Title: The Trump Administration and the Rule of Law

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. On Thursday, we'll be at the two month mark of the Trump administration. There are, of course, all these chainsaw cuts, as Elon Musk himself describes them, to the US Government. There are also machine gun intensity changes in policy, domestically and internationally. Then there are the democracy versus autocracy, and rule of law versus authoritarianism questions that underlie how much of this is being done with implications, let's face it, that go beyond any specific policy, no matter how consequential those particular policy changes themselves are in the moment.

In the headlines right now is the apparent thumbing their noses at the judicial branch of government around the judicial order not to fly suspected Venezuelan gang members en masse to El Salvador this weekend under the so called Alien Enemies Act that's supposed to be only invoked during wars. The president of El Salvador, a Trump ally, posted the words "Oopsie, too late" about the deportees being in the air after the judge ordered them not to be flown. Trump's deputy chief of staff, Stephen Miller said this on CNN, directly challenging the court's authority.

Stephen Miller: The district court has no ability to in any way restrain the president's authorities under the Alien Enemies Act or its ability to conduct the foreign affairs of the United States.

Brian Lehrer: Stephen Miller there. You have this from border czar Tom Homan on Fox.

Tom Homan: I'm proud to be a part of this administration. We're not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming.

Brian Lehrer: At least publicly, if not in court, they're leaning into not caring what the judge thinks, as Homan put it there. From that, one of the questions is how broadly does that apply? Then you have yesterday's shutdown of the US Institute for Peace. Have you heard this one yet? Something that was created by Congress, an example of challenging that branch of government, in addition to withdrawing the US from trying to build democracies around the world, which is another autocracy versus authoritarianism question, and there's so much more.

As we continue our series, Is This What Democracy Looks Like?, we'll do a kind of rule of law two month scorecard here through the lens of Andrew Weissmann, professor of practice at the NYU Law School, an MSNBC legal analyst and author of the books, Where Law Ends: Inside the Mueller Investigation and The Trump Indictments: The Historic Charging Documents with Commentary. Andrew, thanks for coming on with us again. We always appreciate it. Welcome back to WNYC.

Andrew Weissmann: So glad to be here.

Brian Lehrer: Listeners, how's the rule of law doing according to you from any point of view or with any particular examples from these first two months that you want to cite, or what questions do you have for Andrew Weissmann. 212-433-WNYC. 212-433-9692. The Alien Enemies Act has been in the news so much the last couple of days, and there's been a lot of analysis about that. I don't want to linger too much, but I do want to start with it. Does it apply to suspected gang members?

Andrew Weissmann: Well, the judge in DC has said it does not. One way to think about this, this is a late 18th century statute and it was primarily put into place when you were at war, when there was a declared war. The idea was that if there were people who are part of that enemy state, a foreign government that were in your country, that the president had the ability to remove them after identifying that those people were in fact part of that enemy group. What the United States is relying on here is a provision which isn't related to being at war because, of course, we're not at war with Venezuela. Instead, there's a part of the statute that says that if there is an invasion by the foreign country, then the same thing applies.

Now, the reason the judge was very skeptical and said this doesn't apply is because he was looking at this going, A, we're not at war, B, it's hard to imagine that there's been an invasion by Venezuela and a gang is not a foreign country, nor has there been any sort of hearing or judicial determination that the actual people who are being rounded up are within the category, in other words, that they are actually part of the gang that is able to be removed. That was the judge's substantive ruling that this was going to be on pause, on hold until this could all get sorted out.

Brian Lehrer: This Alien Enemies Act has only been invoked, from what I've been reading, during the War of 1812, World War I, and World War II. Here's another clip of border czar Tom Homan on Fox where he makes the case that they are being sent by the Maduro government to wreak havoc as gang members on the United States. Listen.

Tom Homan: Who in their right mind, whether you're a judge or not, wants known public TdA, a recognized terrorist organization sent here by the Maduro regime to create havoc to unsettle the United States through the use of fentanyl to kill thousands of Americans, violence to American citizens, raping and murdering young women in this country.

Brian Lehrer: What I'm interested in that clip, Andrew, is the words "Sent here by the Maduro regime," which does a lot of work in that clip, right?

Andrew Weissmann: Absolutely. As does the government's brief trying to say that the gang is a de facto government or agents of a foreign government. Also, that clip you just played is pretty inconsistent with the briefing by the government where they say there is no adjudicated crime that any of these people have committed in the United States. That's the reason why the idea is that you-- let's just assume the best case for the government. There has to be a way that if they have rounded up the wrong people, in other words, let's say they round up 100 people, but 10 of them are wrong, they're just not within that group, there needs to be some process.

There needs to be due process where they are allowed to be heard to say, "You got it wrong" and the government has to be able to say, "This is why we established that they're within that group." I think that's what caused the judge such concern, was that there isn't that due process. The final thing is this is not about fentanyl. This is not about being for terrorists or against terrorists. That's not what the judge is looking at. The judge is deciding whether the statute applies, whether due process has been complied with. It's not a question, as Pam Bondi has phrased it, that the judge was citing or supporting terrorists.

Brian Lehrer: What do you make of these dismissals, even mocking of the judge? Now, I've seen reporting that they're not claiming a right to ignore court orders. They're just using loopholes to claim that they're not violating the judge's order in this case.

Andrew Weissmann: Well, first, up to and including this morning, Donald Trump has been attacking and people on his behalf have been attacking the judge and calling for his impeachment and saying he's a far left radical. That is really dangerous language for somebody-- you can disagree with a judge, that's totally fine. There's a process which is going on, which is appealing the judge and seeing if the circuit will disagree in court. I should say a lot of the language that you've played is not what the government is saying in court. They don't actually say we're entitled to just ignore what you have done. They haven't gone that far in court, but certainly outside of court, you are seeing that kind of language.

I would say words like loophole, I would-- look, I'm a lawyer, if there is a good faith basis to say why you were not in contempt, why you didn't-- because that's the second issue that's coming up, is regardless of what the statute says, the judge issued orders about what to do and he's very concerned whether those orders were violated and he's trying to get to the bottom of that. If the government has a good faith basis for why they technically did comply, they're entitled to make those arguments and then the judge will decide whether they're correct or not as to whether there was contempt of court and whether they actually knew about the order and deliberately decided not to follow it.

Brian Lehrer: Well, here's what I was referring to as an argument that there's a loophole as Karoline Leavitt, the White House press secretary, was making it before the cameras the other day.

Karoline Leavitt: There's actually questions about whether a verbal order carries the same weight as a written order. Our lawyers are determined to ask and answer those questions in court.

Brian Lehrer: Can you explain and contextualize that?

Andrew Weissmann: Yes, I can. First of all, an oral order is an order. There's no such thing. The government actually, in court, didn't say that the oral order wasn't binding, but they did create-- this was a clever and I don't think it's an argument that's going to carry the day. They said once the written order came out, it was different then and less restrictive than the oral order that preceded it. Their view was that there was a superseding of the oral order by the written order. The judge seemed highly skeptical of that claim as to why they hadn't complied with the oral order. It also doesn't answer the question of whether they were in contempt of the oral order before the written order went into effect because they didn't seem to be complying with the oral order before it was superseded.

In other words, even if you take the government's claim in court at face value, which is a lot, that's a big if, it doesn't explain whether they weren't in contempt before that. The judge is trying to get at the bottom of that and has ordered the parties to submit papers by noon today on those issues.

Brian Lehrer: Even the fact that we're this deep into the weeds about verbal versus written orders and the timing of when one or the other came out, that sounds like a bit of a far cry from a constitutional crisis. Tell me if you disagree with that. What I want to ask is do you expect them to take that next really constitutional crisis launching step with regard to the courts and really acting on that one little piece of what Tom Homan said and say "We don't care about a court order"?

Andrew Weissmann: This is what I would say, is I don't see that they're going to do that in court. I don't see a lawyer showing up and saying, "We're just not complying with an order" and not doing what you're supposed to do as you have to comply until you get it appealed and changed. We are in a constitutional crisis in terms of the outward facing statements that you have been playing, Brian, where you have people from the administration saying essentially we don't give a darn. I know this is a family show, so I'm going to keep it at that, which is we don't give a darn what a single judge says. When you're hearing that from people who are senior officials in the United States government, that is the constitutional crisis, even if they don't have the temerity to repeat that in a court of law.

Brian Lehrer: Andrew Weissmann is our guest as we're doing a two-month rule of law scorecard according to him. NYU law professor, MSNBC legal analyst. We invite your phone calls and texts, 212-433-WNYC. Let's go on to their relationship with Congress. I mentioned the Institute of Peace shuttering as the latest example. There are other examples, of course, under the so called right to impound authorized funds that they're claiming. Is this a political and legal debate or a rule of law scorecard issue?

Andrew Weissmann: I think it's both. We have three branches of government and I don't think that when the framers were thinking about checks and balances, that you have different functions, that they were thinking that one branch of government would so readily accede to and give up their power. I think the theory was that each branch of government would be sufficiently self interested that there would be a check on the other. What you're seeing now of course is statutes being violated, congressional authorities being violated, but Congress isn't doing anything about it, so it leaves the playing field open to the executive.

That is the reason that what you are seeing right now is really only two branches of government. One of the reasons I think that you're seeing such an attack on judiciary is because the judicial branch is the only branch right now that is putting up any sort of resistance in terms of making sure that the rule of law is actually adhered to.

Brian Lehrer: Conservative legal scholars argue, and we're getting really big picture now, that the so called unitary executive theory should apply, that this is about dismantling the federal government, that all these agencies that were created that have some independent rulemaking have usurped what should be the president's power to control the executive branch, because technically they're executive branch agencies, whether we're talking about the EPA or the Labor Department or lots of other things. Is there a certain logic to that that you understand?

Andrew Weissmann: Well, I think I would say two things. One, it's a unitary executive theory that is in terms of the president's power over the executive branch. It's not a unitary government's theory, meaning that none of the other branches have a function. Congress has the power of the purse. It has an enormous amount of power that is independent and co-equal to the President. Just to be nerdy for a moment, Justice Robert Jackson, in a very famous case called Youngstown, talked about this issue of the three branches of government and the rise in power of the executive branch, particularly the president, and really was raising a sort of clarion call for needing to be wary about the growth of presidential power since the framing of the constitution.

That particular opinion by Justice Jackson is so moving and should be of such concern to people because Justice Jackson, before he was on the bench on the Supreme Court, was the lead prosecutor in the Nuremberg trials. When he talks about the concern about no checks and balances on the executive, on the president, he is speaking from that historical perspective. That was written in the 1950s and if anything, we have seen the growth of presidential power since that time. I think that's a very important object lesson for the courts and for Congress in thinking about the importance of the checks and balances that they need to play at this time with respect to even a unitary executive power.

Brian Lehrer: They say the power of the presidency has been weakened over the last many decades, at least since Watergate, too much. Can you explain that and respond?

Andrew Weissmann: Well, I just disagree with that. I don't think that is really fair when you think about what the-- I think if you just ask people who are listening in to think about the power of the executive branch and the presidency in particular, and the bully pulpit and all of the executive orders, everything that we've seen in the last two months, and Brian, that you're focusing on in terms of the scorecard, could anyone really say that they're seeing that the executive is now playing a diminished role, certainly in relation to Congress? Congress seems almost have both arms tied behind its back and completely complacent, even when its own authority is being usurped. I just think, as a factual matter, I think if you even consider just the last two months, but I think even if you put it in context of since the founding of this nation, that you see that the primacy of the presidency has really been something of deep concern to the idea of checks and balances in this country.

Brian Lehrer: A few people are calling in to defend the use of the Alien Enemies Act, including saying it has been used before, a little more than what I had read that I cited. Let's take one of those. Jack in Manhattan, you're on WNYC with NYU Law Professor Andrew Weissmann. Hi, Jack.

Jack: Oh, hi. Thanks for taking my call. I just want to correct a mistake that you made. Firstly is that that act has nothing to do with war. We've passed by Adams to get rid of his enemies, and Adams acted just like Trump. In fact, Jefferson thought the act was unconstitutional. I don't know why it was never repealed, but it was used exactly the way Trump is using it. It was used because the French Revolution, the revolutionaries, was opposed to the kind of politics that Adams had and they want to get rid of them. That's what he used it for. It really has nothing to do with war or anything. You need to correct that piece of the information.

Brian Lehrer: Jack, let me get a response. That is so the opposite of everything I've read in multiple news organizations. Andrew, I'm not a historian of the laws of war or Adams vs. Jefferson. Clarify.

Andrew Weissmann: Sure. Well, I think maybe-- Let me just read what the first part of the act says so people can just gauge for themselves, because it's very clear whenever there is a declared war between the United States and any foreign nation or government. Then here's the key part that this administration is relying on, "Or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States, and then the President can remove those people." It deals with two things, a declared war, which is the way that the act has been invoked in the past. Whereas I think the caller was talking about what might have been in the minds of the people putting the act in place, but You, Brian, were talking about when it's been invoked.

This is not about a declared war because there is no declared war with respect to Venezuela, so they have to rely on this idea of an invasion or predatory incursion. The final thing is the statute requires that that invasion or predatory incursion be undertaken by the foreign nation or government. That is the reason, Brian, as you flagged, that the government here, that Donald Trump is saying that the gang at issue is really de facto a foreign nation or government, because to get within the statute, that is what you have to do. That's the reason that Judge Boasberg, who is the Chief Judge in DC, put a pause on this to say, "I need briefing. I want to consider this because it does not seem to be applicable."

He was well within his rights, in my view, to say "I need this temporary pause to brief all of this, because I'm not seeing how you get from A to Z and all these dots get connected because they have to comply with the statute."

Brian Lehrer: All right. I know we have 10 minutes left in the segment before you have to go and there are a number of other things on this rule of law scorecard that I want to get to. Let's tick through some of these. Another autocracy issue that we barely talked about on this show because there's been just so much else, we can only do so many things every day, is the firing of inspectors general. Discuss the implications.

Andrew Weissmann: Sure. Well, one thing I would note is a lot of the firings are justified by the government, or allegedly justified, on the idea that we're stopping fraud, waste, and abuse. We want to save money. There's nothing about getting rid of inspectors general that fits within that bill. I guess you're saving some money because you're getting rid of the top people at the inspectors general. Remember, those people are there to find fraud, waste, and abuse. I think that on the issue of autocracy versus democracy, if you get rid of people who can be whistleblowers, people who are supposed to check the executive, that is a sign of autocracy versus a functioning democracy.

Having been in government for over 20 years, it is very useful to have people who are there to check you, to make sure that you are doing the right thing, that you're not abusing your discretion. I don't see how the firing of those inspectors general fits in anything other than what we're seeing and to relate it to the Alien Enemies Act litigation. This idea that we shouldn't have checked power at all, we want to do whatever we want to do, and the judge shouldn't be able to tell us anything that is against what we want to do. The same thing with respect to inspectors general. To be clear, we're talking now, though, about something that is legal for the government to do. It's just, in my view, unwise.

Brian Lehrer: Here's an interesting question via text from a listener. In the event that court orders are really being defied, and in the context of the Supreme Court's ruling last year that the president enjoys sweeping immunity from anything that he does, from criminal investigation or prosecution based on anything he does as an official act. He says, "Even if the president is now immune for official acts, can others in the administration be held responsible for their actions if proved illegal? If so, criminal sanctions or only civil?" Interesting question about the cabinet secretaries who might be implementing some of these things that a court might find to be illegal.

Andrew Weissmann: That is a terrific question. I listen to your show religiously, and I'm always super impressed, not just with you, but the questions that come in. This question is very much an open issue because the Supreme Court only decided criminal immunity with respect to the President of the United States. They did not decide what would apply to people who are carrying out the president's orders. I strongly suspect that they would be entitled to and the court would find that they are entitled to some form of immunity, but it may be a lesser form, less absolute than the president, but that's an open issue.

I should say, though, that the courts still have some tools. For instance, if you are held in contempt, there are two types of contempt, and one of them is a civil contempt. Well, civil contempt doesn't involve criminal immunity at all. It's not a criminal sanction. The courts have inherent power to hold people in civil contempt. That can be fines. It can actually even include jail until such time as you comply with a court order. Again, I may be very naïve and too much of an institutionalist, but I do think it's important to note that at least so far in court, we're not seeing anyone take the position that they're entitled to just violate the court order. Maybe this would give also some comfort to people who are listening.

The Wall Street Journal editorial page, which is not exactly known for being a liberal bastion, also was saying that if they were to go into court and defy a court order, that would be a bridge too far, that that is something that you may disagree with a judge, but what you have to do in that circumstance, as we all know from civics classes, is you can appeal it, but you can't just ignore it.

Brian Lehrer: Yet another rule of law scorecard issue is how Trump is beginning to use the Justice Department. He gave a speech last week that some of our listeners have heard excerpts from or coverage of, really unprecedented, including saying CNN and MSNBC are acting illegally in their coverage of him. How did that land with you? Full disclosure. You're an MSNBC legal analyst.

Andrew Weissmann: Yes, I also was name-checked, full disclosure by the president. I think that continues the attack on anybody who speaks out, whether it's-- we talked about a court of law and judges. This is an attack on the independent fourth estate. Brian, you obviously would have significant interest in that. It's a real attack on the First Amendment, whether it's a news organization or individuals who are speaking out. In terms of the Department of Justice, one example I would give is when the president just the other day said he's challenging and saying that the Biden pardons are not in effect. He then said, and thus those people should be fully investigated.

That is the president totally getting rid of the norm that has existed since Watergate in both Republican and Democratic executive branch functions that the White House stays out of the decision of who to prosecute and who not to prosecute. That norm is completely gone. To me, when you're looking at democracy versus autocracy, that is a critical, critical distinction. One quick anecdote. When President Obama was swearing in and invited all of the United States attorneys, the key federal prosecutors, to come to the White House for a ceremony, he made sure to tell them, "I nominated you, but I want to make sure you know you do not work for me. You are independent and you have an oath to the Constitution."

That's just President Obama. You know what? President Bush would have said the same thing. It really is a norm that has been followed by presidents in both parties, understanding that you can have policy differences with different parties, but the issue of the Department of Justice and who they prosecute needs to be independent.

Brian Lehrer: This is a really big issue and one that obviously we all need to keep our eyes on as to where they actually try to take it. With respect to the inspectors general, a listener adds via text, "How about Hegseth, the defense secretary firing Judge Advocate Generals? The purpose of JAGs is to ensure that our field military follow the laws of war." Just a soundbite. Fifteen seconds. That goes along with the firing of the inspector generals. It's in that bucket, right?

Andrew Weissmann: Absolutely. If anything, more concerning because it's the three top independent judges and it's in the military. I would ask listeners to ask, "Why would you do that? What would be the benign reason to remove those people?"

Brian Lehrer: Last thing, just on the rhetoric of identifying with authoritarians past and present, we know about some of the current alignments putting us on the other side from democracies that are going on right now in foreign policy. Musk retweeted the other day somebody's post that Hitler, Stalin and Mao didn't kill millions of people, their public sector employees did. Then when he got called out, he deleted the tweet. Just the fact that he would have the impulse to go there in the first place is so scary, isn't it?

Andrew Weissmann: We are in an extremely scary time. One thing I've been trying to say in every forum I can is for people who think that we're just concerned about what will happen, we're there already. This is happening and it's not something that one can ignore at this point.

Brian Lehrer: Andrew Weissmann, NYU law professor, MSNBC contributor, thank you so much.

Andrew Weissmann: You're welcome.

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