TONYA MOSLEY, HOST:
This is FRESH AIR. I'm Tonya Mosley. Since the inauguration, we've experienced a dizzying onslaught of actions from the Oval Office. So we're devoting this President's Day to understanding the scope of President Donald Trump's power as he continues to break laws, use billionaire Elon Musk to dismantle the government and circumvent Congress. Since taking office, President Trump has issued dozens of executive orders, memos and proclamations to change policies in immigration law. He's expanded on the record of his first term and is acting on the promises he made during his campaign, actions that will redefine the United States, like taking away birthright citizenship, urging millions of federal workers to resign and dismantling efforts to prevent foreign influence in our elections. Legal scholars and experts agree that we are in a constitutional crisis. We explore what that is and what power Congress and the American people have against President Trump's executive authority. Our guest today, Charlie Savage, has studied and written about presidential power for two decades. His 2007 book, "Takeover: The Return Of The Imperial Presidency And The Subversion Of American Democracy," is about the Bush-Cheney administration's efforts to expand the president's power. Savage is also a constitutional scholar and wrote in 2015 "Power Wars," an investigative account of national security and legal policymaking under President Obama. Savage is a staff writer for The New York Times, where he writes about national security and legal policy. We recorded this conversation with Savage last week.
Charlie Savage, welcome back to FRESH AIR.
CHARLIE SAVAGE: Thank you for having me.
MOSLEY: OK, Charlie, so today will be kind of like a civics lesson and hopefully a grounding to understand the scope of presidential power and what actions are legal or illegal. Many legal experts, as I mentioned, agree that we are in a constitutional crisis. Some have even used stronger language. From you, what makes this a constitutional crisis and what's happening now that points to one?
SAVAGE: A constitutional crisis, obviously, it's a strong phrase. And it's one that doesn't have a clear definition. My colleague Adam Liptak wrote recently that it's more of a sliding scale than a on or off, and I think that's right. So I think the reason people are saying that now is that Trump is brazenly, openly breaking laws left and right in his assault on basic structures of the federal government. He's firing people without obeying laws that set certain limits on when that can be done or how it can be done, from members of independent agencies to inspectors general, to civil servants. He's basically shut down an agency - United States Agency for International Development - and folded its remnants into the State Department in the face of a law passed by Congress that says USAID will exist as an independent entity that's not part of a department.
And in many other ways, he is kind of rolling through legal constraints. And this has in turn engendered a blizzard of lawsuits that are piling up now. I think we're approaching 70 as you and I record this, and there's already been more than a dozen court orders telling him to stop doing this and stop doing that. And he's saying he will obey those and appeal them, but there's already mounting evidence that agencies are not obeying, especially court orders telling them to unfreeze funds that Trump had ordered blocked. And so the prospect of a president openly violating laws and then not obeying court orders I think would clearly be a constitutional crisis.
Trump is saying he's going to obey these and just appeal them and try to get higher courts to let him do what he wants. And it's not 100% clear that the agencies that are nevertheless jamming up certain funds are doing so because of White House orders, as opposed to just sort of confusion and chaos that have been unleashed by this onslaught. So I'm not 100% sure myself that I would say this is yet a constitutional crisis. I think the moment Trump says, I see the judge has ordered me to do this, but I don't care - I'm going to act contrary to that order, not just try to get a higher court to overturn it - I think that would be unambiguously in the zone we're talking about.
MOSLEY: But can you remind us - this is kind of the civics lesson - how the three branches of government are supposed to interact with each other as stated in the Constitution and how President Trump, of course, in violating these laws, but also just in the way that our three - the legislative branch, the judicial branch and the executive branch are actually supposed to work in concert with each other?
SAVAGE: Sure. And I want to preface this by saying, yes, he is openly violating these statutes enacted by Congress about how agencies should be structured or when you can and can't fire a federal worker. It appears that his legal team wants to set up test cases that would allow the Supreme Court to declare those laws unconstitutional. And the only way to get something like that into court is to violate it, have a lawsuit and then fight about whether the law is constitutional or not. And so there's this gloss over this of the prospect that down the road, the Republican appointees, at least on the Supreme Court, who have a supermajority, will say that he had constitutional authority to do these things despite those laws.
As far as the basic structure of government. The founders of the United States mistrusted concentrated government authority, sort of all the power in the hands of the king. They did not want to have a country that was subject to that much unaccountable, concentrated power. They divided the powers of government up among three separate but equal branches, the presidency, the Congress and the courts.
MOSLEY: Right.
SAVAGE: And there's these overlapping checks and balances that are supposed to prevent any one branch or one person from having too much concentrated, accumulated and therefore unaccountable power. That's how the United States is supposed to work.
MOSLEY: Can you remind us, as it relates to the Supreme Court, how over the last few years, executive power has been redefined by the Supreme Court?
SAVAGE: Yes, this Supreme Court now has six Republican appointees out of the nine justices, and five of those six are former executive branch attorneys from the Reagan administration or the George W. Bush administration. And the executive branch legal teams in those two administrations both were pushing at the limits of presidential power. And even before the second Trump administration began, that new majority bloc, especially with his appointees, which added three, but even before then, had started chipping away over the last 10 or 15 years on some of the ability of Congress, through statutes, to place limits on presidential authority.
In particular, they clearly wanted to advance the idea that presidents must have exclusive control of the executive branch, and therefore, they must be able to fire anyone in the executive branch at will in order to exert control over how those subordinates are exercising executive authority. And so the Supreme Court has been saying, no, the president can fire this kind of person or that kind of person regardless of job protections that Congress has created for them. And, of course, most importantly, last summer, the Republican appointees on the court granted, more or less invented out of thin air, not out
SAVAGE: out of thin air, not out of clear text or history, that the Constitution makes presidents presumptively immune from prosecution for crimes they commit using their official powers. And as part of that, they also went further when it came to the president's authority over law enforcement in the Justice Department and said he is absolutely immune for anything he does with the Justice Department, based on the idea that he is supposed to be the chief law enforcement officer under the Constitution.
And so these rulings before Trump comes back into office have already clearly created momentum for a unfolding reinterpretation of the Constitution that would - and is already resulting in much greater concentration of power in the White House and a reduced role for Congress and the courts, and opening of the throttle on something that has been moving gradually up until now.
MOSLEY: One very contentious act that the president has made in the last few weeks is birthright citizenship. If birthright Citizenship makes its way to the Supreme Court, what do we know about how the justices might rule? I was actually reading one scholar who said Justice Brett Kavanaugh and Neil Gorsuch - both who are Trump appointees - may disagree with Trump on this one.
SAVAGE: They may. I really don't like the prediction game, especially when there's something novel like this. I'm pretty confident that some of these job protection statutes this court would eagerly strike down just based on their momentum and already doing so for sort of parallel provisions elsewhere. The birthright citizenship thing is a different animal, and it may be that this, you know, the sort of far-right legal scholars, think tankers have kind of developed this idea that they've convinced themselves of that the 14th Amendment can be reinterpreted from the way it's always been interpreted.
And it's all based on this very sort of contorted theory that there's an exception in that amendment for people who are not subject to the jurisdiction of the United States, and that's always been understood just to be diplomats, people who are here with diplomatic immunity. You can't charge them with crimes, you just have to sort of send them home, etc, and their children do not become citizens. And the idea is, well, let's interpret that phrase as encompassing anyone who's not here permanently or lawfully.
But the problem is that tourists who are here on tourist visas or illegal immigrants who are here without documentation are subject to the jurisdiction of the United States. If they commit a crime, they can be prosecuted. And it seems like a real reach to take this sort of odd reinterpretation of that and totally change the meaning of something this important.
MOSLEY: Let's take a short break. If you're just joining us, I'm talking with New York Times staff writer Charlie Savage about the scope and limits of executive power under President Donald Trump. Savage writes about presidential power, security and legal policy for the Times. We will continue our conversation after a short break. This is FRESH AIR.
(SOUNDBITE OF PARRIS BOWENS' "STAY")
MOSLEY: This is FRESH AIR, and today we're talking to New York Times staff writer Charlie Savage. I spoke with him in December of 2023 about how Trump would push the bounds of executive power should he become president. In his first days of office, Trump has already executed some of what he promised during the campaign, like granting clemency for anyone charged with the January 6 attack on the Capitol and overhauling the government, as we know it, by moving to get rid of federal employees. Savage writes about presidential power, security and legal policy for The New York Times, and our conversation was recorded last week.
Executive orders historically have been kind of controversial and sort of, like, seen as a last resort after a president is unable to get legislative support.
SAVAGE: So the essence of an executive order per se is not controversial. What becomes controversial is when a president has tried to get something through Congress and failed, and then tries to do it unilaterally anyway. On his own, especially using contested theories of his power. So it's not really the issuing of executive orders, but it's what particular orders say and what the legal theory is behind it.
There's never been quite as intense a flurry of executive orders as we're seeing at the start, have seen at the start of the second Trump administration. We know they had a huge number of them pre-written and ready to go, and this is part of the novelty of someone who had been in and the people around him, lost power, thought about what they should have done with that power if they ever got a second chance.
MOSLEY: You told me the last time we spoke in December of 2023, that Trump had made clear during the campaign that he would get rid of federal employees and replace them with Trump loyalists. And you told us that these plans were in the making even during the last Trump presidency because back then he issued an executive order that would have altered civil service protection rules for any employee of the government who was deemed to have some sort of influence over policy-making, which would open them up to be fired, I guess, like a political appointee. Now, those rules never went into effect because President Biden was then elected and rescinded that executive order. Is what we're witnessing now potentially a part of Trump's plan to streamline and replace those federal workers with loyalists?
SAVAGE: So the order you're talking about that Trump put in at the end of his first term and Biden revoked before it took effect was called Schedule F, and one of the dozens of orders that Trump signed on his inauguration night this time was to restore a version of that, which is - they changed the name. It's no longer Schedule F. It's Schedule Policy/Career or something like that. Basically, yes, it takes senior civil servants who exercise some control over policy, and it says they can be summarily dismissed at will. It's been almost overlooked that that got put back because the second administration's assault on the federal bureaucracy has been so much bigger than that.
Trump is firing swaths of people, purging government employees in ways that go wildly beyond the category of senior policymaking civil servant that that directive addresses. He's firing all Justice Department prosecutors that had anything to do with the cases against him or the cases against January 6 rioters. Simply, he - I said he is firing. He has fired. No notice, no hearings before a Merit System Protection Board. Pack up your office. You're gone. Your paycheck is cut off. He fired 17, now 18, I think, inspectors general who are not supposed to be fired unless Congress has gotten 30 days' advanced notice and a detailed written rationale of some case-specific reason to remove them. He didn't provide that notice or have any specific rationale. He just fired them, took away their email, phones, computers, locked them out of their buildings. They have filed a lawsuit now challenging that, some of them.
He's fired members of independent agencies, like the National Labor Relations Board, who are not supposed to be removed unless there's a particular cause, like misconduct or neglect of office, just fired them anyway, shutting down that and other agencies 'cause they now lack a quorum of members to take any official action. There's a lawsuit over that, too. He's fired senior executives at the Justice Department and the FBI and other places also summarily without going through these protections. And the list goes on, and every day there's more, in fact.
And so the sort of thing that we used to call Schedule F is certainly foreshadowing of the notion of a mass purge of people who work for the government trying to do various things. But it's turned out to be minor compared to what's actually happening right now.
MOSLEY: What is Congress' power in objecting to these removals?
SAVAGE: The current Republican Party is controlled by Trump. All of the people who are more traditional Republican conservatives, let's say Reagan-Bush-style conservatives, who sometimes in Trump's first term stood up to him, objected to him - think of John McCain types, Liz Cheney types, Adam Kinzinger types - wouldn't go along with everything he wanted, have been either purged from the party through primary challenges or have been cowed into submission by the threat of primary challenges, or in some cases - people are talking more and more about this - fear for their own physical safety from Trump supporters. And therefore, there has been barely a peep out of this Congress in defense of the laws that they passed.
MOSLEY: Funding for the government expires on March 14, right? What power does that wield, I guess, for Democrats in particular?
SAVAGE: Well, this is a little different than executive power. The issue is that there's very thin majorities for the Republican Party in both chambers, and there is a sizable faction of Republicans, especially in the House, who want draconian spending cuts, but also appear not to be willing to raise taxes to close the deficit that they're worried about, in fact, want to make permanent and expand large tax cuts from the Trump era that are about to expire. It means that the Republican Party, on its own, will have great difficulty passing a budget and lifting the debt ceiling.
And that means if they can't reach some internal agreement, then they would need the votes of Democrats to get a majority to keep the government from shutting down and keep a debt ceiling crisis from happening. So that could give Democrats leverage to do something. The problem is that normally, if there's a political deal to be made across party lines like that, Democrats would be asking for spending on something they cared about. But how can they make a deal like that when you have a president who is freezing funds, refusing to spend it even when Congress has appropriated it and said he wants a fight over whether the Supreme Court will let him not spend money that Congress has appropriated on things he doesn't like? And so even if Democrats wanted to help, it's not clear that there's - Republicans are capable of offering something to Democrats that Democrats can count on.
MOSLEY: Our guest today is New York Times staff writer Charlie Savage. We'll be right back after a short break. I'm Tonya Mosley, and this is FRESH AIR.
(SOUNDBITE OF MUSIC)
MOSLEY: This is FRESH AIR. I'm Tonya Mosley.
MOSLEY: This is FRESH AIR. I'm Tonya Mosley. And if you're just joining us, I'm talking to New York Times staff writer and Pulitzer Prize-winning journalist Charlie Savage about how President Trump is actively working to expand executive power. Savage writes about presidential power, security and legal policy for The New York Times. In 2007, Savage wrote a book titled "Takeover: The Return Of The Imperial Presidency And The Subversion Of American Democracy," about the Bush-Cheney administration's efforts to expand presidential power. In 2017, he wrote a book called "Power Wars: The Relentless Rise Of Presidential Authority And Secrecy-Inside Obama's Post-9/11 Presidency." We recorded our conversation last week.
Charlie, we have already seen significant changes to the Justice Department. Some of the things we expected, like President Trump overhauling the leadership and appointing his own person, Pam Bondi, as attorney general. But there are several other things that are questionable. Recently, the FBI was told to hand over a list of employees who worked January 6 cases, not the agent's names, but a list to the Justice Department. And the department says this is part of a review process to end what it calls the weaponization of the justice system. What are some of the bigger concerns around disclosing that information, even if these names are being blacked out in documents?
SAVAGE: So to get into that, I have to talk about what was happening at the Department of Justice before attention turned to the FBI. Right away when the administration came in, of course, the Biden political appointees resigned on January 20. And Trump put in his own acting people while his nominees were going through the Senate, including a guy named Emil Bove, who was one of his criminal defense attorneys. And he became the acting deputy attorney general and essentially was running the show, although there was a career person briefly as acting attorney general.
So here's an extraordinary situation where a criminal defense attorney who was facing off with prosecutors in court suddenly is put in charge of those prosecutors. And in the first couple weeks under Bove, there was a scourging of the Justice Department. Many of the most senior leaders, career officials with decades of experience who were in charge of various sections and divisions across the department, were either fired or moved to a sort of humiliating assignment, to work on a task force that didn't even exist that was going to look at sanctuary cities. You know, these were not people who are immigration law experts. They were national security law, environmental law, criminal law. And they were sort subbed over here.
The obvious effort was to make them resign, as many of them did. Then all the prosecutors who worked on the Trump cases were summarily fired, as I mentioned earlier. And then a huge swath of the prosecutors who worked on the ordinary January 6 rioter cases were also summarily fired. And as this is happening, then Bove's attention turns to the FBI. And he does the same thing. He fires or tells the most senior leaders in charge of several of the major field offices, but also all of the major divisions at FBI headquarters - cyber, national security, intelligence, criminal, et cetera - they must resign within a couple days or they will be fired. People like this are always from one time or another moving on, but there's never been just a decapitation across the board of all of the most senior, important, experienced leaders, who are in the middle of working on cases and overseeing things and so forth.
And then Bove demands this list. The acting head of the FBI director turns over the list and hides the names, just gives the employment numbers, which Bove considers insubordination. And now they do have the names as well. And so the question has been, what are they going to do with those names? Is the intent to fire all those FBI agents as well, just as all the prosecutors who worked on the J6 cases were fired? In the case of the FBI, that would be thousands of people because the rioters went home after January 6, and they went home to their homes all around the country. And as the FBI was figuring out who they were through face recognition and social media posts and other things, agents all around the country were being assigned to go find this guy and arrest him. And so it would just be a decimation of the FBI workforce. And, of course, no one at the FBI chooses what they're assigned to do, just as the prosecutors didn't. They were just doing their jobs. But this sort of revenge scourging is nevertheless sending the message, even if you touch this through no will of your own, your career is over.
MOSLEY: It's astounding. And I think we could play out in our mind what the potential ramifications are for this. But what are some more immediate things that you're concerned about as you watch this unfold?
SAVAGE: Well, I don't like to put it in terms of what I personally am concerned about. But I can tell you that there's been a lawsuit now that has resulted in a court order that for now is preventing the Trump administration from making public the names of all those agents. And the plaintiffs have raised concerns that the agents' personal safety and that of their families might be put at risk. Of course, one of the first things Trump did was pardon 1,600 or so people who were convicted of crimes as part of the January 6 riot, including people who physically assaulted police officers, very far-right militia types.
And those people are all now free. And they might want to come after an FBI agent that was responsible for arresting them if they knew that person's name and can find their address and so forth. And advocates for the FBI, you know, lawyers who've brought those cases and Democrats are also raising the prospect that public safety in general right now has been put in increasing jeopardy - you know, the FBI is taking its eye off the ball of terrorism cases and drug cartel cases and everything else they might be working on because they're so consumed by, am I going to have a job tomorrow?
The foreign aid spending freeze that Trump put in has meant that all kinds of counternarcotics and counterterrorism programs with partner forces in Latin America or the Middle East, where we're training them and equipping them - and they are doing work there that is helpful to public safety here in terms of trying to stop terrorist groups from operating or drug cartels from moving fentanyl and other drugs towards our borders - has ceased. And in many ways, just the work of the federal government across the board right now has been severely disrupted by the effort by the new administration to dismantle the administrative state.
MOSLEY: Let's take a short break. If you're just joining us, I'm talking with New York Times staff writer Charlie Savage about the scope and limits of executive power under President Donald Trump. Savage writes about presidential power, security and legal policy for the Times. We will continue our conversation after a short break. This is FRESH AIR.
(SOUNDBITE OF REGINA CARTER SONG, "TRAMPIN'")
MOSLEY: This is FRESH AIR, and today we're talking to New York Times staff writer Charlie Savage. Savage writes about presidential power, security and legal policy for The New York Times, and our conversation was recorded last week.
There is a new office within the DOJ focusing on immigration enforcement, right? So based on what we've seen in your reporting, what are their priorities?
SAVAGE: Well, there's certainly a major reprioritization of the new administration. And one of the things they want to do more of, clearly - there's no secret about this - is more aggressive immigration enforcement. And a lot of the early executive orders were about pulling on various levers and pushing on various buttons to try to speed up the expelling of people from the United States, to try to shut down aspects of the deportation process that can take a long time, curtailing people's right to seek asylum and have hearings, expand a form of due-process-free removal for people who can't prove they've been in the United States for more than two years. They clearly have other innovations underway.
We see now that Trump is sending migrants to Guantanamo, which is going to raise new and novel legal issues. I'm just touching the surface of it. There's myriad things that are going to raise legal issues that they're going to need lawyers to work on in the coming months and years.
MOSLEY: That expedited removal allows the U.S. to deport someone undocumented without a court hearing. That's something we've never seen before, but is it legal?
SAVAGE: Well, we'll find out. This is not a case where the administration is violating a statute Congress has passed, because Congress, long ago, passed a statute that said expedited removal is available for anyone who hasn't been in the country for more than two years - anywhere in the country. But it's a very aggressive thing to do because people in the United States, even if they're here without documentation and they entered unlawfully, are protected by the Constitution. And so they have due process rights against arbitrary government action. And the denial of the full hearings process is obviously a curtailing of due process.
And so previous administrations of both parties, even the Trump administration, use this technique sparingly. They used it just near the border for people who were just captured, after they, you know, had crossed the river, and they sort of plunk them back on the other side of the border. They did not try to use it for people who had been here for a long time. And Trump wanted at the end of his first administration to do this, and it got jammed up in court and never went into effect.
MOSLEY: President Trump has also threatened to revoke all federal funding to states and localities that are deemed to be sanctuary jurisdictions. What is the president's scope of power to do that?
SAVAGE: President Trump has in myriad ways been trying to establish that he, or any president going forward, can withhold money that Congress has authorized at will if he doesn't like it. And that is a technique called impoundment that previous presidents sometimes did in the 19th and 20th century, not very often, and then started to be used much more aggressively in the Cold War when there were disputes between Congress and various presidents over big-ticket, military, you know, weapons systems. Congress wants this thing to be built 'cause the factory's in that guy's district.
And then Nixon really took it to a new level and was using it all over the place to cancel programs on the environment and roads and stuff that he just didn't like. And Congress reacted to this by passing the Impoundment Control Act of 1974, which makes it a crime to not spend money that Congress has authorized after a certain while, unless you follow a certain process, which basically lets Congress make the decision. The president can send a list to Congress, and they can vote it up or down.
So Trump has been ignoring that process and simply holding money. And he himself openly said during the campaign, with people around him, he thinks that law is unconstitutional, and he wants the Supreme Court to knock it down. So it's clear where this is going. They want a legal fight over his power to withhold funds.
So first of all, can he freeze money that these states were supposed to get because he doesn't like something that's happening in those states is a subset of this bigger question of whether this challenge to the power of the purse that has been long understood to be maybe the core power of Congress. And the separation of power systems we have is going to erode under this onslaught. The more specific question within, you know, can I withhold funds from California because I don't like that San Francisco is not cooperating with immigration authorities, is something that would seem to be unconstitutional under relatively recent Supreme Court jurisprudence.
There's a Supreme Court case from the '90s which says the federal government can't force states to enact certain laws they may not want to enact or to do its bidding. It's called commandeering. It's part of the federalism part of our Constitution, where states have their own sovereignty. And so the notion that the federal government would say, here's this pot of money that you're otherwise entitled to, but because you have a local ordinance that says your police will not work with ICE agents, you will not get this money - that would seem to be a example of the federal government
example of the federal government commandeering the state governments in contravention of how the Constitution has been understood to work. And that used to be something at least that conservatives who were interested in states' rights were very strongly in favor of, this limit on the power of the federal government.
MOSLEY: Last question for you. Trump is in office because he was elected. These congressional members are in office because they were elected. But as we start to see things unfold, where does this leave people as things evolve, as people maybe change their minds or they want to embolden support for it?
SAVAGE: You know, one thing about our system of government, unlike most democracies, is that we have this rigid election schedule. In a parliamentary system, when the government starts to really annoy people and Parliament, you know, can have a vote of no confidence in the prime minister, and within a month or something, there's a new national election to sort of settle the matter, and so the country can move on.
We have congressional elections every two years, presidential elections every four years, and in between, there's not a lot of things the public can do directly if they decide that even though a majority of them voted someone in that they don't like what that person is doing now other than wait. Obviously, people can do protests, and they can let their elected members of Congress know that they want some pushback. And if they have some specific grievance - their particular grant was frozen or whatever - they can file a lawsuit and try to get into court.
MOSLEY: All of which is happening. Right.
SAVAGE: All of which is happening. But - well, I'm not sure the pressure on lawmakers, if there is any, has resulted in any visible sign of life yet on the Republican side, but partially, we're all just kind of watching.
MOSLEY: Charlie Savage, thank you, as always.
SAVAGE: Thank you.
MOSLEY: Charlie Savage is a staff writer for The New York Times and a Pulitzer Prize-winning journalist. Coming up, our TV critic David Bianculli looks at two different offerings from beloved long-running franchises, "Planet Earth" and "Star Trek." This is FRESH AIR.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
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.
