Dahlia Lithwick: The Price of No Consequences for Trump

Sam Goldman interviews Dahlia Lithwick, columnist for Slate.com and host of the podcast Amicus about the Supreme Court.

Read her recent piece The Price of No Consequences for Trump.

Send  your comments to [email protected] or @SamBGoldman. Or leave a voicemail at 917-426-7582.

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Transcript:

Episode 65

Dahlia Lithwick 00:00

It’s just not going to be enough to have New York officials go after Donald Trump for things he did before he held office… At some point, the shock of all of these things dissipates. And then, as we said, the goalposts have moved. Right now this is normal. To refuse to hold them to consequences is to invite the Marco Rubio administration or the Josh Hawley administration to push further. This is not normal. This is not okay. If clownish lawyers can get away with clownish efforts to set elections aside and there are no consequences, professional or otherwise, then the next set of lawyers who does it are going to be really good at it. Because there were no consequences...When the Justice Department says we want to just restore norms of comity and trust and bipartisanship and working together, that’s not an end in itself. That’s a means to an end, and the end is democracy.

Sam Goldman 01:16

Welcome to Episode 65 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and a host of this show. Today we’re sharing an interview I did with Dahlia Lithwick, writer for Slate.com, and host of the Amicus podcast, a show where she talks about the Supreme Court now dominated by fascists, including three justices appointed by Donald Trump. But first let’s assess the present state of the political system in the United States, the system they call democracy. Personally, I need to say I don’t think there can be democracy for all in a society divided into classes. But anyway, this week, we saw the Senate Republi-fascists block a vote on the For the People legislation that would have combated their voter suppression efforts at a federal level, aided by some of the Democrats who continue to preach bipartisanship, as if that word has any meaning beyond abject capitulation. Mitch McConnell actually said the legislation has to be blocked, because it would “tilt every election in America permanently in their favor.” “They,” being the Democrats. It was an open admission that for the fascists, dropping any pretense of governing based on the majority is needed. They must use coercion to maintain minority rule.

Meanwhile, we now have evidence as reported in a new book by Michael Bender, that behind closed doors, Trump demanded that the military be unleashed to open fire on unarmed protesters around the country, to crack their skulls. Last year, as people took to the streets righteously demanding justice for George Floyd, how close did we come to protesters being shot and killed in the streets? Well, apparently there was a draft version of a proclamation invoking the Insurrection Act prepared last June. And it was only a handful of military leaders who talked him out of that plan for mass bloodshed on the basis that it would only inflame anger and trigger more protests. We already know about the coordinated national plan to push through voter suppression laws around the country in just the past few months, laws which will by and large stand without federal action like the For the People Act, doing things like criminalizing passing out water to people waiting in line to vote.

But now we also know that Republican funders have been, for years, supporting bizarre schemes to send their people as spies into Democratic Party organizations to gather information, and, where possible, con targeted politicians through various set-ups. In Florida, they’re leading the charge on criminalizing thought with the new law that DeSantis signed that will require professors and students to share their political views with the government through surveys and with possible penalties for those universities with people that provide wrong answers. Just to be clear, “wrong” is in quotes. The Q-Anon believers have been thirsting for a so-called “Storm” for years, praying for a massive violent crackdown against Trump’s political enemies. The wider public got a little glimpse of this blood lust this week when an OANN news anchor speculated that as many as tens of thousands of people would have to be executed once Trump returns to power for “stealing the election.” What was once fringe is mainstream, while the new fringe ratchets up the fascism. As hundreds of low level participants in the January 6 insurrection are arrested and many face charges, one of the lead organizers, Ali Alexander messaged other leaders “don’t denounce anything. You don’t want to be on the opposite side of freedom fighters in the coming conflict. Veterans will be looking for civilian political leaders.”

Does all this paint a picture of a return to normal? The warning signs are all there as they continue to plot and act out in the open, unafraid to be called white supremacist. The Democrats desperately hope that an infrastructure plan and the waning pandemic will be enough to calm the turmoil. It may calm many good people who want to be able to move on from the Trump era, but calm from our side can only be calm on the terms of the fascists. Together, let’s pay attention to what is brewing and get organized to respond. That’s what you do when you listen, share and discuss this podcast. The fascist juggernaut is getting into high gear. The GOP is moving to exercise its rule through fascism. What do I mean by that? I mean, discarding the pretense of “democracy for all,” relying on terror and brute force, eviscerating rights of the people in the service of blatant patriarchy, white supremacy, xenophobia in the cruelest America first chauvinism.

What about the Democrats? Oh, they’re trying to keep things chugging along as normal with more disguise and deception with the claim that what exists in the good old USA is a great democracy representing the will of the people. Therefore, it should and must be the world’s number one superpower dominating everywhere else. It’s my view that both of these ruling class parties are working to maintain what can only be called a violent oppressive power. You know, a dictatorship, of a system we call capitalism-imperialism, with all the horrors for humanity this encapsulates, the times are ominous. It’s clear, radical change is coming. But whether that change is liberating, or a more horrific weight on humanity depends on the actions we all take.

Now, my interview with Dahlia Lithwick. It’s worth noting that this interview took place before it was reported that there’s growing concern from the legal community that Biden’s Justice Department may defend Trump in the Capitol riot lawsuit, as reported on by Reuters. Today I’m speaking with Dahlia Lithwick. She writes about the courts and the law for Slate, and hosts the podcast Amicus. Welcome, Dalia. Thanks so much for talking to us.

Dahlia Lithwick 08:19

Oh, thank you so much for having me.

Sam Goldman 08:21

As I told you before, I want to chat about your June 14 piece for Slate, The Price of No Consequences for Trump. So first, I want to express my real appreciation for you writing this. One of the things that I thought was most striking was that you were helping people to cast off the illusions over the inevitability that justice was coming. And I know where people get that feeling because they want it so bad. The constant, “he’s going to be impeached.” And then this is going to happen and the Mueller report. And this is going to happen and they’re just expecting that justice is coming. And you helped dispel that a lot. You consistently provided meaningful evidence — I even forgot certain things that have taken place — for why thorough accountability is needed for any type of reckoning. So let’s start with what, in your view, does he need to be held accountable for?

Dahlia Lithwick 09:17

How long do you have? Look, there are easy things even that the Boston Globe was calling for. I think I linked to the Boston Globe’s piece, saying it’s just not going to be enough to have New York officials go after Donald Trump for things he did before he held office. If you think that the satisfaction of seeing him dinged for something is sufficient, the Globe argues, no, that’s not a real reckoning. And they really start where I start, which is the events of January 6. That the attempt to foment distrust in the election system, I think the successful attempt, to have people try to enter the Capitol and set aside the act of ratifying the election, to the peril of his own Vice President, that is just shocking conduct. And it’s conduct by the way that when the impeachment effort failed in the Senate, it was because people like Mitch McConnell said, “oh, there are other processes to hold him accountable.” You know, this happened, we all saw it, let him be held accountable by the justice system. Where’s the justice system? So for me, that’s an easy place to begin, in some sense, because it’s the most recent, it’s because it’s the most shocking. At this moment, as you and I are speaking, the Senate has now stymied any kind of system of holding him to account.

So I start there, but I think you can back your way through any piece of just egregious policy, whether it’s family separations, whether it’s the events of Lafayette Square, which a court has just determined, there’s going to be no accountability anywhere for that, or litigation around whether members of the administration should be responsible for the family separation policy. We’re seeing that disappear. So any kind of piece of this, the just shocking behavior around Michael Flynn, and Roger Stone, any piece of this could be a thing that we can talk about. I think my problem is the accretion of all of them, that in the aggregate, when you look beyond each and every part of what was shocking and unconscionable, and like you say, you know, soothe yourself with, “oh, it’s a return to normal, we can sleep at night, we don’t wake up at four in the morning with our heart pounding.” Maybe that’s enough. All of that, I think, is where you start. What are we doing when we paper over that?

Sam Goldman 11:49

I really agree. I think there’s a lot of, as you said, people just want to see him behind bars — even though that wouldn’t happen for the crimes being charged in the New York case — that there be some consequence, but in people’s focus on that, the likelihood is that there will be no consequence. I did want to ask, do you think that there’s kind of a not a pattern but a precedent in the way that Bush (while not nearly as dangerous in the same ways the Trump regime proved to be) do you think that the fact that he was never held accountable that kind of had an impact in both the way that the Republicans operated, but also in the way that the Democratic Party leadership kind of normalized that?

Dahlia Lithwick 12:38

I do, and it’s funny, I’ve had this fight with Jack Goldsmith at Harvard, who was the head of the OLC [Office of Legal Counsel to the White House – editor] and was the person who, after the torture memo came out that allowed egregious abuse and said that as long as it didn’t rise to the level of organ damage, it wasn’t torture. Jack Goldsmith comes to the OLC under Bush and withdraws that memo. So he knows that they made a huge mistake. And yet, he’s one of the people in the last six months, who’s really been strongly saying, we have to like, look forward, not backward, you know, don’t re-litigate the bad things. His argument, and I actually think he’s wrong on this, is, “look, it’s true. We didn’t prosecute the CIA torturers, we’re like, we didn’t go after the people in the black sites, Obama made the decision to just sort of draw a line and move on. But it’s not like the US tortures people.” That’s his argument. He essentially feels like you don’t need to do the prosecutions to make the point that this is not acceptable. I actually think on most things, he’s right. I think on that he’s wrong. And I think you’re exactly right, that what you do when you say there’s no consequences is you move the goalposts. So whether or not the United States still has black sites and tortures people, the larger principle that there was no accountability, which is your question, is completely established. And so I totally think that the absence of consequences, by the way, not just for like Bush with torture, but Obama with drones, if you do not continue to enforce this is a line beyond which we cannot move than the line moves. That’s just how it is. And so I totally think – Jack Goldsmith and Bob Bauer wrote this really good book on sort of moving forward post Trump and re-establishing the rule of law – and that was the one point in this book that they co-authored – so it’s a liberal lawyer and a conservative lawyer a Bush official and an Obama official, and they come together – the one point on which they disagree is this one. Where I think Bob was much more interested in seeking real consequences for Trump’s violations and Jack just felt that that was just going to further politicize the Biden Administration. So I guess a long- winded way of saying there is certainly debate on that point, but I’m on your side of this debate. And I think that to refuse to hold them to consequences is to invite the Marco Rubio administration or the Josh Hawley administration to push further.

Sam Goldman 12:49

The piece, Dahlia, that you wrote isn’t just calling out Trump for his towering crimes. Too many, especially those in positions of power, are telling us to just move past, but really calling out the complicity of Democratic Party leadership, and their refusal to seek justice. I encourage people to read it. But I did want to quote your concluding remarks because they really have stuck with me that, “this is a profoundly dangerous moment, and being told to get over it is just as jarring when it comes from inside the guardrails of democracy as it was when it came from the smirking authoritarians that have been replaced. That’s why it doesn’t feel any better. If anything, gaslighting about ongoing threats to democracy might be even scarier when it comes from the very people who are supposed to protect us.” And I was hoping you could expand a bit on what you see as the effects of not just him, but this regime and those practices never being held to account. Do you see some of those consequences already being brought to bear in these sham audits? Are there other instances that you think are the best illustrations of that? And what is the danger that you see down the line?

Dahlia Lithwick 16:34

I think in some sense, your podcast single handedly makes the larger point that I was trying to make, which is, you know, the thing that people like Amy Siskind or Bandy Lee, or the myriad people like Masha Gessen, Jason Stanley, and Tim Snyder have been trying to make for the past four and a half years, which is this is not normal. And to remind people that the heart wants what the heart wants, and what the heart wants is normal. No matter what was happening for the last four and a half years. I think the ability of most people to just integrate it and move on is shocking. And in some sense, what I’m describing is almost a mental health phenomenon that you can normalize anything and things that horrified us — the Muslim ban, the first week of the administration — at some point, we were okay with it. Family separations, we were out of our minds, we were marching, and then we were okay with it. Forcing migrant teenagers at the border to keep their pregnancies. At some point, the shock of all of these things dissipates.

Then as we said the goalposts have moved. Right now this is normal, and our brains long for normal. And so I think one of the things I was trying to say is, I felt like I spent the four years of the Trump era as a legal correspondent, setting myself on fire, going into the green room at MSNBC and trying not to rip my hair out and scream, and trying over and over and over again to say “this is not normal. This is not okay.” And being — I use the word “gaslit” advisedly — just constantly and consistently being told not just by Bill Barr, but by folks on the left, that, you know, we’re hysterical, we’re overreacting, you know, calm down, he’s not really going to stop vote by mail. Okay, maybe he’s going to try to stop vote by mail, but it’s not going to be with the complicity of Bill Barr. Oh, maybe he’s going to try to set aside the election results. Maybe he’s going to try to foment a coup. But at every turn, we are being told, like come on, you are really overreacting here.

I felt as though having spent four years being told it’s not that dire, please stop worrying. You know, all the anxiety is just feeding into the hysteria to have that directed at you again, post Trump, by folks at the Biden Justice Department, by, as you say, some of the Democratic leadership. It’s like, “oh, you know, don’t overreact. What Georgia and Texas are trying to do and suppressing the vote isn’t that bad. Who doesn’t have voter ID?” It’s so enervating when it comes from your own side. And I think that was really what I was reacting to, having spent four years essentially being told you’re completely nuts. None of this is going to come about. Oops, it came about, but move on. It’s really, really maddening when it comes from the very selfsame people that you entrusted to fix it. And so I think that was the gist of what I was trying to articulate in that piece was “gaslighting is gaslighting,” whether it comes from inside the house or outside the house, and that in fact, when you are the Justice Department and you’re doing the wrong thing in E. Jean Carroll, you’re doing the wrong thing with the Mueller report. You’re doing the wrong thing with investigating leaks of either journalists or members of Congress. If you’re consistently doing the wrong thing, then say, “Hey, we’ve chosen to do the wrong thing.” But to turn around and say, “Hey, America, you’re overreacting,” that’s just not gonna work. But one of the reasons I wrote that piece was just to have this sort of cri de couer of I spent four years being told this is normal, get used to it. I’m not prepared to spend the next four years hearing the same thing from my side.

Sam Goldman 20:29

I really appreciate that perspective. I don’t think that the Democratic Party leadership is my side. But I appreciate where you’re coming from in that. And I think that there is this dogged insistence to return to a normal that no longer exists. And part of the reason why it doesn’t exist is because Trump was allowed to be in power for as long as he was. That said, I think that people should question whether the normal that they long for was ever really normal for everyone or desirable. Those are just some my personal thoughts, not positions of Refuse Fascism. But just some things that I think about, when I think about that the price of no consequences for Trump. I was really struck by and I underlined it a bunch of times, when you wrote about, “we’re just waiting around for Josh Hawley, or Marco Rubio to do it all again, doesn’t make this normal, it makes it a crisis.” And it just made me feel about this moment where you don’t have that flurry of this onslaught of outrages, we have a moment where it could really be a moment to seize and say, we’re not going to accept fascism and we see a path that’s very clear for a future protege whether it be DeSantis or whether it be a Hawley or whoever it is, to take that helm and take it further than we ever imagined.

Dahlia Lithwick 22:02

Well, you know what I’m thinking just listening to you. I’m thinking like the word at Slate for every one of the sort of failed policy, whatever it was, whether it was the “dumb” Muslim ban. Or you know, the “stupid” attempt, like we kept calling it “stupid Watergate” like it was just artlessly done, you know, badly lawyered, ill-conceived, announced via tweet. Whatever it was, we just kept calling it “stupid Watergate”, and which I think everybody called it but it elides the problem, which is we’re going to get a smart Watergate. When Josh Hawley does it. It’s not going to be with a bunch of third-rate dumb ass lawyers who don’t know how to write a brief or argue something in the courts. And by the way, it’s going to happen with the judicial branch that has been utterly transformed by Donald Trump. So what’s coming next, again, at the risk of sounding hysterical, is that a judiciary that has flipped entirely for our lifetimes with lifetime tenured judges is going to be deciding the stupid Watergates that aren’t stupid. And that really is consequential. It’s not trivial, that the judge that set aside the Lafayette Square claim is a Trump judge. We’re gonna see a Supreme Court that is three Trump judges that determines for the future whether these tiny, authoritarian fascist moves are okay. And the next time they’re not going to be done badly.

Sam Goldman 23:22

I don’t think it’s hysterical. I think that it’s taking a scientific approach and really looking at the track record here. The fact that so much was accomplished, despite the buffoonery, despite the messiness, despite the idiocy, he still was able to take this movement where no one else thus far in the Republican Party has taken the movement. I think that is precisely why anybody who is paying attention, alarm bells should be ringing about what does it mean that there is no justice in terms of accountability? This is now a party that’s completely — I’m speaking about the Republican Party here in case that wasn’t clear — willing and proving able to throw out whatever norms existed, whatever semblance of democracy, declaring any election they don’t win illegitimate and positioning through gerrymandering massive voter suppression laws to guarantee that legally, but preparing to carry it out either way. And I think, as you said, what happens when it’s in I don’t know if smarter is the word I’m looking for, but definitely more polished hands.

Dahlia Lithwick 24:29

And think about the fact that Sidney Powell, Lin Wood, really Rudy Giuliani, you know, lawyers who signed those pleadings, 60 whatever lawsuits, pleadings that would have been embarrassing if a first year law student signed them. Who’s been disbarred? Who’s been disciplined? You know, if clownish lawyers can get away with clownish efforts to set elections aside and there are no consequences, professional or otherwise, then the next set of lawyers who does it are going to be really good at it, because there were no consequences. And so it is an invitation to push further. And you know, what you just said is so true, which is, norms are not ends in themselves. And so when the Justice Department says we want to just restore norms of comity, and trust and bipartisanship and working together, that’s not an end in itself. That’s a means to an end. And the end is democracy. So if you are Joe Manchin, and you’re in love with the idea of bipartisanship, or if you are all due respect, Stephen Breyer, and in love with the idea that we can just hash out our problems in good faith, it is unerringly the case that it seems to be old white guys who are in love with these norms as ends in themselves. And the fact of the matter is, if one of the two teams in this norm reinstatement game has no respect for norms — and that’s what we saw when Merrick Garland was blocked for his justiceship — then what are you doing? You can’t tilt at this fanciful, aspirational notion that if we just on our side, abide by the norms, then they somehow mean that democracy comes back. We’ve seen an object lesson, it seems to me this year, in the fact that there’s one side of this “bipartisan” game that doesn’t care about norms at all, and that actually uses them to continuously pants the people who are trying to reinstate them. So at the end of my piece, I said, I don’t know how you solve the problem of misinformation, and an electorate that no longer believes in elections, and as you said, a party that doesn’t believe that everyone should vote. I don’t know how to solve that, but norms isn’t the solution to that.

Sam Goldman 26:45

I couldn’t agree more with that last part. And I think that one of the lessons from your piece is that this all is inviting, not just repetition, but expansion of this fascist mission. Refuse Fascism has written that “fascism is not just a gross combination of horrific reactionary policies, but a qualitative change in how society is governed, that it foments and relies on xenophobic nationalism, racism, misogyny, and the aggressive reinstitution of oppressive ‘traditional values.’ Fascist mobs and threats of violence are unleashed to build the movement and consolidate power. And what is crucial to understand is that once in power, fascism essentially eliminates traditional democratic rights.” I think that this is what was attempted throughout the four years and brought to life vividly on January 6, with threats to hang the Vice President and real violence, killing of police. And for months, under Democratic Party leadership, a left coalition conspired to keep people in a wait and see mode instead of mobilizing their followers, numbering collectively, which would be in the millions to take nonviolent action that could have shown the world the strength on our side, that there was a force willing to stand up against a rolling fascist coup.

Now we’re months after this attempted coup, and none of the political leaders of the action have been charged with any crimes, only the thugs that were caught on the grounds of the capital. And then, as you said, the members of his regime, maybe you didn’t say this, but I think you might have said it in your piece was that members of the regime press the Department of Justice to wield the power to aid in overturning the election, as we learned about through these batshit crazy emails, were sent to the DOJ like literally like Italian satellites change Trump votes to Biden. Like things that are just ludicrous were sent to the Department of Justice by the Trump administration. And yet, the DOJ hasn’t investigated Trump or any of his henchmen. And so the biggest question that I know, I have and many readers have is why? Why do the Democrats want to bury this under the guise of unity? Why won’t they seek justice knowing the consequences?

Dahlia Lithwick 29:09

I mean, there’s a simple pragmatic answer, which is that the Justice Department is investigating the events of January 6 in precisely the way they would investigate the mob, which is you always go for the thugs first. And you roll them up, right, you get them to turn in the people above them. And in some sense, what we are learning from the massive — I mean, it is a huge dragnet, credit where it’s due, they are still arresting people all around the country who were involved — and surprise, surprise, they are all saying: Yeah, I was completely instigated by the Oathkeepers and these groups. And so you’re right, this looks like it should be a sort of normal prosecution where you roll up the low hanging fruit but I think you’re also right that it’s going to stop at some point, and it’s going to stop at exactly the point that the second impeachment stopped, which is actually holding anyone accountable.

So there’s another simple pragmatic answer. And that was the answer we saw it impeachment, which is there are a lot of claims that are being made by Donald Trump and his impeachment, lawyers and others, that this is protected free speech, that this doesn’t rise to the First Amendment threshold of what is incitement that he didn’t actually say to anybody, I think you should take a brick and break a window and threaten Mike Pence’s life. And so I think you have in some sense, the same problem you have in Charlottesville, which is that there are a lot of kind of absurd, expansive maximalist free speech defenses to the people who in fact, started this and initiated it. So those are the pragmatic answers. But I think your real question is a deeper one, which is, what is this institutionalist imperative to just move on? And why under the name of “unity and institutionalism” and “bipartisanship” is there such a strong urgency to sweep everything under the rug? And I do think that goes back to Obama saying, we’re not going to investigate the torture program under Bush, we’re not going to hold CIA leadership for torture and black sites.

There is a sense, in our lifetimes, I think that that is a political act, that using the Justice Department to go after Trump is no different from what Trump did when he weaponized the Justice Department to go after his enemy. So that’s the sort of theory and it is the theory, I think that you hear when Merrick Garland says things, you know, when he testified before Congress or at his own hearings, where he says things about the need for an independent Justice Department, that doesn’t work for the president, right, this is supposed to be the post-Watergate revelation, that the Justice Department has to be completely disaggregated from the White House, and all the post-Watergate reforms that did that. The problem is, I think, exactly the one that you identified, if you’re in so doing, ensuring there are no consequences for clear criminal acts, then the Justice Department is now complicit in the politicization of the Justice Department. And this theory that we’re gonna draw a line, we’re gonna like, take the etch-a-sketch over her head and shake it and start again, and now we’re clean, and the Justice Department is no longer in the business of political prosecutions, while Roger Stone and Michael Flynn walk free. You are politicizing the Justice Department, you’re just doing it under color of neutrality and objectivity, which as we discussed, is even worse, sometimes than the brazen weaponization of the Justice Department. So I think that’s the theory.

I think that it’s at least somewhat instructive to think about the post Watergate reforms. After Watergate, when it was clear that the Justice Department had in fact, been weaponized by Nixon, Ed Levy comes in, he’s this legendary force. He institute’s all these reforms at DOJ to ensure that never again will the DOJ be, you know, an arm of the White House. And the reason he could do that was because there was a bipartisan sense that something had gone wrong, that Republicans and Democrats knew that Watergate was a sin. We don’t have that now, we have half the country that has no problem with Bill Barr’s Justice Department, and in fact, would do it again at Lafayette Square, would do it again in terms of interference with the election. And so I think we can’t look backward at the ideal of like Edward Levy and what he did to DOJ because those days are over. Now you have half the country that doesn’t think anything bad happened when Donald Trump pardoned all his friends and cronies; doesn’t think anything bad happened when Barr and Trump interfered with sentencing memos. They think that’s great, and that the law is for Democrats. And if you’re a Trump donor, or a friend or a crony, of course, you get a different kind of justice. And so I think that’s the big overarching explanation is that we are trying to do a thing that worked in the 1970s because there was broad popular consensus that Watergate couldn’t happen again. We don’t have that consensus anymore. We have half the country that would happily do Watergate, happily do stupid Watergate, happily do a coup, again. And that’s why you’re seeing I think this disjunction between the ideal, this platonic ideal, of an independent Justice Department and a Justice Department that feels like it is giving cover to the worst excesses of Trump’s criminality.

Sam Goldman 34:44

Personally, I’ve been noodling on like how there is unity amongst the ruling class parties about staying in power; the role of America in the world. There’s a lot of unity there. And I think that the Biden administration is concerned about stability and stability of this empire. I think they feel that in order to maintain that stability, you have to go along with not ripping open things. And I think that it just bears the lesson that we talked about earlier was the other side doesn’t care about that stability. They’re itching for power, and they are looking at the contradictions in the world and saying: No, we’re gonna solve this through a fascist form of rule. We’re gonna respond to all this happening with this different form of rule and we don’t need your stability to do that. So I’ve just been thinking about what’s behind it and trying to understand I mean, I don’t think that in the course of one conversation, we will get to the bottom of it, but I think that there is something to continue to probe.

Dahlia Lithwick 35:53

I agree with you. I think there is this sort of global rise of fascism and of authoritarianism. And I think you’re quite right, that that’s one of the tensions here. I think, also, if you parse where the Biden Justice Department is doing things, right — and I think you have to give them huge credit for taking voting seriously, again, for taking police brutality seriously — you know, things that were absolutely ignored in the Trump Justice Department. And we are seeing the Biden Justice Department reinstating a rule that provides asylum for people fleeing domestic abuse gang violence in other countries. These are serious initiatives. And I think we should give credit where it’s due. Really plaudits for taking seriously, you know, trans youth and issues that have really been serious 180’s that the DOJ has put into effect very quickly. Okay, that’s one bucket. And I do want to give them credit, because I think in that one sense, the parties are not the same. There’s another bucket, and it’s the one you and I are talking about, and that is jealously protecting the prerogatives of the executive branch. That’s E. Jean Caroll, that’s the Justice Department saying: Oh, you know, under the Westfall Act, the President can say whatever the hell he wants to about anything, without consequences, because it’s always going to be under the scope of his employment. That’s insane. That’s an objectively, I think, insane position that the Barr DOJ took for litigation purposes that we have now seen doubled down by the Garland Justice Department. Same thing, I think on some of the immigration rules that they are not backing down from. And same thing for sure, for sure, on the surveillance of journalists and members of Congress, where there needed to be a much more robust response, and there wasn’t. That bucket of things that is we’re going to take very, very seriously this maximalist expansive view of secrecy, right. This is Mueller, too. This is refusing to listen to Amy Berman Jackson and refusing to turn over the deliberations around Mueller report secrecy and obstruction of justice claims. All of that bucket is what the Justice Department as an institution does, which is it stakes out absurd, maximal positions, regardless of who’s in power. And that is Obama and drones, and that is Bush and torture, and that is the place where the line moves. So unlike making sure that transgender teens are protected, making sure that immigrants or migrants fleeing abuse can get asylum, that can go back and forth.

But that second bucket, which is the one you and I are worried about in this conversation, is what happens when you have a system of democracy based on the idea of checks and balances, and each institution staking out crazy maximalist views of its own powers. And so we have seen, certainly in the last century, a complete gutting of congressional power and a ridiculously expansive view of executive power. And that’s the thing the Justice Department is fighting for; that ridiculous executive authority. And so I think that that’s the other lens, that when we have essentially vivisected Congress and its power to act, and then given way too much power to the executive branch, it almost doesn’t matter who’s in power, which party is in power, because what they’re fighting for are these crazy, capacious notions that the executive can do anything it wants. And that’s the bucket that I think you and I are talking about, and it’s the thing in addition to sort of claims about authoritarianism globally, I think that’s the thing to worry about what happens when you have a system that is not checking itself and an executive branch where no matter who the executive is, those are the crazy claims being made and advanced and protected.

Sam Goldman 39:53

I want to thank you, Dahlia, for joining us, for sharing your expertise and perspective and I wanted to give you an opportunity to just share with us anything else that you’ve been thinking about, especially with the Supreme Court and all that they’ve been doing that the last few weeks, if there’s anything in particular that you think listeners should be paying attention to.

Dahlia Lithwick 40:13

As we’re taping this, we’re still a week out from the end of the term. So there’s more cases to come down, there is, I think, a really essential case that’s going to come down about a part of the Voting Rights Act and how you prove discrimination under what’s left over the Voting Rights Act. So there’s a lot coming. And what I would really say to listeners is that the worst is yet to come because next term, the court is going to hear a major gun rights case, they’re going to hear as we now know, a major abortion case that may really drive a stake into the heart of what is left of Roe v. Wade, particularly in the states that only have one clinic. And probably affirmative action coming back to the court next term. So I think what I would say to listeners is that we have gotten very myopic about wanting to fight about whether Stephen Breyer, age 82, should step down. But that’s not the problem. The problem is we need to have very serious thoughtful conversations about court reform, and what to do about not just a Supreme Court, but as we said, lower courts that have really, really been absolutely captured not just by the Federalist Society, but by big money. And I think that thinking that that’s going to be solved by browbeating Steve Breyer into retirement this summer, that’s not the solution.

The solution has to be very, very serious and sober discussions about kind of the fact that we’re going to be living under the dead hand of Donald Trump’s judiciary for a very, very, very long time. And this is where we started. But maybe it’s a good place to end, that that longing for everything to be normal is so acute, when it really really cannot be normal in a country where I think both gun rights, abortion rights, affirmative action, voting rights, and just sort of law of federal agency is all on the chopping block. We have to be able to think about that and talk about that in really brave ways. And I think that’s a good way to spend our summer.

Sam Goldman 42:06

Thank you so much. I think that’s an important way to end. You can read more from Dahlia, including the article we discussed at Slate and a link to her podcast in the show notes. Thanks for listening to Refuse Fascism. If you want to help the show, it’s simple. You can rate and review us on Apple podcast or your listening platform of choice. And of course, subscribe so you never miss an episode! You can chip–in to support the show by clicking the donate button at RefuseFascism.org or Venmo:Refuse–Fascism, CashApp: RefuseFascism, and be sure to let us know it’s off of hearing this podcast.

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