congress being marginalized, or not involved at all in some of these things, how important are the courts in the lawsuits that have developed over the first few months?
Well, courts play a critical role in checking any president, because all presidents ultimately test the limits of their power.And one of the crown jewels of our system of government is a judicial system where anyone in the country, no matter who they are, can bring a case against even the most powerful among us, the president of the United States, if they believe that the president is violating the law in some way.And then they can have a neutral decision maker who decides whether the president is acting within or beyond the scope of his legal authority.That's what it means to be a country of laws.It means that everybody, even the president of the United States, is subject to the same laws and to the orders of courts.And so this is an extremely important part of our whole system of government.
But they say unprecedented number of injunctions, the sort of out-of-control courts reining them in if you compare the number of actions that judges have taken to other administrations.What do you make of that?
Well, look, I think they would proudly admit that they are pushing the envelope on a lot of legal theories.They're asking to have some Supreme Court precedents overruled, which they are entitled to ask for.But when you push the legal envelope in so many places at once, you're going to get pushback.And so I don't think it should be surprising that when you are doing as many legally controversial things as they are that there are going to be a lot of lawsuits.And they've won some, and they've lost some.
Do you think the courts can really adequately handle the mass of what is happening when the president has shuttered USAID, for example, pulled everybody back, canceled programs?Some of those moves may or may not be upheld as legal, but can the courts really deal with all of these issues?
The courts can play a very important role, but they can't do everything.And let's start with the fact that there are a lot of things that a president can do that are lawful, even things we might all disagree with.And that's particularly so when the president has the support of Congress.We're in a democracy, and a president plus Congress is an extremely powerful set of institutions.
So you have to start with the fact that not everything that the administration does that we might disagree with is necessarily unlawful and is going to be subject to correction by the courts.But beyond that, courts can't solve every problem, even when something is unlawful, because it's very hard to force a government to do something it doesn't want to do.You can stop it sometimes from doing things that are unlawful, but you can't force.
So, for example, we talked about the prosecution of Mayor Adams.It is in fact a violation of the principles of the Department of Justice and fair prosecution for them to try to dismiss that case for these nakedly political reasons, but the judge can't force the Justice Department to prosecute someone it doesn't want to prosecute.There are limits to the power of courts, and we're seeing those in a number of cases.
Trump Takes on the Law Firms
There are a lot of battles going on.Somebody said it's almost like a legal war going on over all of these attempts at executive power.And it's in the middle of that that the first of these executive orders about law firms comes out, with Perkins Coie.Help me understand what that executive order is, why it matters.
So one way to make it difficult for someone to challenge you in court is to make it hard for them to get a lawyer to represent them.And one way for a president to do that is to use the full power of the federal government to threaten the existence of law firms that dare to represent people who are challenging him.And that's what's happening here.So the president issued a series of orders against several law firms that he targeted because of a combination of reasons, he said.And these are law firms with hundreds and hundreds of lawyers who had thousands and thousands of clients over the years.
But each of them has had at least one or two lawyers who have been involved in matters that make the president very angry because they were against him personally.They were matters, in one case, the law firm represented the Hillary Clinton campaign.In another case, one of the lawyers had formerly worked on the Robert Mueller investigation and things like that.In addition, the president said that he didn't like the fact that these law firms represented immigrants and others who were challenging the lawfulness of his administration's policies.
So he did something that no other president has ever done, which is he sought to threaten the financial viability of these law firms by targeting their clients, by making it too toxic for their clients to stay with the firm.How did he do this?Well, for example, one provision of these orders says that if you're a client with one of these firms and you have a government contract, your government contract may be terminated.
Some businesses, government contracts are most or all of what they do.Threatening to terminate government contracts simply because you chose the wrong lawyer is a threat to the existence of those clients' businesses.And then other provisions of the order say that the lawyers will have only sharply restricted, if at all, access to federal government buildings and that federal government employees may not even meet with them.
So if you're a client of one of these firms, and say you're an inventor who wants to get a patent from the Patent and Trademark Office, or you're the witness or subject or target of an investigation and need to meet with prosecutors, or there's a regulation that might affect you, suddenly your lawyers can't even get into government buildings and meet with the government on your behalf.
So for clients that need to interact with the government, this order poses a huge risk of guilt by association, and no client is going to stay with a firm if they have to undergo that risk.So the whole theory of these orders is that they try to ruin the law firms by targeting the clients and make it impossible for the law firm to keep those clients.
Now, these orders are certainly unlawful, and a judge has already said so.15But it's very difficult for courts to really remedy the situation, because at the end of the day, even when a court says that an order like this is unlawful, everybody still knows that the law firm is persona non grata, in fact toxic inside the administration, and any client is still going to think it's a huge risk to use a lawyer with that particular standing.
And so there's a real question, I think, of whether any law firm that's the subject of an order like that can survive.I know that the fate of three or four large law firms is not something that's going to command the sympathy of people in the country at large, but the problem goes deeper than that, because it's not just these law firms.This is a way of sending a message to all law firms: Keep your head down.Don't stick your neck out.In particular, don't start taking on cases that might anger President Trump, because then you might be subject to the same kind of order.And we are already seeing that people who are trying to get lawyers to challenge things the government has done are finding it much harder to get people willing to take those cases on.
Have you talked to colleagues that you know in the world of corporate law and have an impression of how they view this?
Yes. And of course different people have different views.Everybody hates it.But they—Well, I would say this: There is a divide.Some people say, “You have to fight, that this is a challenge to the very existence of an independent legal profession, and it's necessary to fight this.Otherwise, you validate what's going on, and you just encourage more of it.”And others say, “Well, I agree with that in principle, but I've got responsibilities to my clients; I’ve got responsibilities to the partners and employees of my law firm.And even if I fight it and win in court, I'm still going to hemorrhage clients.So we have to find some way to cut a deal and get out of this, even if it means subjugating ourselves to the president's wishes.”
And I think that's the wrong decision, but the fundamental thing at the end of the day is that it shows that this technique is working.
… What's the consequence of there not being a collective response to it?Because there are some firms that have pushed back, a couple, but not a lot.
That's right.And what that means is that the strategy of the president works, that people can be intimidated; they can be beaten into submission this way.And we will still, we will—... Right now, as of today, there have been four such law firms targeted, but as it becomes clearer that this is a successful means of extortion and intimidation, we'll see more of it.
And the memo that's threatening, that asks for the attorney general to go after individual lawyers, looking back at cases going back eight years, presumably for some kind of professional discipline, what do you make of that?
I think that's more performative than something that will have real consequences.And the reason I say that is that if you're going to seek sanctions against a lawyer, you have to go to a court to do that.The Justice Department doesn't have power on its own to impose these sanctions.You have to go to a judge.And I think judges are normally pretty skeptical when one lawyer seeks sanctions against their opponent, and I think they're going to be especially skeptical, given the context of this particular memorandum.
So I don't think that's as threatening as the broader attack on law firms, because that depends on the cooperation of judges; the broader attack on law firms doesn't.There's one exception, which is that, in addition to encouraging, directing the attorney general to seek sanctions against law firms before judges in court, that memorandum also directs the attorney general to seek sanctions against people representing immigration defendants before the Justice Department's own immigration courts.
And while we call these “courts,” they're not really courts the way we think about them.These are presidentially appointed immigration judges who don't have life tenure and don't have to be confirmed by the Senate.And to the extent the president is able to fill up the ranks of immigration judges with people who are specifically loyal to his agenda, they might be more ready to impose sanctions on the immigration bar than judges in courts around the country.So that I guess is the one respect in which that memorandum might apply.
There are still a lot of lawsuits out there, over 100.There are still people, maybe some at firms, but a lot of nonprofits challenging the administration.How big is the threat?Because it sounds like the way you're framing it, you need an adversarial system and lawyers to file lawsuits.How important is it, if there are still these lawsuits, there's still the ACLU and others?
Well, how important is what?
How important is this story of the memos, of the threats to the law firms, if there are still some—we can still see court actions going?
Well, it's not going to be turned off like a light switch, and it's never going to be turned off completely.But it is absolutely the case that people seeking to challenge the administration are finding a lot more reluctance among lawyers and law firms; that even the law firms that take this on, these kinds of cases, do so only after a lengthy period of deliberation and handwringing and wondering what the consequences will be for the firm.
So some firms have continued to take these cases; some firms have absolutely gone out of that business; and some firms are temporizing and very reluctant, and we'll see where they come out.But the firms that are willing to do this have many fewer resources, collectively, than the need out there is to represent people, so there are absolutely people who will not get effectively represented because too many law firms are frightened of being the next target of these orders.
When you heard that Paul Weiss had made a deal, what did you think of that, of what they announced, of that announcement?16
Well, I understand why they thought they needed to do it, but it just serves to validate that this technique works.If you pay protection money, you encourage more extortion.And I think that's what we'll have here.
I guess that's the other thing that comes out of it, because part of it is this $40 million of pro bono work, and it's not clear what exactly that entails.But I guess part of it is that the law firms are the ones with the deep pockets to be involved in some of these more complicated cases, these big law firms?
Well, it's very unclear what that agreement entails.They have made various commitments, as you say, to spend $40 million on pro bono work that's to the administration's liking.They have apparently agreed to submit to some sort of audit of their hiring practices.All of this suggests a loss of independence, and it's important that lawyers be able to fight for their clients, to take the cases they should take, and win or lose, that they are able at least to be adversarial to the government.And an agreement like this suggests something much less than the kind of independence and professional judgment that lawyers ought to have.
… We're not far from K Street, and there has been lobbyists, and there has been influence and money that has gone into politics for a long time.Is this different than what the kind of influence we've seen in the past?
We have never had a situation where someone has said, “Because of what lawyer you choose, you could have your government contract terminated.You could be denied access to meetings with the government when you need to talk to the government about something.”We've never had that.That's like saying that a particular doctor's patients will be barred from all the hospitals in the area because somebody doesn't like that doctor.
And I guess it's all implied by this, that it's another situation where it's the president who's at the center of this power relationship, just like with the Justice Department or inside the government.
Absolutely.A lot of things emerge from the government that are the product of lower-level people or different people in the administration.This one clearly bears the direct stamp of the president of the United States.
Deportation of Venezuelan Migrants
… But where it really comes most dramatically for us to a head is in the world of immigration and what's going to end up with the plane full of Venezuelans going to El Salvador.As you've been watching the administration's approach to immigration and coming into conflict with the judiciary, what have you seen?
Well, let's talk about the case about the Venezuelan gang.The administration has said that there are significant number of people in the country who are members of this criminal gang that originated in Venezuela, Tren de Aragua, and that they are here illegally.17All those people that are at issue in the pending case, they're in custody.They have been detained, so they're not out on the streets.And if they are who the administration says they are, then they can be deported.Some of them say the administration has it wrong, and they're not in fact members of this gang.And everyone in the country who's accused of something has basic rights of due process, which in this case would mean a hearing to determine whether they are in fact members of this gang and whether they are subject to deportation under the law.
That's the process that the administration has tried to short-circuit.So the president initially signed an order in secret, and the administration then arranged for planes and transferred these people to different detention facilities so they could get them out of the country.The order was made public only moments before the people were boarded onto planes and sent to El Salvador.
And the reason for all of this secrecy was to try to get them out of the country before anyone could get into court and challenge the lawfulness of their removal.But some of their lawyers got wind of what was happening, brought it to court, and a judge said that he needed some time to go through the legal issues and directed the government not to remove these particular people until he had time to sort through whether or not the government had the legal authority to do so.
The government then ignored and defied the order and pushed its plan through and brought a couple hundred of these individuals to a prison in El Salvador.18And to what end?Really, they could have deported these people in the normal process by just going through the hearings and proving their case, but they wanted to deny these people even the chance to show at a hearing that maybe, just maybe, one or more of them had been swept up in this by mistake.
And everyone in this country, even people accused of the worst crimes, gets their day in court and gets the opportunity to prove that the government has made a mistake, because the government, like the rest of us, makes mistakes.We don't know whether they made any mistakes here, but we don't know that because the government tried to do this without giving anybody a hearing.And so, the reason we require that people get their day in court, and that even presidents follow court orders, is to protect against this kind of mistake, and the fact that the administration was unwilling to do that here should concern all of us.
Does it seem like the administration is almost daring the courts to stop them?If you read the statements from the administration, it sounds like they think this is a popular issue, the idea that there's gang members.The president has basically found that there's an invasion and that these are terrorists, as they've described it.
Yeah. I don't think the president wants a confrontation with the courts as much as he would like the courts to just go away.But yes, I think they feel like this case is on politically favorable terrain because they are deporting people they have said are very dangerous gang members.But they already have the power, under the immigration laws, to deport dangerous gang members who are here illegally.They don't need to do it in a way that deprives those individuals of even the slightest opportunity to prove to a judge that maybe this is an instance in which the government classified a particular person wrong and they're not in fact a member of the gang.The president has very broad authority to act on this kind of thing without doing it in a way that completely shuts out any hope for process or court review.
… The administration says we want to deport hundreds of thousands of people, and having to go through a due process is going to slow us down; we can't deliver on our campaign promise if we go through that system and we don't find a way around due process.What do you make of that?
Well, due process and other requirements of our law aren't optional.They're part of our constitutional system.Part of our constitutional system—the whole idea that you give somebody process before an accusation turns into a sentence or a deportation.Of course it slows things down.Of course it would be easier for a president to be able to just deport or punish or incarcerate anybody he wants without giving them any process at all.
But the fact that it's easier doesn't make it better.We have those protections in our Constitution because it's an important safeguard against an administration that might make an inadvertent mistake or that might be badly motivated, and they have no right to judge us on that.
What do you make that they didn't turn the planes around?
I think that was an extraordinary act.Presidents, all recent presidents—in fact, I think virtually all presidents throughout history have acknowledged that you have to obey court orders; that if you disagree with the court order, it's not optional to refuse to comply with it.The answer is to appeal.And the president, President Trump, has said he understands that he has to obey court orders.He hasn't asserted some inherent presidential right to defy court orders, but in this case, that's what they did.I think they so much wanted to finish this particular removal that they decided that they didn't need to comply.
And I guess it sends a message.One of the messages is the president of El Salvador sends out a tweet that says, “Oopsie,” and has video of these guys in the prison, having their heads shaved, and administration officials have retweeted the “Oopsie” comment.Outside of the courtroom, what message do you see being sent from things like that?
Well, I think they believe that this is a politically positive case for them, because it involves deportation of violent criminals.But that doesn't give them warrant to violate court orders.
Trump and the Judges
There's also this rhetoric about the judge.Let's start with the rhetoric first: “radical left lunatic judge” from the president of the United States; from many of his advisers, his immigration czar saying, “I don't care what some judge thinks.”19What do you make of the rhetoric around this case and towards this judge and other judges who have issued injunctions or tried to stop the administration?
The president has gone so far as to say that the judge in this case and other judges who rule against him should be impeached and removed from office because of their rulings.And it just doesn't work that way.The Constitution sets a very high bar for impeachment.Judges have life tenure.They serve during good behavior, and they can be impeached only for, in the words of the Constitution, bribery, treason, and other high crimes and misdemeanors.So only a handful of judges have been removed from office via impeachment in the past 200-plus years, and it's always been for things like bribery, tax evasion, perjury, sexual assault, in one case taking up arms on behalf of the Confederacy.It's common ground among virtually everybody that you can't impeach a judge simply because you disagree with his or her rulings.But that's what they're saying.
We've talked to political reporters who say impeachment is super unlikely, removal virtually impossible.So why?What's the message?What do you see that the president is doing?
Well, the president may be trying to intimidate judges with this kind of talk, but I don't think that will work.I think the court system is actually very strong.I think the judges in the system call these things as they see them, and I don't think they're going to be intimidated.But that may be what the president is thinking.
The speaker of the House is saying, “Maybe we need to shut down some courts, and reorder our court system,” things short of impeachment, which he probably knows is not politically possible.20But that talk has begun about the judiciary, and what does that do?
20
Well, a lot of that feels to me more like politically performative stuff than anything that's going to find its way into real legislation or be taken seriously, even within Congress.I think it's probably a way of showing rhetorical support for the president's outrage when he loses cases without having to actually do something.
But I do think about naming individual judges in this sort of environment and in this world.We talked about the pardon for people who were convicted in Jan. 6, and there have been threats against judges from both the left and the right over the years.What does that rhetoric do in this environment?
Well, over the years, there have been judges who have been killed and who have had family members killed because some crazed person, angry about some ruling, has gone to violence.So this is an environment already in which there is a pretty significant level of threat that's out there, and stoking this kind of hatred of judges can only contribute to that and can only raise the risks higher.
I know that the Marshals Service has told judges that there is a heightened threat level at this point with respect to their security, in part because of the kind of rhetoric that's out there.And just a year or two ago, we saw somebody go to the home of Justice Brett Kavanaugh with a satchel of duct tape and knives and other things to use, where he was planning to kill the justice, perhaps, and his family.Unclear, because he never got to go through with it.There were marshals there, and the plan was arrested.But there is a real danger out there of people on either side taking things into their own hands, and rhetoric like this just encourages that.
Chief Justice Roberts and the Supreme Court
Were you surprised that John Roberts weighed in after the president's criticisms or attacks on the judge?
I think it was very good that he weighed in, and it was noteworthy partly because he is very sparing in injecting himself into things like that.I can think of only two other occasions when he made unsolicited public statements about this kind of thing.He criticized Sen. Schumer when Sen. Schumer gave a speech in front of the court that seemed, at least on some interpretations, to be threatening to some of the justices, and he made a statement when President Trump, in his first term, talked about there being “Obama judges,” and the chief justice said, “There aren't Obama judges or Trump judges or Bush judges.21There are just judges.”22
21
The New York Times: Schumer, Criticized for Blasting Justices, Regrets the Words but Not the Message
So this was a somewhat rare thing for him to speak out, and I think it underscored the gravity of what the president was doing and how irresponsible it was to call for the impeachment of judges simply because he didn't like some of their rulings.
How much of this is going to land in front of him, in front of the Supreme Court?They haven't dealt with a lot of these issues yet.How important is the Supreme Court going to be in resolving or dealing with this situation we've been talking about?
Well, we're in a world in which most controversial issues, in one fashion or another, turn into litigation in courts, and the Supreme Court is the highest and most definitive court we have.So a lot of these things are ultimately going to come before the court.But it's going to take time.The process is, by design, a slow one.And so in the near term, we're mostly going to be seeing these decisions from district courts and courts of appeals.But ultimately, yes, they're going to land on the doorstep of the Supreme Court.
Does it worry you that the legitimacy of the court, on both sides of the aisle, has declined over the years, and now it finds itself really at the center of everything that's happening with this administration?
Well, I think the court's a strong institution.It's always going to be subject to some public criticism, and some of the public criticism, on both sides, is going to be irresponsible.There's always going to be a degree of that, but I think the court's still in a great position to do its job, which is to interpret the law fairly when cases come before it.
Do you think they'll be affected by the question that a lot of people have, which is, will the administration follow?As you said, the president said that he would follow a court order, but there's certainly a lot of people around the president who are saying if the courts are not interpreting the law the way that they see them, that that option is on the table.
Well, I don't think those suggestions that the administration might not follow court orders, I don't think that's going to affect how the court decides the cases.I think the court will decide the cases as they think the law requires.What the administration then does in the event it loses a case, that remains to be seen.But I don't think that will influence the court's own decision-making process.
As we've talked, a lot of these things are things that the court can't really resolve, the things inside the Justice Department, the threats.Even if they find that those executive orders against the law firms are illegal, they've sent a message that it's a kind of personal government now that has affected the way the clients and other people see it.Can the court deal with the totality of the situation we've been talking about?
No. The courts can't solve every problem, both because not all problems are legal problems; not all problems are problems of a president acting unlawfully.And even when the president is acting unlawfully, not every problem can be fixed by an order of the court.Ultimately, the court can't force a government to operate in its day-to-day operations with integrity.
So how high are the stakes, or how big is this moment of crisis, as you're describing it?
I think we're facing a really unprecedented challenge, a challenge to the fairness and neutrality of our law enforcement and criminal justice system, a challenge to the constitutional limits on the scope of presidential power, and a challenge to the principle that courts are a co-equal branch whose decisions on the law have to be respected.So I do think we're in a dangerous situation because our personal liberties, the stability of our economy, and the integrity of our government really all depend on that constitutional structure being maintained.
And that's the threat.So where are we now?Is our constitutional structure already stressed?Is it still to be determined how it will play out, or has damage already been done?
Well, our constitutional structure is definitely stressed, and how it emerges from that will really depend on what happens over the next several years, and in particular how the public understands and reacts to what's going on.Ultimately, we're a democracy, and our government is never going to be much better or much worse than what people want it to be.So I think ultimately, the question is, how does the country decide to understand what it sees happening around it, and how does it react to that?
Danielle Sassoon and Chief Judge Boasberg
[Director Michael Kirk] … I was wondering if you could help us, in a sort of small way, characterize Danielle Sassoon, the acting U.S. attorney in the Southern District of New York.Characterize her in the sense of what do you know of her politics?Because the president keeps naming people radical liberals, and that's the implication of everything.What do you know about her view?What do you know about who she is?
Look, Danielle Sassoon is not a political person.And she clerked for Justice Scalia on the Supreme Court, so she is not somebody who is there to be a political opponent of the president.She's just trying to do her job. …
The same is true of the judge, who President Trump has taken on pretty forcefully, also using “radical” and—
… The president has called Chief Judge [James] Boasberg a “radical left lunatic.”23That has absolutely no relationship to reality.Chief Judge Boasberg is one of the most respected judges in the country, respected by people across the political spectrum.He was initially appointed to the bench by President Bush and then elevated by President Obama, so he's received appointments from presidents of both parties.He has the universal admiration of members of the bar from both parties.What the president has said about him just has no connection to who he actually is.
And you, sir, what are your credentials to be here on this film, talking about this?What are the salient moments from your career that viewers need to know?
I've served in the Justice Department myself.I served in the Justice Department during the administration of President George W. Bush, first as head of the Civil Division and for a time as acting attorney general.I also worked as an associate counsel to the president in the White House in the Ronald Reagan administration.
And you worked with Judge Bork as well.
I did. I did.I was a law clerk for Judge Robert Bork on the Court of Appeals and for Justice Anthony Kennedy in his first year on the United States Supreme Court.
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