Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Melissa Murray:

In my view, the Court has to be part of our electoral politics, even if we want to maintain this fiction that the Court is not part of politics. Court is part of our political system, and we need to think about it in those terms.

Preet Bharara:

That’s Melissa Murray. She’s a leading expert in constitutional law, family law, and reproductive rights. She’s also a professor and colleague of mine at the New York University School of Law, and she’s co-host of the podcast, Strict Scrutiny. The Supreme Court is now nearing the end of its annual term, entering the period in which many of its most consequential opinions will be handed down. Just last week, the Court struck down a federal ban on bump stocks, a device that effectively transforms semi-automatic rifles into machine guns. Melissa Murray joins me this week to discuss the bump stock decision, and also the high Court’s history, its public legitimacy, and its future. That’s coming up, stay tuned.

Q&A

Now, let’s get to your questions. This question comes in an email from Dan, who writes the following, “While it’s admittedly jumping the gun, I have a question about standing,” which is something that we talk about a lot, with a possible attempt at a Trump self-pardon should he win the election, who would have standing to bring the matter to court? Doubt individual citizens would have legal standing. Not really an issue for state’s attorneys general, would it fall upon the House and or Senate Judiciary Committees to bring that action? Please let me know your thoughts. Longtime fan of each of your podcasts and commentary. Keep up the good fight.” So Dan, that’s an interesting and semi-complicated question. So I take your question to be, if Trump gets re-elected, and there’s a matter with respect to which he self-pardons, whatever that means, we’ll come to that in a moment, who would be able to challenge the legitimacy of that self-pardon?

If that’s your question, I’m not sure that will ever come up. First of all, he has no ability to pardon or self-pardon. As the case may be, in connection with the case that Alvin Bragg’s office won against him, the convictions they won, the 34 count convictions, because that was done in the state court, notwithstanding some crazy arguments that are being made by Vivek Ramaswamy and others, no way, shape, or how can Donald Trump, even if he had the ability to self-pardon, in any case, could he self-pardon in a case brought by the Manhattan DA’s office. By the way, that same principle goes for the pending case that seems to be derailed for at least for a little while in Georgia. Trump has no ability to pardon someone, including himself, in a matter that took place in state court.

Then we have the federal cases, two pending, one in district court in Florida and one in district court in DC, neither of those cases, I believe, will have happened and concluded before Trump would take office again, if he won re-election. So what would be the point of self-pardoning? I guess, prophylactically, he might think about self-pardoning so that he couldn’t be prosecuted, but a simpler and easier way to accomplish that is by simply directing his justice department to abandon the prosecution and seeking a dismissal of the case. Now, I guess it’s possible that the judges in those cases could say, “We’re not dismissing these cases because we think the dismissal is being sought in bad faith.” We’ve never seen that, I don’t have any experience with that. It would still be an odd thing to not dismiss a case and then expect federal prosecutors, who are within the executive branch, and presumably subject to control and direction even though it’s contrary to the norm, and contrary to I think good policy, but presumably, subject to direction from the President of the United States and his Attorney General, they simply wouldn’t pursue the case.

So a self-pardon would be unnecessary. Now, engaging in the hypothetical, which is, I think, a very extreme hypothetical, that federal prosecutors continued to pursue a prosecution of Donald Trump, notwithstanding his order to do otherwise, or suppose that Donald Trump wanted prophylactically to not only instruct his prosecutors to drop those two cases, but also for the purposes of being immune from prosecution, should the statute of limitations still be viable, or should the statute of limitations have been told for once he gets out of his second term, and to prevent prosecution by a new set of prosecutors under a new attorney general and under a new president? I guess in that circumstance, he might want to self-pardon. Now, the way this gets raised in that far-fetched and long-term scenario is not based on a private citizen or a state attorney general arguing that they have standing to challenge the self-pardon.

It would be in the course of, presumably, the criminal case that would be resurrected, if it’s permitted to be resurrected, that the prosecutors are bringing against, once again, former President Donald Trump, and a court would decide whether the case should be dismissed on the strength of the purported self-pardon. Now, there is a very strong constitutional argument that is contained in one of the Office of Legal Counsel’s opinions, not at great length, but there was some concern that Richard Nixon, back in 1974, might attempt to self-pardon, a preemptive self-pardon, and the OLC opinion simply says, “That’s not possible,” on the old principle that no man can be a judge in his own case. But there’s not a lot of analysis, it’s never been addressed by the courts as far as I know. So I guess, in that narrow scenario, in which Donald Trump becomes president again, so he’s in a position to at least try to pardon himself, I guess that’s how it comes up.

This question comes in a tweet from Ben, who writes, “How confident are you now, versus when Trump first came to office in 2017, in the ability of our institutions to constrain an aspiring autocrat? I recall you being pretty optimistic when he was first elected.” Well, Ben, I think this is a centrally important question, not my view and not my level of confidence, but the central question of whether an aspiring autocrat like Donald Trump could be appropriately and properly constrained in the second term. Now, I don’t remember if I was optimistic, but I had hope, at least, at the outset, that our institutions, longstanding institutions, the three branches of government, the Fourth Estate, the press, would be able to hold Donald Trump accountable and prevent the worst possible things from happening. And I think that was largely the case. Now that we’re, at some, removed from the first administration of Donald Trump, I think it was a disaster. It was calamitous in a lot of ways.

I thought his handling of COVID was calamitous. I thought his treatment of our allies was terrible. I thought the way he undermined the rule of law, the way he interfered with the Justice Department, the crimes that he committed while he was in office, one of which he’s been held accountable for, all terrible, all damaging to the country, all damaging to the reputation of the country, and all damaging to the prospects of democracy in the country. But at the end of the day, held to one term and replaced by Joe Biden, the institutions largely held. The press, though criticized and called fake news, largely held. The judiciary, now populated with some people who don’t deserve to be on the bench, and the Supreme Court, packed with three of his own appointees, lurching further and further to the right for a long period of time, that may endure for years and years, still, has held, I think, as institutions. Subject to legitimate additional criticism, but they’ve held.

The Senate, by the way, remains in the opposing party’s hands. So the Senate is held. So I believe now, as I believe at the end of Trump’s first term, that the country could withstand that one term, and could heal from that one term, and could get back on the path of judicial independence, prosecutorial independence, repair relationships with allies. And I think we’ve done a lot of that. My level of confidence, with respect to the constraints that will be in place, or possibly put in place on Donald Trump in the second term, is considerably lower. Now, why is that? In part, because Donald Trump has learned his lesson. He saw the kinds of constraints he had that didn’t allow him to do the things that he wanted to do, using the troops, for purposes that they’re not supposed to be used for, using the Department of Justice, for purposes that it’s not supposed to be used for, namely, to deal with his own adversaries.

And you name any part of the executive branch that he wants to use for himself, he’ll be in a better position to do so because he will, above all else, appoint and put in place personnel who are deeply loyal to him, not to the Constitution, not to their obligations of office, not to their oaths, but loyal to him. From time to time, Donald Trump, in the first term, appointed people who had some scruples and had some limits, including Bill Barr, who I thought was a terrible attorney general of the United States, but at the end of the day, wouldn’t do certain things. Vice President Pence, who I think also not a particularly good… and representative Vice President of the United States, but at the end of the day, wouldn’t do certain things, wouldn’t overturn the election. Attorney General Jeff Sessions, who was not a Platonic ideal of an attorney general, but at the end of the day, wouldn’t do certain things, he recused himself from the Russia investigation. That’s the thing that earned him the ire of Donald Trump and got him fired prematurely.

He’s not going to have people like that anymore. He will only appoint and put in place, in the White House and everywhere else, to the extent he can, people who will do whatever he asks, whether it violates a norm, violates the statute, or violates the Constitution. We saw people attempting to do that, most notably on January 6th. He’ll make sure that he has such people in position, that’s what Project 2025 is all about, and you’re going to be hearing me and others talk about that a lot more. It’s basically a project that’s based on his feeling of grievance, and agitation, and vengefulness, that will feed, rather than constrain, his aspiring autocratic tendencies. He will also believe, by the way, if he’s elected, that he will have the mandate to do all these things, and to restrict freedoms and to undermine democracy, because he’s broadcasting all of these intentions.

It’s not like he’s hiding his plans to undermine democracy. He’s stating them loudly, clearly, audibly, and if he gets elected, he will believe and he will say, “That’s the mandate from the people,” to enact these policies, and to do away with longstanding norms of independence of the judiciary, of the independence of the prosecutorial function, and all sorts of other things. So I will have a lot more to say about this subject and the set of subjects that’s implicated by your question. But no, I’m not confident that our institutions will be able to constrain Donald Trump’s autocratic tendencies if we make the mistake of electing him a second time. I will be right back with my conversation with Melissa Murray.

THE INTERVIEW

Legal scholar and professor, Melissa Murray, breaks down recent Supreme Court decisions and the power of judicial review. Melissa Murray, welcome back to the show.

Melissa Murray:

Thanks for having me. It’s great to be back.

Preet Bharara:

So there’s a lot going on in a lot of different places, a lot of different courtrooms in the country, and we’ve been covering all of those things, but there’s a particular courtroom, the Supreme Court courtroom, where oral arguments have been happening and decisions have been issuing. And I thought we would have you on, your perfect guess, to do a couple of things. One, talk about a recent Supreme Court case that we haven’t yet really discussed at length dealing with guns, but then also, zoom back and explain to folks in the season of opinions just how the Court works, how it functions, why it operates the way it does, what our system is set up to do and not do. And I’m going to come to most of those questions in a moment, but my first question that lay people might have is, what is with this waiting until the last minute? Are the Supreme Court justices like… like I was in college and you have a whole year of class, and you study for everything, or you write all your papers at the very last minute. Why this torrent in June?

Melissa Murray:

It’s a bit misleading to focus solely on what’s happening in June, because in truth, the Court is hearing cases all throughout the year. They begin on the first Monday in October, their last oral argument hearing was on April 25th of this year. And they have been releasing opinions, sort of, at a steady clip, a couple here, a couple there. But the torrent, as you say, really does come toward the end, and it’s usually in the big ticket cases, which is why I think the end of the term, the June decisions really loom large, and make it seem like they’re spending a lot of time procrastibaking, or something like that. But they are actually working-

Preet Bharara:

That’s a thing?

Melissa Murray:

Well, according to my children, it is a thing, and I’ve seen them do it. So they are working, and they’re working steadily, and the Court’s docket, the merits docket, is only one aspect of this. So there have been a lot of decisions on what’s known as the shadow docket or the emergency docket, and those have come out as well. So I think you have to think of the Court as a holistic organism and think about the workflow throughout the whole year, even though this is perhaps the most visible part of that workload.

Preet Bharara:

Well, you just used a phrase that is a good segue to my related question, you said, “The whole year.” As I understand it, the Court doesn’t work the whole year. And some people might be asking the question, what is up with having the summer off? Most people don’t get the summer off. Even other folks in the judiciary, the district courts, the trial courts, I don’t think in the Southern district and elsewhere, they take the summer off. Is it so people can go on folks’ yachts?

Melissa Murray:

Well, Preet-

Preet Bharara:

I don’t want to be snarky.

Melissa Murray:

Well, you didn’t mean to be, but there you were. They’re living a kind of law professor lifestyle. And I’ll say, law professors do actually work in the summertime, it’s probably where I get the bulk of my writing down. I don think the justices-

Preet Bharara:

You sound a little defensive.

Melissa Murray:

Well, I’m just making clear, I’m not sipping on Martha-Ritas or Ginny Tonics during the summer all summer long. But yeah, they go off and do other things. A number of them will go on foreign junkets or boondoggles for law schools, where they-

Preet Bharara:

Sometimes paid for by billionaires, right? That was intentionally snarky.

Melissa Murray:

That was intentionally snarky. There has been reporting that Justice Gorsuch, for example, did go on a junket with a law school to Italy, and apparently, the whole trip was, “Fantastico,” according to Justice Gorsuch. So yes, that does happen, they fly the coop as soon as the term is over. Many of them will go back to the places where they had their principal residences before becoming justices. So that might mean, for example, Neil Gorsuch goes back to Colorado. Right now, so many of them are located in the Acela Corridor, that it doesn’t really mean much to go back, but for a long time, David Souter would leave as soon as the term was over and flee to New Hampshire, where he lived by himself in a farmhouse. So that’s the kind of thing that happens. But you’re right, the judges of the lower federal courts, and certainly, the judges in state courts, they’re working around the clock and their dockets are not discretionary in the way that the Supreme Court’s docket is discretionary. They have to field a diet of cases without real respite throughout the year.

Preet Bharara:

So I want to come back to how the Court functions, or not functions, in the minds of some critics, but I want to talk about this gun case, dealing with what you’ll explain to us once again what a bump stock is. But the case is called Garland v. Cargill, it came out at the end of the prior week. It’s a very fascinating case about whether or not ATF, through an executive order, can ban the use of a bump stock, which, to put it very briefly, is a thing that converts a semi-automatic weapon into, and then this is where the argument takes place, into effectively an automatic weapon, effectively into a machine gun. And then there’s a lot of debate, which we’re going to get into, about whether or not it does turn it into a machine gun or not, and machine guns have been unlawful to possess for some time now in the United States. So a lot turns on that question. But before we get to that, could you remind people the context in which that rule was adopted?

Melissa Murray:

Sure. So many of your listeners will remember that the deadliest mass shooting in the history of the United States to date occurred in Las Vegas on October 1st, 2017. On that day, Stephen Paddock checked into two rooms on the 32nd floor of the Mandalay Bay Hotel, and later that night, he broke the windows in both rooms and opened fire on the crowd at the Route 91 Harvest Music Festival, which the hotel overlooked. And Paddock, by himself, ultimately fired over a thousand rifle rounds into the festival audience. And the gunfire was so rapid that many people in the crowd actually mistook the gunfire for fireworks. And that was because, although he was a lone gunman, Stephen Paddock had a semi-automatic rifle that had been outfitted with a bump stock. And a bump stock is, as you said, an attachment that gets fitted to a rifle that allows it to distribute bullets at an incredibly rapid pace.

Indeed, some argue, and that, again, is the crux of this case, that it actually converts a semi-automatic weapon into an automatic weapon, a machine gun. Amidst public pressure to address the shooting and the use of bump stocks to convert semi-automatic rifles into these incredibly deadly weapons, the Trump administration’s ADF issued a rule concluding that bump stocks are machine guns for purposes of the National Firearms Act. And the National Firearms Act was first passed in 1934, and it outlawed the use of machine guns. And it defined machine gun as any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading by a single function of the trigger. And that last phrase is really pivotal in this case. That definition of a machine gun was subsequently expanded under the Gun Control Act of 1968 to include, within the ambit of the term machine guns, any part that can be used to convert a weapon into a machine gun.

So ironically, the very pro-Second Amendment Trump administration included, within the ambit of the definition of machine gun, these bump stocks, on the view that per the amendments in 1968, these parts that can be used to convert a weapon into an automatic weapon made bump stocks machine guns for purposes of the National Firearms Act. So that’s the statutory context. Michael Cargill, who is a gun shop owner in Texas, surrendered his bump stocks as he was directed by the ATF. The new rule that ATF passed required anyone who owned or possessed a bump stock to destroy the bump stocks, or alternatively, to drop them off at the ATF office to avoid criminal penalties. And he did that. However, with the backing of the New Civil Liberties Alliance, and this is an advocacy group that has financial ties to the Koch brothers, he decided to file a lawsuit challenging the ATF’s rule, and he won that lawsuit in that case, Cargill v. Garland. And that’s where we are.

The Court, in a 6-3 opinion that fractured along predictable conservative liberal lines, with Justice Thomas writing the majority opinion, concluded that the ATF’s rule defining a bump stock as an attachment that created an automatic weapon, that it was an improper interpretation of the statutory language and therefore invalid. And this opinion as a practical matter now puts bump stocks back in the hands of anyone who would like to convert a semi-automatic weapon into something that fires more rapidly.

Preet Bharara:

So just to be clear, this case, even though it deals with guns, generally speaking, when we have a gun case in front of the Supreme Court, the debate, and the controversy, and the discussion centers on the Second Amendment. This is not really a constitutional question, it’s a question of what a machine gun is, correct?

Melissa Murray:

That’s right. To be very clear with your listeners, there is a kind of interesting Venn diagram here, so no, it is not formally a Second Amendment question, but it does marry the conservatives’ love of the Second Amendment to their antipathy for the administrative state. So at bottom, what the Court here did was determine that this agency, the ATF, had improperly acted, had gone beyond its statutory mandate. And that’s something this Court frequently does with regard to agencies. We’re going to see more of that as this term continues, but here, it’s layered onto this sort of Second Amendment valence, but it is not, as a formal matter, a Second Amendment case.

Preet Bharara:

As you describe, and as I’ll read a passage to you to further elaborate on, it’s pretty technical, this issue of what makes a machine gun, what doesn’t make a machine gun. And then there’s a great quote from Justice Sotomayor’s dissent, which I will quote from in a moment. But going back to your definitional point, a machine gun is defined as any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading, and the key phrase, as you already said, “By a single function of the trigger.” And then you have Justice Thomas, in multiple sentences throughout the opinion, talking about what it means for there to be able to be fired a shot by a single function of the trigger.

And Justice Thomas writes, “With or without a bump stock, a shooter must release and reset the trigger between every shot, and any subsequent shot fired after the trigger has been released and reset is a result of a separate and distinct function of the trigger. All that a bump stock does is accelerate the rate of fire by causing these distinct functions of the trigger to occur in rapid succession.” Then he goes on to say, “Nothing changes when a semi-automatic rifle is equipped with a bump stock. The firing cycle remains the same between every shot. It goes on and on. A bump stock does not convert a semi-automatic rifle into a machine gun any more than a shooter with a lightning fast trigger finger does.”

And the point of my reading all of that is just to give the audience a flavor of how concrete, and detailed, and technical the debate is over what is or is not a machine gun. Is that the right way for the Court, and the majority of the Court, to have been thinking about the question… Just as a mode of analysis and reasoning, you might disagree with the conclusion, but is that the right way for the Court to have been thinking about it?

Melissa Murray:

So it’s a statutory interpretation case. They’re thinking about the text of the statute, the statute does speak of this single function of the trigger, and as a textual matter, that’s what it should be thinking of. But I think there are other values at stake. Again, you can’t interpret text for the purpose of rendering some absolutely bonkers outcome or conclusion, and I think this is the point that Justice Sotomayor is making. If you think about the animating principles behind the Firearms Act of 1934 and then the subsequent amendments in 1968, you get a sense of what Congress was trying to do, and that context is really important for understanding what the text means. This is just a textual analysis that Justice Thomas does, and he presents it as very technical.

This is sort of textualism combined with popular mechanics. There are six figures showing the trigger here, and apparently, these six drawings of the gun trigger were lifted from some Second Amendment enthusiast website. So he’s basically including gun porn in the decision. But I think you can’t focus solely on text without also thinking about the context. And I think that’s what really characterizes the dissent opinion here.

Preet Bharara:

Yeah, because the point of the ban… and we can talk about the language that was used and parse it further again if we want, the point of the ban was not to allow in the hands of ordinary citizens some firearm that could devastate at an alarming rate, whatever these numbers are, 400 to 800 rounds per minute, which a bump stock can cause, as I understand it, a semi-automatic weapon to do. And so how do you divorce yourself from the underlying purpose of the ban in the first place? And I’m going to quote this for you, and then I want you to go on further on Justice Sotomayor’s view of this, joined by her two colleagues, “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.” Is that fair?

Melissa Murray:

Well, I think it’s fair here, when I see something that’s-

Preet Bharara:

Not as it relates to ducks alone, but also to machine guns.

Melissa Murray:

I think that’s what she meant, and I think she’s thinking about the purpose of the statute. The statute was enacted in 1934 to combat mafia violence, like mob violence and the use of machine guns in mob killings. And if you watch The Untouchables, you have a sense of what she means, think of those circular guns that just fire off like Gatling guns and whatnot. And then in the 1960s, when they subsequently amend the law, there’s a lot of debate about what sorts of attachments transform a weapon into a machine gun. And in fact, as Justice Sotomayor points out in her dissent, the term, function of the trigger, which is so pivotal to the majority’s conclusion that a bump stock is not a machine gun because it doesn’t create a automatic response, that term was actually proposed by the president of the National Rifle Association, the NRA, during a hearing on the National Firearms Act and these proposed amendments.

And in that hearing, the president of the NRA emphasized that a firearm which is capable of firing more than one shot by a single pull of the trigger, a single function of the trigger, is properly regarded as a machine gun. And that definition, as enunciated by the president of the NRA, would seem to encompass a bump stock where you pull the trigger, but the bump stock itself allows the motion to propel more and more bullets. It’s like budding up against the shoulder. Justice Thomas says there’s just one single push, but you have to keep hitting the shoulder in order for this to have this automatic response, that’s not a single function of the trigger. But Justice Sotomayor is saying, “No one’s saying that you have to hold onto the trigger the whole time.” But that’s the whole point of a bump stock, you pull the trigger once and it keeps going. That’s the single function of the trigger.

Preet Bharara:

As I mentioned to you earlier, at the beginning of the week, we had, as a guest on Stay Tuned in Brief, our colleague Trevor Morrison, former Dean of NYU Law School, so this is-

Melissa Murray:

I know him.

Preet Bharara:

This is not Infrastructure Week, but it might as well be, it’s NYU Law School Week, and he talked about the mifepristone case, and went so far as to attach a grade that he would give as a law professor to the legal reasoning of the lower courts in that case.

Melissa Murray:

Oh, that was an F, for sure. If it wasn’t an F-

Preet Bharara:

He said, “It would be the lowest possible grade.” And I said, “Oh, you mean, an A minus?” Making a reference to grade inflation in our schools and universities in the country. But how would you grade… because in some ways, I don’t mean to get off track here for a moment, it’s a super interesting law school question. There’s this issue of statutory interpretation, is it a machine gun, is it not a machine gun? And if you got a paper that argued it the way that the minority did, which, I take it, you and I agree with, and is the better, I think, decision and interpretation, assume you would give that an A or an A minus, what grade would you give the other point of view? Is it a reasonable but less good view, or is it a flunk of a view as well?

Melissa Murray:

I think it’s a pretty poor view. I think it’s, again, really straining the statutory language… and again, straining credulity to fit this into a definition of not a machine gun. I think that’s why you have all of these figures and drawings of guns, like it’s super technical and ordinary mortals can’t understand it, but I understand it, and here’s why I understand it, here are these pictures. When in fact, I think it’s a pretty reasonable interpretation of the statutory text to say Congress wasn’t necessarily interested on whether you’ve got to keep pulling… you have to pull the trigger and then pull the trigger again. They want to know that the minute you pull the trigger, that bump stock is going to continue firing bullets, that’s what makes it an automatic weapon, that’s what transforms the semi-automatic rifle into an automatic weapon, into a machine gun-

Preet Bharara:

The whole point of this is because of the harm that it does, and that Congress thought was undue harm. So I guess the argument would be, in part, to overly focus on what the thing looks like, and how it’s touched, and how it’s used, at the complete expense of the idea that the consequences and the harm, whatever the structure is, whatever the trigger is, whatever the mechanism is, that Congress wanted to, and if can reasonably interpret it this way, should be interpreted this way, wanted to prevent the incredibly rapid fire shooting of a weapon. Correct?

Melissa Murray:

I think that’s right. Conservatives emphasize over and over again that their commitment to textualism is about giving the plain language of the text meaning, and here, it just felt like Justice Thomas was over-reading to some degree, really trying and straining to make clear that this bump stock, which everybody knows in Las Vegas literally sounded like an automatic weapon, was not an automatic weapon, was not a machine gun. And I think that’s the kind of BS Justice Sotomayor is trying to call out in her dissent. We know what the purpose of the statute was, we know how they wrote this, and what they were trying to do, that’s the plain meaning, that’s textualism.

Preet Bharara:

So I’m going to give you a couple of wrinkles on that in a second, but first, I want to ask you, as you were speaking, it was occurring to me that when a case hinges on and turns on statutory interpretation, and there’s a better version of that textual analysis and a lesser version, but a straight face version, and I’m not sure you’re prepared to go so far as to say the majority does that, and this goes back to a point you were making a short while ago about the Second Amendment, is it your view that some justices from time to time are influenced by their policy preference and make a textualist argument that somehow coincidentally agrees with their policy preference because that’s where they want to be?

Melissa Murray:

I think that’s certainly part of what may be going on here. I think as a broader matter though, this is a Court that seems really bent on making Congress be granular and specific in how it writes statutes. We see this certainly in the context of administrative agencies. Administrative agencies are these features of the executive branch, and Congress delegates certain authority to administrative agencies and statutes, and that’s been fine for many, many years. Certainly, since the New Deal, Congress can write a broad statute and charge the agency with administering it, and the agency has broad authority to enforce that statute, to act on it. And more recently, this Supreme Court, the Roberts Court, is taking a real dim view of that and has really required in different cases that Congress really speak with specificity. And we saw this in the student loan relief case, Biden v. Nebraska, the fact that the Heroes Act, under which the Biden administration promulgated its student loan relief plan, because it did not speak to, specifically, the question of waiving student loan obligations, there was no role for the Department of Education to play in doing so.

Even though the law says that Congress can waive or modify existing obligations, they’re like… Congress can alter or modify existing obligations, and the Court was like, “Nope, nope, nope. Didn’t say you can waive them, so therefore, you can’t.” We’re seeing this over and over again. And I just want to flag for your listeners that when the Court hamstrings Congress like that, that is an aggrandizement of authority to the Court, it’s arrogating authority to itself. If Congress has to be granular and specific about everything, then they’re going to have to be passing laws all the time. You can’t just write legislation like the Clean Air Act in the 1970s and expect it to address problems that arise in 2024. Congress always has to be acting, and we know in this incredibly polarized environment that getting Congress to act is a false errand at this point, which means that in the void, if there’s no legislation and you can’t use the old legislation to address new problems because it’s not granular enough, well, then who gets to decide? Not Congress, not the executive, it’s the Court. And so that is-

Preet Bharara:

[inaudible 00:34:25].

Melissa Murray:

Exactly, and it’s an arrogation of authority to the Court. That is why the Court has become perhaps the most powerful branch in our government right now-

Preet Bharara:

Oh, you’re anticipating a question.

Melissa Murray:

Well, I’m teeing up for you.

Preet Bharara:

I’m going to ask you in a few minutes.

Melissa Murray:

A minoritarian institution that wields outsized power and continues to arrogate power to itself.

Preet Bharara:

I’ll be right back with Melissa Murray after this. So here are a couple of wrinkles that are suggested by Thomas’s opinion, with respect to this point that you and I have been making, one is, we seem to be saying that the plain language of the statute is consistent, with bump stocks being viewed and deemed as converting a semi-automatic weapon into a machine gun. However, the ATF did not adopt that interpretation. They didn’t adopt the interpretation that we are now suggesting is appropriate and reasonable. Is that a problem or not?

Melissa Murray:

I don’t know that it’s a problem. He notes that it’s not until 2018 that the ATF made this change, and that it did so amidst real public pressure to address the problem of bump stocks. But for a very long time, the ATF just hadn’t done research on bump stocks, how they operated. And this was raised at oral argument, and the Deputy Solicitor General, Brian Fletcher, noted this. They have been talking about this. They were making moves to maybe promulgate new regulations, but part of the reason why it had not acted well before 2018 is that they simply had not been doing the research on this. And as it became more of a public policy concern, that’s when they began investigating it. And then of course, Las Vegas made it much more urgent.

Preet Bharara:

Their point is, I guess, in part, that if it’s so obvious, why do we have to promulgate a new rule? And I think you have an answer to that.

Melissa Murray:

Well, that’s a point that Justice Sotomayor makes in her dissent. It’s true because it was obvious that this did transform, and therefore, that’s an open question, and people should have known that bump stocks were machine guns for this purpose. But then after Las Vegas recognizing it, they were sort of, “Let’s just be very clear about this. We’re defining this to be within the ambit of the statute.”

Preet Bharara:

Here’s another way in which I thought the opinion was interesting. There’s this passage here in the Thomas opinion, he refers to Senator Dianne Feinstein… to remind everyone, the late Senator Feinstein was a champion of gun regulation and against gun violence. She came to prominence and popularity in California after a devastating shooting in San Francisco, when she was a junior office holder, and has been and was one of the principal voices in favor of The Assault Weapons Ban. So she’s someone who has her bona fides on the progressive side on this issue, and she’s, per Thomas, “Senator Dianne Feinstein, for example, warned that ATF lacked statutory authority to prohibit bump stocks, explaining that the proposed regulation hinged on a dubious analysis, and that the gun lobby and manufacturers would have a field day with ATF’s reasoning in Court. She asserted that legislation is the only way to ban bump stocks.”

And my question is not necessarily do you agree with that or not, this is not directly relevant to the legal reasoning or the textual analysis, what do you make of the inclusion of that passage about Senator Feinstein in the majority opinion?

Melissa Murray:

Well, it’s sort of, “Dead women tell no tales.” We saw this in Dobbs as well… No, I am being very serious. We saw this in Dobbs, where Justice Alito marshaled Justice Ginsburg’s earlier writings about Roe v. Wade to press the point that the earlier decision, Roe v. Wade, was improper. And there’s no context for that. Yes, Justice Ginsburg had been critical of Roe in the past, but her criticism of it was maybe the Court got out too far ahead of the people, but more precisely, she argued that it should have been decided on equal reduction grounds rather than privacy grounds. That doesn’t make its way into the opinion, nor does the fact that for the rest of her time as a member of the Court, Justice Ginsburg was a steadfast supporter of reproductive rights and helped stanch all of the conservative’s efforts to limit access to abortion while she was a member of the Court. All of that’s missing. She’s just pawn though deployed in that opinion to shore up the conservative’s view that Roe v. Wade was wrong and should be overturned.

And I think the deployment of Dianne Feinstein, the ghost of Dianne Feinstein in this opinion, is doing similar kind of work. She was a stalwart advocate for gun regulation. She did come to prominence in San Francisco after the assassination of George Moscone and Harvey Milk. And she spoke out throughout her career as a public official, certainly as a senator, in defense of gun regulations. And she did say that Congress would be the best conduit for passing this regulation, but that doesn’t necessarily mean that she herself viewed the regulation as an impermissible interpretation of the statute. She was simply noting that the gun lobby was going to have a field day with it. And they sure did. That is why this Koch brothers finance network, The Alliance for Civil Liberties, decided to finance Michael Cargill’s lawsuit, because they wanted to have a field day with it. And she knew that. And I think pointing that out doesn’t mean that this was a completely cockamamie interpretation of the statute. This is a Trump administration, ATF-

Preet Bharara:

That is worth repeating. You can say that one more time.

Melissa Murray:

The fact that the Trump administration was like, “Oh, wow, this many dead people is a real problem for the bump stocks,” I think is worth thinking about. And so, yes, maybe Congress promulgating a specific statute to identify this. But again, going back to the practical reality of what it means to pass legislation in this moment, in this country, yeah, maybe it does make sense to have an executive order interpreting a statute because real action is needed right now.

Preet Bharara:

So that’s a great segue to some of the broader, higher level questions that I wanted to talk to you about. It’s very facile thing, as you pointed out, for justices generally, and specifically conservative justices in this case and in some others recently, to say, “Hey, not our job. The statute says what the statute says. If you want a different statute or a different rule, Congress can pass it.” But in the context of gridlock and the difficulty of passing any kind of legislation, much less controversial legislation, that mechanism doesn’t necessarily work. So my starting question to you on these points is, did the founders anticipate a level of gridlock that make these proclamations about, “Let the Congress decide,” super ineffective and meaningless? And if they didn’t, had they anticipated the moment that we’re in now, do you think they would’ve wanted a different structure and a different role for the Court?

Melissa Murray:

So the point that you make, Preet, is exactly the point that Justice Alito makes in its concurrence to the majority opinion. He basically says, “Hey, there’s a whole separate branch of government here that’s actually charged with writing laws, and maybe they should just write a law that prohibits bump stocks.” And again, it feels a little gaslighty because Justice Alito, probably better than anyone, understands what the realpolitik of this moment is. Congress is not going to write a statute and pass a statute that prohibits bump stocks, and certainly not in an election year, and certainly not with all of that NRA money on the line. So at this moment, the idea of Congress stepping in to do something is pretty much nil. If a different Congress stepped in to do something, like maybe after this election, if the Democrats won control of both houses decisively, maybe something would happen.

But here’s the rub, Preet, this Court would still be in existence. And that statute banning bump stocks would certainly be challenged and it would certainly get to the Supreme Court, where we have these six superconservative, super right wing, gun enthusiasts, Second Amendment nuts waiting to invalidate a law because they’ve actually expanded the scope and substance of the Second Amendment over the last 15 years. And I guess, I’m just like, “This is another part of the power grab.” The void of Congress not being able to do anything arrogates power to the Court. But even if Congress were to do something, this Court can still act on its own public policy preferences, and in fact, it does.

Preet Bharara:

So let’s go back to the beginning. You said the word and the phrase power grab. There was a case that we all learned about in the first year of law school called Marbury v. Madison. Could you explain to folks, either by talking about that case or otherwise, why it is that the judiciary, and within the judiciary of the Supreme Court, has the final say on what the law is, and what the law means, and how the law can be interpreted and used if it’s just a co-equal branch of government? And did the Court, notwithstanding the structure laid out in the Constitution, not just in recent times, as you’ve been suggesting, but from the beginning, arrogate to itself more power and authority than it should have?

Melissa Murray:

Right. So I’ll say this in the context of also answering the question I did not answer earlier. I think the framers, when they drafted the Constitution, really imagined that government and governing would be a dialogue between executive and the legislature, truly. I think if you think about the context in which the Constitution was written, that’s really clear, they were breaking from England, but they were also recognizing that they needed to have some kind of central government, they couldn’t be this sort of ersatz coalition of states. But they were afraid of the prospect of a central government because they’d lived in a world where parliament could tax you, and you weren’t represented, and where the king could be tyrannical. So their principal concern in writing the Constitution was how to prevent these two branches of government, the legislature and the executive, how to prevent either of those branches from consolidating too much power within itself and becoming tyrannical.

And if you look at the structure of the Constitution, you can really see how that comes across, they are very, very specific in Article 1 about what Congress, the legislature, can do. And everything that Congress can do is spelled out and they’re very clear, everything else, left to the states or to the people, they’re very clear about what the president can do. And to be really clear, it’s less extensive than what Congress can do. So they spend a lot of time identifying what Congress can do, and they spend a little bit of time talking about the office of the President. By the time they get to the judiciary, it’s almost like they’re out of gas, like the section on the judiciary Article 3, I think it’s probably three or four paragraphs, it’s not a lot at all. So they have no expectation that the judiciary is going to be a real player here.

And in fact, in the earliest days of the republic, it is not… Marbury v. Madison, it just decided in 1803, case was actually filed in 1801. Why did it take so long? Wasn’t because they were trying to figure something out, it was because Congress had actually eliminated the Court’s term in 1802 and had reduced the number of justices by some margin, taken away a couple of their justices. So this was a Court that lacked power, it was at the mercy of Congress. Congress would just say, “We’re closing down shop and we’re doing this,” and the Court was really hobbled. So that’s the context for the Court, “This is the most hobbled branch, the least dangerous branch,” as James Madison and Alexander Hamilton said in the Federalist. Then comes Marbury. So the backdrop for Marbury v. Madison is the election of 1800, where the incumbent president, John Adams, loses badly to his rival, Thomas Jefferson.

In advance of Jefferson’s March inauguration, Adams and the Federalist party decide to make a play to pack the judiciary with loyal Federalists, to really gum up the works for Thomas Jefferson. Just two days before his term of office ends, Adam appoints dozens of Federalist party supporters to new judge positions and justice of the peace positions all to thwart the new Jefferson administration that’s coming in. The Senate confirms these positions, but the outgoing Secretary of State, John Marshall, who also happens to be the incoming chief justice of the Supreme Court, fails to deliver all of the commissions before the inauguration. And then when James Madison, the new Secretary of State takes office, he sees all of these undelivered commissions and he’s like, “Let me file these in the vertical file here, the garbage can,” and he doesn’t deliver them either. One of these undelivered commissions was going to a man named William Marbury, who’s a Maryland businessman who’s very loyal to the Federalists, and he demands that Madison return the commission to him, deliver the commission.

Madison ignores him. And so Marbury files a lawsuit in the Supreme Court asking the Court to issue what is known as a writ of mandamus, meaning, give them something, a mandate to give what he’s requesting, that would force Madison to deliver to him this commission. Now, if you think it’s weird that he filed a lawsuit at the Supreme Court, you would be right. Ordinarily, we think of the Court not as a trial court or a court of original jurisdiction, but as a court of appellate jurisdiction reviewing decisions from lower courts. But here, Marbury maintained that Section XIII of the Judiciary Act of 1789, an act of Congress, expanded the Court’s original jurisdiction to allow individuals to bring cases directly to the Court where they involve certain substance, like a demand for a writ of mandamus. And in the lawsuit, in reviewing Marbury’s claim, John Marshall and the Court agrees with Marbury, that in fact, the Judiciary Act of 1789 does allow individuals to bring lawsuits for writs of mandamus directly to the Supreme Court as a matter of the Court’s original jurisdiction.

And indeed, the Judiciary Act of 1789 expanded the Court’s original jurisdiction to allow for these suits. But because the Judiciary Act is now understood to have expanded that original jurisdiction above what the Constitution had prescribed, Marshall says that the law can’t be valid, it cannot be the case, that what he calls, quote, “an ordinary act of Congress can supersede the text of the Constitution to provide for jurisdiction where the Constitution did not provide for it.” And so in one fell swoop, he invalidates this law, and he says that it’s the Court’s power to say what the law is. He says, “This is a written constitution, the first of its kind in the world, what is the point of writing down a constitution and documenting its limits on government if you don’t intend for them to be policed?” And the branch that is best equipped to police and enforce these restraints on government is the judicial branch. It’s the exclusive province and duty of the judicial department to say what the law is.

And so they hold this section of the Judiciary Act unconstitutional, and in doing so, they take for the Court the ultimate power of judicial review, the power to say that what Congress or the executive does, or state, for that matter, is invalid and inconsistent with the Constitution.

Preet Bharara:

Now, could one of the other branches, the executive or legislative, in the face of that assertion of authority and power, which some might’ve described as breathtaking, could they have done something to mitigate that, or not?

Melissa Murray:

Well, Jefferson doesn’t do anything with this. So that’s important. Also important, I think, to understand, that there weren’t a lot of avenues for John Marshall but to do this Hail Mary and take this power for the Court. If he’d said, “You know what, Mr. Marbury, you’re entitled to this commission. Madison has to deliver it to you.” James Madison would’ve ignored him, it’d been over, and the Court would’ve looked foolish, diminished, whatnot. So he only has one route, seize this power. And yes, there are things that the other branches can do, and we actually see these things play out in real time in the 1950s, for example, when this Court rules that the principle of separate but equal is inconsistent with the Constitution. And we see, throughout the South, states dragging their heels about integration, to the point where the Court is looking foolish, looking like their decisions are going to be openly defied.

And they would have been, if Dwight David Eisenhower as president, had not deployed the National Guard to the South to integrate Central High School in Little Rock. And that really is the irony of judicial review, it gives the Court this enormous power but the Court has no real way to enforce it, other than by being restrained in its use of judicial review so that it maintains a sense of legitimacy with the public. Wherever the public thinks the court has gotten too far out or too far behind, they, at any point, can say, “We’re not with this Court. We don’t believe this.” And we saw this in the 1950s with the South saying, “I don’t believe that that’s a legitimate decision of the Court, and I refuse to abide by it.” The only thing the Court has to make us obey is a sense that what they’re doing is correct, what they’re doing is right, is lawful, is legitimate.

Preet Bharara:

Isn’t that what also happened, in a way, in the ’30s, when the Supreme Court was out of step with the New Deal and began striking down legislation, and Roosevelt threatened his court-packing plan? And in retrospect, 100 years later, was that a legitimate set of wrangling as between the executive branch and the judiciary?

Melissa Murray:

It’s important to understand that Roosevelt, in floating the idea of court-packing, he did not have the support of Congress to do it, even though he controlled Congress, the Democrats controlled Congress. That was a bridge too far-

Preet Bharara:

But it had an effect.

Melissa Murray:

It did. The mere threat of court-packing, it is said, caused Owen Roberts to switch his vote in a case called NLRB v. Jones & Laughlin. And that switch in time is a switch in time that saved nine… preserved a nine-member Court, as opposed to some much larger Court that FDR had proposed, instead of the kind of Court that would bless the New Deal rather than thwart it. So there are political machinations that presidents, that Congress, can engage in with the Court. But again, it goes to this broader question, everyone talks about the Court as though it is above politics, the Court is a part of politics, and law is a part of politics. What the Court is doing is interpreting the law in the context of a political system in which it is one of many parts, and the idea that the Court is always neutral, the court is impartial and is above the fray, that’s the nonsense. The Court’s not just sitting there calling balls and strikes-

Preet Bharara:

I was going to present that phrase to you and see if you agreed with it.

Melissa Murray:

It’s so facile, and I know that the chief justice said it, so maybe we’re not supposed to say it’s facile and stupid, but it is. Yes, the Court calls balls and strikes-

Preet Bharara:

I don’t know if he listens.

Melissa Murray:

He might… I mean, I don’t know. The Court calls balls and strikes for sure, but the Court also sets the strike zone, I think you have to think about it in that way as well. It is operating in a system of politics. I think we saw this certainly in the 1950s. The year after the Court issued its decision in Brown, they got another case called Name v. Name, which was a challenge to Virginia’s Racial Integrity Act, which prohibited interracial marriage. And Tom Clark writes a memo to his colleagues, after they’ve granted certiorari on this case, saying, “This is a ticking time bomb. We have the south an open rebellion against Brown, and now we’re going to say, ‘Guess what? Guess what’s next?’ First, integrated classrooms, now, integrated bedrooms.” He’s like, “No, we don’t need to do this.” And the Court dismissed it on jurisdictional grounds, and providently granted, gets rid of it. It’s not until 1967, many years later, that they actually take up the case, Loving v. Virginia, that ultimately allows for interracial marriage.

But they’re always calibrating and thinking about these things. I think we’re seeing it right now. The Court issued that decision on mifepristone allegedly saving access to medication abortion. And I think that is likely to temper what’s coming, which is going to be a decision in the Moyle case on EMTALA, that will be much more difficult for abortion access.

Preet Bharara:

I asked our colleague, Trevor, this question as well, so interesting to hear you say… Are you suggesting that the 9-0 decision that was reassuring to a lot of people, with respect to mifepristone, was in some way a reaction to the reaction in Dobbs?

Melissa Murray:

I think very much so. It’s a 9-0 decision, which is not to say that it shouldn’t have been unanimous on the substance. I think it had to be unanimous on the substance, or else, Article 3, and the requirement that you can’t get onto federal court unless you actually have an injury, doesn’t mean anything. And if we can’t agree on that, we don’t really have a legal system. So I think they had to get rid of this case on jurisdictional grounds. I’m encouraged that it was a unanimous decision. But I will note, Justice Alito, who’s the author of Dobbs, and who has never missed an opportunity to put his two cents in to talk about how much he hates abortion, was absolutely silent in this case. And I wonder if his silence wasn’t simply because there is another case coming down the pike where he’s going to get to be very voluble.

Preet Bharara:

Maybe he just hung a flag upside down.

Melissa Murray:

Well, maybe his wife stole his voice, I don’t know. Hard to say.

Preet Bharara:

So what happens when, as happens from time to time in the republic, the Court, because of the vagaries of retirements, and deaths, and who gets elected, and how many vacancies a particular president over a particular term is permitted to fill, when the Court falls out of whack ideologically and politically with the majority of the population? I wonder if you agree with the sentiment that that’s what’s happening now. And by the way, if Trump gets reelected, we could go from a 6-3 imbalance, over the course of four years, to… you never know what happens, 7-2, or 8-1. Even if Trump doesn’t get reelected and Biden wins, there may not be a vacancy for four years, and then you can have a Republican with multiple vacancies. And as the country, in some ways, gets more progressive and you have a 7-2, or 8-1 Court into the future, what happens? Can that stand?

Melissa Murray:

I’m trying to think about how to answer this.

Preet Bharara:

Just don’t call for the taking up of arms. Any other answer is fine.

Melissa Murray:

So I think one of the things that the scenario that you’ve outlined makes clear is, progressives have not paid attention to the courts in the way that Republicans certainly have. Certainly, for the last 30 years, they’ve been very attentive to the courts, and not just the Supreme Court, but all of the federal courts and even state courts, and progressives just haven’t been on that tip at all, and they really needed to have been. In my view, the Court has to be part of our electoral politics, even if we want to maintain this fiction that the Court is not part of politics. Court is part of our political system and we need to think about it in those terms. To my mind, the Court is the most important issue on the ballot in 2024, not because there is a prospect of expanding this conservative supermajority to a 7-2, or an 8-1, or a 9-0 conservative super majority, but simply because Justice Thomas and Justice Alito are septuagenarians.

And if Donald Trump wins, the day after his inauguration, these two will step down, they will retire and announce their retirements, and they will be replaced by dyed-in-the-wool movement conservatives, maybe even teenagers-

Preet Bharara:

I was going to say 38 years old. But yeah, teens deserve representation too, mostly.

Melissa Murray:

Yeah, like they’ll get someone from Turning Point USA. And this conservative supermajority will not just expand, it will endure. And I think people have to understand that right now, this election is about limiting the amount of time this is in place, not simply as a numerical matter, but as a matter of substance and time, like limiting this to them. These people are not going to be in office forever. Trying to limit the amount of time they spend in office, or people like them spend in the office, I think is critical. So I think it cannot be the case that as the country grows more progressive, the Court falls behind in this way. We’ve seen this before. The New Deal is a great example of it. The Gilded Age, where the Court… after the Civil War Reconstruction, the Gilded age was really out of step with where the country was, certainly on things like labor regulation, it can’t hold and you see a correction over time. I think there is ultimately going to be a correction, but that correction really depends on the public and their enthusiasm for registering their preferences at the ballot box.

And to be very clear, I understand how difficult that is, and part of the difficulty of being able to register your preferences at the ballot box is because this Court has made it really hard, either through blessing laws that suppress the vote, or blessing laws that allow legislatures to be ridiculously gerrymandered, so you can’t register your preference in a way that is reflected in the political landscape. We live in a distorted democracy, but that just means that we have to overwhelm the distortion with numbers.

Preet Bharara:

Melissa Murray, thanks again for making the time. Thanks so much.

Melissa Murray:

Thanks so much, Preet.

Preet Bharara:

My conversation with Melissa Murray continues for members of the CAFE Insider community. In the bonus for Insiders, we discuss the doctrine of stare decisis, and whether it still carries any weight with this Court.

Melissa Murray:

This is a Court that is literally changing the landscape while we are walking on it. I think that should very much preoccupy individuals, as much as what Congress is doing, as much as what the President is doing-

Preet Bharara:

To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON

To end the show this week, I want to share an exciting update. Now, of course, every guest who appears on our show is special to us. We’ve had politicians, we’ve had novelists, we’ve had academics, lawyers, and journalists, we’ve even had astrophysicists. Many of these guests have gone on to even greater things. But today, we have a first for our esteemed group of Stay Tuned alumni. Just last week, one of our favorite Stay Tuned guests, the one who earned us our first Webby Award was knighted by the King of England. That’s right. The man formerly known as Bill Browder, will henceforth be known as Sir William Browder. For those of you not familiar with Sir Browder, he’s an investor and political activist. He was, at one time, the largest foreign investor operating in Russia, until Vladimir Putin had him deported and his investments seized.

His attorney, the Russian lawyer and accountant, Sergei Magnitsky, was arrested while investigating Putin’s raid of Browder’s offices in Russia. Magnitsky was tortured and later died in prison. Browder’s bestselling book, Red Notice, chronicles the story of his brave lawyer friend and the fight for Justice. Browder went on to champion the Magnitsky Act, which sought to punish the Russian officials responsible for his death, and has since allowed the US government to sanction foreign nationals who perpetrate human rights abuses. Numerous countries, including Canada and the United Kingdom, have followed the United States lead, passing Magnitsky legislation of their own. And so now, Sir Browder joins the ranks of Sir Paul McCartney, Dame Judi Dench, Sir Anthony Hopkins, and Sir William Gates, to name just a few. I had the chance to speak with Bill last week, and I can tell you he’s overwhelmed at the honor. We are sending him and his family our good wishes and congratulations, and we hope to have him back on the show very soon.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Melissa Murray. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24Preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy Editor is Celine Rohr. The Editorial Producer is Noa Azulai. The Associate Producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.