Bulwark Takes - Impeachment is Dead! Congress is Broken! Can The Courts Really Stop Trump? (w/ Ben Wittes)

Episode Date: February 15, 2025

 Lawfare’s Ben Wittes joined JVL to talk if the courts can really stop Trump, how impeachment is essentially dead and more. 

Bettering your business takes working with the best. With the James Hardy Alliance, you gain access to leads, training, networking, and support from the number one brand of siding in North America. Achieve new levels of success by joining the James Hardy Alliance today. I'm JVL from The Bulwark, and I am here with my friend of years, friend of tears, Ben Wittes of many places, Lawfare, also Dogshirt Daily, which I think of it as the nightline of our time. It began as an emergency pop-up thing, and it's become an institution all of its own. You know, I love Dogshirt Daily.

I love doing Dogshirt TV, which you should join. Any 8 a.m. that you want to have a freewheeling conversation, join us on Dog Shirt TV. I can't wait. So, you know, like normal, we've got nothing but good news to talk about today. Yay. And I want to start with a story from yesterday. And I am not a lawyer. You're not a lawyer, but you're basically a lawyer. You're a practitioner of the practice, I think, is what they would say in academia. Yesterday, what seems to have happened is that FEMA dispersed, how much money

here? Sorry, I want to make sure I get this right. $80.5 million to the city of New York. This money had been congressionally mandated. It was allocated by the federal government. And the people who work at FEMA, the CFO of FEMA, complied with the law in dispersing this money. The way things work in New York, New York City has to use private banking as its holding so this money went to Citibank when Elon Musk found out about this

a few things happened he fired the comptroller sorry the comptroller he fired the CFO of FEMA for following the law his position seems to have been that the CFO of FEMA should have defied the law and listens to, to Elon Musk instead.

But then Musk seems to have gone to city bank and said, give me the money back. And city bank did it. Didn't even, didn't even tell the city comptroller. Citibank did not even tell the city of New York, hey, guys, that $80 million that we moved into your accounts

yesterday, yeah, we just decided to take it out and give it back. Sorry. Not even that. How is that legal? So what I would say is, so first of all, the FEMA impoundment issues are ones that I have not followed especially closely. I did note that the judge in Rhode Island, who has been a hawk on a bunch of things and does seem to think the FEMA issues are different and that they are outside of his order. And so I am actually not in a good position to answer this question. It seems, as you describe it, it seems completely indefensible to me. But there may be some reason that it is less so than that I am aware.

Look, as a general matter, the administration's positions about what are called impoundment issues is extremely aggressive. And if you want to translate the word aggressive to mean lawless, I will not resist that. Except to say that they are, I think the best way to understand what they're doing is they're attempting to establish a new principle of law, which is that when Congress assigns, when Congress, the Constitution gives Congress the power of the purse, it means Congress has the power to authorize spending, not to mandate it. So in other words, the amount that Congress appropriates is the maximum amount that the executive is allowed to spend. It's a negotiation.

It's, well, you know the Congress has the purse strings, and what they're trying to establish is that Congress has one of the purse strings, right, and that the executive has the other purse string. That is not the traditional understanding of the power of the purse. And I actually am skeptical that they are going to prevail on this question at the Supreme, even at the Supreme Court level, even with this Supreme Court. That said, there's no way to try something like this other, like a blitzkrieg. And that's what they're doing. And they're going to destroy a lot of government agencies along the way while figuring out the answer to the question. I think they're going to lose, but they're going to do a lot of damage while we find out. And there's a 20 percent chance, maybe 30, that they'll win. And that's a revolution in constitutional law in a very, very profound sort of tectonic level area. I mean, you and I were kids when Bill Clinton spent a lot of political capital pushing for a line item veto. Right. And this is and couldn't do it.

And that's a thing like certain governors have, but it has never been part of executive power at the federal level. And if you wanted to do that, you could try to enact a constitutional amendment, I suppose, to create a line item veto. But it doesn't exist. And so you're trying to do this through force. Yeah, so actually it creates more than a line item veto. So a line item veto would is simply a rescission of the lines that you don't like, and presumably Congress can override your line item veto, right? Here they're overriding, right? It's thinking of the entire federal budget, including the budgets of whole agencies, right? As instead of you, the Congress instructed me, spend this much on healthcare for poor people, spend this much for Ukrainian media, spend this much for, instead of seeing it as an instruction, it's a permission. You may spend this much, or you could reprogram it, or you could not spend it at all. So it's really shifting some very large percentage of the appropriations power to the executive. So will you catastrophize with me for a moment?

I generally don't catastrophize. I know. But Jonathan, I love your catastrophizing. You sort of do it for me and I listen to you do it and I say, I don't have to catastrophize now because JVL has done it for me. So I want you to just walk with me a little bit on this. Let's pretend that the impoundment issue goes all the way to the Supreme Court. And as you suggest, the most likely outcome is that the Supreme Court says, no, you can't do this. Yes.

What requires, not require, that's the wrong word. Let me phrase this. What could compel the executive branch to go along with that, right? So what we have seen already is them defying district court orders and, like like defying even after the judges have wrapped them on the knuckles and said, no, I issued a TRO on your impoundment. You've got to disperse funds. And when when FEMA went and did this, they just fired the civil service bureaucrats who complied with the law. What a president who can grant immunity, what is to prevent him from saying, all right, well, I'm just going to appoint as my CFO, the person who actually pushes,

somebody has to push the button, making money go out. And I'll just put Corey Lewandowski or somebody like that who I can trust will not actually push the button in that job. And, you know, if they want to send the U.S. Marshals in to arrest him, well, then I'll just pardon them. And I'll put another person in there who will do. And I'll pardon that guy, too. And I'll pardon that guy, too.

And then I will simply show them that they can't force me to do this then. It's not possible. Right. So there are a force me to do this then. It's not possible. Right. So there are a few possible answers to this question, and none of them is completely satisfying. Because there is actually a completely satisfying answer to this question, but it doesn't reside with the Supreme Court. It resides with the Congress of the United States. Impeachment. Well, impeachment is one of the answers.

There's three components. Impeachment is the last resort answer. Appropriations is the first answer. You know, we forbid you to spend any money on the White House helicopter, on implementing the following, you know, deporting anybody who you want. We're going to defund all your priorities until you come to the table about complying with our spending rules. That's the first line. The second line is getting in the way of the things the administration needs. For example, you want Kash Patel confirmed. We're not confirming anybody until you're following our appropriations law. Congress has the power to

work its will if it chooses to use it. The impeachment authority is the last step in that, right? And we can kick you out of office. Now, the problem that we face and what has isolated the courts to the degree that they're isolated is that Congress chooses not to use any of its tools. And it chooses that for partisan reasons that are very alien to the separation of powers structure. All right. So the result is that the courts are highly isolated. But now you're describing an end stage of something that has a lot of stages in between now and then. And so the first is that, you know, it is not quite true that the administration is defying court orders. What the administration is doing is not quite complying with court orders for one reason or another.

And then going to the courts and saying, hey, we had a problem with acts of compliance. We had a problem with why we. We had a problem with Y. We're working toward compliance, right? Or in the case of the FEMA thing, saying we don't interpret your order to cover FEMA, you agree with that, right? And the judge actually did agree with that for reasons I'm not sure I understand because I haven't read the order in question. So the defiance, you have to imagine, operates a little bit differently. The defiance is we acknowledge that you've issued an order and we are not complying with it. And we're saying that because you don't have the authority to issue the order because President Uberalas, blah, blah, blah. Right.

That they are not doing. And so now imagine that there is an order that they're inclined to defy. They're not going to defy it in the first instance. They're going to appeal it. Because why have a nuclear confrontation that can alienate a lot of the moderate Republicans, such as they are, that really puts you on a bad foot when you could ask Clarence Thomas for help, right? So you're going to have a set of orders that they comply with. You're going to have a set of orders that they comply with. You're going to have a set of orders that they appeal. And then to get to your scenario, you have to imagine that one of these orders, let's say it's one they really care about, but they lose, goes all the way up to the Supreme Court. And let's say they lose by a seven to two

vote. Maybe it's five to four, if you want to make your scenario, I think, a little bit more plausible. So now it goes back down to the district court. And, you know, John Roberts and Amy Coney Barrett, it's not just the libs, right? It's the solid center of the court has said the president is not legally entitled to do this. And then you have a motion to enforce the order of some form of contempt or a motion to compel or something. And then you had an actual defiance. So the answer is the court has a number of means of effectuating orders, some of which require the executive branch's participation. For example, if they want to order Elon Musk jailed,

the U.S. Marshals have to carry that out, and they ultimately report to the president. Some of them require a little bit less direct participation by the executive branch. For example, escalating fines. Those are debts. And you can, with people other than Elon Musk, those can get ruinous real fast. And, you know, and so I think the and remember, this would all be happening with the Supreme Court having stood behind the lower court's underlying order. So I think in order to imagine, to catastrophize it, and I'm not saying

one shouldn't be worried about this scenario. As I said in my column the other day, it's out there. I do think the courts would be in a very strong position, sort of morally, and, you're thinking about the swing, the marginal vote in the Senate, right? And I think the capacity for the president to lose that fight politically is real. That said, we would not be the first people to note that the courts are the, as Madison said in Federalist 48, I think, the least dangerous branch, right? Because they have neither force nor will, and they require the want to comply with court orders does present. I feel a little bit better. Thank you. who practices in front of that judge is subject to his sanctions or her sanctions. Every witness who appears is subject to contempt. It's not just the government that is subject to contempt if they defy its orders. It's the individual people who defy the orders. And so it's not quite as totalizing as

the J.D. Vance rhetoric or the Mike Lee rhetoric makes it sound. That said, it's dangerous. Yeah. So what you're saying is it could take us as many as 10 weeks to get to a nuclear showdown.

And the nuclear showdown will develop more slowly than the panic over it. Right. All right, so I want to shift gears and talk about Ukraine. Pete Hegseth said some stuff about Ukraine today. Ray Harris raises a very good point in the chat that I want to address. Can presidential pardons cover contempt? And this is a really important question because this is the question of whether Trump can pardon his way out of court orders, right? And the answer is no. When you're in contempt of a court order, there's two kinds of contempt. There's called criminal contempt, which is to punish you for the contempt. But the much more important form of contempt is civil contempt, which with this order. And there is no pardon for that. That's an

inherent power of every district judge. And, you know, so if you imagine an underlying court order that says you're going to do your job as the FEMA director and release this money, which is, of course, not what the court said, but, you know, they can make that hurt, you know, if they have the backing of the courts above them. Well, that's nice to know, I guess. Yeah. Yeah. All hope is not lost. That said, it's the wrong branch of government to be doing this thing. There is one branch of government that is designed for confrontations with the president, and it is that this is what sclerosis looks like.

Yes. That things which used to be viable systems and mechanisms simply are not any longer. And so, like, amending the Constitution isn't really a viable pathway anymore. And I think we've proved that impeachment is no longer a viable mechanism. Like, it was a thing which existed in theory and was nice, but it's basically broken. I don't think there's anything that any president, I mean, somebody attempted a coup and didn't get impeached or didn't get convicted of impeachment. There is no other line to go over, I don't think. It's worse than broken.

Okay. Many things are broken and work anyway. You're going to get out of its way, and you're not going to ask, is that car moving because the engine is functioning and somebody's putting on the gas, or is that car moving because it's just rolling? And the car is completely broken, but it's a deterrent anyway. You still don't want to be in the street. For a long time, impeachment was broken, but we didn't know for sure that it was broken. And so it functioned as a deterrent. People were afraid of getting impeached. Strategic ambiguity. There was a kind of ambiguity.

Could you ever get the majority together to make impeachment viable? It was viable enough in 74 that Nixon resigned rather than faced it. Clinton, to his discredit, stared down the impeachment process. And he actually even didn't go through the process of having a trial, right? He just thumbed his nose at the process and said, fuck it, and survived with a 70% approval rating. Trump has done the same thing twice. And now the impeachment power is, it's not just that it's broken, it's that everybody knows it's broken. So that car that you see off in the distance, you know it's not even rolling at all. So you're not afraid of it. Yeah, it's a dead letter, right?

This is that everybody knows it. All right, Ukraine. So in the Oval Office, Donald Trump was asked, do you view Ukraine as an equal member of this peace process? And Trump said, it's an interesting question. I think they have to make peace. That was not a good war to go into. Yeah. Okay.

What a moral monster. Yeah. So I want to, usually I speak, I try to be very analytical and not be emotional about things. I can't do that about this stuff. You know, I have spent the last three years very personally involved in all kinds of Ukraine matters, some of them very public. I spend a lot of time shining lights on the Russian embassy, projecting Ukrainian flags on the embassy. I also, in my private life, I spend a lot of time with Ukrainian refugees and people who are here who are, by the way, a lot of them are going to get thrown out of the country because of the immigration stuff. You know know everybody thinks it's you know people who come in illegally over the southern border there's you know a couple hundred thousand ukrainians here on tps they're all gonna uh you know on some parole or some other parole status yeah well we got to make room for

the south african refugees yeah the white south af, for the Afrikaners, we got to make sure we have room for them. So some of the Ukrainians need to go back to Kyiv, sorry. No, I mean, so this is something that I have a lot of friends who are very immediately affected by this, both here in Ukraine and in Ukraine. And I have never been so embarrassed by anything that a United States president has done as what the president did same age. We've watched any number of foibles in foreign policies from the Biden botched withdrawal from Afghanistan that got a lot of people killed and left a lot of translators and Afghans behind to the Iraq war. I have never seen a president behave toward an ally with more callous hostility and with a kind of gleeful siding with a genocidal moral monster. Not even for any reason. And so,

yeah, I thought the, I got a text this morning from a State Department person who said she'd never been more embarrassed to be an employee of the State Department or an American. And I'm not an employee of the State Department, but I feel that way as an American. I feel like it's a matter of some national shame that our president did this. know it doesn't make it less painful to watch to say that i didn't vote for him and that i did everything in my power to make him not be president it's just it's a very dark and upsetting day uh that's the thing is he he actually is all of our presidents yeah this stuff is done in all of our names i love to tweet out not my president but the thing. He actually is all of our presidents. This stuff is done in all of our names. I'd love to tweet out, not my president, but the thing is, it's not true.

Not true. He actually does get to speak for me, even if I don't like what he says, and even if I don't accept the moral authority, his moral authority to speak. And, you know, he doesn't have to look in the eye, the Ukrainian kid who I made a video with projecting on the Russian embassy, who's 17 years old and came to the United States at the beginning of the war by herself as a 14-year-old. Like, I do have to look that kid in the eye, and I have to explain it to her, and I can't. very angry in a very non-analytical and very childish kind of anger at things that we don't have control over. And it's the kind of anger that causes people to curse God. I mean, there is a way to explain it, which is that the American people are wicked. So I will not get in the middle of your dispute with Sarah about this.

Ha ha! You sniffed me out. I will say the following. Hi, Sarah. Well, and I'm going to give you a lot to work with in that conversation. In a democracy, over time, the people get what they want. And the definition of what they want is what they keep voting for. It's not what they tell pollsters. It's not what they say in individual process tracing interviews. We actually have a method for deciding what the people want. And I don't want to say that in a close election where I don't want to totalize, but I do think an enormous number of people voted for evil. They did it knowing what they were doing. They did it a second time, in some cases a third time.

And I don't forgive the public for their choices. Now, I do agree with Sarah that that is not a useful operative political assumption with which to organize. Sure, but that's not our jobs right now. We're just here to say true things. So evil. It would be one thing if this were something that Trump would have done a bait and switch about. But Trump's been promising to end this war on roughly these terms as long as the—he's been nothing but honest about this. He's been nothing but honest about the January 6th pardons. He was going to do it. He told you he was going to do it. He campaigned on it, right?

This is the way the system is supposed to work. And, by the way, the same is true with Doge. He announced Doge, you know, and so like what he is doing is evil and loathsome, but it is not a surprise. And in fact, he won the American public over. Yes. At the beginning of this, the American public was overwhelmingly on the side of Ukraine, and Trump staked out the unpopular position, and he argued America into it. That's exactly right. The one person I can't blame as a democratic matter, as a moral matter, as a foreign policy matter, as a what's good, the right thing to do matter, I blame Trump. But as a matter of democratic theory, the one person you can't blame here is Donald Trump. And in that sense, I agree with you that we have to look toward the question of the American

people's eagerness to vote for this sort of thing. And that said, I will be out with lasers, not at the embassy this weekend or early next week, but somewhere a little bit more visible to the American policy establishment. Fantastic. Ben, that is a great place for the last word. Everybody, if you are not doing Dogshirt Daily, please go sign up for it. It's fantastic. And watch the people of Lawfare. And Ben, you're the best. Absolutely the best. Thanks for coming on. Can I plug one thing on the last subject? Yeah. On February 24th, which is the anniversary of the full-scale invasion, it's the third

anniversary of the fourth full-scale invasion, we are, this is Lawfare now, are releasing a narrative podcast series called Escalation, which is a history of the post-Soviet U.S.-Ukraine relation in dealing with Russia. It is completely unlike anything that has ever been done on the subject. It is hosted by my two colleagues, one of them Ukrainian, Anastasia Lapatina, and the other, the managing editor of Lawfare, Tyler McBrien. We released the trailer the other day. Please subscribe to it. It's the Escalation podcast. And it is genuinely different from anything you've ever heard on the subject. And it is for American patriots who are upset about what happened yesterday. And for people who are interested in the Ukraine war, I cannot recommend it highly enough. And will that be just on Substack or will be on Substack plus Apple Podcasts plus Google Play, et cetera, et cetera?

The feed is already there because it's the feed we use for a bunch of our narrative podcasts. So if you look up, it's the Escalation feed. But, yeah, it's anywhere you get your podcasts. Okay. So everybody go and do that. I'm going to do it too. Ben, thanks a lot, guys. I'll be back next Tuesday with

I forget who our guest is next Tuesday. Kath won't remind me. I hope these conversations are fun and interesting and enjoyable. I'm sorry that there are too many of you talking in the comments for me to meaningfully pay attention to them. Otherwise, if we could just get this audience down to 10 people,

then I could interact in the comments. See, that's what you could do if you came on Dogshirt TV. Alright, guys. Enjoy the fall of the Republic and everything else that's terrible. Good luck, America.