Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara. So folks, I think we aptly named this program Stay Tuned way back in 2017, not realizing just how important staying tuned would become. The easy and perhaps tempting thing to do these days is to tune out, but we know that’s not right, especially when there’s so much at stake for our collective future. We’ll keep doing the work. You can support it by becoming a member of CAFE Insider today. Head to CAFE.com/insider to learn more and to join. There has never been a more important time.

Kate Shaw:

Nothing that Trump has pursued since taking office has followed the sort of settled and in many cases legally and Constitutionally required routes for changing policy. And so I do think that any criticism that while people who are unhappy with the way things are going are just unhappy with the substantive positions that Trump is advancing, I think are just fundamentally wrong.

Preet Bharara:

That’s Kate Shaw. She’s a Constitutional law professor at the University of Pennsylvania, Penn Carey Law School. Kate joins me to discuss Trump’s recent executive orders that are testing the bounds of Constitutional law. We also discuss whether Justice Barrett is shifting away from the conservative majority in upcoming Supreme Court cases on birthright citizenship and transgender care. And later, what are the First Amendment implications of Trump’s attempt to deport Mahmoud Khalil based on his involvement in pro-Palestine protests at Columbia University? First Amendment expert Erwin Chemerinsky joins Joyce Vance and me on the CAFE Insider Podcast to discuss. We’re bringing you a special excerpt from that conversation. That’s all coming up. Stay tuned. Is the Constitution still a thing? Kate Shaw joins me to discuss. Kate Shaw, welcome back to the show.

Kate Shaw:

Hi Preet, thanks for having me back.

Preet Bharara:

So we have a lot to talk about. We only have an hour. I need nine hours. Can I ask you a preliminary question before we get into some current events and things that are winding their way through the courts? Because other people have said this to me, is it really, really difficult or impossible or not difficult these days to teach Constitutional law?

Kate Shaw:

It’s really difficult. It is. I mean it’s especially difficult.

Preet Bharara:

And why?

Kate Shaw:

So to stand up in front of a classroom and teach Youngstown, the case that sort of famously stands for the proposition that the president has limited authority. The Constitution or a statute has to give the president a power if the president purports to exercise that power and that remains the law of the land. And so there’s the majority opinion and there’s the very famous Jackson concurrence and they approach the question in slightly different ways. But the bottom line is the president is not a king and is limited in his authorities. And just the disconnect that I think the students feel between the law on the books and the law in action is there’s this chasm between the two in terms of what we are seeing playing out.

And that doesn’t mean that the law they are learning is wrong or irrelevant at all, but it just does mean there is deep tension. So I think that’s more true about the kind of structural Constitutional law materials. At least so far, a lot of the equal protection and liberty guarantees in the Constitution as the cases have interpreted, those guarantees haven’t been fundamentally challenged, although it’s early. But I think that’s the source of the difficulty.

Preet Bharara:

Does that say something about what’s happening that in ordinary times Constitutional law principles in the case law don’t vary so much so you don’t have to reinvent your curriculum every semester or every year. Is it a bad thing? Is it a good thing? Does it depend on your perspective?

Kate Shaw:

Even if I want to step outside of my own perspective, it’s hard for me to imagine defending as a good thing the speed and magnitude of the upheaval that we are seeing right now. I mean, I was a law professor in the first Trump administration and I do think I’m able to step outside of my own views effectively enough to say, of course a Republican president, of course President Donald Trump is going to make policy that I don’t like. But I don’t think that’s the fundamental problem. It’s certainly not the Constitutional problem that I’m identifying. But I think that if Trump was doing everything that he has done since taking office through the ordinary process of working with Congress, which again, by the way he controls, his party controls Congress. You can through lawmaking change the structure of agencies, the staffing of agencies, the substantive policies to be carried out by agencies.

If you think USAID is doing more harm than good in the world, you can eliminate it, right? You can reduce it or eliminate it outright. But nothing that Trump has pursued since taking office has followed the sort of settled and in many cases legally and Constitutionally required routes for changing policy. And so I do think that any criticism that while people who are unhappy with the way things are going are just unhappy with the substantive positions that Trump is advancing, I think are just fundamentally wrong. I think that everybody understands elections have consequences and Trump is going to pursue and was always going to pursue a very different vision of the country and of government than a President Harris would have. That’s not the problem, the problem is how.

Preet Bharara:

So let’s start with some easy stuff that’s going on at this moment, then we’ll talk about some stuff that’s happened in the past and then maybe I’ll ask you to predict the future. So goes to Supreme Court’s present, past and future. So we’ll start with an easy one. We have this thing called the education department. It did not exist at the founding of the Republic. It’s a fairly recent creature of, this is important, of statute, has a lot of employees, it’s a lot of functions. Why can’t the President of the United States as the all-powerful executive in whom all executive power is vested, just dismantle the education department?

Kate Shaw:

I don’t think he can create or destroy much unilaterally. So I don’t think-

Preet Bharara:

It’s like matter.

Kate Shaw:

It can be created and also-

Preet Bharara:

Matter cannot be created or destroyed

Kate Shaw:

By the president. But to go back to what I said a couple of minutes ago, I think that if the president decided again, education is a state and local matter and the federal government should have nothing to do with it. I think that Congress can eliminate the Department of Education. The Constitution doesn’t require it. The Constitution doesn’t require any particular structure in the executive branch.

Preet Bharara:

So play it out. He doesn’t have the votes for that, but he thinks he ran on it. I don’t know if he did or not. I can’t remember. I don’t think he did run on dismantling the education department, but it’s in his executive order and tells his secretary, “Start winding things down.” People sue. What are the arguments going all the way up to the Supreme Court that the President makes about his authority to completely eliminate the Department of Education and what are the arguments on the other side and who wins?

Kate Shaw:

And did he run on it? I think you’re right that he didn’t, but I do think it was in Project 2025, which he disavowed, but is really caring out. So he did kind of run on it. He just sort of denied it.

Preet Bharara:

Well whether he ran on it or not, does that affect the legal analysis or not?

Kate Shaw:

No, I don’t think so. So there are a couple of different things. One, there is a set of statutes that Congress has passed that create this thing called the Department of Education that give it all kinds of different authorities to manage federal loans for higher education, to provide various kinds of protections for students with disabilities and who administer a statute called the Individuals with Disabilities Education Act. A number of federal statutes are implemented and enforced through individuals employed by the Department of Education. Congress has passed those laws. The president has no authority to repeal those laws. And the president’s Constitutional obligation to take care that the laws are faithfully executed includes all the laws passed by Congress including those.

And that’s just two examples, student loans and students with disabilities. But those are two important statutory mandates Congress has given to the executive branch and they’re carried out through the Department of Education. So you can’t faithfully execute those laws without bodies, people employed by the Department of Education to do that. So I just think it is facially inconsistent with that core Constitutional obligation for the president to say, “I’m going to dismantle the agency that is carrying out those laws.” In theory, I think he could do a lot of restructuring so long as the basic commandments, the basic directives and the laws passed by Congress are still heeded. But that’s not what’s happening.

Preet Bharara:

So those are the arguments that would be made against it.

Kate Shaw:

And actually that’s just one, sorry, I [inaudible 00:09:01] But also there’s funding. They’re just… Congress has appropriated money for the Department of Education.

Preet Bharara:

What argument… What’s the Trump lackey going to say in court?

Kate Shaw:

I can’t believe you’re going to make me do this, Preet. I have to make a-

Preet Bharara:

You’re a lawyer by training.

Kate Shaw:

No, of course. And I tell my students this all the time. I mean all executive power is vested in one president and in order for the president to faithfully execute the laws, the president-

Preet Bharara:

Can you do this with a little more feeling?

Kate Shaw:

It sounded pretty dutiful, didn’t it?

Preet Bharara:

You look like you’re in a hostage video. Feel it a little bit.

Kate Shaw:

I honestly think that unilaterally dismantling an agency is not so different from the president issuing an executive order that says, “I now have a co-president and it’s Elon Musk.” The president has decided he wants a co-president. And so he issues an executive order so announcing and that’s absurd. There’s no universe in which the president can unilaterally do that. And I honestly don’t think it’s that different to issue an executive order that purports to say this agency that is a creature of statute is no more. I don’t think he has the authority to do that. So I will go down this path a little further with you if you want Preet, but I think it generally speaking has to reduce to an argument that the president has a democratic mandate again. Which is why maybe it’s a little legally relevant, whether he did or didn’t say he was going to do this, but only kind of peripherally.

But he has a mandate and he’s carrying out the mandate in the way he sees fit, the mandate from the people in whom all sovereignty and from whom all sovereignty resides and flows. And so this is the best way to carry out that democratic warrant in his view. And he is the single president most democratically accountable, et cetera. And essentially that is the claim. It’s an assertion of raw power I think with a little bit of kind of Constitutional underpinning. And I’m sure his lawyers will do if in fact this particular case or some version of it ever ends up before the Supreme Court, they’ll do a more detailed job than I just did but I think that’s basically what it reduces to.

Preet Bharara:

I mean they’ve made arguments that are just as outlandish as that before if I recall correctly. Do I recall correctly that in the big immunity case one of Trump’s lawyers made the argument that he can assassinate someone if he thinks it’s within his jurisdiction or his duties as commander in chief and President of the United States? They made that argument with a straight face, did they not?

Kate Shaw:

Well, they didn’t resist it when the hypothetical was posed in the DC circuit. They didn’t lead with it. They were like, “This is what we’re asking for.”

Preet Bharara:

No, they’re not that terrible.

Kate Shaw:

No.

Preet Bharara:

So are most of the arguments on these things going to end up being, as we saw with the Perkins-Coie executive order that I want to ask you about also? Look, I don’t have to get into the niceties of what the consequences are of this action, what the statutory framework is. None of that matters because once the president says national security or invokes some other privilege and responsibility unique to the executive and obviously unique to the president in whom all executive power is vested, that’s the end of the story. Is that the argument on most of these things?

Kate Shaw:

A lot of them, yes, it’s hard to make that argument with the Department of Education, but I think it’s right that it’s-

Preet Bharara:

You could do it. I bet you could do it, professor. Make a national security argument in favor of dismantling the Department of Education.

Kate Shaw:

I mean look, at a high enough level of abstraction, the national security is served or advanced by an educated populace able to compete with our adversaries, both economic and military. And the president believes it’s in the best interest of training the citizenry in order to meet the global threats of the moment to dismantle the Department of Education. I think again, that was pretty bad, but I think you could try to do some version of it.

Preet Bharara:

I thought it would look… So you make that argument, is that a 9-0 loss for the president or not?

Kate Shaw:

7-2.

Preet Bharara:

And you think it’s pretty bad, but there’s two, which two? Alito and Thomas?

Kate Shaw:

And Thomas. For basically anything. I think it’s very hard for me to see. Now look, I mean they were actually… And that’s the current version of Alito and Thomas. I mean as recently as a couple of years ago, I guess five years ago, the Vance case involving the previous Manhattan D.A.’s request for the records from Mazars and some other financial institutions for Trump’s records, he went to the Supreme Court with an argument that sort of presaged a lot of what was in the argument that ultimately prevailed in that big recent immunity case basically saying the documents, “They’re my finances and I’m the president. And so I have some categorical protection from ever having to disclose them to anyone.” And even Thomas was dubious about… He rejected the really maximalist, Alito kind of did too.

They wrote separately and they were more sympathetic to Trump than the rest of the court, but they didn’t sort of hook, line, and sinker by that argument. But fast-forward to July 1st, the big recent immunity case, and after that opinion, I think it’s really hard for me to imagine at least those two ruling against an assertion of presidential power no matter how outlandish.

Preet Bharara:

So this is maybe a dumb question, but why is it only 7-2, did the president and his people make a mistake from their perspective in appointing people like Gorsuch and Amy Coney Barrett who are not with the program of unitary executive, or is it such a bizarre judicial viewpoint to have that they’re not credible people to elevate from a circuit court to the high court who believe that?

Kate Shaw:

I think there are a couple, maybe more than a couple who you could, if you got another shot, if you as Trump 2.0 had a chance to elevate someone, I think Judge Ho in the Fifth Circuit, for example, would be an absolute vote with Alito and Thomas on most, if not all things. But your deeper question, it is interesting and conspicuous that Trump’s two most reliable votes for the most maximalist claims of executive power are not from the people he personally appointed to the Supreme Court. They’re from Thomas and Alito, were Bush appointees. I mean I think a couple of things. One, I mean they’re somewhat younger and I think they are still at least somewhat immersed in what I would call reality based silos of information and media and culture.

And I think they still read probably the New York Times occasionally, those three being Gorsuch and Kavanaugh and Barrett. And I don’t think that’s true about Thomas and Alito. I think they seem… I don’t know anything about this. I have no inside information, but my strong sense from their demeanor and questions at oral arguments and the kind of talks that they occasionally give on campuses and such is that they just kind of reside in a far right news bubble that has kind of unmoored them from facts and reality. And I just don’t think that’s totally true about the other three.

Preet Bharara:

But they get the briefs from the other side, they read those?

Kate Shaw:

They read them through, we all make meaning of the world through the lenses that we bring. And I think they have so skewed their lenses that they aren’t even really able to read in good faith opposing arguments.

Preet Bharara:

Would it be trite and/or anti-intellectual to say that they’ve just become grumpy old men?

Kate Shaw:

That’s basically what I’m saying, right? They’ve been a little bit-

Preet Bharara:

I thought so. It kind of sounds like-

Kate Shaw:

Their brains have been a little pickled.

Preet Bharara:

Will Amy Coney Barrett eventually become a grumpy old man?

Kate Shaw:

This is the big question of the moment because at least recently she has broken somewhat with the conservative block on the court and it’s caused a lot of consternation on the right. People are very unhappy with her.

Preet Bharara:

Can you explain that? Can you explain that to folks?

Kate Shaw:

So most recently in this case in which the Trump administration tried to get the Supreme Court to block an order by a new district court judge, Judge Amir Ali in the district of DC, involving essentially $2 billion in unmade payments that USAID was already obligated to pay often for services and goods already provided, but that this kind of DOGE group had directed the USAID to stop paying. And following a lawsuit, Amir Ali ordered these payments to be made and the Trump administration ran to the Supreme Court and sought to put that order on hold and the administration lost 5-4. And unsurprisingly, the Democratic appointees voted against the administration and so did the chief justice.

And that’s not that surprising because he’s done that on a number of occasions. But maybe more surprising was that Barrett supplied the fifth vote, which meant that Ali’s order stayed in force and at least in theory, all of those payments should be already made or ongoing this week. And so that was viewed I think as a profound betrayal and that the other conservative justices voted, they would’ve voted with the administration. Alito wrote an eight-page dissent to append to the one-paragraph order ruling against the administration. And it was that, and there was also an EPA case last week in which the conservatives on the court, all the men, voted with the city of San Francisco actually it was kind of an odd lineup in this case.

But San Francisco had sued the EPA over some water discharge regulation and San Francisco won, EPA lost, and Barrett wrote the dissent joined by the three democrats or democratic appointees and it was pretty unhappy with the majority opinion and it was Alito’s majority opinion. So those are a couple of recent examples. There have been others, but they have led some conservative commentators to essentially suggest that she’s either a turncoat or was always unqualified or maybe both. And it’s been pretty outrageous. Some of the rhetoric based on just this one shadow docket order and one EPA case that probably no one really has ever heard of outside of legal circles and environmental circles. But it’s been striking.

Preet Bharara:

I mean they have taken a calling her the DEI justice. What percentage of that is misogyny?

Kate Shaw:

I mean most of it, a lot of it.

Preet Bharara:

They haven’t called John Roberts that have they?

Kate Shaw:

No, but of course he’s an as… He has no race nor gender. Right? He’s just a justice.

Preet Bharara:

He just calls balls and strikes.

Kate Shaw:

That’s correct.

Preet Bharara:

He’s the balls and strikes guy, umpires don’t have race or gender, didn’t you know that?

Kate Shaw:

No, no, they don’t. They just have those uniforms. That’s it.

Preet Bharara:

I guess my question about Amy Coney Barrett is my other question is, was any of this foreseeable? In other words, to be disappointed you had to have had an expectation. Was there expectation about her rulings in particular areas in error or did she change or what happened?

Kate Shaw:

Well, it’s a little early, I think, to make any big judgments. I think that she was picked because she is kind of rock solid conservative on social issues and she is absolutely been that. She cast the fifth vote, Roberts was the sixth, but wrote separately. She cast the decisive vote to overturn Roe V. Wade and Planned Parenthood V. Casey. She was fully on board with the dismantling of affirmative action in higher education. She has been a reliable vote in even the big executive power cases that we’ve seen on the merits docket. But she has not been totally lockstep on every single issue. I mean, again, neither actually has Gorsuch, neither has really Kavanaugh. And so it’s, I think, conspicuous. And to your point about how much of its misogyny, I think the proof is pretty clearly there.

Kavanaugh was the one who defected on a big voting rights act case last year, two years ago rather, and not Barrett. And I don’t think anyone called him a DEI hire for that reason. So I do think that the difference is pretty striking. But I think we didn’t totally know fully apart from she seems very socially conservative and her rulings for her brief time in the seventh circuit seem to bear that out. We didn’t know that much about her. And so I think she was a bit of a blank slate. And I think she is so far proving to be a relatively independent minded jurist. She is distinct from the other conservative justices in her background in that she doesn’t have executive branch experience the way all of the others and some of the liberals as well do.

She was just a law professor and then a judge. And so I don’t think she has the deep commitments about executive power that these ex-executive branch lawyers who are the majority of justices at this moment really kind of bring to the job. I think that might matter. And there is a phenomenon over the last, I don’t know, however many decades of kind of leftward drift among Supreme Court appointees, right? It’s not a kind of universal, it’s not an iron law, but it has happened.

Preet Bharara:

Well, it didn’t apply to Alito and Thomas.

Kate Shaw:

So there are certainly counter examples on the current court. And I think obviously it’d be crazy to say, “Well, they haven’t drifted yet and maybe they will.” I mean I am old enough to remember when I was a clerk on the court the year after Alito was appointed, and I think at that point there was some question. He seemed like an open-minded and relatively moderate person. And obviously that was-

Preet Bharara:

He got a bunch of democratic votes, Robert’s got many, many Democratic votes and he’s turned out to be more moderate.

Kate Shaw:

But just to say one more thing. So the leftward drift is a phenomenon, but I think there’s at least some academic work that suggests it’s a real phenomenon. Lots of Republican appointees disappointed the presidents who put them on the court. And the kind of famous Eisenhower quote about the sort of biggest damn fool mistake ever made was putting Earl Warren on the Supreme Court. And lots of other presidents I think have said similar things about the justices they appoint.

But it seems as though to the kind of Alito and Thomas point, justices with a lot of law enforcement or executive branch experience who are appointed by Republican presidents seem to drift less than those who don’t have that experience. So that could potentially explain the divergence between Barrett and the others. And it might mean that Kavanaugh and Gorsuch who both do have extensive executive branch experience are less likely to drift.

Preet Bharara:

Sotomayor has law enforcement-

Kate Shaw:

Local. And Kagan of course, executive branch and Jackson was on the sentencing commission, which is sort of an unusual body, but it’s an agency of sorts. So I kind of think it’s everyone. It’s kind of everybody but Barrett.

Preet Bharara:

I’ll be right back with Kate Shaw after this. So I asked you about the education department. Could we talk about the DOGE? Is it DOGE or the DOGE? I think it’s just-

Kate Shaw:

Oh God, just DOGE.

Preet Bharara:

I think just DOGE. I’m going to ask you to do the same exercise. What are the strongest arguments in favor of sitting president having a guy like Elon Musk, and we can talk about what his role is and how you characterize it, but having him and some other folks give advice about cuts to eliminate waste, fraud, and abuse within government and what are the most powerful arguments against and how’s that going to work out?

Kate Shaw:

I don’t think there are a lot of arguments against the president convening a body to give him advice. I think that’s fine. It’s both, I think Constitutionally unproblematic, but actually back to our original exchange about presidential power being traceable to something in the Constitution or a statute, there’s actually a statute. Congress has really clearly given the president by statute the authority to establish what are known as temporary organizations in the executive branch, actually in the executive office of the president, the thing that the White House resides in. So there’s a statute, there’s no problem with him creating a thing called DOGE.

And indeed, the executive order creating DOGE essentially makes it the successor entity to this previous entity that was called the United States Digital Service. And it’s supposed to be an eighteen-month kind of affair, but the job of the digital service, and in theory, I think at least the job of DOGE is exactly as you described it, like studying, making recommendations, trying to identify places to bring more efficiency and to reduce waste in the executive branch. And everything I just said is totally Constitutionally, legally airtight, no problem.

Preet Bharara:

So what’s the problem?

Kate Shaw:

That’s not what they’re doing.

Preet Bharara:

It’s not?

Kate Shaw:

They’re exercising so much more authority than they are, I think, permitted to exercise under this statutory provision the president relied on.

Preet Bharara:

But what is so… I mean, I don’t know if this is the case, and I don’t know exactly if they’re arguing this, but suppose it happens to be the case that you have an entity of the type that you described as an initial matter that you said was lawful, Constitutional, and proper. But it just turns out that for whatever reason, given undue deference that the president and others may pay to that perfectly appropriate body, that their speeches become acts and everything they say should be done is always done. Is that enough to put it into the bad category of thing or not?

Kate Shaw:

I think the line might be hard to identify under some circumstances. I think it’s not right now, but I think you’re right. The president has people around him who provide advice and where that kind of advice shades into exercising something like directive authority or speaking to agencies and what you are framing his conversations, but where you’re so obviously understood to be carrying the message of the president that everything you say is heated. I think that might… It’s hard. It’s hard I think to figure out where the line into illegality falls.

Preet Bharara:

Is it because you have to apply common sense in the real world to this question?

Kate Shaw:

Might be.

Preet Bharara:

I mean you and I, podcasters and professors both.

Kate Shaw:

Yes.

Preet Bharara:

Engage in hypotheticals. So what if Donald Trump had a friend?

Kate Shaw:

Not illegal, not unconstitutional to-

Preet Bharara:

Contemplate that, but also not something that actually happens in the real world, right? I was going to say had a friend like Vernon Jordan, very close friend to President Clinton.

Kate Shaw:

Clinton had friends, lots of friends.

Preet Bharara:

But suppose you got a friend and you don’t set up a whole thing and you play golf with the friend every Saturday and Sunday and that friend keeps telling you, “Do this, do that. Fire this person, fire that person. Here’s what you’ve got to do on tariffs.” Is that fine?

Kate Shaw:

Yes.

Preet Bharara:

Does that ever morph into what you have here? And is that because that friend will not have been granted access to troves of documents at the various agencies or is there some other delineating factor?

Kate Shaw:

This is also uncharted. There is no test that a court has set forth or that we law professors have really ex ante kind of devised. But I think that if the friend was demanding and receiving on protection of the US marshals access to federal agencies and the information contained therein and giving directives to the heads of components and actually cabinet departments about whom to fire and sending messages to the federal workforce requiring performance of some specific act like an email with bullet points describing the work you’ve done in the past week, I think that we would have a real Constitutional problem. Now how exactly to frame the Constitutional problem?

I think part of the problem here is that we think about Constitutional litigation as there’s a particular provision of the Constitution that is being violated and I’m going to bring a claim and I have to figure out what test applies and how that test applies to the facts here and what rule a court should announce and reason how it should defend that rule and all that. And there is just honestly so much independent unconstitutionality in my mind at least that sort of surrounds DOGE, that it defies this capsule summation of, here is the core Constitutional problem. I do think that the Appointments Clause is one big one.

I think that Elon Musk is exercising the power of an officer and probably a principal officer the Constitution requires to be appointed by the President and confirmed by the Senate and he has not been. But that is by no means the only Constitutional problem that I see that sort of surrounds DOGE.

Preet Bharara:

From that Constitutional question, the appointments issue, which is essentially, as you said, he’s exercising too much power to not have been appointed and confirmed by the Senate. How is that going to fair in the Supreme Court? And first of all, do you believe it will get to the Supreme Court and if so, how will it fair?

Kate Shaw:

I think good chance it gets to the Supreme Court. So there are three cases pending right now brought by current and former federal employees and states and groups basically making versions of this argument and whether it gets to… And I think it’s a very strong argument, again, there is not… The Supreme Court has said about officers who exercise far less power than Musk is clearly exercising right now that they are officers and maybe that they’re principal officers, but certainly they’re officers. We’re talking about administrative law judges at the Securities and Exchange Commission and these administrative patent judges at the Patent Trademark office.

And even I think the deeply misguided opinion by Judge Cannon in Florida finding that Special Counsel Jack Smith’s appointment was unConstitutional in the classified documents of Mar-a-Lago case because he was an officer of the United States and had not been appointed consistent with the Appointments Clause. Now she was wrong. There was a statute that I think clearly authorized his appointment, but I do think that this idea that actually in some ways they have this maximalist vision of presidential power and presidential control over the executive branch, including the personnel within it that you alluded to earlier in our conversation.

It seems like that actually, if you care about enforcing the way the Constitution empowers the President and the specific mechanisms in the Constitution that are set forth for empowering individuals to assist the president because even though he has all the executive power, he can’t actually wield it all personally. He has to have assistance. And the Constitution, which is a document of lots of generalities, is really specific in this particular way about how officers are appointed. And so I actually think if you take executive power and Article II seriously, you kind of have to take the Appointments Clause seriously, and these cases clearly do. And so I think that if the court does approach the question in good faith, it should find some real problem. Now let me say two more things.

One, I can see the administration shifting in real time as it kind of comes into view the possibility that courts are going to issue merits decisions on this Appointments Clause question. And so you saw last week this hastily convened meeting of the cabinet in which Trump apparently tells his cabinet secretaries that actually they decide, Musk does not who gets fired from their agencies. And that feels like kind of they’re in damage control mode and I think there may be more like this where they seek to at least downplay publicly, if not formally kind of roll back a little bit. The power that Musk is exercising in that I think would complicate the calculus under the Appointments Clause.

Preet Bharara:

Well, they made one argument in court and I want you to give it a grade in a moment and compare it to another argument we talked about earlier in the conversation. A lawyer got up in court and said, “There is no evidence that the other side has brought to bear that Elon Musk, not only that he’s not the head of the thing, but that he has any formal role at all.” And then of course two days later, the joint address to Congress, some guy, the president, the United States of America said to Elon Musk who’s present, I’m paraphrasing, “Great job.” And he’s the head of it.

We talked earlier about the lawyers who did not resist the hypothetical of a president having the authority to assassinate his political rival. Where do you put that on a scale of one to 10, 10 being the most ludicrous, outlandish, backfiring argument you could make and one being a perfectly good argument? Where do you put the assassination argument? I want to have a comparison. So we have to develop a system here. So the assassination argument-

Kate Shaw:

Assassination is one.

Preet Bharara:

One is the worst.

Kate Shaw:

Yes.

Preet Bharara:

10 is a good argument.

Kate Shaw:

However you framed it, whatever the word is. I think you said one, but you took your mind.

Preet Bharara:

We’ll play it however you want play it.

Kate Shaw:

Assassination one.

Preet Bharara:

I still can never remember if DEFCON one is when I get under my table or DEFCON five is when I get under my table.

Kate Shaw:

Hopefully we find out.

Preet Bharara:

So one is terrible. How about this? Elon Musk is not part of the DOGE argument compared to the other one.

Kate Shaw:

Well, I think the actual exchange with the judge you’re referencing happens before the joint address to Congress, so it’s a little hard to grade it in the rearview mirror.

Preet Bharara:

But even then.

Kate Shaw:

I mean I think that there are really deep realism versus formalism questions. Your NYU colleague Rick Pildes has this great article called Institutional Realism versus Formalism and the Separation of Powers. And it’s like courts are sometimes reluctant to look under the hood and question the representations the executive branch makes about what’s going on inside. And most of the time I think it’s probably right for courts not to pry, but I think that kind of presumption is rebuttable and it’s obviously been rebutted. I think even before the President made that pretty significant admission from the perspective of this litigation that actually Musk is the head of DOGE. So I think that it’s hard in that context. And I also want to say one other thing, which is I think it’s really hard to give grades right now to people, the career lawyers in the Department of Justice who are in an impossible position.

I think the grade is a bad grade, but I also think that there are extenuating circumstances that if a student were in my class and I actually had to consider that they were walking a tightrope of trying to defend the decisions made by the political leadership in the Department of Justice and the White House consistent with their obligations of candor. And as officers of the court and also this executive order or was it a guidance memo? Whatever the document was that basically announced that nobody could ever diverge from the legal positions of the president ever on pain of termination. I mean I think they just have an impossible set of competing directives to try to reconcile. And my sense is they’re doing the best they can. That’s a dodge, but I’m-

Preet Bharara:

I’m not sure.

Kate Shaw:

Not a DOGE though.

Preet Bharara:

It’s not a DOGE. No. DOGE ball. I haven’t thought of that.

Kate Shaw:

I don’t want to play. I really don’t.

Preet Bharara:

I’m not sure all of them are doing the best they can and you can always leave and you can always make a decision not to make a terrible argument. There’s this thing called credibility for people who actually practice in court. You have not been a judge, you would be a great judge or justice, Professor Shaw, but you’ve clerked for judges and you’ve watched many arguments and you know how these things work. Do judges and justices account for the credibility of an advocate such that if an advocate comes in, because I have a view about this and we may have a different view, and says preposterous shit on behalf of a client and debases himself or herself either later in an argument for the same client, maybe even the same argument.

It’s a closer question about the credibility and the persuasiveness of the argument, the plausibility of the argument. Does there not come a time when a judge or a justice gives the argument less benefit of the doubt because of the asinine argument made earlier? Yes.

Kate Shaw:

Absolutely.

Preet Bharara:

Is that appropriate?

Kate Shaw:

I assume we agree about that. Yes. You think yes also.

Preet Bharara:

I do. Look, I remember a very seminal moment for me when I was a very young prosecutor and my job was to do the right thing and I tried to do that on every occasion and people are going to have disagreements about whether or not there should be pre-trial detention. I had one of my colleagues Rachel Barkow on who’s just written a book about these kinds of things.

Kate Shaw:

It’s a terrific book. Your listeners should check it out. I did an event with her yesterday.

Preet Bharara:

It’s a great book and she’s a great professor and person, but I argued in favor of detention pre-trial. There were lots of details about him including that he was a risk of flight, including that he was a danger to the community. He’d been firing a gun in the open air in the Bronx. He had multiple bench warrants for his arrest. I’m not sure if he had legal status or not. And the magistrate judge said to the public defender, what’s your position? And she argued strenuously for release.

I thought this was a little bit unfair, but I’ll never forget it. It was 24 years ago, 25 years ago. The judge says, “Obviously you’re making this argument because your client insists and you have an obligation to your client, but you should also think about your credibility before this court because you’re going to be here a lot.” I know you weren’t there and you didn’t hear the details. Is that a fair admonition or not? It’s a little tough.

Kate Shaw:

I actually think… I’m not sure that’s fair. I think it might be more fair to a government lawyer making arguments in a simple case. I think that’s a criminal defendant whose liberty is at stake and he was asking you to see there really in particular in some of the… I mean Rachel’s first chapter about Salerno is all about this pretrial detention question, which is a hard Constitutional question. And I have not ever practiced criminal law. So I certainly am not going to tangle with you on it, but I think it might be different and-

Preet Bharara:

No, I don’t disagree with you. I don’t disagree with you, but the reason it stuck in my mind is just I think maybe it was misapplied in that instance.

Kate Shaw:

But that the instinct is that is unavoidable maybe.

Preet Bharara:

It’s important. And I just wonder… This is maybe a totally unfair question. There are times when it’s very clear that in public statements that are put out by other officials or by the press office, that portions of them have been dictated by the President of the United States, and I’m sure computers could figure this out and you know that by syntax, spelling, construction, attitude, and everything else. And that was certainly true in various of his personal court proceedings that there was a Trump flavor and maybe lawyers began to channel him. And so it wasn’t directly coming from him. But on some of this stuff, do you think Trump is directing some of the arguments here or is it just people like Stephen Miller and others, some of whom are not lawyers who are preaching about the unitary executive theory? Any sense?

Kate Shaw:

I don’t… I totally agree that some of the written statements do feel like they’re coming from him. But yes, maybe the staff members have learned his voice and are channeling it really effectively. So who knows what it is? I think at a very high level all power in the president and eliminate pockets of friction or pushback or opposition. And I think that’s the sort of spate of firings of these independent officials that we saw in the first couple of weeks of the administration and defending all that under this kind of maximalist vision of the presidential power, the kind of flip side of the appointments coin we were just talking about. So I think at a very high level that is the directive, just assert all the power. But I highly doubt that the specifics of the legal arguments are ones that he has even any knowledge of.

But I do think that in terms of if… This is sort of buried in that question also, I actually think that in terms of how much it matters that he said that Musk is the head of DOGE and that’s one instance, but I think it’s a phenomenon that we’re likely to see play out in a lot of this litigation where there’s this kind of disconnect between the representations made in court and the things that Trump is personally saying or dictating in press releases. And I’ve written about this a decent amount and I actually think that it’s a mistake for courts to basically immediately sort of treat as a party admission any statement the president makes that bears in some way on the kind of lawfulness or constitutionality or meaning of some executive branch action that’s being challenged like we saw in the DAPA litigation.

When Obama did the DAPA, the follow-on to the DACA program, which was the parents of Americans. And Obama had said something very casually during a speech and the district court judge in Texas considering a challenge to DAPA basically said, “Ah, you admitted something and use that as a sort of core reason to invalidate DAPA.” I think that’s actually inappropriate. When you’re writing… When you’re delivering a scripted speech in this very formal setting of congress and you say something considered like Elon Musk as the head of DOGE, I think it’s completely legitimate and in some ways necessary for a court to consider that. If that’s the question, is Musk the head of DOGE? But I think that it’s not always the case that it makes sense even if it’s tempting to accord legal weight to every utterance that comes from the president or the apparatus around him.

Preet Bharara:

I mean it’s one data point, that’s one thing, and if it’s a throwaway line, that’s one thing. But if you have the legal equivalent of the question being is something a duck and it really quacks like a duck, it really walks like a duck, it really does all those things that a duck does, and yet the opponent in the court litigation, “That’s no duck, it’s not a duck.” And then the owner of all the ducks, the leader of all the ducks says, “That’s my duck. That’s a duck.” That’s slightly different.

Kate Shaw:

And I think that’s essentially what you had.

Preet Bharara:

Yours was a much more eloquent analogy than…

Kate Shaw:

I’m just not sure of the duck leader.

Preet Bharara:

I was trying to think what if-

Kate Shaw:

What does one call a duck-

Preet Bharara:

What if the commander in chief of the ducks, but it’s not really because the ducks are not… Anyway, which of the executive orders issued so far by the Trump administration is the most worrisome, nefarious, and insidious, and why is it the one directed at Perkins Coie?

Kate Shaw:

Isn’t that great? So yes, I mean I think-

Preet Bharara:

I didn’t mean to put that in your… I mean do you think it’s one of the worst?

Kate Shaw:

I mean I think that some of the kind of targeting trans individuals orders are from the perspective of a commitment to baseline liberty and equality and the use of government power to violently target a disfavored minority is odious constitutionally. And so I put a few of the executive orders in that category just unbelievably constitutionally offensive. But I also think you’re right that in terms of… You’re like, what is the most unconstitutional of the many unconstitutional orders that have issued from this White House? I do think the one targeting out of pure petty retaliatory animus, the law firm of Perkins Coie because of its representation of Hillary Clinton and various other sort of liberal associated or Democratic Party associated activities to essentially try to destroy them as a law firm, which is what this executive order does, might be the most flagrant.

It might be the most straightforward in its unconstitutionality. There are sort of similar… I thought this is not an executive order, but the acting US attorney in DC, Ed Martin, who sent a letter to the Georgetown dean last week. Basically saying, “We’re not going to hire you people or interview them even if you continue to maintain the curriculum that you are maintaining.” Was also on the scale of, I think David French referred to this in the Times as the most unconstitutional letter he had ever read or one of the most unconstitutional letters. So anyway, so there’s a lot of candidates, but I think the Perkins Executive order has to be near the top.

Preet Bharara:

What do you think is the most significant weakness of the Perkins Coie executive order? So Perkins Coie hired another very prominent law firm, Williams and Connolly, very significant and powerful complaint alleging violations of the First Amendment, the Fifth Amendment, and the Sixth Amendment. Have you looked at it closely enough to have an opinion as to how it will go and on what ground?

Kate Shaw:

So I was not… There was a hearing before Judge Howell in the DC in district court last week, and the dispatches from inside the courtroom suggested that this was just like a, let me count the ways this is flagrantly unconstitutional. That seemed to be the tenor of the hearing and then the order that the judge issued from the bench. I don’t think we’ve seen a written opinion yet. I mean I think that punishing a law firm, singling out by name and punishing a particular law firm for substantive positions taken by the lawyers at that law firm, whether it’s a law firm or not.

Preet Bharara:

Who are no longer there.

Kate Shaw:

Who are not even there anymore, and this is all a decade… A lot of this conduct is a decade old. I mean this is a man who really bears a grudge. There is no question about that, is an enormous problem under the First Amendment. It is also in general, a government can take stuff from you, can take tangible things and intangible things. It does it all the time. But we have this basic concept of due process. You cannot be deprived of things like property, which you absolutely have a property interest in the good name of your law firm and your law firm’s ability to access federal buildings, with the order purported to eliminate for Perkins in the security clearances that you have been granted in order to engage in certain representations that require access to classified information.

So you have absolutely probably both a property and a liberty interest in those things. It maybe sounds abstract, but there is absolutely case law that makes it really clear that those are the kinds of things that the Constitution’s protection of liberty and property kind of encompasses, and you have a right to due process before the government takes those things from you. So if the government wanted to set up a procedure by which it reexamined the security clearances of all of the lawyers in the private bar to whom such clearances had been granted and it wanted to kind of take a fresh look at the need or appropriateness of granting those security clearances and you had a chance to defend yourself and explain why you still needed the clearance or still deserved it.

There’s absolutely a way the government could have done that, couldn’t have singled out just Perkins for it, but it could have done a sort of broader review potentially. It could even have said that with respect to access to federal buildings and law firms. But again, I don’t think it could have… There’s no Constitutional path I don’t think, to this particular outcome, but there was not even an effort as far as I could tell to appear to kind of respect core constitutional values. In some ways it felt like it was written to be as obviously and explicitly unconstitutional as possible. And well done drafters if that was your goal.

Preet Bharara:

So here’s what I think about that. I think you’re completely correct and it is because these guys engage in deliberation and decision-making before they take an action, whether it’s filing a lawsuit which has been a habit and custom of Donald Trump for a long time, not just threatening them but bringing them. That likelihood of success does not enter into the calculation, which it does for most lawyers, even government lawyers in part because the vendetta is the vendetta and you got to take whatever action you can. But it’s also about the message that you’ve sent, not just to Perkins Coie, but reasonably to every other law firm, which is all the law firms who say there but for the grace of God, go I.

And the lesson that you’re teaching, I don’t know if this part of it is deliberate, but it’s a nice bit of gravy if you’re the President of the United States with a certain personality and vulnerability that if we have the temerity to take on any interest or cause that is in any way near and dear to the sitting presidents, we may get an executive order. That’s why I think it’s the most insidious. It’s not just what it does to this particular player, but to all the players. And that’s true again, in instance, after instance. Whether it’s proper or not to fire wholesale federal employees, even if they have the protection of the civil service, you are telling legions of people, “You know what, I best not apply to the federal government because that job is not safe at all.”

When you adopt birthright citizenship cancellation as your policy, it’s telling everyone in the world, whatever happens ultimately in the Supreme Court, don’t come here because your citizenship is not secure. When you send questionnaires… Sorry, I have a little rant. When you have questionnaires that you’re giving to FBI agents to find out if they have touched even remotely, the January 6th prosecution, every FBI agent at least for a period of time going forward has to think, am I going to actually serve that subpoena? Let me figure out first if that target or that subject is in any way related to the president because otherwise they’re going to yank my livelihood. They don’t seem to give a shit about winning because they accomplished so much just by bringing the action. Is that fair?

Kate Shaw:

I’m now regretting not listing the birthright citizenship executive order also at the top. I don’t want to-

Preet Bharara:

It’s very high.

Kate Shaw:

… leave that out and also near the top. I mean I think that when you said they don’t think about success and in some ways… So that’s, I think, right, that there’s kind of expressive function is a big part of it, but that’s part of why it’s so puzzling that they seem so indignant when action after action is enjoined by the district courts. That’s something puzzling and maybe that’s just posturing too. But they seem genuinely… They are on an incredible losing streak in terms of the legal challenges to many of their initiatives. They got a rare win with respect to the head of the Office of Special Counsel who won in the district court but then lost in the DC circuit. But otherwise, I’m hard-pressed to think of a merits win that this administration has gotten on any of these orders.

They’ve won on a couple of… There’s no standing those kinds of wins, but on the yes, the thing you did that is being challenged as unlawful actually seems lawful. I don’t think a judge has said that about anything they have done, and it’s because it is just a campaign of lawlessness. I mean it’s pretty clear, but they are the kind of manufactured outrage, indignation. We’re drawing up articles of impeachment against district court judges who are finding these moves unconstitutional. Maybe that’s all part of the same communication strategy.

Preet Bharara:

But I’m wondering, tell me if I’m making too much of it, that it’s almost as much an intimidation strategy and an intended chilling effect to be caused against sitting judges than just an overall communication strategy with respect to the action they’re taking for the public.

Kate Shaw:

It’s both.

Preet Bharara:

I mean, the thing that I have found very disturbing, and it’s a small thing and it’s a little bit inside baseball, but on this one issue of many where the question was can people from the DOGE who are not vetted and not given security clearances, can they get access to sensitive Treasury information? And people in the podcast have heard me say this, I think before. There was the duty judge, I think on a Friday evening, Paul Engelmayer, who’s a great lawyer and a great judge for three minutes said, “We have to take a pause.” He’s not even the permanent judge in the case.

It was a mild and really utterly reasonable thing. People can differ. Maybe he didn’t have to grant it and maybe a different judge might not have, but it was so mild. And you have a United States senator calling that a judicial coup and all sorts of calls for impeachment on things that, they’re not earthquakes. And there is recourse in a system that is overly stacked with the judges who are appointed by your guy. Why are they freaking out so much?

Kate Shaw:

I mean the Engelmayer order is also, I think, what precipitated the Vance tweet about sometimes it’s okay to disobey judges, which is we can sort of parse that tweet differently.

Preet Bharara:

So are they laying the foundation for that? Is that what’s going on?

Kate Shaw:

Maybe. And I think they have some kind of assistance from some law professors who I think are outrageously seeming to defend the most charitable reading of that. I think it’s obviously a possibility. I mean, I think they have certainly been perfectly happy to defy one co-equal branch, Congress in terms of many, many, many laws that Congress has written that they are flagrantly violating. And now they have a theory, which is that these statutes that they are facially violating are unconstitutional because inconsistent with this unitary executive vision of the presidency. But that’s what I think is so dangerous about some of these senators seeming to kind of lay the groundwork. If they have a theory they can offer that the judges are acting in a way that’s illegitimate because they’re overstepping their authority.

So it wouldn’t be actually breaking the constitutional order to defy a judge, but somehow restoring it because it’s the judge who has done that. I mean, it’s a facially preposterous claim. The Engelmayer order is a perfect example. It was a couple of days, totally modest. And by the way, also even after more consideration, I think clearly DOGE was getting some unlawful access to Treasury and other LNB and lots of CFPB and other information. So I think that it seems pretty clear that that’s a possibility for which we have to be prepared. I’m certainly not willing to concede. It’s definitely going to happen, but I think that thinking through responses is important and I don’t know, I don’t see…

If they think they’re going to intimidate federal judges into the kind of not ruling against them, at least so far, I don’t think that’s likely to work, but I’m sure that’s the goal.

Preet Bharara:

I think you’ve referenced this, but I’m not positive. To what extent is there some kind of argument that the broad immunity decision from last year about President Trump is enabling him and his team to engage in these activities with greater impunity than they otherwise would have? Is there a connection?

Kate Shaw:

Maybe. I mean, I think it is kind of the backdrop of the whole first nearly two months of the administration. I just think that it… Now, how actively concerned, well, I mean, I don’t know. I’d be curious what you think about this, how actively concerned Trump was and how actively constrained he was in first term by the possibility that he might violate a federal criminal law and find himself charged down the road.

Preet Bharara:

Maybe not much.

Kate Shaw:

I don’t think it was that active or powerful a deterrent. I do think that people around him worried about it. I mean, for sure Don McGahn’s advising him in his conduct vis-a-vis Comey and others was concerned about violation of the federal obstruction of justice statute. And so there’s lots of moments where I think the fear of the people around the President that someone might face criminal exposure was hugely important. And that’s just gone. Now on its face the immunity protection in the Trump versus United States opinion only applies to the president and not the people around the president. But I think if you pair that kind of newfound freedom from any possibility realistically of ever facing criminal charges for essentially anything you do as president, you pair that with the kind of eager, kind of relishing of the wielding of the pardon power that we’ve also seen in the first two months.

So Trump can’t be charged, and if anyone around him ever is, he could, again, not ever is, he’d have to be the president to exercise the pardon power, but he could pardon preemptively before leaving office or pardon, if it looks like anybody is seriously likely to face criminal charges, anyone who assists him in doing anything. And so I think those two together rightly have resulted in this kind of air of absolute sort of impunity from any kind of consequences on the part of Trump and the people around him.

Preet Bharara:

What are the cases that you are looking at and caring about that will be decided before the summer or by the summer and that people should care about?

Kate Shaw:

Well, a lot of the big ones I think we don’t know yet because I think there will be… Now how quickly all of this will actually end up before and get decided by the Supreme Court, I think is a big open question. So there’s already an emergency motion pending arising out of the birthright citizenship cases that have been making their way up through the courts of appeals. So far the Trump administration is over three in defending its order purporting to end birthright citizenship. And that is likely how I would predict the court to rule, although I think there’s a bunch of different ways they could get there. And to our earlier point, I think that Thomas and Alito were probably in the bag for Trump, but I don’t know about the others.

And actually I’m not totally sure honestly even about them here. It’s that egregious. So that one, there’s again, emergency motion pending, administration has to respond in two weeks, and then we’ll see that could be set for argument next fall or they could fast track it and decide it this spring. I do expect they’ll take it at some point, and that’ll immediately become one of the very big cases this term. I think that they will get one of the cases involving Trump’s firing of an individual who has statutory protections against removal. And then that will really call the question of the future of this 1935 case, Humphreys Executor, which allows for agencies to have a degree of independence, including being led by individuals who can’t just be fired at will by the president.

And so I think very likely that precedent will be overturned. And the question to my mind is just which of the many vehicles the court will take that presents it. So those are hypothetical down the road. There are also cases pending, there’s Skrmetti involving a prohibition on gender-affirming care in Tennessee that the court has already heard arguments on and will be decided this term. I think the court is likely to uphold that prohibition. And I think the question is sort of what else it does and says that might bear on sex equality.

Preet Bharara:

What do you think… So just to be clear for the listeners, you think the court will uphold…

Kate Shaw:

The ban. So Tennessee banned on gender-affirming care. Right. So Tennessee said physicians can’t provide, families can’t get gender-affirming care. So if your kid assigned male at birth, you cannot, you’re prohibited by law from getting estrogen or hormones inconsistent with sex assigned at birth. Now you can get hormones that are consistent with, so if you need estrogen and you’re assigned a girl at birth, you can get estrogen. So it’s a very sex-based classification. And that’s essentially the thrust of the challenge. That laws that draw lines on the basis of sex get heightened constitutional scrutiny.

Courts have to take a closer look at them and decide if they’re supported by a sufficiently good reason. And actually, the Sixth Circuit, the Court of Appeals here said this actually isn’t even a sex classification. So it doesn’t draw heightened scrutiny and it upheld it on rational basis review. So what kind of scrutiny it gets and whether the court ultimately upholds are sort of the two big questions in this case.

Preet Bharara:

What’s your prediction about how the vote will be split on that one?

Kate Shaw:

I mean, I think that Gorsuch is a big question because he’s the author of the Bostock opinion finding that the federal statute prohibiting sex discrimination in employment also prohibits discrimination on the basis of sexual orientation or gender identity. It feels like he is at least gettable. He asked, as I recall, zero questions in this oral argument, which made it very difficult to read him. But I think he’s-

Preet Bharara:

Is there any other significant decision that has the liberals plus Gorsuch against the other five?

Kate Shaw:

I mean, there have been two federal Indian law cases or three federal Indian law cases that it was a majority in one. And then when Ginsburg was replaced by Barrett, they became a four-member dissent in essentially a variation on the same case in federal Indian law. Another federal Indian law case where again, they were in dissent about a year later. And those are the big ones, I believe. I think there’s another immigration case or two, so it’s not unheard of. So he’s the big one, and I think that probably the others are going to vote for Tennessee and allow this ban to remain in place.

Preet Bharara:

I meant to ask this before because I always make a small speech when we talk about the dangers of a certain kind of criticism of judges because people might listen and say, “Well, that’s all you guys have been doing about Alito and Thomas and others.” And so I guess my question to you is obviously we all agree the judges are not above criticism. You do it. I do it. It’s part of our first amendment right, and that’s how we understand what’s going on and people have their opinions, and that’s totally fine. How would you articulate the limits of rhetorically of how one should talk about judges and their decisions, and where is the line and how do you justify it?

Kate Shaw:

I mean, I think that it’s definitely not where John Roberts would draw because John Roberts has in his year-end report basically suggested that individuals who criticize the court forcefully are complicit with actual threats to the safety of federal judges. And I just think that is-

Preet Bharara:

That’s too much.

Kate Shaw:

Just a wild over claim that is maybe designed, but certainly could have the effect of chilling legitimate criticism of the court. I mean, I agree. I think it’s important to condemn frequently and forcefully violence, threats of violence against judges. That is abhorrent. And also it is entirely distinct from engaging in good faith dialogue and critique of justices who I think are making a hash of certain constitutional principles. I think they’re wrong about the Constitution, and I think it’s critical that we be permitted to say that.

And it’s essentially collapsing totally different things for Roberts and others to suggest that there’s something problematic or dangerous in criticizing the court. We criticize the president, we can criticize members of Congress, we can criticize federal judges, and it’s important when they get things wrong for us to be able to do that.

Preet Bharara:

Professor Kate Shaw, thanks so much. Really appreciate it.

Kate Shaw:

Thanks, Preet. I really enjoyed it.

Preet Bharara:

Stay tuned after the break my conversation with Erwin Chemerinsky and Joyce Vance about what Mahmoud Khalil’s detention means for the First Amendment.

And now here’s an excerpt from this week’s Insider podcast featuring Erwin Chemerinsky. If we can begin with a topic that is on the news constantly, that’s on a lot of people’s minds. Some people think it’s a watershed, some people think it’s more complicated than is being described. There are some complicating issues. Not all the fact I think are perfectly clear, but I’m talking about the case of Mahmoud Khalil. Columbia student, not clear if he’s still a Columbia student, at least from what I can read. I think he finished his coursework, has not yet received his diploma. I guess the first question is either Joyce or Erwin, can we just set the stage? Who is he and what did he do before we get to how he’s being treated?

Erwin Chemerinsky:

He was a Columbia student. He was one of the leaders of the pro-Palestinian demonstrations at Columbia. He’s alleged to have said some very inflammatory things with regard to Zionism in Israel. He was apprehended by ICE officials initially taken to New York and then moved to Louisiana. President Trump, after he was apprehended, said it was because of his advocacy. Secretary of State Rubio echoed that. And there is a matter that’s pending in federal court in front of federal judge, Jesse Furman.

Preet Bharara:

What is or was or has been his immigration status?

Erwin Chemerinsky:

He has a green card, he’s married to a United States citizen who was pregnant at the time.

Preet Bharara:

So what is the purported basis on which he has been taken into custody? The name of the law, and I can read it once you’ve identified it.

Erwin Chemerinsky:

What they’re saying is that he was, through his speech, supporting a terrorist organization, Hamas, and also that through his speech, was acting in a manner that was harmful to the foreign policy of the United States.

Preet Bharara:

So this is a statute, and Joyce I want to bring you in also, of course, that it’s not invoked very often, at least to my knowledge and query whether he qualifies as an alien. An alien whose presence or activities in the United States, the Secretary of State, that’s Marco Rubio, has reasonable ground to believe what a potentially serious adverse foreign policy consequences for the United States is deportable. How do we assess his treatment under this statutory provision?

Joyce Vance:

So I’m so interested to get Erwin, and it’s hard for me to call you Erwin, but I’m going to try. I’m interested to get your thoughts on this because the context, I think Preet, where you and I saw this very rarely come into play was if you had someone who had been criminally charged with material supportive terrorism, usually the prosecution preceded the deportation, but technically the person who is charged or who is strongly believed to have committed that crime does become deportable.

But in my experience, which is I think limited, I was in north Alabama, so maybe your experience is different. It did not involve speech, it involved conduct, it involved actual support for terrorism. That makes this case very surprising to me.

Preet Bharara:

Before you go, Erwin, the statute I just read, am I correct, is a duly enacted statute does not require the commission of a crime, right?

Joyce Vance:

Right. It does not. But I’m just saying the context in which this provision is usually applied, right? And as lawyers, that’s what we think about. We think about what’s the usual framework for application of this. Because if Khalil has been singled out for very unusual treatment, then in my mind that raises a lot of questions.

Erwin Chemerinsky:

This statute, of course, like all federal statutes has to be used in a constitutional manner. And what we haven’t said yet is that the United States Supreme Court has been clear that all in the United States, citizen and non-citizen have First Amendment rights. In fact, 80 years ago, the Supreme Court in a case called Bridges V. Wixon, that involved the famous labor activist Terry Bridges explicitly said that those who are non-citizens are protected by the First Amendment. If all Khalil is being deported for, is his speech that’s protected by the First Amendment, using the statute in this way is unconstitutional.

Preet Bharara:

Isn’t there also a safe harbor provision in the very statute incorporated by reference as I understand it, that if you’re inadmissible or deportable, if that’s because of the alien’s past, current, or expected beliefs, statements or associations, if such belief statements or associations would be lawful within the United States, then you can do so unless the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest. So am I right that there’s a stronger test within the statute itself if the basis for removal is First Amendment speech?

Erwin Chemerinsky:

I wouldn’t say it’s a stronger test than the First Amendment. I would say it’s a parallel test to the First Amendment. Under the law he can’t be deported. And in addition, you have a First Amendment argument that says if it’s speech protected by the First Amendment, you can’t punish somebody by deporting them, even though they’re a non-citizen.

Preet Bharara:

Is the statute that I first quoted from, is that a valid and constitutional statute?

Erwin Chemerinsky:

On its face, it’s constitutional. The question is as applied, is it unconstitutional? And so I’ll go to what Joyce said. If somebody is engaged in criminal conduct that’s not constitutionally protected, this statute can be used as a basis for deporting them. But if all they’ve done is engage in speech protect by the First Amendment, then is applied the law wouldn’t be constitutional.

Joyce Vance:

So can we back up to a practice point that I think puts this into focus for me? I’m curious how y’all react to it. There’s this early fact pattern in this case where when Mr. Khalil and his wife are confronted in their apartment, originally he’s told by ICE agents that his student visa is being revoked. And that appears to be the basis for the government’s preparation for these deportation proceedings. They’re advised that he’s a green card holder. Apparently there’s some surprise about that, and they say, “Well, we’re revoking that too.” How do you think that fact pattern ends up playing into this legal analysis?

Erwin Chemerinsky:

I think it’s a context that shows the government’s action was improper to start with, but ultimately what the court’s going to have to decide is if the government wants to deport him now, is it consistent with the statute and deporting him violates the First Amendment.

Preet Bharara:

Can I ask a definitional question, Erwin? The statute I read referred to “alien.” A lot of people don’t like that term. It is a statutory term. Congress has approved it and it’s in the law books. What is the definition of that? And is a green card holder, legal permanent resident considered an alien under the statute?

Erwin Chemerinsky:

Generally the word alien has been used in federal law and by the Supreme Court to refer to non-citizens. And that would include non-citizens who are green card holders, non-citizens who are visiting the United States, those who are non-citizens who are undocumented. It would fit within that statutory definition. But of course, then there’s the rest of the statute we’re talking about, which seems so problematic here.

Preet Bharara:

Can I ask another question just so we have our parameters straight? This is a case about deporting someone who is a legal permanent resident, green card holder who was already here. If someone like Mahmoud Khalil had the viewpoints that he had, said the things that he has said from outside the United States, didn’t have legal status here and sought to come here on any kind of visa, would there be anything wrong or inappropriate or unlawful or unconstitutional about preventing his entry based on that conduct?

Erwin Chemerinsky:

There would be nothing that would violate the Constitution in keeping him out. There would be a statutory provision that would be problematic. In terms of the Constitution, the Supreme Court has said the First Amendment protects only speech within the United States. If it’s speech from outside the United States, then it wasn’t constitutionally protected. And the Supreme Court has given the government very broad constitutional authority to determine who gets to come into the United States. On the other hand, the statutory provision you read would make it difficult to exclude somebody solely because of their speech.

Preet Bharara:

What is the showing that has to be made by Marco Rubio, whoever the Secretary of State is, given that statute that I read, which is important to set the stage with, is the court and is the country supposed to defer completely and totally to the Secretary of State? What are the limitations on that?

Erwin Chemerinsky:

That’s what the Secretary of State and the President are saying. But such deference is inconsistent with the Constitution. Let me start again with the statute. It will require the government meet its burden by clearing convincing evidence. So it’s not as high as standard as in a criminal case, but has to be proved beyond a reasonable doubt. But it’s more than the usual civil case where just as we’ve proven is more likely than not. They’re going to have to meet that statutory burden. But then there’s the much more important constitutional question. Is there a basis for deporting him other than his speech? If not, then under long-standing Supreme Court precedent, this would be unconstitutional.

Preet Bharara:

So there is a range of behavior that we could conjure up that is beyond speech, but beneath criminal conduct. So he could be advocating for Hamas in a particular way or providing some kind of support for Hamas that may not be enough of a foundation for a criminal case. I’m just theorizing here, but that could be enough under the statute beyond speech. And is it possible that the government has such information that we don’t know about yet?

Erwin Chemerinsky:

Of course it’s possible. We don’t know what we don’t know, but I think it’s important to focus on exactly what is the basis for deporting him. If it is his advocacy for Palestinian rights, if it is his advocacy for what Hamas had done, if it is his criticism of Israel and Zionism, that can’t be a basis for deporting him. On the other hand, if he did other things that would be regarded as material support for a terrorist organization, then that could be a basis for deporting him. Imagine that he gave money to Hamas. Imagine even that he advised Hamas on what to do.

The Supreme Court in a case called Humanitarian Law Project versus Holder said that that could constitute material support for a terrorist organization. It would not be protected by the First Amendment, and then there could be other things that he did that would be criminal, that could be a basis for deporting him. So you’re absolutely right, it all depends on what is the government’s justification.

Joyce Vance:

And Preet as a practical point, do you have any doubt that if the government had evidence of material support here, that they would’ve brought charges to sidestep this whole controversy?

Preet Bharara:

Ordinarily yes. I think that this administration time and time again, alongside and on top of doing things that are nefarious, malicious, and intentionally unlawful… Visit cafe.com/insider to become a member and get exclusive access to our Weekly Insider podcast and other bonus content. Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Kate Shaw and Erwin Chemerinsky. 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 at @PreetBharara with the hashtag #AskPreet.

You can also now reach me on BlueSky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. 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 producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.