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Over the past seven weeks we have seen equal and opposite reactions along the law-to-lawlessness axis, with the Trump administration ramping up unlawful actions ranging from trying to shutter the Department of Education to terrorizing Columbia University, to disappearing a green-card holder without due process. At the same time, judges and courts around the country are handing out temporary restraining orders and injunctions, and they are reinstating government workers fired without cause. On Saturday night, the equal and opposite reactions reached a constitutional crisis point with D.C. District Court Judge James Boasberg ordering planes carrying hundreds of Venezuelan migrants to be turned around to comply with immigration law, and the Trump administration celebrating their noncompliance. On this week’s Amicus podcast, Dahlia Lithwick turned to Preet Bharara to discuss this law-to-lawlessness axis and the paradox that the law is political except for when it’s not political. Bharara is a former U.S. attorney for the Southern District of New York; before that he was chief counsel to Sen. Chuck Schumer, and he is now a distinguished scholar in residence and adjunct professor of law at New York University School of Law. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Lawyers always live on the line between politics and the law, but I think that’s been especially true for you. Most of your career has been an effort to stay on the law side of that line really mindfully and purposefully, whether that was investigating the U.S. attorneys scandal for the Justice Department or getting jammed by political demands at the start of the first Trump administration. Help me understand whether that line between law and politics is just imaginary, or if in fact what we have learned in the first seven weeks of Trump 2.0 is—that politics is just everything.
Preet Bharara: Any line, whether it’s a statute, a regulation, a guideline, a rule, can be blurred into complete indistinction unless the people who are subject to those lines care about them, and enforce them properly, and inhabit the roles that they’re supposed to inhabit. If there’s a line between this and that, that’s enshrined in statute. If a prosecutor decides they don’t want to prosecute it, then that line doesn’t really matter anymore with respect to the conduct that it attempts to reach. Has it been obliterated? No. Is it being blurred further? Absolutely. Yes.
It has always been popular, and continues to be popular, to make fun of lawyers, to deride lawyers, to denigrate lawyers, and I get that we deserve a lot of what we get. But so many things are dependent on lawyers—trained professionals with access to the courts, who are officers of the court, who act in good faith within the rule of law—no matter what side of the political spectrum you find yourself. If you want accountability, it will take a lawyer. If you want to be made whole, it takes a lawyer. If you want to vindicate your civil rights, it takes a lawyer. If you want to hold politicians to account, it may take a lawyer. If you want to make sure there’s less corruption on Wall Street, it may take a lawyer. If you want to correct a wrong or an injustice, if you want to get someone innocent out of prison—although it may have been lawyers who are the cause of that miscarriage of justice—it will take lawyers to get them out.
I don’t mean to be self-indulgent about the profession, but they are really important cogs in the massive system of law and politics that you describe. How they conduct themselves, how they are monitored, overseen, and on other occasions chilled from doing what they’re supposed to, and what our system needs them to do—that’s all really important stuff.
Now I want to ask you a big existential question.
Should I quote from Camus? The law died today. Or was it yesterday?
That may be where we’re headed. But I’m hearing a lot of people saying words to the effect of “I’m just going to kind of lean back because the courts have got this,” and then that turns into lighting the Amy Coney Barrett and Brett Kavanaugh votive candles. We’re in this paradox, which is related to the law/politics paradox, where we’re too in love with the law as the fix here.
I think it’s hugely important that lawyers are saying “I’m in it. I’m going to fight this.” And so important that we’ve got judges effectively saying to the administration, “Get outta here with your lying lies.” But I wonder if, at the same time, we’re training the public to believe too much that the courts alone can solve this authoritarianism/illiberalism crisis.
What is the role for a public that maybe still doesn’t quite understand that there’s a lot of runway beyond which law and the courts can’t go, and how do we think about that in a moment when the law has surged into the breach?
This answer may not endear me to anyone. There was a time for that, and it was called the 2024 election. I said repeatedly, as did others, that the cases involving Donald Trump are important, and the rule of law is important, but there’s a mass of people in the country who looked at the legal process—whether it was the Manhattan DA’s case or special counsel Jack Smith—as a replacement for the ballot. They believed those cases were going to be manna from heaven, and would be their saviors, when that could only happen at the ballot box. And it failed at the ballot box.
We just talked about these lines in the law, and how the lines don’t matter if people don’t observe them, that they’re not self-executing. What causes people to observe the lines is the public’s reaction. In other words, if the public lets it slide that a senator from their state, who may be Republican, doesn’t exercise his or her constitutional authority as a member of a coequal branch of government to do the right thing, then the law tends not to matter.
The second impeachment of Donald Trump was a legal proceeding. It was a constitutional legal proceeding, and there were rules and there were precedents, and I believe, truly, if there could have been an anonymous vote, Trump would not have been allowed to return to office. But they fell a few votes short. You can blame the senators if you want, but I think there’s an argument that you’ve got to look deeper. It seems to me that this is the great worry that your question presents: Even if the courts rule a certain way that’s consistent with the rule of law, and protective of American democracy, and the interests that are at stake in a particular case, if that decision is ignored, we are in the shit. But if there’s hell to pay for ignoring a judicial order, then it won’t be ignored. If everyone is going to be thrown out of office, if there’s going to be a landslide victory in the opposite direction (which is what I would think should happen), then the orders aren’t ignored.
That’s why I’m worried about all these attacks on judges and calls for impeaching judges they don’t like, or demands for other kinds of limitations on the courts. I worry that some of that is an intentional or unintentional testing of the waters to see: “What would happen if a judge rules against us and we don’t want to listen to it?” If the public doesn’t care, if the public’s not going to turn people out of office, if senators are not getting mail, they’re not getting phone calls about it, then it can be done. People have to pay attention. People can’t tune out. People have to be involved and they have to make their anger known.
We started this conversation saying “All of law is politics, except when it’s not.” But now you’re making me think of the fact that confirmation hearings are quasi-legal, quasi-political actions, so was the impeachment, and so are these intensely political legal cases arising from all the executive orders and actions. All these are very much both legal and political. And I think that the space in which the public has to really get in the game is reckoning with the fact that this is not a situation in which the public’s role is to just sort of lay back and let the judges handle this. There is actually learned helplessness in asking the question “Is this a constitutional crisis?” And then, “I’m going to wait for a law professor to tell me if it is.” Right?
Look, the fields are empty this time around. I’m not blaming anyone. I’m not casting aspersions on hardworking folks who have had enough, but the fields were full of protesters the first time out. You don’t have that now.
You’re not the first person who has used the term learned helplessness. Abraham Lincoln said, and Nancy Pelosi cited it all the time: “With public sentiment, anything is possible. Without it, nothing is possible.” That goes gangbusters for these issues too. The reason why these Republican senators are so craven is because they know that the opposite reaction will happen, that the people in their district will rise up if they take a position contrary to Trump. That’s why Liz Cheney lost by like 4 billion votes, even though there were not 4 billion people in her district. The power imbalance was that more voting humans were prepared to throw out someone like Liz Cheney than keep Liz Cheney in, for the sin of pointing out (honorably) the legal, moral, and constitutional failings of the sitting president of the United States. So long as that continues to be the case, we’re in trouble.
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