Preet Bharara:

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

Dahlia Lithwick:

We kept pretending that the court was a real court, and that the law was really the law, and that the Constitution was made of steel. It turns out, none of that has been true for quite some time.

Preet Bharara:

That’s Dahlia Lithwick. She’s a Senior Editor at Slate, and host of the Amicus Podcast. She’s been analyzing the law on the Supreme Court for decades. If you found yourself asking recently, “What is going on?” You’re not alone. We are living through a constitutional stress test. Lithwick joins me to discuss the Abrego Garcia case, and the Supreme Court’s recent pushback against the Trump administration’s deportation efforts.

After the interview, I’ll answer your questions about the Trump administration’s plan to list living people as deceased, and if Harvard should revoke degrees from graduates serving in Trump’s White House. That’s coming up, stay tuned. Why do people get so frustrated with lawyers? Two lawyers sit down to talk about it. Dahlia Lithwick, welcome back to the show.

Dahlia Lithwick:

It’s good to be back, Preet. Thank you for having me.

Preet Bharara:

I should, as I sometimes feel the need to do, time stamp our conversation. It’s Monday morning, April 21. By the time this airs and people listen to it, many, many other things, both horrible and possibly good, may have happened. Can I start with a very fundamental, broad question that I keep getting asked? We put out an invitation for listeners to ask questions on the Stay Tuned podcast.

I’m sure you have some abilities to get questions to answer and to address on your wonderful podcast, which is either Amicus or Amicus, however you prefer. Literally the question I get is WTF, what the F, or some version of, not a specific question about a Supreme Court ruling, not about the 14th Amendment, not about voting rights. I get those questions too, but often it’s a sort of hands thrown up in the air, “What the F is going on?” How do you answer that question?

Dahlia Lithwick:

I think first of all, it’s good to be with you. I think I answer it with some version of the following, Preet, which is we have relied way too much on lawyers and the law to explain things.

Preet Bharara:

Hey.

Dahlia Lithwick:

I love lawyers, all of them, but I think that there is-

Preet Bharara:

The ones who explain things.

Dahlia Lithwick:

The ones that explain things particularly, I think that there is a tick, very American tick, which is everything, the law is this immutable, perfect, self-effectuating machine. It is a cathedral that answers all things, and it sorts itself out. I think that we have this convention that whatever it is that the Supreme Court does, we can all kind of ignore it. The last two weeks in June, it’s like a Jack-in-the-Box, right?

Then for two weeks at the end of June, people like you and I explained the law to people, but there was just this sense that it held, that everything held, and it operated along some logical continuum that we didn’t have to fully understand, and that that was just going to go on forever. I think that it turns out that there are a million vulnerabilities, and weaknesses, and soft spots to exploit in the law. You can set the time clock at Mitch McConnell. You can set the time clock at the Borking of Bork. You can set the time clock at Brett Kavanaugh or whatever you want to.

At some point, the Koch brothers and a handful of people figured out we could capture this whole thing. Long after it was broken, we kept pretending, and here’s where I think you and I are probably a little bit complicit, we kept pretending that the court was a real court, and that the law was really the law, and that the Constitution was made of steel. It turns out, none of that has been true for quite some time.

I think in some sense, the answer to WTF is we believe this whole sort of magical superstructure called the law, and called the Constitution, and called the rule of law was operative, and was going to be operative forever. Then when… It’s like it’s pick up sticks, it’s like Jenga. A couple of pieces got pulled out, and the whole thing came down.

Preet Bharara:

Yeah, I don’t disagree with that. Maybe in terms of degree, I might quibble a little bit, but what I’ve always said again and again and again, including during the last election and even the prior election, is that the law, and I wasn’t thinking so much about the court, but I was thinking about prosecutors, and special counsels, and the like, they are not your saviors.

They can wield the law. They can do what they can do, but they are not your saviors. Your savior is a majority vote at the ballot box. When people keep saying, “All these things are upon us, this is terrible. Why didn’t the prosecutor start earlier? Why didn’t Alvin Bragg have a stronger,” all those things that they say, and some of them may be well taken and some of them are not, really, the rejoinder is all of this could have been avoided.

The absconding of American residents, contrary to court rulings to foreign prisons, not just foreign countries, and this is something that gets allided and conflated, to foreign prisons, all of that could have been avoided with a different vote. The only really Deus Machina to fall from the sky is the vote, and the vote didn’t go that way, which is not to say that everyone deserves what they got, but a little bit. Fair?

Dahlia Lithwick:

Listen, you said this on my show, and I was so glad for it, because I think all the people who said, “Well, I didn’t vote, or I didn’t care, or I didn’t so much love Kamala’s policy on X or Y, but I thought the court would save us,” I think you’re right. We dug ourselves into this hole, and now we have to dig ourselves out.

I think my one gloss, and I think this is really important and I wonder if you disagree with me, is that I think that there is a corollary to that, which is, “And therefore we can fix this in the midterms.” You know what I mean? “Therefore, in the next election, this will all be cured,” and I worry about that-

Preet Bharara:

Well, it’s something, it can be mitigated.

Dahlia Lithwick:

Well, I think it all turns on whether you believe there’s going to be a free and fair election ever again, and I may be more cynical than you, but I look at the Save Act. I look at what happened in the North Carolina Supreme Court election, where they quite simply just were like, “Eh, we’re going to purge a bunch of votes.” I worry maybe more than you do.

Preet Bharara:

But then there’s the Wisconsin Supreme Court election, which gives hope in the opposite direction, does it not?

Dahlia Lithwick:

I don’t dispute that, and you can look at the protests every weekend, I don’t dispute that the popular will is not with MAGA insanity. I very, very deeply worry that there is another form of passivity, which is, “We’re just going to sort of tune out and let it ride, and fix it in the midterms,” and I don’t think that’s the curative we think it is.

I think that every single thing, I can’t believe I’m going to quote the David Brooks column, but every single thing that can be done at this moment to suggest this is not normal, this is not okay, the rule of law is not self-protecting. Everything is ephemeral, and now is the time to figure out what that looks like. I think that that has to be the posture, because I think it’s another form of magical thinking, Preet, to say, “The elections will just solve this.” We might be too far down the hole to solve this with voting. Tell me I’m wrong.

Preet Bharara:

Well, I’m going to take on the posture of maybe not a MAGA aficionado, but someone who is supportive of Trump, or at least is not supportive of the Democrats and didn’t vote for Kamala Harris, and they might say to you, based on all this, “Okay, you overreacting crazy person-”

Dahlia Lithwick:

You can say hysteric.

Preet Bharara:

“We’ve been hearing this shit, you hysterical woman.” One of those people might say, I’m not saying it, but one of those people might say, they call me an hysterical man. We’ve been hearing this for 10 years. You are the epitome of Chicken Little, you have said the sky is falling, we’ll never have a fair and free election again. You’ve been saying that since 2017, right? Look, are there some wrinkles? Are there some hiccups? Sure, but we’re still a functioning democracy.

The AP may not be in the White House Press Room, but they’re freely reporting everywhere that they’re able to get their sound across and their texts, across, and the internet exists. We’re kind of tired of listening to your overinflation of the problem. We’re a democracy. You said all these things for four years. You had your shot, you had your guy, your pro-democracy guy. He was rejected or his party was rejected thoroughly, and demonstrably, and fairly, so shut up with your whining. What do you say to them?

Dahlia Lithwick:

First of all, this is classic shoot the messenger stuff, and I get it all the time, and I’m sure you do too. I literally get the iteration of it, which is, “If you hadn’t been so hysterical when the Supreme Court upheld-”

Preet Bharara:

We can’t win.

Dahlia Lithwick:

“… the vigilante law and told us that Dobbs was coming,” and then Dobbs came, that hysteria, which was true, somehow made people unable to hear the current hysteria. I literally get the hysterical sandwich, like I’m bad when I’m right and I’m bad when I’m wrong. Stipulated. Be mad at the press.

I think that the real answer to your question is, and this is kind of the thing I always like to talk about with you today, when will we know that this is fully, like the rule of law is broken, which is orthogonal, it’s not quite, are we in a constitutional crisis? I don’t love, that’s the question I get most often.

Preet Bharara:

I was going to ask you about that, but are you going to use the frog? Are you going to use the frog, the boiling frog?

Dahlia Lithwick:

The frog in the pot? Actually, your friend of mine, Joyce Vance, I think has a nice turn here, where she says, “We’re not even at the point where we should be asking like the frog in the pot question. We should be asking how do we unboil frogs?” The frog is cooked, and now we have to figure out how to reverse engineer ourselves out of it.

I think the quick answer to your question, Preet, is that they have elections in Hungary. They have elections in Russia. The fact that there is going to be a midterm, the fact that there’s going to be an election in the next cycle doesn’t answer for, is democracy still functioning? It doesn’t answer for has the rule of law eroded? Legitimately, I am saying, what will be the marker of democracy is broken irrevocably.

Preet Bharara:

I have a proposal for that before I get to a scenario where that might be the trigger for that conclusion. Let’s use another example of a thing that would be a very clear marker that’s further down the road in my view. All this business about Trump’s third term. Now, his supporters will say, “He doesn’t really mean it, he’s joking. He wants to take the piss out of the libs. He wants to own the libs,” or at least rent the libs, lease the libs, whatever verb you want to use.

That’s more hysterical overreaction. How do you feel about the third term issues? Should we be stoking alarm about the third term issue? That would be one of the greatest breaks if not the greatest break in a tradition of law and order and the rule of law in this country, or because it’s far off or at least three and a half years off, and it’s unlikely, do we dismiss it and not talk about it? How do you deal with that particular concrete example?

Dahlia Lithwick:

For me, this is the challenge, and I actually think this was the challenge of the first Trump administration is it’s the flood the zone with shit problem. You just say a bunch of shit, and then you say, “But take him literally, but not seriously, but take him seriously, but not literally, don’t take him seriously or literally,” just you’re always trying to follow some directive about how much you want to engage with crazy crap that he says.

In a sense, I almost want to say this is Margaret Sullivan has a good piece today, just sort of saying, “Every time we treat his executive orders as though they’re the law, we fall into the same trap. We report on these as though these things are the law.” They’re not. I call them letters to Santa. They’re utterly devoid of meaning. When we don’t say-

Preet Bharara:

No, but somebody, wait a minute.

Dahlia Lithwick:

Well, the first thing should be an executive order is a statement to your subordinates of what you want them to do. It is not the law. Unerringly, it gets reported as he just signed a law. Our job is to do the truth sandwich, the, “This is not a law. Here’s what it says. This is not a law.” We have to do that with third term.

Preet Bharara:

Wait, but can I challenge that for a moment?

Dahlia Lithwick:

Yep.

Preet Bharara:

I’m going to play devil’s advocate a bunch here, because those people aren’t here to defend their-

Dahlia Lithwick:

Because the devil isn’t here? Okay.

Preet Bharara:

The devil is not here, so I’m going to play. Okay. It’s not a law and could be superseded by court opinion and/or statute and many other things, but they do have force, and they do cause consequences including essentially, and I was going to ask you about this, the almost entire dismantlement of huge cabinet offices and agencies including the CFPB and USAID.

In the absence of some law occupying that ground, or responsive or restoring law, it kind of does have the force of law. At least there’s no distinguishing between that letter to Santa and a law when it means the summary firing of hundreds and hundreds of government employees and the removal of aid to countries that need it. How do you explain that? More than a letter to Santa, isn’t it?

Dahlia Lithwick:

It’s more than a letter to Santa. I’ve been describing a lot of these things as sort of like Schrödinger’s Elon Musk, Schrödinger’s Doge, Schrödinger’s Constitution, because they’re all both law and not law at the same time. We try to peer into the box and we want a dispositive answer and there’s no answer. When you are in fact saying, “I’m dismantling agencies,” or, “I’m firing all probationary employees across government,” of course, it both has the force of law and no legal force because it’s unlawful, right?

What you’re asking is I think the existential question, which is as legal commentators, is our job to say, “This thing has force,” or is it to say, “This is totally illegal and until and unless some entity says it’s legal, let’s say it’s not legal?” You are exactly right to say that it’s both, but I think that we are making a mistake, and I don’t mean you, I know you’re not doing it, but I think largely in the press, we are making the mistake of affording things with a seriousness, a gravitas that it doesn’t have.

That’s why I’m using the example of the executive orders, to suggest that every one of these things has the force of law when most of them are lawless. I’m not saying they have no effect. They do have effects. They are being followed and carried out. The other thing is, and this just goes to your third term question, I don’t think you can ignore it, Preet. I don’t think you can ignore it, because they are serious about it. There is a plan. They’ve worked it out. They have this crazy switcheroo, they’ve got a plan.

You can’t say it’s nothing. Should you and I devote the next year to thinking exclusively about this and reading the crazy cokehead law review articles that are suddenly, “Oh, this is a true thing?” No, we should not waste our time on cokehead law review.

Preet Bharara:

Cokehead, wait, that’s a great phrase.

Dahlia Lithwick:

Thank you.

Preet Bharara:

Cokehead law review articles. Who are some of the authors of the Cokehead law review articles?

Dahlia Lithwick:

Who are some of them? Do we want to… I think that there is a law industrial complex that is trying to put lawless ideas onto the wall, from off the wall onto the wall. I think that part of, you and I, I think have talked about this before, what used to take 10 years, Second Amendment is a personal right, you see those articles for months and months and years and years, and then suddenly, like Clarence Thomas is citing them, that happens in a week now.

You get horrible, bad legal scholarship that gets cited. I think our job is to just do the crazy game of Frogger, which is we’re going to take everything seriously, and also, everything that is bullshit, we call bullshit. Constantly, constantly bullshit. By the way, the good news is, and this sort of gets us to this weekend at the Supreme Court, occasionally, all of the smart law people, like Steve Lattic, like Joyce, like you who say, “This is bullshit, this is bullshit, this is bullshit,” the clerks read it, the justices hear it-

Preet Bharara:

Do they?

Dahlia Lithwick:

Maybe minds are changed. I think so. I think so.

Preet Bharara:

Hey, so why don’t you send a message to the clerks who are listening right now? What would you say to them? Be very direct as opposed to oblique, which we sometimes are.

Dahlia Lithwick:

I think that the-

Preet Bharara:

Dear clerks, go.

Dahlia Lithwick:

I think, dear clerks, thank you for listening. As lawyer Enson stood in front of a court last week and said, “We’re not deporting anybody, we’re not sending anybody on today and tomorrow.” They were just-

Preet Bharara:

Good impression.

Dahlia Lithwick:

He lies, he lies, he lies. I think that this is the hard question that I know we’re here to try to parse today, is how much of real world do the justices live in right now? I’m a lot less scared than I was a week ago, Preet. I thought that a lot of them were just lost.

Preet Bharara:

That’s terrific. We can hit an upbeat in a moment, but just on what you were saying a second ago, the thing about, and you weren’t saying this exactly, but the sort of pseudo evenhandedness that the press sometimes feels obligated to impose on us is a real problem. It’s not just in the legal context. I had Justin Wolfers, great economics professor from the University of Michigan, talk about tariffs.

He makes the same point. He’s like, “Everybody thinks that the tariff policy of this president is crazy, cokehead crazy, to use your term, but often a media outlet wants to present some version of the Trump side. They’ll have one or two guys, one or two people talk about how the Trump policy, the tariff policy is insanity and inflationary.” There’d be like one other person from a thousand economists who supports the Trump position, and that gives a false impression of equality.

Is the press supposed to, what does the press do? Call up 99 sane economists, and then have one insane economist to give a sense of the proportion? You can’t do that. How do you go about doing it without only giving the one side, even if it’s a 95% plurality side?

Dahlia Lithwick:

Yeah, look, this is the press question of the age. The press question of the age is we lost public trust because we started to conflate analysis and opinion. We started to conflate fact and feelings. We’re, in some sense, responsible. I really take this very seriously, because it was not clear for a very long time that there was a wall between rigorous analysis and feelings [inaudible 00:21:06] and opinions.

Nobody trusts what the press says about anything. In some sense, even the question assumes that anybody trusts us, and I am not sure they do. I think the sort of nut of the question is one that we all struggle with. The sort of official journalist professor answer is you don’t find somebody to say it’s raining and somebody who says it’s sunny out, you open the window and you look outside and you say, “What is happening?”

That’s where we went off the rails, that both sides-ism. I think that we live in an ecosystem where it doesn’t matter what you and I say, because Fox News, and Newsmax, and whoever else is saying stuff is saying stuff. I think in a sense, it’s almost a precious question about how we do journalism right or how we repair journalism, because we now live in a media ecosystem, where whatever is happening over there on X is media. Whatever is happening over there on TikTok is media.

More people are getting their news from influencers than are getting their news from CNN. I think I’m not avoiding the question. What I’m saying is I think that we now live in a world where we have lost public trust. Do we agree that journalism has lost public trust, and that the way to fix it has to be some version of, say, radical humility. How do we claw our way back to having the public believe us again?

For me, the idea that I’m going to get one person on my show to say, “The tariffs are brilliant economic, Donald Trump is a seven,” what are they now? It’s like, we’re past three-dimensional chess. They’re now saying seven-dimensional chess. I think we can just say, “This is not seven dimensional chess. This is Hungry, Hungry Hippo. We know that this is not great economic theory,” and we can say that, but I think for me, the larger challenge is I don’t know how to solve the problem of nobody believes anything that they are not predisposed to believe. I don’t know how to fix that.

Preet Bharara:

That’s the ultimate problem, that people who decide that if they like a fact reported to them, they will choose to believe it. The craziness, or one of the bits of craziness about what you’re describing is that the sort of legacy press, which is much maligned the mainstream press, people say, “Well, it’s full of shit. We don’t believe it,” but then who replaces it? Complete lunatics who know nothing about anything are people about whom folks are very credulous.

You would think this is not a phenomenon which is, “Oh, the public is becoming more sophisticated. They’ve been lied to, the government has lied to them, the press has lied to them, the press has missed big stories,” all of which is true. Now, going forward, all sources of information I’m going to be skeptical about. No, I’m only going to be skeptical about the ones that actually have some standards and traditions of fairness and substance, but I’m not going to be skeptical about all the other people who have no business being in information dissemination at all, because it comports with my predisposed…

The example I keep using, it’s a minor example. People on social media keep tweeting about the wealth of various democratic elected officials that are totally false, like Chuck Schumer does not have $12 million. Alexandria Ocasio-Cortez does not have like $47 million. These things are readily verifiable, but people believe them. My other favorite fact, well, the opposite of that, but when I was having a discussion with people about during the Biden administration, is he getting the word out?

I don’t know. If you have willfully, both credulous and unduly skeptical people who you poll in 2020 and you ask them, “What’s the stock market doing?” Millions and millions and millions of people who support Trump say the stock market is down, when it’s fucking up, up. How do you get anything across? How do you persuade anyone of anything in the universe in which that is true?

Dahlia Lithwick:

I would say this, just to fold it back to where you started, I think that for me, when I asked myself, it’s your WTF question that you opened with, where I started really feeling destabilized by as a Supreme Court reporter, it was when things that were not true started leeching their way into oral arguments and into opinions. When you started to have justices on the court, citing fake facts, bad news, things that were not correct.

The example I always give, which is not a fair example, but it was that Coach Kennedy, the praying coach on the… Who would have his players take a knee. The majority opinion in that case kept saying it was like a private intimate moment of prayer. Justice Soto-Mayor was like, “Oh, my God, look at it, it’s not any of those things. He’s got all the players, like here’s a photo. This is crazy.”

I think that one of the things that scares me most about this whole Abrego Garcia conversation that’s been happening this past couple of weeks, and this is the guy, the Maryland father who’s been, I’m not saying deported, renditioned to a prison in El Salvador, is that the fluency and the casualness of the lying out of the White House, whether it’s the press secretary or the president, the fake tattoos, the claim that we just know, not just that he’s a gang member, they’re saying that, “No, he’s a sex trafficker.”

They keep saying over and over and over, and there’s no evidence for any of this. It’s all untrue. I think this goes to your point, which is it just keeps getting repeated, and echo chambered out, and rippling on as though this guy is an adjudicated sex trafficker. I think what scares me the most is that it’s possible that it doesn’t matter that it’s not true.

Preet Bharara:

I will be right back with Dahlia Lithwick after this. Let’s talk about Mr. Abrego Garcia, and then we’ll talk about what the Supreme Court did in the last few days. It seems to me this is the easiest thing in the world. Whether or not he’s a member of MS-13, for the purposes of this argument, I don’t care. Is he a bad guy? I don’t care. Judge Wilkinson in the Fourth Circuit, in that opinion that is rightfully lauded, if anything, I think it’s under praised.

Talks about these things now, if the administration says he’s a terrorist, sex trafficker, et cetera, perhaps, perhaps not. The point is, if those things are true, go to a court and prove it. These questions that people raise about bad things Democrats have done, and other problems and issues, and whether he should or should not be in the country, to me, tell me if I’m getting this wrong. There’s a judicial order that says, “This fellow cannot be sent to El Salvador, much less could he be sent to a prison in El Salvador,” and they sent him anyway, and they knew it was wrong, and they admitted it was wrong.

I don’t vouch for the guy. I don’t lionize the guy. I don’t know if politically it’s a mistake to do any of those things. Maybe he’s a jerk, maybe he’s a criminal. All I know is it was an order that said, “Don’t send him,” and they freaking sent him. Then when they were asked to undo it, they dithered over the meaning of what is is, in this example, facilitate versus effectuate, a thing that I’ve said repeatedly is what people hate about lawyers. This is almost the simplest case to understand. Is that why it’s getting so much attention, or is there some other reason?

Dahlia Lithwick:

I think it’s getting attention because I think there is a way in which you can really see that they admitted it, they never admit it, they never stand in front of a court and say, “This was an administrative error.” That’s how bad it is. It’s so bad that their lawyers were like, “Yeah, no, we just caught this one up pretty bad, and there’s nothing we can do about it.”

I think that the reason it gets attention is because then you get the kind of Calvin Ball of it, then you get the, “Well, we shipped him off, and there’s nothing to be done, and we don’t have jurisdiction anymore.”

Preet Bharara:

Oopsie. Oopsie.

Dahlia Lithwick:

The idea that, and this is what his attorney said on my show a couple of weeks ago, this can be cured with a phone call, right? You pick up the phone and you say, “Hey, El Salvador, send him back,” and they won’t do it. I think it gets attention because it really, really, I think, highlights that they could do this to anyone. They made a mistake. They said they made a mistake. Stipulated, they fired the Justice Department lawyer who said, “I’m as frustrated as you are, Judge,” but they made a mistake.

I think there’s a sense in which the believe me defense, which has been, believe me, it’s an emergency, believe me that the Alien Enemies Act is properly invoked here. Believe me, that every single person that Judge Boasberg said, “Turn those planes around,” believe me, they all had due process. You can say it and say it and say it and say it. Once you admit, “I was wrong,” and you still don’t want to do anything about it, I think that’s when you kind of cross the, this could, this was Judge Millett at the DC Circuit. Explain to me how you couldn’t have done this to me, how this couldn’t have been done to me.

Preet Bharara:

Let me ask you a couple of factual questions that relate to how this may play out legally. You mentioned the fake tattoo thing. Am I correct that the President of the United States, or at least the White House, posted on an official account on social media, a picture of Mr. Garcia with tattoos on his hand, including a tattoo that said MI-5? Was that fabricated or not?

Dahlia Lithwick:

MS-13.

Preet Bharara:

Did I say MI-5? I don’t know, I guess I have intelligence operations on the brain. I didn’t mean MI-5, I meant MS-13. Was that doctored?

Dahlia Lithwick:

I saw the photo you saw, I saw the shot you saw. I think it’s, as best as I understand it, been debunked is not him. I think they also, right, the official White House account also posted the corrected New York Times, again, the ha ha oopsie. He’s never, ever, ever coming home thing. They’re trolling us.

Preet Bharara:

Yeah, I want to ask you about that. How will the never, ever coming back business affect the legal proceeding or be used against the administration to show ill intent or some other thing that is required to be shown, or does it not matter? Is it all just fun and games?

Dahlia Lithwick:

This is where your question about the clerks really matters, I think something shifted-

Preet Bharara:

Talk to them.

Dahlia Lithwick:

… at the Supreme Court.

Preet Bharara:

Talk to them.

Dahlia Lithwick:

Yeah, something shifted at the Supreme Court, right? We saw the Supreme Court, as you said, do that weird, hand waving, facilitate, but not effectuate, right? They created a sand trap for themselves, and the administration was like, “We will neither facilitate nor effectuate. Nothing. We are doing nothing.” If and when they let him out of prison on their own volition, we may not lock the doors, but the Supreme Court gave them that, as they did in that order where they’re entitled to some kind of habeas relief somewhere.

The Supreme Court is trying to give them plausible outs, and their answer over and over again is no and no and no. I think it’s a game of chicken. This is a game of chicken with John Roberts. I think what we saw this past weekend was John Roberts saying, “I don’t want to play anymore.” This is why people are asking you whether there’s a constitutional crisis going on, because we’re creeping up on one right now.

Preet Bharara:

Let me use a different metaphor. You’ve already mentioned Schrodinger’s cat. There’s this other concept of the unstoppable force, meaning the immovable object. What happens? Who’s the unstoppable force, who’s the immovable object, and what happens here?

Dahlia Lithwick:

Yeah, so listen, this is again, Joyce Vance on the weekend was like, “Are we there? Are we in a constitutional crisis?” This is what Judge Wilkinson, writing that, as you say, I think Magisterial opinion, that Fourth Circuit opinion, was like, “We’re hearing the clanking. The machines are smashing up into each other. We can hear it coming.”

If the question is, who’s going to blink first? I think that the Trump administration is telling you in no uncertain terms that, “We made a mistake, and dude is not coming back, and we are going to do nothing to bring him back. Make us.” Then you’re asking the question, which is, “The Supreme Court and what army?” I can’t answer that question, because in countries where Supreme Courts issue orders and the administration ignores them, the Supreme Court has no army. There’s no army, there’s no army.

Preet Bharara:

There’s no army. The way I maybe conveniently think about it, so I don’t have to think about the worst possible outcome, is on this question of whether you’re in a crisis or not, Constitutional crisis or not. We certainly are near it. We have not yet. We’re close on social media, but we are not 100%, maybe people roll their eyes at me, where the administration is saying, “You are telling us to do X, and we’re saying, ‘F you. We’re not going to do X.'”

What they’ve done so far is, “You’re telling us to do X, and wink, wink, we’re not going to do X, but we don’t understand X to mean X. We understand X to mean Y, and we just have to provide a plane. We are interpreting your order to us in a way that we say is reasonable. We’re not defying you. We’re just understanding what you’re saying in a particular way that allows us not to bring him back.”

How many iterations of that can there be before at some point it becomes absolutely crystal clear to somebody from Mars or a planet light years away, that it is in fact open defiance, rather than semantic disagreement with the court.

Dahlia Lithwick:

I would submit that when you get a seven to two order from the Supreme Court saying, “Please stop busing these guys all over Texas and telling us you’re not flying them out of the country,” I think it happened.

Preet Bharara:

You think it happened in this other case? Can we just take a step back? There’s Abrego Garcia, then there’s this other case.

Dahlia Lithwick:

This was first of all an emergency, the likes of which the court never acts as quickly, right? The court, this was a case in which we had another bunch of people who were about to be deported, and they were being bused from a jurisdiction where they couldn’t be deported to a jurisdiction in Texas where they could be. The Supreme Court in, a what, midnight, 1 AM order by a seven to two margin, we think it’s seven to two. We have two dissenters, Justice Alito and Thomas say no, say, “You absolutely can’t do the thing you’re going to try to do.”

I think that’s it. I think that the difference between the cases before, whereas you said the Supreme Court was like, “As long as you like, winkingly tell us that you are facilitating but not effectuating, or that these same detainees have some kind of habeas rights, wink, wink, we’re going to go along with it.” I think when you get a seven to two, that means Justice Gorsuch is on board and Justice Kavanaugh is on board, I think the Supreme Court is finally at the place where they’re like, “No, stop screwing around.”

Now, we don’t know as of this taping whether that’s taken seriously by this administration. That’s why I think the operative question is the ones you’re asking when they are then tweeting out images of Abrego Garcia or they’re tweeting out tweaked New York Times headlines and saying, “Nobody’s coming home. It’s a different case, but to be clear, we are not going to do what you’re asking us to do.” I think that you’ve lost seven justices, and then the real question is, when there is an order that must be followed and the administration says no, then what’s going to happen?

I think that we are, as of this taping, we’re not there. Although I want to be clear about one other thing, and maybe you disagree with me. I think the Supreme Court, I think the Constitutional crisis, in a sense, we get the TikTok decision, and the Supreme Court issues a decision in the TikTok case and it’s not followed. The administration is like, “Eh, we’re renegotiating. Give us a little time.” I think we’ve already had multiple iterations of, and I would include Judge Boasberg, this is the judge in DC who said, “Turn those planes around,” and the administration simply shrugged and waved.

If the definition of the crisis you’re describing is not a Supreme Court order, there’s nothing magical about a Supreme Court order, a district court order that is defied is still a Constitutional crisis. This is the frog pot thing. I think that this is testing, it’s testing, it’s testing the way a toddler would test. We have way too much magical thinking around this is going to be the starting bell, Wall Street, like boom.

Now we’re in a constitutional crisis, and I think we’re in one in a whole bunch of ways. Your question is, what then? The answer is, we don’t know because we are waiting for some extrinsic magical thing to solve it for us.

Preet Bharara:

Yeah, I guess one way of thinking about it is two sides in a controversy over a land boundary are amassing on either side of the boundary, and it’s inevitable that they’re going to war, but no one is actually fired onto the other side. There are threats, there’s posturing, there’s bellicose, hand-wringing, all sorts of stuff like that, but you haven’t gotten to the actual explosion yet.

Somebody could take issue with how I described the Abrego Garcia case, because the entire case rests upon an actual flouting of a court order. The origin of that controversy is in fact the thing that we’re talking about, is it going to happen or not? The difference is, at least initially, or at least at some point, the flouting of that order was acknowledged to be an error.

They have not said, to my knowledge, tell me if I’m wrong, they have not said, “Yeah, there was an order. F that judge, in the words of other people, they have no right. The judiciary has no right to impose on us any restraint on the executive powers’ authority to engage in deportation. That’s fully within the power,” they have not said that, so this is an escalation, serious one.

Dahlia Lithwick:

It’s an escalation, and I would add here parenthetically, but I think it’s important, that when you ask yourself is the author of this nightmare, in no small part, the original sin is the US Supreme Court. The US Supreme Court, who, in the immunity decision from whole cloth, invented a theory of, and this is your point about why people hate lawyers, is it an official act? Is it an unofficial act? Is it the inner perimeter? Is it the outer perimeter?

They make shit up, and you know what gets cited over and over and over again by the administration for the principle that when the president does it, it isn’t illegal, that’s the Nixon formulation. They cite the Supreme Court immunity decision. I want to be very, very clear that we like to pretend, Preet, that this is a MAGA problem. This is a Trump problem.

No, this is John Roberts and the justices who agreed in the immunity decision, handing Donald Trump the keys to a theory of executive, almost unbounded executive authority, and then turning around now in April and saying like, “Wait, what now? What does he think he has the power to do?” They gave him this. In some sense, and that for me is the most interesting question, who’s lying up at night and saying, “Oh, my God, what did we do?”

We had the Colorado case, we had the immunity case, we had multiple opportunities to do something to put a fork in this, and we instead put rocket fuel in it. I think part of what is, and that’s sort of what I’m trying to struggle with, the theory of mind here, where John Roberts, and Brett Kavanaugh, and what we call the same center, Amy Coney Barrett, who went along with that immunity decision, even though she would’ve cabined it, what they thought Donald Trump was going to do with the power they gave him. I don’t know the answer to that.

Preet Bharara:

Do you think in their heads, they were thinking about the likelihood of Donald Trump returning to the presidency or not?

Dahlia Lithwick:

I think, listen, I was the dumb dumb who spent all year last year saying, “They’re never going to give him this. In the Colorado case, they’ll put him back on the ballot, because that’s crazy, but they’re not going to give him immunity.” What do I know? I thought they were just split the baby people. They’re not split the baby people. They were like, “Take the baby and take the carriage, and also take the crib.” They gave him everything he wanted, so I no longer understand what they thought they were going to get.

What I will say is that I think if I’m trying to put the best possible glass on what John Roberts was thinking, I don’t think John Roberts is a MAGA lunatic. I don’t think he wanted JD Vance, and Kash Patel, and Pete Hegseth running the country, if for no other reason, Preet, than he’s like a Chamber of Commerce guy. He didn’t want the tariffs. He doesn’t want to burn the country to the ground. What did he want? I think he had some abstract theory of executive power that he’s been fighting for for his entire career, and he genuinely convinced himself that this is a good thing.

The idea that they had one round of Donald Trump already, they had the Muslim ban, they had the stupid census, the citizenship question on the census. They ruled against Trump time and time again. Then they were like, “This time, I think that guy’s going to behave himself. I really feel confident that he is going to operate within the bounds of law.”

Preet Bharara:

Wasn’t that Senator Collins? I think he’s learned a lesson.

Dahlia Lithwick:

He’s learned his lesson. He’s not going to do it.

Preet Bharara:

He’s learned his lesson.

Dahlia Lithwick:

The real question now is, and this is again, why I am just thinking about what they’re going to tell their grandchildren, and what their clerks are telling them, you broke it, you bought it, dude. You gave us this. If, in fact, in the next week or two weeks, a direct US Supreme Court order is flouted, I’m not going to blame Trump.

Preet Bharara:

Here’s another way in which the unstoppable force meets the immovable object, and that’s in connection with a finding of criminal contempt. That’s a flash point. How is that going to play out, Dahlia Lithwick?

Dahlia Lithwick:

Well, wait, now, here’s where I would like you to tell me, because you are-

Preet Bharara:

I don’t know.

Dahlia Lithwick:

… You are, no, dude. How is that-

Preet Bharara:

I pursued… Let me see how many criminal contempt cases that I-

Dahlia Lithwick:

Who’s in contempt? Who’s in contempt right now? Who’s in contempt?

Preet Bharara:

Everyone. Everyone. How do you pick?

Dahlia Lithwick:

Well, how do you pick and how do you, right?

Preet Bharara:

Am I correct that the president cannot be held in contempt, correct?

Dahlia Lithwick:

I do not believe he can be held in contempt.

Preet Bharara:

Okay, so can you hold in contempt a DHS official, a DoD official, a DOJ official? They’re all going to go like this.

Dahlia Lithwick:

They’re all going to go like this. I was kind of hoping that Judge Boasberg in DC who had lawyers, can we say that they just flat out lied to him?

Preet Bharara:

You can say.

Dahlia Lithwick:

He’s been trying to figure out for a number of weeks how it is that his order to not have those planes land in El Salvador were ignored. Is he going to hold the lawyers in contempt? The lawyers were all saying, “I was just doing what my bosses told me. They said that…” Your question is the right question, but I don’t know who is in contempt right now, because as you said, this is a huge collective action problem.

This is the real bitch of it, they have been told that on matters of foreign policy and international diplomacy, they have uncheckable power. I’m just going to say again, the people who told them that is the US Supreme Court, and they genuinely think that there’s nobody to be held in contempt because we get to do what we want. I’m hoping that there’s that tiny prison in the capitol. I’m hoping that somebody levies fines against somebody for lying to a court.

I’m sure every judge who is struggling with this right now is trying to figure out what that looks like. Again, who’s going to march them into jail? The marshals? They answer to Pam Bondi.

Preet Bharara:

Look, so Trump is about the deal, and he wants deals with law firms. He wants deals with universities, and time permitting, we’ll get to those things briefly in a moment. Is there a deal, and I hate to talk about matters of executive power of the Constitution and the rule of law as a compromise or a deal, but is there some way that Trump and/or his henchmen are thinking this can be resolved peaceably with everyone having some argument that they prevailed, and separation of powers is restored? Is my analogy about the massing on the border of two armies inevitable?

Dahlia Lithwick:

Again, I think that’s why when you get a seven to two Supreme Court decision, after two face-saving Supreme Court decisions that afford the president an opportunity to save face-

Preet Bharara:

They’ve already tried that, you’re saying? Yeah.

Dahlia Lithwick:

I’m saying they have done, they turned themselves into pretzels to try to do a deal that allows him to save face, right? This is, again, not to be structural, but you have an imperial court that has afforded imperial powers to the presidency. The court did this, and now you have an imperial presidency saying, “Go away.” You have had now, I think, several iterations of the court saying, “Dude, the deal is you save face and we save face, and everybody can look like we’re still a democracy.”

What has the president done with that? He spit in their faces. That’s why you get a seven to two decision in the middle of the night that doesn’t even get a chance to go to the Fifth Circuit. Alito doesn’t even have time to file a dissent. His dissent comes the next day.

Preet Bharara:

Came the next day. How often does that happen?

Dahlia Lithwick:

It never happens. It is a fundamental of court practice. You wait for the dissents. They didn’t let him file the dissent because this was an emergency. What I’m trying to say is when they’re at the point where they’re not affording the benefit of the doubt anymore, that’s the shift that we saw this week. When they are saying, “You are in bad faith,” there’s no deal, there’s no saving faith.

Preet Bharara:

The attack on universities, Harvard in particular, but a lot of different universities, how’s that going to play out, you think? As a legal matter?

Dahlia Lithwick:

This is another example of, it’s the same big law question that I know you also wanted to talk about, which is why did everybody cave in advance, and what happens when Harvard is like, “Actually, we’re not going to cave?” I think that the hope was that everyone would cave in advance. I think that this sort of rolling resistance that we’re seeing, both from Harvard now, from big law, from people who’ve been fired at various agencies, what you’re seeing is, I think, in sort of nascent, we are actually going to fight for our own prerogatives.

I think that how it’s going to play out, who knows? Tell me if you disagree with me on this. I think the courts have been, with very few exceptions, rather extraordinarily good bulwarks, better than I ever expected.

Preet Bharara:

Yeah, no, I agree. I agree.

Dahlia Lithwick:

Trump judges, right? Trump judges in Texas, good bulwarks. I think that the real sort of, oh, God, we keep doing these physics analogies, but the real, for me, fascinating turn here is that a judge like Judge Wilkinson judges across the country, the judges who signed that seven to two late night order, I think they are reacting now, and they are reacting to overreach on Calvin Ball and lying.

I think what’s very, very interesting is how contagious that is, Preet. I think that it’s hard to be the first, right? It’s hard to be the second.

Preet Bharara:

Well, that contagiousness, my view is this is not just a battle as between two branches, the executive and the judiciary. At some point, you got to get engagement. The two armies are massing. Well, there’s another army, and it can choose to join one side or the other. The side it joins will ultimately prevail, particularly if we’re keeping with the metaphor that we are, that one of the armies actually doesn’t have an army. It’s a fake army.

It’s an army of principles, and ideas, and public opinion, and everything else. You have this other army that does have power. At what point, Dahlia, are Republican senators going to say, “This is enough and we will take some action?” If I remember correctly, some of these guys went to law school, did they not? Clerked for judges, some clerked for justices on the Supreme Court. How do you factor in their role, if any, in this?

Dahlia Lithwick:

This is the thing. I do not want to end on this question. This is the part where I just like, burst into-

Preet Bharara:

We’re not going to end this question.

Dahlia Lithwick:

… on spontaneous tears. I think that any of the issues we’ve talked about, tariffs, the Alien Enemies Act, any of these issues, can you just, impoundment, can you just take money that Congress is appropriated away, any of these issues, Congress could have defended its prerogatives on the first day and they chose to lay supine and say, “We love Trump,” or Republican congressmen.

I think the question is, does Congress at some point say, “Enough?” I think the answer to that is the very chilling answer that I continue to hear whispered, which is they’re terrified. The Republicans in Congress are terrified, whether they’re terrified of Elon Musk primaring them, and going, right, this was the whole vote for Pete Hegseth, because we’re going to fund your opponent otherwise.

This is that very, very chilling, stochastic terror, the whole that amazing interview with Mitt Romney about how everyone around me is just afraid for their children, and for their kids’ schools, and for their homes. This is the part of this that I think we have not reckoned with. We started by talking about, we haven’t reckoned with how broken the media is. I think we haven’t reckoned with how terrified Republicans in Congress are, rightly or wrongly.

Preet Bharara:

Yes, but the solution is there’s another army that everyone really answers to, and that’s us. That’s the voters, that’s the people. The way you’ve set it forth is totally correct if you don’t think that there’s another force.

Republican senators must be afraid and are understandably afraid of getting primaried, but a public sentiment turns to their side, then opposing Trump and opposing the people who would destroy the constitution, should become a more powerful electoral force than the opposite. Then the power shifts. Where do you lay the blame as between the people and the Republican senators?

Dahlia Lithwick:

This is where I know I’m being invited to say, “Oh, my God, this is low-hanging fruit. Why are the Dems so terrible at this?” the Dems are, we can agree they are terrible at doing the thing that they should be doing right now, which is turning this into an electoral contest instead of sending out fundraising asks. Put that aside.

I think that the kind of fear that I’m trying to describe is the fear of forces that have been unleashed that cannot be clawed back. Whether it’s a billionaire or multi-bagillionaire saying, “I will fund endless primary races,” this is like sofa cushion change for Elon Musk, “to make sure that people who are not fully loyal to MAGA are gone,” that’s Citizens United, that’s-

Preet Bharara:

It didn’t work in Wisconsin. It didn’t work-

Dahlia Lithwick:

Didn’t work in-

Preet Bharara:

The rich guy failed in Wisconsin. I think that’s just an important thing.

Dahlia Lithwick:

Yes.

Preet Bharara:

It’s an important thing to think about, and to have some hope about. Look, the truest thing that Trump ever said maybe is, “I could shoot someone on Fifth Avenue and I wouldn’t lose any support.” He said that way at the beginning, and boy, has that been true, but there’s a more scary version of that with all due respect to the deceased on Fifth Avenue.

That is if Trump decided to say, “You know what? The court is anti-American. The court has intruded upon my executive power. I’m going to take measures to dissolve the Supreme Court. I know it’s outrageous and outlandish, but just hear me out listeners, particularly those on the other side, if there are any, I’m going to dissolve the court.” What percentage of people would support that? Some substantial percentage, I believe. Now, if that’s true, then that puts into perspective what we’re dealing with here. Is that fair or not?

Dahlia Lithwick:

I think it’s fair, and I think this is where the same American exceptionalism, the very first question you asked me, the WTF question, right? How did we get here?

Preet Bharara:

The question.

Dahlia Lithwick:

The answer is American exceptionalism, because we refuse to say, “There’s a playbook,” and it happened in Hungary and it happened in Turkey and it happened in Poland, right? There is a playbook, and that playbook, fire the whole civil service, sideline the judges, terrorize the press so that they’re afraid to report. Every step of this is familiar, to the Ruth Ben-Ghiats and the Kim Lane Scheppeles. It’s not familiar to us. We’re like, “This is happening for the first time in a vacuum,” but it’s not.

This is the playbook. The first thing is recognize the pattern. Recognize that just because you think we have the freest, fairest elections in the world, they thought that in Hungary, they thought that in Turkey. That’s the first thing. See the pattern, and understand we are a part of a pattern that is international and global, and that this is happening around the world. Then the second thing, and this is the most important thing, and I love, you said it on my show, and it’s really true. Nobody is coming to rescue.

You are going to have to get on the streets. You are going to have to put your skin in the game. Yes, there was Wisconsin and that was amazing, but holy crap, what happened with the North Carolina Supreme Court is scary as balls, right? Holy crap, what is happening with vote suppression around the country is scary. I think that we have to just do a really good job of saying that in the countries that have beaten back authoritarianism and tyrannical government overreach, it’s never because some guy rides in with a white hat and saves us.

It’s never Robert Mueller is coming to save us. It’s never Preet. It’s never, all due respect. It’s just not Adam Schiff. It’s people with their bodies on the streets, what Tim Snyder calls corporeal protest. I think that once you can sort of peel away the architecture of it’s not going to happen. We have courts, it’s not going to happen because we have federalism in states, it’s not going to happen because we have whatever it is, still have a free press.

I think that that’s just way too passive. What I want to really say is the beauty of democracy is it actually works, but it cannot be a thing where you do the popcorn emoji and hope for the best.

Preet Bharara:

Thank you, my friend. Always a joy and enlightening to talk to you. Thanks so much.

Dahlia Lithwick:

Thank you, Preet. Thank you.

Preet Bharara:

My conversation with Dahlia Lithwick continues for members of the CAFE Insider community. In the bonus for insiders, we discussed the lawyers standing up to Trump’s attacks on big law firms.

Dahlia Lithwick:

The idea that, like to come round to say every single lawyer in the country has to be on the front lines here, whether it’s a rational business decision or not, I think it takes enough folks doing that that now you’re seeing real pushback.

Preet Bharara:

To try out the membership, head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I answer your questions about the Trump administration’s plan to list living people as deceased, and if Harvard should revoke degrees from graduates serving in Trump’s White House. Now, let’s get to your questions.

This question comes in an email from Spain, from Cindy, who writes, “As I read in the Washington Post, Secretary Kristi Noem signed two memoranda of agreement, authorizing the placement of immigrants in the Social Security’s death master file. Would this not be considered illegal as purposeful falsification of government records?” Well, that’s sort of an interesting question. I’m not sure I can quite get there.

As Cindy mentioned, the Trump administration recently moved about 6,300 immigrants social security numbers to what’s called the death master list, and is intimated that they may move many more. Before I get into that directly, I think it’s important to understand some fundamentals about social security numbers, which you’re probably quite familiar with if you live in the United States. Social security numbers or SSNs are unique numbers assigned to US citizens, but not just citizens, but also permanent residents, and certain legal immigrants by the federal government.

As you may know, SSNs are used for much more than simply keeping track of a person’s social security benefits. The numbers are also used to access all kinds of financial services, like bank accounts, credit cards, loans, and of course, employment verification. A social security number is essentially your financial identity in the US. The purpose of the death master list, which as its name suggests, is to track deceased individuals to avoid fraudulent use of dead individuals’ identities. Makes perfect sense.

Now, Cindy, as you mentioned in your question, the Trump administration recently repurposed the death master list to target immigrants, many if not all, of whom arrived legally during the Biden presidency. The initial names are limited to people that the administration says, and I emphasize, this is what the administration claims, people who are convicted criminals and suspected terrorists, whether we or not, we’re supposed to believe the administration’s pronouncements and claims on those points.

According to the Washington Post, among the people targeted were immigrants with valid social security numbers who had lost legal status, such as those who participated in Biden-era work programs that were ended under the new administration. In some cases, it is believed that legal immigrants marked as deceased will no longer be able to get credit cards, open bank accounts, obtain loans, rent apartments, or even maintain employment legally. To quote the acting Social Security Administration Commissioner, Leland Dudek, their financial lives would be terminated, which is exactly the point.

According to the New York Times, this is in fact part of the Trump administration’s self-deportation strategy. They’re trying to pressure legal immigrants to leave the country voluntarily. How? By making life very difficult. Is this legal? The Washington Post has suggested that the Social Security Administration’s general counsel’s office is preparing an opinion that will find the Trump administration’s unprecedented use of the death database is a violation of privacy law.

The opinion will take issue with the agency, knowingly and falsely declaring that living people are dead. We’ll have to wait and see if anything comes out of that opinion. If it does come out, who gets fired? Will Trump’s strategy, legal or otherwise, actually work? Will these immigrants voluntarily leave the United States? We don’t know. Some immigrants might, but the strategy could also backfire. Some might stay and work off the books and enter that shadowy world, where lots and lots of immigrants reside, which means also they may be forced into the underground economy and no longer pay income and social security taxes.

We’ll see where this policy goes, how transparent it is, what the legality of it is determined to be. There’s a really good argument, whatever you think about all of this, that it’s better to have people in this category having a social security number, paying income tax and social security taxes, being a part of the system rather than being forced into the underground economy.

This question comes in an email from Chris, which is a pretty interesting question. This is what Chris writes, “Sure seems to me that Trump’s attacks on Harvard invite a response beyond just a middle finger. Could Harvard retract the degrees of senior Trump administration officials who currently hold esteemed Harvard degrees? Sure seems to be possible and appropriate.” Chris, interesting set of questions. First, I don’t know exactly when you emailed your question, but Harvard has responded in a way that’s far beyond just a middle finger.

They have sued, in a fairly weighty and substantial manner, alleging all types of violations on the part of the administration under the Constitution and various statutes. That’s not just the middle finger. They’re taking the administration to court. Now, as for your other suggestion, which is sort of reverse retribution, I understand where you’re coming from, and I can admit, I think at this moment that I also sometimes have a decadently vindictive spirit coursing through my own veins.

I’m of the view often, going back to that famous quote from the Untouchables, I think it is, if they put one of yours in the hospital, you put one of theirs in the morgue. I get it. You could imagine, by the way, that Harvard could take all sorts of retributive steps beginning with the one that you suggest, taking away the Harvard degrees of people in the Trump administration. By the way, there are a number of them who are pretty prominent.

Peter Navarro, trade advisor has a Harvard degree. Pete Hegseth, Secretary of Defense has a Harvard degree. Robert F. Kennedy Jr., Secretary of HHS, has a Harvard degree. Of course, Donald Trump’s own son-in-law, Jared Kushner, has a Harvard degree. The university could decide to take them all away and could decide to take away honorary degrees of other people in the administration. They could go another step further, as long as we’re imagining this vengeful right post, they could, I guess, refuse admissions to people who are the offspring of, or relatives of Trump administration officials who are responsible for the attack on Harvard, or associated with the officials who are responsible for the attack on Harvard.

There’s all sorts of things that they can do. They won’t do those things because Harvard will not stoop to the level of Donald Trump, but imagine for a moment the thought experiment. Imagine if Donald Trump was the president of Harvard, and he was facing what Harvard is facing from this administration. You can see it in the way he’s gone after law firms in those executive orders, attacking wholesale, and with tremendous collateral damage, entire businesses and business organizations that once upon a time had one person who may have offended him, or his sensibilities, or his political aspirations.

Harvard would not be acting disproportionately compared to the way Trump acts against his enemies, but they won’t do it and they shouldn’t do it. There’s another reason, by the way as well. There have been court cases that have addressed the question of whether or not a diploma or a degree from university is in fact a property interest that you have earned a right to, and can’t be taken away from you without due process. I want to also just point out, I’m very proud of my alma mater.

I went to Harvard College, as many of you may know, and I’m proud of the fact that it’s fighting back in the same way that I’m proud that my law firm, Wilmer Hale, is fighting back. I hope more do. This question comes via Twitter or X, from handle @Redheadfilm. @Redheadfilm asks, “Hey, Preet, very important question. I’m aware that the plural of Attorney General is attorneys general, but when abbreviating, why do people use AGs? Shouldn’t it be As G, #AskPreet?”

Okay, I should have known with a Twitter handle like @Redheadfilm that you’d be a wise guy, but it’s sort of interesting, and the Crack team here delved into that a little bit because we like punctuation and grammar questions a lot at the Stay Tuned podcast. First, something to understand is with the term Attorney General, many people mistakenly think the general refers to a military-like rank, like major general or brigadier general, but it doesn’t. In this case, general is an adjective, like general counsel or general practitioner, and you can’t pluralize an adjective in English.

Then the question is, why are the words backwards? Why is it not General Attorney as opposed to Attorney General? Well, we did some more research and it turns out that the title originates from the French, where adjectives generally come after nouns. English, whose words come from many, many different languages, in this instance, adopted the convention of the inverted words of the adjective and the noun from the French. The next question is, why does the acronym for attorneys general follow this principle?

It’s not a lot of information about this question, but I would imagine that it would just be really weird and silly and awkward. AG, just like many other acronyms, are treated like their own words for the sake of punctuation, pronunciation, and pluralizing for usability in a sentence. The same idea I guess would apply to acronyms like the DMV or POW. The plural forms are Departments of Motor Vehicles. We don’t say Ds MV, and we don’t say, we don’t render prisoners of war as Ps OW, we say DMVs and POWs. I hope that was helpful.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Dahlia Lithwick. 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 @Preet Bharara with the hashtag #AskPreet. You can also now reach me on Blue Sky, or you can call and leave me a message at 833-997-7338. That’s 33-99-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.