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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Thanks to Brigid Bergin and Amina Srna for filling in the last few shows. We're watching the Trump transition, including his coming policies with pros and cons, and how much he actually plans to undermine democracy. Washington Post columnist Ruth Marcus has been watching the rollout of the cabinet nominees with an eye on both tracks. We'll talk to her in just a second.

One nominee announced over the weekend. Maybe you missed this if you weren't paying attention to the news on Friday night. One nominee who Ruth has written about on both tracks, policy and democracy or authoritarianism, is Russell Vought, who would be Trump's budget director. He had that job in Trump's first term too. Trump announced his nomination, as I say, on Friday night. There was this whole flurry on Friday night while you were probably out at dinner or the theater or hanging out with friends or whatever.

Trump was announcing nominee after nominee. The Washington Post headline on Vought's nomination calls him a key figure in Project 2025, which, of course, Trump has tried to distance himself from. Here is a clip of Russell Vought obtained by the news organization, ProPublica. This was from a conference that was by invitation only, they say, of the pro-Trump think tank, the Center for Renewing America. It's his villainize-and-inflict-trauma method of trying to weaken climate and other environmental rules.

Russell Vought: We want the bureaucrats to be traumatically affected. When they wake up in the morning, we want them to not want to go to work because they are increasingly viewed as the villains. We want their funding to be shut down so that the EPA can't do all of the rules against our energy industry because they have no bandwidth financially to do so. We want to put them in trauma.

Brian Lehrer: Russell Vought, the once and apparently future budget director. The Washington Post also reminds us that he helped come up with the idea of Trump using emergency powers to circumvent Congress's decision about how much to spend on a border wall. Ruth Marcus's latest Washington Post column is relevant to this. It's called Four Ways Trump Will Undermine the Authority of Congress. Ruth, we appreciate you coming on and helping to connect the dots between policy and democracy or wannabe authoritarianism. Welcome back to WNYC.

Ruth Marcus: Thanks so much. Glad to be connecting them.

Brian Lehrer: Can we start with Russell Vought, who you presciently warned about in your column last week before the nomination? Your focus was on his interest in expanding presidential power over now independent agencies like the Federal Reserve Board, which sets interest rates, of course. Where would you start to describe Russell Vought and the mission he's indicated he would be on?

Ruth Marcus: Well, I might start with that incredibly chilling clip that you played that I haven't heard before. I have to say I think that mission of terrorizing the bureaucrats is already underway and it's already at risk of being accomplished. I can't tell you how many folks I've spoken to in the last few weeks who work for the federal government or have friends or family members who work for the federal government who are thinking very seriously about their futures and are seriously being literally terrorized out of continuing in their jobs because they know this crew that's coming in wants to chill them in doing their jobs.

I think there's a really big worry about preemptive success here on the part of the Trump folks. I spoke about Russell Vought in one of these issues, which has to do with impounding federal funds and also going after federal agencies, but he is at the Office of Management and Budget and Russell Vought are at the nexus of all of these things. They are the interface with Congress. They are the interface with the federal agencies.

They will be implementing the revived Schedule F, which is the Trump administration's first-term effort. It came very late. It was never really implemented. It's an effort to really transform the civil service from a system where there's robust protections for employees into a system where many, many more employees will be employees at will and can be fired by this new administration or succeeding administrations for any reason whatsoever.

Brian Lehrer: All of this can be categorized, as I think you do, as his interest in expanding presidential power generally such as over the Fed and its interest rate setting power and what you described as impoundment of funds that were authorized by Congress. We'll come back to that one. I think that's a really big one. Do you know if Russell Vought always had this philosophy that presidential power should be expanded? Did he have it when Obama was president?

Ruth Marcus: [laughs]

Brian Lehrer: I seem to remember conservatives going to court to say he was expanding presidential power too much or recently during Biden or only for Republican presidents.

Ruth Marcus: Well, I can't speak to Russell Vought specifically. I have not done a deep dive on him. I think there is both a general situationalism that may infect both sides of the aisle but certainly infects or affects, to use a less loaded term, the conservatives who talk a lot about the unitary executive when Republican presidents are in power and then inveigh against the outrageousness of executive orders when Democrats are in power.

Brian Lehrer: That goes back to George W. Bush, right?

Ruth Marcus: Indeed.

Brian Lehrer: The "unitary executive idea"?

Ruth Marcus: Yes. There's a few things that are going on this time around that particularly frighten me. One is that this administration, the second go-round of the Trump administration, promises to be a little more capable than the first round of the Trump administration. For example, this Schedule F order is something that it took them until October of 2020 to get issued. Therefore, it never really took effect. This time, they are going to be ready possibly on day one to do it. In fact, I think the biggest risk they run on that is doing it too quickly.

Brian Lehrer: What's Schedule F? Remind everybody.

Ruth Marcus: I'm so sorry. I am so in the weeds. Schedule F is the name of the new category of federal workers that would be suddenly stripped of civil service protections and subject to firing on the theory that they are somehow policymaking employees. That term has generally been understood to apply to only about 4,000 political appointees in a civilian workforce of 2.2 million. This could apply to 50,000 or even 100,000 broader workers. It could really decimate the middle ranks of the federal workforce and allow Trump to install those more to his liking.

Brian Lehrer: Could he just do that or is that something that would run through the courts?

Ruth Marcus: Well, the answer to, "Could he do that?" we don't know yet. The answer to, "Is it something that will run through the courts?" is almost certainly yes. The last time around when this kind of 11th-hour regulation or order was put out, the Treasury employees union sued. There will certainly be suits this time around. On this one, it will be both a question, I think, of what the civil service legislation says.

This is an old law called the Pendleton Act. It's been in place since 1883. It was supposed to and did get rid of the spoil system that just turned the federal workforce into a patronage system until we modernized it. There will be an argument on the one hand over whether this law gives the President the flexibility to do this or whether Congress meant to allow him that flexibility.

Then there is going to be this larger question that we're going to see on a number of areas as I suggested in this very long piece that I did about constitutional limits on federal power. We could well see an argument that the Constitution does not permit Congress to tell the President who he can and cannot hire and fire. That is part of this broad unitary executive power. We haven't seen that argument yet, but it well could be coming.

Brian Lehrer: Does that include confirmation of cabinet members and other appointees by the Senate? Because I think one of the encouraging things, tell me if you disagree, from a guardrails-of-democracy standpoint is that the new Republican majority in the Senate does not seem ready to go along with Trump's request to voluntarily give up their confirmation authority.

Ruth Marcus: There were four things that I wrote about and they really all go to questions of presidential power and specifically presidential power as it relates to Congress. The first was this question that you raised about the ability to name your cabinet and other senior officials through recess appointments. The second one was the question of, as president, whether you are required to spend money that Congress appropriates or whether you can go to Congress and say, "Gee, I'd rather not."

The third is the issue of independent agencies and whether we can have independent agencies. These are multi-member commissions. They're composed of members of both parties, usually with a head that reflects the President's party, but they can only be fired under a 1935 Supreme Court ruling called Humphrey's Executor. They can only be fired for cause by, which is a very high standard. The President can't just say, "I don't want you here. Go away." There could be a challenge to that.

Finally, this Schedule F civil service question, it all goes to the question of presidential power. It will all depend on two things. One is, as you suggest, the willingness of Congress to stand up to the President. In this case, the Senate. I thought the withdrawal of Matt Gaetz as the attorney general nominee was extremely good news. I think it remains an open question, though looks less likely now than it did two weeks ago that the Senate would somehow agree to give off its advice and consent authority so the President could work his will.

I think that's still a potential avenue if he gets frustrated enough with Senate action. We saw a welcome reflection of some congressional resistance. TBD. How much of that, we'll see in the future. Then the other question is the degree to which this conservative Supreme Court and the increasingly conservative after a term of Trump lower federal courts will be in policing the separation of powers.

Brian Lehrer: Certainly, we know how far Trump says he should be able to go on all of these things. Here's one tiny example then.

Donald Trump: I have an Article II where I have the right to do whatever I want as president, but I don't even talk about that.

Brian Lehrer: Well, apparently, he talks about that. That had music under it. It was from a Washington Post mashup of times that Trump has talked about that that is invoking Article II, the executive branch article of the US Constitution, as giving him the power to do anything he wants to do. Obviously, there are constitutional limits on presidential power, but this is his starting point, right? This is his initial gambit. It was, going back to his first term as well, saying that as president, he can do anything that he wants to do.

The things that we've been talking about so far, because I don't want to overreach when we talk about threats to democracy or authoritarianism wannabes as opposed to policy issues and structural issues that work their way through the democracy. Is all of this that we've been talking about, Schedule F, impounding funds authorized by Congress, all of these, is this a democracy-versus-authoritarian issue for you or something less than that? One could argue that executive branch agencies should be in control of the President and have a meaningful debate about that.

Ruth Marcus: I really want to say that I'm sympathetic to your point about not overstating things. For me, the way I've been saying it, the way I've been talking to my family about it is that I think that Trump's election is a catastrophe, but we also shouldn't catastrophize it. We shouldn't think that this is the last election. We won't be able to recover from this in four years once Trump leaves the scene, assuming he voluntarily leaves the scene, which I guess I do.

I do think that we are on a spectrum from democracy to authoritarianism. If you go back and you look at the Founding Fathers and The Federalist Papers and the subsequent writings, they were very clear that the critical protection for democracy was to create a system of checks and balances where we don't just have President Trump and his vaunted Article II. We have Article I, the Congress. We have Article III, the federal judiciary.

Each of those is competing against the other and has a set of powers that are set off against the other. If one of those gets too out of whack and the framers were pretty clear that they worried most because they came from the sad experience of a monarchy in King George, they were most worried that the presidency was going to get out of whack. Are we on the road to authoritarianism? I hope not. I think not.

I also think and the reason I wrote this piece is that while we're talking about any number of atrocious policies that the Trump administration wants to go down the road of beginning with mass deportations on day one, beginning with whatever they might do on reproductive rights, all of those things are policies that are capable of being undone in the next administration or things that can be fixed in the next administration.

When you're talking about structural changes if the President were to get power to not spend funds that Congress tells him to spend-- and by the way, Richard Nixon tried to do this in the early 1970s and he got slapped around and Congress passed a law to try to set some guardrails for that. When you make these kinds of structural changes that enhance presidential power at the expense of congressional power, that is the kind of thing that's, number one, really hard to undo and, number two, does upset those checks and balances and edge us in a more authoritarian direction.

Brian Lehrer: Listeners, your questions or comments welcome for Washington Post columnist Ruth Marcus on the Trump transition or nominees or her latest column, Four Ways Trump Will Undermine the Authority of Congress. 212-433-WNYC, 212-433-9692. Call or text. In a minute, I want to go on to one of the other nominees, Pam Bondi now for attorney general after Matt Gaetz. You wrote about her.

If people thought that Russell Vought clip that we played was chilling, I think they'll probably find a Pam Bondi clip that we're going to play chilling as well. I just want you to finish the thought for this section on this impoundment of funds. This would be for what? EPA to help the energy companies avoid climate regulations, the kind of thing that Russell Vought was referring to in that clip, or what kind of thing? What's the argument that says the President can wave his hand and not spend money that Congress has passed a bill saying should be spent?

Ruth Marcus: Well, as I say it, it's going to sound a little bit backwards, I think, to your listeners. Well, first of all, as most people listening to this know, Congress under the Constitution has the power of the purse. It gets to decide what to spend. It gives that money to the executive branch instructing it to spend it. The argument that has been made against the constitutionality of this law prohibiting presidents from impounding funds basically saying, "I know you sent us this money, but I'd prefer not to spend it."

With Richard Nixon, he didn't want to spend a whole bunch of money. Some of it was for sewage cleanup. He just thought there was a better use of money and this was wasteful and he didn't want to do it. It was his somewhat petulant response after Congress passed the Clean Water Act over his veto. He just kept saying, "I prefer not to spend these funds." It turned out he needed to.

The argument for why you would get, as president, not to do what Congress told you to do boils down to, "Congress isn't the boss of me," because the Constitution says that the President has to take care that the laws be faithfully executed. The most logical way to read that would be to say, "Yes, Congress told you to spend these funds and it's your job to therefore spend them."

Brian Lehrer: By the way, those are bills passed by Congress but signed by the President and in faith.

Ruth Marcus: Indeed, yes. Good point. Sometimes presidents sign them expressing some concerns, but they do have to sign them because the Constitution, in its wisdom, set up a veto, an override situation. All those checks are built in. If push comes to shove on the impoundment, I believe we will see the Trump administration arguing that the President's duty to take care that the laws be faithfully executed gives him the authority to, yes, ignore the laws.

Brian Lehrer: That too, I imagine, would wind up at the Supreme Court. Where, again, not to overreach, I think it would become an authoritarianism issue is only if the Supreme Court rules in Congress's favor and Trump says, "No, I'm doing it anyway." Fair?

Ruth Marcus: Well, that raises another whole issue. I think impoundment at the Supreme Court. Fascinatingly, back in the Reagan administration, when questions were being raised about impoundment, Charles Cooper, who was an official at the Justice Department at the time, said there was no textual authority for the claim that presidents had the power not to spend congressionally appropriated money.

Chuck Cooper quoted one guy who used to work at the Justice Department named William Rehnquist. You may know, he later became a Supreme Court justice and chief justice saying exactly the same thing. I think that impoundment power is something that is going to have a tough road at the Supreme Court. This is a Supreme Court that has managed to astonish me before CEG, the immunity ruling, in its views on presidential power. Nobody should sleep too easily.

Then there's the question that you raised about what would be a real constitutional crisis, which would be if the Supreme Court were to say, "No, Congress said spend this money. You need to listen to Congress. Spend this money," and the President would say, in effect, "Make me." There is no capacity of the Supreme Court beyond its public image and forcefulness of its authority to make anybody do anything.

They don't have the sword and they don't have the purse. They just have their own, "We're telling you to do this authority." We've never really confronted that before. It is conceivable we could confront it in this administration. One reason that makes it conceivable, by the way, is that JD Vance, law school graduate, has suggested more than one time that if the administration doesn't like something that the court rules, it can just go ahead and ignore it.

Brian Lehrer: We'll continue in a minute with Washington Post columnist Ruth Marcus. We'll play that clip from the new attorney general nominee, Pam Bondi. We'll get to a few of your phone calls and more. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC as we continue on our usual Monday morning politics segment, usually national politics, before we get to some local things, which we certainly will during this show. Ruth Marcus, Washington Post columnist, her latest piece called Four Ways Trump Will Undermine the Authority of Congress. I want to take a call from William in East Orange, who I think is going to argue that Congress has too much authority, at least in one respect. William, you're on WNYC. At least certain members of Congress, right, William? Hi.

William: No, that's correct. Masha Gessen had just this really frightening article in The New Yorker, making analogies to how Viktor Orbán schemed over 10 years or so to create a horrible political system. I am also worried about Trump, but I want to make a different kind of point. Now, I also bristle when people talk about the wisdom of the Founding Fathers. I think it's kind of silly, given the existence of a Senate, the Electoral College, et cetera, but here's my point. The chairpersons of committees are dictators in the following sense. Committee group, committee member writes a bill, says, "I like this bill. I want to have it discussed." Committee chairperson, "No, sorry, the bill is not going anywhere. It's going to die." That is a dictatorial power. That is ridiculous when we talk about structural "democracy."

Brian Lehrer: Yes, and I think beyond that, the speaker of the House, who has the power, that means the head of the majority party, really, the speaker of the House has the power not to bring a bill to a vote on the floor even if it passes committee. Even if the majority of the House would likely vote for it, the speaker has that, what you're calling dictatorial power. William, what we're talking about in this segment is whether the President should have the power to transcend that, or are you raising it just as an internal congressional issue?

William: No, the simple answer to that, Brian, is of course not. Save our democracy. We're trying to save a system that is dramatically undemocratic. Now, Trump is horrific and scary. If Trump didn't win, we still have a party that is applauding genocide, or at least too many members. I'm not at all optimistic about what we're saving.

Brian Lehrer: William, I'm going to leave it there. Ruth, I guess this could be from whichever side of the aisle after whichever election. In this case, for people who want progressive changes to the structure of democracy because, certainly, you can say the Senate is fundamentally undemocratic, which leads to the electoral college being fundamentally undemocratic and things like that, but they're not at that point right now of being even able to debate those things in a meaningful way from the Democratic Party side or the progressive side. They're just playing defense given who won the House and Senate and presidency, correct?

Ruth Marcus: Yes. I think it's going to be very interesting. William talks-- Well, Victor, I think, talk-- William, whoever. I'm sorry.

Brian Lehrer: William.

Ruth Marcus: Yes, I got confused with Viktor Orbán. The internal--

Brian Lehrer: William would be very insulted to be confused with Victor Orbán.

Ruth Marcus: I know. I'm very, very sorry.

Brian Lehrer: [chuckles] Go ahead.

Ruth Marcus: By the way, the framers were not perfect. They were self-evidently not perfect. Slavery. We also needed the bill of rights and then we needed the 14th Amendment. They were very wise. They wisely, I think, gave to each House of Congress, the ability to set rules for itself, because who else is going to set the rules? The House could vote somehow to take some power away from the speaker. More relevantly, the Senate could vote to do away with the filibuster, which is not in the Constitution in any way. I think if Republicans start to move to do away with the filibuster, we'll hear some of the very same Democrats who insisted that the filibuster was terrible, telling us that we need to have it as a check against-

Brian Lehrer: Yes, that's right.

Ruth Marcus: -the tyranny of the majority. It just goes back to the situation.

Brian Lehrer: That would be hypocrisy on their side. I had another guest last week who said they don't see any interest on the part of the Republican majority in the Senate to do away with the filibuster. Even though if they did, they could pass all this controversial stuff with just 51 votes. Is that your perception?

Ruth Marcus: It is my perception for this extremely wonky reason, which your guest may have raised. The main Republican desire in terms of passing legislation, not the only, but the main, is to do tax cuts. Tax cuts and a whole bunch of other pieces of economic policy can be done through reconciliation.

Brian Lehrer: Without a filibuster. Yes, 51 votes.

Ruth Marcus: Reconciliation only requires 51 votes. I think we are going to see fights about how much stuff can be jammed through reconciliation and whether they'll overrule the parliamentarian in terms of the determination of whether this is doable. That's a whole other show. I think for that reason and because anybody who's smart enough to look around the corner as Mitch McConnell has been will know that if you get rid of the filibuster in this Congress, in this Senate, you are going to get rid of it for the future.

What goes around comes around. I've always thought it was actually a good check on the greatest craziness. I do think there doesn't seem to be the appetite to do away with it now. Trump railed about it during his first term. He could easily be thrown another fit about it this time around if it turns out that he can't do as much as he wants to do through the vehicle of reconciliation.

Brian Lehrer: One more call on another aspect of the transition that might be threatening Democratic transitions as we know them. Here's Newt in Irvington-on-Hudson. You're on WNYC. Hi, Newt.

Newt: Hi, Brian. Very, very, very long-time listener and appreciate everything you do. I am confounded by one thing, which is I read recently that Trump has not disclosed any funding that's coming in for his transition and that that's basically dark money. I'm not sure, but I guess it's not a law that he disclosed or a rule or a convention. He's basically already, without even taking the office, shown himself to be lawless. My question is this. When we talk about presidential power, what power does Biden have now to curb some of the things that Trump is doing? He's sending people to talk with foreign leaders. We're just very focused on everything he can do as president. What about Biden?

Brian Lehrer: There's really two questions there, Ruth. Let's take each one briefly. We're going to run out of time soon. I still want to play this Pam Bondi clip. There's, what can Biden do in his remaining time? The first question that Newt raised was about this disclosure of funding for the transition. I think this has to do really with money that supports some of the cabinet nominees. If they go up for confirmation hearings, it might not be transparent. Who's got their financial hooks in them? Is that the issue here?

Ruth Marcus: It's to help the Trump transition effort. Because he isn't taking, as I understand it, federal money, he is not subject to the disclosure rules, which means that Biden and the rest of the federal government can't really do anything about this. There's this whole worrisome privatization going on, not just the private money funding the transition, but there is not the ordinary FBI background checks that are going on.

They are doing their vetting through private means. This is completely unorthodox and quite dangerous, I think, because it will mean that there's a bunch of people who should have gone through FBI background checks who haven't or who are going to be up for security clearances. Trump can decree that people are getting security clearances with or without background checks. I just think this is all part of a dangerous accretion of power.

Brian Lehrer: Here's the clip of Pam Bondi. We're going to have to save the Biden question for another guest on another day because of the clock. Attorney General Matt Gaetz is out. Pam Bondi, former Florida Attorney general, is the new nominee. She was also on Trump's defense team during his first impeachment and is generally considered more qualified and more confirmable from the reaction so far in DC. You have a column called, Gaetz Is Out, but Hold the Celebration.

Here's a clip of Bondi that seems to prepare us for the retribution that Trump says he will bring, including to Special Counsel Jack Smith personally and others in the justice system who dared to bring charges against Trump to hold him accountable for crimes that they believe he committed. Here's Pam Bondi.

Pam Bondi: The Department of Justice, the prosecutors will be prosecuted, the bad ones. The investigators will be investigated. Because the deep state last term for President Trump, they were hiding in the shadows. Now, they have a spotlight on them and they can all be investigated.

Brian Lehrer: Yikes.

Ruth Marcus: Yikes indeed. When Pam Bondi said this, I suspect she did not imagine that she was going to end up as the nominee for attorney general. Maybe she had it in the back of her mind and she was auditioning. That is a terrible thing for a prosecutor to say. Matt Gaetz maybe didn't know better, but Pam Bondi, from everything I've read about her, does. Even if you don't end up prosecuting the prosecutors, the simple act of investigating them is so destabilizing, so expensive for people.

Everybody is trying to hire lawyers. Law firms in Washington are nervous about representing these people for the obvious reasons. This is unprofessional and, really, in an ordinary world, would be a disqualifying thing for a nominee for attorney general to say. She's clearly a better nominee than Matt Gaetz, but I worry after having heard that clip that that might not be saying very much.

Brian Lehrer: Ruth Marcus, Washington Post columnist. I'll note that we didn't even get to Pete Hegseth, the defense secretary nominee, who may conceivably wind up as the biggest operational threat to democracy if he is confirmed. Just as an example, The Guardian has an article the other day called Trump's Pentagon Pick Hegseth Wrote of the US Military Taking Sides in a Civil War. We're going to do a separate segment, though not today, on Pete Hegseth. For today, we thank Ruth Marcus. Her latest Washington Post column is called Four Ways Trump Will Undermine the Authority of Congress. Thank you, Ruth.

Ruth Marcus: Thank you so much.

 

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