Lawfare Daily: Inside the Upheaval of the Second Trump Administration with Emily Bazelon

[Intro]

Emily Bazelon: What it came down to was instead of being someone who is a fact-finder and who pursues the facts of an investigation wherever they go, I am being told what the conclusion is in advance, and I’m also in some cases being told who to target, and that is, like, just wildly at odds with how the Justice Department and the FBI are supposed to operate.

Tyler McBrien: It’s the Lawfare Podcast. I’m Tyler McBrien, managing editor of Lawfare, with Emily Bazelon, a staff writer at the New York Times Magazine, the Truman Capote Fellow for Creative Writing and Law at Yale Law School, and the co-host of Slate’s weekly podcast, Political Gabfest.

Emily Bazelon: The threat now has much less to do with conservative-liberal divides and much more to do with just straight up, like, what does the rule of law mean in the United States?

Is the Justice Department, you know, simply a weapon that the president pulls out of his pocket to inflict damage on anyone he wants or to do favors for anyone he wants?

Tyler McBrien: Today, we’re talking about three ambitious stories published over the past few months by Emily and her New York Times colleagues. In this trilogy of oral histories, they spoke with dozens and dozens of current and former government employees at the DOJ, FBI, and DHS about their experiences navigating the upheaval of the second Trump administration from the inside.

[Main Podcast]

So Emily, I wanted to start with just a bit of the backstory behind this, these package of oral history ambitious stories that you and colleagues have done at The New York Times on, first, the unraveling of the Justice Department, and then there was a deep dive on Kash Patel’s FBI, and then most recently a piece called The View from Inside DHS.

So I’m curious, as I said, about the backstory. What motivated these stories and also how you decided to cover them. I mean, it’s quite an ambitious project. You spoke with dozens and dozens of former and current government employees. So why this big deployment of editorial resources at The Times to cover it the way that you and your colleagues did?

Emily Bazelon: Yeah. Well, first of all, thanks for having me. Thanks so much for your interest in these stories. I have been writing about the Justice Department for a long time, and before Trump took office for a second time, before the election, when still a question whether, of course, he would be elected, I reached out to 50 former top Justice Department officials, so people who had been the attorney general or the solicitor general or roles like that or slightly lower, going back to Ronald Reagan.

And at that point, what I was doing with a colleague, Matt Schwartz, was trying to look at what these people thought was gonna happen if Trump was reelected. We had survey questions for them. We did a lot of follow-up interviews, and it was a group of 50 that was half Democratic appointees and half Republican appointees.

They were quite concerned for kind of rule of law- consequences before the election, and then we went back to them afterward, like six months in, and said, “How do you think things are going?” And they said, “Poorly.” And some of them said, “Even more poorly than we expected.” And in working on that second piece, I realized that there was this giant pool of people who I was even more interested in hearing from, and those were the people who had worked in the Justice Department when Trump took office.

They ha- were there for, you know, parts of the first year and change, and they were career attorneys. They were people who are not political appointees like my 50 top officials. They work from administration to administration, and they’re very used to the idea that when a new president comes in, there are some policy priorities that change.

So I wondered, like, what does that look, this look like from their point of view? It is, of course, you know, a big deal for line prosecutors and other DOJ attorneys who are still at the department to talk to the press. They’re usually not authorized to do that. They’re also kind of, like, professionally allergic to it.

But some of them were willing to talk off the record, and then there were a lot of people who had left for a variety of reasons. Some of them were horrified and resigned, but some of them had just, like, retired in the normal course of one’s career. And so we started reaching out to those people and got, like, a pretty surprisingly open response.

There were lots of lawyers who’d left who were really eager to talk about what they’d experienced, and the story that they really wanted to tell was one about why this administration was so different. Not because, you know, they were liberals who, like, thought it was really bad that, you know, Trump was trying to root out DEI, more that they just were fundamentally concerned about these kind of core principles of the independence of the Justice Department from the White House.

So that was how it started. That story from the point of view of dozens of DOJ attorneys got a big response, and then my boss, Jake Silverstein, was like, “Well, maybe we should keep going,” like, “Maybe we should do other parts of other agencies.” And so with my fabulous colleague, Rachel Poser, we set off to learn much more about the FBI, which obviously is a component of the Justice Department, but has its own set of agents and analysts and executives.

And then the DHS story, the Department of Homeland Security, kind of followed as the last part of this trilogy.

Tyler McBrien: Yeah. Well, I mean, there’s a lot to dig into here. But one thing that you mentioned is, I think the reason that I was so drawn to these stories which is this question that I’m, I’ve been asking myself, a lot of people asking themselves of this current administration with so much tumult and news stories every day, you know, how much of it is continuity or just the regular changing of the guard between administrations, and how much is truly rupture, truly unprecedented?

So, before we get into, like, the substance of what you found and heard from these current and former government employees, I wanna touch on just something that you mentioned, which is just the fact that so many people at institutions like the FBI talk to you at all. You know, could you speak a bit more about your experience reaching out to these sources and what it says about the current state of affairs that so many people, specifically at the FBI, but at the other agencies as well, just were willing to talk to you, a journalist?

Emily Bazelon: Yeah. I mean, the fact that so many people were willing to talk to us was a cry of alarm. It was in itself, like, an act of desperation for the reasons you say. The way we went about the reporting, I mean, mostly it was like we would find one person and we would say, like, “Who else do you know who might be willing to talk to us?”

Like, it was very word of mouth, kind of piecemeal. It took weeks to break through. Sometimes I was in despair, like we would never reach enough people. Rachel was much more calm and upbeat, so I give her lots of credit for that. We also designed surveys that were basically reporting tools where we were trying to get answers to some basic questions, like basically, “What do you think is different?”

Or, “How different do you think this is?” Like, how much is this continuity versus change? And then we would ask people who filled out the survey if we get, could get in touch with them. And so that was another way that we reached out to a lot of people. For the first story, we got help from a group called Justice Connection, which has sprung up to represent people who’ve left the Justice Department, and they were super helpful in helping us find people.

Then the FBI Agent Association helped a bit. We never really found that kind of group for DHS.

Tyler McBrien: I wanna get into, you know, what you heard and what you found. Again, we can, you can take any one of the three in the trilogy or I’m also curious about, you know, similarities that you’ve heard across the agencies and the, and then differences.

But just speaking broadly, what are some things that have really stuck with you now that, you know, we are several months after the publication of the Justice Department piece, the FBI piece I should say I believe was published in January, and then in April came the DHS piece. Just, you know, throwing it open, what has stuck with you from these many hours of conversations?

Emily Bazelon: Yeah, so there were sort of, like, different layers of the story. So one thing that I, like, was important was the way that telling a story chronologically, ‘cause we used the calendar to tell the story, doing it that way allowed us to kind of see the arc of the narrative and connect dots. And also, I think for me it was, you know, there’s so much news every day, like, we’re just blasted with all this news, and, like, maybe it’s unprecedented or we use the word unusual a ton in this Trump administration era.

But, like, how do the events stack up against each other? What, in the, if you’re, if you worked, it for the government and you’re looking back over the year, like, what really mattered? So those were the things we were trying to answer. And the layers I was talking about, so one layer was, like, the sort of Game of Thrones drama that was going on at the top of the agency, right?

You have, at the Justice Department, you have first Emil Bove come in as, like, he wasn’t called the acting attorney general, but he was the acting deputy attorney general, and he was, like, running the show. And that was bananas from the point of view who, of people who worked there, right? That’s, like, the Justice Department effectively ignoring Judge Boasberg’s orders to turn the planes around, lots of other, like, really s- things that had never happened before that seemed like really a threat to the kind of rule of law and the government’s main legal agency following the law.

Then, you know, at the FBI, you have Kash Patel, another, like, larger than life character working for Pam Bondi, who is like her own soap opera. And then there was a version of this with Kristi Noem at the Department of Homeland Security. And in each instances, you know, the things we heard the most about the drama at the top from executives, like people who were there on the scene working with these people, who were just like, they kind of couldn’t believe what was happening.

Sometimes it was misuse of government resources like, you know, planes. Kristi Noem, like, insisting on getting her blanket back and firing someone. Sometimes they were firing people and then hiring them back the next day, ‘cause actually, like, they had to have someone who had these skills. But in every instance, it was both malevolence and then also just, like, kind of a clown car.

And so that was striking. And then, you know, the bigger question for me, I tend to be, like, the more nerdy storyteller, was like, what’s actually changing on the ground? So like, how are you handling cases in a way that you wouldn’t have before? And for the Justice Department lawyers, a lot of it had to, and this was true at the FBI, too, a lot of what it came down to was instead of being someone who is a fact finder and who pursues the facts of an investigation wherever they go, I am being told what the conclusion is in advance, and I’m also in some cases being told who to target.

And that is, like, just wildly at odds with how the Justice Department and the FBI are supposed to operate. And so then the next question became, okay, like, when orders like that are happening around you, are they being carried out? How are people trying to, you know, in some instances resist, but also, like, are you seeing the people you work with, at least some of them, really be complicit in this perversion of the Justice Department’s principles?

Tyler McBrien: Yeah, and I mean, as you were speaking, so many wild details that I remember reading came to mind. The I believe it was the DHS story where there was one, you know, longtime DHS veteran who I think was driving his daughter to college in a U-Haul who had been taking the time off to do that and wasn’t available for one quick thing and then was summarily fired the next day.

And there are just so many of these details, many of which our listeners will be familiar with because, well, I’m sure many of them have already read this package of stories, but a lot of the details have been reported elsewhere. But what I, what was really, I think, valuable about this piece was, as you said, getting the narrative to just this chronology just being reminded of how all of these things happened in the sequence, but then also what people were thinking about these details that we heard.

You know, you don’t get these quotes in a typical feature or news story the way that you laid them out. So I, I wanted to ask you about, you know, details that you got that you actually can’t even put in the story in terms of body language or the way people said things or I don’t know if there was like sentiments that you picked up on that don’t really translate to the page well, remorse or confusion, those types of things.

Emily Bazelon: I mean, agitation is one feeling that I would get from these calls. So I spent a long time, like three hours late on a Friday on the phone with someone Who is not quoted in the story at all because they decided they could not be. But they were, at the end of this three hours, which was about the beginning of the Trump administration, they were like, “That was like therapy.”

And I’m not a therapist, so that always makes me nervous, but I think this feeling was like, I have not gotten a chance to pour out this whole story, because some of this, like, maybe, you know, my close friends or family wouldn’t understand, and some of it, like, I’m just really not supposed to be talking about, but here I am, you know, talking to a journalist who has said, like, “This can be off the record unless you give me permission to use this material.”

And so it just, like, sort of all poured out. That was, like, a frequent emotion. I think another thing that really stuck with me, we talked to people from CR15, which was this elite corruption-fighting squad in the FBI, and these were people who, they’re at the pinnacle of their skills and of their careers.

Like, and their whole ethos is, “We address public corruption by a government official, and we investigate Democrats, we investigate Republicans. Like, we just go where we think the dirt is. And also, like, we’re careful. We don’t, you know, open an investigation or pursue it unless, like, we think there’s something there.”

And they just got completely creamed by the second Trump administration because they had been the ones who, in many cases, had looked into the criminal allegations against Trump himself, right? Relating to not giving the documents back at Mar-a-Lago and to January 6th. Like, they were the people assigned to Jack Smith, the special prosecutor.

And because they had done that work, they kind of had to be destroyed. Like, not just fired, and they were fired, but also just, like, ripped into in, on social media. Chuck Grassley, the Republican chair of the Senate Judiciary Committee, kind of seemed to be making, like, a special priority out of dismantling and wrecking their careers personally.

And that is, like, totally against the ethos of the FBI. You’re not supposed to be getting in trouble in a future administration for something you did for a past administration, because, as the agents kept saying to us, like, how does anyone take a sensitive pl- assignment politically if they’re just gonna get ripped to shreds the next time around?

And then also, you know, as they are being raked across the coals, Kash Patel then just disbands the whole unit, and so there is no more CR15, and there’s very little public corruption prosecution going on, except where it suits the political partisan interests of the Trump administration. So seeing all of that through the eyes of the people who were deeply committed to their work and then personally affected by it, that has stuck with me.

Tyler McBrien: So many of these stories appear to me at least to be a f- a pretty straight line one-to-one of a retaliation you know, against perceived persecution of Trump himself. But also it’s part of a wider strategy of this early strategy of dismantling oversight mechanisms both within, with, you know, throughout the executive branch.

What other strategies did you see that were fairly standard across all three of these stories? I mean, again, the FBI is part of the DOJ, but, so I guess, you know, across the DOJ and DHS there’s been a, just a lot of, I think discourse about the personnel strategy, the Russ vote OMB strategy of the second Trump administration to become to be a lot more effective in carrying out its agenda you know, norms and institutions be damned.

So yeah, what other similarities did you see in terms of the strategy of dismantling, rebuilding in their own image, and then, you know, similarly the differences there between DOJ and DHS?

Emily Bazelon: Well, so many people had stories about immigration enforcement, right? And this was, like, from different vantage points.

So normally there’s, like, just one part of the Justice Department called the Office of Immigration Litigation that does immigration work at main Justice. And normally the FBI has very little to do with immigration enforcement. But everyone’s getting dragged in because this is the priority. You know, for the FBI, Kash Patel keeps insisting on saying, like, “Let cops be cops,” by, which is, by the way, something

Like, FBI agents and analysts are not cops. They don’t consider themselves cops. They’re like, “The cops are great. We love the cops. They do something different from us. We do, you know, more long-term, like, investigations. They do cop on the beat street work.” Nope. Now, you know, a third of the resources of the FBI are going into im- enforcement, and DOJ lawyers are getting pulled into it all over the country because of course then there are all these detentions and people challenging their detentions by bringing habeas petitions in federal court.

And ICE attorneys are not the people who show up in federal court. Like, they show up in immigration court. So that is, like, a crisis of manpower, really, and I think, like, morality for a lot of U.S. attorney’s offices around the country Then, of course, we heard about immigration enforcement from the point of view of the people in the Department of Homeland Security.

Normally, that is ICE’s internal interior immigration enforcement is the work of ICE. But again, no, everybody’s doing it. Border patrol officers who normally are on the border are being pulled into cities like Chicago and Minneapolis, which they’re not trained to do. Like, they don’t know hand- how to handle street protests or even really do the kind of, like, house enforcement that ICE agents do.

And so that’s making all of those activities, like, much more unpredictable and, in many cases, unsafe. And then also, even the people who work for what’s called USCIS, and that’s Citizenship and Immigration Services, those are the people who work on, like, benefits and services for legal immigrants. They’re also being called an enforcement bureau all of a sudden and basically being turned toward addressing fraud, which, like, th- is not, you know, a huge thing actually in immigration work.

But, like, suddenly it’s the only thing anyone cares about. And, you know, the work they were doing to vet asylum and refugee applications is all on hold. So it just threw into turmoil the kind of daily operations of so many public servants and government workers, like, this move toward immigration enforcement.

Which of course, the interior part of it has been, like, deeply unpopular and actually a big problem politically for the Trump administration, even though securing the border has been a success politically

Tyler McBrien: I’m curious about some of the ICE agents first come to mind, but anyone really you spoke to who were not so disgruntled.

They were actually supportive of these changes of policies, to put it lightly. Or maybe they were they agreed with the strategy but not the tactics and things like that. Could you speak s- about some of those people?

Emily Bazelon: Yeah, I mean, mostly like, both of... We heard all of those points of view. We heard a lot of the latter one.

And look, I think there are lots of ICE agents who are fully on board for what’s happening, like especially the people who’ve been hired more recently. Like, they are coming into this job, and frankly, those people are probably less interested in talking to The New York Times. So I don’t claim that I have, like, a representative sample by any means.

Our vantage point was people who were like, “Yeah, I’m down for the goal of enforcement, like, I signed up for this, but the way this is happening is bad and is not gonna help anyone,” because, like, you know, people... I mean, this was, we were talking to people in the aftermath of the killings in Minneapolis of Renee Good and Alex Pretti, and ICE and Border Patrol agents who were in Minneapolis or in other cities were like, “This is terrible.”

Like, “This is g- making it harder for us to do our work.” They were very concerned about the racial profiling that they saw happening from other ICE agents, and they were saying things like, “Well, we would never do this,” or like, “I didn’t do that,” or, you know, “I stopped this guy who was a dad and he started crying and there was this kid in the backseat and I was like, ‘Dude, just, like, get your papers together and get out of here,’ and I let him go, but other people wouldn’t have done that.”

Now, of course, like, that might not be the whole story, but it was pretty interesting and I guess really not surprising to me that people would feel very uncomfortable, at least sometimes, being in that role and wanna try to distance themselves from it.

Tyler McBrien: Yeah, there was quite a bit of cognitive dissonance that jumped out at me.

As I said earlier, remorse and confusion and, you know, a- as easy as it is from the outside to have this knee-jerk reaction that people often have when you hear Trump voters saying, you know, “I didn’t vote for this,” even though it was well telegraphed I think during the campaign.

There’s still so much nuance that I think this approach brings. So I think one example is, you know, these reactions to the pro- the public protests that were happening then especially i- in Minneapolis. But another example is just at times this sort of dark humor that some people are using to cope with these changes or this story that stuck with me, which was that there was a rumor I believe going around at DHS that Corey Lewandowski was walking from desk to desk, and if anyone was missing, he just removed their nameplate, so people were sticking sticky notes on their desk saying, “Out to lunch,” or like, “Be back in 10, going to the restroom.”

You know, what of those like more human elements like stuck with you? It just does such a good job putting a human face to th- to the people who make up our institutions.

Emily Bazelon: Yeah, I mean, you know, we didn’t write about this as much as people talked about it, but the fear of being part of these RIFs, these reductions in force, and losing your job was incredibly palpable, and I think remains.

But, like, especially early on, you know, like DOGE is showing up. You just have no idea who’s gonna be there the next day. People also told us that, like, they were taking the back stairs instead of the elevator to try to avoid Corey Lewandowski. Like, people were just trying really hard to keep their heads down, and doing things if they were in any kind of management position to try to protect the people who worked for them, including in some ways, like, doing some, I think, things that their colleagues found really questionable.

So, like, people told us on being c- on calls where all of a sudden at USCIS, you’re supposed to be looking for fraud. And so, you know, some lawyer said, “Well, actually, my superior was, like, making it sound like fraud was a real thing so that we could go fight fraud, and that was gonna supposedly save our division, but, like, it was bullshit.

We knew there was hardly any fraud, and then they cut the whole division anyway.” You know, you can sort of see, I think, like, it always, it seems from the outside in a kind of Hollywood way that it’s clear when you’re crossing a moral line, and, like, yes, you’re gonna resign. And, you know, we did talk to people who had, like, those total moments of clarity, and they walked out the door.

And you listening I thought, like, I hope that I would behave this way if it was me. And then you hear about things that are in a kind of gray area, or people are presenting them as being in a gray area. And you think, like, yeah, you know, it is really hard to give up your job that you’ve worked really hard for.

And I had this feeling, too, of deep appreciation for the civil service. You know, like, a lot of these people are really smart, and they could be doing a lot of things, and they’re giving their lives to government work. And, like, there are some great benefits of that. It’s more secure. It’s interesting, often.

Like, it’s not like they were suffering, but they had choices, and they made these professional choices which, like, they really think of as being for the good of the country. And in so many cases, it just turned out that the people they were working for had zero... Like, thought they were worthless. I mean, one of the people who got, who left the FBI, Tonya Ugoretz, she was, like, the director of the Directorate of Intelligence, so, like, the chief analyst, you know, dealing with intelligence.

And she came when Kash Patel came into office, she was like, “I really want to set him up for success. Like, how does he want these briefings? Okay, he’s a more visual guy. We’re gonna do it that way.” And then she ended up getting blamed for something she hadn’t even done, and they just, like, completely sidelined her.

And she was just like, “I felt like I was a disposable, used-up piece of Kleenex.” And I think there was just a lot of that, and is not good for the, like, institutional future of these agencies.

Tyler McBrien: Yeah, story after story are people who were disposed of, fired quite impulsively often, or just were fed up and had to resign.

But short of that, did you pick up on other forms of resistance, if you wanna call it that, or pushback or dissent? There was a lot of fear, and there was a chilling effect as a result, but there also seemed to be some, at least some small episodes of pushback, and that could come in the form of just insisting on what the actual policy is and insisting on you know, working within the law.

But yeah any anecdotes there that stuck out to you?

Emily Bazelon: Yeah, I mean, we talked to a bunch of people in the Civil Rights Division of the Justice Department, which has been completely cleaned out, right? I think at... The last time I checked, 70% of the lawyers had left, the career attorneys. It’s probably higher at this point.

And from their point of view, it’s like, well, I mean, what is the Civil Rights Division’s history? It arises in the early ‘60s as, like, champion of Black civil rights in the South, and there’s this famous picture of one of the early heroes of the Civil Rights Division, John Dorr, standing with James Meredith, the first Black student who’s trying to integrate, I think, the University of Mississippi.

And that’s its fabled history, and like, now it is supposed to be really concerned with reverse discrimination against white people and, quote, “antisemitism”. And I say that as a Jewish person who cares a lot about real antisemitism, but these lawyers had been sent to the University of California schools and told that they were supposed to find, like, a lot of evidence of antisemitism.

And they, you know, went in good faith, and they interviewed a whole bunch of people. And they were like, “Okay, well, you know, it is true that there were, like, a few instances of faculty getting kinda harassed at UCLA. But the rest of this, like, no, this is, you know, we need to have free speech on campus, and people have to be able to criticize Israel.

And this is... Much of what we’re being told to look into, like, does not rise to the level of a civil rights violation, and certainly not a billion dollars’ worth in damages,” which is what they were supposed to come up with. And so they, you know, they were nervous. They were, like, writing up their notes every day so that there would be a clear record of what they were doing.

They were trying to make it really clear, like, “We’re trying as hard as we can to find this evidence you want, and it’s not there.” And I think that was a good example of, like, trying to be real lawyers in a very non-lawyer-like setting, not quitting but also, like, not doing the thing that for them crossed the line.

And you know, I do wanna say, like, I think there are lots of instances in which I totally understood why people resigned or quit. Like, yes, but I also think we need to make room for the idea that some people have stayed, and they’re there, like, trying to do the best they can, and also thinking that, you know, whoever replaces them is gonna be much worse.

So I feel like there’s, you know, a way to justify all of those kinds of decisions, depending on, like, what you personally are being asked to do and what the conditions of your employment are.

Tyler McBrien: I wonder if you’ve also had this challenge of covering this current administration where there’s so much chaos and so much damage.

Deaths have happened in detention centers in, you know, on the streets. But then on the other hand... And for some, you know, communities in the U.S., the chaos and the destru- and the damage is very apparent and very everyday. But for other parts of the country, you know, if you weren’t reading the headlines, you may think that, you know, the government, maybe there’s some problems, some dysfunction, there’s always dysfunction, but there’s still a government.

You know, the sun’s still rising and setting every day. So, you know, I guess what I wanna ask is your experience, you know, covering this administration versus Trump one or even just past administrations, and how your idea of our institutions h- has changed or not. So, you know, Trump one, up until January 6th, there was a lot of discussion about how our institutions may have been brought to the brink, but they held.

You know, there was no constitutional crisis, no coup, no successful coup. But now, you know, Trump two looks very different in a lot of ways, and the institutions have changed much more dramatically than the first time around. So how have you know, compared your experiences now versus Trump one or other administrations in terms of these, this, like, institutional angle?

Emily Bazelon: Yeah, I mean, I would say that, like, in Trump one and then afterward, I spent a lot of time thinking about, like, what does it mean to say norms have crumbled or been violated? And I got, like, actually really tired of the whole concept of norms, because norms are really strong until, like, someone decides they don’t care about them anymore, and then they seem to be able to be tossed out the window.

And so I felt like that happened to a degree in Trump one, but then there were these moments where, like, you know, truly were we gonna have you know, basically a coup in the Justice Department where Trump was gonna direct or find people to direct the Justice Department to investigate these completely made-up allegations of, you know, voter fraud connected with the 2020 election to allow him to stay into office.

Like, that was the play, and he tried to pull it off, and there was enough resistance that it didn’t happen. And he knew that, and he was furious, right? Like Bill Barr, his second attorney general, with whom he had lots of common ground. Like, Bill Barr had a super conservative agenda, and he was on board for a lot, but he was not on board for essentially violating his oath of office to keep Donald Trump in office.

And so he resigned, and the people he left behind also almost entirely said, like, “Nope, we’re not doing this,” and Trump backed off. And the conclusion Trump drew from that was like, “Screw these people.” Like, “These are some super annoying lawyers who don’t know how to get to yes.” And I think we see in the current Justice Department that, like, 100% Pam Bondi got to yes, and 150% Todd Blanche, the current acting attorney general, gets to yes.

You know, to me, this, the one point almost $8 billion dollar slush fund is like the epitome of all of this. I mean, this is just unthinkable. Some- Trump sues the IRS, the Justice Department gets, like, pers- well, I don’t even want to use the word persuade, agrees to drop agrees in exchange for Trump, again, dropping the lawsuit, to create this huge fund that’s gonna pay off all these people who it says were victims, in air quotes, of the Biden administration’s prosecutions, and also Trump gets effectively a civil pardon, that he’ll never be investigated, nor his family or business for any tax questions.

And the fund, I mean, if it goes where it’s supposed to go, is basically probably could pay for a lot of people who were, you know, at the Capitol rioting on January 6th, 2021. Maybe they can use the money to, like, come back in 2028 if they’re called upon. I mean, that’s like really what we’re talking about, and I don’t think that the Trump 1 top of the Justice Department would have gone along with that, and that’s a very meaningful distinction.

Now, I mean, I had a lot of quarrels with the Trump one Justice Department, but not this. Like, you know, and we’re just at a different level, and I do think that the threat now has much less to do with conservative-liberal divides and much more to do with just straight up, like, what does the rule of law mean in the United States?

Is the Justice Department, you know, simply a weapon that the president pulls out of his pocket to inflict damage on anyone he wants or to do favors for anyone he wants? And that’s the thing that I think is, like, the most different, and there’s been a huge amount of damage, and it’s gonna be a giant task to repair it

Tyler McBrien: Well, speaking of that, how do we repair it?

I mean, I will preface this question by saying, you know, I know- I think journalists often get the... You know, they articulate a problem so well, they diagnose it so well, and then they’re expected to o- then offer, like, an answer of what to do next. And I, and we are at a high altitude, but yeah, I don’t know if there are any le- like lessons that you’ve heard from people or that, you know, you’ve come to on your own after all this reporting of w- with all these norms trampled, changed can we even talk about rebuilding, or should we talk about building something new in these institutions?

Yeah, how do we fix it?

Emily Bazelon: Well, I think we should, since so much of it is, like, all burned down, I think we should use the opportunity to build something stronger and newer, right? Like, it’s not like it was perfect before. I think that some of the norms that the country has relied on for the kind of independence that the Justice Department had on criminal investigations from the White House needs to be in a statute.

Like, it needs to be a law. It needs to be the president is breaking a law and not just, like, deciding not to respect a norm anymore. That’s gonna be important. And I think, like, some of it you, w- we’ll be able to figure it out. I mean, it’s not, it’s n- it’s not totally straightforward because the attorney general does work for the president, right?

And, like, that, lots of countries struggle with this question of, like, the chief law enforcement officer, how does that person relate to the chief executive? Are they completely under the authority of the chief executive? And if not, to whom are they accountable? Like, do you elect them separately?

What do you do about that? ‘Cause they need to be accountable. They can’t just be, like, some giant inquisitor out there independently. Those caveats said, I do think that you could have some statutory independence written in that is important. And I also think that there are so many people who’ve left who are dying to come back and rebuild, and they’re a huge resource.

I mean, they have to be invited back, and they have to be able to come in and have authority over some of the people who’ve stayed and been complicit, and some of the people who’ve stayed and been complicit or who’ve really, like, you know, been part of the problem, they need to leave. So that kind of big sort, like, I don’t envy whoever has to figure that out, and they’re gonna make some mistakes along the way inevitably.

But I do take heart from the fact that a lot of the people I talk to would love nothing more than to be able to come back and fix things.

Tyler McBrien: And I’ve been heartened by, this is completely anecdotal, but conversations I’ve had with 3Ls in law school and others who still very much, you know, currently who still very much intend to and want to go work for the federal government.

And so yeah, at least that, so that’s been heartening that it hasn’t completely turned everyone off of this kind of work of the civil service. A- as we near the end of the conversation here, I’m curious as much as you’re able to divulge of where this reporting project is going next. Are you looking at another agency?

Are you, yeah where is this project headed?

Emily Bazelon: I am currently on book leave writing a book about women’s health and freedom, a lot about abortion and birth control, that is totally different from this project, so I don’t know the answer. The magazine did a great story by Jeneen Interlandi, one of my colleagues on the CDC, that used this oral history format, and I do think, like, there are some obvious ripe targets in other parts of the government for this, and I’d be happy to work on that when I come back.

But right now I’m distracted. I guess another thing I’ll just bring up, and I have written some about this too, but you know, the district courts have played such an important role in all of this. Like, the attorneys and other government employees who are trying to resist, like, often those... They, their work requires a federal judge to weigh in on one side or the other.

And the fact that, for the most part, the district courts have been so stalwart in, and thoughtful, right, in just, like, looking at these questions from a n- non-partisan legal perspective has been essential. It doesn’t mean that Trump has lost all the time, nor should he lose all the time. It just means that it looks like a lot of judges, no matter who appointed them, are really concerned that the government follow the law.

And that is something that, like, we can rely on in the short but not the long term, right? It takes a while for the kind of turnover of the federal courts to have it r- them really corrupted. And so that’s part of, I think, why this has been maybe the strongest, certainly the strongest part of, like, the government, that part of our democracy, maybe the strongest institution, like, just writ large at all.

But it’s also important to remember that it’s, it can’t last forever, because if you have bad actors who are presidents appointing judges, then at some point, like, the judiciary is gonna curdle in much the way the top leadership of the Justice Department has. Here’s the thing I want to add. I want to make sure to say that, you know, we went for...

We asked for comment from the Justice Department, the FBI, DHS. We sent lots of questions. A fact-checker sent, like, a million questions. And I should say, like, top line, all of these agencies very much objected to these stories, you know, questioned The New York Times’ objectivity, and also questioned all of our sources, and basically said, like, “All of this is bullshit.”

That was sort of the top-line response. And, you know, and then when they had more specific responses to actual facts along the way, we tried to include them wherever we could. So I just want to make it clear that, like, the Trump administration does not think that we were telling a true story. We corroborated everything we had.

We made sure we had multiple sources. We took that part of the reporting very seriously

Tyler McBrien: Yes, very important to add. And, you know, if this conversation has indicated anything, it’s the immense amount of work that you and your colleagues put into this. So thank you for your reporting to you and your colleagues.

I mean, this is really, like, first draft of history stuff to use an old cliche, but it’s really invaluable. And thank you so much for joining me on the podcast to discuss it.

Emily Bazelon: Yeah. Thanks so much for having me. It’s a pleasure to think about it all, even though it is a dark first draft of history, I would say.

[Outro]

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