Preet Bharara:

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

Ruth Marcus:

It was pretty astonishing that the administration representatives could not get their act together to be telling the same story simultaneously. Also, a sign of an administration that’s not ready for prime time.

Preet Bharara:

That’s Ruth Marcus. She’s a columnist and former editor at the Washington Post. Marcus recently made headlines after she resigned from the paper following nearly four decades, citing concerns over the paper’s shifting standards in its Opinion section. In our conversation today, we discussed the Trump administration’s stunning blunder of accidentally adding a journalist to a text chat, the mood inside the Department of Justice, and some personal advice on how to recognize when it’s time to resign from your job. That’s coming up. Stay tuned.

Hey, folks, big news. We’re coming to Substack. Starting April 7th, all of our newsletters will be published on Substack and sent directly to your inbox. You can visit the Substack website or download their app to access our archive, plus engage with the wider Stay Tuned community, including me, via chat. Again, we’re coming to Substack starting April 7th. We look forward to seeing you there.

What happens when the White House accidentally adds a journalist to a text chat about military plans? Ruth Marcus joins me this week to talk Trump, the Department of Justice, and the judiciary. Ruth Marcus, welcome to the show.

Ruth Marcus:

Hi, Preet. Thanks for having me.

Preet Bharara:

We were discussing, before we hit the record button, that, gosh, there’s nothing to talk about. Whatever will we discuss today?

Ruth Marcus:

There’s nothing to talk about, and there’s nothing to talk about on Signal.

Preet Bharara:

Yeah, exactly. As I mentioned earlier, you made the first Signal joke. So I need to point out for the record and for listeners, who almost all of whom will know who you are and will likely also know that you resigned from the Washington Post on principled grounds, which you stated, and I understand from speaking with you that you feel like you’ve said your piece on that. And you don’t want to talk about the Washington Post today, and it’s lucky that we have a lot of other things to talk about. And I respect that.

Ruth Marcus:

Thank you.

Preet Bharara:

So let me start in a different place, with respect to journalists, have you ever been accidentally added to a Signal chat about war plans?

Ruth Marcus:

Alas, no. But we were talking about how small a world it is and how our former interns grow up to be so important.

Preet Bharara:

Yeah.

Ruth Marcus:

So he was not my intern, but when he was a summer intern at the Washington Post, I was the professional partner for one Jeffrey Goldberg, now the editor-in-chief of the Atlantic, or also known as, I think it was Mike Waltz who called him this loser.

Preet Bharara:

I think the president called him scum.

Ruth Marcus:

Yeah. Maybe that was generally the Atlantic. Anyway, I have never been added to a Signal chat, but I look forward to that day.

Preet Bharara:

Now, if you had been, I don’t want to second guess, but you are an award-winning journalist of a high caliber, and there has been, as I predicted, as many people predicted, instead of self-reflection on the part of the Trump administration and the cabinet secretaries and the intelligence community and the mea culpa, rather many of them have begun to attack Jeffrey Goldberg, I know he doesn’t go by Jeff. Could you explain from a journalistic ethics perspective how you’re supposed to respond if you find yourself in that peculiar situation, both as a citizen of the United States of America and caring about national security? Did Jeffrey Goldberg do it by the book?

Ruth Marcus:

I think there is no book for this one.

Preet Bharara:

Yeah. Yeah.

Ruth Marcus:

If you are… Look,

Preet Bharara:

There’s no reading.

Ruth Marcus:

There is no reading, because, well, first of all, we’re in kind of strange new territory technologically. But look, people get misaddressed probably all the time, certainly in the age of email and the age of texting. If you were a law firm and you were sending me, and I know at the end of all law firm communications is, if you get this in error, you must delete and everything else.

Preet Bharara:

Yeah.

Ruth Marcus:

I don’t think journalists are bound in any way by those admonitions.

Preet Bharara:

Yeah.

Ruth Marcus:

I would not feel myself bound by those admonitions.

Preet Bharara:

Should they be?

Ruth Marcus:

No. I mean, if you’re… I’m sorry, I am going to sound tough here, and then I’m going to sound responsible.

Preet Bharara:

It’s okay.

Ruth Marcus:

Here’s the tough part. If you are a sloppy enough law firm partner to send me an email about how, say, you want to poach a partner from another firm, and it’s directed to me and I think it’s newsworthy, you are out of luck. I won’t use the adjective that goes along with that. However, if you are a responsible journalist, like I think I’d count myself in there, and I have called him Jeff for many years.

Preet Bharara:

Oh, I felt like he was a Jeffrey guy.

Ruth Marcus:

No, I think there is an email that has Jeff in it, as I recall. In any event, if you were, Mr. Goldberg, sir, and you received this, and then I think any responsible journalist would… And it was literally battle plans. I mean, this is when you talk about prior restraint, right? The one thing that the courts have said you could conceivably achieve a prior restraint on, it would be troop movements. So this is effectively, literally, troop movement.

Preet Bharara:

Yeah. In real time.

Ruth Marcus:

In real time. You would look at this, and you would say, “Holy crap, I can’t publish this,” and you would withhold. And there are conversations, responsible conversations between journalists and administrations all the time, and you’ve probably been involved in some of them-

Preet Bharara:

I have.

Ruth Marcus:

… in which an administration will say, “Well, call up the reporter and then go to the executive editor of the newspaper and say, ‘This is hugely sensitive for this reason. It involves human intelligence sources who might be at risk,'” or something else. And there will be a responsible negotiation back and forth between newspaper or news organization and government officials to try to see if things could be delayed, if language could be fuzzed in some way.

So I think that there is just no question in my mind that Jeffrey did the responsible thing by preemptively, even before he reached out to the government to say, “Excuse me, I was on your Signal chat,” to behave in a responsible way. And then, classically for the Trump administration, instead of being appreciated and thanked for that, thank you is not in their vocabulary when it comes to journalists, he is trashed and he is questioned. And I think now that the moment has passed that the troops have moved or whatever, it’s perfectly appropriate for him to then, especially in light of the questioning of his motives and behavior, to go ahead and publish the entirety.

Preet Bharara:

Which is… So to timestamp this for listeners, you and I are having this conversation on Wednesday morning, March 26th, and just in the last two hours, as you allude to, Jeffrey or Jeff, whatever his name is, released more, I don’t know if it’s the complete text exchange-

Ruth Marcus:

I think it’s the complete.

Preet Bharara:

… but more of the text exchange. Maybe it is. In light of the administration insisting again and again and again that there was nothing classified. Now, in ordinary circulation of documents, in the old world, when you have an actual memo or an action document, there might be classified markings on them. Signal doesn’t provide the option and the opportunity to label information and content in their texts classified or unclassified. So I guess they’re standing by, in part, a lack of labeling of the texts. But by any measure, based on the conversations I’m sure you have had with experts, is there any getting away from the fact that this was classified information in the classic sense?

Ruth Marcus:

Troop movements, plans for military action, explicit, planned, identified military actions seem to me to be the essence of classified information. I think this gets into two things that we should talk about. The first is the use of Signal as a means for communication. It is my understanding, I do not live in this space, that it is highly improper, whether the information is classified or not, for this kind of discussion to be happening on Signal. Not just improper, it’s literally not permitted under the rules of how senior government officials in multiple agencies are supposed to communicate among themselves. One of them was in a foreign country, and maybe Russia-

Preet Bharara:

Moscow.

Ruth Marcus:

… at the time these conversations were happening. Yes. So this is not done, it is not done for the reason as impervious as we might hope that Signal is, to spying by other countries. It is perhaps not. And we have spent millions, billions of dollars on channels of secure communications.

The second thing that we should say is, while Jeff properly withheld this information because it was so sensitive, there is no rule that it is of responsibility or patriotism or anything else that makes it incumbent on a journalist to say, “Whoa, this information is classified. I can’t report it.” That is actually the antithesis of how we go and think about things. The obvious example here to go back to is the Pentagon Papers. The government argued in the Pentagon Papers that this information was classified, the history of the Vietnam War, that it drastically and gravely threatened the national security. The newspapers could not go ahead and publish it. Newspapers need to behave in a responsible and patriotic manner, as Jeff did, in terms of not putting troops or intelligence sources or anything at risk. And that’s why we have these conversations. But there is no rule against newspapers publishing classified information, or websites or other news organizations. I’m a print dinosaur, so I’ll just say newspapers.

Preet Bharara:

That’s okay. Look, one of the reasons you want protocols of how you can communicate and where and on what platforms is the reasons you mentioned with respect to Signal, there are also Presidential Records Act issues and preservation issues and transparency issues for the future, but also proper channels are hard to screw up, right?

I work at a law firm, and early on in my tenure back in private practice… I don’t think I’m giving away a trade secret here. I have lots of friends in the ordinary course who are journalists and whose email addresses are at journalistic organizations, including the Washington Post, New York Times, ABC News, etc. And the first time I tried to email someone, “Let’s get lunch,” the email wouldn’t go through. Because there is a system in place where certain domain names, including, I guess, all the traditional press and media outlets, are not blocked permanently. You just have to do something. You just have to, I’m not going to say what it is, but you have to insert a character or characters into the email so that you are making sure and you’re careful about who you’re intending to send. So am I intending to send my lunch invitation to Ruth Marcus, or is this really a sensitive client issue that I’m trying to send to Ruth Smith, who’s the client or the general counsel of the client?

Ruth Marcus:

Oh, that is so… Lawyers are so smart.

Preet Bharara:

Well, I haven’t inquired about this, but I’m sure it occurred, because there was this… Once upon a time, there was probably a mistake along those lines, and someone decided we need to fix this. But if a law firm can do that, the Department of Defense can do that, right?

Ruth Marcus:

Indeed. And also, this is why God invented Gmail, so we can get around these things. Because I actually… When you were starting to tell this story, I was wondering if it was also a mechanism to make attorneys or others think twice before they communicated with media organizations.

Preet Bharara:

Yeah, I think so.

Ruth Marcus:

Because the law… Because Big Brother might be watching.

Preet Bharara:

I think it’s mostly to avoid the inadvertent population of the two line… Look, we’ve all had that happen.

Ruth Marcus:

Yeah.

Preet Bharara:

I’d had that happen on Gmail, nothing dramatic, because I haven’t personally been involved in missile attacks in Yemen against the Houthis or otherwise. So it’s not as dramatic, but it is something to look out for.

Now, can we talk about the reaction of this administration? Is it par for the course, or is this something different in kind? The easiest thing in the world would have been, and I’m not the first person to say this, “Look, we screwed up. Shouldn’t have happened. We’ll take a look at it.” And the person who’s going to take a look at it is not going to be Mike Waltz, the national security advisor, who’s actually the individual human who appears to be most responsible for the screw up, but some outside person. And even in the headline, in the Atlantic, the word that looms large is accidental. Why didn’t they do that?

Ruth Marcus:

If there’s one thing that we’ve learned about Donald Trump, though I have to say he did come the closest to just saying, “This was an accident, it was a mess up, and let’s move on,” in his initial response. But this is a president, and therefore an administration, whose instinctive response is fight back, push back, strike back. So they don’t know how to… As grownups have learned, and I’m going to count myself among grownups at this late point, apologizing is a very effective tactic. Saying I messed up is a very effective tactic, because then you’ve sort of defused the whole issue. They’re not kind of, I use this word constitutionally advisably here.

Preet Bharara:

Yeah.

Ruth Marcus:

They’re not constitutionally capable of that. They’re just fighters. And it’s both ineffective and counterproductive, because now they have the whole thing out on the table, which they might not have. And also, this kind of goes back to what we’ve been talking about before. The normal, productive, necessary healthy interchanges between administrations and media are, I think, chilled from going on in this environment where you can’t think that there are two sides who respect each other and are dealing with each other in good faith. There’s one side, the administration side that talks about my side as the enemy of the people and scum and all sorts of things like that. And this is, I would say, not smart.

Preet Bharara:

So we are now at, I guess, day two or day two and a half of this coming to light. And it is dominating headlines, it’s dominating cable news, it’s dominating social media. What about this is causing it to be sort of more on display for maybe a longer period of time while 50 other things are going on simultaneously? What’s different about this, if it is different, than the other craziness we’ve seen in the last nine weeks?

Ruth Marcus:

It’s just so tangible, and it’s so obviously scary and dangerous. You don’t have to understand the complexities of the Alien Enemies Act or understand how a normal Justice Department would talk to a respected federal judge. It’s just they wanted to… Here was their bombing plan, they looped in a journalist on it. What should we make of these clowns? It’s just there are really complicated things that you talk about on the podcast every week and that I write about every week that our job is to translate to people and to help them understand why this complicated thing is so important. This is one where that doesn’t need any translation.

Preet Bharara:

Yeah. Can I put to you something you said before this whole scandal on a different podcast and ask you to opine on whether or not this is what’s going on here? You said quote, “For all of the chest thumping about the terrors of DEI and how it has caused planes to fall out of the sky and things like that is the absolute absence of meritocracy among the personnel choices of this administration. There has never been an administration that has been populated by less qualified, less meritorious, less experienced people than the Trump administration.” Pete Hegseth. Discuss.

Ruth Marcus:

QED. I mean, you are a better lawyer, I presume. I am a better journalist, for sure, because the baseline was low, than I was when I started in this business 40 plus years ago. We all learn and have judgment, and you cannot go from being, I think we now know definitively, you cannot go from being, yes, a combat veteran, but mostly a bombastic Fox News host who has run a teeny weeny, and not run it very well, veterans organization to being astride the largest organization in the federal bureaucracy, the largest organization in the country with all the complexities that that entails. And same for many of the other people, except Jeff Goldberg, who were on this Signal chain. And experience matters, and lack of experience shows. So take your DEI there. I’m very thankful that you pulled up that sentence, which I had completely forgotten.

Preet Bharara:

No, I think it was well put. So what happens to these people? Does there come a time when Trump cuts bait? I mean, clearly, Mike Waltz is not going anywhere. Support has been expressed for him. Does it reach a tipping point, or we’ll never see that?

Ruth Marcus:

Tipping point has not occurred yet, so therefore, what do they say on prospectuses? “Past performance doesn’t guarantee future results, but it might suggest them.”

Preet Bharara:

Right.

Ruth Marcus:

There was some, I think, pretty bipartisan… Though I was immersed in something else for most of the day yesterday, some pretty bipartisan unhappiness on Capitol Hill yesterday. So that’s a good sign. It was pretty astonishing that the administration representatives could not get their act together to be telling the same story simultaneously. Also, a sign of an administration that’s not ready for prime time. But one thing that we’ve learned in Trump world is that the carnival moves on, there is this clown car episode today, and then there’s going to be another one, perhaps less juicy, two days from now. And I might be stretching out the timeline too much. So we just move on to the next outrage.

Preet Bharara:

I have two comments based on what you just said. It’s interesting that you said these folks are not ready for prime time, because they’ve literally been plucked from prime time, right? Pete Hegseth, Dan Bongino and others. There is not an understanding and an appreciation for the concept that television prime time is not the same thing as Cabinet Secretary prime time. And is that as predictable for Donald Trump as his loyalty and deep belief in tariffs, which he’s held for 30 something years, that if you are good on TV, you must be good at the thing that you talk about on TV?

Ruth Marcus:

Yes, good on TV, and that includes really attractive on TV. Donald Trump has always loved people who looked the part. He liked Neil Gorsuch as a nominee for Supreme Court because he looked the part. There’s others for whom the not looking the part didn’t say that. He was turned off by John Bolton’s mustache, and perhaps should have followed that instinct since they didn’t end up having the greatest relationship. But looking the part and performing on TV is nothing like performing in the job. I’ve written about the Justice Department for many, many decades, and you know what? No one should make me Attorney General.

Preet Bharara:

Well, you’d be better than some if the first rule is do no harm. The other thing you said was that the carnival moves on. And I think that’s generally right. But if I look back on recent history in the Biden administration, there are some things that end up happening, or back to the Bush administration, from which an administration just doesn’t recover. Katrina for George W. Bush. There are arguments made that the big fall in Biden’s popularity came after the withdrawal from Afghanistan, from which he never recovered. Now, those two politicians don’t defy political gravity and the laws of physics or political physics in the same way that Donald Trump does. But you may weigh less on the moon than you weigh on earth, but you weigh something. So I think that the laws still apply somewhat. Do you believe that too, or do you think he’s completely Teflon in every way?

Ruth Marcus:

He’s not completely Teflon in every way. I’m really glad you broadened out those transformative or lasting moments to include Afghanistan, because I think that’s really the Signal one for the Biden administration, along with, and I don’t want to get into a debate about whether it was his fault or not, but along with inflation and the proverbial price of eggs.

I think there are two kinds of sticky moments. One piece of stickiness is really terrible underperformance on major questions, major questions like Afghanistan, major questions like the war in Iraq. The other stickiness is a kind of sentence or a quote about them or uttered by them, but administrations on both sides, that really encapsulates the administration. There was a famous quote during the George W. Bush administration that deficits didn’t matter anymore, because they didn’t have to… And this administration didn’t need to be reality based when Nancy Pelosi allegedly said that she needed to read the Affordable Care Act in order to find out what was in it.

So sometimes these sticky moments are fair, sometimes they’re unfair, but there are these small-ish events. And I think this Signal episode is a small-ish event. If you compare it, say, to the failure of the withdrawal of Afghanistan. In the end-

Preet Bharara:

No, totally. Yeah.

Ruth Marcus:

… it wasn’t leaked, no one died, the operations went on. It’s illustrative. S this is an illustrative problem that may stick with people, but I do have to then come back and a little bit argue against what I’ve been saying and argue against your premise. There is a layer of Teflon that Donald Trump has that is greater than others. But also, there is, especially among the population right now, there is an imperviousness to events that do not assault them directly. So economy, economy, economy, stupid, that in the end, I think, is going to be what keeps Donald Trump afloat or brings him down.

Preet Bharara:

I’ll be right back with Ruth Marcus after this.

You know, when you were mentioning these sort of phrases that become etched in people’s hippocampus, I thought you were going to say, and I’m forgetting the exact phrase because I haven’t thought of it in a long time, but during Hurricane Katrina, didn’t George W. Bush say to the head of FEMA, “Heck of a job, Brownie” or something like that?

Ruth Marcus:

“Heck of a job.” That is actually… As I was talking-

Preet Bharara:

“Heck of a job.”

Ruth Marcus:

… I was grasping for the perfect one. And that’s a pretty good one. And another one of a George W. Bush special was when he was campaigning in New Hampshire, I believe, and read his stage directions, which was “Message I care.”

Preet Bharara:

Yeah. Well, he has a few.

Ruth Marcus:

But, “Heck of a job, Brownie,” is the ultimate.

Preet Bharara:

Mission accomplished, which didn’t come out of his mouth.

Ruth Marcus:

Yeah. And mission accomplished.

Preet Bharara:

There’s a few of them. What about some other folks? This is like an unfair question, because it’s a rhetorical question, really. Is Alina Habba qualified in any way to be the United States attorney for the district, the entire district of New Jersey?

Ruth Marcus:

Does Alina Habba have… I want a rhetorical question back at you. Does Alina Habba have any prosecutorial experience?

Preet Bharara:

No, but I-

Ruth Marcus:

Answer, I believe no.

Preet Bharara:

Yeah. But that is not sufficient. It’s interesting, to be fair and look at the sweep of history, nobody cares anymore that Chris Christie didn’t have any prosecutorial experience. The next US attorney in the Southern District, Jay Clayton, if he gets confirmed, will have had no prosecutorial experience. A legendary prosecutor… And I’m not shilling for people with no prosecutorial experience, I think it’s preferable. Bob Morgenthau, I don’t believe he had any prosecutorial experience before he became the US attorney in the sixties. And you can’t say Robert Morgenthau without the antecedent, the descriptive adjective legendary. So it can be done. But the absence of both expertise, experience and also judgment is, I think, a problem.

Ruth Marcus:

I hundred percent agree. I happen to actually, for something that I’m working on now, have just been reading about a sanctions order for close to a million dollars that was issued against-

Preet Bharara:

Oh, yeah. Against whom?

Ruth Marcus:

… Alina Habba and Donald F. Trump in litigation that was, that they brought against among others, Perkins Coie and Hillary Clinton, arising from the conduct of the 2016 campaign. And this lawsuit was deemed to be so irresponsible and unjustified by the federal judge who took, in a land speed record, tossed it out, and then granted the sanctions motion. The sanctions are now on appeal, I believe, to the 11th circuit. But it was a yet another illustration. And I think we saw this in her performance in court, that perhaps Alina Habba is no Bob Morgenthau.

Preet Bharara:

It’s funny, it’s not funny because none of this is actually funny, but I’m going to say funny anyway in the sense that people I think understand it, nine weeks in, these presidential orders and executive orders and memoranda get issued, Joyce Vance, and I talked about one of them from last Saturday, I think March 22nd, that is all about making sure that there’s accountability for lawyers who violate the code of ethics, who make frivolous arguments, whatever. And some of these orders take on a quality that you wouldn’t expect in a presidential order. And it’s sort of like they’re autobiographical. Like, “I’m talking about myself.” It’s almost like a cautionary tale to oneself. And I hate the term, and I use the phrase from time to time, gaslighting. Can gaslighting just be used in perpetuity against a credulous base, or is there some end?

Ruth Marcus:

If you have no shame, you can constantly gaslight. And this is exactly the context, by the way, in which I was reading this sanctions order against Alina Habba. Donald Trump, in the course of this sanctions order, I’m not going to get the quote exactly right, the judge talks about how Donald Trump had been a master practitioner of vexatious litigation. So of course, the master practitioner of vexatious litigation is the one that it has the gall… Because I don’t think gaslighting really captures it. I’m going with gall.

He has the gall, time after time after time, including in this horrifying spate of executive orders against lawyers and law firms, to accuse responsible law firms who are, by the way, bringing responsible lawsuits against on issues such as the executive order on transgender rights or lack of transgender rights, the executive order on birthright citizenship lawsuits, trying to protect voting rights. And he is describing those as sanctionable when he is the one, time after time, who has engaged along with his lawyers, and the lawyers by the way, with which he is populating the Department of Justice of the United States and has ordered them to enforce this sanctions order. He is the one who was perpetrating it and without any shame whatsoever, just gets up there and accuses others of doing what he does in spades.

Do I sound a little worked up about this? I’m really worked up.

Preet Bharara:

Not worked up enough, Ruth Marcus.

Ruth Marcus:

Just get me started.

Preet Bharara:

We have a long way to go, so pace yourself. I mean, for an hour and also for four years more to go, if it’s only four years. Do you have an understanding or a sense of what the mood and feel is at the Justice Department at the moment?

Ruth Marcus:

Well, I assume you’re talking about the career staff.

Preet Bharara:

Yeah.

Ruth Marcus:

Beleaguered, despondent. Obviously, this is very broad. It does not include everybody. It depends where you are. You may be a line prosecutor in a US attorney’s office in the heartland or someplace where you are continuing to bring your bank fraud cases or your gun trafficking cases or whatever else is the bread and butter of the Justice Department, and you are proceeding unbothered and interfered with by the turmoil. And let’s call it for what it is, here’s another misuse of words, the weaponization at the top of the Justice Department.

At the same time, if you are, say, a line prosecutor in the US Attorney’s Office in the District of Columbia where we have yet another not Bob Morgenthau interim and nominated to be permanent US attorney with not only no prosecutorial experience, but I would just say no evident judgment in our understanding of what the role of a prosecutor is, you are probably feeling sick to your stomach. And if you are one of the extremely experienced prosecutors who were doing your job representing the United States and bringing totally justified charges against people who had ransacked the capitol and caused immense physical harm to capitol police officers and others and you have been punitively transferred after your many years of experience to bring misdemeanor cases as a result of this, you are probably feeling heartsick.

If you are a lawyer… I’m just going to keep going for one more second.

Preet Bharara:

Keep going.

Ruth Marcus:

Sorry. If you are a lawyer in the Civil Division of Maine Justice whose job it is to stand up and represent presidents of the United States and administration initiatives and executive authority in Democratic administrations and Republican administrations, and you are being asked to stand up and tell a federal judge that you can’t tell him when a plane took off because that is a state secret, I’m referring here to the astonishing behavior of the government to Judge Boasberg in the Venezuelan Tren de Aragua deportation cases, you are probably not feeling very good about the career path you have chosen. And I have to say, my heart goes out to all of these lawyers who are stuck in a very difficult position, which is… I love… A position that I know I said I didn’t want to talk about this, but I am going to make this analogy here, and then don’t tell me I’ve opened the door or something, Preet, so don’t even try it.

Preet Bharara:

Oh, I may may. I may.

Ruth Marcus:

But no, no, I’m not going to go there. But if you-

Preet Bharara:

It’s called waiver. It’s called waiver.

Ruth Marcus:

No, no. No. Because I won’t finish the sentence then. If you want me to finish the sentence-

Preet Bharara:

No, no, please go ahead.

Ruth Marcus:

All right. If you work in an institution and you love this institution, but you believe this institution is not being properly administered, what is the point at which you leave the institution? And what is the point at which you say, “I am not letting these guys run me out. My oath is to the United States and to the Constitution of the United States, and they are not going to run me off the job”? I think for every individual that is in fact an individual choice, it depends on the precise facts and circumstances, but there is a reason that my heart goes out to them.

Preet Bharara:

So look, I think that’s a very important issue, and I wonder if we can put some more meat on those bones, generally speaking, not with respect to your particular experience. College was a long time ago, but I do remember the concepts of exit and voice, and there are various ways to make yourself and your positions known. And you can exit noisily, or you can exit quietly. And obviously, you just said, it depends on the particular circumstances, but are there any sort of guidelines and advice you give? People ask me, I get asked the question, “Should I stay, or should I go?” Cue the clash, if you will. When people call you and say that, what are the questions you ask them, and what are the answers you give them?

Ruth Marcus:

I always say, “This is your individual choice, and you are the only one responsible for it.” I say that it is fair to consider your own personal circumstances and the circumstances of your family. There are lawyers at the Justice Department who have tuitions to pay and mortgages that are due and everything like that. And it is a bad, bad time to be looking for a job at law firms, because they’re hanging from the rafters there. They’re so oversubscribed.

I say that you have to kind of check your gut. I think that if you are asked to do something that is inconsistent with your professional values and responsibilities to make an argument. And these lawyers have been told something that is very… I’m sure you’ve talked about this in the past. It has been a tradition at the Justice Department that if you are uncomfortable with a particular argument, that you are not obliged to make it, that you can step aside and let somebody else make it.

On day one, Pam Bondi, the new Attorney General, came in and said, “That’s not our rule anymore. Your job is basically to make the arguments that you’re told to make, to make the arguments that Donald F. Trump has instructed you to make. And if you can’t suck it up, then get the F out.” The argument about whether you should get out or stay and make them fight you is a really tough argument.

The other piece of it is how you should go. Do you go quietly, or do you go noisily? I think that the examples that we’ve seen, in particular, the examples from the Eric Adams litigation in New York where we saw two of the prosecutors provide very detailed explanations in the way of their resignation letters, I thought was very important, very helpful, completely professional, not to just go gently, but to go so that people could have a reasoned understanding of what was transpiring. The same thing happened with the head of the Criminal Division in the US Attorney’s Office in the district who was told to resign after she was pressured to launch a criminal investigation against, to stop a bank from dispersing funds for environmental issues. And she said she could not do that, and her resignation letter was also public. And I think that was very important, very professional and very appropriate.

Preet Bharara:

That memo that you mentioned from Pam Bondi from day one is extraordinary for among other reasons. It’s one page, and I talked about it on one of the podcasts previously. It makes no reference in any way, shape, or form to the Constitution, but it does make reference to the fact that there was an election and that people should make way for the views of the new regime, it didn’t say regime. But I find it extraordinary that there’s a Department of Justice document of that magnitude, and with that symbolism, that talks about essentially elections have consequences and uses the word loyalty, but not in connection with the Constitution. So that’s unfortunate.

Ruth Marcus:

It didn’t make reference to the Constitution. It did also, if I’m recalling it correctly, not make reference to professional responsibilities, ethical responsibilities. And I thought that was equally telling.

Preet Bharara:

Yeah. Well, that might’ve offended Alina Habba. So there’s trade-offs you got to have. Just one more personnel question, talking about central casting. At the FBI, because you’ve talked about this, I think some people thought, who don’t believe in the merit of Kash Patel for a variety of reasons, and I think those opinions are held in good faith, thought that, “Okay, you have that guy at the head, but then the number two sort of operational head would be someone of greater sort of consistency over time with some institutional knowledge, memory and respect for the institution of the FBI.” Talk about who has that job.

Ruth Marcus:

Who has that job is a podcaster named Dan Bongino. And this kind of goes to the carnival aspect of things. I think people don’t understand enough in the structure of our government how important the deputy jobs are. You have a Cabinet Secretary. Or a CIA director. Or the head of an agency. And they are very important people. But the day-to-day administration of the Department of Justice, of the CIA, of the FBI, really it has to be by necessity and just is by reality ordinarily in the hands of the deputy. Some of these jobs, by the way, are confirmable positions, like Deputy Attorney General, and some of them actually don’t require Senate confirmation. And while we have too many jobs that do require Senate confirmation, these are jobs that ought to require Senate confirmation, and they don’t. Maybe even this Senate would not allow Bongino, who I have not gotten a chance to write about because by the time I caught my breath to write about him, the carnival had moved on.

And it is particularly scary that an organization like the FBI does not have a capable, experienced, steeped in the culture and practices and just day-to-day necessities of the FBI in order to do this. They have… I think that the… This has been another under-noticed story. And by the way, the Kash Patel had, if I understand it correctly, promised the FBI agents association that he would bring in a former agent and somebody with experience in the deputy slot. And instead, we ended up with Bongino, who has the benefit of having chest thumped, I think, was the word that I used previously about weaponization of the FBI and how the president had been so terribly mistreated.

This is going to come back, this change and other changes at the FBI where they have taken out all of the post 9/11 structures that were supposed to make sure that 9/11 could not happen again, this is going to come back to bite us, I am deeply afraid, at some point in the future. And there could be an external terrorist attack, there could be a terrible cyber attack, there could be a domestic terror attack. And when we go back and look at it, my fear is that one of the findings is going to be that the FBI was asleep at the wheel, that there wasn’t adequate interagency communication, and all of the things that sound very familiar from those of us who lived through 9/11 and its aftermath. And you got me going on Bongino, but I think he is just a symptom of larger dangers.

Preet Bharara:

It’s time for a short break. Stay tuned.

Do you think Trump and his people are sowing the seeds of their own political destruction, even though he’s a lame duck, presumably? You’re not so optimistic about that.

Ruth Marcus:

I’m not… I mean, look.

Preet Bharara:

Because what you described-

Ruth Marcus:

Let me say, I am not rooting for a terrorist attack. I am rooting against a terrorist attack.

Preet Bharara:

No, no, no. Of course. Of course not. I’m rooting against a recession also.

Ruth Marcus:

Yeah. But there are many things that the president does that seem, as much as I despise them, perhaps politically smart, certainly in the area of immigration and treatment of migrants, treatments of the undocumented. He does things that I find appalling, unconstitutional, illegal, heartless, everything else, but they may bring political benefit. There are other things that he does that I think, “Gee, you would be so much better off if you weren’t picking this fight. And why are you spending your capital on this? That makes no sense.” Tariffs would be the prime example, because that is the one that I think has the greatest possibility of coming back to just really diminish his capacity to, I’m saying this joking, but not joking, run for a third term or be succeeded by a Republican president.

Preet Bharara:

Can we talk about the thing that I think is among the most dangerous things going on? And that’s the attack on the judiciary generally and particular judges, particularly at the district court level. Are you concerned about that? And to what degree?

Ruth Marcus:

So concerned, immensely with a little caveat. The ferocity, the language that they’re using against judges, the fact that the president is calling for the impeachment of any judge. But listeners of this podcast, many of them know that, let’s put it this way, Jeb Boasberg is no Aileen Cannon. This is one of the most respected district court judges in the country, respected by Democrats and Republicans, liberals and conservatives alike. They have been laying the groundwork for this defiance of the courts for months, stretching back to before the election and inauguration. Among those laying the groundwork are the Vice President of the United States, Yale Law School graduate, J.D. Vance, who knows better, but has talked about how he would advise the president to apocryphal, and Andrew Jackson, the courts and just say, “Let them enforce it.”

The one thing that gives me some degree of hope that there are limits here is the fact that even this administration seems to want to avoid a situation where they have to say outright, “You’ve made your decree. Now, enforce it. I am defying this court order.” Here comes the gaslighting again. They say, “You’ve made this order, but we read it a different way, and we’re going to read a different order. And you spoke it, and you didn’t write it down,” and other reasons. So even this administration, at least for the moment, has some trepidation about going too far in this regard. I don’t know how long that’s going to last.

Preet Bharara:

That doesn’t give me that much hope. Because just over the years and talking about these issues, I’ve always been struck by the fact that even, and I’m not saying we’re in an authoritarian regime, and I don’t use those words lightly, but the fact is that in authoritarian regimes, regimes that everyone would agree have autocracy at their center, whether you’re talking about China or Russia or anywhere else. Even in those societies, it is uncommon for the leadership to just brazenly acknowledge they’re defying their laws or their constitution or anything else. They come up with a lame, completely nonsensical, BS explanation. But it is still important to them. It’s still important for Putin to give lip service to the idea that Navalny got some kind of process. And even when people fall out of second story windows, he doesn’t take the credit. And that may be diabolical, and that may be to enhance a certain image that’s ominous. But even the people who are brazenly breaking laws and international norms and abusing human rights, never acknowledge it.

Ruth Marcus:

I think that is a fair and important point. And I want to raise an aligned question, which is, is this assault on the judiciary smart? And is it going to work, or is it going to backfire? This kind of goes to-

Preet Bharara:

Yeah. What are the answers?

Ruth Marcus:

Well, I think this administration has an array of lawsuits before it like no other. Some of those lawsuits are probably going to fail. I’m thinking about things like the attack on independent agencies. Some of those lawsuits are probably going to succeed. I’m thinking about things like birthright citizenship or the congressional spending power. But they’re all going to proceed through courts. Courts that are made up of judges. Judges do not like to see other judges disrespected, not only themselves, but other judges. They don’t like to… The administration didn’t just stop with disrespecting Judge Boasberg and arguing that he should be yanked off the case. Then they went to his predecessor as Chief Judge, Judge Beryl Howell, and said she should be yanked off the case where she ruled against the administration in Perkins Coie.

And by the way, judges aren’t just people too, judges are lawyers too. And when judges, and including Supreme Court Justices, many of whom grew up in law firms, made in big law, when they look at the assault on Paul Weiss, on Jenner & Block just yesterday, on Perkins Coie, on Covington & Burling, they say, “These guys are out of control.” I am just inhabiting the mind of a Supreme Court Justice temporarily.

Preet Bharara:

You can break news. Tell me what Gorsuch is saying about this.

Ruth Marcus:

They say these… I think some of them, at least say to themselves, “These guys are out of control.” And I’m not saying that that directly affects the way they rule in a particular dispute before them, but, Preet, you know this so much better than I do, so tell me if I’m wrong. Atmospherics count, and attitudes count. And if you go into court with no credibility for your client or your institution or yourself personally, you’re going to get a less good outcome than if you go into court having built up credibility over the years. So I think there’s some really kind of stupid litigation going on on the part of the Trump administration.

Preet Bharara:

No, I think that’s… I was going to actually put this into question to you, but you’ve said your piece on it, whether I’m naive about this or not. We talk about the Constitution, we talk about the Code of Regulations, we talk about the Code of Statutes, and we talk about norms, and I guess this is a kind of a norm within the legal profession. But it’s a really, really important idealistic and very ingrained view among legal professionals in the United States of America, Land of the Free, Home of the Brave, and it is that you do not punish the lawyer for the sins of the client. And it’s a very remarkable and lauded tradition, I believe, subscribed to by everyone who’s a professional and has reached the top of their field, which these lawyers who become judges have done by definition.

And this idea, dating back to the famous example of John Adams representing Redcoats, that you don’t conflate the lawyer with the client, is under attack and can’t be welcomed by anyone on this United States Supreme Court. And if that’s the thing, not some constitutional provision or not some overarching view of a limitation of executive power or the unitary executive theory or all those other things, which is where this stuff gets played out and where the arguments are made and how the briefs are written and the things that are invoked and all those things, underneath all of that or permeating all of that is this idealized view, that people subscribe to very genuinely, I do, that you’re not just a member of some random trade, you’re an officer of the court. It’s a specialized profession with a long history going back much longer than the lifespan of the United States of America, that that’s what will win the day on this stuff. Naive or not?

Ruth Marcus:

I think it does. I’m not sure I would say that every Supreme Court justice who if… Let’s imagine that the order against Perkins Coie, which, thank you, Williams & Connolly, is litigating rather than settling as Paul Weiss has, that the executive order against Perkins Coie, which I don’t think I’ve ever read anything that is so flagrantly unconstitutional, that eventually gets up to the Supreme Court. Do I think it’s going to be unanimously tossed out? I don’t think I would bet the house on that, because I think there is some degree of partisanship and views that maybe these liberal law firms have gone too far among some of the justices.

But I think yes, as a general matter, you think about John Roberts, John Roberts, who grew up at what was Hogan & Hartson, is now Hogan Lovells, I never know how to say that second name right, is not going to take kindly to this assault on the kind of institution that he grew up in. Just as he is kind of instinctively supportive of the executive branch, having spent a good deal of his career in the executive branch, I think he’s going to be instinctively supportive and so are some of the other justices of law firms doing what, as you very well described, lawyers since John Adams have been before, have been supposed to do.

Preet Bharara:

Did the founders get something wrong? And maybe. Or did we all change in a way that was not foreseeable? And by that, I mean part of the problem here is that the assumption that one might have, and I think some of the founders had this assumption, is that people, in whichever branch of government or whatever position generally, want to operate to the maximum of their power and authority. And people don’t lightly give up their authority and their power.

Donald Trump, by the way, has understood more cleverly and insidiously than I think anyone who has come so far, but I’m not a historian, so someone can correct me, with the absolute maximum powers the presidency might have, in ways that even smart people 10 weeks ago could not have predicted. EG, these attacks on these law firms. So while he is probing the outer limits of his power and authority and what he can get away with, the other branches of government, most notably, maybe not the other branches plural, but one of the other branches of government, the first branch of government, article one branch of government, the Congress keeps ceding authority again and again and again and again. Is that bizarre?

Ruth Marcus:

Well, bizarre is one word for it. Incredibly disappointing is two more words for it. Madison-

Preet Bharara:

But how do you explain it psychologically? How do you-

Ruth Marcus:

Oh, well, I have the absolute definitive explanation for this psychologically.

Preet Bharara:

Okay. Yeah, please.

Ruth Marcus:

Madison assumed that the branches would be jealous of guarding their own powers, and so therefore, would stand up for themselves. And that was a pretty good bet. We have seen that happen throughout centuries of American history. I don’t think Madison anticipated Elon Musk. And here’s what I mean by that. But not just Elon Musk, the first-

Preet Bharara:

But Nostradamus did, I think.

Ruth Marcus:

The first rule of politics is self-preservation. I remember sitting at breakfast with a Republican senator during the first Trump term, and this was a moderate Republican senator. And first of all, his watch kept going off with tweets because he had the president’s tweets on his Twitter notifications so he would know what he was dealing with. And when I asked the senator, “You know better than this, why are you not standing up to him?” The answer that I received was, “My first responsibility is to the citizens of X state, and I can’t help them with their needs to get contracts, to get bridges built, to get money for the university, whatever, if I am not here in office.”

And while Madison was right that the institution has an instinct to stick up for itself, he didn’t really accommodate how vulnerable individual members of Congress would be to the assaults by their own parties, to the reality that if they stand up against Trump, they are apt to be primaried from the right, to the fact that if… Then here’s where Elon Musk comes in. If they stand up against Trump, Elon Musk can donate untold sums of money, devote untold sums of money, to their defeat. Even if it were not for Elon Musk, the capacity of the modern campaign finance state to go after individuals who dare to defy is pretty unlimited. So therefore, I think the founders, wise as they were in many areas, just failed to anticipate where we would find ourselves in 2025.

Preet Bharara:

Yeah. I think this discussion about separation of powers is usually discussed on a very formal plane. What are the technical and statutory powers and constitutional powers? Are they enumerated? Are they not? And none of that takes into account soft power. And if you have an incredibly popular, or at least with some segment, a sufficient quantity of the population loves this guy, and self-preservation is the first order of the day, antecedent to preservation of the branch of government, then all of that is eroded, right? Whether that can be done by funneling money to the candidates who are on your side and drawing up money to candidates who are not on your side, see Liz Cheney, or credibly threatening in the different branch of government that you’re going to handpick the successors to the other branch of government, which is something that the Constitution does not forbid. All that has the effect of the erosion of the separation of powers. I don’t mean that in a formal sense or in a legal or constitutional sense, but in practical sense, it does. And that’s bad, isn’t it?

Ruth Marcus:

Yes. I think we are seeing the… If they were not worried about being bullied and intimidated by Donald Trump, if they were not worried about their political survival, would we have seen this Senate confirm Kash Patel, confirm Pete Hegseth, confirm Robert F. Kennedy Jr., confirm Tulsi Gabbard? I am very confident that, no, we would not. They are not voting their consciences. They are voting their self-interest. And the human capacity for self-delusion and rationalization is pretty unlimited in my assessment. But that senator who said, “My first responsibility is to my constituents,” that’s just a fancy way of saying, “My first responsibility is to get myself reelected.”

Preet Bharara:

As to me.

Ruth Marcus:

And that’s what we see here a lot.

Preet Bharara:

I think one of the superpowers of Donald Trump, not everyone’s going to love this, but I’ve been thinking about this a lot, and it gives him great power and an earned smugness, I will say also, that one of his great powers is by virtue of his actions that are ostentatious and overreaching in combination with his lack of shame exposes the cowardice and moral impurity of his adversaries to almost an equal degree as it does of his supporters. And we don’t talk about that. It’s not as obvious. We talk about the supine Republican senators. But in other circumstances, people who would be erstwhile opponents show themselves out to be nothing but self-regarding survivors, right? I mean, the lesson he teaches is that, which is unbelievable and insidious and brilliant politically, is that normally when you burn a bridge to a guy, because we come from United States, the bridge stays burned, right? So he has taught that, “There’s always an opportunity for you to come around. And you may have hated me before, you may have mocked me before, you may have attacked me before.”

Ruth Marcus:

Called me Hitler before.

Preet Bharara:

“But if you come around, you know what? You can be the Goddamn Vice President of the United States of America.”

Ruth Marcus:

Yeah.

Preet Bharara:

And there’s a lot of power in that and persuasive force in that. Because if you didn’t get him the first time… I mean, he’s the epitome of the principle of you can’t beat him, join him, taken to unbelievable levels. Anyway, there’s no question there.

Ruth Marcus:

Yeah. No, I think that… But it’s really important to understand that while Donald Trump is not smart in an intellectual sense, he doesn’t read books, he doesn’t know history, he doesn’t immerse himself in the details, he is a master practitioner of the art of exercising political power and dominance. And you just see it time after time, he knows where the levers of weakness are among individuals, and he knows how to play those.

Preet Bharara:

So this is going to be a cheap paraphrase, but I was just thinking about the difference between him and his predecessors, including people like Richard Nixon, to invoke a paraphrase of another president who I like better. But Nixon was like, “You know, I see things as they are and ask why.” And Donald Trump sees things that never were and asks why not, right?

Ruth Marcus:

But I mean, who could have imagined the President of the United States, on live television, floridly signing decrees against individual law firms and naming people who are no longer partners at those law firms as the proximate cause of ordering that these law firms basically have to scramble to fight for their livelihoods? No one expected the Spanish Inquisition, and no one expected executive orders against Paul Weiss. But here we are. Because Donald… You talked about norms earlier, and God knows Donald Trump doesn’t know from norms.

Preet Bharara:

We could go for six more hours.

Ruth Marcus:

We could.

Preet Bharara:

Thank you for your time. Really appreciate it, Ruth Marcus. Thanks so much.

Ruth Marcus:

Thank you for having me. It was really interesting.

Preet Bharara:

My conversation with Ruth Marcus continues for members of the CAFE Insider Community. In the bonus segment, we discussed the White House’s efforts to dictate the makeup of the press pool.

Ruth Marcus:

And as trivial as the question of who is in the White House press pool might seem, it is resonant and it is part of a piece of this larger assault on the media.

Preet Bharara:

As the country experiences unprecedented change, there’s never been a more important time to stay tuned. To support our work and to get exclusive access to my weekly podcast with Joyce Vance and other benefits, try out the Insider membership. Head to cafe.com/insider to learn more and to join. Again, that’s cafe.com/insider.

Every single week since January 20th, we have covered the cases and controversies that tumble forth from this administration’s actions. In case after case after case, whether it’s about deportations or gang activity or citizenship or anything else, the clarion call of law and order is missing its first and most important component, law. The administration enlists many other tools and notions, power, politics, pragmatism, but not so much the law. Trump has cleverly and cynically fought these fraught battles on fertile political terrain, who could be for gang members, who could be for MS-13 or Tren de Aragua, who could be for vandals and arsonists and domestic terrorists? No reasonable American. Billion dollar law firms naturally arouse little sympathy, nor does the abstraction of a depersonalized federal worker. Trump knows this, and he preaches to legions of people fed up with process, even though due process is at the core of our constitution.

Due process is where our liberty comes from. Due process is how our freedom is assured. Due process is what our flag stands for. I was recently reminded by a colleague of a much more eloquent rendering of these self-evident truths. This is from a speech given some years ago when Bob Mueller was the FBI director. This is what he said. “It is not enough to catch the criminal. We must do so while upholding his civil rights. It is not enough to stop the terrorist. We must do so while maintaining his civil liberties. It is not enough to prevent foreign countries from stealing our secrets. We must do so while upholding the rule of law. It is not a question of conflict, it is a question of balance. The rule of law, civil liberties, and civil rights, these are not our burdens. These are what make all of us safer and stronger.” Let’s remember that.

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