The following is a lightly edited transcript of the March 18 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.
In the last 72 hours, President Trump’s lawlessness has substantially escalated. In a rambling tweet, he insisted his predecessor’s pardons of January 6 committee members are null and void, and said those officials are now fully subject to criminal investigation. Meanwhile, the Trump administration appears to have violated a court order in deporting some Venezuelans. And on top of all that, Trump’s borders czar flatly declared that they’ll ignore what judges say in carrying out future deportations. At the White House press briefing Monday, Karoline Leavitt spun madly about all this but was unable to say with real clarity what the White House’s stances really are. We think this is key because Trump appears on the precipice of a new level of lawbreaking, and the White House is constructing its fake rationales for all of it in real time.
Today, we’re talking to legal scholar Matthew Seligman, who’s one of the best out there at unraveling complicated legal messes—and this certainly counts as that. Thanks for coming back on, Matt.
Matthew Seligman: Thanks for having me.
Sargent: Let’s start with Trump’s deranged tweet. He said that Biden’s preemptive pardons of January 6 committee members are “void” and “vacant” because they were signed by autopen, and Biden was too senile to know who he was pardoning. Trump, who has long wanted to prosecute the January 6 committee for the crime of holding him accountable for inciting an armed insurrection, then said they are subject to “investigation at the highest level.” Matt, what on earth does Trump mean by all this?
Seligman: What he means is that he wants to reopen the potential criminal prosecution of the members of the January 6 committee and others who participated in that investigation. And that alone is chilling. Now, in order to try to open up this possibility, he’s claiming that the pardons that President Biden issued are invalid because, of course, those pardons prevent the criminal prosecution of the people who are pardoned for these alleged offenses. Now there’s no legal validity to this whatsoever. It’s been true for decades that signature by autopen is a valid way for a president to affix his signature to official acts. I am virtually certain that President Trump has done so himself. Moreover, there’s good case law that says that pardons don’t even have to be in writing. This is a formality that isn’t even required, so there’s really no legal basis for this whatsoever.
What we have here is an extraordinarily thin legal pretext that tries to conclude that Trump has the power to do the thing that he wants to do anyway. And that’s part of a pattern. We saw that go back all the way to the first Trump administration and certainly in the aftermath of the 2020 election where there was these grandiose theories of the vice president’s powers to overturn the election. And now we’re seeing that continue into the second administration.
Sargent: To your point, the White House press secretary Karoline Leavitt was asked Monday by CNN’s Kaitlan Collins whether White House lawyers have advised Trump that he has the authority to ignore pardons from his predecessor simply because they were signed by autopen. Here’s what Leavitt said.
Karoline Leavitt (audio voiceover): But the president was raising the point that, Did the president even know about these pardons? Was his illegal signature used without his consent or knowledge? And that’s not just the president or me raising those questions, Kaitlan. According to the New York Post, there are Biden officials from the previous White House who raised those questions and wondered if the president was even consulted about his legally binding signature being signed onto documents. I think it’s a question that everybody in this room should be looking into because certainly that would propose perhaps criminal or illegal behavior if staff members were signing the president of the United States’ autograph without his consent.
Kaitlan Collins (audio voiceover): He was on the record talking about issuing preemptive pardons to these people.
Leavitt (audio voiceover): But was he aware of his signature being used on every single pardon? That’s a question you should ask the Biden administration.
Collins (audio voiceover): Is there any evidence on that that he wasn’t aware of it?
Leavitt (audio voiceover): You’re a reporter. You should find out.
Sargent: Matt, note that Leavitt never answers what White House lawyers told Trump about this. That aside, she also seems to be saying, Well, those pardons may not be binding on Trump. That sounds a little bit like what you’re talking about, which is the fabrication of a “legal pretext” in real time, doesn’t it?
Seligman: It absolutely does. And I think it’s softening the ground for what may come later. This is part of a pattern that we see again and again where Leavitt recategorizes or tries to recast what the president says into “just asking questions” and then putting it on the media to then investigate these baseless allegations that President Biden didn’t actually intend to pardon people. As the reporters in the room noted at the time, President Biden talked about this publicly, so it’s not like there’s really any factual basis whatsoever for these allegations. But it does open up a really troubling possibility: that what Trump has really tried to claim here is the authority to deem, on his own, some act by a prior president or maybe by Congress and say it’s invalid because the people or person involved was senile at the time. And we know that President Trump throws around these allegations rather freely. What he’s really claiming here is the authority to determine on his own whether prior legal actions were just null and void from the beginning—and that is a terrifying escalation of the power that he’s claiming.
Sargent: And it’s reasonable to surmise that it’s at least possible that some ambitious U.S. attorneys or people in the Justice Department might take this seriously, no?
Seligman: I think that’s absolutely a possibility, and it’s frightening. Now, something that we’ve seen—and as a member of the legal profession, it’s both heartening and disappointing to me—is the career Department of Justice officials have resisted engaging in the most lawless acts that have been directed by the administration. We saw this with respect to the dropping of the charges against New York Mayor Eric Adams; that was perhaps the most public example of that but there have been others as well. Something we’ve also seen, and this is the disappointing part, is that the political appointees in the Department of Justice from Attorney General Bondi on down through a couple of layers of hierarchy of officials who have been appointed by President Trump have signed on to these pretty aggressive legal filings when the career officials wouldn’t do so. So it is possible that you end up in a situation where political appointees in the Department of Justice, a U.S. attorney, tries to prosecute members of the January 6 committee and argues that the pardons were invalid.
Sargent: I just want to remind everyone that FBI Director Kash Patel came to Trump’s attention, or at least was clearly seen by Trump as good for this job, precisely because he vowed to prosecute or investigate Trump’s enemies. The January 6 committee members are very high up on the list of Trump enemies, so I think there’s really no reason to dismiss any of this as a joke or posturing or anything like that. Trump is effectively saying to the world that he thinks that his Justice Department has the authority to go ahead with these prosecutions, regardless of what President Biden’s pardons did or said.
Seligman: That’s absolutely right. One important dimension of this, and this will continue in our discussion going forward, is that once a prosecution is filed, then the president’s views and those of his political appointees at the Department of Justice come in contact both with reality and with the judicial system. The judicial system isn’t just going to say, Oh, President Trump said that these parties were invalid, therefore guilty. There is due process, there is a legal process that attends to criminal prosecutions, and the Department of Justice would have to go through that. And ultimately, I’m pretty confident that simply claiming that these were senile pardons isn’t going to suffice for the judicial system to render them invalid. But that raises another deep question about how the administration is going to respond, as time goes on, to contrary judicial decisions that thwart what it’s trying to do.
Sargent: It’s funny you brought that up because we have examples now of the Trump administration potentially violating court orders. On another frontier, Trump has invoked the 1798 Alien Enemies Act to speed up deportations, but a federal judge has already blocked this because, to oversimplify, we have to be in a declared war with a foreign nation or government or under invasion from one to invoke this thing. What’s at issue, though, is whether the administration failed to order planes carrying migrants to turn around and come back after the judge ordered it. Matt, can you walk us through this piece?
Seligman: Yes. I’ll just preface this by saying the facts on the ground here about what was happening in the courtroom, what was happening on the docket, and what was happening in the air are very complicated and, to a certain extent, in dispute. But it looks like what happened is that there was an emergency hearing in Washington, D.C., before a federal judge, Judge Boasberg, who’s very well respected and is the chief judge of the district court in Washington, D.C., brought by the ACLU just that morning on Saturday. During the hearing, Judge Boasberg issued an order saying that the government could not deport anyone, or remove anyone in the technical parlance, pursuant to this proclamation that President Trump had signed the day before invoking the Alien Enemies Act. That was issued at some time like 6:30 or 6:40 at night during the hearing, and it wasn’t until about 7:30 that evening that there was a written order that appeared on the docket.
This is extremely common because [in] oral hearings, the judge will make a decision and then issue a written order that memorializes [their decisions]. Now, there’s been some discussion today that oral orders are somehow not legally valid, and that is, to put it lightly, absolute legal hogwash. Of course they’re valid. So what the government has now claimed.... And they’re toggling—and different people in the government are saying slightly different things—but the best that I can tell is that the overall position of the administration is that for technical reasons having to do with when exactly the planes were in the air and when the orders were issued, they didn’t actually violate the order, but they could.
Sargent: Just to your point about them toggling in different directions, the White House press secretary said in a statement a couple days ago that the federal courts “have no jurisdiction over the president’s conduct of foreign affairs.” So they’re really very loudly saying that the Trump administration is not obliged to follow the courts on this particular thing, even as they’re also saying they are following the judge’s order.
Seligman: Yeah, that’s absolutely right. And if we look a little bit more [into] what the press secretary and what other people in the conservative legal movement outside of the administration have said, it illuminates a little bit of the bad faith that’s involved here. What’s been invoked by some of the administration’s legal allies is the idea that federal judges can’t order the commander in chief to refrain from taking that hill in a battle during a war. That’s, I think, pretty uncontroversial, that that would intrude too much on the president’s or the commander in chief’s inherent constitutional authorities. That is also manifestly not what’s going on here.
We are not at war. There has been no declaration of war. There has been no congressional authorization of the use of military force against Venezuela. So we’re in this legal fantasy land where they’re invoking these extreme circumstances about what a federal court might theoretically do in their fever dreams or nightmares, but that’s just not even remotely close to what’s going on here.
Sargent: Listen to this from Trump’s border czar, Tom Homan.
Tom Homan (audio voiceover): And we’re going to make this country safe again. 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.
Sargent: Matt, he said, “We don’t care what the judges think ... We’re coming.” What do you make of that?
Seligman: Well, it’s chilling. And if he really means it, and if that’s what the administration ends up pursuing as a matter of policy, that is one of the last dominoes to fall in the array going to something that really looks like a dictatorship. I don’t throw those words around lightly, but if the administration is claiming the inherent constitutional authority to ignore court orders whenever it doesn’t want to follow them, there’s not much to the rule of law that remains.
Now, I do want to emphasize we’re not quite there yet. I think you can look at that interview on Fox News and you can say, Well, that’s a declaration of a dictatorship. You can also look at that as political rhetoric that someone other than the president and the administration is engaging in to rile up his base. And you have to look at that and then compare it what they’re saying in their court filings and whether they ultimately do follow whatever the Supreme Court ends up saying about this. So we’re in this Schrödinger’s rule of law situation where we don’t know whether it exists or not yet because we don’t know exactly what the administration is doing or what position it’s taking.
Sargent: When you describe it that way, it doesn’t seem ideal.
Seligman: No, it is most certainly not. And I don’t want anyone to misunderstand anything I’m saying as a defense of the situation we’re in. The question is really whether the administration is evading the rule of law in bad faith or if it is openly flouting it. Those are both really, really bad places to be, but I do think that there’s an important difference between the two—and there are really two points I want to make on this.
The first one is that if the administration is at least pretending to follow court orders but will wiggle out of them whenever it can come up with some pretext or justification for doing so, I still think that constrains the administration’s freedom of action in important ways. There are going to be some court orders that are so clear, and some actions that would be so clearly in defiance of those court orders that it does provide some real protection still.
The other reason why I think it’s important is that when you have an administration that is openly and proudly violating court orders, that really sharpens the question of what the political opposition is going to do. Are you going to have members of Congress and the American public marching in the streets in protest of this? Over the weekend, we also saw massive protests against dictators in Hungary and Serbia, so we can see how those popular movements can become galvanized by the ruling regime taking that last step into open defiance of courts and the rule of law.
Sargent: Underscoring your point about them maybe stopping just short of that open defiance, here’s what Karoline Leavitt said at the White House press briefing about Homan’s quote.
Reporter (audio voiceover): We heard what Tom Homan said earlier today, so I’m only asking just to be clear for the American people. It is the administration’s belief that you feel like you were bound to comply by the judge’s orders?
Leavitt (audio voiceover): We are complying with the judge’s orders.
Sargent: There, Matt, you can really see that there are potentially divisions inside the White House right now. Some of them want to openly and explicitly violate the courts, as Homan put it. Others want to appear to be complying with it while not doing so. Leavitt herself is conflicted on this. She essentially said straight out that the judge has no authority to issue the order that he did, and then she turns around and says, We’re following the judge’s order. So there’s that same dichotomy, right?
Seligman: Yeah, that’s absolutely right. That’s why this moment right now is such a pivotal moment. This is the issue, I think, where the administration feels like it’s on the safest political ground in pushing the rule of law as far as it will go. Many Americans do think that [with] immigration in general, and [with] unlawful immigration and the people that at least the administration is claiming it deported, there’s not a lot of political sympathy—at least [with] the people that the administration is characterizing, these people who have been removed from the United States. So it feels like it’s on safe ground there, it’s trying to connect it to foreign affairs here. This is the place where I think they were choosing their battle about how to push the rule of law.
They weren’t going to do it when it came to unlawfully cutting off cancer research funds. That’s just too politically sympathetic for its opponents, so it’s not as surprising to me that they back down there. The question is whether they’ll back down here. This is the critical moment where the administration is going to make that decision about whether it will ultimately flout the rule of law.
Sargent: We can see this decision being made in real time. We can see deep tensions about it inside the administration. Just to close this out, I want to return to your point about the opposition. Is there a role for Democrats to step forward right now and forthrightly and forcefully say the following, Everyone in the Trump administration should know that if they illegally violate court orders on Trump’s behalf, they are subject to potential sanctions later, and that won’t be forgotten?
Seligman: Yes, I think that’s absolutely true. A critical part of the rule of law is the enforceability of the rule of law. Part of what you said is critically important: The president in his person actually does very little. He makes orders, he makes big decisions—and, of course, that’s the way it should be as he’s the one who’s elected—but the actual carrying out of those orders almost invariably is done by other officials. Other officials, I might add, are not protected by presidential immunity that the Supreme Court found in its decision last July. So there’s a whole range of potential sanctions that other officials who participate in carrying out these orders can and should fear.
Now, what are those sanctions? The first is being held in contempt of court. Ultimately, that’s a civil sanction. It can eventually include fines—and courts, in fact, can and have said that you can’t be reimbursed. You can’t have Donald Trump or the government reimburse you for these fines. So even if the administration is willing to violate court orders, I’m not sure that Citibank is going to violate court orders when the court orders those funds in someone’s bank account to be seized. Then further down the road, courts can actually hold someone in jail for civil contempt. It’s not even a criminal violation. They can be held in jail.
Sargent: But Matt, there’s a problem here, right? The DOJ would have to carry that out, and DOJ is run by one Donald J. Trump.
Seligman: This is a huge problem. Ultimately, we go back to this quote that never happened, this apocryphal quote from President Andrew Jackson, “The chief justice has made his decision, now let him enforce it.” Now, there’s a lot more going on than just that, because of things like civil contempt.... The courts actually can appoint a private attorney to serve as a prosecutor for criminal contempt; it doesn’t have to go through DOJ. But at the end of the day, if you’re going to have someone arrested and taken to a federal prison, that’s going to have to rely on the U.S. Marshals, for example. The U.S. Marshals are part of the Department of Justice; their statutory duty is to enforce court orders. But if they answer to Kash Patel or Pam Bondi or ultimately Donald Trump, it’s an open question on whether the U.S. Marshals will actually do what they’re legally obligated to do.
Sargent: Well, Matt, this is why I want to ask you: Should Democrats say, OK, you may be able to skate during the Trump administration but it will not be forgotten that you violated the court’s commands?
Seligman: Yes, absolutely. I think we have to be realistic that President Trump, his last act in office of his second term, assuming there are only two terms, is probably going to be to pardon a whole bunch of people. And contrary to his social media message last night, the fact that you might think that he’s out of his mind doesn’t mean that those are invalid pardons. So we have to be realistic about what the future threats of criminal prosecution might be because of the possibility of pardons, but there are sanctions that can be imposed. For example, every single lawyer who engages in unlawful action can and should be disbarred. There are other financial sanctions along the way. As long as we have some residual of a judicial system, there are reasons why officials other than Donald Trump should be very, very concerned about the consequences that they’ll ultimately face for violating court orders.
Sargent: Well, Matt, I’ve got to say, if there were ever a time for Democrats to start saying that, you’d think it’s right now. As we’ve, I think, convincingly shown in this discussion, as we speak, they are making the decision to shred the rule of law in a much more concerted way. Matt Seligman, always great to talk to you, man.
Seligman: 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.