Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara. This week, President Trump delivered the longest presidential address to Congress in modern history. It was a State of the Union of sorts, though it sounded a bit more like a campaign speech or rally. Since taking office on January 20th, the Trump administration has moved quickly to implement its agenda.

Donald Trump:

In the history of our country, we have accomplished more in 43 days than most administrations accomplished in four years or eight years, and we are just getting started.

Preet Bharara:

The president’s supporters see it as bold and decisive while others view it as well, chaotic, scary, like watching a train run off its rails. You can choose. To break down the long and at times contentious evening, I’m joined by Yale History Professor Joanne Freeman, New York Times Columnist Frank Bruni and Editor-in-Chief of The Dispatch, Jonah Goldberg. We’re going to talk about the speech and the actual State of the Union. That’s coming up. Stay tuned.

So is this union still on? Joanne Freeman, Frank Bruni and Jonah Goldberg join me this week to talk about the state of our country. Thank you Jonah, Joanne, and Frank for being here. Jonah, for the first time, I’m very excited to have you.

Jonah Goldberg:

It’s an honor and a privilege, sir.

Preet Bharara:

Okay. I bet you say that to all the podcast hosts. So obviously we are speaking the day after, I guess it wasn’t technically a State of the Union address. It was a joint address by Donald Trump to Congress. And we have a lot of things to talk about, but can I set the stage for the first question in the following way? There are a lot of things that one can critique. There’s a lot of fact-checking one can do. There are a lot of things that one can say were good about the speech. We could talk about the length. But before we do any of that, start with you Jonah. What was the President’s goal for this speech? What should have been the President’s goal for the speech against which we can actually evaluate his performance?

Jonah Goldberg:

It’s a good question. It’s funny. I’m long on the record of despising the State of the Union as a monarchical spectacle that we should be done away with or at the very least, we should go back to the pre-Woodrow Wilson thing where they just send a letter. But the joint session after an election thing, my understanding is that basically Reagan was kind of the innovator of that too. And the point of it was to give an explicit message to Congress, “This is what I need from you.” It wasn’t supposed to be a State of the Union address. It was supposed to be “Pass my tax bill” or “Write me a legislation about the border” or “Declare war” or whatever it is. That’s the sort of understanding of it historically. And I think Trump is an innovator here because I think he just wanted a rally in prime time. I don’t think… He has this… One of my favorite quotes from Trump is first from 2016 where he said “The most important thing is unifying the people because the other people don’t matter.” And so Trump kind of has this view.

Joanne Freeman:

Yogi Berra-ish.

Jonah Goldberg:

It is. But there’s a certain kind of wacky Japanese game show logic to it in so far as Trump thinks that the only people who matter are the people who support him. The polling that he referenced last night, totally wrong if you’re talking about actual America. But if you’re actually talking about a poll of Republicans thinking the right track numbers have really improved, he’s kind of right. And I think that’s what he looks at. He looks at his supporters as the only people he’s talking to, and he sees the Democrats as things to triangulate against his sort of whip up negative polarization.

Preet Bharara:

So if that’s it, Jonah, then are you saying that his goal, whether it’s the right goal or not, was to give red meat to his base, not to expand his base?

Jonah Goldberg:

Yes, I think for the most part, and to provide a show. I’m sure if you talk to his Susie Wiles and some of the smart people around him, they would have a more grandiose theory of the case. But I think what was going on in his head was basically that when he walked in is…

Preet Bharara:

Okay. So it sounds to me if that was the intended goal, he kind of succeeded. Frank, Joanne, what do you think?

Joanne Freeman:

Well, it’s interesting. I didn’t, oddly enough, it never occurred to me to ask what was going to be the purpose of this, because he only does one thing when he speaks, and that’s this. Every time he speaks, it’s a rally. That’s what he wants. But interesting, you’re asking the question. I hadn’t thought about the fact that… And I totally agree. I think this was the Donald Trump show and he was going to throw red meat to the people who love him anyway. But he’s been weirdly out of sight for Donald Trump since he became president. It’s been kind of Musk, Musk, Musk all over the place.

So the probably was also a kind of hunger on his part of one hour and 50 minutes, however long it was, really intense hunger on his part to be center stage, have all the cameras on him, to have everyone be paying attention to him and to get in the one-liners and the mocking and whatever else because he kind of hasn’t been. He’s weirdly quiet and absent to some degree since he became president. So for him, this throwing red meat to the folks who love him anyway and getting the spotlight, in that sense, yeah, I guess if that’s what he wanted, then he got it.

Preet Bharara:

Yeah. Frank, I actually asked two questions. One was what was his goal and also what should have been his goal? Do you want to address either one of those?

Frank Bruni:

Sure. What was his goal? I think his goal was merely to sop up attention, to command the spotlight. And I think his goal is always to superimpose his reality on reality itself. I think Trump believes that if he states things in a grandiose and confident and repetitive and emphatic enough fashion, he can actually make a great number of people believe it. And these things, to Joanne’s point, that all of these things are the same. They are all the same and each and every time, whether it’s Madison Square Garden, whether it’s the Rotunda or whether it was the remarks last night, it’s an orgy of self-congratulation.

It’s just one paragraph after another is about all that I will do for you. All that I have done for you. It’s superlative, a top superlative. it’s like listening to an adolescent brag because everything else was the worst ever. Everything with him is the best ever. And I think that is all in the service of a goal of superimposing his reality on whatever the actual situation is. Did he succeed in that? I think the answer is always among those people who were favorably inclined to him. Yes. And he-

Preet Bharara:

Among the people.

Frank Bruni:

Yeah. And among those people and among those people who weren’t, no, he didn’t. And so I was actually more focused and that was inevitable. That was foreordained. I was more focused because of that on how the Democrats responded, because I wanted to see if they could do anything other than what would be expected. I didn’t know what to expect that might move the needle. And I thought, and I say this…

Preet Bharara:

The paddles. You thought the paddles moved things?

Frank Bruni:

Well, no, I say this with great pain in my heart, I thought that the Democrats were miserable last night. It was a terrible look to stand up and walk out. The paddles were absolutely insane. It was just, I don’t know how they went into that with no plan or no good plan and how they kind of managed. I was talking to… I have a lot of friends who are real centrists, who are offended by Trump, but worried about Democrats and what they were saying to me after last night wasn’t like, “Oh my gosh, the amount of lying Trump did. Oh my gosh. The braggadocio.” What they were saying is I looked at the entire room, I looked at both sides and thought, “This is our country?”

Joanne Freeman:

Oh, God. But I thought that what we saw the Democrats doing, given that we knew what to expect from Trump, I agree with you in a sense, I wanted to see what opposition would look like. And I know I’m one of many, many, many people who keeps asking, “Where’s the opposition? Where’s the opposition?” And what we saw among the Democrats, the pink suits, the little ping pong paddles that said, “Falsehood.” I don’t even know if they said lie. They were not even going to say the L word.

Frank Bruni:

I think some of them said Musk something too. I don’t know, they were- Yeah.

Joanne Freeman:

Yeah. Some of them said Musk something. The handful of people who left and I guess had T-shirts that said, “Resist,” on the back. And then Al Green standing up with the cane and then supposedly Hakeem Jeffries saying, “I don’t want anyone to do anything,” was such the epitome of where the Democrats are now. They have no strategy. They have no unity. They have no plan. And it was just a scattered sort of, “We need to do something. Here are three things to do.” That I don’t want to say I watched this joint address and then blamed Democrats for everything because I watched it and listened to an hour and however many minutes of lies. But I guess I wanted to see something that suggested unity and that suggested protest. And the only evidence we had really of protest was Al Green.

Jonah Goldberg:

So I’m going to push back, including on something I said in the beginning about, because I basically was on the same page as Frank about how he wanted the Trump show and he got the Trump show. I will say, look, most people aren’t watching this thing. And most people who really can’t stand Trump really aren’t watching. So the instant analysis focus group poll stuff that they did at CNN said the reviews were fairly high, the lower than ones in the past. The thing is that the Trump team understands this really, really well. Most people are going to consume this thing in sound bites and clips. It’s going to be on TikTok, it’s going to be on Twitter, it’s going to be on cable news. The little sound bites and clips are going to be maybe not on MSNBC, but for the most part are going to benefit Trump.

And one of the things that Trump did going into it was… He could not have telegraphed his strategy more. He says in the first five minutes, “There’s literally nothing I can say or do that you Democrats, you terrible Democrats will applaud or smile or stand up or cheer for.” And then an hour later it’s the adorable kid with brain cancer who wants to be a cop. And it’s the victims of this horrible crime and that horrible crime.

And I want to be really clear about this. I am a Reaganite. I like Ronald Reagan. I will defend Ronald Reagan. I think one of the worst parts of Ronald Reagan’s legacy was introducing the use of human beings as props in these addresses because it’s gotten wildly out of hand. I’m not saying I’m not sympathetic to the people that they brought up, were empathetic about their plight, but we’re approaching bread and circus territory with the way this is being done. And it’s a very visceral thing. I think it’s probably very effective on Twitter and social media where you’re going to have Democrats refusing to show respect to these victims and heroes. And it was not incredibly clever except the Democrats had no plan about how to deal with this.

Preet Bharara:

Yeah, look, can I just say that based on this conversation, if you go back to the original question, which was what was the goal? It was an extraordinarily… I will suggest respectfully, it was an extraordinarily successful, well-executed speech for the limited purpose of rallying his people. He had that moment with the young boy who gets anointed secret service agent, which is very touching and moving, and most normal people would think it is, and it looks very petulant. Notwithstanding the circus atmosphere that Jonah mentioned, it looks petulant for the Democrats to do what they did, especially when it was previewed by Trump. That’s a tactic that people use in trial. In my wheelhouse, you’ll often have a lawyer get up and say, “When the next guy gets up, watch what they won’t answer, watch what they won’t say, watch how they deal with this piece of evidence.” Extraordinarily effective.

I don’t like it. I don’t like him. It seems he had multiple moments like that. Here’s a line from… I don’t agree with much of what she says, but going back to the question of what the Democrats can or should have done, there’s some people who think there’s nothing that they could have done. This comes from Meghan McCain. “Not just because I’m a Republican, but I truly don’t know how Democrats can compete with any of this. I wouldn’t even know where to begin on how they compete with this.” I heard that sentiment from other people too. Fair sentiment.

Joanne Freeman:

When you say this, you mean the podcast?

Preet Bharara:

The speech she was giving.

Joanne Freeman:

Yes. Yeah.

Preet Bharara:

She said that during the speech after some of these things that we’ve been discussing. Jim Carville himself has basically said, “Democrats should play possum, should play dead. Let these guys everything up.” Is it too fatalistic to say, “Yeah, there’s not much you can do against this current rhetorical base rousing juggernaut”?

Frank Bruni:

When I hear a statement like they can’t compete with this, it’s something I think in my own head all the time, but to me, that this is that magnitude of shamelessness. And I don’t think this is a partisan sentiment or a partisan analysis to say, because Democrats absolutely lie. Democrat, there are many, many shameless Democrats, but I think Trump and his closest followers take this to a degree that I don’t see many Democrats being willing to take it in terms of completely inverting and perverting and creating a fictive reality, in terms of claims as grandiose as the ones that Trump makes.

But while we’re beating up on Democrats, I want to say something else. I was blown away by how good Elissa Slotkin was. Now no one’s going to see that. It’s not TikTok ready, so it’s just going to kind of fade. But if Democrats are looking for the perfect 15-minute speech to give, if they’re looking for a perfect short succinct list of talking points, she did not talk down to Americans. She did not talk jargon to Americans. She had exactly the right manner. And she wasn’t calling Trump or any of his people names. She was just saying, “Here are the things we all care about.” And she defined them in a way that did not seem partisan, but that seemed documental. And then she said, “And here is substantively why I think Trump is going about this erroneously.”

Elissa Slotkin:

Donald Trump’s actions suggest that in his heart, he doesn’t believe we’re an exceptional nation. He clearly doesn’t think we should lead the world. Look, America is not perfect, but I stand with the majority of Americans who believe we are still exceptional, unparalleled. And I would rather have American leadership over Chinese or Russian leadership any day of the week because for generations, America has offered something better. Our security and our prosperity, yes, but our democracy, our very system of government has been the aspiration of the world. And right now it’s at risk.

Frank Bruni:

I wish that speech could get more exposure. I hope it’s a preview of what she’s going to offer the Democratic Party for years to come, because while we’re beating up on Democrats, we have to congratulate Elissa Slotkin and the party for choosing her.

Joanne Freeman:

I think that’s right. But I think this gets back to the question of could the Democrats have done anything in that moment because I thought it was very effective. I also think given the fire hose of lies that were thrown at us in the course of Trump’s address and that sort of five-minute riff on crazy numbers of people who supposedly are getting social security benefits, which was bonkers. So we got these crazy claims for a crazy amount of time, not normal is that one sign being held up by one member of Congress. This is not normal. And then we had an exceedingly normal address from the Democrats and it was effective and it was good, and the tone was right. And it seemingly kind of normalized this moment in a way that I’ve been uncomfortable to even Preet with your original question, was it successful? It’s very hard for me to say, yes, it was successful because it was successful…

Preet Bharara:

On its terms, right?

Joanne Freeman:

Yeah. On its terms, it was successful, but it was lies and performance. And as you were just saying, Frank, to an extreme degree, it’s not even that Democrats lied to and past Republicans have lied. He just perverts reality to such a degree that for a huge percentage of people, they know it’s totally false. They know it’s just lies and the shamelessness and the lack of accountability. And that’s what they’ve learned by this point. Many Republicans have learned that they’re not held accountable. They can say what they want. There’s no penalty for it. People don’t call them on it. The NPR or CNN making lists of fact checking that doesn’t percolate through, it’s not going to have an impact. That place, they’re getting away with it. And sure, they’re shameless. There’s no penalty for it. It wins them things.

Preet Bharara:

Yeah. So Jonah, I want to get you in on this, but just further to what Joanne just said. The reason you can’t compete arguably is that if you were able to stand up and have the world’s biggest microphone and lie and lie and lie again and again with impunity to an overwhelmingly credulous base, how do you compete with that? Most of the commentary I have seen, the commentary in this podcast so far has been about how many lies. He went on for… And Joanne, you said something a second ago, I don’t know if it’s true or not, that the people who are relevant, meaning his base, know that he’s lying.

I think most people believe all the debunked claims that went on for minute after minute after minute about the thousands of people who are 151 years old getting social security. And so the competition point that Meghan McCain raised, I don’t mean to credit the sentiment. To me, it’s more an indictment of a dynamic in which you can say any shit you want and they will all believe it. And I don’t know that they know better. Jonah, how do you feel about that?

Jonah Goldberg:

Yeah. So I’m glad you used a scatological term there because I was wondering if I could get away with this.

Preet Bharara:

You can.

Jonah Goldberg:

My friend Eli Lake makes a very powerful case that the key thing, Joanne and Frank, we’re all talking about how Trump lies, and of course, Trump lies. That is as well-established a fact as we’re going to get. The key though is that Trump is a bullshitter, and there’s a difference between bullshit and lying. Lying pays a certain amount of respect to the truth by denying it, by negating it, by confronting it almost in a Hegelian fashion as truth, falsehood and they battle it out for some new synthesis. You just say whatever you need to say in the moment. They’re half-truths, partial truths, whole truths, but out of context, defensible things. JD Vance has sort of mastered some of this where he’ll interview Dana Bash or Kim, whoever, will say, “But what Donald Trump said isn’t true. It’s wildly exaggerated. It’s only this one apartment block rather than the entire town of Springfield where their gangs are doing this or they’re eating dogs, whatever.”

And he would say, “Okay, so you’re conceding that it’s true. In this regard, you’re just saying he exaggerated too much and you’re okay with the thing that you’re conceding is true, right?” He’s this cleanup operation behind Trump for this sprinkler system of bullshit. And that is a very effective thing because Donald Trump spent his life. He is not a big real estate guy. He never was. He’s a condo salesman. And he spent his life saying, “What do I have to do to put you in this condo today?” And if that meant, oh, we’re going to have walk-in closets, of course we’re going to put them in, just sign on the line. And whether he actually does it or not, didn’t matter to him.

He just says what he needs to say to get through the moment. And that is a very difficult thing in politics to compete with, particularly if you are faking it. And we’ve seen this in the Republican side for the last 10 years. There are a lot of Trump imitators out there. They haven’t done particularly well in primaries and general elections because you can tell they’re making it up and it’s not authentically who they are. Trump is comfortable in his own skin as a bullshit artist and a fraud in a way that people, it’s like Dave Chappelle calls him an honest liar where he just admits, “Oh yeah, I was lying about that.”

The Washington Post editorial board once asked him, “Do you seem to whine a lot for a guy who talks so much about manliness?” And he says, “Yeah, I whine. I whine and I whine and I whine until I win.” He is a nearest weapon to the hand creature that doesn’t believe in the norms of good manners, of politics or any of these kinds of things. And for people raised in those norms, it’s very difficult to sort of compete with. So I’m very sympathetic to James Carville’s point about all of this. I think Democrats trying to fake fighting back will be worse than letting Trump have his rope for a little while.

Joanne Freeman:

I wanted to… First of all, the difference between lying and bullshitting I think is brilliant. But I think another factor that needs to be added into that is when you’re a blatant bullshitter, people admire you for it, right?

Jonah Goldberg:

Right.

Joanne Freeman:

Not only do you get away with the bullshitting, but you’re so blatantly doing it. People are like, “That guy has got guts. That guy, look at what he’s doing. Boy, that guy, what a fighter. I want that guy on my side.”

Jonah Goldberg:

What a character, right?

Joanne Freeman:

Right.

Jonah Goldberg:

It’s something more American and defensible about it. I don’t think so morally or in the eyes of God or any of that kind of stuff. But we have characters in popular culture who just talk their way into situations, and they’re like heroes in movies and TV shows.

Joanne Freeman:

1. T. Barnum.

Jonah Goldberg:

Yeah. And we don’t…

Joanne Freeman:

Ignoring every minute.

Jonah Goldberg:

He takes huge advantage of that fact.

Preet Bharara:

There’s a more obscure one that came to mind as you were speaking, Jonah. It’s from an underrated movie called True Romance.

Jonah Goldberg:

Love that movie.

Preet Bharara:

Written by Quentin Tarantino, but not directed by Quentin Tarantino. And the Christian Slater character has come into possession of $200,000 in cocaine, and he’s trying to unload it on a big Hollywood mogul. And there comes this very fraught moment, and he said he got it from a dirty cop, something like that. But the climax of that sub scene within the scene is the producer, I think asks Christian Slater, “How did you convince that guy that you could unload $200,000 worth of cocaine?” And there’s this moment and you’re like, “Oh, no, it’s going to be the game is up.” And he said, “I just bullshitted him, man.” And the guy’s like, “I love this guy.” It’s super charismatic. It’s super charming. But what does that then tell us about how. It’s one thing to have a bullshitter who’s a rapscallion and charming in a movie, when he’s the commander in chief, how do you go about dealing with that? Frank has all the answers.

Frank Bruni:

No. How do you go about dealing with that? I know, I just weep. I don’t know though. I’m fascinated by this question that’s come up about whether people believe the lies or whether they just kind of enjoy the spectacle of bullshitting. And my suspicion is it’s a combination of all of that. But the thing that I keep thinking about, and to me, the big question of the next year revolves around a word that came up earlier. Someone talked about accountability. And I worry that because of our poisoned and fractured information environment that we’re actually living or possibly going to be living in a post-accountability age. So people always say, “Listen, Trump can give 100 minutes of remarks like that.” They can be successful by whatever terms he’s defining that he and his people.

But when all is said and done, either grocery prices will go down or not. When all is said and done, people will either feel more affluent or less affluent, and that will determine his fate. And I don’t know if that’s true anymore, because he’s not just a bullshitter extraordinaire. He’s a bullshitter extraordinaire in an era when people are only consuming certain kinds of information where they’re rendered by the kind of technoscape, they’re rendered more gullible than ever before, they’re rendering themselves more gullible. So if nothing improves, nothing that he said he would improve, if things are really bad, will people say, “Okay, he didn’t do what he was supposed to do and we have to change horses,” or will they listen to him and believe him, his bullshit, when he says, “This has nothing to do with me. These are the people who stood in my way. These are the scapegoats. This is where your reality is not exactly what you think you’re experiencing” and on and on. And I just wonder if there’s that element of post-accountability in our politics now.

Joanne Freeman:

And post-accountability meaning non-reality, right? How do you pinpoint the reality? And if you can’t pinpoint the reality, how are you holding someone accountable? And I’ve been thinking about and talking about accountability for years at this point, because if you’re talking about the pillars of any kind of democratic governance, you’re talking about free and fair elections, the rule of law and the accountability of people who get power, all of which are under attack right now. But after the original January 6th when there were basically for people with power was no accountability for what happened on January 6th. That, to me, felt like a sort of death of accountability moment. If that could happen, if there could be an attack on the Capitol and an attempt to overturn an election and people with power are essentially not held accountable really for what happened and to the point that now they’re elected president again, that feels like some certain expectation of accountability. And I totally agree with you, Frank, in the mix, the media mix that we live amongst now, that’s beyond a serious problem. That’s where we are.

Frank Bruni:

He was able in a fairly short amount of time to turn a day of insurrection into a day of love. Right? Now, not all of his supporters believe that. And some of the public opinion polls are interesting because those pardons were hardly the most popular thing he did, but they were tolerated, they were indulged. And I think that’s partly because of the number of people for whom he turned a day of insurrection into a day of love. And if that is a preview of what he can do when reality does not flatter him, we’re in serious trouble.

Preet Bharara:

I’ll tell you when the big test is going to come, because he campaigned on prices and lowering inflation, and he’s done these ridiculous and crazy tariffs and the war that will ensue back and forth, tit-for-tat. And he acknowledged something I thought pretty extraordinary in the speech yesterday. I don’t have the exact words in front of me, but he said, “We’re doing this because we need to do it, and it’s good for America.” And something like there’ll be some bumps along the way.

Jonah Goldberg:

Some difficulties, I think.

Preet Bharara:

Some difficulties.

Jonah Goldberg:

Disturbances. I don’t know.

Preet Bharara:

Disturbances.

Donald Trump:

Tariffs are about making America rich again and making America great again, and it’s happening, and it will happen rather quickly. There’ll be a little disturbance, but we’re okay with that. It won’t be much.

Preet Bharara:

That is the story. He’s previewing to his base in particular that the stuff is going to get worse before it gets better. And when we, on this panel, and I’ve said similar things to what Frank just said, and I’ve heard a lot of smart people say the same kinds of things, that the proof is in the pudding. And when people’s lives get worse and prices go up, they’ll change their minds. Does Trump’s power and aura, will it extend to a somewhat sustained spike in inflation because he has told his people it’ll be okay ultimately? That would be an astounding level of authority and power beyond which more than we’ve seen so far among the Trump supporters. How is that going to go?

Jonah Goldberg:

Yeah, so look, it’s important to distinguish the Trump base or Trump supporters or MAGA world from Trump voters, right? Because the majority-making voters, right? The median voters in these swing states, the Hispanic mechanic who got screwed by inflation and COVID and all that kind of stuff, they weren’t voting for Kash Patel at the FBI, right? They were voting for all of this handling with inflation stuff. And those people are losable because they’re not part of the cult. You’re absolutely right that the people who are part of the cult are going to stay part of the cult because that’s what cults do, right?

Preet Bharara:

Right.

Jonah Goldberg:

My friend Kevin Williamson put it, “The cult people are the kind of people who believe the Hale Bopp leader when he says, ‘Oh, the spaceship is behind the comet and it’s going to reveal itself on August 12th,'” and then August 12th comes around and he says, “Oh, I checked my math and it’s actually going to be next October,” and they, “Oh, okay, so it’s next October.” Those people are going to believe because Trump’s non-falsifiable for them, but those people are not a majority of voters.

Preet Bharara:

But they get pretty close at this point, don’t they?

Jonah Goldberg:

No, I don’t think they do. I think…

Preet Bharara:

They get to 35%. How much do you think that gets them?

Jonah Goldberg:

I think the hardcore people who just… It’s not whether they believe them, take them seriously or figuratively, it’s that they take them hypothetically. And so for those people, if it turns out he was telling the truth, they say, “See, he was right.” If it turns out he was lying, they say, “Oh, but he was doing that for leverage or that he is a great BS” or…

Preet Bharara:

Part of the deal, part of the deal.

Jonah Goldberg:

Part of the deal. They always can have a pretextual explanation for it. The median voter, I don’t think are those people. There were a lot of people I know in sort of donor world who did not like and do not like Trump, but they voted against Kamala Harris. Now you can argue that was dumb or whatever, but that’s where their heads are and they’re not happy. And so I think there are a lot of people in this sort of MAGA boat parade world, the people who own car dealerships and small manufacturing companies and that kind of thing, they’re going to get hurt hard by the terrorists. And this is a point, I’ll close on this, but it’s a point I wanted to make at the outset. These addresses typically just don’t matter. They’ll be forgotten in a couple of days. I don’t want to undermine the significance of this fantastic conversation, but recall that Joe Biden supposedly saved his presidency with this stellar high energy performance in his State of the Union last March, and three months later, he dropped out of the race. These things are easily forgotten.

Preet Bharara:

Well, that would be a good parallel. Let’s stick with that.

Jonah Goldberg:

But the point I want… The only thing I wanted to make is that line where you said there are going to be some disturbances. That is the thing that people might end up remembering, because if we really go into a full-on trade war and the global markets start tanking, the first two days of this week, the stock market dropped 1300 points. If that stuff really starts to go off the rails, he’s going to run into basically the same directional problem that Joe Biden did, which was that he was talking about stuff that didn’t affect people’s day-to-day lives. He seemed like he was interested in things that were going to pay off in 10 years, or he was saying, “Don’t believe you’re lying eyes because inflation is transitory” and all these kinds of things. And people lost faith in him about the border and about inflation and all that kind of stuff. If inflation gets out of hand, if the economy goes crazy, if the markets crash, Trump’s diehard supporters will still be all in. But I think that leaves about 65% of the electorate. That’s not.

Preet Bharara:

So wait. So why did he say that thing? I’m sorry. It’s still just extraordinary to me. There are a couple of things that Trump almost never does. He’s almost never self-deprecating. He never laughs. And I can’t think of another time when he previewed some future hardship based on things that he’s doing. He always says “Everything’s going to be great. The healthcare plan will be out next week. Infrastructure week will happen soon. It’ll be the best thing that you’ve ever seen, the likes of which…” It’s always superlative in the future, no matter how outlandish, no matter how crazy. Is there something else to read into the fact that he felt it necessary to say this thing?

Joanne Freeman:

Am I mistaken that Musk said that already once?

Preet Bharara:

He said something similar.

Joanne Freeman:

Yeah.

Jonah Goldberg:

I don’t know, but Musk is not Trump.

Joanne Freeman:

No, no. I know.

Jonah Goldberg:

Trump has gotten phone calls from a lot of Republican senators and congressmen and donors who are like, “What the hell are you doing here? You told us you were doing this for leverage.” And then last night he literally says, “We’re doing this to protect the soul of America.” That is something he can’t walk back from.

Preet Bharara:

But I’m focusing on it maybe too much because is there a seed of some strategy in the fact that he felt the need to utter that warning? That to me was a sign of atypical spoken weakness by Trump.

Joanne Freeman:

It is, but I’m linking it to Musk, because if that’s where he’s getting his “guidance” from, and Musk is like, “Well, you know, there’s going to be some bumps in the road. People are going to do some suffering.” That’s in his head, right? So that’s reality. And he’s going to echo that. You’re right, it would be typical for him not to, but if he really believes that it’s going to be really, really, really bad. And I wouldn’t say he cares, but if he knows that, then acknowledging a bump is hardly going very far in Trump land. And he didn’t. He of course wouldn’t. There’s no reason why he would’ve touched on the things that actually we’ve been seeing people respond to. This is what I wanted to say a moment ago, is that as far as the cult people versus the broader electorate, we’re seeing now at town halls, people standing up, they’re upset about people losing their jobs, they’re upset about veterans benefits being cut away. They’re upset.

And supposedly now Republicans are being urged not to have town hall meetings because they’re spectacles of people standing up and having issues. And the Republicans have announced, “Oh, they’re paid protesters, right? People aren’t upset with us.” We’re seeing at least the beginning of people getting upset at precisely the sort of thing we’re talking about here, which is ground level everyday reality. Wait a minute, I’m losing a job. I’ve said all along when they come for social security or at Medicaid, that’ll be interesting. So now they’re clearly just stripping away for parts, social security, as far as a functioning institution. I have no idea. As a historian, I pretty much will stay with analyzing the past as opposed to predicting the future. But this gets to that question too. At what point, and I believe there is a point when people will feel that their lives are impacted enough that even the bullshitting charisma is not going to be willing. It’s not going to be enough to take them over into that camp.

Preet Bharara:

I’ll be right back with my guests after this. Jonah, I want to mention to the group a piece that you wrote that has, I think it’s the headline of the piece, which is hopeful, and that is Trump’s zone flooding can’t go on forever. So I find that hopeful because it’s been six weeks of the… You mentioned this in the piece, all sorts of metaphors come to mind, drinking from the fire hose, et cetera, et cetera, et cetera. Why do you think he can’t keep the pace up, and why does that matter?

Jonah Goldberg:

Well, and some of this I owe to my friend Yuval Levin, a colleague at AEI, but he points out that pretty much every administration, again, Trump is sui generis in all sorts of ways, but every administration, when they first get into office. they command the spotlight. They have an agenda. They’ve thought about what they’re going to do. They have their executive orders ready. They’re nominating people for confirmation for cabinets, all these kinds stuff. So many journalists are doing their beat sweetening suck ups where they are talking about, oh, this new genius who’s going to be the chief of staff or the new genius who’s going to run this because they want to get their phone calls returned, right? And so there’s just this moment where, and also the party of the new president has got the highest incentives they will ever have to cooperate with everything that the new president does because they feel like they have, I think the concept of mandate is nonsense, but people believe in a mandate, so it becomes real.

And they believe they have a mandate to support the president, particularly when they have very small margins in the legislature. So anyway, you get to control the agenda, the coverage, the pace of things. That’s not the way the system is set up that’s permanently sustainable. Eventually, Congress has got to pass a budget. Eventually reality starts intruding on your agenda. You start making mistakes. You start foreign leaders. What is it? Is it Gladstone Events, Dear Boy Events, wherever that was, eventually reality starts to intrude on you, and you’re no longer being proactive, you’re being reactive. I don’t know. I personally think what Trump is doing with NIH is the most outrageous thing of a panoply of outrages, but there are going to be things that blow up in their face and they’re going to have to fall back on the heels. They’re going to get court.

The courts have already jumped in the first six weeks and are pushing back on a lot of these things. And so my only point is not that he won’t have any more wins, or not that he won’t be the center of attention or any of that kind of stuff, but eventually the Democrats will figure out some way to respond to Trump, and you’re going to see the other actors come into play because that’s how the Constitution is set up, and that’s how life works. You just don’t get to go from victory to victory to victory dictating the terms of reality all the time. You can do it for a little while, but it’s not sustainable.

And I think we’re already seeing, so one of the first examples was when Trump first floated his tariff stuff for Mexico and Canada five weeks ago, the markets said, “No effing way. This is crazy.” And he backed off. And so there are going to be things that there’re going to be signals to this administration. They’re not going to come from his yes men, but they’re going to come from reality that say, “You cannot will into existence the world that you want to have. You have to actually start governing and to govern in America requires you to work with other institutions.” So it’s going to be a contest at some point.

Joanne Freeman:

I agree with you with an asterisk. What you’re saying is obviously true, but this moment is not a moment where you can count on normal outcomes and normal responses.

Jonah Goldberg:

Oh, yeah, that’s fair.

Joanne Freeman:

Because of the… So I think you’re right that sooner or later you have to govern. Sooner or later you have to deal with other institutions. That’s not the way the Constitution is set up. All of that is true, but this is not a normal president. This is not a normal presidency, and they’re pushing the boundary of violating norms, testing the rule of law again and again and again. And the fact of the matter is this is a moment of intense contingency where we honestly don’t know where we’re going to end up. So at the same time that I agree with everything that you’re saying, I am really not comfortable saying, well, sooner or later something is going to click into place. I don’t have a sooner or later at my disposal.

Jonah Goldberg:

Oh, I want to be clear. I’m not saying…

Preet Bharara:

I’ve been saying it for a decade.

Jonah Goldberg:

I’m not saying I’m optimistic, right? I want to be really clear. Things can get worse before they get better. And the fact that he has peppered his entire… The top cadres of his entire administration are picked solely for loyalty to him rather than loyalty to the constitution or political norms or professional ethics. That will all end really, really badly, either probably for the country, but for everybody. My only point is that for the first three weeks, it just felt like he was a force of nature pushing on open doors all over the place. And that will come to an end eventually.

Joanne Freeman:

That I agree with. It’s just the…

Jonah Goldberg:

There’s a bounce back.

Joanne Freeman:

That I totally agree. It’s just the second half of it that I have very strong feelings about, which is where we’re going. I don’t know what the comeback is at this point.

Preet Bharara:

Isn’t the answer really just the pendulum swings and the vibe shifts, and the vibe shifts back? That has always been true. That has always happened. It happened with FDR. It happened with Reagan. And we don’t know how the vibe will shift back or will cause the pendulum to swing back, but it almost always does because we are not at the end, are we?. And by the way, Frank, I have an easy question for you.

Frank Bruni:

Are we at the end? I hope that’s not the question I’m supposed to answer.

Preet Bharara:

Well, no. Well, no. I was going to ask you an easy, easy question.

Frank Bruni:

Hey, grandpa, just give me the softball. Is this the end of days, Frank?

Preet Bharara:

Well, hopefully it’s an easy question. You say, no, it’s not. It’s not. No. I have a question you’ll recognize. You ready?

Frank Bruni:

Yeah.

Preet Bharara:

When did brains fall so far out of fashion?

Frank Bruni:

Yeah, yeah. When did they? I don’t know but…

Preet Bharara:

Well, obviously that’s the title of a piece you wrote recently.

Frank Bruni:

I know. I remember the piece and I was just making the point that Jeff Bezos, with his form-fitting shirts and his new biceps seems more concerned about seeming beefy than about seeming wise. And you just kind of see this over and over again. This sort of… It has to do with this moment of performative masculinity and bro culture and this idea that a real man doesn’t eat vegetables and a real man spends a lot of time in the gym, and a real man can do as many pushups as Pete Hegseth does. When have we seen a confirmation hearing in which one of the softballs thrown by a person in his own party at a nominee for a position as important as defense secretary gets asked about how many pushups he can do in the morning? There’s something about that that really distills the ridiculousness of American life right now.

But I wanted to, if I can just go backward a second, Preet, I wanted to sincerely compliment Jonah on that analysis, but also, and I think in words that are maybe an anagram of what Joanne said, just kind of push back at one thing. Everything you said, Jonah, about what should happen next and what could happen next, and how the laws of gravity to use a horrible cliche that I would wrap my students on the knuckles for using, how that’s all going to kick in. I do feel this is among the least rational of presidents we’ve ever had. This is among the least rational of moments in American life. And so I’m not sure how much any of that is going to kick in and be a corrective or a pushback in terms of Trump’s own experience of the situation and his actions. And to wit, I’m puzzled, and this is my question to the three of you, because you’re all so much brighter than I am.

I’m really puzzled by why he is, again, more cliches doubling down, tripling down on tariffs. I understand they fit into the America first rhetoric, but in as much as he has invited himself to be judged by the stock market, he’s invited people to judge him by economic numbers alone. Why when he’s being told by smart people this is not going to end well., When the early returns do not look good, why is he going further and further in that direction? Is he at this point just a defiant child? Is this simply a kind of spasm of ego? Is this at all rational?

Jonah Goldberg:

So I firmly believe that my answer is at least partially correct, which is that he actually believes it. There are only a handful of things that Trump actually believes. He has been saying this garbage about tariffs and about protectionism for 40 years. He talked about Japan the way he talks about China in the eighties, and I think… So the issue is not just that he… Look, there are lots of things he probably believes that he thinks are bad politics and he doesn’t want to do, but this is something he actually believes, and I think he has it in him. And Biden had a little bit of this problem of wanting to prove to the people who say he’s wrong, that he’s right. And so on this, on the wall, those kinds of things, which he thinks are synonymous with his wisdom and his sagacity and that kind of stuff, he just doesn’t want to back down on.

And he, this time, surrounded himself with people who will not tell him no and tell him you’re wrong. The only other thing I want to add on that though is when you talk about the laws of political gravity, I agree that cliche gets really tired. And I think the thing that almost all of us missed, I don’t want to speak for you guys. Maybe you guys were calling this, but almost every pundit I know in 2016 and 2017, whether they like Trump or dislike Trump or 2015 and 2016, they would say some version of, “Well, eventually the laws of political gravity are going to kick in.” And what we all got wrong, and I find this actually in some ways heartening because we’re talking about a 78-year-old guy in not great shape. Trump is not subject to the laws of political gravity.

He’s subject to the laws of entertainment gravity and celebrity gravity. And those are different laws of gravity. It gets very quantum physics, but all the Republicans who try to imitate him, they’re subject to the laws of political gravity and that act gets old really quick and they’re not very good at it. Josh Hawley tried to be this guy and it didn’t work. Steve Bannon tried to run mini-me types against every normie Republican in 2018. All of them lost. In 2022, all the sort of Trumpy guys lost except for Vance, in part because McConnell was the guy who saved him.

This act, I don’t think, works for anybody else. And that is something to have a little hopefulness about the future because Trump is subject to a different set of rules than anybody else. And one of his superpowers, which we saw at this joint session, is that he has a gift for getting his enemies to make asses of themselves by operating at his level. That’s ruined Marco Rubio for a while, who was now a broken man as far as I can tell. And that’s what got the Democrats in trouble at the joint session, is that they sunk to his level in a certain way, and we’re juvenile too. The problem is the public prices in and expects juvenilia from Donald Trump in ways that they don’t from actual politicians. And that means if it’s the classic, don’t wrestle with pigs because you’ll both get dirty and the pig likes it. That is, I think, part of his superpower.

Joanne Freeman:

But this gets us back to actually believe it or not, to tariffs, because I think, yes, he believes in the tariffs, but I also think the sort of, “I’m going to put a tariff on you. I’m going to put…” that there’s a bullying, bravado, performative component of that tariff politicking. That is what he likes to do, how he likes to deal with foreign nations. So it lets him behave in the way he wants to behave. It makes him look like a big man who’s threatening another foreign nation. And let’s see how they respond, doesn’t always end well for him, but I think that component of it matters as well. I don’t know if he fully really understands how tariffs work, but I do think part of this is performative.

Jonah Goldberg:

I sincerely believe, I wrote this a couple times now that he has… There was a great piece, an Airmail about this huge influence on him who was this corrupt Brooklyn Democratic boss who’s really mobbed up. And it dawned on me that this is how Trump sees foreign and domestic policy. So he thinks of tariffs as him getting his cut of the action. He thinks of NATO as a protection racket. He is really crappy to our allies because he sees them as button men and under bosses who work for him, and they should show him more respect because he’s the boss of his family, but he treats the bosses of the other families, Xi and Putin, those guys with respect because he thinks fellow bosses deserve respect. And I think that basically that’s sort of the spheres of influence, 19th century understanding of great power politics that he subscribes to.

And it’s how he understands domestic politics too, is that he thinks tariffs fit that, you got to kick up kind of mindset about politics, and you can get really sophisticated and we can do Carl Schmitt and all that kind of stuff or you can just think he’s like Tony Soprano and that’s how he sees things and that’s why he punishes his enemies and he uses… Jonathan Rauch has introduced patrimonialism into the conversation, which I think is a good prism. He sees no distinction between the things that he personally controls and owns and the institutions of government. They should all just do what he wants them to do, and tariffs fits that worldview really neatly.

Frank Bruni:

Tariffs fits something else too. I was thinking about how convenient they are for him. He loves no narrative more than one in which the gullible are being treated as chumps in which people aren’t just being treated unjustly. They’re being taken for and treated as chumps. And if you looked at the way he talked about tariffs and the remarks last night, he wasn’t just kind of defending them in some abstract way. He went on and on about how we have been badly abused by other countries for so long, and this goes hand in glove with we have been footing the bill for NATO, and that has made us chumps. We have entered climate accords that are more onerous on us than they are on other people, and that makes us chumps. We are not only letting people come across the border unlawfully, we’re putting them in pricey hotels, that’s way stretched. We have become chumps. He’s a paranoid man who loves these narratives where if you are not on your toes and on your guard at all times, you will be made a chump. And he is a big walking, talking human can of chump-be-gone.

Preet Bharara:

Right? What’s ironic about that is he’s also a guy who has made people who enter into contracts with him chumps.

Frank Bruni:

Yeah.

Jonah Goldberg:

Right.

Joanne Freeman:

Right.So I feel the need to state the obvious here. If it’s chumps versus boss men, chump meaning people who negotiate, meaning democracy versus strong men, right? What you’re talking about is realigning, picking sides, and this is obvious, you’re not picking sides with democracy because democracy is for chumps means that’s the underlying message that is running throughout what we’re saying here.,

Jonah Goldberg:

Right. I think another way of saying that is he does not believe in win-wins, right? He thinks everything is zero-sum, and so there’s a winner and a loser in a deal. Like any trade deal, if we’re not winning, we lost. And he has a problem with democracy in the sense that the way our system is set up is to require compromise.

Joanne Freeman:

In a democracy, someone loses.

Jonah Goldberg:

And in an era of negative polarization, he thinks… Look, it’s not just him on this, the House Freedom Caucus guys, they think… Remember when Kevin McCarthy was still speaker, McCarthy got an okay deal, not a great deal, but some wins in it about the debt ceiling fight or whatever. And he got Republicans to vote for it. And then immediately half the House Freedom Caucus guys said, “You betrayed us. You collaborated with the enemy.” And the problem is you get this… DeSantis was right about a culture of defeat, a culture of losing.

The incentives for losing on principle are huge because that shows you’re pure. And that way you can say, “The enemy beat us.” If you compromise, that means you’re collaborating with the enemy. And that mindset runs through a lot of Fox News coverage. It runs through Steve Bannon and all this kind of stuff. Coming up with a deal to extend the debt ceiling, coming up with a deal to balance the budget or come close to it, that means you’ve actually given something to the other side as a part of a compromise. And that is the last thing the animal spirits and the Republican Party want, and the primary base. And really, there are a lot of people in the Democratic Party who have a similar problem with this idea of working with the enemy.

Joanne Freeman:

But democracy fundamentally is grounded on contests in which someone loses. It just is.

Jonah Goldberg:

Someone doesn’t win as much as the other person, I think.

Joanne Freeman:

Well, no, in an election, someone loses.

Preet Bharara:

Well, Trump never loses but not…

Jonah Goldberg:

Oh, no, that’s true. That’s true, true, true.

Preet Bharara:

But Trump never loses if he…

Joanne Freeman:

That’s what I’m saying.

Jonah Goldberg:

Right.

Preet Bharara:

Yeah. A hundred percent.

Joanne Freeman:

That’s what I’m saying.

Preet Bharara:

Yeah, exactly.

Joanne Freeman:

I’m saying fundamentally at its most basic level, and elections are the most basic level. They’re contests and someone loses, and then you go on and have another contest. He doesn’t believe that. So all of the ways in which we’re saying here that you can’t compromise, you’re a chump, you’re a loser. You’re not supposed to negotiate. He doesn’t believe he can lose elections. This is just, I don’t believe in democracy. I go back to what I said before, he believes democracy is for chumps.

Jonah Goldberg:

No, I agree with that.

Preet Bharara:

So all this that we’re talking about with respect to Trump, mob boss, bullshitter, card shark, whatever it may be, how do you think about his interactions with Zelenskyy at that meeting and going forward within that rubric? Or is it something different?

Jonah Goldberg:

I think it fits perfectly, my mob boss thing, right? His argument is we need a piece of the action. The original deal they pitched, which wasn’t written by lawyers at the State Department, apparently it was written by private lawyers, basically was more onerous than the terms imposed on Germany after Versailles, after World War I. Look, he sees… No one can explain to Trump, he’s invincible to reason on this, that NATO isn’t essentially a club where people pay dues, right? He thinks that they all need to kick up to him and put money into NATO, which there is no thing like that. And his approach to Zelenskyy is “You have no cards.” Right? That’s how he puts it. “You are in distress.”

The mob part of the genius of their business models, they find people in distress and they take advantage of him. And that’s what he tried, that’s what they are doing to Ukraine. And I have zero patience for all the supposed realists who have nothing but scorn for the idea that nations should behave with honor and that it’s not in our interest to seem like we are a shakedown operation more than anything else, and a protection racket. But this is another thing he believes is right. Remember he goes back to the eighties, he’s talking about take the oil from Middle East countries when you invade them. He’s an extraction guy. He is a real estate guy. He thinks in zero-sum winning and losing and taking his cut from everybody. And I think that’s how we approached Zelenskyy.

Preet Bharara:

The Panama Canal too. Joanne, can I ask you a question because I’ve been wanting to ask you this question. Maybe it’s a dumb one, but could you hypothesize, given how Trump thinks about things and not wanting to be a chump and not being into American largesse and doubling down with Elon Musk on basically disintegrating USAID, what would’ve been Trump’s reaction to the idea of the Marshall Plan after World War II?

Joanne Freeman:

Not favorable.

Preet Bharara:

Right.

Joanne Freeman:

Right. A person who doesn’t really seem to have friend friends is probably not going to understand the appeal and attraction of having people who you trust around you, who aren’t around you because they’re loyal, but because you are together in shared cause in some way.

Preet Bharara:

Yeah, who you’ve just defeated.

Joanne Freeman:

Right. But who you come to a certain kind of term with, right? This is a very big question we don’t need to talk about, but what is your image of society and who’s in it and how you should treat with it? I don’t know what his image is, but it gets back to what you were saying before about my people and all the other people who are not my people. I don’t know, I don’t think… I think along the lines of what we were just saying. I don’t think he understands or would ever want to treat with the chumps and the losers.

Preet Bharara:

Folks, thanks for spending some time. Thanks for analyzing this with me and I can save all three of you. One thing that you are not, you’re not bullshitters.

Joanne Freeman:

That’s a relief.

Preet Bharara:

Frank, Jonah, Joanne, thanks so much.

Jonah Goldberg:

Thank you.

Joanne Freeman:

Thanks.

Frank Bruni:

Thank you.

Preet Bharara:

This conversation continues for members of the CAFE Insider Community. To try out the membership head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, a special guest answers your questions about something called the unitary executive theory.

Now let’s get to your questions.

So folks, we’ve been getting a lot of questions from listeners about Trump’s efforts to expand executive power. So today we’re taking a closer look at a legal theory behind it. It’s no secret that Trump and his allies want to dismantle the administrative state from slashing federal budgets to undermining agencies through massive layoffs and political attacks, they’ve made that goal crystal clear, but there’s another way the administration is hoping to gut the power of federal agencies, and that is through the courts. The Trump administration has asked the Supreme Court to overturn a key precedent that has long protected the independence of federal agencies. Their argument is based on a controversial constitutional interpretation known as the unitary executive theory, and if adopted, it could give the president sweeping new authority over the executive branch. The theory has deep support among conservative legal circles, particularly within the federal society, and has been championed by Trump’s advisers past and present, including Stephen Miller and Steve Bannon.

Steve Bannon:

The third, broadly, line of work is what is deconstruction of the administrative state.

Preet Bharara:

To help explain what the theory actually means and why it matters, I turn to constitutional law expert Rachel Barkow.

Rachel Barkow:

It’s basically a theory that has grown in ascendance on the right by Federalist Society types, conservative lawyers that really grew out of a post-Nixon time period. So you remember, just to kind of give you the historical backdrop on this is after everything that happens at the end of the Nixon administration, Congress decides, “Well, we need to have some checks on the President because that didn’t go well. There might be some things we want to kind of shore up.” And a lot of the people who had worked in the Nixon administration were horrified by what Congress was doing, and they had a very strong conception of presidential power. And they basically kind of form the roots of this group of scholars and jurists and lawyers who believe that a strong executive, a president who has control of all the executive power is a cornerstone of our constitutional government.

And they claim that their theory of executive power, the unitary theory means everybody who works in the executive branch who works under the president should be removable by him. He should be able to fire anybody who works in the executive branch because the Constitution vests the executive power in one person. That’s the unitary part. And then the executive power part, it’s not defined in the Constitution. We do have things that the Constitution explicitly gives to the President, but this group of scholars and jurists and lawyers who subscribe to this theory, they say that when the Constitution talks about “executive power” in the Constitution, where it’s vested in the President, that that has a meaning that we could figure out what that meaning is by going back to original documents and what the framers said about it and how it was debated when the Constitution was ratified.

And they claim that when they do that, executive power includes the power to remove everybody who works in the executive branch if the President believes that those people aren’t faithful adherence to his agenda. So that’s their theory and they will tell you that “No, this isn’t a post-Nixon thing that we made up. This was rooted in our constitution from the beginning.” And that theory has been something that has been really disseminated throughout Federalist society lore. So that kind of conservative legal movement that is responsible for giving us so many judges and justices, this has been a steady diet for them for decades, that this is what the unitary executive means. So this is, I would say right up there with Roe is wrong and needs to be overturned is this idea that we have a unitary executive and the president needs to be able to remove people in the executive branch.

Preet Bharara:

There’s Supreme Court president that has long governed the area of executive power. For unitary executive theory proponents, the target is a 1936 case called Humphrey’s Executor v. United States.

Rachel Barkow:

This guy Humphrey was removed from his agency and he sued. He said, “You can’t remove me to President Roosevelt. There’s a statute that says I’m allowed to keep my job unless I engage in malfeasance.” And President Roosevelt was like, “Yeah, no, actually you don’t really… You’re not part of my agenda, buddy. I want a Democrat who likes what I’m doing, so I would like to remove you.” So Humphrey sues and he dies in the course of the lawsuit so we get his executor continuing the lawsuit saying, “Well, at least give the state back pay because you were never allowed to remove him.” And the case goes up to the Supreme Court and it has to basically decide “Is that true? Does the president have the ability to remove this guy no matter what?” Because essentially the Roosevelt argument was the argument that you’re basically seeing the unitary executive types make today, which is that I got to be able to fire this guy.

And the Supreme Court unanimously says, “Nope, these are independent agencies.” Congress created agencies like the FTC, the Federal Trade Commission, the Securities and Exchange Commission, the National Labor Relations Board. There’s a whole bunch of agencies that Congress created that have this structure where there’s a bunch of different members and they can only be removed by the president for cause. And the idea is Congress wanted us to have some stability and policymaking and some expertise like people who could stick around for a while, figure out what’s going on. And the Supreme Court said unanimously, of course we let Congress do that. And that was in 1935 and that was settled law.

Preet Bharara:

But in recent years, the unitary executive theory has made headway in the courts and its status is unclear.

Rachel Barkow:

And now Humphrey’s executor might need an executor because I think it’s on the chopping block. The Supreme Court has already ruled in 2010 that the president needs the ability to remove the head of an agency when there’s just one agency head. So in that case, the Supreme Court talked about the Consumer Financial Protection Board that has one person at the top and the court said, “Well, that’s totally different than when we’re talking about a board.” And the president needs to be able to remove it when it’s one person. And then there was this other case from 2010 where the court said there was a agency within the Securities and Exchange Commission, this public company Accounting Oversight Board, they were only removable for cause and they were removable by commissioners of the SEC. And the court said, “Well, you can’t have that because that’s like two layers of removal and that’s no good.”

So you can kind of see they’re like, we really want to overrule Humphreys, but we don’t… In these cases, we’ll just keep kind of chipping away at the edges. But the Trump administration is squarely putting before the Supreme Court a case where they will have to decide if they just overrule Humphreys outright because Trump fired a member of the National Labor Relations Board. That person had for cause job protections. That person is suing and the Trump administration has said through the Solicitor General’s Office, we are going to ask the court to overrule Humphreys executor.

So we will find out what its status is. I am not optimistic that Humphreys is going to survive. However, I do think what’s going to give the court pause is one of the independent agencies we have that the President does not have the ability to remove the members of is the Federal Reserve Board. And the economy will absolutely go berserk if that central banking agency doesn’t have removal protections. Every economist agrees with that. And so I think what we might see is the court create a carve out for the Fed, but otherwise it’s not looking great for the other so-called independent agencies.

Preet Bharara:

So why should any of us care about this? Well, there are real world consequences if the Supreme Court actually overturns Humphrey’s executor.

Rachel Barkow:

It would be really destabilizing in the policy spaces where these agencies exist. So certainly if we’re talking about the Federal Reserve, if you have a central banking agency that the president can remove people, that means that the President would have the ability to remove people because he doesn’t like where they’re setting interest rates. And so for example, he could threaten to remove them at times when he just wants to have interest rates be more favorable because an election is coming up or for other political reasons, which is why every economist says “You cannot have that be subject to political control.” Even for other agencies though that engage in financial regulation, it’s similar. You can imagine, think about the Securities and Exchange Commission. If he has the ability to fire people at the Securities and Exchange Commission or the Commodities Future Trading Commission, and we have a president who trades crypto and he’s got his own crypto, what if basically the idea is “I’m going to fire you unless you deregulate crypto in a way that’s favorable to me.”

You’re a president. We could start to see all kinds of financial market and financial regulations at the whim of what the president wants because he has the ability to fire these people. What it would mean is you would really start to see whiplash, I think, in policy spaces with a president coming in, firing everybody, putting in loyalists who just adhere to that President’s vision with no one remaining from the passport. So I think it’d be very, very bad for the coherence of our policies in America, for the development of expertise and institutional knowledge. And in the case of financial regulation, I think it would turn us into a Banana Republic that destabilizes all of our markets. There’s a lot at stake. Stay tuned.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Joanne Freeman, Frank Bruni, and Jonah Goldberg. 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 #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, as 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.