The following is a lightly edited transcript of the April 14 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 abuses of power are escalating on multiple fronts. First, Alina Habba, the very Trumpy new U.S. attorney from New Jersey, is now investigating the New Jersey governor for supposedly getting in the way of deportation efforts. Second, a number of major law firms have now surrendered to Trump’s threats and bullying, making deals with him that seem like payments of tribute to a local warlord, not something you’d expect in an advanced liberal democracy. So is the big story here that our institutions are now clearly cracking in the face of flood-the-zone abuses of power? Or is there a way through it all? Today we’re trying to figure all this out with law professor Leah Litman, who has a new book coming out called Lawless about the Supreme Court’s descent into darkness. Thanks for coming back on, Leah.
Leah Litman: Thanks for having me.
Sargent: Let’s start with Alina Habba, who was previously the president’s personal lawyer, now U.S. attorney in Jersey. She just announced that she’s directed an investigation of the state’s Governor Phil Murphy and the state’s Attorney General Matt Platkin, both Democrats. This looks like it’s a response to New Jersey’s policy limiting the type of assistance that state law enforcement can give to federal immigration authorities. Leah, what’s your reaction to all this?
Litman: I’m going to first start by looking at this like a law professor. And there is this background rule of constitutional law that the federal government cannot order state executive officers to enforce federal law. And that applies in immigration. So Donald Trump, Alina Habba cannot order New Jersey governor, New Jersey attorney general to bring immigration enforcement proceedings under federal law. And it seems like what they are trying to do here is basically accomplish the same objective by dangling criminal charges over people who they want to force into enforcing immigration law.
This is the inverse of the Eric Adams case where you had DOJ dropping the prospect of charges against someone based on a promise that he would assist in the enforcement of federal immigration law. And here you have, Alina Habba threatening criminal enforcement against someone who says, Look, the policy of our state is we choose not to enforce federal immigration law. You federal officers can go ahead and enforce it, and we’re going to assist you in apprehending people who violate the law—but we’re not going to help you get jaywalkers and other people who are just here in violation of civil immigration law, because that’s not our policy. And they are perfectly free to decide that.
Sargent: Right, states are allowed to make laws constraining their law enforcement officers this way, right? This is a policy that’s designed for a purpose: to make it possible for victims and witnesses to feel safe when they report crimes to police without having to be afraid of getting deported. DOJ more broadly has announced that it will go after state officials everywhere who get in the way of their deportation efforts. That’s not kosher, right?
Litman: No, it’s absolutely not kosher. Again, the federal government cannot force state officers to assist in the enforcement of federal law. Think about the states that have decriminalized marijuana. The federal government cannot order the attorneys general of those states to initiate prosecutions for violations of federal drug laws. That’s just not how this works. The state is able to say, We choose not to criminalize this behavior, and we choose not to assist you in prosecuting it under federal law, which does criminalize it. And here, it’s even odder because immigration law is a special province of the federal government. So the attorney general and the governor are like, Look, this just isn’t something states do.
And again, we are trying to accomplish other objectives like encouraging victims to report crimes or encouraging people to obtain social services. And in order to accomplish that, we just can’t be in a position of maximum enforcement of all aspects of civil immigration law. And that is a balance the Constitution allows states to strike.
Sargent: Incredibly, Alina Habba made the announcement of this investigation on Fox News with Sean Hannity. Listen to this.
Alina Habba (audio voiceover): And I am unfortunately going to announce on your show tonight, Sean, and I want it to be a warning for everybody: that I have instructed my office today to open an investigation into Governor Murphy, to open an investigation into Attorney General Platkin, and anybody who does get in that way—in the way of what we are doing, which is not political; it is simply against crime—will be charged in the state of New Jersey for obstruction, for concealment, and I will come after them hard.
Sargent: Leah, is it typical for U.S. attorneys to announce major investigations of members of the opposition party on friendly media outlets? And what do you make of her warnings? What’s the real goal of all this?
Litman: Look, the way you describe it is just a hallmark of an authoritarian regime, right? Threatening political prosecutions against an adversary on effectively state-run media. I think her goal is very clear. She called this “a threat.” She meant it as a threat. It is designed to, again, wield the extensive powers that the federal government has here over federal criminal law against perceived political dissidents and against sites of opposition. As the administration has been attacking sites of possible civic resistance—be it media, academic institutions, law firms—states and state attorneys general are some of the entities and individuals that have stood up. And I view this threat as, Well, hey, we’re going to try to go after those guys too.
Sargent: On another front, a number of law firms have now cut “deals,” as the president puts it, to make him happy. Trump has been absolutely raging at law firms for months, and they’re bending. Kirkland & Ellis, Latham & Watkins, Simpson Thatcher & Bartlett, and a couple others are now contributing millions of dollars in pro bono work and legal services to causes that Trump and the law firms support. They’re eliminating DEI practices. Leah, what do you make of these deals? Are they just superficial ways of buying off Trump, giving him the appearance of getting results, or something much more serious at stake here?
Litman: I think part of the problem is we don’t know exactly what these law firms are going to be doing by way of work that is consonant with the administration’s priorities. We do know that Donald Trump has just been humiliating them left and right, announcing that they are going to assist him in promoting the America First agenda. And maybe they don’t actually end up, let’s say, assisting the administration with criminal prosecutions against state attorneys general or state governors who deign to choose not to enforce federal immigration law. Or maybe they choose not to make appearances on behalf of the federal government to defend the federal government’s summary expulsions and extraordinary renditions of people to foreign torture prisons.
On the other hand, is the administration going to expect that they stand down in these cases and don’t do things actively against the federal government? I just think so much remains to be seen about how this is going to alter the dynamics among these law firms and between law firms and the administration. And I think it is extremely concerning, again, because lawyers are one of the ways of holding an abusive executive to account. They play a major part in that, even though they are not a complete fix. He is eliminating one by one sites of possible resistance and opposition. And he’s making it harder for the many people that need lawyers to get lawyers.
Sargent: Yeah, I think we should be looking at all these things as interlocking with one another in a really unsavory way. When these law firms capitulate to Trump, that’s a sign that if and when they’re faced with decisions on whether to represent people who have gotten crosswise of him, they might think long and hard about that, as you point out. But on the other side, Trump and his allies are using state power affirmatively to target the enemy of the moment. It seems like those two things together add up to something more than the sum of their parts, right?
Litman: Yeah, I completely agree, such that even if these law firms again can tell themselves a story and tell the public a story in which they don’t actually change any of the work they would have done or take on work they wouldn’t have otherwise accepted, it does alter the political, cultural, social sphere as far as people’s willingness to challenge the Trump administration, wondering, Am I going to have lawyers available to help me if I am arrested at a protest, or if I participate in other kinds of resistance? It is a show of weakness among our institutions. And it is a sign, as you were suggesting, that people are going to cave when Donald Trump targets them.
Sargent: The thing that I find so mystifying about this is watching all this tariff lunacy unfold, watching Trump’s numbers go down, the public lose trust in him—and we’re not even that far into his into his term. What’s going on inside these law firms? You do have a few of them who are really resisting right now, maybe you could talk about that. Why wouldn’t law firms like these ones that are capitulating say something like this to themselves: OK, look, this guy is already starting to flame out. It doesn’t really seem like he’s going to have a lot of popular support on his side across the board, let alone on these crazy efforts to destroy the rule of law. Here’s our chance to do something meaningful and stand up against the lawlessness? Why aren’t they making that calculation? What’s going through their heads?
Litman: I don’t pretend to have a great insight into all of the dynamics at these firms. I read—probably like others in the New York Times story—about some of the dynamics at the first firm targeted by the Trump administration, Paul Weiss. They were worried about losing clients because other firms were supposedly trying to poach their clients on the theory that Paul Weiss wouldn’t be able to effectively represent them in the event that it was a target of the administration. So maybe it is, in part, a failure of collective action and solidarity, that the firms were unwilling to take a stand together.
But I don’t know. As we were talking about earlier, I think they are partially telling themselves a story in which they’re not actually altering any of their behavior or giving up things that matter to them that much. So I don’t know. I know there is a lot of pressure. Obviously, these firms employ a lot of people, and they want to keep them employed—from lawyers to administrators to staff to everyone else. I am a proud alum of WilmerHale, one of the law firms that is challenging the executive order targeting them. It’s no accident that all of the challenges that have gone to court have succeeded. These are wildly illegal unconstitutional orders. I think another part of the story is: We are right now living through—this is going to be the understatement of the episode—uncertain times. And I don’t think anyone knows what things look like at the end of this, right?
There’s a way in which we emerge from this with considerable damage but we are able to repair, rebuild, and not become a society without the rule of law and not become an authoritarian autocratic regime for perpetuity. But there is also a world in which our constitutional system—constitutional democracy, the rule of law—ceases to exist, like we are just no longer a liberal democracy at the end of this. I think these law firms are looking at this, no one can say what is going to happen by 2028, and they are, in my view, unwilling to take the bet that we emerge from this with considerable damage but still a system capable of having the rule of law.
Sargent: What’s amazing to me about that, though, is you’d think it would push them in the other direction, right? So they say to themselves, OK, we’re not making real concessions. This is the story, as you put it, that they’re telling themselves. These aren’t really that meaningful. It’s mostly gestures. We’re just giving the crazy man a way to proclaim victory. But it’s the appearance that matters, right? This is the key. It’s the appearance of capitulation, the act of capitulating—not the specifics. Can you talk about that? What is the fallout from the mere act of capitulating publicly?
Litman: One thing is: By acquiescing, they are legitimating these assertions of authority. They are suggesting, We agree, we’re in the wrong. And all of these reasons you’ve identified that we need to be punished, yes, sir, we agree. And that is itself problematic. It also takes away one of the methods of fighting back against the administration, which is just creating friction and resistance. Make them fight for all of the illegal, inappropriate, abusive, authoritarian things they want to do. Don’t give it to them for free. Make them expend time and capital.
Sargent: Yes. Make them fight for it, make them defend it publicly.
Litman: Yeah.
Sargent: Well, in your book, which is about the Supreme Court, you talk about the need not to despair at the feelings of powerlessness that arise in the face of authoritarian lawlessness and the failure of our institutions to do anything about it. Can you apply that to the stuff we’re discussing here? What can everyday people do to resist this ongoing dissent on so many fronts?
Litman: Yeah. I do think one important thing people can do is to inform themselves and inform other people in their network. We are all feeling overwhelmed right now [by] the news, so find your channels that you can use to stay updated but still allow yourself time to check out. Maybe establish a network of friends, an organizational structure that helps one another stay informed. I think making opposition and resistance known is also really important. The protests we saw last weekend are a wonderful start, and other days of action are going to build on that. It is easier to build momentum and to make people feel strong and energized when we are together, when there is solidarity, when there is collective action. I think that has the potential to also spur political opposition and political pushback to Donald Trump.
I also don’t think it’s an accident that after these protests, a few Democratic politicians at least were willing to stand on more of a backbone than others have been. I think that doesn’t sound like, This is something that is going to be fixed in the next 24 hours, four weeks, four months, and I think that’s right. But I also think movements to change institutions—particularly when the institutions have been taken over, and all of their powers are being deployed to make opposition harder and to entrench political power by an authoritarian minority—take time to push back against that.
We can look to the experience in other countries. I would point to Hungary and Poland, for example. Those are instances where you had illiberal authoritarian regimes initially win power, and the outcome played out differently in Hungary than it did in Poland—in part because of more successful organized resistance and pushback, and getting an opposition party and an opposition political movement to get its act together. Again, those are things that are just going to take time, but the small everyday things like staying informed, building a network, not letting yourself go crazy, figuring out a way for you to voice your opposition ... If you are a really big introvert like me, you don’t have to go to every protest—but go to some and maybe make a fun sign like “I’m an introvert and I’m still here,” which [was one] of my favorite signs that I saw at the Days of Action.
Sargent: That’s very good.
Litman: Yeah. And maybe it can be letter writing. Maybe it can be calling political leaders. Maybe it can be informing your friends. There are just so many things you can do. Resource organizations and individuals that are fighting back. If you are in a position to give work to the law firms that are fighting back, do that. I think many people have different skills and different things they can contribute, and you should just be asking yourself: What do I have to give? What can I contribute?
Sargent: Well, your book is all about the Supreme Court—and that is something that you take a very dim view of, understandably. So what do you expect to come before the court in terms of rule-of-law cases? What are the two or three things you’re expecting that the court will have to decide on that have major implications for what we’re talking about here, which is whether authoritarian rule can succeed and get more entrenched? What are you anticipating, and how do you think the court’s going to go on them?
Litman: Yeah, we have some initial indications thus far. As a general matter, the Supreme Court is likely to hear a bunch of these emergency challenges from the Trump administration asking for relief from lower court decisions that blocked all of the many illegal policies that they are just throwing at the wall and trying to flood the zone with. So it’s a little bit difficult to predict what crazy policy they are going to announce next, and which one is going to [end up] at the Supreme Court. I think the law firm executive orders are likely to get there. I think Donald Trump trying to fire the heads of multi-member commissions and destroy independent agencies like the National Labor Relations Board or the Federal Trade Commission—that’s likely to get to the Supreme Court pretty soon.
I think their actions in the cases to date have been super concerning, particularly in the Alien Enemies Act case as well as in the case about the return of someone who was wrongfully expelled, Mr. Abrego Garcia. Because in both of those cases, the court acted in ways that gave the administration latitude to get out from under unfavorable judicial decisions. The justices did not act as if they were concerned about what the administration was doing.
In the Alien Enemies Act case, they refused to rule on the lawfulness of the policy and instead said, You have to challenge this in another forum, which by the way is going to be a lot harder. And then in the Abrego Garcia case, they were like, Well, yeah, the district court can order the government to try to bring back Mr. Abrego Garcia, but the judge has to do so with due deference to the executive branch on foreign affairs, and the court got to clarify what they mean by effectuate the return because we don’t know if the court can actually do that. And sure enough, the administration responded to the lower court, basically being like, Nanny nanny boo boo, we’re not going to respond to your questions about where Mr. Abrego Garcia is or what we are doing to seek his return. And the Supreme Court, again, gave them all of these different semantic distinctions that they can try to manipulate, and general language that they can point to to say, We just don’t have to comply in good faith with your directive, judge, and try to make us.
Sargent: At an earlier point in this conversation, you said that it could go one of two ways. Maybe the rule of law emerges bruised and battered but still subject to rehabilitation; and then on the other side, the rule of law ceases to exist. Where are you leaning right now?
Litman: I honestly don’t know. And that itself is extremely terrifying. So much turns on the ability to generate a mass public movement, the ability to spur the Democratic Party to stand on its two feet and develop a backbone, and the ability to fracture the coalition that exists among the Republican Party—because the fate of constitutional democracies does often depend on the dynamics of the conservative political party that is trending authoritarian and autocratic. So those are things that I don’t know how they are going to cash out, and, again, that is terrifying. I do know they are things that are worth fighting for. I’m not getting a ton of sleep these days, but I want to live in a society with the rule of law. I think that is worth devoting any time I have to.
Sargent: Absolutely well said. Folks, if you enjoyed this conversation with Leah Litman, make sure to check out her new book, Lawless. Leah, thank you so much for coming on with us. Great discussion.
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.