Advisory Opinions - Are Trump's Friends Above the Law?

Episode Date: February 17, 2025

In an emergency-ish episode, Sarah Isgur and David French go over the timeline of the Thursday Afternoon Massacre and its immediate fallout. What does the past week portend for President Donald Trump���s Department of Justice? The Agenda: —Danielle Sassoon’s letter and future —Worst possible way to do a not-insane thing —The state of the DOJ —Trump’s Napoleon tweet —How much power does Elon Musk actually have? Show Notes: -Nick Catoggio on Danielle Sassoon Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. (edited) Learn more about your ad choices. Visit megaphone.fm/adchoices

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Rise to rewards with the BMO Eclipse Rise Visa Card. Terms and conditions apply. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur. That's David French. And while we are recording this on a federal holiday, David, we couldn't not record today. No, we had to record today.

If for no other reason than to satisfy the folks that have been yelling at us for not having recorded over the weekend. So so this is for you guys. This is for you. It's like an emergency ish pod. So here's what happened. We recorded our last episode on Thursday afternoon when the Thursday, quote unquote, massacre at DOJ had, we thought, just happened. And we had the letter from the acting deputy attorney general, which sort of laid out his version of events. But what happened over the course of the next few hours and days got far more dramatic in

many ways. And so we kept thinking we were going to record something else, but then we just decided we needed to wait and see how this all played out. So let me give you the timeline. This involves the indictment against Mayor Eric Adams in New York. And David, you and I talked about this indictment on the front end when it happened. And, you know, we said on the one hand, the evidence looks really strong. And on the other hand, it's not the biggest quid pro quo

we've ever seen, if that makes sense. It was a light lift, even if they had the evidence. As we pointed out, the Department of Justice doesn't have the best track record on some of these public integrity investigations of public officials, Ted Stevens, Bob McDonald, et cetera. On the other hand, they just had that big win in the Bob Menendez case. And we had sort of left it at that. Was that a fair assessment of the case that we had? Yeah.

We had not done a deep dive into the facts, but we had taken that more, definitely taken that more surface look. But here's what's weird. When you talk to people who were involved in that, they will say that it was handled atypically. And the US attorney, Damian Williams, who had been in the Southern District of New York, when he left and went to a private law firm, he then started a, what can only be called a campaign website, where he basically touted that like, this was what he did. Basically,

if he's running for office, this looked like he was saying this was like a major reason to vote for him is that he had indicted Eric Adams. Not coincidentally, the Democratic primary for the New York mayor's race is fast approaching. But we should interject here and note that prosecutors run for things all the time and tout their prosecutorial records. So that's not an unusual thing. Now, the substance of it might be unusual, but the touting of your toughness as a prosecutor is a very normal thing.

Totally, but I think what I found gross here is there was no conviction. So he was touting an indictment of someone who basically- That he'd taken them on, yeah. Yeah, that like maybe he wanted to run against. He indicted someone he wanted to run against. That person hadn't been convicted. He leaves, starts a campaign website,

undermining the idea that someone is innocent before being proven guilty. I don't love it. I mean, to say I don't love it is an understatement. I freaking hate it. I think it was wildly inappropriate. Is he gonna run for mayor? I don't know now.

But, you know, whatever. So that's where that kind of was. Okay. So here's the order of operation, not the order that we received everything in the public, but the order of how things were bouncing around DOJ. There is a letter from Danielle Sassoon. She was the acting Trump appointed acting US attorney for the Southern District of New York. She'd been in the job for about three weeks. And so she writes about an eight page letter laying out her reasons for offering her resignation and refusing to dismiss the indictment against Eric Adams. Don't worry, we're coming back to that one. Then you have the letter from the acting deputy attorney general accepting her resignation.

Also about eight pages. By the way, there's flinging back and forth quotes from Justice Scalia and former attorney general Robert Jackson. These were heated letters to say the least. Then we're going to have the resignation letter from Hagen Scotton. He was basically the number two at the Southern District of New York and was also involved in the Mayor Eric Adams case. Well, we'll talk about the substance of his letter. Then DOJ pulls back the case once nobody at the Southern District of New York is going

to dismiss it. It ping pongs around the public integrity unit, which is considered a main justice component. That causes a ton of resignations until they pull everyone into a room and basically give them, I believe it was an hour to decide who was going to put their name on signing this dismissal. And if nobody in the room was willing to sign it, they were all going to be fired. At that point, as the hour was ending, the most senior attorney who was nearing retirement agreed to sign the letter, as well as Tony Bacon, who currently works in the Deputy Attorney General's office.

So the case that has been filed, it has been signed by two attorneys from the Department of Justice, the motion to dismiss the indictment without prejudice against Eric Adams. Without prejudice, by the way, means that they can refile it at a later time. With prejudice would mean that they cannot file it. So it's prejudice against the government, if anyone's trying to remember a way to think about that.

And finally, we then get a tweet from Donald Trump. Now this has no context except the timing. So could have nothing to do with what we're talking about. But the tweet is, he who saves his country does not violate any laws. While the exact history of that quote is not actually documented, it is widely attributed, in fact, I think only attributed to Napoleon before he declares himself emperor of France. Yeah. What could be troublesome about that, Sarah? What could be troublesome about our president tweeting Napoleon?

Yeah. Okay. So now that we've done the timeline, I want to back up and dive into each of these letters and back and forth. And David, I will tell you my preparation over the weekend for this podcast. I intentionally avoided reading anyone else's public takes on this and have only been talking to DOJ former officials and prosecutors. Oh, but a fun fact worth mentioning that I didn't mention on the last podcast and perhaps showing what a small world this is. Do you remember when we were talking about Justice Alito talking to President Trump, taking the call from President Trump for a recommendation for someone who was potentially

going into the administration? And that person's name was Will Levy. And he was the former chief of staff to Bill Barr and obviously a former Alito clerk. And Will Levy and I worked together on the Romney campaign in 2012. So Danielle Sassoon is Will Levy's ex-girlfriend. Oh, is that right? Yes. Oh gosh. All of this is so okay. Yeah. And also personal information about Danielle. She's about eight months pregnant as she's

sending this letter and resigning her job. Lots of just sort of personal stuff flying around. I saw a lot of people talking about how this was going to elevate her stature, allow her to get an even more high paying job at some law firm, that would motivate her to do this. She's sort of happy either way. Either she gets to be the acting US attorney for the Southern District of New York,

or she can make even more money in the private sector, a win-win for her. I would just like to start by explaining why the exact opposite of that is actually true. Remember that someone who's a prosecutor going into the private sector, their main value to a law firm is to represent

white collar criminal defendants and clients and corporations. And who would they be representing them against and before? The Department of Justice, and in particular, the Deputy Attorney General's office, the office that she has just made a huge enemy with. I have it on good information that she had conversations with people

before she wrote this letter and knew that she would not be welcomed at any major law firm because she will be useless to any major law firm. And in fact, not only useless, it will be seen as antagonistic against this administration, the very people they need to zealously advocate in front of. So she actually entirely destroyed her private sector career

by sending this letter. But it gets a little bit worse than that because the second they asked her to dismiss the indictment, I would also argue it was already done at that point. Because if she had dismissed the indictment, she was useless as acting attorney general for the Southern District of New York. Her office would no longer listen to her, trust her, think that she was a zealous advocate for the rule of law. So she couldn't stay in her job. And if she leaves her job, she also can't get another job at a law firm,

most likely, at least while this administration is in power. So the second they asked her to dismiss this, it was sort of done for her, which is, I don't know, just put yourself in her shoes for a second. In some ways is very freeing. At that point, you just do what you think you need to do. HOFFMAN Well, and also, let me just circle back on this, does she have other options point? As you explained, she may not have the options that her critics think she has. But even if she did, so what? Because my perception is we actually want hyper talented people in government, people who do have other options outside of government. So the idea that it's not admirable unless this is going to completely torpedo her career. No, I would want people in here in government who are so talented that they

have many, many other options and who then once they get into government rather than clinging into these positions with your fingernails, doesn't participate in acts that violate their conscience. So why should it matter either way whether or not there is a, whether or not she has some sort of job alternatives? The question is, did she do the right thing here? And the fact that she may or may not have other job alternatives isn't really bearing on whether or not she did the right thing here. I agree with that.

So can I tell you my conspiracy theory, David? So she also worked on the trial and conviction of Sam Bankman Fried. And last week, Sam Bankman Fried's parents met with Donald Trump. I will be curious whether the president now pardoned Sam Bankman Fried for the purpose of exacting revenge on Danielle Sassoon for what she has done here. Okay. Just in the category that this is speculation. Oh, it's like the grossest speculation.

Gross speculation. This is we're putting on our tinfoil hats here. The only facts are I know she worked on the case and that I know his parents have met with Donald Trump to ask for a pardon. But you know, when you think about who is Trump willing to sort of exert pressure on behalf of, we're now getting some information that Trump's team is putting pressure on Romania to ease the travel restrictions against Andrew Tate and his brother, who are facing trafficking slash rape allegations overseas.

So I mean, the bottom line is if you're a friend of Trump, then as of right now, there's a very open question as to whether or not the rule of law is going to apply to you if you're a close enough friend of Trump right now. There's one other thing I wanted to mention just again on the putting yourself in her shoes before we get to the substance of her letter. As someone who has been there and you've been there as well, David, I think it is worth just a second to explain to people what it feels like, and I'll just speak for myself, not for you, what it feels like to be a lifelong Republican campaign operative and staunch

right-wing nutjob conservative, and then feel yourself being co-opted, like your principles being co-opted for the very partisan fight that you were saying that your principles prevented you from continuing to participate in. So like, well, I can't keep defending the Republicans and the president for what he is doing right now because it should be above and separate from partisanship. And then you find yourself co-opted by partisans on the left as their hero suddenly.

It is a deeply uncomfortable feeling of which you can't do much about. And especially if you're in her position where I can't imagine she's going to be doing any media or sit down interviews like, Danielle Sassoon is not about to be the face of the resistance here is my perception of her as a person. And so then she just has to watch as her whole point of like, we cannot allow partisan considerations to dictate our prosecutorial decision making is then being used by partisans on the other side.

That sucks. Yeah. I mean, it does. It does. It doesn't change the underlying rightness of her actions. It doesn't change the fact that this was a courageous thing for her to do, the right thing for her to do. But this is exactly how the process works.

You criticize your own team. The other team extends its arms wide open to you. And in the very moment they extend their arms wide open to you, the team you just criticized says, see, look, you're just trying to find new friends. That's what this is all about. Because there is a certain mindset that cannot conceive of making a decision entirely on the merits without regard to partisan considerations. And when the partisan considerations, when other partisans embrace you, then at that point, it just vindicates all of the criticism on the other side, even though you've been just sitting here the whole time trying to just make the right call.

And I think especially for an AUSA, this can be very jarring for them. I'll speak from, again, some friends that I've spoken to. Okay, so let's dive into the substance here, David, of her letter. Basically, her argument is, your reasons for wanting to dismiss this case are invalid, therefore I can't sign off

on it. So under federal rule of criminal procedure 48A, the government may with leave of the court dismiss an indictment. So first of all, that does mean that this is going to need the judge's sign off. And I'll just say for the beginning, David, I really hope the judge simply signs off on this. I actually do not think this is an area where we need a federal judge to come in and say, for instance, no, I won't allow DOJ to dismiss the indictment. I could see a world in which the judge says, you can pick, you can not dismiss the indictment, or you can dismiss it with prejudice. Right.

But I hope the judge doesn't like sit there and say, now we're gonna open an investigation in my article three powers of the reasons behind your, like, nope, nope, nope, nope. Just either let them dismiss it or make them choose between not dismissing it and dismissing it finally, as in you cannot simply bring it back and have this hanging over Eric Adams' head as a way to force him to be your political ally.

Because if it's just hanging over his head, I can understand in the short term how Mayor Adams wants that dismissal. But over the long term, then he's just on the hook. He's basically on the hook to do whatever Donald Trump wants him to do. And that is the only stated reason that I'm aware of where a court is allowed to reject it. So basically, if the court believes that the prosecution is dismissing without prejudice for the purpose of harassment, i.e. charging, dismissing, recharging to ruin someone's life, or if they think it's contrary to public interest, that's where I'm worried the judge could decide he gets to have a little fishing expedition on

public interest. Again, I just sort of hope that doesn't happen. But here are the reasons Danielle Sassoon says that she was given for dismissing the indictment, dismiss the charges in return for Adams' assistance in enforcing federal immigration law. So the idea is that A, it's a carrot to get him to do it. And also that right now he really can't help because he's so distracted by this criminal process. Two, that this indictment should be dismissed because of the conduct of that former US attorney from the Southern District of New York.

Worth noting here though, David, that he was the former US attorney when he started this website. I hate what he did here, like I said, but I don't, that one seems bizarre to me as a reason to dismiss an indictment. And it might've been interesting if it had been given as the only reason. Like, you know what? We thought these charges were brought

by the Biden administration because Eric Adams was not being sufficiently friendly to the Biden administration. It was meant as a punishment. And our evidence for that is what this guy's website says. So you know what? We just think this thing was brought for political reasons. So we want to dismiss it. That would have been interesting to me. I also think it would have been interesting if they had just come out and said, like, yep, we want him to help us with immigration. And that's why we're doing this. So like, that's the end. But it's sort of the combination of the two,

which makes it seem like it's neither, if that makes sense. It's in the dismissing without prejudice. In doing so, again, she quotes Justice Scalia. She also notes that while she hasn't gotten to meet with the attorney general, this letter is addressed to the attorney general, and she says, but as you may know, I clerked for the honorable J Harvey Wilkinson III on the US Court of Appeals for the Fourth Circuit and for Justice Antonin Scalia on the US Supreme Court.

Both men instilled in me a sense of duty to contribute to the public good and uphold the rule of law and a commitment to reason and thorough analysis. Justice Scalia stuff is gonna be thrown back in her face when we get to the next letter, but David, can I read you a text that I got from a former Scalia clerk?

All I am certain about regarding Justice Scalia's views on the Thursday afternoon massacre is that he would have been appalled by both letters that they were eight pages long. Two pages, he would bellow. It should never be more than two pages. That is fantastic. I thought that actually probably was a pretty accurate summation of all we actually know about where Justice Scalia would fall on this back and forth. Is there anything else from her letter, David, substantively that you want to emphasize?

Yeah. So, her letter really, I thought, did a good job. Essentially, the big part of her letter is she's talking about that this was really just a quid pro quo, that this was, we're gonna dismiss this case without prejudice in exchange for your cooperation. And the justification to her was in light, it was justified to her by reference to a prisoner swap between the United States and Russia,

which these are two sovereigns engaging in international diplomacy doing a prisoner swap for reasons of, you know, geopolitics. And he's comparing that, at least as she's talking about her letter, to this very this quid pro quo in American law, where we're going to essentially release or drop our charges against a mayor in exchange for his political cooperation, but leave sort of a sort of Damocles hovering over his head in case there's no cooperation. And she just rightly says, that's not how you do criminal law. Criminal law is not an indictment is not a bargaining chip for your political cooperation. Now, of course, it can be a bargaining chip for your political cooperation. Now, of course, it can be a bargaining chip

for your legal cooperation in say a larger case, like when you have a co-conspirator who pleads guilty in exchange for cooperation. These kinds of things do happen in the legal system. But I thought she did a very, very good job of showing, wait a minute, this wasn't really a dismissal about the sufficiency of the evidence, this was a dismissal about a political quid pro quo.

And I just can't walk into court in good conscience and say, well, your honor, we're gonna dismiss this case. And the reason why, and I'm going to pretend to you that this is an informed decision based on the law and the facts of the case when I know, I know it's a political decision to secure his cooperation with the president's agenda. And as an officer of the court, because remember, attorneys, they don't just work for their firm,

they don't just work for the DOJ, they are also officers of the court and they have obligations to the court, including a duty of candor. They cannot walk into court and make arguments that they know are not supported by the law, not supported by the facts. There's this sort of dual supervisory authority that exists over every attorney. I don't just answer to my boss, I answer to the judge, I answer to the bar. And so I thought she did a very good job of

explaining, look, I was asked to do a quid pro quo. That's not supported by the law or the facts. That's not, I can't walk in and satisfy my duty of candor to the court. And so I can't do this. I can't do this. And as we talked about last time, she did this the right way, which is resign and state your reasons. And so I thought the letter, you know, look, two pages, eight pages, well done either way. How is an American company helping to end smoking?

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a smoke-free future is now. Learn more at PMI.com slash US. And we'll take a quick break to hear from our sponsor today, Aura. I'm sure you've got someone in your life who takes way too many photos, who's got like a thousand photos, 20,000 photos on their phone,

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You can do it like every few seconds if you want, but I really like that we have a picture of the day. My son runs downstairs in the morning to check out which picture that's almost always of him or his brother is the picture of the day. Yesterday's picture was of him in a very like scary kind of Halloween mask. Maybe that wasn't the best picture

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keeps on giving by visiting AuraFrames.com. For a limited time listeners can get $20 off their best-selling Carver Mat Frame with code ADVISORY. That's AuraFrames.com promo code ADVISORY. Support the show by mentioning us at checkout. Terms and conditions apply. So let me offer you this, David. Let's just take a moment to do some of the history behind the Saturday Night Massacre again. We talked about it briefly last week. As we mentioned there, Nixon ordered Attorney General Elliot Richardson to fire the special counsel Archibald Cox. Richardson refused and resigned effective immediately. Then Nixon ordered the deputy attorney general Williams Ruckelshaus to fire Cox. Ruckelshaus refused and resigned effective immediately. Then Nixon ordered the deputy attorney general, Williams Ruckelshaus, to fire Cox. Ruckelshaus refused and resigned. Then Nixon ordered solicitor

general Robert Bork to do it, and Robert Bork did do it. And what we know, of course, is that that was an agreement and a decision that they had come to beforehand. Again, maybe during my time at the Department of Justice, we had similar types of conversations of what Saturday night massacres would look like. I wonder whether various people at the Department of Justice this time had similar conversations about that. But David, what was important I think here is that Nixon wasn't asking them to do something illegal.

It was a valid order. They just disagreed with it. So they resigned rather than do it, but knew like after two resignations, then someone would do it. So Danielle Sassoon had a couple options here David. She could have, this too, let me mention, is not an illegal order. The president has the authority to order these charges dismissed. Even if you think their underlying reasons are unethical, they're not illegal. So, just start from this premise, this is actually very similar in a lot of ways

to the Saturday Night Massacre from the Nixon administration. So then your choices are, you can do exactly what they did, which is what she did, right? She refused to follow the order and resigned, and her number two refused to follow the order and resigned. But the other option here, David, is that you do the thing, which again is not unlawful, even if you think it's unethical, and then resign,

which for instance, saves other people from having to resign their jobs. And I'm curious what you think about, I don't know, that balance overall and sort of how you think about government service and which one you're supposed to do and who's supposed to be the person holding the bag. How do you pick who Robert Bork is?

When in this case, it seems pretty clear to me, they did not ahead of time at least pick who the Robert Bork is? When in this case, it seems pretty clear to me, they did not ahead of time at least pick who the Robert Bork would be. I think it's hard to do that actually as things unfold in real time. You know, at some level, I think you have to just sort of stop the nine dimensional chess and just play your board.

And you know, when you're talking about the decision tree that she had to make, the board that was put in front of her was one that was quite simply asking her to do something that she felt was going to violate her duty of candor. And at some point, if you're just thinking consequence by consequence by consequence, it's not that we should not think down the line. I do think that though there is a danger there, That if you just, if you look at the board that's right in front of you, look at what you are asked to do. Look at the comfort level that you have with what you're asked to do.

And I think that by writing a letter like this, what she essentially did was, she didn't just discharge the duties of her own conscience. She explained it in a way that could be informative to other people who are then being placed into the situation that she was going to be placed in. And so she made a call and then she provided some information and guidance for others who might have to make a similar call. Now, you know, eventually somebody was going to comply with Trump. Eventually somebody was going to comply. But. Eventually somebody who's going to comply. But I do think by, by not just resigning, but by stating the position, her position so clearly, it's not something that just sort of discharges her own responsibility. She does provide a blueprint, a roadmap for others to look at, to examine, and to

determine whether or not they would be willing to do it. Because the other thing to think, realize is when you resign, if you don't put your statement out there, a story will be told about this. And so you need to be able to as much as possible, it's almost it's impossible to control the narrative that that's not that is not in enacting an acting US attorney's ability to control the narrative, but she can influence the narrative. She can influence what people think about this situation. Had she not done it in this way, I think this entire affair would have gone much worse for

her and probably been more mystifying to others within the DOJ, and would have left them with more partial information as they were determining what they should do. So I think in that balance, Sarah, I like where she ended up. Okay, then speaking of controlling the narrative, let's move on to Emile Bove's letter, because he then responds to her letter and walks through all the reasons he thinks she was wrong.

But before he does that, he says, first, your resignation is accepted. The decision is based on your choice to continue pursuing a politically motivated prosecution despite an express instruction to dismiss the case. You lost sight of the oath that you took when you started at the Department of Justice by suggesting that you retain discretion to interpret the constitution in a manner inconsistent with the policies of a democratically elected president and a Senate confirmed attorney general. Again, I will just know, like, I don't like the way that's worded, but there is

some truth to that in the sense that, um, she wasn't given an illegal order. She was given an order she thought was unethical or unwise. Uh, but I will just say that resigning doesn't mean that you're violating your oath. It means you are upholding your personal oath. She didn't do anything wrong in that sense. Yeah. You lost sight of the oath you took.

That makes no sense at all. And the one thing though that I would say, we've said it's not in illegal order, but there are ethical concerns. Well, in the law, ethics and law blur together sometimes. So if you are violating your duty, if you believe you're violating your duty and being asked to violate your duty of candor to the court, that is an ethical obligation that is also a legal obligation. You have a legal obligation of candor to the court that is rooted in the ethical canons of the practice of law. Right. When the judge says, I'm concerned this is not in the public interest, which

is when you're dismissing without prejudice and the judge says, I don't think this is going to be used to harass him, but is it in the public interest? In theory, she would have to stand up and say, I, Danielle Sassoon, am averring that I believe it is in the public interest to dismiss this case without prejudice, which the duty of candor to the court, it's worth saying, is really just a duty not to lie. Yeah. Now, no one can prove that she would be lying if she said that. But what she's saying is, but I would have known that I was lying because I don't think

it's in the public interest. And I have told people that and I've said so publicly, but like, you know, you have a duty not to lie even if someone can't prove you're lying. Right. I mean, and I have seen, I've seen attorneys get up in court and say things that are wrong, but mistaken. Okay. That's, that's not violating a duty of candor. If it's a genuine mistake, that is not violating a duty of candor. If, but if you get up and you say something that you know, that you know is not what you believe, if I say yes when I believe no,

or then that's violating the duty of candor. It very well said, Sarah, this is a don't lie, don't lie, cloaked in fancy legal language. All right, back to his letter. Second, you indicated that the prosecution team is aware of your communications with the Justice Department, is supportive of your approach,

and is unwilling to comply with the order to dismiss the case. Accordingly, the AUSAs, the federal prosecutors, principally responsible for this case are being placed on off-duty administrative leave, pending investigations by the Office of the Attorney General and the Office of Professional Responsibility, both of which will also evaluate your conduct.

They note, for instance, that their electronic devices are going to be seized, et cetera. But there's also a footnote that says, this is not a punishment. Really? Really? They must love it then. Yeah. This is not a disciplinary or adverse action. The AUSAs will continue to receive full salary benefits during administrative leave. Yeah, it's not an adverse action yet. They just said they're opening an investigation.

That's where the adverse action happens. David, I'm curious to take a pause right here and ask because we talked about the difference between chaos and lawlessness. We talked about the difference last week between letting go of indictments of your friends or investigations of your friends versus prosecuting your enemies. Where does opening an investigation into these three AUSAs, federal prosecutors, fall between chaos lawlessness and helping your friends versus investigating prosecuting your enemies?

That's a really good question. I guess it's unclear to me what exactly the wrongdoing is here that they're investigating. And so if you're talking about opening an investigation based on whether or not they agreed with an AUSA's decision to resign, like what are we doing here? Now I'm not going to say that's un to resign. Like, what are we doing here? Now, I'm not going to say that's unlawful. There's broad authority to open investigations, right? There's broad authority. But if you're going to punish here, for what would be my question? I know you didn't even like you just resigned. You given an order you said no, thank you and you resigned

That's literally all that can possibly be asked of someone. So I agree with you. I don't know but I guess we'll find out David we have a new cat. I don't know if you heard that I have heard the new cat I the cat announced its presence the cat's name And let's just be clear that I did not name this cat the cat's name is guac and chips. I Cannot wait until Nate brings home a college girlfriend. Exactly! And he's like, here's my cat Gwak'n Chips. That's right.

I named him when I was four. It's so perfect. Yep. So that's Gwak' and Chips is very loud. Okay. So substantively, basically he just walks through the reverse of hers. Says, there has been this memo to stop the weaponization of the Justice Department and this falls under that memorandum for us and that this case was brought for political reasons. The actions of that former

US attorney were inappropriate and tainted any indictment moving forward. And then second talks about the interference with Mayor Adams ability to govern but makes clear it was not a quid pro quo as she slash said insinuated in her letter. And then, you know, has his own Scalia quotes and Jackson quotes and says, this case turns on factual and legal theories that are at best extremely aggressive. There is also questionable behavior reflected and certain of the prosecution team's decisions,

which will be addressed in the forthcoming investigations. Witnesses in the case do not appear to have been treated in a manner that is consistent with your claim about the seriousness of your allegations against Mayor Adams." That's like a weird sentence, but then he goes on and says, it is my understanding that around the time the charges were filed, the prosecution team made representations to defense counsel regarding Mayor Adams' status in the investigation that are inconsistent with the justice manual's definitions of target and subject. One of those meaning like, we're going to prosecute you and the other one meaning we're just looking around you

and want your help. And it's important to get those right for what it's worth. In the same period, despite having already started to draft a prosecution memo proposing to charge Mayor Adams, the prosecution team invited Mayor Adams to a proffer, in effect, baiting him to make unprotected statements after the line prosecutors had already decided to try to move forward with the case. So back to the investigation question, David, it's unclear to me by the end of the letter whether the investigation is because of the actions around their letters and resignations or whether they're saying they're going to investigate them because they think they will find that

they violated the rules of professional conduct at the Department of Justice regarding treatment of Mayor Adams before he was indicted. Yeah, that was not clear to me. One thing that was unimpressive about that letter was it made a lot of conclusory statements. So if you're going to talk about weaponization and you're going to say that we're dismissing this because of weaponization, you know, have some goods a little bit more substantial than the U.S. attorney after he left the U.S. attorney's office, put together a website bragging about his record as U.S. attorney. And especially when you had Danielle's letter, which provided more background to the situation, which mitigated some of that conduct, and I agree with you, Sarah, some of that gross

conduct from the former US attorney. And so it was very conclusory. It very much read the way a lot of these statements read on when you're making Twitter arguments and you just begin and end with the conclusion and you rely on... That statement is racist because it's racist. Exactly. And then you just rely on all your partisans to say, oh, well, that's racist or that's

weaponization. And so you give the talking point to all of your minions online, all of the loyal foot soldiers out there in this battle, you know, this, you know, battle over ideas and policies and then let them go to it. But I'm sitting in a reading, okay, if this was a weaponization, let's see why you think so. Or if this is so, this case has so few legal, so little legal justification, make that case also. Don't just throw out conclusory statements.

You gotta bring the goods in the practice of law. You can't just make conclusory statements. You gotta back them up. And that's what was so unimpressive to me about the letter was there just wasn't much there there. And when there's not that much there on the justifiable reasons for dismissing, then it lends greater credence that the unjustifiable reasons were the real reasons.

Well, this takes us to the next letter. As I mentioned, there were two resignations at the Southern District of New York. This is the letter from the second AUSA who resigned and- Oh, just please, please do. Yes. David, can I read the whole letter? Because it's kind of a work of art actually. This is from Hagen Scotton. Impressive dude. I'm just going to preview it. Impressive dude. So just before we talk about one's, you know, bravery or commitment to the rule of law or

anything else, some resume reading is in order here. He served three combat tours in Iraq as a US Army Special Forces officer and earned two bronze stars. He graduated from Harvard Law School, clerked for then Judge Kavanaugh, and then clerked for Chief Justice Roberts, and then became a USA in the Southern District of New York. So Mr. Beauvais, I have received correspondence indicating that I refused your order to move to dismiss the indictment against Eric Adams without prejudice subject to certain conditions, including the express possibility of restatement reinstatement of the indictment. That is not exactly correct. The US Attorney, Danielle Sassoon, never asked me to file such a motion, and I therefore never had an opportunity to refuse. But I am entirely in agreement with her decision not to do so for the reasons stated in her letter to the Attorney General.

In short, the first justification for the motion, the Damien Williams role in the case somehow tainted a valid indictment supported by ample evidence and pursued under four different US attorneys, is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the government to use the carrot of dismissing charges or the stick of threatening to bring them again to induce an elected official to support its policy objectives. There's a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally

negative views of the new administration. I do not share those views. I can even understand how a chief executive whose background is in business and politics might see the contemplated dismissal with leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials in this way. If no lawyer within earshot of the president is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool or enough of a coward

to file your motion, but it was never going to be me. Please consider this my resignation. It has been an honor to serve as a prosecutor in the Southern District of New York." That is a less than one page memo, David. Justice Scalia would be proud, and I am pretty confident his other two justices are. Sarah, can I just, has there ever been, I've never read a resignation letter with a mic

drop line more potent than this. If no lawyer with an earshot of the president is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool or enough of a coward to file your motion, but it was never going to be me. You know what? That is, A, it's tremendous writing. And B, those are the words of a man who sleeps the sleep of the just. Well, and I really actually appreciated the point to emphasize that he's saying, I support the Trump administration.

That's not why I'm doing this. And in fact, I understand why President Trump would think this was a good idea to get leverage over the mayor so that he'll enforce his immigration policies in the largest city in the country. Yeah, that would make a lot of sense to someone who doesn't know what I know about the rule of law, who doesn't have the job that I have. And I haven't been able to tell the president that. And I fear that no one else has been telling the president that because you clearly haven't. And I just thought that was actually a really important point that like this is coming from a Trump supporter.

Yes. Yes. That was a very important point. He did not. He did not attack the president here. Yeah, it was a very, very effective letter. And between the one to punch, I feel like these are two of the more effective resignation letters that I've ever read. Because you have one that provides in detail the reasons for the the reasons for the refusal. And then you have the backup to say, just in case you thought she was on her own island, she was not, she was not. David, this is the part of the podcast

where we now talk about the president's tweet that again, may or may not be related to this. But before we can do that, you know that I have to quote from my favorite play related to the rule of law. And the one that I have signed right here behind me by one former acting attorney general and deputy attorney general, Rod Rosenstein,

because it is absolutely his favorite. And he has tattooed it onto my heart, David. So now will you give the devil the benefit of the law? Yes. What would you do? Cut a great road through the law to get after the devil? Yes, I'd cut down every law in England to do that. Oh, and when the last law was down and the devil turned round on you, where would you hide Roper the laws all being flat? This country is planted thick with laws from coast to coast, man's laws, not God's. And if you cut them down and you're just the man to do it, do you really think you could

stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law for my own safety sake. I feel like that's a summary of this entire episode. Yeah, it is. It is definitely. So the president says he who saves his country does not violate any laws. And there's been a lot of attacks about this. And some of the pushback I've seen, David, is just worth a few minutes of our time, I think. One, that this country was created by people who started a revolution to not follow those laws.

And I find that to be a curious argument because yes, and then after that, they created a constitution that they ratified that we all agreed to. So if you're saying we're going to end the US Constitution and have a revolution, so be it. But there is no way to say he who saves his country does not violate any laws while maintaining our Constitution. The two are incompatible theories. Yeah.

Yeah. Yeah. He has become president of a nation where every public official swears an oath of allegiance to this Constitution. So we quite literally, from the ground up, are fundamentally place every single human being in this country under the law. The law in this country is the sovereign. So this is different from, you know, if you're in England and you're saying,

God save the king, God save the queen. The sovereign is the Constitution. And under that circumstance, it is not possible to save this constitutional republic by being above the law. That those are two incompatible concepts. And the second pushback that I've heard, which I will agree is a harder one in so many ways for me, is the Lincoln pushback. This is the back and forth with Lincoln and Justice Taney over ex parte merriman and the suspension of habeas corpus.

We don't have time to do a whole history lesson here about the suspension of habeas corpus during the Civil War. But Lincoln responds to Tawny saying that he has violated the constitution by suspending habeas corpus. And Lincoln says, are all the laws but one to go unexecuted and the government itself to go to pieces less that one be violated? Even in such a case, would not the official oath be broken if the government should be overthrown when it was believed that disregarding the single law would tend to preserve it? I actually do have a problem with Lincoln

violating the constitution, but even setting that aside, that's not what the Napoleon quote is about. It's not saying I have to choose between upholding this law or upholding this law. It's saying I don't have to follow any laws as long as I'm quote unquote saving my country. Lincoln was saying he was going to uphold the Constitution and that he couldn't do both. Again, I don't agree with that and I didn't like it and maybe a whole nother

conversation. But it is different than this still. What we can admire Lincoln rightfully without believing that Lincoln made every decision correctly. He was still a human being. But you know, just to show the contrast, so Lincoln exercised immense war power during his presidency. No question about it. Emancipation Proclamation was in function of his war power.

But then guess what happens, Sarah? He wins the war and he realizes that to have a new birth of freedom, what do they immediately do? He doesn't rule by decree. They work to amend the Constitution to grant that new birth of freedom. So he immediately in the aftermath of this war and the commencement of the second founding does what? Immediately constitutionalizes and moves

to constitutionalize this new birth of freedom. And so he was doubling down on the constitutional form of government, even though I disagree with his actions regarding habeas corpus during the war. On a fundamental level, Abraham Lincoln wasn't just defending the Constitution by preserving the Union, he was actually ratifying constitutional governance by in the aftermath of the Civil War returning to constitutional means to eradicate injustice. All right. Last thing, David, I don't think this will be the last of the resignations we see at the Department of Justice. Far from it. And again, maybe ending where we started on this conversation, I want to emphasize the stakes

for the people who you're cheering or who you're saying should all resign. Remember that this Department of Justice has signaled that they're going to move resources away from white collar criminal prosecutions, which means there will be fewer white collar criminal prosecutions and more to the point, people are far less fearful of white collar criminal prosecutions, which means there will be fewer white collar criminal prosecutions and more to the point people are far less fearful of white collar criminal prosecutions, which means the number of law firms hiring people with experience

in any of these prosecutions is going to drop out, which is fine, by the way. I am all for different administrations having different priorities. But for these people who you're cheering when they resign or saying that they all should have resigned, please remember that it is going to be very difficult and that much more difficult for them to get a job afterwards. So when you put everyone from the public integrity unit into a room and say if someone doesn't sign this, we're going to fire you all, I guess I'm pretty pissed off when I see people saying they should have all resigned and they should have all been fired.

I don't know, unless you've been in a room like that, how dare you? I actually find it disgusting that people presume to put other people's families and lives at stake when you haven't been trained as a Department of Justice lawyer. You don't know what it's like to take that oath. And you don't know what it's like to have your family's wellbeing jeopardized in that way. So God bless the pin attorneys that did resign and good luck to them. And I'm glad they followed their conscience when it was really a hard thing to do. But I do not judge anyone who didn't.

There is this kind of problem that we have where we demand acts of courage from others when we've never demonstrated similar courage ourselves. And now sometimes it's because you've never had an opportunity. Maybe thankfully you've had a blessed life where you've not had to have that moment of crisis of conscience. But if there's one thing that I have learned in these long 56 years on this planet, Sarah, is that a lot of people have an imagination of their selves in a moment of crisis, and then they encounter the reality of themselves

in a moment of crisis, and the two do not match. You've seen this, like it's an old war movie trope, like the guy, the barracks warrior, the guy that can't wait to get at the enemy, and then as soon as they hear this guns is like, yeah, I'd really rather be doing something else. That's a real thing. Like I, I saw it when I was in Iraq. It's a real thing. And I've seen it my whole career where people who are sort of standing on the

sidelines are very confident, very confident of their virtue, and very judgmental of the people who do not exhibit the virtue that they imagine that they would exhibit, we need a big doses of humility because when moments like that arise, it's a lot more, can I use the term sphincter clenching? Then you might think, and then it is when it's in the abstract,

then when it's just theoretical. And I'll tell you, David, from my own experience, I have had far less grave, but similar experiences during my 19 or so months at the Department of Justice. But you know what was one really big difference? I didn't have any children and I wasn't the primary breadwinner. And I knew that I would be fine making money afterwards.

So the stakes for me personally were much lower. And I would argue the stakes overall were probably lower as well. That being said, I was fired four times. They didn't take and I'll speak sort of opaquely a little bit here, but other people also often said, I won't do that. You'll have to fire me.

Right. Or here's my resignation. And those weren't accepted. The big difference between Trump 1.0 DOJ and Trump 2.0 DOJ is that in Trump 1.0 DOJ, Danielle Sassoon's resignation wouldn't have been accepted. And so it would have really changed everything that followed on. It wouldn't have happened. So I don't know whether how we compare, I mean, I don't want to be in the business of

comparing courage or anything else. But again, for those sort of sitting on the sidelines, it looks very different now than it did. And you can think what you want about the people before or the people now or anything else. But just bear in mind, if you're not in this right now and you haven't been in it, I'm not sure that you know what this looks like behind the scenes at this point. All right, David, before we run out of time, I do want to spend just a few minutes talking

about the couple lawsuits that were filed against Elon Musk in his role as a special government employee. And these are arguing that under the appointments clause, Elon Musk is a principal officer and therefore has to be Senate confirmed to be doing the things that he's doing. And I found this really interesting, David, as I sat around and really talked it out with some other lawyers, because my take is this, you have in the constitution, the principal officers and inferior officers. And in the Constitution, the principal officers must be Senate confirmed, and the inferior officers are simply appointed without that Senate confirmation process. So the first question you have to ask is,

is Elon Musk acting as a principal officer or an inferior officer? I think the administration's pushback on this is going to be, he's not actually doing anything. You notice he's not signing this stuff. It's the Office of Personnel Management or secretaries, et cetera, who actually are signing these memos. So then the next question you have to ask is, yeah, but is that pretextual? It's really Elon Musk doing it, but they know they need literally someone else to sign it. If you're an inferior officer, your superior,

a principal officer who sent it confirmed is taking your advice, but it's just advice. And they're getting alternate advice, et cetera. They're not simply rubber stamping what you're saying. I think there's very good evidence that he is a principal officer acting under pretext when he's not the one signing things. David, thoughts on that part?

Yeah, the one, no, I'm with you, but let me run bounce this off of you. So White House chief of staff, not Senate confirmed, right? Couldn't President Trump say to Susie Wiles, I'm deputizing you to comb through all of our executive branch agencies and rip out the waste. You have my blessing, go to it."

And as chief of staff, she starts sort of running amok within these agencies in exactly the same way that Musk is with his Doge team. Is there a problem there? How does that shift the analysis? Cause I, I guess my question is why couldn't the president order deputize his chief of staff to, you know, perform in that function? So it's interesting. I actually think at that point, that person would be acting as a principal officer. Maybe no one's going to bring that lawsuit or maybe it will be, you know, you won't have

the evidence to bring that type of lawsuit. But what I think we see here, which is different than that analogy you just gave as well, is it's not from president down and then executing. This is actually Musk acting quite independently from the president. So there's also a version of your analogy where I think it would be contained enough and executing the request of the president enough that you would perhaps still be acting as an inferior officer. Whereas here, Musk is acting independently of the president and not providing advice to principal officers, but rather just having

them sign their names on stuff. But let me bring you the second part of this, which I think it's really fun and interesting to me. The special government employee, that's not in the constitution anywhere. A special government employee doesn't distinguish obviously between principal officer and inferior officer because you couldn't be maybe a principal officer if you're a special government employee or can you? What Congress has said is something like the Vacancies Reform Act that, look, we can't get to everyone all the time. If you're a short-term employee, like the Vacancies Reform Act that, look, we can't get to everyone all the time.

If you're a short-term employee, like the 60 days, for instance, that a special government employee doesn't need to file their financial disclosure, then you can be a principal officer and you don't need to be confirmed. And I guess my question there is, David, to the extent the law reads that way, is the law, including the Vacancies Reform Act, for instance, unconstitutional because it delegates Congress's advice and consent power back to the presidency and all of these acting principal officers? There is no such thing as an acting principal officer under the Constitution and Congress

trying to create an acting principal officer or a special government employee, therefore violates the constitution. Sarah, I like where your head's at on this. Me too. Yes. I like where your head's at on this. Now we're talking. Now we're talking.

Now we're cooking with gas. I like that. Because this acting nonsense is out of freaking control. It's quite obvious that the prevalence of the acting principal officers is well beyond the bounds of any sort of concession to expediency or contingency of difficulties of nominating and confirming people in a timely basis. I like where you're going with this.

I like where you're going with this. So I'll be curious to see how that moves along. on a timely basis. I like where you're going with this. I like where you're going with this. So I'll be curious to see how that moves along. Now, of course, you can resolve the case by just saying he's an inferior officer and you never get to the constitutional question about special government employees or the Vacancies Reform Act.

The Vacancies Reform Act frankly is irrelevant to this, but I just think the theory by which you would say special government employees are unconstitutional would apply even with more emphasis on the Vacancies Reform Act. And why has no one brought a case trying to invalidate the Vacancies Reform Act? Will someone please rid me of this meddlesome Vacancies Reform Act? Amen. Amen. If we're going to quote various saints and their plays, we might as well do Beckett as long as we're doing Thomas More.

Yeah. Well, if anything good can come out of this miserable moment, maybe some vacancies, a good taking a scalpel or sledgehammer to the Vacancies Reform Act would be a good, a silver lining in a very dark cloud. All right. Thus concludes our episode, David. We've got some fun things to talk about coming up. And then of course there's, you know, news of the day because it don't stop, man. It is not stopping. Oh my gosh.

And you have done this podcast heroically, admirably with the flu. You know, I think I literally sweated out my fever during the podcast because- I just want to tell you guys, David looks terrible. He has been sweating profusely. He's very bright red. Like he just ran five miles before joining us and he's been muting every other five seconds to cough.

So he's pretty gross right now. I'm very gross. I'm, you do not want to be within 15 feet of me, but no, I started this feeling really bad, and now I feel a little bit better. I mean, this was part of my recovery, Sarah. You