Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Leah Litman: Thanks for having me.
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.
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?
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.
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.
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.
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.
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?
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?
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?
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?
Sargent: Yes. Make them fight for it, make them defend it publicly.
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?
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.
Sargent: That’s very good.
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?
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.
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?
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.
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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