Preet Bharara:

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

Larry Summers:

This is gambling with the future of middle-class families. They, as taxpayers, are bearing ultimately responsibility for that debt.

Preet Bharara:

That’s Larry Summers. He served as Treasury Secretary under President Bill Clinton and later as Director of the White House National Economic Council under President Obama. After his time in government, Summers spent five years as President of Harvard University.

His experience makes him one of the nation’s leading voices on several of today’s major headlines: Tariffs, the so-called Big Beautiful Bill, and President Trump’s attacks on Harvard. Summers joins me this week to talk about all that and more. Then, I’ll answer your questions about the Kilmar Abrego Garcia criminal charges and President Trump’s new travel ban. That’s coming up. Stay tuned.

What kind of damage could Trump’s Big Beautiful Bill do? Former Treasury Secretary Larry Summers joins the show to discuss. Larry Summers, thanks for taking the time and being on the show. Great to have you.

Larry Summers:

Good to be with you, Preet.

Preet Bharara:

Do we call you President? Do we call you Secretary? Do we just call you Larry?

Larry Summers:

Let’s call me Larry.

Preet Bharara:

Okay. There’s a lot to talk about, much of it in your wheelhouse. Well, all of it in your wheelhouse that we’ll touch on. Can we start with the Big Beautiful Bill?

Larry Summers:

Sure.

Preet Bharara:

So Trump says it’s a Big Beautiful Bill. It will do a lot of things. It will improve the tax system. It will get rid of wasteful spending, he says. I don’t want to get into the psychological warfare between him and his erstwhile friend Elon Musk, but we can if you want, but that’s not why you’re here. Elon Musk says it’s an abomination and will saddle the US with much more debt than it can possibly bear. Who’s right, and why?

Larry Summers:

I think the bill is less big and beautiful than it is pointing to dangerous and deadly decline. I think that, as I look at the United States’ situation and our budget, it is a central problem that we have more debt relative to our income, than we had even right after the Second World War. That that’s true when things are good, when the economy is strong. And when the economy turns down, as it surely will at some point, the debt accumulation will get worse.

And so I ask myself, will there always be a market for all this debt, and are we taking risks of financial crisis? I ask myself, even if there is a market for this debt, wouldn’t it be better if the people who held this debt were making investments in new homes for Americans or new products to sell by the United States that make us more competitive? And I ask myself how long the world’s greatest debtor will stay the world’s greatest power in a very dangerous world.

And so, I would’ve thought that this was a moment when the fiscal priority should be getting debt under control, rather than accelerating the growth rate of debt. And the net effect of all of this, relative to its not passing, is going to be 4 or 5 more trillion dollars of debt accumulated over the next 10 years than we otherwise would’ve had. And I think that’s a big mistake for our country. And I think the projections people are relying on, even as dark as they are, are probably much too optimistic.

I look at what’s happening in China, look at what’s happening in Russia, look at what’s happening in Iran, and I think we’re going to have to increase military spending in our country significantly. And we’re not budgeting for that. I look at all of this borrowing. And maybe the federal funds rate will be in the 3s for most of the next decade, but that wouldn’t be my bet. And if it’s 100 basis points higher, 1 percentage point higher, that’ll add significantly 1% of GDP or more to the budget deficit.

So I think that we have failed to respect the first rule of holes: When you’re in one, stop digging. And that this is digging even faster, is what this bill does. And I think that’s a mistake.

Preet Bharara:

I must now ask you the question, what is the second rule of holes?

Larry Summers:

If the first rule of holes is stop digging, the second rule of holes is get out of the hole if it’s deep. And the third rule of holes is start filling it in.

Preet Bharara:

Okay. You always want to have three rules, like Isaac. Can I ask you to answer your earlier question, how long can country remain as great as it is if it’s the world’s largest debtor? I presume you wouldn’t say one year and I presume you wouldn’t say 40 years. Where in between are we talking about?

Larry Summers:

Look, I don’t think anybody can time with accuracy, this kind of thing. You’re taking a risk. And maybe people will keep extending you credit, maybe they won’t. So it’s really a matter of vulnerability. I think the odds are better than even, on our current trajectory, that we’ll have some kind of very alarming moment like the one that Britain had when Liz Truss was its Prime Minister, over the next four years if we continue on our current path.

But it’s not a certainty that it will happen. And if I had to bet on whether it will happen this year or not, I’d probably bet that it won’t happen. But if you wander across a crowded street in traffic, probably the cars will stop. But not for sure. And that means it’s not a very smart thing to do. And that’s the way I think about this as a national strategy.

Preet Bharara:

Do you think that Elon Musk has either the ability or the interest in using his resources and time to defeat the bill?

Larry Summers:

That’s a question that would be better addressed to people who know Elon Musk well and to people who specialize in the psychology of strong-willed personalities. So I’m not going to presume to make a judgment on that.

And I’m not sure that in terms of the Congress or in terms of the electorate, there are that many people who are in a hurry to get into a parade behind Elon Musk. And so even if he makes the attempt, just what his efficacy will be, I think is at least open to question.

Preet Bharara:

Yeah. And may be counterproductive?

Larry Summers:

Yes.

Preet Bharara:

So on the politics of this, let’s stick with the substance. Are there things in the bill that Democrats should like? I’ve read that there are Democrats who like some of these things that people thought were throwaway promises from the campaign, like no taxes on tips. What are some of those provisions that Democrats seem to like, and should they?

Larry Summers:

So I think there are provisions that represent a kind of pandering. No taxes on tips. Why should income derived from one source not be taxed and income derived from other sources be taxed? And won’t this drive a lot of compensation that’s now paid a salary into the more irregular form of, and less dignified form of, being tips? So that may be popular, but I don’t think you’ll find any tax policy expert who thinks that’s a good idea.

I don’t think you’ll find any tax policy expert who thinks that removing taxation on overtime work is a good idea. And you’ll find all kinds of people with clever schemes to label more work as overtime work and therefore cause it to escape taxation. The President has said something that I agree with. The President has said that this bill should eliminate the concept of the debt ceiling, or should allow the debt ceiling to be raised for many, many years so we don’t have these terrible debt limit spectacles every couple of years. And that’s a thing that all Democratic presidents and Democratic treasury secretaries have supported. And I think they’re right about that.

I don’t think anybody serious would say that every one of the tax provisions that is expiring should be allowed to completely expire. You need to have some set of orderly transitions. You need, for example, to be doing a reasonable job of maintaining incentives for research and development.

I don’t disagree with the notion that we need to be looking for ways to make government more efficient and to reduce expenditures, including through technology where that’s possible. The area that I know the most about from my time as secretary of the treasury is the Internal Revenue Service. And there, what’s happening could be really quite devastating in terms of our national tradition of tax compliance. My guess is that it’ll cost us a trillion dollars over the next 10 years, as more people fail to pay the taxes they owe and then don’t experience enforcement. And that then spreads a habit of tax non-compliance.

Preet Bharara:

Yeah, but in the political… So I agree with you and that makes sense. And when I was a prosecutor, we did a lot of tax enforcement, particularly with respect to high-net-worth individuals. But when Biden and Democrats propose adding to the ranks of revenue agents and enforcers, the Republicans seem to quite effectively talk about that in a way that turns off not just high-net-worth individuals, but rank and file Americans too. How do you get around that political difficulty?

Larry Summers:

By the way, I give the President and I give Secretary of Treasury Janet Yellen great credit. And the staff person who worked on all of that, my former student, Natasha Sarin, great credit for the fact that they did legislate successfully an $80 billion increase package for the IRS. What I have always emphasized is the tax compliance and taxpayer service have to go together. That we’re right to expect people to comply, but when they comply, they have to get their questions answered by somebody who picks up the telephone. They have to get their refund check sent in a reasonable time. If the government wishes to audit them, that has to be done with a presumption of innocence and of respect.

And so I think the reform of the IRS is a two-part thing that goes to taxpayer service and goes to the expectation of tax compliance. And I think the alternative vision, the Trump administration vision, frankly, is to eviscerate the IRS, treat people who pay their taxes as being chumps who don’t know better, and degrade what has always been a precious national asset for us. We’re not some Banana Republic in this regard.

Justice Holmes, Oliver Wendell Holmes famously said, “Taxes are the price we pay for civilization,” And those words are inscribed in the IRS building. And I think there’s something that is very, very important. And there’ve been moments when the IRS has not lived up to its obligations with respect to confidentiality, with respect to not abusing taxpayers. And that’s something government needs to be very focused on.

Preet Bharara:

So this issue of the debt, we hear about it year after year, decade after decade. And I do feel that for many ordinary Americans it’s very esoteric. And I don’t know that the average American who has a small business or works in a shop or is a teacher, or whatever they do for employment, understands how the galloping debt affects them day to day. Could you take a shot at that?

Larry Summers:

So I put it this way. Debt’s like everything else, it’s governed by supply and demand. And when there’s more supply, the price of debt is lower, which means higher interest rates. And so people have higher rates on their car loans, people have higher rates on their mortgages, people have higher rates on their credit cards because the government is competing with them in the market. That’s the first cost.

Second cost is people are more vulnerable. We are at more risk of some kind of financial accident like what happened to the country in 2008, where proximately it will be a problem in the financial sector, but there’ll be even more insecurity on Main Street than there was on Wall Street. And, people want to feel that they live in a country that can respond if there’s an emergency, whether it’s a national security emergency or a hurricane emergency or an earthquake emergency or another pandemic. And when we’re leveraged to the hilt, we don’t have that capacity to provide security.

And so for all those reasons, this is gambling with the future of middle-class families. We’ve got about $36 trillion of debt. That’s more than $100, 000 for the average American family. They, as taxpayers, are bearing ultimately responsibility for that debt. And I think if people thought of themselves as owners of that debt or as carriers of that debt, they would be better able to recognize the risks that are involved in it.

Preet Bharara:

That sounds pretty dire and compelling, and well-described. The next question is, speaking of holes and how to dig yourself out of the hole and to stop digging, how do we get out of that hole?

You have, I think, rightly described the reasons that the US debt burden has climbed. Recently you wrote, it’s because of the increase in the population aged over 65, which allows them to draw on entitlement benefits. Second is the increase in the costs of things the government pays for, including healthcare. And third is the interest payments the treasury is making. What the heck are you going to do about those three things which seem inexorable?

Larry Summers:

So you don’t fix a flat tire by finding where the leak is and putting air into it. So we’re probably not going to be able to fix the fact that more of us are over 65. We’re probably not going to be able to fix the fact that services like healthcare and education tend to trend upwards in price and we’ve already taken on the debt. But here’s some things we can do.

We can do a better job of enforcing the tax law we already have. And if we put the Biden program back in place and we executed it with serious information technology assistance, it could generate more than a trillion dollars in revenue over the next 10 years. Second, there are all kinds of tax shelters and ways in which the most fortunate Americans escape paying taxes. It is remarkable that the carried interest tax break at this late date still remains a feature of our tax code. It is remarkable how much it’s the case that the estate tax is fundamentally a voluntary tax for those who are well-advised.

When the debate took place in 2017, the business roundtable position was that the corporate tax should be reduced to 25%. In fact, it was reduced to 21%. There’s no reason why it couldn’t go back to 25%. So the first thing is, there are a set of measures we could take that would reform the tax system, that would also increase its fairness. And by encouraging people to do the most productive thing they could, rather than the best tax sheltering things they could, would also make the economy more efficient.

Second, there are substantial scope for savings in the healthcare area. It’s an area that probably requires more cooperation between the public sector and the private sector than we have had. Because otherwise, if you only try to cut the costs of Medicare or Medicaid, the burden’s felt disproportionately by those recipients. But we spend 8% more of GDP than most comparable nations and we certainly don’t get any commensurate benefits in return for that.

Third, we do need, and this is a place where I think Democrats have not put enough emphasis, to focus on accelerating the growth rate. If you ask, how was the budget balanced in the nineties? There was about a 7% of GDP improvement in the budget situation in 2001 relative to what was forecast in 1993. About 20%, maybe 30% of that, was due to the various measures that the President and Congress took to contain spending or increase taxes. The rest was the result of a big acceleration in productivity growth brought about by IT. It is insane for us to be slashing expenditures on science, given that science is the wellspring of economic growth. It is insane for us to be cutting back expenditures on early childhood education, that by making people more productive later in life are likely to pay for themselves.

So I would say acceleration of growth, focus on the containment of healthcare costs, and pro-economic efficiency, pro-fairness tax reform. That would be good even if we didn’t need to raise revenue. Those would be my areas of focus in reducing the budget deficit.

Preet Bharara:

Is the reason not to touch and reduce entitlements because it’s not morally right, because it’s not politically feasible, because it’s not good policy? None of those, all of those?

Larry Summers:

So, when I called for doing much more to contain healthcare costs, I was in a sense suggesting that reductions in-

Preet Bharara:

What axe were you prepared to wield, sir?

Larry Summers:

… Medicare. We could do more to contain pharmaceutical prices. We can do more to reduce reimbursement rates on Medicare Advantage. We can do more to curb various excesses in the private nursing home and retirement community sector. There are a set of… We can do more to curb unnecessary testing that is over-incentivized.

I think there is a question though, Preet. Many of my friends wouldn’t agree with me on this, but I can’t get myself excited by the agenda of saying… When the maximum Social Security benefit that somebody can get is a bit above $40,000 a year, and that $40,000 is going to be taxed, saying that we’ve really got to bite the bullet and contain that, just doesn’t excite me as a policy agenda. And it feels hard-hearted and mean-spirited.

And I thought hard about the question. Maybe Social Security benefits should be scaled back by being means-tested for the people who are wealthiest and most fortunate. And I understand that argument. If you wanted to take Social Security benefits away from people who are making $250,000 a year, you’d only save about 2% of the cost of the program and you’d be doing away with the idea that it was a universal program.

Preet Bharara:

And you’d lose political support, you’d lose broad political support.

Larry Summers:

You’d lose broad support. And the way I always put the question to people is I’d say, if Bill Gates had decided to send his kids to public schools, should he have had to pay tuition or should his kids have gone free like everybody else? And most people when they think about it say, nah, you probably shouldn’t have made Bill Gates pay tuition. Not because he couldn’t afford it, he obviously could, but because the idea of public schools as a universal program was an important thing. And I feel that way about Social Security.

Preet Bharara:

Can I ask about another aspect of the economy-

Larry Summers:

Sure.

Preet Bharara:

… much in the news? Tariffs, you’ve talked about this.

So a lot of people are or were suggesting that what Trump is doing with tariffs would lead to a recession. But I want to separate two things out. A, do you think that is true? And if so, is the likelihood of recession going to be higher because of the imposition of tariffs, or because of continuing uncertainty about the imposition of tariffs? And are those in fact different things?

Larry Summers:

So first, Preet, what’s clearest is that if you put tariffs on, prices go up. It’s just not that complicated. You import a toy from China, you put a 25% tariff on it. The toy store can’t absorb all that 25% tariff and so the prices go up. So the clearest link is with inflation. And of course when you have higher prices, it’s harder for the Fed to reduce interest rates. That’s the most obvious and clear thing.

Then, because people are paying those higher prices, they have lower incomes, less spending power, and therefore they’re able to buy less. And that pushes the economy downwards. I suspect that if the President had kept the program he introduced on Liberation Day, the economy would already be in recession. And so our failure to have recession doesn’t reflect the fact that tariffs are an effective strategy. It reflects the fact that the world has been governed by what people on Wall Street call the TACO trade.

Preet Bharara:

I was going to ask you about that.

Larry Summers:

Trump always chickens out.

Preet Bharara:

So if it is true that the idea of him being the TACO president takes root, that’s good for the economy, is it not?

Larry Summers:

It is good for the economy in a proximate sense, that one set of fears that people have go away. I think in a longer-term sense, one of our great national assets has been that we’re a country that is seen as being governed by the rule of law, by strong institutions, by being predictable.

People have done studies where they’ve said, if you imagine that a company owns a barrel of oil reserves in different places, where would you like to own a barrel of oil reserves? And the studies are predictable. The place where you’d most like to own a barrel of oil reserves is in the United States, in stable democracies. Other stable democracies are next best. Stable authoritarian countries are next best. And chaotic environments are least good. We’re moving along that, with the degree of erratic policy that we’ve had. And ultimately that’ll mean that the United States is less able to attract capital. That’ll mean lower investment in our country and that will mean more economic risk.

Preet Bharara:

I’ll be right back with Larry Summers after this.

This is an unfair question perhaps, a political question. Do you have some sense–you talk to a lot of people. You have a lot of sources of intelligence. You talk to elected officials, you talk to business leaders. What percentage of folks who are outwardly and publicly in favor of the tariff program are in fact on board analytically and substantively, versus on board because they fear the wrath of Donald Trump? Do you have any sense of that?

Larry Summers:

I encounter almost no one who thinks that this is a well-designed program in service of a thought-through strategy. That’s a very rare view. I think there’s some people who are reluctant to disagree with the President of the United States when the President of the United States has enormous influence and some demonstrated capacity and willingness to target their critics.

I think there’s another group of people who, rightly or wrongly, and I think mostly wrongly, have become quite disillusioned with trends and developments in the country and so, want to see everything shaken up. And so they’re supporting everything being shaken up, even if they don’t agree with all of the directions. And therefore are giving the President a quite substantial benefit of the doubt around these policies.

But I want to be very clear, Preet. As you know, I’m someone who served with President Clinton and President Obama. I come from the moderate part of the Democratic Party. I’ve had strong disagreements with Ronald Reagan’s economic policy, with both George Bush’s economic policies. But for the most part, those seemed to me to be reasonable arguments, where I had conviction on my side of the argument but I respected the judgment of others who came to the opposite of my conclusion.

I think much of the current tariff debate is in a different category. Where, even people who believe more in resilience policy than I do, even people who are more concerned with economic nationalism than I am, might favor a different set of policies than the ones that I would favor, but not the set of measures that have been put forward. And not the ad hoc and constantly changing set of measures that have characterized economic policy over the last couple of months. And I do think we have built an uncertainty premium into American economic life and we’d be better off without that uncertainty premium.

I’ll just say one other thing. I go back and forth on how long that will last and how serious it is. On the one hand, I’m someone who believes very much that it takes 30 years to grow a forest and 30 minutes to burn it down, and that credibility is like that. On the other hand, I’ve lived long enough to see that the transition from fear to FOMO can be very, very fast. And that Argentina has defaulted eight times since the Second World War, and then after being crazy, going right back into the marketplace.

So I think it would be a mistake for any of your listeners to assume that it’s all over for the United States or that we can’t get back on course if we make some necessary adjustments.

Preet Bharara:

The Phoenix can rise. Right?

Larry Summers:

Something like that.

Preet Bharara:

Well, I was just thinking… I don’t want to get off on a tangent, but I was explaining to my son, we were just talking about things as fathers and sons might. On this particular occasion, not about sports, but about how when I was his age, we were talking about my roommates in college. And how everyone thought that Japan was the absolute, undeniable near-term economic superpower of the world for, I’m exaggerating slightly, for the next millennium. And that didn’t come to pass. Is there any lesson in that as we talk about China?

Larry Summers:

Preet, I think when the children and grandchildren of the American establishment start learning a language, it’s time to sell the country short. That was right about Russia in 1959. That was right about Japan in 1989. And I think it’s been right about China in the next several years.

I think there’s a lot to be scared about with respect to China and the way they’re being governed and the way they’re interacting with the world. But my instinct is that they face very profound economic challenges in the years ahead.

Preet Bharara:

Right, but we should not rest on that. You said something recently, and I’ve been thinking about it since. You were speaking in the context of tariff policy and complicated economic dynamics, and you said there is a general principle in life. And this has really struck me. Your strategy needs to be more about building on strength than compensating for weakness.

So there’s a lot in that. Could you amplify what you meant, not just in the particulars of the context in which you were speaking, but as you said in the piece, I think it was in The Times, this is a general principle in life. How does it affect how leaders think about accumulating talents and skills and what they spend their time on? Because I think that’s very important.

Larry Summers:

So let me start with tariffs. If we import less, we will export less because our imports are inputs into our exports. So the question for the United States is, do we want to have more jobs in the sectors where we export, that tend to be high technology, or in the sectors where we import, which tend to be textiles, light manufacturing, and toys? And I can’t imagine why for most Americans it wouldn’t be better to have more jobs in what we’re really good at, than in sectors where others are better than us.

I think a different example in the broader principle is there’s more division of labor than there used to be. It used to be, to take your field, Preet, that people went to a lawyer. Then it was that people went to a litigator or they went to a corporate lawyer. Now, there are 13 different kinds of litigators with particular areas of expertise. And so, if someone wants to really succeed, are they better off finding a niche where they uniquely excel? Or are they better off just trying to be pretty good at a large number of things and taking whatever they’re worst at and trying to get better at?

When I see some area where I have no skill, unless it’s golf, I always try to figure out how to get somebody else to do that part of a task and to bring to bear the areas where I think that I have the most skill. And so I think it’s an idea for individuals as we think about our own lives. I think it’s an idea for countries. I think it’s an idea for companies.

Jack Welsh had a famous saying about companies, at least about GE in his day, that GE should either be number one or number two in a business or it should get out of it. And that’s a classic example of the idea of figuring out your strength, building on that, rather than trying to be everything to everybody. And as there are more and more tools, more and more ability to specialize, I think that’s going to get to be more and more true.

Preet Bharara:

I can’t let you go without talking about Harvard. You were the president of that university, I am a mere graduate of the college. And I have found in talking about the law firm executive orders, which my firm was a subject of, and also talking about Harvard, that it’s a little bit hard to explain why these fairly rich and powerful rarefied institutions being attacked by Trump, why that matters for everyone else.

And so I’ve spent some time doing that with respect to the law firms, and how obnoxious and disgusting attacks on the First Amendment, Fifth Amendment and Sixth Amendment, violate and threaten to violate everyone’s rights. Can you do the same for Harvard?

Larry Summers:

Yeah. If Harvard, with a $50 billion endowment, with an incredible reputation, and with a network of graduates, people like yourself in every state, every country, every walk of life, every sphere of activity. If Harvard can’t stand up to tyranny, who can? And so that’s why I think it’s so important that Harvard resist what is happening. And that’s why I’m so glad that our president, Alan Garber, has been as strong as he has been.

At the same time, I think that the mantra for Harvard and other great universities has to be “Resist and reform” because there are legitimate issues and concerns around antisemitism. The Biden administration had opened antisemitism investigations under the Civil Rights Act against many leading universities. And I, for one, thought they were right to do that. I thought they were right to point up double standards between antisemitism and other forms of prejudice, that were driven by the fact that the constituencies for antisemitism were often very much on the progressive side and very different constituencies than the constituencies for other forms of prejudice.

But that’s no excuse for doing away with any notion of hearings. That’s no excuse for having the punishments have no relation to the underlying acts. That’s no excuse for blatant illegality, like the intrusion into the affairs of individual taxpayers. But I think that tyranny creeps up and the people who have the greatest obligation to resist are the people with the most resources and who are strongest.

So I’m glad to see that. But I also want to emphasize that in order to maximize the strength of its position, the institutions like Harvard and other leading universities, have to show themselves to be deeply committed to reform, and frankly able to move with more aggressiveness and speed than they often have been in the past.

Preet Bharara:

This is call for speculation. So it’s not a courtroom, so you can’t object and you have no counsel present. Is there something about Harvard that has drawn Trump’s ire and not Yale or some other… Obviously Columbia has been in the cross hairs.

Larry Summers:

It’s a good question, Preet. A lot of people at Harvard have wondered about that question. I think one part of it is that for better or for worse, and sometimes it’s both, Harvard is iconic. When somebody’s looking to film a movie at a leading university, they tend to regard Harvard Yard as their first choice. So when you think of universities, you often think first of Harvard. That’s one important part of it.

I think a second important part of it is that Harvard did have a very difficult time after October 7th. It had stronger internal voices, immediately after October 7th taking Hamas’ side, than most other universities. And the response from the people who were then leading the university was not what many of us hoped it would be. And that left a lasting impression.

And I think our former president, who was caught in a very difficult situation and I don’t blame her… But it is a fact that her congressional testimony became the most watched video clip in the history of the US Congress. And it wasn’t one that showed the university to be aligned with prevailing values. And so I think that also made Harvard focal with respect to these issues.

Preet Bharara:

Larry Summers, thanks so much for your time. We have to have you back. There’s a lot going on that you can educate us about. Thanks again.

Larry Summers:

Thank you.

Preet Bharara:

My conversation with Larry Summers continues for members of the CAFE Insider community. Now is the time to stay tuned to what’s happening. To support our work and get access to exclusive Insider content, join our community. Head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I answer your questions about the Kilmar Abrego Garcia indictment and President Trump’s new travel ban.

Now let’s get to your questions.

This question comes in an email from Marco, who writes: “Now that Kilmar Abrego Garcia has been returned to the United States and will apparently face trial, what do you think are his chances of acquittal?” So the short answer is I don’t know. I have no idea. There’s not a ton of information that has been laid bare yet. The proceedings will unfold at some deliberate pace and we’ll see. But I do want to say a few things about that case.

Joyce Vance and I discussed the matter at some length on the CAFE Insider podcast and I commend it to your attention if you’re interested. But just to set the stage, you’ll recall that Mr. Garcia, depending on your point of view; wrongfully, maliciously, accidentally, whatever adverb you want to use; sent to an El Salvador prison, even though there was a standing order against his deportation due to a judge’s order that found he would face retribution and victimization if he went back to that country.

And there was a huge standoff. Would he come back, would he not? Supreme Court said that the administration was supposed to facilitate his return, and there was a lot of talk about a constitutional crisis. Well, in the last number of days, he did return. And federal officials unveiled an indictment accusing him of unlawfully smuggling migrants into the US. He’s charged with one count of conspiracy to transport aliens and he’s charged with another count of unlawful transportation of undocumented aliens. So there’s a conspiracy count and, as we say, a substantive count.

In addition, outside of the four corners of the indictment, prosecutors in making public statements and also in a filing they made in pursuit of detention for him pending trial, have made other serious allegations, including saying that he was involved in gun smuggling and even soliciting child pornography.

So, first a couple of general points. The return of Mr. Garcia and the fact that he will face an open trial in an open courtroom and he’ll have defense counsel, to me is from my perspective, a victory for the rule of law. You will recall that significant officials in the administration who said under no circumstances would Garcia be brought back to the United States, which looked like it was going to be in open defiance of various court decisions from the District Court all the way to the Supreme Court.

Just as a reminder, Department of Homeland Security Secretary Kristi Noem said under oath in a hearing before Congress, “There is no scenario where Abrego Garcia will be in the United States again.” The Attorney General herself said some weeks ago, “He is not coming back to our country.” Well, he’s back. Which means among other things that the administration decided ultimately, putting aside whether or not they thought they have enough evidence for an indictment, they ultimately did not defy court orders that were going against them. And the question of contempt for members of the administration on this case is, for now, off the table. And that’s the way the system should operate.

I keep coming back to a phrase from Judge Wilkinson’s decision in this case from the Fourth Circuit. And he said in that decision, basically, the administration accuses Mr. Garcia of being a terrorist and being a member of a gang. And he says, and this is critical, perhaps, perhaps not. The judge said, if it’s true, the government must prove it. That’s the way the system works. You can’t make allegations, throw them into the wind, take extraordinary action, don’t take responsibility for that extraordinary action. You got to prove what you allege. And that’s what’s now going to happen.

So now let me try to address a little bit more the question of the likelihood of acquittal versus conviction. Let’s begin with the premise and understanding that you probably know of, that virtually all federal defendants once charged, do get convicted. Most of them don’t even go to trial, they plead guilty. Second, as I said at the outset, it’s not clear what all the evidence is that they have. The charges are quite serious. They’re not super detailed. In the non-speaking indictment, we are given to understand that federal agents have spoken to various co-conspirators. Some of them may be difficult to put on the stand, they may have tough cross-examinations. There could be arguments that they’re making up or exaggerating or tailoring their testimony because that’s what the federal government wants.

But at the end of the day, if they have multiple cooperating witnesses who testify credibly, conviction, I think is likely, depending on what corroboration they have. And we don’t know the answer to that question. Third, I’ll say all this bad treatment of Mr. Garcia, all this other stuff we’ve been talking about, likely won’t be admissible at trial. The fact that he had a bad faith deportation, the fact that he spent time in that notorious prison and shouldn’t have. All the litigation, all these decisions we’ve been discussing that preceded these charges won’t be made known to the jury in all likelihood because they won’t be found to be relevant to his guilt or innocence.

Now, I understand the elements of skepticism here. The theory, I guess, would be that the Trump administration sent an innocent man who was just minding his own business to a notorious prison in El Salvador. And now that they have egg on their face and they’re supposed to bring him back, as a face-saving maneuver they somehow figured out a way to manufacture evidence, convince a grand jury that Mr. Garcia is guilty of serious crimes and decide to go to court. And people ask, understandably, if they knew he was a criminal before and they had this evidence before, why didn’t they bring the case? That must mean in the minds of some that this is all manufactured.

I don’t really buy that. We’ll see at the end of the day, whether the case is strong enough to sustain a good, vigorous defense. We’ll see at the end of the day if they have corroboration for these cooperating witnesses. But this question or issue or worry that they didn’t charge a Garcia before and why are they charging him now, as an initial matter that also, like all these other proceedings, won’t be before the jury. They won’t be able to speculate on that and be told about that, I don’t imagine.

But overall, that delay in charging him is not necessarily a weakness in the case, though it may be a failure of diligence and/or a reflection of laziness. They didn’t do their homework, they didn’t get their ducks in a row, and once there became a reason, whether it’s a good faith reason or a bad faith reason, to figure out what to do with Mr. Garcia, once he became a cause celeb agents went to work and found evidence of the crimes that they have charged.

I’m not saying it’s a perfect case. I’m not saying he’ll definitely be convicted. But I do still presume that if prosecutors decide to go to court to obtain an indictment based on the rules and the policies of the department itself, they believe, and are likely correct that they have a significant likelihood of conviction.

By the way, speaking of these issues, I did spend some time discussing the political ramifications raised by these topics with my friend, journalist Tina Brown, live on Substack. You can find that video on our YouTube channel. The link to it is in the show notes.

This question comes in an email from Sandy, who writes: “How does the 2025 travel ban differ from the 2017 version in terms of scope, legal structure, and implementation?” Sandy, that’s a good question. Just as a reminder, as you may recall from President Trump’s first term, there wasn’t just one travel ban, but three separate attempts because there kept being problems found with each iteration.

The initial ban in 2017 was introduced quickly and shockingly without proper planning or sufficient legal groundwork. The abrupt rollout, you may remember, resulted in widespread confusion at airports, resulted in detentions of travelers mid-journey, and massive public protest. It wasn’t clear if people who were Green Card holders could come back to the country or not. The Supreme Court initially rejected that first ban, ruling that it lacked clear justification and that also it unfairly targeted people based on their nationality and religion. That is a constitutional no-no.

Following that setback, Trump’s administration went back to work and they revised the policy multiple times. Eventually, by their third try, they created a version structured carefully enough to ultimately gain approval from the Supreme Court in the landmark case, Trump v. Hawaii, in 2018. So as you might imagine, as is true with lots of other things and features of the Trump administration 2.0, his team clearly internalized the travel ban experience from the first term, and this time they crafted the ban with a bit more legal precision.

That full ban, the current ban applies to foreign nationals from 12 countries: Afghanistan, Myanmar, Chad, the Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. There are also heightened restrictions that apply to people from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela. That current ban is at least nominally or formally supported by a detailed security review, which cites concrete reasons for targeting specific countries; the ones that I mentioned; including weak vetting processes, persistently high visa overstay rates, and significant terrorist activity.

You also may note that many of these countries are not majority Muslim, unlike the first ban in 2017, which earned the moniker “Muslim ban.” In addition, the new policy explicitly exempts certain groups such as Green Card holders, dual citizens, and refugees who’ve already been admitted. Also, individuals with valid visas or immediate family ties in the US. That’s also quite different from the 2017 approach, which blocked travelers even if they had existing legal status.

Oddly enough, Egypt is not on the list, even though Trump went out of his way to explicitly cite an Egyptian man’s involvement in that recent Colorado terrorist attack when announcing this ban. Trump justified the exclusion by describing Egypt as having security measures “under control” and being a reliable partner. Not surprisingly, critics of the ban say that this omission obviously undermines the administration’s stated security rationale, which they say should prompt questions about potential political considerations behind the list, the current list.

So are Trump’s motivations for this new travel ban dubious? Well, there’s a pretty long track record of both rhetoric and action that I think would support that conclusion. But I will tell you from a legal perspective, regardless of the underlying motivations, there’s a pretty strong likelihood that the Supreme Court will uphold this ban if they get to it.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Larry Summers. 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 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.