PATRICK: Hi. This is Patrick (ph) in Columbus, Ohio, and I’m celebrating my birthday today by going to the dentist for a routine cleaning because that’s the only time I had available on my schedule. This podcast was recorded at…
SARAH MCCAMMON, HOST:
1:37 p.m. Eastern time on Wednesday, October 23, 2024.
PATRICK: Things may have changed by the time you hear this, but I’ll have cleaner teeth for birthday photos. OK, here’s the show.
(SOUNDBITE OF THE BIGTOP ORCHESTRA’S “TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)”)
MARA LIASSON, BYLINE: Happy birthday. Jeez (laughter).
MCCAMMON: Such adulting. Hey there. It’s the NPR POLITICS PODCAST. I’m Sarah McCammon. I cover the campaign.
CARRIE JOHNSON, BYLINE: I’m Carrie Johnson. I cover the Justice Department.
LIASSON: And I’m Mara Liasson, senior national political correspondent.
MCCAMMON: Today on the show, former President Donald Trump has made the threat of political prosecutions and an ideological federal judiciary a central part of his reelection campaign. So it’s worth taking a moment to talk about what Trump is saying he would do. Carrie and Mara, let’s talk about some of the specific things Trump has called for. What is he saying about how he would use the courts and the judiciary?
JOHNSON: The former president says he wants to prosecute his political enemies. He wants the Justice Department to do that. He has talked in recent days about the enemy from within, and he seems to have defined that as the current president, Joe Biden, members of his family, people on the House January 6 committee that investigated the riot at the Capitol more than three years ago, and a number of other folks, including some of the prosecutors and judges who have handled cases against Donald Trump in the past. It’s a long, long list there. I don’t think we have enough time to get to every single person Donald Trump wants to go after.
LIASSON: And he said specifically Adam Schiff, Nancy Pelosi, obviously Biden and Harris. Yeah, he’s been very clear about that. He believes – and he is correct, according to the Supreme Court – that the Justice Department is part of the executive branch; therefore, it works for him. There has been a norm for a very long time in American governance that the Justice Department has a certain amount of independence, and presidents should not interfere with prosecutions. But that’s a norm. It’s not a law. And what we’ve learned in the last six, seven, eight years about Donald Trump is that norms that aren’t laws really have no restraining effect on a president.
JOHNSON: Well, and why would they, after a conservative supermajority on the Supreme Court, just in July, basically said a president can even threaten to fire his current Justice Department leader for failing to conduct sham investigations of voter fraud?
MCCAMMON: So as you’re saying, I mean, in large part because Trump had the opportunity when he was president to name so many judges to the federal judiciary, not least of which the Supreme Court, he has broad latitude to do a lot of the things he wants to do, which begs the question – I mean, what checks and balances do still exist?
JOHNSON: Even judges who are appointed by certain presidents sometimes do not carry out the wishes of those presidents. Remember, the last time around, after the 2020 election, a number of judges, including Republican-appointed judges and Trump-appointed judges, flatly rejected some of Trump and Trump’s campaign and the RNC’s baseless theories about voter fraud. So it’s not a direct line.
But that said, Trump appointed a record number of judges in his four years in office, including three Supreme Court justices. And one defining characteristic of many of those people was their youth. He appointed judges who were 33 years old, 37 years old. And now, all these years later, they’re still in their late 30s or 40s. These are people like Aileen Cannon, who went on to dismiss the Mar-a-Lago documents prosecution against the former president, and people like Kathryn Mizelle in Florida, who invalidated the mask mandate for the entire country. So, you know, judges sometimes act as a check on executive power, and sometimes they don’t.
And another thing that’s probably worth mentioning – and that I’m hearing from some lawyers who defend people accused of crimes – is that grand juries in certain cities across the country, like here in D.C., could act as a check against prosecutorial power and White House power. They point out that, even though the Justice Department tried to prosecute FBI Deputy Director Andy McCabe in the Trump years, a grand jury did not indict McCabe, and so that case fell by the wayside.
LIASSON: That’s really interesting because, just from a layman’s point of view, you always hear that a grand jury will indict even a ham sandwich if the prosecutor asks them to. These are ordinary people…
JOHNSON: These are…
LIASSON: …Sitting on a grand jury, and you’re saying that they refused the request of the Justice Department during the Trump years.
JOHNSON: This whole process is shrouded in secrecy – the grand jury process – but the best we can tell, a case against McCabe was brought to the grand jury, and no indictment ever issued. That said, it still kind of ruins your life to be investigated by the FBI and the…
LIASSON: Oh, and bankrupt you, possibly.
JOHNSON: Absolutely.
MCCAMMON: Right. So, I mean, just because McCabe, for example, didn’t get indicted, it doesn’t mean there’s no impact on personal or political opponents that Trump chooses to go after.
JOHNSON: And let’s keep that in mind. A couple of times during the Trump administration, people brought cases – not criminal cases, but civil cases – against Trump’s enemies. These are people like John Bolton, one of the White House national security officials who wrote a book about his time. The DOJ sued over that. And the DOJ also got involved in a book involving Omarosa Manigault Newman, another former Trump ally from “The Apprentice.” So it’s not just criminal prosecutions a president can get involved in. The Justice Department or other parts of the government can use other techniques as well.
MCCAMMON: Right. It’s expensive. It has the potential to affect people’s careers. And it’s, no doubt, intimidating. All right, let’s take a quick break. We’ll have more in just a moment.
And we’re back. And it’s worth noting, you know, it looks like Republicans have a very good chance of regaining control of the Senate. And I think we should note a huge part of the reason Trump was so effective at reshaping the courts was the Republican-controlled Senate.
JOHNSON: Well, certainly, if Kamala Harris gets elected, it’s quite possible that a Republican Senate refuses to even consider some of her judicial nominees. Remember, at the end of the Obama term, then-judge Merrick Garland actually never even got a meeting with a Republican senator after Obama nominated him to the Supreme Court. And some people I talked to predict that kind of blockade could occur again with a Democratic president and a Republican Senate.
LIASSON: Right. And I think that it’s almost impossible to imagine, going forward, Senate-controlled by one party, White House-controlled by another, where there would be any Supreme Court nominee allowed up for a vote, even if the court shrunk to five people. You know, I just don’t see it happening.
MCCAMMON: This doesn’t…
LIASSON: I think it’s just a courtesy and a norm that is now extinct.
JOHNSON: And even if there isn’t a blockade, it’s quite possible that the Republican-controlled Senate would change the dynamic or the qualities or characteristics of the kind of judge that a Democratic president would appoint. In other words, you’re going from maybe a more progressive person, some of the civil rights lawyers and public defenders that Biden has put on the bench, to a more moderate and potentially more corporate kind of lawyer.
MCCAMMON: I want to talk about President Biden’s record on the courts. We mentioned that just a moment ago. As we know, Trump stacked the courts with conservative judges. To what degree did President Biden respond in kind?
JOHNSON: Biden actually has got a lot of judicial nominations through the Senate, not quite as many as Trump, but there’s still some months to go, and even in the lame duck as well. And Biden has made diversity a priority. He’s appointed more women, more Black women than any other president. He’s also picked civil rights lawyers and union-side and labor-side lawyers and public defenders in large measure – maybe the most diverse set of judicial nominations ever, and if not ever, than certainly since Jimmy Carter was around, which has been an awfully long time.
That said, I checked this morning. There are still about 44 judicial vacancies – not clear how many people are going to get confirmed to those seats before the end of the year, maybe not too many. And remember, these are so prized, Sarah, because these are lifetime-tenured appointments. Once somebody’s in that job, they tend to stay in that job for the rest of their career, which is…
LIASSON: And the people who would be stepping down to give Trump – if he’s elected – the chance to put a young person on would be the older conservatives on the court now.
JOHNSON: Well…
LIASSON: That’s Clarence Thomas, Sam Alito.
JOHNSON: We have no indication that those people are ready to retire, but they know who is in the White House, and they can read the room. And so we have had episodes both when Democratic presidents were in charge and Republican presidents were in charge, when there were emissaries sent to the justices, very kindly romancing them to try to get them to retire.
LIASSON: Yeah. It worked for Kennedy.
JOHNSON: It worked for Kennedy. It didn’t work for Ruth Bader Ginsburg, and we know how that story ended.
LIASSON: Right.
MCCAMMON: But again, these lifetime appointments – that is exactly why Trump and his administration made a point of choosing young judges whenever possible. You know, you said 44 – something like 44 vacancies right now, Carrie. I mean, how does that compare? Is that a lot? Is that not very many?
JOHNSON: There are, like, 900 – about 900 federal judges. The vast majority of these vacancies are at the district court level. That’s at the lowest court level. There’s only one, I think, that’s at the appeals court level. Those are the ones Biden has really tried to fill as quickly as possible. So district court judges matter, but they tend to do the intake – you know, the criminal cases, the civil cases. And most of the disputes that really matter get up to the appeals court and eventually a very, very tiny percentage up to the Supreme Court.
MCCAMMON: I also want to just circle back briefly to an idea that we kind of started out with a few minutes ago, which is if Republicans control the Senate and if Harris is elected, she may face really significant obstacles in getting her judicial nominations through. On the same token, if Trump is elected and has a Republican Senate, that means the door is wide open, right?
JOHNSON: Trump now knows – if he didn’t before – he probably already did before – but Trump now knows for certain how important these judges are to him and to his legacy and to him personally. He has people like Mike Davis, who worked for Chuck Grassley on the Senate Judiciary Committee and for Justice Gorsuch and others, offering him advice. He’s listened to groups like the Federalist Society, a conservative-leaning organization that, the last time around, in 2016, famously prepared a list of judges Trump might appoint. He listened to the Federalist Society for his Supreme Court picks and many others. And people are already low-key campaigning for these jobs if and when Donald Trump gets reelected.
MCCAMMON: It’s a priority for his base, and it has been from the beginning. I mean, I remember, covering the 2016 campaign, how many times we heard from Trump supporters, both rank-and-file voters and higher-level people that were backing him, it’s about the Supreme Court. It’s about the judiciary. His supporters have understood that for a long time. That’s how they succeeded in overturning Roe v. Wade, and it continues to be a priority.
LIASSON: Yeah. And that’s totally normal. This is what presidents have the power to do. What I am looking forward to or curious about is all sorts of other legal issues that are going to be before the courts if Donald Trump follows through on his promises like to use the military against his political opponents, to – as he put it on Truth Social, he called for the termination of all rules, regulations, articles, even those found in the Constitution. When he does that, what do the courts do?
MCCAMMON: How far will he be able to take the courts?
LIASSON: Yes.
JOHNSON: Well, you know, the core powers of the presidency – for which the Supreme Court has now given Trump and future presidents immunity – encompass some very broad categories, including national security and the justice system and parts of the diplomatic core and others. And so if you take a step on immigration or some other domestic priority, and then you call it national security, how far are these judges going to want to dig into the motivations? Probably not very far, and, probably, the Supreme Court has already told them not to do that.
LIASSON: That’s right.
JOHNSON: And so the power is enormous.
LIASSON: It’s not only enormous, but in Trump’s own words just this weekend, he called it extreme. He said it’s called extreme power. I don’t need that immigration bill because I can close the border myself. That’s what he said. And all of these things – he has an extremely expansive, unfettered view of the executive. If he is the president, we’re going to see how far that gets.
MCCAMMON: All right. That’s where we’re going to leave it for today. I’m Sarah McCammon. I cover the campaign.
JOHNSON: I’m Carrie Johnson. I cover the Justice Department.
LIASSON: And I’m Mara Liasson, senior national political correspondent.
MCCAMMON: And thank you for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIGTOP ORCHESTRA’S “TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)”)
Copyright © 2024 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.
