In this final episode of 2024, MSNBC legal analysts Andrew Weissmann and Mary McCord are joined by Dahlia Lithwick, Slate Senior Editor and host of the Amicus podcast. Together, they take stock of the legal hills and valleys of this past year, and the role the Supreme Court played in how Donald Trump’s criminal cases were litigated. They also take a beat to consider the impact of legal journalism in the year ahead and the responsibility of legacy media to continue to hold power to account.
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Note: This is a rough transcript. Please excuse any typos.
Andrew Weissmann: Hi, and welcome to our last episode of Prosecuting Donald Trump for 2024. I am Andrew Weissmann, and I’m here with, as always, my co-host, Mary McCord.
Hi, Mary.
Mary McCord: Good morning, Andrew.
Andrew Weissmann: How are you?
Mary McCord: I’m fine.
Andrew Weissmann: We talked about the, you know how somebody is by the delay between the “how are you” and the “I’m fine.”
Mary McCord: It’s like, is that a serious question? Is that just a, you know, you’re supposed to say, “Fine, I’m great. It’s a beautiful day.” Except it’s not. It’s a really kind of ugly and cold day in Washington, D.C., and it is not, in fact, New Year’s Eve.
Andrew Weissmann: Exactly. So a quick note to everyone who’s listening. We are taping this on the 20th, but we’re not going to play this until New Year’s Eve. So if you are wondering why we’re not covering something that happened between the 20th and New Year’s Eve, that’s the reason. So we’ll catch you up in 2025.
But right now we have a really great discussion that we’re going to have about sort of where things are. Think back over the past year. So, Mary, we rarely have guests, and we try and make sure it’s somebody who’s going to really add a lot to the conversation for our listeners.
So who do we have on tap?
Mary McCord: Well, we are absolutely delighted to have Dahlia Lithwick join us today, and she will help us reflect on this past year and look forward to what’s coming in 2025. If there is any listener out there who is not already familiar with Dahlia Lithwick, she is an award-winning journalist, author, and senior editor at Slate. She has written their Supreme Court Dispatches and Jurisprudence columns since 1999, and maybe even more familiar to listeners of this podcast, she is the host of Amicus, a podcast about the law and the Supreme Court. Fantastic podcast that I listen to myself, and I hope all of our listeners do, too.
So welcome, Dahlia.
Dahlia Lithwick: Well, thank you so much for having me. I’m such a huge fan, and there’s no one I’d rather ring in the new, not improved, but happening anyway, new year than with you two.
Andrew Weissmann: So maybe the place to start, Dahlia, is our podcast was very much focused on the four criminal cases against Donald Trump, two federal, two state, and in looking back on our legal system and how it fared, and particularly since you focus so much on the Supreme Court, when you think about sort of the legal system, how do you look at it? Do you score it differently? Are there things that you think worked, things that didn’t work? And I’m very focused on sort of comparing it internationally because there’s so many international examples of court systems that have both show trials, but also court systems that have real trials with senior leaders that they’ve held to account in a way that we haven’t.
So, by the way, we only ask compound questions on this podcast.
Mary McCord: No one ever objects. We just deny all objections.
Dahlia Lithwick: On my show, we call that the Stephen Breyer seven-part hypothetical. Like when Justice Breyer used to ask a question, you would just watch the poor oral advocate, like their face would just go white by the time you got to sub part seven because there’s no way to do all of it. So yes, I’m a huge fan of the compound question.
I think, Andrew, and I always think about this, if we had been talking a year ago, we would be in a totally different place, right? For one thing, we thought, you know, the court would give Donald Trump the win in the Anderson case, that Donald Trump would lose the immunity case. Like we really believed in a Supreme Court that was anchored by a version of Chief Justice John Roberts that we all convinced ourselves, right? That the sane median voter, the guy who time and time again voted with the liberal block on the court, who seemed to understand what was at stake, what happened on January 6th across the street from the Supreme Court, and that John Roberts failed to materialize in any way that I can discern at the end of last term.
So I think one of the things that, you know, this is what I kind of call the welcome term, my nervous breakdown, but I know you share it. One of the things we have to metabolize is that the Supreme Court was not even not the bulwark we expected it to be. It was nothing. I mean, it just didn’t show up for the rule of law. It didn’t take seriously the threat to democracy and the rule of law. And so I think at the most sort of fundamental level from my perspective, we are now living in a world in which many, many, many parts of what happened in this election and what will happen going forward are to be put on the shoulders of the Chief Justice and the super majority of the court that didn’t take seriously what had happened and did not take seriously what was coming and didn’t give us an opportunity to air what happened. And I think that’s the first piece of it.
I guess I would just say as to the criminal trials, I think one of the things we’ve learned is that this system is absolutely vulnerable to one bad actor. And so whether it’s Aileen Cannon, whether it’s putting a fork in the Fani Willis prosecution, whether it’s any one of these cases, each of which was a Hail Mary in its own right, but one thought in the aggregate that something would materialize. And I think what we’ve learned is that you can have an airtight case, you can have good lawyers, you can have excellent briefing, and kind of one crazy malefactor can throw the whole thing off.
And I think that that’s really chilling for those of us that thought that the machinery of law was much, much, much more substantive and rigorous than we believed. And I think we’re really starting to learn that at every twist and turn, and I’m not a huge fan of the like pile on this prosecutor or pile on Merrick Garland, or this is all easy to do in hindsight, but I do think that we really fail to appreciate that if one bad actor somewhere along the line, and in that I include the US Supreme Court, decides to throw a fork in this, it can be over.
Mary McCord: So this really rings so salient to me, Dahlia, and I went back this morning to just look at sort of the titles of our podcast since the first January podcast. And of course, you just reflected on some of the things that were going on right as we turn to the new year. The Supreme Court was deciding, we’re going to take the Anderson case in a rush rush. And listeners will remember that was the case about whether Donald Trump was disqualified under the 14th Amendment, Section 3, from being on the ballot in Colorado because of having been involved in a rebellion against the Constitution.
That case, the Supreme Court rushed, had expedited briefing, expedited argument, and expedited ruling, and ruled in Donald Trump’s favor. And as you said, many of us predicted that because while it was, I think, a righteous case, it had a lot of problems. I mean, it’s a big deal to think that a state could keep a candidate for national office off of the ballot. And then at the same time, we were in the middle of Jack Smith asking for similar expedited ruling on the immunity decision after winning in the DC Circuit, which happened early in the year. And there, the court did expedite, but not nearly to the extent that it expedited the Anderson case. And of course, that ruling then didn’t come out until the very, very end of the term, July 1st, really throwing into disarray the progression of the January 6th federal case in DC, which ultimately led, of course, to Jack Smith dismissing it just a few weeks ago pursuant to binding Department of Justice guidance.
Andrew Weissmann: Mary, can I just interject there? Which is just to relate it to this idea that the Supreme Court, when it wants to, can act very quickly, and you don’t even have to go back to the Nixon period, which obviously they could act very quickly, but gives you a real sense of what this court cares about and how political it can be in deciding how quickly it will go.
The challenge by TikTok as to it being banned is something that is going to be heard in a matter of essentially days. And so when it deals with, and some will say that’s a national security issue, but when it deals with corporate issues, it’s happy to hear those very quickly. But to me, that delay of the Jack Smith case, and not only that, but if you remember, in the immunity decision, the majority never gave a single example of something that was fair game, that was unofficial. And the reason I think they did that is because that made it impossible for Jack Smith to streamline the indictment to just that and go forward. It required Jack Smith to make an effort to comply with the case for the district judge to have to have a hearing, and it then would go back to the Supreme Court. So it guaranteed that there would not be a trial anytime before the election by not giving a single example of something in the case that was unofficial that could go forward.
Mary McCord: And maybe I would just add, if you think about the court heard SB8, the Texas so-called vigilante law, they heard that on the shadow docket and decided it with the back of the envelope, like this thing can go forward.
The EMTALA case last year, the emergency room guidance about care that could include an abortion in a life-saving situation, they had to dig that. They had to say, “We’re really embarrassed we took that case. It was not ripe and appropriate.” So this is a court that is very, very quick on the trigger when they think that some abortion might happen in America. That’s a national disaster.
Andrew Weissmann: So Dahlia, do you think that the Supreme Court going forward is going to continue in this kind of trajectory? Or I’m old enough to remember that in Bush II, sort of the post 9/11 cases, and when you had Bush and Cheney having policies that even for that, what was viewed as conservative Supreme Court, it went too far. And they ended up pulling back in cases like Boumediene and saying, “You know what? When you’re going beyond even what military justice is saying would be appropriate, they set limits.” Do you think there’s any chance that we will see Roberts or Kavanaugh joining with the liberal justices on that? And I’ll include in that Amy Coney Barrett, who was such an interesting figure in the immunity case.
Dahlia Lithwick: I would start with Barrett. I think she’s the most interesting, to the extent that there’s anybody in play in interesting ways after last term. I think it was Barrett, both in immunity and in Anderson, right? I mean, I think she is clearly at least open to kind of creative ways of thinking. Whereas I think we’re seeing very doctrinaire dug in positions from justices, like I said, like Kavanaugh and the chief, who we hoped would be in some kind of intermediate position. And I almost feel like I want to re-up what I said in response to your first question, Andrew, which is I thought that the John Roberts, for instance, of the census case, and you may recall, right? This is the John Roberts who was like, “Please don’t come into my court and lie to me about why you’re doing something.” And Mark Stern and I at Amicus described this as the lie to me better John Roberts.
He doesn’t mind if you lie to him, but make an effort, do a good lie. And that was, I think, the census case.
Andrew Weissmann: Make it plausible.
Dahlia Lithwick: Make it plausible and don’t embarrass me. Don’t embarrass the court and don’t embarrass yourselves. And the lie to me better John Roberts of my dreams was not in evidence last term. And so I think really the answer to my question is, is he gone? I think the operative question after last term is was he somehow radicalized by something that makes him no longer the person who says, “Let’s do this.”
I mean, we talked about this a million times, but we can do this incrementally. We can just hit a single and wait for the double, right? That’s how we got to Citizens United. That’s how we, in one case after another, this was the humble incrementalist, and you do it small, and then you wait three years and you do it big. That John Roberts is gone, as best as I can detect.
Brett Kavanaugh, who associated himself with at least the methodology and the language of let’s be slow and steady and take into account that we care about public legitimacy, also not in evidence last term. And so I think the question you’re asking is the one that animates all of our thinking about what’s coming in the case about gender-affirming care for trans kids, in EMTALA 2.0 that’s coming, in TikTok that’s coming, even in the death penalty case.
We should be really clear. This term is not last term. This term is not two terms ago. This is so far a very sleepy, sleepy term, probably by design, right? The court was holding a lot of big ticket cases for after the election. But I think that what we’re all waiting to see is whether the John Roberts who wanted to be the fulcrum on a court and who regained that position.
You remember there was a term there where he lost a lot, and then he seemed to kind of take back command of the court, and he seems to have done that last term by just leading the charge. And maybe the only other thing that I would just say, because Mary mentions the immunity case, and we’ve talked about Anderson, and I would just add Fisher to the pile, right? Which really had to do with what seemed like a kind of an obscure statutory case about how to interpret the obstruction statute. Where again, the court took a pretty maximalist position.
And I want to just add to the mix here that what was allowed to happen in terms of the language of the deep state, a real animus about prosecutors, language about going ahead and indicting a ham sandwich, ha ha ha, and how bad faith these prosecutions were, that language that was certainly in evidence at oral argument, but like sort of leeches into the conversation. I just want to point out that the John Roberts that I have covered for most of my career would not be okay with the presumption that the Justice Department is in bad faith and that Michael Dreeben is in charge of a bunch of deep state operatives.
The fact that the language that discredits and disserves the courts, that discredits and undermines the Justice Department and the FBI is allowed to be a part of this. Like we’re sitting here right now watching not just the Supreme Court, but the FBI, the DOJ, just record low approval ratings, a public that fundamentally mistrusts. And the idea that the court piled on to that discourse and that that was allowed to happen. And then, you know, there was no sense that the Chief Justice was like, “Hey, maybe let’s like tone down the amount of mistrust that we are fomenting in good faith prosecutions in D.C. of January 6th defendant.” No, and that worries me too, because I think that we’re getting a really creepy sort of the court leeching onto very scary language about how government operates.
Mary McCord: So you mentioned that it’s been a little bit of a sleepy term so far, but we are not to January 20th of 2025 yet. And so there could be a number of things that will quickly get up to the court, at least on its shadow docket, if there are actions taken through executive orders and other types of actions taken by the incoming president that result in litigation. And I can almost say with 100% certainty, there will be litigation almost immediately if he does some of the things that he has promised to do, including by executive fiat.
Those are the kinds of things that could get to the court very quickly, again, on this sort of shadow docket through motions to stay a lower court preliminary injunction and things like that. And so we could see a sleepy term turn into a pretty active term, although not on the full on briefing and argument schedule that we see for most cases. That takes a long time. And I think we’ll then see some of those cases on full briefing in the fall. So there’s a lot left to come.
One of the things we haven’t covered and I want to hit after the break is we’ve been talking a lot about the Supreme Court’s role in slowing down at least one of the criminal cases against Donald Trump. But you mentioned bad actors, Dahlia, right at the top. And I guess in some ways this isn’t bad actor because a defense attorney has a job to do and that’s to use every possible legal mechanism and legal argument in order to advocate on behalf of his or her client. And that includes delay tactics when that is what is believed to be in the best interest of one’s own client. But that’s another major factor here. Donald Trump had access to attorneys in every case that many people do not have access to, the same team of attorneys who are able to pull out every stop and use every maneuver possible to slow down and sometimes just grind to a halt some of these cases.
So I think when we reflect on the system’s ability to hold people to legal account, that’s an important part which we can come back to after the break.
We’ll be back with Dahlia in just a moment.
(BREAK)
Andrew Weissmann: So we’re back with Dahlia Lithwick, our special guest for this episode. And before we turn to Mary’s question about sort of defense lawyering and delay in the litigation, Mary and Dahlia both were using the phrase shadow docket. What is that? How should our listeners understand what the shadow docket is in the Supreme Court?
Dahlia Lithwick: Well, I’ll just start by making a plug for our mutual friend, Steve Vladeck, who’s just phenomenal, phenomenal book about the shadow docket. I think really, really unpacks the degree to which the shadow docket, this is a term that Professor Will Baude came up with, and it’s simply the court’s emergency docket. There’s always been an emergency docket. You need an emergency docket because there’s death penalty cases, right? There’s all sorts of emergency cases.
I think that what Professor Vladeck has really been chronicling for the last couple of years is a huge uptick in the use of the shadow docket, the use of this emergency docket. It was a huge issue in the first Trump administration because cases would be hustled up to the Supreme Court, right, without necessarily going through all the intermediate steps, sometimes not briefed, sometimes not argued, sometimes just literally a decision handed down. We mentioned SB8, the Texas vigilante law, where you don’t even know what the actual breakdown of the voting was. You get a kind of per curiam opinion. You don’t know who voted how, and you’ve got the law now, right?
And so I think that the issue that is raised by the massive, massive increase in shadow docket rulings, and let me just note that since Professor Vladeck and others have been chronicling this, the court has been actually pretty careful about pulling back on it. In other words, the court actually responds to some forms of criticism. But I think what I would say simply is this, Andrew, to the extent that the court has one job, which is to show its work, the shadow docket is the antithesis of that because it is the court deciding in the dark of night, literally there were decisions that were coming down at midnight. They were cited, right? Some of the COVID cases were cited as though they were precedent, right? This is now precedent going forward. Other courts have to follow some ruling that has no analysis and no guidance.
And so I think that the real critique there was that more and more, particularly, again, in the first Trump administration, everything was an emergency. Everything had to be decided today. And it goes back to your original point that you both made about how the court is very, very good at doing things quickly, but the court gets to decide what an emergency is.
And what they were deciding was an emergency was anything that for a while, that Bill Barr thought was an emergency. And then everything the Biden administration did also became an emergency. So that’s, I think, the long, short answer.
Andrew Weissmann: So let’s turn to Mary. You had a question for Dahlia about this issue of defense lawyering and delay tactics that defense lawyers engage in, which just to be clear, can be true for defense lawyers in many, many, many, many cases.
I’m reminded by Edward Bennett Williams, a very famous Washington, D.C. lawyer, who used to say that for some or many defendants, an adjournment is the equivalent of an acquittal. I’m sort of butchering his aphorism, but what’s your take on that in terms of how the courts did in dealing with the sand in the gears that was thrown in by the defense counsel?
Dahlia Lithwick: So I thought Mary said something really interesting. You both said, made the same point, which is that sometimes the court takes these big corporate cases on an emergency basis, right? This is an emergency because some wealthy oligarch is going to lose shareholder value. And I think that the trick, and this is, you know, Jim Zirin wrote this amazing book called “Plaintiff in Chief, Portrait of Donald Trump in 3,500 Lawsuits.” I love the book because it’s a chronicling, and this is very early in the Trump administration, of every single lawsuit that Donald Trump ever brought, and the degree to which those lawsuits were almost all what you’re both describing, right? Often frivolous, just grinding.
Often, you know, you’d have such a huge disparity between what he had in terms of legal resources and some poor person on the other end who eventually had to settle or who had to sign an NDA, right, we know about so many of this. This is going after Tim O’Brien ‘cause he didn’t like Tim O’Brien’s book, and he was really open about it, right? He was just like, I had tons of money, drop in the bucket, I made the guy suffer, this is worth it.
Tell me if I’m too cynical, but I think there’s just two tiers of lawyering in America, and one is what you all are used to, and what I am used to, and what we think of as how the criminal process works, or even how the civil process works. And then there’s the kind of lawyering that is done by really, really, really rich guys who do not mind burning stacks of money, and who do not mind hiring attorneys who will just delay, and delay, and delay, and delay. And if you think about Donald Trump’s, like, original objection to the people who surrounded him at DOJ, Andrew’s face looks so sad right now, but his original objection was, where is my Roy Cohn?
And do you know why? Because Roy Cohn did that for his dad, and then did it for Donald Trump.
It’s almost as though, and again, this is, tell me if I’m just being way, way, way too nihilist, but there is a kind of version of doing law that has nothing to do with what we think about as doing law, simply is kind of being a plumber or being the guy who just, like, fixes the car for really, really, really rich litigants who don’t care how many years this takes. And I think that we are all so startled by that when it kind of starts to seep into a constitutional, and legal, and even criminal world in which we all operate. But this is how very, very rich guys have been litigating cases for a very, very long time.
Mary McCord: That’s right, and I think the distinction, too, is like, a lot of the cases you were talking about are civil cases, and certainly, when the rich and powerful, and that can be corporations, that can be individuals are involved in civil litigation, this is something we have seen for decades and decades.
But I think, to your last point there, what’s different here is that in the criminal system, even still, yes, the more powerful the defendant, if it’s a corporate defendant or an individual defendant, the more powerful and wealthy, the more they hire an enormous team of attorneys who do try to slow things down. But I think the Trump cases have really shown us, I guess this is part of my question, that the system is not fully equipped to deal with that in a timely way and hold people accountable when we’re talking about criminal accountability. And it’s not as though judges, I mean, certainly Judge Chutkan in D.C. worked to resolve every motion quickly. So it’s not like judges were like, I’m going to let this sit on my docket for months, and months, and months. And for those who don’t know, there are reports that come out when judges have had motions pending for a certain amount of time to essentially try to shame them into getting those motions decided, that is not the case, certainly, with Judge Chutkan in the January 6th case. She was ruling on things expeditiously. All the judges in the criminal cases, state and federal, were doing that. But even still, there was success, I think, in gumming up the works.
And I see Andrew frowning, and I know he’s thinking, did Judge Cannon always do things quickly?
Andrew Weissmann: Right, exactly, Mary and I, this is what happens if you do a podcast with somebody day in and day out.
Mary McCord: I know what you’re thinking.
Andrew Weissmann: That’s exactly what I was thinking.
Dahlia Lithwick: You finish each other’s sentences.
Mary McCord: But I would say, compared to the civil side, even in that, those things moved along more quickly than sometimes things do on the civil side, although we could quarrel whether they were fast enough.
So I guess one question, and to me, the differences seem almost more stark on the criminal side, the differences between the haves and have-nots, right, in terms of what you’re able to do when you can bankroll, or have bankrolled for you through a PAC, a lot of attorneys.
Now, in every criminal case, even for indigent defendants, they are entitled to representation, entitled to competent representation, and judges make sure that attorneys are appointed. So everyone has a defense, and if those attorneys are ineffective or unable to do their jobs, they can be removed, or you can get a new trial. There are mechanisms to make sure that every defendant, regardless of their financial status, every defendant in a criminal case is represented.
But still, there are differences, right, between a team of a dozen lawyers or more and a single public defender, for example, in state court. And I guess, you know, this is a long-winded kind of wind-up to, do we need some reforms? And this isn’t just about sort of money and who you can afford to pay, but to ensure that there can be accountability, and what would those even look like?
Andrew Weissmann: I think there’s no question there’s wealth disparities in America, and you see it play out in the court system, both civil and criminal. Going back 20 years, I worked on the Enron case as a prosecutor, and I remember there were more partners representing Jeff Skilling than we had prosecutors on the entire case, for not just that case, but for all of the Enron cases.
And by the way, I’ve been a defense lawyer, and I think defense lawyers, as long as they’re acting in good faith, have an obligation to be doing all of this, and it’s not their fault at all. To me, I look at what’s happened, and I think about it on the individual level dealing with this, because you can look at Judge Kaplan in the E. Jean Carroll case, you can look at Judge Merchan in the New York criminal case, and you can look at Judge Chutkan in the January 6th case, and those are judges who had understood the due process rights and the need to make sure that all the parties are treated fairly and that they have adequate time, but they moved the case along and they understood that one side or the other is going to want delay, right? One side does not want to go to trial, typically, and so the judge’s job is making sure that the case moves along, but accord fairness to everyone.
And I feel like this is about individual judges more than the system, because I think of Judge Cannon versus the 11th Circuit, and by the way, that makes it apolitical, because the 11th Circuit was filled with conservative judges, and they understood that things needed to move very quickly and also the rule of law had to be applied. But I think going back to our first part of our discussion, you know, we weren’t helped by the Supreme Court and we weren’t helped by Judge Cannon, and Georgia, where there’s this incredible slowing down because of what seems like a side issue about the district attorney, and so I feel like our system could be like European and South American systems where people are held to account in a timely way, but it takes judges who have backbone and skill and it doesn’t take a lot to throw this off.
Dahlia Lithwick: So two responses, one is just very matter of fact and the other is more meta. You know, as we’re taping this, we’re watching Judge Merchan do exactly what you’re saying, right? Just bat away, like, not doing this, not doing that, you know, still we’re hearing about the gag order, the Trump team is literally trying to relitigate over and over and over again the same questions, and we’re seeing, as you say, Andrew, Judge Merchan just being like, nope, nope, move it along, nope, nope, nope, so it’s perfectly possible.
I think my meta answer, and I’m really struggling with how to frame this for you, is that I think we are dealing with very different kinds of judges than we all came up with. I think we are dealing with judges like Judge Cannon, who is less judging than she is auditioning, right? This is the Judge Kaczmaryk problem that we’re seeing. This is, you know, Judge, I’ll throw in, you know, Judge Ho at the appeals court.
I think that we have not fully reckoned with judges who do not feel so much bound by, you know, the rules of the road, but who are part of, I would say, a real groundswell of the judge as an actor in his or her own right, who is trying to get attention, who doesn’t much care what the law is, who is willing to, you know, again, take huge swings for all sorts of reasons. And I think, you know, we all saw what George Bush judges were. Like, we know what a “conservative” judge is. This is not that. Judge Cannon is not that. And I think that we failed to name that in the last couple of years at our peril.
And so to say, and this really goes to, I think, something we haven’t thought nearly enough about, which is this problem of nationwide injunctions. You know, one judge, one random judge in Texas or Florida, who’s going to what, like, strike down FDA approval for Mifepristone for the whole country? These are judges who are not operating according to the rule book that you two posit in your questions. And I think that we just need to think very, very hard about going forward, how easy it is going to be to get the result that you want, because all you need is one judge who is ambitious to the point that the law doesn’t much matter.
It doesn’t account for everything. I mean, you’re asking a much deeper question about whether the law, qua law, can ever keep up with, you know, the political moment we’re in. And that is a deep and hard question that I think we’re going to be thinking about for years to come. But I think there is another issue, which is we’re not talking about judges qua judges. We are talking about deeply partisan political actors who are not bound by the rules that you are thinking about.
Mary McCord: So that is a perfect segue into something that I really want to talk about with you, and I know Andrew does too, and that is the role of legal journalism, right? The role of the media, the role of the news, whether it’s print, radio, broadcast, or the ever-increasing other digital platforms.
Andrew Weissmann: Podcasts.
Mary McCord: Yes, podcasts, us. I think it’s been a big challenge for journalists dealing with somebody like Donald Trump and the response that we’re seeing in the courts and everything we’ve been talking about.
So after the break, I would love for us to turn to that topic. We will be back with Dahlia Lithwick.
(BREAK)
Mary McCord: Welcome back. As promised, we are here again, of course, with Slate senior editor, Dahlia Lithwick, and host of the Amicus podcast. And before the break, we said we wanted to get into the role of journalists. So you are one of those, Dahlia. What has journalism done right? What has journalism done wrong? And whatever the answers to those are, we’ve had a number of years to try to figure out how to cover Donald Trump, and now he’s going to be the president for four more years. And so, I’m worried about what we’re going to see from the press going forward and the coverage. And so please give me something to have some hope about.
Andrew Weissmann: That’s a small question.
Dahlia Lithwick: Yes, it’s a small, that’s an 11 part, seven part question. I mean, look, I think there’s one piece of this that I want to cop to right off the bat, and that is the way we’ve talked about the Supreme Court for my entire life. And we have been at Slate and at Amicus thinking really, really hard about our complicity in covering the court as though our job was to take dictation. And what it meant was that ProPublica had to rush in and investigative reporters, Jane Mayer had to rush in. I mean, we really, I think we’re asleep at the switch in terms of covering as one unified story, the corruption, the scandals, the failure to disclose, the failure to recuse, right?
All of the stuff that we didn’t think was part of the story that we were telling, and we’ve been thinking about that very hard at Slate and kind of trying to urge the entire Supreme Court, press court to think much harder about the stakes and much less hard about how charming this or that question was at oral argument or parsing what opinions were. So I just want to own it because it’s something we think about a lot.
I think your foundational question is the hardest question all of us in legal journalism are thinking about right now. And I would take you back to, and Andrew, you will remember this because I feel like we were on MSNBC together when the immunity decision came down. And there’s this part of you that wants to do the whole lawyerly, official act, unofficial act, right? Core function, you know? We think like lawyers. And so we always want to make a sort of lawyerly interpretation without saying the thing, which is this is completely indefensible and insane. This is a maximalist decision. It didn’t have to be this way.
And I think that part of the problem with legal journalism sort of diagnostically is that we think like lawyers. And so the impulse is always to say, but this is what the law is. And you will both recall, right? We spent four years talking about family separation, talking about the Muslim ban, talking about like, wait, he can’t just build a wall if Congress won’t let him appropriate the funds. But like, at what point is it just insane to keep saying this is illegal? This is illegal. And so we are all of us, and I know you’re included in this, now on the horns of these questions about like, am I going to do another piece on birthright citizenship this week? It’s a thing. It doesn’t matter if Trump doesn’t want it to be a thing. It’s a thing, right? Am I going to do another piece on posse comitatus? And how you can’t like send the military in to do domestic policing.
There is a real question here that we are struggling with, which is do we do nihilism for the next four years? LOL, nothing matters. Or, and I think Jamelle Bouie and others have been, you know, I would say a lot of very thoughtful people are saying don’t give up on the job of saying, no, this is what the law provides. This is what the constitution says. And we’re not going to just wave our hands around and say, you know, it’s all garbage.
And I think the thing that’s so challenging right now is that we have that sense that we are like kind of running through this wood chipper, which is, you know, they don’t care. And they’re going to make it up as they go along, right?
And Attorney General Pam Bondi and Kash Patel and Pete Hegseth, they don’t care what the law is. The law is what, you know, Donald Trump tells them it will be. And I think we have to be really vigilant. And it’s hard to be vigilant because we’re feeling very nihilist. And I think we have to be really vigilant about like our job is to say what the law is. Our job is to keep saying over and over and over again, even if we’re just doing this like very dispiriting job of just writing it down for the archives.
But I think that we have to really be mindful that now is not the time to say nothing matters. And now is not the time to say, who knows, you know, what they’re going to do when they start deporting people. We have to keep saying, this is the law. And I just, I know this is a long answer, but we’ve been spending weeks on Amicus thinking about it.
I think the other piece of this is that when we start to fling our hands up and say, you know, there is no law, they’re making up, we’re hungry now, you know, we’re pulling now, nothing matters. The people who count on us, they really have like lost faith in us as not just as lawyers, but as journalists. And so I think that, you know, we are in a moment when we are seeing, you know, the LA Times, the Washington Post, ABC News, you know, one journalistic media institution after another kind of crumpling in the face of the charge I’ve just set out. And I think that what’s really frightening is, remember the Washington Post, “Democracy Dies in Darkness.” Like that was not so long ago. Right or wrong, they said our job is to hold power to account. And what is happening now is some kind of insane course correction that either has to do with like oligarchs who own publishing or to do with some kind of embarrassment, like did we overreact in 2016? But now is not the time to bend the knee.
Andrew Weissmann: So let me give you an example of when I was talking to my parents years ago, when Trump was in his ascendancy and given their age, I was asking them to compare what it was like in the McCarthy era. And at that time, they said the McCarthy era was scarier because everyone was afraid to speak out. There was no MSNBC, there was no Washington Post, New York Times, there was no voice saying what’s going on in Congress is wrong. And there was just a sense of fear about how government could be used to abuse citizens.
And they said that is what makes the current period feel much more like a democratic safeguard over what was happening. And what you’re talking about, Dahlia, to me is very much what we have to worry about going forward and the enormous importance of the fourth estate. And for the same reason, the reason we’re going to see the continued attack, whether it’s the lawsuit against the Des Moines Register, whether it’s more civil suits, whether we have sort of obeying in advance from the Washington Post or the LA Times and the sort of pulling back, to me, that is going to raise the concern that my parents voiced about the McCarthy era period where you don’t have the dissenting voice.
Dahlia Lithwick: Right, and I would go so far as to say, you know, when ABC settles an eminently winnable defamation suit, it’s not just about ABC, it’s not just about George Stephanopoulos, right? It’s laying the track for the next one.
And I think, you know, Ann Selzer, the pollster at the Des Moines who’s being sued for, by the way, election interference, like these are the, right? These are the charges, election interference and fraud, right, from the Trump University guy. And so I just think what we are seeing is not a binary. It’s a sort of downward spiral.
And I think that if legacy media will not, with its millions and millions of dollars, protect their reporters, it really raises questions about all the small, tiny, little, whatever remaining independent journalism is out there. And I think, you know, to boot, let’s just say that we’re hearing from a lot of fronts that if you write something mean about Pete Hegseth, you know, you’re going to get sued. If you write something mean about Kash Patel, you better watch out.
And so I think that this is not just sort of obeying the advance, but like very deliberate aligning yourself against, you know, journalistic values, against truth-telling. And what scares me, I mean, I think we’re just amplifying each other’s fears, is that we’re already having those conversations, you know, in the newsroom, in the edit room. I mean, we shouldn’t all be worried about, you know, what is defamation? We know the standard for defamation. But if it is now, whatever the ABC, you know, settlement has moved the line to, the next defamation suit will be even more, I think, chilling.
I guess I would just say this, and I wonder if you agree with me. I think one of the things we are learning in this moment is that public trust, I mean, we started by talking about the courts and the Justice Department, but all the same things can be said about journalism. Public trust is at a record low, right? People don’t believe anything. We’re up to our necks in deep fakes and AI. Like, this is not getting better. And at the same time, I always say this, and I feel like there’s no plan B. There isn’t another way to do democracy. There’s courts, there’s, you know, the justice system, there’s journalism.
And the idea that if public confidence in all these things is at nil, this other thing, this other better thing is going to come in and make us free and safe and like, you know, make sure that we have clean air and water, like no. And I think we’ve seen that time and time again. And so I think that what’s hard is saying, like, I’m really mad at The Washington Post and I’m still going to subscribe to it. I’m furious at the LA Times. I’m mad at MSNBC. ABC is really enraging me, and still I’m going to pay for good journalism because there’s no plan B. And if we all go away, it’s just all due respect, all Joe Rogan all the time.
Mary McCord: Yeah, and you know, at least with respect to The Washington Post and the LA Times, as I understand it so far, the capitulation has been on the editorial side, right? The very wealthy owners pulling, you know, first it was pulling the editorials that were going to endorse Kamala Harris. And then I’ve also heard about, you know, pulling an editorial that was going to be critical of Trump. That’s bad. But if that ever creeps over onto the news reporting side, I mean, I’ve talked to some of my friends who are print journalists at some of the major papers who call me all the time, you know, to comment on things and said, you will tell me if ever this is creeping over to that side and you guys will stand up against it, right? Because if that side falls, the straight up news reporting side, then we’re really, really in trouble.
Bad enough on the editorial side, we can all ignore editorials if we need to. But if news reporters are cowed, then we really have lost, you know, we’re back to The Washington Post motto there, democracy dies in darkness, because if people are not reporting the facts and the truth, and regardless of what some people will say about alternate facts, facts are facts, then the American public has no way of really knowing what its government is doing.
And already, as you say, Dahlia, that’s bad enough because people can get so much disinformation and so much just wrong facts from some of these other platforms. And so legacy media, I think, is important. We just need to get people to actually read it and pay attention to it. And I do have faith that our journalists on that news side will stand firm. And we know those on the editorial side too are very, very dismayed and disgusted by the decisions made by the owners.
Andrew Weissmann: Well, I have something positive to say. Which is, I think that, one, I’ve got this sort of naive optimism about the American people, and I think it comes from, and Mary, you’ll sort of appreciate this, which is we were trial lawyers and we were in front of juries. And I just can’t really think of a time that I thought the jury got it wrong, whatever the outcome was, and I really respected them. And I thought that regardless of political affiliation, which used to not be anything you worried about at all with a jury, that people rise to the occasion and understand the seriousness of the role. And I think that Americans, like everyone around the world, there’s a lot of good faith in people who see themselves and want to be good people.
And I also think in journalism and in the law, as wonderful as Dahlia and Mary are, and we will have their voices in 2025, but there are a lot of Dahlias and Marys out there who are going to speak the truth. And sometimes you’ll agree with them and sometimes you’ll disagree with them, but you’re going to get unvarnished, candid assessments and the tactics of fear and retribution only go so far when you have people who have sort of core principles.
Dahlia Lithwick: And maybe I would just say this, the greatest thing, you both know this too, second only to juries, the great thing about legal journalism is that there are facts. Language has meaning and facts are facts. You know, this is not complicated. We can disagree about outcomes or tests or whatever, but I think this is an amazing beat because things are immutable on this beat, despite attempts to distort. And the other thing that I take huge hope in, Andrew, which is kind of a version of what you’re saying, is that I think that we have all learned a little bit of humility in the last couple of years. And I think that we really have to explain very patiently and carefully. We have to be ambassadors between the law and the rule of law and our listeners who maybe don’t know every single component of what’s in the commerce clause. And I think that that humility forces us back to first principles about truth and language.
And I, for one, as much as this has been really painful in terms of like, why do we do this stuff? I think we do it because it’s like essential and I guess it’s just eminently doable. We just have to be humble and do it.
Mary McCord: Well, that’s a fitting close to 2024. Some little ray of hope that we’re going to keep doing what we’re doing and many, many others will keep doing it as well.
Andrew Weissmann: And do it together, right?
Mary McCord: Do it together and with the American public, you know, whatever we may feel, there’s a lot of polarization, but, and we’ve talked about this before, when you get outside of that, just calling each other names and you actually sit down in a room with people, people find the things that they have in common.
And so I think, you know, we should all try to make more of those opportunities as we go forward, because we’re really all going to need it.
So big thanks, huge thanks to our guest today, Slate Senior Editor and co-host of the Amicus Podcast, Dahlia Lithwick, it’s been such a pleasure. We have looked forward to this ever since we talked with Vicki about inviting you and I couldn’t think of a more fitting way to close out the year.
Andrew Weissmann: Thank you so much for coming.
Dahlia Lithwick: Thank you for having me, wishing everybody a happy 2025 and to just hydrate and self-care.
Mary McCord: Hydrate, I love it.
Andrew Weissmann: Self-care, hydrate. happy new year, everyone.
Mary McCord: Happy new year.
Andrew Weissmann: And Dahlia, thank you so much for taking time out to do this.
Dahlia Lithwick: My pleasure.
Andrew Weissmann: Thanks so much for listening and all the best to our wonderful listeners, to all of you. Thank you so much. Mary and I have had such a complete blast doing this podcast and it’s thanks to all of you.
So from Mary, from me, from the entire podcast team at Prosecuting Donald Trump, have a wonderful and healthy and happy new year and we’ll see you in 2025.
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Mary McCord: Adding my happy new year wishes to listeners and of course to our amazing podcast team and reminding people to send us a question, you can leave us a voicemail at 917-342-2934. Or you can email us at prosecutingtrumpquestions@msnbc.com.
This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Katie Lau. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio and Rebecca Kutler is the senior vice president for content strategy at MSNBC.
Andrew Weissmann: Search for Prosecuting Donald Trump wherever you get your podcasts and follow the series.