Transcript:
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Leah Litman: The idea that you can have a leader targeting political opponents because they are political opponents, because they criticized him, because they tried to hold him accountable—that is not a system that respects the rule of law. That is a system that is implementing and carrying out the whims of the person ordering these prosecutions.
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Colin Seeberger: Hey, everyone. Welcome back to “The Tent,” your place for politics, policy, and progress. I’m your host, Colin Seeberger. That was Leah Litman, professor of law and co-host of the “Strict Scrutiny” podcast.
Last week, the Department of Justice indicted former FBI Director James Comey days after President [Donald] Trump publicly called for his attorney general, Pam Bondi, to prosecute him and some of Trump’s other perceived political enemies. This is just one of many instances where we’ve seen the president of the United States weaponize the government and use it as a cudgel to go after figures in groups he disagrees with or dislikes.
Leah and I broke down the president’s recent actions and whether we’re sprinting into authoritarianism as some have claimed. We also talked about how the [U.S.] Supreme Court has handled the start of Trump’s second term, their new term which kicks off this week, and what cases we can expect to hear from them.
And stick around after the interview for a moment of joy, because shocker, we’ve got more Taylor Swift news to discuss.
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Seeberger: Leah Litman is professor of law at the University of Michigan Law School and co-host of “Strict Scrutiny,” a podcast about the U.S. Supreme Court. She previously served as a law clerk on the court, and she’s a New York Times bestselling author.
Leah Litman, welcome to the pod.
Litman: Thanks so much for having me.
Seeberger: So we’ve got a lot to dive into today, but I really wanted to start around the big news of the week. As of this recording, it looks like the federal government is headed toward a shutdown.
Congress has been locked in a stalemate with Democrats really standing their ground and fighting to prevent health care premiums from doubling from millions of Americans. At the same time, we see Republicans have refused to negotiate. And instead, Trump, with his [Office of Management and Budget] director Russ Vought, has been threatening more mass firings if the government shuts down.
I’m not a lawyer; you are. But my understanding is that a shutdown doesn’t provide legal justification for the administration to execute new rounds of mass firings. So I’m curious to get your thoughts, your insights. Can you tell me a little bit more about what happens if these move forward, and what we should expect if the administration does try to take some of these steps? Would they be struck down in court? What do you think?
Litman: Yeah, so I guess the first thing to note is they were already engaged in mass firings when the government wasn’t shut down. So this is hardly a unique threat. And it’s a little bit difficult to know how to take this because for all we know, they wanted to continue doing the mass firings whether or not the government shut down. So this feels a little bit of damned if you do, damned if you don’t. So that’s one thing.
The second is, it is revealing in that in the mass firings thus far—part of the basis for the challenges to those mass firings was the claim that Russ Vought and the Office of Management and Budget and the Office of Personnel Management didn’t have the legal authority to actually require other agencies to engage in mass firings. And the federal government responded, oh yeah, that’s fine, because it’s not Russ Vought, OMB and OPM who are doing the mass firings.
Well now, surprise-surprise, it is Russ Vought and OMB who are threatening to do the firings. So in some ways, these threats would seem to substantiate further legal challenges that might be made to subsequent rounds of mass firings.
Now having said that, I wouldn’t hold my breath for the Supreme Court to actually stand up to the Trump administration when it comes to firing officials. I would trust the lower courts to do so.
And one specific thing to flag is that the Supreme Court actually put on its calendar for oral argument for this upcoming term a case where one of the questions is whether federal courts have the authority to reinstate public officials who are wrongfully fired. If they say “no” to that question, then it won’t matter if the mass firings or any firings are illegal; federal courts wouldn’t be able to do jack squat about them.
Seeberger: Wow. I mean, I think you’re getting a really prescient point, and that is, this administration has already been trying to shut down large swaths of the government for the last nine months. So to now try to Etch-a-Sketch their record and suggest as if they’re the defenders of having an open, functioning federal government seems completely on its head with everything that we’ve been staring down over the course of the last nine months.
Now, another question that I had as it relates to the shutdown fight: We have seen Republicans have been taking a lot of heat for the cuts that they’ve made to people’s health care. And there’s been a lot of polling that has shown that Americans want Congress to fight for reversing those cuts, to stand up for people’s health care. Because you see folks that are staring down massive, massive premium increases if some of these cuts go into effect. And Republicans have then taken to suggesting that Democrats are fighting to give health care to undocumented immigrants in this country.
Can you just clarify for some of our listeners, is there any validity to what we saw this week from [White House press secretary] Karoline Leavitt, the vice president, Senate and House leaders, and the president himself, who have been driving this message ruthlessly throughout this week? Is there any validity to this?
Litman: Short answer: No. Under federal law, people who lack legal status in the United States are not eligible to obtain insurance through federal programs, be it Medicaid or on the exchanges that are run by the Affordable Care Act. And that’s the specific thing that Democrats are asking any subsequent legislation to actually shore up.
It’s those exchanges that are part of the Affordable Care Act. So, no, what they are saying about unauthorized immigration and people lacking legal status being able to obtain health care is just false. Now, there are cases where people with legal status can obtain health care. But that’s vastly, vastly different from anything they are suggesting.
Seeberger: Yeah, you need a Social Security number. You need documents in order to be able to qualify for that financial assistance to purchase health care.
Now, to turn gears beyond the shutdown—it has been an extraordinary last week. We saw President Trump instructed his attorney general, Pam Bondi, to go after some of his perceived political opponents. And I want to talk specifically about the indictment that we saw last week of former FBI Director James Comey and what this really says about our system of justice in this country.
Can you talk a bit about this case specifically, and how you think it might fare in court?
Litman: Yeah. So the broader context for this case, as everyone knows, is Donald Trump’s longstanding dislike and pique against Jim Comey for his role in talking about allegations of Russian interference in the 2016 election.
In Trump’s view, any discussion about Russian interference in the 2016 election was effectively criticizing him and his victory. And therefore, he didn’t want any of it. He was elected in part on a promise of vengeance and retribution. So what is he doing? He is using the federal prosecutorial power to exact vengeance and retribution on people who criticized him.
As far as how this case might fare or should fare in court, if there is ever a case of vindictive, selective prosecution, this is it. Vindictive and selective prosecution is the idea that the Constitution forbids prosecutors from selecting cases based on vindictiveness, selecting people to prosecute rather than crimes. And usually making out those claims is super hard. Because of course, any enforcement of federal law involves some discretion. And usually, the federal government is indicting people for whom it thinks it can obtain a conviction.
That’s just not true here, because they have broadcast the motives pretty clearly about why they are targeting Jim Comey. Donald Trump has been saying that for almost a full decade at this point. Additionally, the underlying factual allegations in the case seem quite thin. We don’t know exactly what the basis for this indictment and the charges are given that it’s a bare bones indictment, but any of the versions of the theory in which Jim Comey lied to federal investigators just fall apart. They don’t hold up based on the underlying evidence.
So my hope is that this case will get dismissed before trial. Because again, it is a very clear case of selective vindictive prosecution, and I would hope that courts would be willing to say that.
Seeberger: Of course, it’s not just former FBI Director Comey. We have seen Trump very clearly call for similar investigations into perceived opponents, including [U.S. Sen.] Adam Schiff [D-CA], Letitia James, the attorney general of New York.
Can you talk to me a little bit about just how unprecedented and dangerous this politicization of the Justice Department is? And what would we say is happening if this was occurring in any other country?
Litman: I mean, we would say this is a democracy that has fallen apart. The idea that you can have a leader targeting political opponents because they are political opponents, because they criticized him, because they tried to hold him accountable—that is not a system that respects the rule of law. That is a system that is implementing and carrying out the whims of the person ordering these prosecutions.
And here, too, the fact that he has threatened and directed his attorney general to look into the prosecutions of Adam Schiff, Letitia James—this all seems to substantiate that these are just cases of vindictive, selective prosecution. Because they’re not just going out and investigating who might be violating this law. They are targeting particular people and seeing, is there any way we can make their lives miserable through an investigation, indictment, prosecution, trial?
And so if that’s what they’re doing, this is, again, the stuff of nightmares. Other countries’ leaders that lock up their political rivals or that lock up dissenters or that lock up their economic competitors—these are just hallmark instances of authoritarianism.
And Justice Robert Jackson, before he was a Supreme Court justice, gave a pretty famous speech about prosecutors in which he said, “The most dangerous power of the prosecutor is the prospect that he would select people to prosecute rather than crimes.” And so the fact that this has materialized and is playing out before our eyes is an extremely alarming indication of how much things have broken down only nine months into the administration.
Seeberger: Well, of course it’s not just individuals that we have seen the president and his administration targeting.
We’ve seen recent episodes—which I’m sure you’ve followed closely—of the FCC Chairman Brendan Carr making threats against ABC over whether they would keep Jimmy Kimmel on air after a monologue that he gave following the assassination of Charlie Kirk. We also saw last week the president signed an executive order targeting the Open Society Foundation, which is backed by the Soros family.
What are your thoughts on all this? What legal protections are there for free speech? And how is the Trump administration posing an existential threat to those rights?
From my vantage point, it really seems like Republicans have spent a lot of time over the course of the last decade or so professing to be some champions of free speech. And yet at the same time are very quick to turn a blind eye to hostility that I’ve never seen in my lifetime for the federal government targeting private individuals, private organizations who have their own political views.
Litman: Yeah. I mean, free speech warriors, it turns out, not so into free speech.
Seeberger: Yeah.
Litman: So First Amendment protections—it is just the most basic principle of the First Amendment that the government isn’t able to suppress speech merely because it dislikes the speech, especially speech targeting the government.
I mean, the idea that the government can come after individuals or entities because they made jokes at the president’s expense, that they did not mourn the president’s allies in the way that the president viewed proper—these are hallmark cases of First Amendment violations: targeting people because of their speech, because of their political views, because of what they express.
Now, they went about this in one of the more ham-handed ways: essentially having the FCC commissioner on a podcast and then saying publicly, well, “we can do this the easy way, or we can do this the hard way,” making clear that the government was driving the threats to ABC and to Disney and that this wasn’t just local networks independently deciding, oh, we don’t want to broadcast the “Kimmel” show and then Disney and ABC saying, oh, we’ve just decided coincidentally to take Kimmel off the air.
Everyone knew why they were doing this, because it was playing out so publicly. And so they made this First Amendment violation very clear. And I think the concern is what if they actually managed to keep some of this behind closed doors and under wraps? Would we be able to recognize the same threat to the First Amendment if, for example, entities are operating under the understanding that they will get merger approvals, that they will get federal benefits, only if the administration is happy with what they are saying and doing? I think that that sort of regime is also a big threat to the First Amendment, and it might be more difficult for us to recognize.
Seeberger: Leah, I’m curious to get your thoughts on—I think there’s a lot of people that had hoped that the Supreme Court would be standing up to a lot of the legally questionable post-constitutional actions that we’ve seen from the administration throughout the first nine months. Yet we have increasingly seen as this second Trump term has played out that the court is really intervening in ways on behalf of facilitating a lot of this egregious, legally questionable conduct by the administration. And they’re doing so behind closed doors. They’re doing so without actually having to be accountable to the public. And they’re doing so through what’s called the shadow docket.
For our listeners who may not be familiar, can you break down, what is the shadow docket? Why does it stand out to you as a shady—for lack of a better term—tool by the court? And what do you think that the court has done that have been the most egregious examples of using the shadow docket?
Litman: So the shadow docket refers to the set of orders and decisions the Supreme Court releases without the benefit of full briefing or oral argument, sometimes with no explanation or opinion at all. The shadow docket is a set of often emergency requests that increasingly the federal government makes. And what they’re asking for is a form of emergency or extraordinary relief called a stay. So they are asking the Supreme Court for a stay, which pauses a lower court decision ruling against the administration.
And it is through this disposition of stays that the Supreme Court put on hold a lower court decision that had blocked roving immigration patrols engaged in racial profiling. It is a stay that allowed the administration to continue to withhold almost $1 billion in health care medical research grants from institutions under the National Institutes of Health grant system. It is also through the shadow docket that the Supreme Court has allowed Donald Trump to fire numerous officials in violation of federal laws. It is also through this same system that they allow the administration to begin to take steps to dismantle the Department of Education, a congressionally created agency that the president does not have the unilateral authority to demolish.
I mean, why is this so shady? They don’t have to explain themselves. It therefore often escapes the same type of public notice and public attention that might accompany a full decision that is released after oral argument and with full reasoning. And because they don’t have to explain [themselves], they’re not committing themselves to following the same principle in a future case where there might be a Democratic president in office.
So there’s a bunch of things that are very untoward that are happening on the shadow docket right now. This is where the court is giving the Trump administration win after win after win, and they aren’t really absorbing the costs of having to do so.
The Trump administration is now on a winning streak of more than 20 straight cases in a row on the shadow docket—again, many of which have no explanation and many of which escape public notice because they’re just these unannounced decisions. We don’t know when they’re coming, and they don’t have any explanation.
Seeberger: I’m curious to get your thoughts on a few recent developments out of the court. Last week, we saw that the court greenlit what’s called a pocket rescission that the Trump administration made to some foreign aid funding. The pocket rescission basically allows the administration to cancel money that Congress has appropriated, has signed into law, and make it impossible—because of the Impoundment Control Act, an administration is allowed to withhold spending monies for 45 days. However, if they do so within the last 45 days of a fiscal year, it effectively allows Congress to rewrite the law and cancel those congressionally appropriated funds.
I’m specifically interested in your thoughts on this given the fact that one of the things that Democrats and Republicans are fighting over right now in Congress is the fact that when you fund the federal government, when you make a deal, that deal should mean something, right? That deal should mean that the president is going to execute the agreement that Democrats and Republicans in Congress decide, these are the priorities for the American people that we are going to support. And it’s the president’s job to execute on those priorities.
What do you think it says about this Supreme Court that they’re willing to effectively challenge the basic articles upon which our government was founded?
Litman: I mean, this was one of the more stunning decisions. Because Congress’ power of the purse is one of the most significant powers that Congress has to reign in and constitute the executive branch.
Congress decides what to support with funds and what not to support with funds. And after it commits to spending funds, everybody else relies on those decisions—schools, hospitals, you name it. Everyone expects the federal government to follow through on its deals. And the fact that the Trump administration is now saying, “Eh, guess not. All of this is up for grabs all of the time,” makes it so much more difficult to live in a stable system that respects the rule of law, where the government actually follows through with its commitments.
And I think the fact that the Supreme Court is effectively allowing the president to usurp Congress’s power of the purse, their spending power, their appropriations power, is one of the more anti-constitutional actions that the Supreme Court has taken, allowing the president again to swallow up one of—if not the most—important power that Congress has.
Seeberger: Another thing that I wanted to ask you about—we saw some remarks from Justice [Clarence] Thomas over the course of the last week where he said that a majority of the Supreme Court justices may not have the same respect for the law as their predecessors, indicating that decided cases are “not gospel,” quote-unquote, according to him, and that some are based on, quote, “something somebody dreamt up along the way.”
What’s your reaction to those comments?
Litman: I mean, this is just big “he admitted” energy. They’re just tweeting it out. We have been saying for years that this Court does not respect basic principles of our legal system. It does not respect prior Supreme Courts that decided these questions. It doesn’t respect prior congresses and prior presidents that have structured our government in particular ways. It thinks that it knows best, 200-plus years of precedent and practice to the contrary.
That sort of hubris is alarming. It is especially alarming in a group of nine people who have arrogated to themselves the power to declare which laws and policies we get to enforce. And so the fact that he is just straight up saying, “Precedent? Stare decisis? Ain’t no thing.” I mean, I think we should all recognize that as evidence that the court is acting more as a political body, more as a legislature in which it’s not bound by prior decisions, and less like a court.
Seeberger: Really ripping off the mask moment. Well, it is that hubris that we are seeing justices like Justice Thomas and others carry into what is kicking off this week, which is a new term for the U.S. Supreme Court.
You’ve talked about some of the cases that are going to come up. But we are anticipating that there’s going to be cases on the ability to remove members of independent federal agencies without cause. Another one is going to look at the issue of the use of race in redistricting. There’s also a chance that the Court could take up a challenge to Obergefell, which of course is the Supreme Court case that made marriage equality the law of the land in this country.
Can you talk a little bit about what you’re expecting from this year’s court term? And do you have a sense for where the Court might rule on some of these cases?
Litman: So, I think we should acknowledge that in the era of the shadow docket, term previews are necessarily incomplete because cases get to the shadow docket on a very quick basis. We don’t know what set of cases the court is going to decide and weigh in on, on the shadow docket.
So many of its most momentous decisions we probably can’t see or see coming this far out. Of the cases that are already on the court’s docket, they have two big Trump cases: a challenge to the tariffs as well as a challenge to the president’s authority to fire at will members of the Federal Trade Commission or FTC.
We also have an existential challenge to the Voting Rights Act and whether the Voting Rights Act can continue to require legislatures to ensure that minority voters are represented. There are also major cases on LGBTQ+ rights: whether states can prohibit transgender athletes from participating in sports. And there’s also a challenge to a conversion therapy ban and whether it is unconstitutional for states to restrict conversion therapy, which tries to counsel people out of being gay, lesbian, and bisexual, or trans, and a UN expert likened to torture.
So, as to how this is going to come out, I think the LGBTQ+ cases, those are not going well. We just know from the court’s most recent decisions on LGBT rights, this court is no friend to the LGBT community. It instead is always willing to recognize the rights of people who object to LGBT equality and want to undermine it.
I also think the Voting Rights Act is going to take a major blow. I think the court is going to severely restrict the power of Congress to require states to draw districts that are representative and that allow Black voters and voters of color and language minorities to have political opportunities and be represented. So, I am not an optimist when it comes to this upcoming term.
The tariffs case—I’m not totally sure what the court is going to do there. I think more likely than not, they uphold the tariffs. But I just don’t know.
Seeberger: Wow. It seems like there’s a dark cloud hanging over the court in this term. I am curious, last question—we like to end on a positive note where we can—if there is a glimmer of hope, what is it for you?
Litman: A few things. One is, I think, the massive outcry in response to the Kimmel events, as well as the massive attendance at the No Kings protests. Those are all very encouraging to me.
You add to that the no bills, the fact that grand juries have refused to indict people who have been accused of being engaged in unlawful forms of protest in response to the administration’s aggressive immigration enforcement in both Los Angeles and D.C., the fact that grand juries have not been willing to indict many of those individuals—that also provides me comfort. And so, too, have the lower federal courts who continue to do their job as the administration continues to make that more and more difficult.
Seeberger: Well, we will hold on to those positive glimmers of hope when we can get them. They are few and far between these days. But Professor Leah Litman, thanks so much for joining us on “The Tent.” it was great to chat with you.
Litman: Thanks for having me.
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Seeberger: All right, folks. That’s going to do it for us this week. Please go back and check out previous episodes.
Here to discuss some of the ways we disassociate from the hellscape on “The Tent” is supervising producer Kelly McCoy. Welcome back.
Kelly McCoy: Delighted to be here in these horrifying times, Colin.
Seeberger: Yes. They do not seem to be vanishing. However, we have both found some ways to find some excitement, find some joy. I know there’s something that’s happening this week that you have been really looking forward to.
McCoy: I know everyone will be really surprised to hear that I have been counting down minute by minute by minute until October 3, which is, no, not when the government shuts down, folks. That is when we finally get “The Life of a Showgirl,” and it cannot come soon enough, Colin.
Seeberger: No. I’m so excited. I am really looking forward to, in particular, the collab that she’s doing with Sabrina Carpenter, the “Life of a Showgirl” track. But I am certain that the album is going to kick ass. It is going to be—pop princess Taylor is back. A little bit of “1989” meets “Reputation” is what I’m vibing.
So we’ll see. But the aesthetic with the album, I can’t get it over. I have high, high hopes.
McCoy: And you’re going to see the movie, “The Life of a Showgirl.”
Seeberger: Yes, I am.
McCoy: Which we were talking about just before we started recording. You’ll have to tell me how it is. I haven’t gotten tickets—at least, yet. Surprising.
Seeberger: Kelly!
McCoy: I know, I know, I know.
Seeberger: Off brand!
McCoy: I’m letting our girl down. I’m just confused what it is. I was like, oh, this is a pre-release before the album? But it continues to play afterwards, so like, what is it? You’ll have to give me the scoop, Colin.
Seeberger: Well, I’ve given her enough of my money over the years.
McCoy: Right.
Seeberger: So, what’s $12 more, right? Not in Donald Trump’s America—excuse me, $20 more.
So besides “The Life of a Showgirl,” I know I have been finding some of a retreat with “The Traitors,” which I know you also watch.
McCoy: Mm-hmm.
Seeberger: However, I was coming back from London the other day and, British Airways, your content library is terrible and I am not sure I’m going to be able to fly you next time I have to go across the pond. But they did have one good show, and that was “The Traitors UK.”
McCoy: Cheerio!
Seeberger: Cheerio. It was so much fun. I watched eight episodes in a row, which seemed kind of like overkill. But you know what? Sometimes doing some brainless activity is just what you need. And. I’ve got to say, Claudia, the host of “The Traitors UK,” she’s no Alan Cumming.
McCoy: That was going to be my first question for you.
Seeberger: I mean, is there anybody who could even dare compete?
McCoy: And I think you told me that it’s not quasi-celebrities that are competing.
Seeberger: No. These are just UK civilians who happen to make their way to the castle. And yet, honestly, I enjoyed it just as much, frankly, if not more than the celebrities of them all. Because the thing is, when you do a show with celebrities and they get a lot of them from like the same franchise it almost creates some alliances within the game.
When you just have a bunch of random strangers, you don’t have this sort of artificial, inorganic alliance, cliques, whatever, that are happening. And it’s really much more of each individual evaluating the truthfulness of the information that they’re getting from other people on the show.
McCoy: So it’s giving “Great British Bake-Off” but whodunnit?
Seeberger: There you go.
McCoy: Okay. Yes. No shade to the Brits. Many times these days I envy them. But I think I may save myself for—when is season—is it season four coming out soon?
Seeberger: Season four, I think, comes out beginning of next year, if I’m not mistaken.
McCoy: OK.
Seeberger: Or maybe it’s the end of this year.
McCoy: OK.
Seeberger: But I did see the recent news that “The Traitors” is producing a version with American residents as well, just everyday.
McCoy: OK.
Seeberger: Kelly, this may be your next opportunity, Kelly.
McCoy: Yeah.
Seeberger: Supervising producer of “The Tent.”
McCoy: Yes, I know. Supervising producer of “The Tent,” we’ve got this, and Tree Paine, if you’re listening, I’m still here for you, honey. We’ve got to keep all our options open.
Seeberger: There you go. And with that, that is going to do it for us this week. I hope everyone is taking care of themselves, getting out there and checking out a lot of the protests and activities that are going to be happening over the course of the next few weeks. There’s a big “No Kings” protest that’s going to happen nationwide on October 18. We will be keeping tabs on that in the course of the coming weeks. Be well, and we will talk to you next week.
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Seeberger: “The Tent” is a podcast from the Center for American Progress Action Fund. It’s hosted by me, Colin Seeberger. Muggs Leone is our digital producer. Kelly McCoy is our supervising producer. Mishka Espey is our booking producer. Hai Phan, Olivia Mowry, and Toni Pandolfo are our video team.
You can find us on YouTube, Apple, Spotify, Google Play, or wherever you get your podcasts.