Bulwark Takes - JD Vance Defends DOGE Over Judges and the Rule of Law

Episode Date: February 10, 2025

Sam Stein is joined by Ryan Goodman, Co-Editor-in-Chief of Just Security, to discuss JD Vance’s assertion that executive power could overrule a judge’s decision.

Hey guys, it's me, Sam Stein, back. It's Monday. I was away for the weekend. It felt good, honestly, but now we're back in the thick of it and it's just as crazy and bad as we left it on Friday. I'm joined by Ryan Goodman. I'm going to go through the titles and then I'm going to let him choose which one I should harp on. Ryan Goodman is the Ann and Joel, how do I pronounce this? Aaron Kranz, Professor of Law, Co-Editor-in-Chief of Justice Security, Co-Director of the Rice Center on Law and Security, Co-Director of the Furman Public Policy Program, Professor of Politics, Professor of Sociology at NYU School of Law. Which one do you prefer? Father of two. Father of two. Okay. Father of two. All right. From now on, we're just going to call you co-editor, chief of just security and father of two. Ryan, thanks so much for doing this.

I appreciate it. We're going to be doing this a lot with you, I feel. But today, two things in particular I want to talk about. One happened yesterday, and I want to just sort of get a sense of, I think I know what your take is going to be, but I actually want to get into sort of the merits of what JD Vance is saying here. So backstory is a judge has said to the Doge team, you cannot have access to this treasury payment system. It should be read only. And in fact, you shouldn't be able to, you know, have anything to do with it. And Musk, of course, responds, as you would expect, going crazy. But then J.D. Vance tweets out something that I think really spooked a lot of people. More or less, it said, you know what, this is judicial interference. This is a judge

inserting himself unconstitutionally in matters of the federal branch. What was your, I don't want necessarily political reaction to, but what was your, what's the legal rationalization that J.D. Vance is trying to get at here? And just how outside the judicial mainstream are we really talking about? Sure. So in respect, like I disagree with your initial introduction that things are as bad as they were on Friday. I think they're worse. They're worse. Okay. Because of J.D. Vance's XT.

No, you're right. You're right. You're right. So it's very bad. This is an – it sounds like an extreme position he's taking. The stakes aren't as necessarily great with this particular case, with a particular judge, with a particular order because it's just a very temporary order. But it's very worrisome because it sounds like he's laying the groundwork for something down the line. And so the extremity of his position is,

but it sounds like, hey, this judge is completely out of order. This is a lawless action on the part of the judge. One person he retweeted said, used the word lawless. And in other words, it's us, the executive branch, the White House that shall determine what is constitutional and proper. And that judge is intruding on our domain, which sounds like saying to the effect of bottom line, we don't need to listen to you. You've gotten it wrong. You're lawless. And we don't need to respect a lawless decision by a judge. That's the scary worst case scenario. But he's certainly not pulling back from that. It's sounding somewhat in that register. Now, is there any intellectual basis or legal basis for making that case? Like, say, you know, these actually are sacred duties of the executive branch. There is no judicial review for that. Or does the judiciary have a sort of unlimited remit when it comes to reviewing judicial executive actions? So in a certain sense, the answer is,

whatever the scope is for the judiciary, it is the providence of the judiciary to decide. So yeah, so that's the issue. It's like, so who gets to decide what is lawless, what is the right and proper scope, or what is the proper jurisdiction for the court? It is the courts. And then if J.D. Vance has a problem with the court ruling, and he might, there's the validity to his point. If the court has intruded on executive functions. Appeal the court. Yeah. Take it up with that court. Take it up with the appeals court. Take it up with the Supreme Court. And if the Supreme Court finds you're right, then they will squash that temporary restraining order. But if they find that you're wrong, they are the decision maker, not you, J.D. Vance. And that's what ended up happening in this case, at least for now, is that last night while we were sleeping, assuming you sleep, Brian, they did go to the judge and they said, we have problems with this ruling. And the judge said, well, let's work it out and let's find a

compromise. And so in a sense, and I'm not trying to downplay events, but I am saying in a sense, the proper channels were followed by the Department of Justice, but that's the Department of Justice. What we're talking about is the Office of the vice president hinting, or at least explicitly saying, we will from here on out warn you that we might not respect these rulings. But were you relieved at all to see the DOJ follow a more diplomatic path resolution here? Yeah, absolutely. And it's the one that one would expect. And I think Cal Chaney from Politico had also made the same point. Like, right. This is what we expect.

If you, if you have an issue, take it up with the court and take it up through the department of justice and the trial attorneys. And, um, you know, and JD Vance is not at all, um, backpedaling. He's not qualifying. He's not saying, Oh, I'm not saying X, I'm just saying Y, which is also deeply concerning. I always think about what they're not saying. And he really is taking out a position that is anathema to the rule of law. It's that radical. It would be a constitutional crisis if one followed through on what he seems to be strongly suggesting. It's funny because it's like, I've also sort of tried to keep track of Elon's reactions to this, and Elon is just pepper spraying us with tweets. But to a degree,

the Musk reaction to this is actually more reserved than Vance, because Musk is saying, we must impeach this justice. And, you know, that actually is an extreme recourse because the decision is, as you noted, just temporary. But at least it's a recognized recourse, right? You could, there is, you can impeach a justice, but Vance is just saying, ignore it entirely. Yeah. That's the, that's a difference between the two. And, um, you know, the other part of it that makes the judge's decision kind of extraordinary is, um, that the judge rules without hearing from the government. That's a, you know, so that's extraordinary. But at the same time, the judge is basically saying, here's the allegation. The allegation is that there are

essentially people who are not authorized to be inside the Treasury Department taking information out. What am I to do but to stop them? It's like a theft that's ongoing. Of course, I'm going to rule in the middle of the night. And he rules after midnight when he does it. But that also is what's putting fuel behind somebody like Musk thinking like, this person's really acting, this judge is acting. Well, that's the irony is that they're moving so fast that these judges have to do the same thing. And then when they do the same thing, they say it's a conspiracy. Arguably, the more alarming thing, at least from my vantage point, is another thing that Kyle Cheney was tweeting about today, which is that a federal judge has determined that the Trump administration is basically in violation of his order that was to lift what was the blanket

spending freeze on the federal grants program. Now, people will not remember they had the executive orders, then that followed with an OMB memo saying the federal grants needed to be frozen. Then they rescinded the OMB memo. But the judges came out and said you can't do this. And now it appears that they're just not following that order. And what is – what's the – I mean at some point I guess you can be held in contempt of court. But what's the recourse after that? So it's a great question because the recourse after that, that's why it's a kind of a constitutional crisis. The idea is like, okay, as one president once said to the

Supreme Court, like you, you know, go ahead and enforce your judgment. Like where are you going to do it? Like you don't get to order the FBI. Now I do think it's a constitutional- You do get U.S. Marshals, right? Or no no, that's they're under DOJ now. Yeah. But it's interesting in a sense of what if there were a moment in which the court says, well, bring in X person who is a defendant in the case and you are in criminal contempt and you are in contempt of my court as well. And we're going to enforce it. I mean, that's how it would happen with a normal defendant. So I don't think we're going to go there necessarily. But if indeed the government were to defy a court's order, I think it's going to have ripple effects in multiple ways. And those could include

public employees will not want to act in criminal contempt of the court. So they might have a real hard time with government employees across the board, legal advisors across the board. I mean, really, are we going to get into a situation the president's going to have to pardon people because they really are in criminal contempt? Right. So you're saying, let's say someone's administering, this is just a hypothetical, but let's say you have someone at HHS who's in charge of administering Head Start. Head Start is not issuing their grants, despite a court order saying that Head Start has to issue their grants. And the administrator in HHS says, oh my God, now I

could be in violation of a court order if I keep holding off on administering these grants. And that person is now torn between obeying the federal government or the executive branch or potentially being held in contempt of court. Yeah, that's right. Jesus. Yeah. And also, I suppose that might be so bad of a situation that it could deter the White House from going down that path, because let's imagine 40% or 20 to 40% of government workers abide by the rule of law and do not engage in criminal contempt. They're in just deep trouble. That could really undermine or bottom out the administration. But the other one is, well, what if the federal government is in court as a plaintiff? If they're not going to abide by court orders, maybe the court's going to say, well, we're not going to hear you either. Or here's the sanction against you if you're in

my courtroom trying to totally ignore my other orders. I do want to say one thing, though, about the TRO and this emergency kind of motion to enforce it. It's clearly the case that the judge is deeply upset and says that it is a violation of the plain text of their temporary restraining order to not have suspended the funding freeze. That's one. The judge says it's right at the beginning, a kind of a block quote, and it's very sobering that this is about the separation of powers for which one can be held in criminal contempt for violating a TRO. That said, I think that's the judge really threatening what might be going on here. On the other hand, it is the case that it's not that the executive branch is giving the back of the hand to the judge's TRO. We're not there yet. So I think it's good to know when do all those alarm bells go off that we really are

in the situation of open defiance of a court. What are you looking for? At what point does it hit the open defiance line for you? Oh, I think it's the open defiance if J.D. Vance's tweets appear in a Justice Department document that says, no, the court has ruled X, but we do not agree with the court. We're going to do Y. Instead, the Justice Department documents in this particular case in Rhode Island are saying things like, oh, we thought your, I swear, that's what it says. We thought your original TRO was ambiguous and other, and we thought we could still engage in a freeze if we thought there was fraud. This is more of a back and forth volley. Like we thought we had some room to operate, but we don't. Exactly.

And the judge is like, there's no room. It's clean. It's plain on the text. And also kind of calling them out on the bogus nature of the idea that they're still freezing on the basis of fraud because the judge says you don't have a finding of fraud. You can't do that. Yeah. Okay. Well, last question. We're what?

Four weeks in? Is it as bad as you imagined or is it not quite there yet? It's maybe worse in many ways. Where are we on the scale? One to ten. Ten being just this is calamity. One being I'm all right. 7.5. 7.5. We're going to do the Ryan Goodman score at 7.5 right now. We'll see if we get above there. Yeah.

All right. Well, we'll keep you coming back, man. Thank you for jumping on so quickly. Really do appreciate it. We'll have you back. Ryan Goodman.