The following is a lightly edited transcript of the February 7 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Rage is mounting among President Donald Trump’s allies over the losses that Trump’s agenda has suffered in court, which are clearly becoming a serious obstacle to him. It’s gotten so bad that Elon Musk shared a tweet from someone who suggested that it may be time to defy the courts. And Musk boosted Trump allies who are seething over these rulings as well. All that amounts to a pretty dark threat from Musk: He and MAGA appear to be steeling themselves to defy the courts. So this is good time to take stock. To what degree have the courts stalled Trump as of now? Will Trump and his allies ignore court rulings? What would happen if they did? We’re talking about all of this today with Norman Eisen of Democracy Defenders, who’s on the front lines of many of these fights right now. Norm, thanks for coming on.
Norman Eisen: Greg, thanks for having me.
Sargent: Over the weekend, a federal judge temporarily restricted Elon Musk’s so-called Department of Government Efficiency from accessing Treasury Department data. Norm, can you give us a quick recap of what that ruling did and why it’s important?
Eisen: The ruling keeps Musk and his White House DOGE team out of the Treasury Department databases with payment information, other sensitive details about countless Americans, not to mention tax returns. And they can’t get in there and break the code. If they start mucking about, they could cause a calamitous crash of the system with disastrous economic ripple effects. Our order and the subsequent court order that the A.G. secured later in the week are belt-and-suspenders protection against those harms by Musk and the White House DOGE group.
Sargent: This ruling, the one in response to the state A.G.’s lawsuit, is the one that triggered MAGA right now. GOP Senator Mike Lee called it a judicial coup. Senator Tom Cotton called it “outrageous.” Matt Gaetz called for the judge to be impeached. Norm, what’s your reaction to their reaction?
Eisen: My reaction is that the Trump administration’s “flood the zone” strategy has met shock and awe for democracy and the rule of law. And the cutting edge is our order locking non–Treasury people, and even people who have no legal right to look at the data within Treasury, from doing so, and then the New York federal court order doubling down on that. It’s a sign that democracy and rule of law won the week, Greg.
Sargent: It looks like that temporarily. Elon Musk shared a long tweet from someone who was outraged about that ruling and suggested it might be time to defy judicial commands. Musk also actively agreed with Senator Mike Lee’s suggestion that Trump and MAGA are facing a supposed judicial coup. Norm, it looks to me like Musk and leading MAGA lights are in the process of fabricating pretexts to start ignoring the courts. What do you think?
Eisen: Well, certainly Musk was dropping a strong hint with that retweet. He and Trump can be masters of ambiguity, and there’s a strong tradition of, Retweet does not mean agree. But I think it shows that they are thinking about the red line that truly will trigger a constitutional crisis, which is ignoring court orders. We know that that’s on the MAGA mind, Greg. JD Vance, when he was sketching out before the administration some of the legally dubious positions, quoted the famous, perhaps apocryphal, axiom of President Andrew Jackson, one of Trump’s predecessors in imperial ambitions and disdain for the rule of law. [He] famously said, The Supreme Court has issued their opinion. Now let them enforce it. So in my view, they’re tiptoeing, probing, toe-in-the-water this question because the illegality of the Trump administration.
I, alone, got two court orders this week, taking two of their major initiatives—the Treasury and then targeting law enforcement with their so-called weaponization investigation, which is weaponizing government against the FBI. I got a court order stopping it. They’re feeling the pain. They lost the week. On this Super Bowl week, we can say they repeatedly fumbled the ball. And this night, we looked back at the week: Those court losses then triggered Congress to get involved. Democrats in Congress started speaking out. And then the public—the same time we were litigating the Treasury order, a crowd spontaneously formed led by Indivisible in front of the Treasury. The press started pushing back much harder than they have. So it’s not just litigation. Those three pillars—press, public, political protests—the democracy’s energy is starting to flow.
Sargent: Norm, you raise a really important point, which is that victory begets good energy begets more victory. Legal victories like these, even if they may be fleeting, have the effect right now of letting people know that all is not lost, that there still is a system in place to stop Trump from becoming a dictator. Now, will it work? We don’t know yet. But the early signs are not bad, and I do think it’s important that these early victories in court are creating a sense of optimism and energy among the people.
Eisen: I led a big study—170 pages, 700 footnotes, thousands of sources, interviews with practitioners around the world. Why did Poland, Brazil, Czech Republic, where I was ambassador, all succeed in recent years in ousting autocratic regimes, leaders like Trump, whereas Hungary and Turkey failed? And we derived a set of lessons.
There’s seven essential ones. (1) Defend the rule of law. That’s why I litigated that FBI case. (2) Fight corruption. That’s why I’ve filed multiple cases against Elon Musk—he’s Trump’s favorite oligarch. (3) Pluralistic government. That’s why I’m litigating the birthright citizenship case where Trump is trying to rewrite the Constitution to pick and choose who’s the citizens. (4) And defend elections. I’m in North Carolina now. The MAGA election saboteurs are trying to steal back a Supreme Court seat that they lost there. (5) Fight disinformation, (6) protect media, and (7) explain that democracy delivers better than dictatorships. Those are the last three points.
If America does those seven things, we will survive and even restore and thrive as a democracy. We’re at a crossroads, and we’re doing them, Greg. We’re doing them. This was the week that all seven started to click.
Sargent: OK. I get that you’re feeling very optimistic right now—
Eisen: No, I’m not. It’s only one week. No, we’re at a crossroads. We don’t know how it’ll go. It’s only one week, but it was a good week.
Sargent: So let’s start here. The courts really are turning out to be an obstacle to Trump. His agenda is getting slowed down. The Times counts more than 40 lawsuits filed by unions, state attorneys generals, and other groups. This Treasury ruling just went against Trump. Large swaths of the Trump-Musk effort to destroy the U.S. Agency for International Development are on hold now. The drive to end birthright citizenship is temporarily blocked, as you mentioned. So is the possibility of publicly revealing FBI agents who worked on January 6 prosecutions. What’s your overall assessment? How much of this do you think will hold over time, candidly?
Eisen: Candidly? We don’t know. I was so pleased that the Times featured our work, our litigation, the many lawsuits we’ve filed or worked on, and the orders we’ve gotten against the illegality as part of their coverage. It’s a big coalition. Shout out to our partners like the ACLU, Public Citizen, Labor, Retirees—we’ve worked with a beautiful coalition of other people and state democracy defenders. The question is, What will the Supreme Court do with all this?
Greg, there’s ample reason to doubt that anything good will come out of the Supreme Court. You and I were among the first to warn of the predations of this court, and we saw the worst of it regarding Trump with the immunity case. On the other hand, five justices of the Supreme Court came together in the case that I worked the hardest on, the Trump–New York 2016 election interference and cover-up prosecution. Their five justices said, No, we’re going to let Donald Trump be sentenced. So which court will it be? Nobody knows.
I think some of these illegalities, though, are pretty shocking even for conservatives. And this is not an abstraction anymore, Greg; the Supreme Court is looking at Trump. He said he would be a dictator on day one. Dictators never quit after a single day. They see what he’s doing. They see that if you add unfettered access to Treasury by Musk, he could get their information. Do they want Trump and Musk to have their tax returns? Do they want unfettered powers? I don’t.
I think that there’s a possibility that in some of these cases are going to always stay in Supreme Court review because Trump has gone so far over the line. Not the corrupt, complicit, conflicted Thomas and Alito—they’re full-on autocrats. But there’s seven other people to contend with, and five of them have shown something by letting the New York sentencing proceed on the 34 election interference and cover-up felonies there. Too soon to tell. Too soon to be optimistic or pessimistic.
Sargent: Understood. Norm, theoretically, where do you expect Trump and Musk to try to defy the courts? And what might that plausibly look like?
Eisen: Well, I think battle is going to be joined around the so-called unitary executive. This is a theory that the Supreme Court has flirted with for years: that the president has absolute hiring and firing power over everybody in the executive branch. President is Article 2 of the Constitution. Congress is Article 1, and Congress has placed some limits on Trump.
For example, there’s millions of civil servants who actually make up the federal government, the executive branch. Trump is saying, I have absolute power to fire you. I can ignore congressional protections for you and others. He’s firing people simply by saying Article 2, even when the law says you have to give a reason. And the Supreme Court might or might not agree with him.
Sargent: So Norm, where do you expect Trump and Musk to try to defy court rulings? And what might that plausibly look like?
Eisen: If we get a court ruling saying that some of those firings are illegal, they’ll say, We’re not going to listen, we’re going to keep firing. In a sense, they fired the watchdogs of waste, fraud, and abuse across the government, Trump did. The inspectors general, independent people in the agencies, Greg, [who] were there to watch Trump’s wrongdoing. He had a Friday night massacre, wiped them out. He broke the law—you’re supposed to give 30-day notice, you’re supposed to give a reason.
That’s a test. So far, there hasn’t been litigation. Trump is waving the red flag. He wants to assert that absolute power. If there’s a court order, that is the place where I expect Trump and Musk to say [something like] The Treasure of the Sierra Madre’s “We don’t care about no stinking badges,” We don’t care about no stinking court orders, this is my constitutional right. Article 3, that’s the judiciary; Article 2, the President; Article 1, Congress. That’s a place where Trump will say, Article 1, you got no business, Article 3, you got no business, this is my power. And out of all this mess, that’s the single place where the Supreme Court might be most likely to take him seriously.
I think a lot of the other stuff is such a flagrant violation. These 40 cases.... It’s like an advent calendar of illegality, Greg. Every day you turn up another flap and another constitutional provision statute or regulation is violated, started on day one. Many of these are dead losers for Trump, except with complicit, corrupt, conflicted Thomas and Alito.
Sargent: Norm, let’s step back for a sec. The whole point of Trump’s shock and awe approach, rolling out all these illegal orders in a blitzkrieg, has been to disorient and disable the opposition, persuade the opposition that fighting back is hopeless. Clearly, that’s not working. Opponents are fighting back hard and having some success on a number of fronts. Do you think Trump-Musk’s shock and awe spell is being broken right now?
Eisen: I think “flood the zone” has been met with shock and awe democracy and rule of law so far. Weeks one and two, they held their own. Week three, they won, they broke through, and they triggered all the other signs of health in a democracy. Litigation can do that. That’s why I poured myself, here at Democracy Defenders, into all of this litigation work, going to court constantly, filing lawsuits, seeking injunctions, getting court orders, stopping Trump and Musk and the rest—because it can have a healthy triggering effect. This was the week that it worked. If the litigators, the press, the public, and the political leaders continue like they did this week, if we can keep it up, Musk and Trump will fail.
Sargent: Well, Norm, hang in there, man. We’re hoping that you’re right about that. Norm Eisen, thanks so much for coming on with us today.
Eisen: Greg, I have to thank you for having me, for your superb work at The New Republic, before that at the Post. You and I were way out there warning, for years now, of these dangers. I’m sorry we were right, but I’m glad that we’re here to cover the pushback. Have me back again.
Sargent: Absolutely will. That means a lot coming from you, Norm. Thank you.
Eisen: Thanks, Greg.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.