Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
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.
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?
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.
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.
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.
Leavitt (audio voiceover): You’re reporter. You should find out.
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.
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.
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.
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.
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.
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.
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.
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.
Sargent: When you describe it that way, it doesn’t seem ideal.
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.
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.
Leavitt (audio voiceover): We are complying with the judge’s orders.
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.
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?
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.
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.
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.
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.
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