[MUSIC - Marden Hill: Hijack]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Happy Friday. Good morning, everyone. Do you know the name Emil Bove? Among other things, he's the Trump Justice Department official who instructed federal prosecutors in Manhattan to drop the corruption charges against Mayor Eric Adams. You may know the name from that. Several prosecutors resigned over the order, which seemed to them to be corrupt in itself, a deal in exchange for cooperation with mass deportation.

Bove was also a defense lawyer for Donald Trump in a criminal case against him before Trump was reelected last year. The reelection, of course, made the case go away. Well, now, and this may not surprise you, Emil Bove has been nominated by the President for a lifetime appointment as a federal judge. Yesterday, Republican senators advanced the controversial nomination over the staunch opposition, as you might imagine, of Democratic lawmakers, and a number of former US attorneys.

That's just one of a slew of legal stories coming out of Washington this week that seem to be consolidating more and more power in the hands of President Trump. Another one just breaking, is Trump saying that he's going to sue The Wall Street Journal, owned by Rupert Murdoch, for publishing what is purported to be a racy birthday greeting once upon a time to Jeffrey Epstein.

Joining us now to break down the Emil Bove nomination and more is Elie Honig, Senior Legal Analyst at CNN, New York Magazine columnist, former state and federal prosecutor, and author of Untouchable: How Powerful People Get Away With It. Always good to have you, Elie. Welcome back to WNYC.

Elie Honig: Thanks for having me, Brian. Boy, do we have a lot to cover here, but I'm ready for you. Let's go.

Brian Lehrer: I didn't even mention yet how they may be trying to undo some pardons that President Biden issued at the end of his term, because they may have been signed by an autopen, but first, let's talk about Emil Bove. Here's a clip from his nomination hearing last month where he describes what he says he is not.

Emil Bove: There is a wildly inaccurate caricature of me in the mainstream media. I am not anybody's henchman. I'm not an enforcer. I'm a lawyer from a small town who never expected to be in an arena like this.

Brian Lehrer: Shucks, just a small town lawyer. Elie, who is he, and why is the opposition to his nomination to a federal judgeship so fierce?

Elie Honig: I know Emil, I should say Emil Bove. We overlapped for a few years at the Southern District of New York. I've been in touch with him since. He's almost a Rorschach test. Depending on how you look at him, you can perceive either of two very different things. Here's what I know for sure. Let's divide recent past into two sections. First, as you mentioned, Brian, Emil was one of Donald Trump's personal criminal defense lawyers last year in the Manhattan DA's hush money trial, and I believe in some of the other pending indictments as well.

During that time, I was, and I one hundred percent stand by my position, I was entirely supportive of Emil and Todd Blanche, who was the other lawyer who's now the Deputy Attorney General of the United States. I actually thought, and I was quoted publicly, I thought it was outrageous, how many in our SDNY universe, many alums, many former prosecutors, were trashing Emil and Todd.

"Oh, how dare they represent Donald Trump?" What I said then and I say now, is when did we, a bunch of toughened federal prosecutors who work these cases with, and against hardened defense lawyers, talented defense lawyers every day, when did we become so sensitive? When did we start pearl clutching about a criminal defense lawyer representing a criminal defendant in a criminal trial?

That's how our system works, so I reject the criticisms that had been lodged against Emil for having the audacity to represent Donald Trump. He did his job. He did his job quite well. Okay, that's chapter one. Now, I'm going to break ranks here from Emil. He has been one of the top ranking DOJ officials since Donald Trump took office in January of this year, so six months or so. I do agree with the many criticisms of the way he has handled that job.

Notably, he was the driver of the DOJ's effort, successful effort to drop the corruption case against New York City Mayor Eric Adams, and the reason it was so outrageous, is because DOJ's spoken reason, which Emil supported, was, "Well, we believe that Eric Adams needs to support us, and will support us on immigration. Therefore, he can't be prosecuted." Now, I thought that was an outrage. I thought that compromised DOJ's history of independence, and non-political action.

Beyond that, I think Emil comes in for deserved criticism, because he was one of the people who fired prosecutors who worked on January 6th cases, perfectly valid cases, so he's been involved in retribution at DOJ, so there are reasons that one can, I think fairly criticism-- Criticize him very fairly, and there are other things that I think do not merit criticism.

Brian Lehrer: Let's talk a little bit more about his relationship to the Eric Adams case. As you say, he was the DOJ official who instructed federal prosecutors in Manhattan to drop those charges. Several prosecutors resigned over that in protest. Then, last month at a hearing, Bove refused to answer questions about the decision. Here's a clip of that exchange with Rhode Island Democratic Senator Sheldon Whitehouse.

Senator Blumenthal: Did you ever talk to Stephen Miller before you filed the memorandum on February 10 ordering the dismissal of the Adams charges?

Emil Bove: Senator, I responded to Senator Kennedy's questions based on a publicly filed document that described the Attorney General as a--[crosstalk]

Senator Blumenthal: Did you talk to Stephen Miller?

Emil Bove: I'm not going to describe the participants in conversations.

Senator Blumenthal: You won't answer that question?

Emil Bove: No, I will not, Senator.

Senator Blumenthal: Why?

Emil Bove: Because it is not appropriate for me to discuss.

Senator Blumenthal: It is appropriate for you to tell us whom you consulted before taking action on behalf of the United States of America. You have no basis to avoid that question, Mr. Bove.

Brian Lehrer: Senator Sheldon Whitehouse and Emil Bove. Elie, people may not have heard that clip, but a lot of people would have heard the clip of the Border Czar Tom Homan and Adams on a TV show joking about how they made a deal and Homan saying, "Yes, and if you don't work with us on this mass deportation, we're going to come right back at you with a criminal case." Not exactly those words, but that was the gist. What was Bove's role in this, and how explicitly can you say that it was a quid pro quo?

Elie Honig: Bove's role was front and center. He was the one who signed the documents. In fact, because of those resignations that you referenced, Brian, and by the way, that is highly unusual. I think the total number ended up being seven experienced non-political DOJ prosecutors resigned during, and because of the Eric Adams case. Emil went into court himself, which is exceedingly rare to see a person at the lofty position he holds in DOJ sit at council table and argue a motion like that.

Now, Emil has argued that, that's a virtue. He said, "I was the only one who was willing to stand up," but it shows you just how unusual the position was. With respect to your question about the deal, was it a quid pro quo between DOJ and Eric Adams? My view is, it certainly was, and that's not even some kind of take, or narrative. If you look at the documents DOJ put in to their credit, I guess, Emil was quite candid.

They said, "We're doing this because Eric Adams agrees with, and will promote our policy agenda on immigration." I think Emil tried to thread a very fine needle, which is essentially, I'm paraphrasing, but essentially, their argument was, "Well, it's not a quid pro quo. We are giving him leniency, because of his policy, but not in exchange for his policy," and if you're rolling your eyes, I am too, but that was essentially what the core argument was.

I should add also, Brian, the concern that you voiced, that I voiced at the time that Tom Homan gave voice to, which is, "I'll be standing right over your shoulder, and if you don't do what we want policy-wise, we'll prosecute you again." That was the way the initial deal was structured. It was going to be a dismissal without prejudice, meaning, the case could always be resuscitated.

Ultimately, however, the judge said, "Look, I have no choice. I have to accept this dismissal, but I'm not taking it without prejudice. It's going to be with prejudice." Meaning, you can't hold it over Eric Adams head. You can't have it constantly hanging over him, the threat of bringing the indictment back, so that part was rejected, but, yes, Emil cannot distance himself from the Eric Adams thing. He was the headliner on that.

Brian Lehrer: Another thing that Bove has done is to fire over a dozen prosecutors and eight senior FBI officials involved with investigating and prosecuting January 6th insurrectionists. How unusual is that?

Elie Honig: It's something that's not done prior to this administration for a couple of reasons. One, there are two buckets of employees at the Justice Department. There is a very, very small bucket of what we call political appointees. That's not a pejorative term. Those are people who are nominated by the President, confirmed by the Senate, the Attorney general, the Deputy AG, couple other high ranking positions in D.C. and then your US attorneys, your 94 people who lead the various offices, 93 people, 94 districts around the country.

99-point-something percent of DOJ employees and prosecutors are what I was, which is Assistant US Attorneys, which means we're not put through any political process. We're not partisan, or political. I happen to work there almost half exactly of my years during Republican administrations, and half during Democratic administrations. It made no difference, and the longstanding practice and tradition at DOJ is, you don't get fired if you're one of those non-political folks, unless you do something outrageous, unless you steal evidence from the locker or something like that, [chuckles] so the notion of just casually firing line people, by the way, Brian, we saw this the other day with the firing of Maurene Comey, who was the prosecutor on the Epstein case, which we'll get to later on the show.

Brian Lehrer: We're going to get to. Yes.

Elie Honig: That's one way it was unusual. The other way is that it was explicitly retributive. You're being fired because you worked on a case, and by the way, this wasn't some case that collapsed, right? This wasn't some case, where, "Oh, it turned out there were prosecutorial ethical problems with it and it was dismissed." This is a case, these January 6th cases resulted in almost entirely guilty outcomes, and were righteous and just. Now, there was a pardon, there was a blanket pardon later, but that doesn't render the case is somehow improper, and so now Emil, again, is part of the effort, complicit in the effort to fire those folks as a matter of political retribution.

Brian Lehrer: By the way, a correction on the clip about Adams. That was not Senator Whitehouse. That was Senator Blumenthal of Connecticut. Senator Whitehouse was in a different clip, sorry about the mistake. Just before Bove's confirmation hearing to have this lifetime federal judgeship, more than 900 former federal prosecutors filed an explosive letter opposing the nomination. How unusual is that?

People will always line up on one side or the other. You can find people in politics who are going to write letters of protest about one thing, and other people in the similar positions that they have are for it, so put this in context, 900 former federal prosecutors filing this letter opposing Bove. How unusual is that, or what does that number 900 mean in the context of that whole workforce?

Elie Honig: Well, that's obviously a large number, and I understand the statement they're making. I'll tell-- I was asked to sign that letter, and I declined. I don't sign those letters. I don't think they do any good. I actually, frankly-- I just don't think it's appropriate for former feds to sign on to those kinds of things. I used to, honestly, early in my post-DOJ career, but I was convinced by others that it's grandstandy, and I don't love them.

By the way, they have become common. I mean, it's fairly common. They're always anti-Trump administration letters, and I don't love them, but they make a statement, and of more note, maybe there was also a letter signed by, I think it's over 80 former federal and state judges opposing Bove's nomination. I'm not actually sure those letters aren't counterproductive. I think there's a tone to them.

By the way, I should note, the judge's letter is actually inaccurate. It's actually overstated. As to one of the criticisms of Bove, which I think is a problem, but I would imagine, I'm speculating here that something about those letters is really off putting, I think. If anything, look, all he needs to do is keep the Republicans in line, and he's going to get through. They have a majority.

I wonder if it's counterproductive. Let me just show you where the judge's letter is overstated, so the judge's letter. Okay, this goes to a moment, and I think you alluded to this earlier. Bove was involved in the immigration cases, where there was disputes about, would DOJ follow the judge's orders, and were they deporting people, while contrary to judges orders?

The judge's letter says that Bove explicitly plotted. Explicitly plotted to violate court orders. That's not accurate. The whistleblower report on which the judges were basing their letter says the following. "Bove stated that DOJ would need to consider telling the courts, 'Eff you,' and ignore any." There is a big difference between explicitly plotted and said. We need to consider something.

Me saying to you, Brian, you and I need to consider robbing a bank, is very different than me and you explicitly plotting to rob a bank. Now, it sounds like a fine distinction, but for the judges to make that error, I think is sloppy, and I think shows that they're a bit over the top here in their resistance.

Brian Lehrer: Well, to what degree might the whole resistance be over the top? If we look at the context of the judiciary becoming like another branch of politics, maybe more than it was in the past, or maybe it always was in the past, and now it's more out in the open. Yes, Donald Trump is going to nominate judges who have right wing backgrounds and conservative views. A Democratic president will nominate judges who have more progressive issue ties, and liberal backgrounds. However you want to label it.

Elie Honig: Right, yes. No, look, I want to be clear. My objection is to the form of the objections. Everyone has a right to speak. I'm not contesting that. By all means, if you want to speak out, if you want to sign a letter, go ahead. It's just not for me, and I don't think it's particularly productive politically. I do largely share the criticisms of Emil, and I do think there's problems with him going to the bench.

You're right. I mean, of course, the President is going to pick judges who are aligned with him ideologically, and policy-wise. Bove is different. I mean, I'm sure he shares Donald Trump and Conservatives, in general, policy views. We don't really know that. He's never really been in a judicial or policy-making role, but now Trump seems to be appointing, it's different in kind, I think, for the reasons you say. Because this is a person who's not even so much about conservative, properly understood conservative judicial principles, as he is about Donald Trump.

Brian Lehrer: Listeners, calls for Elie Honig, CNN Legal Analyst, on the nomination of Emil Bove, or other legal things in the news right now that we'll get to. 212-433-WNYC, 433-9692, calls or texts, so speaking of prosecutors being fired, let's turn now to Maurene Comey, a Federal Prosecutor for the US Attorney's office in Manhattan. Yes, if that name sounds familiar but, "Oh, Comey, where have I heard that before?" Yes, she's the daughter of former FBI Director James Comey who was also fired-- I'm sorry, she was fired by the Justice Department on Wednesday. Who is Maurene Comey and why was she fired?

Elie Honig: I'll say, first of all, again, even though we are all in this SDNY bubble and world, I actually don't know either of them. I started at the SDNY months, or weeks after Jim Comey left and went to DC, so I only know Jim Comey in passing. I never met Maurene Comey, but I know that over the past decade plus she has emerged as one of the top prosecutors at the SDNY.

Her specialty has been sex trafficking cases. As we see she handled the Jeffrey Epstein case, the Ghislaine Maxwell trial, and the Sean Combs, the Diddy case recently. She became a high level supervisor at the SDNY, and everything I've heard about her I can tell you, Brian, in our again in our SDNY text chain world, has been just unequivocally positive. I mean, people glow and rave about her.

Now, the other night, she gets fired, and that is-- I will tell you my y reaction when I heard that from one of my friends on the text chain was an expletive, because, first of all, as I said earlier, she's a non-political appointee. She's what we call a career prosecutor. Second of all, why? Okay, look, I'm speculating here. We don't know. She wasn't given a reason why. She was just given a terse termination letter.

if this is some attempt by Donald Trump to hurt Jim Comey, and we know Trump hates Jim Comey, and wants him-- Is adverse to his interests. If this was some attempt by Donald Trump to hurt Jim Comey, then What a disgrace. It is a low blow. It's just a despicable way to take up a beef you may have with somebody. We'll never know. I'm sure he'll never admit that.

The other thing that strikes me is, it seems like this could be some sort of setting the stage to turn Maurene Comey into a scapegoat for the Epstein case, because she handled the, A, the prosecution of Jeffrey Epstein, which of course was terminated early when he died, and then B, the trial of Ghislaine Maxwell, and so it would not shock me, if at some point, in the coming weeks and months, you start seeing stuff out of right wing media, or maybe the White House, or who knows? Saying, "Ooh, look at this thing Maurene Comey did," and somehow trying to pin the whole entire Epstein issue on her, which is completely bogus.

Here's why. Her cases were done in 2021, 2022. Ghislaine Maxwell was convicted in '21, sentenced in '22. The appeal is still ongoing, but whatever Maurene Comey did, and she got a good resolution on Maxwell. Epstein, of course, died. She has nothing to do with what documents will DOJ release now in 2025. She never had anything to do with that. She doesn't have anything to do with that now.

Brian Lehrer: Speaking of-- Well, The Wall Street Journal has reported that Maurene Comey wrote the following in an email to her colleagues after her firing, "If a career prosecutor can be fired without reason, fear may seep into the decisions of those who remain. Do not let that happen. Fear is the tool of a tyrant wielded to suppress independent thought." She's going right to this charge of authoritarianism, and it reminds me of the historian Timothy Snyder when he says, "When it comes to authoritarians, don't obey in advance." I mean, that's the vibe I get from that Maurene Comey quote. You were an assistant US attorney yourself at one point, so what do you make of that statement?

Elie Honig: She was saying the same thing that I was saying to you earlier. This is, by the way, we all get indoctrinated, like in a good way. At the SDNY, we are taught, and I think throughout DOJ, we are taught that this job must be separate from politics, and that's why she said right up front that, "We don't." It is-- I forget how she phrased it, but you don't fire non-political career prosecutors, and she makes such a good point there.

Again, I use my experience as an example, my first four years, I started at the SDNY in '04, and I was there till '08, so it was the George W. Bush administration. Then, in January '09, the Obama administration took over, and it made zero difference. I have no memory of that even happening. It had no impact on what I did as a prosecutor day-to-day, and it should not.

The point that I think Maurene Comey is making there quite powerfully, is if we get to a point where our non-political employees at DOJ, meaning, all the normal folks who run the cases are thinking about, "Is this going to tick off the White House? Could I get fired for this? Could I get disciplined for this? Is this going to please the President? Is this going to please one political party or the other?" Then you've permanently changed the DNA of the Justice Department for the worse.

Brian Lehrer: Listener writes in a text message, "After The Wall Street Journal told Trump about the story about his birthday letter to Epstein, Comey was fired." Is there a timeline there you can confirm, or any relationship that looks likely?

Elie Honig: There may have been things happening behind the scenes, but the timeline is, Maurene Comey was fired on Wednesday night at about six o'clock PM. The Wall Street Journal article came out last night, Thursday night, but however, there were rumblings that The Wall Street Journal article was out there, and that there was some back and forth between the White House and the Journal.

In terms of any connection, I'm not sure I see a direct line from one to the other, but again, I think there are chapters yet to be written about what the administration, or others try to pin on Maurene Comey. I can all but guarantee you that she will be faulted, blamed, scapegoated for something in the Epstein case.

Brian Lehrer: Speaking of Wall Street Journal, President Trump said he's going to sue the newspaper, which means, basically, suing Rupert Murdoch, who also owns Fox News and The Post, over its story yesterday about a racy birthday letter that he purportedly wrote to Jeffrey Epstein in 2003. I mean, you wrote a book about powerful people getting away with misconduct.

Does this speak to how Trump bends the legal system to his benefit? If we consider, I don't know, that it falls in the category of misconduct. It was a racy birthday greeting if reported accurately, but in the context of everything else that we know about Jeffrey Epstein, it raises eyebrows.

Elie Honig: This is a new tactic, this is a new tool. I wrote the book a couple years ago, before this was even happening. Trump, really-- He's always been litigious, but what he's doing now, and we're seeing it again with this threat last night to sue The Wall Street Journal, is he's basically trying to browbeat media organizations and beyond media organizations, other independent entities, universities and law firms, with the threat of costly lawsuits, burdensome regulations.

From Trump's perspective, I think if you're just looking at this from a pure power perspective, what's the downside if he goes into court and he loses? All right, I mean, he can pay the fees, or he'll have DOJ represent him on some of the matters, but what I think has been really shocking and disappointing, is how many of these universities, law firms, and media organizations have buckled to this pressure, and have chosen to pay healthy settlements, multimillion dollar settlements, over $10 million settlements, just to make the cases go away.

I think Trump's perspective, he's using this as a tool of intimidation, and the thing is, Brian, it's working. I mean, you see, look, that the CBS settlement over 60 Minutes was outrageous. I mean, Donald Trump had no case on that. Zero case. I don't think he would have even got to trial. I'm sure a judge would have thrown it out, and yet they settled for, I forget the number, over 16 million or something like that.

You see these bailout settlements that, I think, it's working for Trump. Look, I give credit, I want to also give credit where, due to the many universities led by Harvard, to many of the law firms, and some media organizations that have refused to buckle as well.

Brian Lehrer: Daniel in Astoria is actually calling in about that CBS settlement, and another maybe related, maybe CBS development in the last 24 hours. Daniel, you're on WNYC. Hello?

Daniel: Hello? Can you hear me all right?

Brian Lehrer: Yes.

Daniel: Okay, great. I guess my question is, I mean, Paramount is going to be had-- Obviously, we've been hearing about Skydance, and that the gentleman who is apparently in charge of Skydance is a Trump ally.

Brian Lehrer: Just to keep people coming along, Paramount is the parent company of CBS, and there's a merger with Skydance in the works that they're applying for approval for. Go ahead.

Daniel: Right, and that they have to get approved by the FTC, which is, of course, also currently run by a Trump ally, or at least Trump appointee. My question is, I mean, we've seen the head of 60 Minutes resign. Apparently, one of the heads of CBS News also resigned shortly afterwards. The people at 60 Minutes have been disappointed. I read a quote where one of the correspondents was like, they're in grief.

I keep on wondering, these shows that we're used to, I mean, whether it is The Daily Show, which is also under Paramount and faces being cut, or Colbert, or 60 Minutes, or any of these shows, to what degree do any of these producers, executive producers, or the creators themselves have any ownership of the IP, the format, so that they could say, "Okay, we're now moving this to dropout.tv, we're now moving this to HBO, we're now moving this to whatever other platforms," or is it like, if they axe the show, the show itself can no longer exist in any other place?

Brian Lehrer: Daniel, thank you. I mean, there certainly have been instances of one network dropping shows over the years, and another network picking it up. It's not that necessarily the producers or the hosts like Colbert, who is told he's being-- His show is going to be canceled, told yesterday, announced it yesterday on the air, that's going to be after May, and of course, people are asking questions.

Senator Elizabeth Warren and others are asking questions in Washington. Was this part of the deal with CBS, and the lawsuit settlement? There's certainly also a business analysis that's out there that late night talk show television has been losing market share for a long time, and other late night shows have been canceled, and profits are way down, so I don't know that we can say anything definitive about that.

Whether or not they can move, certainly, another host could be picked up by another network, something like 60 Minutes if they wanted to try to go away, some other network could start it and call it 59 Minutes, and if they see a business model in that, but I don't know if you have anything on that from a legal perspective, which is part of what the caller was asking Elie.

Elie Honig: Yes, it's an interesting question. That would be dictated by contract, right? Different contracts have different non competes, and who owns the intellectual property, but broadly speaking, you can absolutely-- Look, it's not-- You're not going to see some other show called-- What's it called? Late Night with Stephen Colbert with the same set and everything, but it would not shock.

If you're a Colbert fan, and you're wondering where is he going to be? He will be free to do almost any other kind of media. He can have a podcast. I mean there's example, look at Tucker Carlson on one side, or Jim Acosta, or Don Lemon. People who've left major platforms at cable news, you have a lot of freedom to go out on your own.

Brian Lehrer: We'll continue with Elie Honig with even more legal stories. Stay with us.

[MUSIC - Marden Hill: Hijack]

Brian Lehrer: Brian Lehrer on WNYC, as we talk about some legal stories in the news with Elie Honig, Senior Legal Analyst at CNN, and New York Magazine columnist, former state and federal prosecutor, and author of Untouchable: How Powerful People Get Away with it, published in 2023. Here's an Emil Bove question from a listener in a text. "The move is to make Bove's current nomination to a federal judgeship as a stepping stone to the Supreme Court. Bove already stating it's possible for Trump to run for a third term." I think he did decline to rule out the possibility of a third term in some way, so can this be a stepping stone to the Supreme Court, which if, there's a vacancy, Trump would try to install him in?

Elie Honig: It could be. I mean, of course, that's speculative. There was a good piece in The New York Times the other day by Jeffrey Toobin explaining why this could be, that I found interesting. There's a really important question about whether Trump will get another Supreme Court vacancy, and the way this lines up is really important, Brian. Let's assume everyone stays in good health and all this.

The two oldest justices right now are Clarence Thomas and Samuel Alito, the two most reliable hard-right pro-Trump. Actually, I don't think some of the other conservatives are necessarily pro-Trump, but those two are. They're the two senior-most justices. I think they're both in their mid-to-late 70s, and will be coming up on 80 by the end of Trump's term, and so one of the most important questions to watch is, will we see resignations by either of them?

It wouldn't happen now or next year, but it would be '27, '28, with the strategy of, we'll recycle this seat, we'll turn it into somebody 40 years younger. That's what both sides do that now. I mean, there's a reason Stephen Breyer retired when he did to clear the way for Justice Ketanji Brown Jackson, and there's a reason Anthony Kennedy retired when he did, and on down the line.

I think if you're thinking about, if that were to happen, who might replace those people? Well, we know it would be somebody pro-Trump. We know it would be somebody conservative. We know they would want somebody young, and I think Emil's in his 40s, I believe, a little younger than me, so sure. I mean, he-- The other thing is, and Toobin makes this point in The New York Times, he doesn't have a judicial record.

He was a prosecutor, but you're not writing judicial type motions or briefs or anything, and so this could give Bove a chance to build up some type of body of work. I will say this, though. If we're thinking short term, if one is of the view that Emil Bove is bad and dangerous, and as we talked about earlier, there are plenty of things that he deserves harsh criticism for. In a way, in the immediate future, he can do way less damage on the bench, than he can as a high ranking person at DOJ.

I mean, we've seen what he can do as one of the top people at DOJ just over the last five, six months. I mean, we just peeled off five or six really bad things he's done. If he gets through, and it seems he will get through, he will be sitting on the Third Circuit Court of Appeals, so that's not a district court, that's not a trial level judge. It's a very important position, but that means he will be one of 15 or so appellate judges who are usually assigned to cases in groups of three, so on any given case, he'll be one of three, handling only a fairly discreet group of federal appeals that come through the district courts in Pennsylvania, New Jersey, and Delaware.

His name could pop up here and there, but to me, if you're worried about the next year or two, and you think Emil Bove is dangerous, you'd rather have him on the bench, than sitting there at main justice. However, of course, it's a lifetime tenure, and who knows where he could go next.

Brian Lehrer: Interesting. Speaking of the Supreme Court, there seem to be relatively a lot of Supreme Court decisions from the so-called shadow docket in recent weeks that enable Trump in terms of expanding his executive power, or reaffirming some of the things that he's trying to do with executive power that are considered controversial, and they issue these decisions without an opinion, right? Without a written explanation of why, and people are starting to notice this as a pattern. Are you?

Elie Honig: Oh, for sure. To be clear for our listeners, when we talk about the shadow docket, or the emergency docket, think of the Supreme Court as having two different dockets, two different case lists. There's the normal docket, and that's the very orderly, deliberate one where the parties submit these neatly printed out briefs, and then they have very formal arguments that we hear, and then the Supreme Court, basically, decides all those cases with long, detailed opinions, and that ends in June or early July, just ended a couple weeks ago.

Separately, operating at all times, is the emergency docket, where there's an injunction, or a restraining order, and one party wants it lifted, and the other doesn't. That happens anytime, often with limited, or no briefing, and as you said, Brian, often with limited, or no actual substance in the opinion. Just I think it was last week, or-- No, it was last week, there was a major one that essentially allowed Donald Trump to go ahead with plans to gut the Department of Education, and that was a 6 to 3 vote with the usual 6 conservatives on one side, the 3 liberals on the other.

The opinion itself allowing him to do this was four sentences long. It was one paragraph, and it was just procedural stuff. They didn't say why. That was followed then by a 19-page nuanced dissent by the three liberals, so this emergency docket, this shadow docket is becoming more and more prevalent, and it's turning the Supreme Court into a more active participant in our daily affairs, and our political affairs.

Brian Lehrer: Adam Liptak, The New York Times Supreme Court reporter, characterized at least one of these shadow docket rulings without explanation as, "Exercise of power, not reason." Think that's fair?

Elie Honig: Yes. I mean, as always, Adam Liptak puts it perfectly. I mean, again, if you look at that DOE opinion, it's just basically-- It boils down to one paragraph of Trump may continue so ordered. It's like [chuckles] one of the core precepts of our legal system and our judiciary, is we explain things, we explain why we're doing things, we explain the rationale, we look at the precedent, and the emergency docket has become a way to completely shortcut that.

We've seen emergency docket opinions that are one sentence, so people have pushed back on this. Steve Vladeck, who's a great Supreme Court scholar, has also wrote a book, not the plug. Well, I will plug Steve's book called The Shadow Docket explaining why this is such a problem.

Brian Lehrer: Here's a caller who wants to come back to the new Trump lawsuit against The Wall Street Journal for publishing what it says is a birthday message from Donald Trump to Jeffrey Epstein once upon a time. [crosstalk] Pat in Bloomfield, you're on WNYC. Hey, Pat, you're on the air.

Pat: Hi. Thank you very much. I've been interested in these pro bono agreements based on extortion that the Trump administration did against these major law firms. My question really quick, was whether or not Trump, do you think Mr. Honig can use that pro bono money to pursue The Wall Street Journal litigation, assuming he goes through with it? Thank you.

Elie Honig: Oh, good question, so you're tying together to two different threads here, so I mentioned before that one of the things Trump has done, is go after these law firms, basically, threaten to take away their security clearances, and to take steps that would make it really difficult for big clients to hire these firms, and by the way, the basis on which he's selecting these firms is, again, explicitly retributive.

In his executive orders, explaining why each firm, he says, "Well, this firm hired Robert Mueller, this firm hired people who investigated me. This firm represented Jack Smith," that kind of thing, and so the agreement that the caller is referring to here, that some of those firms, not all of them, all the ones who fought Trump in court, have won, every single one of them, but other firms buckled.

Part of the agreement, is the firm agrees to perform X number of dollars' worth $40 million in one case, $100 million in another, of pro bono work, meaning for free, that the administration approves. Now, the caller saying, "Well, could Trump say," okay, Paul Weiss is one of the firms that buckled? "Okay, Paul Weiss, I want to start using some of your free legal work to go sue Donald Trump," or, excuse me, "To sue The Wall Street Journal," and that example, I mean, could he? I don't know.

That example is part of why these deals are so outrageous, because the firms are relinquishing say over what they do to the government. I mean, it's antithetical to what law firms and the lawyering profession are supposed to be about. No one has a problem with pro bono. Everyone loves pro bono. It's great, but when you're allowing the White House, the government, to dictate what you can do, that's a big, big problem.

Brian Lehrer: One more story. Apparently, there's an attempt to nullify pardons that President Biden issued at the end of the term. Here's a Newsweek headline on that. "Joe Biden Pardons null and Void," Ted Cruz says. It says, "Senator Cruz has argued some of the pardons and sentence commutations issued by Biden before he left office in January are likely legally null and void, because they were signed off using an autopen en masse without Biden's explicit consent for each individual," and they remind us of the context of these pardons, which covered both convicted criminals and prominent figures, who Biden's team believe could be targeted by a Trump White House, including Anthony Fauci, General Mark Milley, and members of the House committee that investigated the January 6 Riot at the Capitol. Is there illegal there there?

Elie Honig: No, I don't think so. I mean, look, if it could be proved that somebody in the White House other than Joe Biden issued these pardons, and then went and snuck into wherever they keep the autopen and put his signature on it, and he knew nothing of it, if that could be proved, maybe, but I'm sure there's no facts to indicate that. The mere use of autopen does not prove enough.

I mean presidents use autopens all the time. I don't think there's anything there. I will say, Joe Biden, though, did get himself into a little bit of trouble with the blanket nature of some of these pardons. He did issue, I'll give you one example, a blanket pardon that ended up sweeping up a case out of Pennsylvania known as the Cash for Kids case, and it was a judge, a local judge, who was taking bribes to, basically, make rulings adverse to kids with respect to adoption, and foster homes, and that kind of thing.

A disgraceful pardon that even Josh Shapiro was very, very critical of the pardon. A Democrat, the Democratic governor, and so that's the problem, though, with mass pardons. Joe Biden is not the first person to issue mass pardons. There have been mass pardons throughout our history. Jimmy Carter issued a post-Vietnam mass pardon. Abraham Lincoln issued post-Civil War Confederate pardons, and so but there is a danger in that.

I think Joe Biden deserves political criticism, vast political criticism, for the way he used the pardon power, but I don't think there's anything to the argument that the pardons are invalid. By the way, this is all just showboating by Ted Cruz and others. I mean, there's not even a legal vehicle to challenge a pardon, unless they're first going to actually charge somebody who's been pardoned, and then litigate that the pardon is invalid, so I think this is mostly performative, and I don't think it goes anywhere.

Brian Lehrer: We will leave it there for today with Elie Honig, Senior Legal Analyst at CNN, New York Magazine columnist, former state and federal prosecutor and author of Untouchable: How Powerful People Get Away With It. By the way, his next book, When You Come at the King: Inside DOJ's Pursuit of the President from Nixon to Trump, is coming out in September, I see. Elie, until then, I hope you'll come on for a book interview.

Elie Honig: Thank you, Brian. I very much look forward to talking about this one with you. You're going to love this one. You're going to get inside stuff you've never heard before, from Watergate, from Iran Contra, from Clinton, all the way up to Jack Smith, and Merrick Garland, and Hunter Biden and Joe Biden. It's all in there, so I look forward to talking about that one with you in September.

 

Copyright © 2025 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.