The following is a lightly edited transcript of the February 13 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.
President Donald Trump’s agenda is suddenly facing a huge wave of lawsuits, and his propagandists are very upset about that. On Wednesday, White House press secretary Karoline Leavitt unleashed a long, angry tirade about the courts, claiming that the only constitutional crisis we’re facing right now is in the judicial branch. It’s hard to say whether this is about laying the groundwork to ignore judicial rulings or just working the judicial refs, but either way it’s an expression of weakness. They know their agenda is now vulnerable to legal challenges on many different fronts. Today, we’re talking about all this with legal commentator Leah Litman, author of the appropriately named book Lawless. Leah, thanks for coming on.
Leah Litman: Thanks for having me.
Sargent: Here’s White House press secretary Karoline Leavitt at the White House on Wednesday.
Karoline Leavitt (audio voiceover): Now, before I take questions, I would like to address an extremely dishonest narrative that we’ve seen emerging over the past few days. Many outlets in this room have been fearmongering the American people into believing there is a constitutional crisis taking place here at the White House. I’ve been hearing those words a lot lately. But in fact, the real constitutional crisis is taking place within our judicial branch, where district court judges and liberal districts across the country are abusing their power to unilaterally block President Trump’s basic executive authority. We believe these judges are acting as judicial activists rather than honest arbiters of the law. And they have issued at least 12 injunctions against this administration in the past 14 days, often without citing any evidence or grounds for their lawsuits.
Sargent: Leah, I don’t know if her math is correct, but yes, there have been a lot of injunctions against Trump’s agenda. Note that Leavitt is reading from a prepared statement there. The White House very deliberately put this message out there right now. What do you make of it?
Litman: There’s a lot to unpack with this statement. One is it’s a little rich for this administration to come in and all of a sudden have a problem with district judges issuing nationwide injunctions against presidents’ policies. If you remember, the last four years of the Biden administration and, before Trump 1.0, the Obama administration, it was district courts in Texas issuing nationwide injunctions against basically many of the things those presidents were doing. And you did not see any Republicans having any problems with that and with litigants judge shopping—they would purposely go to places where they could pick their judges. Here, litigants are filing in courts where they don’t actually know what judge they’re going to draw. So that’s one thing.
Second is, she mentions 12 injunctions. OK, how many executive orders have you all issued? How many absolutely outlandishly illegal things have you done? It’s a lot more than 12 by my count. So it’s true, there have been 12 injunctions—but the reality is this administration is operating at such a frenetically, chaotically lawless pace [with] systemic constitutional, systemic statutory violations that 12 is in some ways a pretty small number.
Sargent: There’s a reason the injunctions are flowing so furiously. Look in the mirror, people. Let’s try to take stock of where things are now. The courts have blocked an across-the-board funding freeze, blocked access to Treasury Department payment systems, blocked the administration from laying off a few thousand USAID workers, blocked big cuts to medical research, blocked the transfer of three migrants to Guantánamo, blocked an end to birthright citizenship. That’s only a partial list. Leah, I know some of these are not complete wins, but it still seems like the courts are really stepping up here. What’s your overall assessment of what’s happening? How many of these rulings do you think will survive?
Litman: I don’t want to be overly rosy about what the courts are doing here, so I guess I’d push back a little on the idea that courts are stepping up here. In many of these cases, what courts are doing is just reaffirming the notion that, in our constitutional system, Congress makes the laws and that the executive branch is, in fact, subject to the law. Some of the examples you mentioned, like USAID or funding freezes, are all instances where it’s up to Congress whether to dismantle an agency or restructure an agency. It’s up to Congress about how to spend money and where money goes.
The executive branch was really asserting the authority to completely run roughshod over a coordinate branch of government. And you have the courts saying, Actually, that’s not how this works. So they are stopping some of the more brazenly, transparently illegal instances where the executive branch is just disregarding Congress and acting in violation of congressional statutes. So I think a fair number of these are going to hold up down the road. And I think that speaks to just how, again, extreme the administration’s positions are in some of these cases, and also to what slapdash chaotic work they’ve done. They have not attempted to put forward any explanation for why they are suddenly doing these things without notice. So it’s just not a surprise that courts are pausing them.
I also want to put this in perspective and say, Look at all the things the administration is doing that courts haven’t stopped, that they are not stopping. Think about, for example, all of these buyout orders, or the Trump administration reassigning career civil servants to their sanctuary cities task force and forcing other career civil servants out. There’s a ton of really bad stuff that they’re doing that nobody is thinking to challenge, right? It is lawful but awful. We are really only seeing courts like nibbling at the edges where the administration is truly, truly out there.
Sargent: Well, it seems like we need a bit of a bigger confrontation between the courts and the administration more directly over Elon Musk’s role as head of the Department of Government Efficiency. Musk seems to be doing a lot of the illegal stuff. He got blocked when it came to the Treasury payments and so forth. Is it possible that we get a lawsuit that goes up to the Supreme Court in which the high court puts limits on DOGE and Musk? What might that look like?
Litman: I think that is going to be a difficult case for any number of reasons. One is we don’t exactly know what Elon Musk is doing, and we don’t exactly know what Donald Trump has given his explicit blessing for. That uncertainty is creating or would create some problems when we’re asking, Well, how much authority is Elon Musk exercising and is it in violation of any laws? because we don’t know on what basis he’s being deployed to just run roughshod over a bunch of agencies. Some of what he’s doing is illegal, but I took your question to be about his authority just across the board at the outset. And there, it’s a little trickier to know exactly what this Supreme Court might say or do if a question came to them just about his authority writ large rather than about specific things he was doing with his authority.
Sargent: Is there any prospect for a broad ruling which actually does implicate his role in a bigger sense, or is that just too much to hope for?
Litman: I don’t want to raise people’s expectations too high. I guess I would say two things. One is there’s no question in my mind that how the president is using Elon Musk is wildly illegal. You cannot just take an unelected billionaire private citizen and say this person gets to decide whether the funds Congress has appropriated are going to be spent and whether an agency Congress has created gets to exist anymore. That just cannot be.
But that reality is I can imagine this court doing some of the squirrelly things it has oftentimes done in the past and say, Well, this is all being done under the direction of the president, and look, we don’t know actually whether they totally prohibited all the funds from being spent after courts told them, No, you can’t actually refuse to spend money Congress has allocated. So that’s part of where my uncertainty is coming from.
Sargent: Yeah, I think it probably would result in something squirrelly and narrow. Let’s go back to Karoline Leavitt’s weird tirade. Trump and his allies have also been bashing the courts very hard of late. Do you expect Trump and his allies to defy the courts? If so, what does that look like? What happens?
Litman: The answer is I don’t know. It is hard to know what these people are doing. It is just so chaotic. I’m certainly not sure what is going to happen a day, two days, two weeks from now, much less two months. As to what they are saying or doing, I’m of two minds. On one hand, I think it is possible that they could and would defy court orders because they have already asserted that the executive branch basically has Congress’s powers; that they are going to disregard at least one coordinate branch, so why not go for a twofer, right? They are already reflecting authoritarian autocratic impulses, consolidating power that I think could lead them to do that.
On the other hand, notwithstanding the political rhetoric and the things that Vice President Vance is saying, the things that Press Secretary Karoline Leavitt is saying, you have the administration’s lawyers saying in court that they are complying with court orders and asking the court for permission to not disperse certain funds. And so there’s a disconnect right now between what they are saying in the looser political sphere and what they’re saying in the course.
Of course, one could change and influence the other. And we are right to be concerned, and we shouldn’t expect them to do it and normalize it. This is, again, hugely concerning, but the answer is I just don’t know. And I think it’s going to depend on what pushback they get from different quarters.
Sargent: So we had some news on Wednesday afternoon that was cause for a little optimism on this front. Can you talk about that?
Litman: Yeah. One of the cases you mentioned where the Trump administration was told No by a federal court is where they announced we’re basically no longer going to pay out all of the research expenses under the National Institutes for Health that had gone to major research universities to fund jobs. These were not just money that were paying for research at universities, but they were also significant job programs that funded support roles, administrative roles for the communities in these areas. So a judge said, No, you can’t actually refuse to pay out the money that Congress had basically told you to at the rights that had been established by law. And there had been some uncertainty since that ruling about whether the National Institutes for Health was, in fact, paying out the funds and complying with the court order. There was some conflicting reporting—some suggesting some grant recipients were not receiving money, even though they should be.
But on Wednesday afternoon, the people at the Trump NIH released a memo saying, The funding impoundment, refusing to pay out these funds, was illegal. We are going to pay them out. Grantees are going to receive the federal money. That seems to be just a complete acquiescence with the court’s ruling in saying, We are not going to hold up these funds. We are going to disperse them as Congress has said we have to and as a court said Congress told us we have to. So that’s a sign that they’re not going to put up a fight, at least against some of these cases where it’s both wildly illegal, hugely destabilizing, and they’re receiving pushback from different quarters. Over the last few days, you had some Republican senators raising concerns, again, because these grants fund jobs in their states too. So that’s part of what was happening here.
Sargent: Speaking of Republican lawmakers, The Hill reports that a number of them are now calling on the Trump administration to respect court rulings. Senate Majority Leader John Thune grudgingly said he hopes Trump will listen to the courts. Senator Lisa Murkowski said the White House should comply with court rulings. I have to say, I’m glad to hear this from Senate Republicans, but if Trump does start to defy court rulings, should we have any confidence at all that Republicans will step up at that point?
Litman: I don’t know. I think we should continue sounding the alarm and raising the specter of exactly how dangerous it is to have an executive branch that is completely unbound by the law. Gosh, Congress, you were elected to something, don’t you want to do your jobs? The Constitution assigns you the power of the purse. That’s a huge deal. Stand up and do it.
I don’t know if the administration actually came out and said, We’re going to defy this court order, what exactly Senate Republicans and Republicans of the House would do. I’m of two minds. Again, they seem willing to fall in line with Donald Trump in many meaningful respects that violate their own oath, that disrupt the constitutional system. On the other hand, I think it might depend what court order we’re talking about. If it’s one of these things that the Trump administration is doing that could damage the entire United States economy, damage their own states, that’s going to give them some additional pause.
Another thing that I come back to is: Republicans control the courts. They know the courts are, at the end of the day, their friend and the way that they have to implement some of the more unpopular parts of their platform—this is partially what I write about in the book. Republicans right now view the courts as an ally, and I think they are not going to want to completely undo courts authority.
Sargent: Right. Some of the Republicans with a bit of a longer memory know that the power pendulum is going to swing again, and they’re going to need their judges to step up and stop Democratic stuff. It’s probably worth noting, by the way, that these warnings or these demands for compliance with the courts from Senate Republicans come even at the time that they’re rolling over entirely for Trump’s nominees. Tulsi Gabbard just got confirmed as director of national intelligence, which is a travesty. It looks like RFK Jr. will unbelievably get in on health and human services, God help us. Maybe some of these Republicans are glad to have someone else—the courts—slowing down Trump so they don’t have to do it. They don’t want to face all sorts of blowback from MAGA and Trump voters and, let’s face it, death threats as well. What do you think?
Litman: Yeah. That is, again, why I said I was of two minds about this because they have fallen in line in important respects. Something else that does give me some optimism, and I say this not as an optimist, is if you look at some of the polling, the things that Trump is polling favorably on are the more standard awful Republican policies like immigration, anti-trans bashing. But the super weird Trump shit like pardoning all the January 6 insurrectionists—people aren’t into that. That does give me some hope that at least on some of this stuff, they would be able to recognize it would not be the end of their career in Republican politics if they did something else and, gosh forbid, the right thing.
Sargent: It’s funny you say that because the subtext of it is that a lot of Republicans are acting as if we are going to have elections going forward.
Litman: Yes. That is true. I guess that is an implicit premise in what I have been saying.
Sargent: What’s your overall assessment of where it’s all going? Do you think maybe in six months, half of Trump’s agenda is blocked in court and they’re going to just have to go through Congress to do a lot of stuff? And by the way, let’s remind people they’re working very hard at doing really terrible things through Congress right now, so we shouldn’t get too optimistic about all this. But what’s your overall assessment? Do we end up maybe six months down the line with a chunk of Trump’s agenda stopped?
Litman: I think at least a chunk of the agenda that he has floated thus far. And some of it isn’t going to be stopped through the courts. You look at the tariffs, for example. That was something he seemed like he cared a lot about, but then when he got pushback on that and it seemed like the markets were going to respond negatively, he quickly rolled back the tariffs on Mexico and Canada. So I do think a good amount of what he is trying to do right now, has been trying to do, is not going to go through.
I think a lot of awful stuff will, both through Congress and through the executive branch. Because of the Supreme Court’s decisions, he can fire the head of the Consumer Financial Protection Bureau and replace him with someone who is not going to do anything to protect consumers from corporate abuse and fraud on the market. And that is, again, legal under the current system. So there are things he is going to be able to do on his own that are going to be destructive.
There are certainly things that Congress is going to enable him on when it comes to passing restrictive immigration laws and the more abusive exercises of the immigration power. They’re confirming some of his nominees. We don’t know exactly what RFK is going to do at HHS when it looks like he is going to take the helm of that agency, but he could do an awful lot of damage—and some of it might be legal. So I think some of it is going to be blocked six months out from now, but we are still going to be surveying the wreckage in that case.
Sargent: Just to bring this back to Karoline Leavitt, it does appear to me that MAGA is going to be extremely unhappy if a bunch of this stuff does get blocked. From the MAGA base and from institutional MAGA like Fox News and the think tanks and those types and the John Eastmans of the world, the pressure to defy the courts is going to get awfully intense, don’t you think? Where does that end up?
Litman: I think that might be the case. On the other hand, I look at what Trump did on tariffs, and the reality is he basically rolled back everything he wanted to do and then declared a win because Canada and Mexico were doing what they were going to do already. So there is a world in which courts strike down a lot of what he does, he signs some meaningless executive order and just declares a win—even though a court has blocked the actual policy and all he is able to do at the end of the day is just establish some working group of super weird people who are going to issue some weird report that we’re all going to laugh at. That is one possibility. I think you’re right that, of course, they are laying the intellectual groundwork and getting the fringe movements in legal circles to support them in various different respects, but I don’t know exactly how it’s going to play out.
Sargent: And they’re raising the expectations of MAGA voters that the courts will be defied, which to me is a really worrying point. What it ends up doing is they’re really going all the way out to casting the courts as the enemy of Trump and MAGA, and once they start down that road, who the hell knows what happens.
Litman: Part of me wonders if they almost need to do this because they always need an enemy, right? They always need to be the victim. And in a world in which they control Congress, they can’t really be blaming the Senate and the House when their false promises fail to become reality. So maybe they have picked the courts as the punching bag and the new entity that is victimizing them. With the inflation as it is, you still have Trump trying to blame Biden for it. They’re constantly in search of the scapegoat, the enemy, someone who is victimizing them.
Sargent: Can’t they just blame everything on Biden instead of blaming it on the courts?
Litman: I think that’s going to become increasingly difficult, but perhaps. We can hope.
Sargent: Well, Karoline Leavitt certainly signaled a pretty ugly future for all this stuff. Leah Litman, thank you so much for talking to us. Great discussion. Really appreciate it.
Litman: Thanks for having me.
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.