Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Norman Eisen: Greg, thanks for having me.
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 AG secured later in the week are belt-and-suspenders protection against those harms by Musk and the White House DOGE group.
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.
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.
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.
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.
Sargent: OK. I get that you’re feeling very optimistic right now and I’d to—
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?
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 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.
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.
Sargent: So Norm, where do you expect Trump and Musk to try to defy court rulings? And what might that plausibly look like?
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.
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?
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.
Sargent: Absolutely will. That means a lot coming from you, Norm. Thank you.
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.
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