Defending Trump’s ‘Enemies’ with Attorney Abbe Lowell

15:37Abbe Lowell:Well, they don't have a proper basis to have done this, but then the outrage gets even more, right? Not only did they ignore my normal request, let's not make a spectacle of this. Don goes out to Los Angeles to cover the Grammys. He's on an event two days before, and he's coming back into his hotel. And not one, not two, but a bevy of agents surround him in an elevator and basically arrest him and take him out. And they do that at 1130 at night, not because there's somebody sticking around for him to be processed, for the exact opposite reason. So that he'll have to spend a night in jail. Correct.

16:15Abbe Lowell:So that's what happened. He was incommunicado. We knew from his husband that it had happened. We were immediately in touch with people in L.A. to start the process of knowing that he wouldn't be presented in front of a judge until later that next day, which happened. And we did get him out. But that was—look at it. That was all for show. It was all because that's what they do.

16:34Kara Swisher:Absolutely. So Attorney General Pampani actually took credit for the arrest, as well as other arrests of two protesters and another journalist, the church, Georgia Fort. Pampani claimed on X that the arrest happened at her personal direction. I'm in charge here, I guess. And the White House celebrated with his own posts on social media with chains and his picture, lemons, lemonade, whatever the stupid joke they were telling. Talk about the significance of that, that the nation's top law enforcement officials claiming she directed the arrest of these people and the White House gloating. I've never seen anything like that.

17:09Abbe Lowell:Well, yeah, but I mean, Kara, every day we wake up and by the end of the day, some will say some sentence that sounds like, quote, we've never seen anything like this.

17:19Kara Swisher:Yes, I was just trying to stop myself.

17:21Abbe Lowell:I tell all my friends and my journalists who work with words, I need a new word. I need a new word for unprecedented, crazy, outrageous, ridiculous. All right, put that aside. As to your specific question, I've said that as to Don, what this means is a terrible, terrible set of events. I mean, you imagine being rousted that way and put in a car and driven off to a location. So that's itself traumatic enough.

17:47Kara Swisher:And also Georgia Fort was in her home with her children. There was like 12 of them.

17:51Abbe Lowell:Yeah. And I've seen the video. It's just terrific, right? So let's talk about the two things we talked about. You mentioned lawyers, and now we mentioned journalists. Let me get on my soapbox.

18:00Kara Swisher:Okay.

18:00Abbe Lowell:Everybody in America knows that our founders came up with this amazingly brilliant system of what we call checks and balances, where we have three co-equal branches of government that are supposed to rein in the other branches. That was the heavy-duty lift. But they were smarter than that. And they understood deeply that there were two other institutions that would ensure the rule of law. One were lawyers and the other were journalists. It's not a mistake that in those first 10 Bill of Rights, two of them address freedom of press and the ability to have a lawyer of your choice. That said, when this administration was planning their return, it's not random, it's not ad hoc, and it's not an outlier that their first attack after they had already neutered the Congress and they had politicized the courts was to go after the lawyers and to go after the journalists.

18:52Abbe Lowell:I mean, talk to Ben Franklin, who understood the importance of a free press, and people forget that John Adams represented the British soldiers that were charged with murder in the Boston Massacre, got them acquitted, and then went on to be president of the United States.

19:07Kara Swisher:Yep, yep, absolutely. But just for people to understand, a federal magistrate judge also declined to approve Lemon's arrest, and federal appeals court declined to overrule that decision. So how unusual is it that they went ahead anyway and got the grand jury, which is very easy to do?

19:23Abbe Lowell:Well, in this administration, it's not unusual at all. But people really ought to take your sentence and ponder it for another few seconds. They went to a magistrate, a federal magistrate, and said, give us arrest warrants for Georgia Fort and Don Lemon, as well as others. The magistrate, not inexperienced, said, no, there's not probable cause here. They went to the district court judge who said, I am not in a position to overrule the magistrate. They then sort of secretly went to the court of appeals to order in a very unusual thing called a writ of mandamus to order that to happen. And the 8th Circuit said, no, we're not doing that.

20:01Abbe Lowell:As against that, they went to a grand jury of citizens. I'll come back to that in a second. and got the majority of which, a grand jury could be up to 23, but you need 12 of them to vote, to vote for probable cause. The old expression in the law was prosecutors could get a grand jury to indict a ham sandwich. I don't understand in Minneapolis, with all the publicity, how this grand jury was instructed on the facts and the law. We don't know. We don't know, but that's what we're going to try to find out first in this case. Now, on the other side of the coin, as I pointed out, we've been advising New York State Attorney General Letitia James, who got an indictment because President Trump put in one of his cronies to be the U.S.

20:44Abbe Lowell:attorney when real prosecutors wouldn't take that case. And we got that indictment dismissed because of the way it was done was improper. They tried two other times to indict her in front of different grand juries in the Commonwealth of Virginia, and two grand juries told them no. That is itself unprecedented.

21:02Kara Swisher:When they did it right, presumably.

21:03Abbe Lowell:Well, they tried. But by the way, that's a moment in time, Kara. In my practice, I have never, ever been in a case where a federal prosecutor has asked a federal grand jury to return an indictment that had any merit in which the grand jury said no. Well, D.C. It's happened in D.C. In various places. True.

21:21Kara Swisher:To play devil's advocate for a second, Lemon and others entered private property during a church service. He kept filming despite being asked to leave. And for the churchgoers, it was undoubtedly scary. Yes, the protesters were nonviolent, but places of worship become targets of violence in this country many times. How do you look at that when you're pushing back against that?

21:41Abbe Lowell:So it's so Trump administration. You know, and anybody who's paid attention to the news knows, that folks on the right have been interrupting the services of LGBTQ church services for a while. And I don't remember this administration arresting any of those journalists or any of those protesters as well. So we start with selectivity. This is the definition of selective prosecution for a political purpose. In terms of the government's theory of prosecution, it is that under the law, under, let's say, the FACE Act, that the folks in the church had a right to be able to observe their civil rights or freedom of practice of religion, and you interfered with it.

22:23Abbe Lowell:The problem is you're going to have two parts of the First Amendment that are combating each other, because in that same First Amendment is the right to free speech and the right to have the ability to perform your religion. Right. So where do those match? They match somewhere. There have been protests at churches and other houses of worship since the country has been founded. Does that mean it's illegal to do it? That's not the way that statute was passed. The statute was passed initially for the Ku Klux Klan that we're doing more than interrupting people's church services.

22:57Kara Swisher:This is, for people who don't know, it's a conspiracy against rights law. It was enacted after the Civil War and designed to prevent groups like the Ku Klux Klan from intimidating people. The other law the government is using, again, for listeners who don't know, is the FACE Act, F-A-C-E, and it's a 1994 law that's supposed to prevent people's access to abortion clinics and places of worship. This is what they're hanging on, presumably.

23:19Abbe Lowell:It is. Now, I'm not saying that the protesters, the judgment of people who are rightfully upset about what the government's doing in general and in Minnesota and Minneapolis in specific. Certainly, we understand why they would say, I'm going to the streets, I'm going to the courthouses. And if they really did believe that the minister at this church was somebody who was involved in the ICE raids, I'm not suggesting that was smart to do. I just haven't really thought about that through. What I do know is whatever this group did, what Don Lemon did that day was as the 30-year veteran journalist that he's always done.

23:57Abbe Lowell:It would be, and it would be quite the opposite if you think about it. I always point out in the last week, you know, what was one of the turning moments in the civil rights movement during the 1960s was that we had television cameras watching the brutality of those police officers in the South that were sicking their dogs and spraying fire hoses. If we didn't see that, I think we might not have been able to turn around the country's mood. We need the Don Lemons and we need the Georgia Forts and we need every journalist to be there on the front line because it can turn public opinion and it's embedded in the Constitution.

24:33Abbe Lowell:It's why the First Amendment has freedom of the press in it.

24:37Kara Swisher:Did his staying at least create a legal opening for the government? It was looking for anything. And months ago, I said, Don, be very careful because they're going to find a way to get to you. Like when he started, that was one of the first things I told him to get libel insurance, you know, a whole bunch of stuff when we were talking. And one of them was they will find any opening. Just be careful. You have it sealed up.

24:59Abbe Lowell:Well, I mean, that's the point. I mean, you all in the journalist world and you've been both on various sides of it. It takes a degree of courage in a bad situation to be there. I mean, I don't see that the job that journalists do in this regard is not in the same milieu as when we send journalists to cover wars abroad. They can get killed. Indeed, they do. It's a sacrifice that journalists understand. So being on the front line, whether it's in the Ukraine or on the streets of Minneapolis, is part of what is supposed to happen. And does it put him in harm's way? It puts him in harm's way. Did I think if you had asked me even, I don't know, a month ago, if somebody like Don Lemon is following a group of people that are going from place to place in Minneapolis and is filming them and interviewing them, would he ever be arrested for doing that?

25:48Abbe Lowell:Even though I think there's nothing off the table for this administration, that would have been a moment too far.

25:53Kara Swisher:Yeah, absolutely. And even if you and Lemon ultimately win here, how does the mere act of bringing in—

25:58Abbe Lowell:No, no, no, don't say if, say when.

26:00Kara Swisher:When, when, when. Okay, I'm sorry. Okay, when you and Lemon ultimately live here, or it could be dropped, that's the other way to go. How does the mere act of bringing a case like this against journalists erode press freedom? And I'll point to investigative journalist Ron Ferro, who also has a legal degree, had a really excellent thread on social media about how both Republicans and Democrats are responsible for eroding those protections of news gathering. He says it's part of a trend that started under President Obama and his administration's use of the Espionage Act to charge people who shared classified information.

26:30Kara Swisher:But Farrow also wrote, quote, when governments begin criminalizing the observation of dissent using technical oversteps as justification, it's often a warning sign.

26:39Abbe Lowell:No. Well, look, this administration, I don't know if this is a silver lining, but it's a characteristic of this administration. They often tell you right up front what they're doing. And it also helps us to defend. They have said, we don't care if we win our cases. We're going to name and shame. We're going to make it hard for people. They're going to have to hire lawyers. They're going to have to take time out of their careers. We're going to put them in a position where they're on their heels. That is itself unprecedented. I mean, you know, decade after decade of attorneys general have made it clear the point of what prosecutors' jobs are.

27:11Abbe Lowell:And it isn't that. So you start there. If that's their goal, which is I don't care if I win, I just want to create havoc, that erodes the protections. Whether you're a journalist, whether you're a defendant who has had political retribution against you because of what you've said or done, that erodes at the outset. Now, having said that, we're pushing back. I mean, you have judges that are throwing cases out, grand juries that are rejecting. It still means that people have had to find their lawyer and take time out of their career. And as to Don, I think it has woken up. There are two things that happened in Minnesota in the last few weeks that could very well be a tipping point.

27:49Abbe Lowell:One is the tragedies of U.S. federal agents killing people on the streets for peaceful protesting. And the second is these arrests of at least these two journalists, because it basically has shown the world how far this administration is willing to go. And I don't know, maybe it's maybe it's a, you know, Selma, Alabama moment or Pettis Bridge moment. I don't know that yet, but it could be.

28:13Kara Swisher:We'll be back in a minute. Thank you.

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31:31Kara Swisher:So you have a lot of other politically targeted clients that fall into four broad categories. Journalists doing their job, people fired for doing their job, people whose security clearances were revoked so they can't do their job, and people against whom Trump has a personal vendetta. Often, sometimes that reaches across all of them. You're representing these former FBI agents you referenced and DOJ prosecutors who were fired, and Trump is trying to fire Federal Reserve Governor Lisa Cook. Her case is currently for the Supreme Court. The justices seem likely to let Cook keep her job while her case keeps playing out.

32:03Kara Swisher:But other cases involving members of independent agencies, they seem inclined to let the president do what he wants. Talk a little bit about the Cook case.

32:11Abbe Lowell:I'll talk about the Cook case in the context that you just said it. So for years, there has been this debate in the law about how far the power of Article 2, the executive branch's article is. If it says the president or the executive branch shall take care that the law be fulfilled, how far does that go? That was called the unified executive theory of law. And it's been debated for literally, you know, I'm sure two and a half decades for sure. No administration has tried to press it like everything else this administration does beyond its logic or its proper rationale. So they started eroding at various agencies.

32:47Abbe Lowell:And when they fire people, sometimes the letters that go out say something like, pursuant to the president's power under Article 2, you are hereby fired. So they tried that with the Federal Trade Commission. They tried it with immigration judges. They've tried it with just the high-level people of the FBI who we're representing. That is their theory. It is true that we're in an era where this Supreme Court, having been chosen from those people who believe in this executive power is predisposed to say the president should have more power than past Supreme Courts have said. That is the baseline.

33:24Abbe Lowell:That's the starting point. What makes Governor Cook's case different is that the same Supreme Court, even as recently as the argument that occurred in that FTC case some weeks ago, has always said that the Federal Reserve Board is different. It comes from the time that it was its first national bank of the United States. It comes from that it's not an executive agency that does what the SEC does. It comes from its special role in America finances. And so that has been in the language of the court. And we've used that language to show the court that what the president did, which was, I am firing her because I want to.

34:01Abbe Lowell:Now, I have to explain this, and I think I can do it in just three sentences. I just pointed out Article 2 power. The president did not use this Article 2 power to pretend to fire Lisa Cook. He concedes that he has to fire her under the phrase, I am doing it for cause, because that's what this statute says. However, he has said, like Humpty Dumpty in Alice in Wonderland, that for cause means whatever I say it means whenever I say what it means. And so for cause for him was having one of his stooges, one of his lieutenants, Bill Pulte of a federal housing agency, create a baseless criminal referral to the DOJ saying that Dr.

34:44Abbe Lowell:Cook had somehow misrepresented on two different mortgages, which was her primary residence. And using that alone, which was conduct before she was a governor, that's the ground. He says that's, quote, for cause, end quote. So the court is going to struggle with how much power for cause gives the president, we're pretty confident that they will say that whatever for cause means, it doesn't mean that. That's what singular is different about her case. However, in the same period we expect, the court will decide the FTC slaughter case. This is Rebecca Slaughter for people. I'm sorry, yes. And we'll do away with this precedent that was called Humphrey's executor, which has been on the books for 100 years, that basically limits the president's power.

35:31Abbe Lowell:We all think that have been following the court. That case is done. That will be in presidential power, the equivalent of Roe versus Wade.

35:39Kara Swisher:Meaning he'll be able to fire who he wants.

35:41Abbe Lowell:In most of those agencies.

35:43Kara Swisher:In most of those agencies, right. Correct. So while we're on the subject of the Supreme Court, every episode we get a question from an outside expert. Here's yours. Hi there, this is Jody Cantor from the New York Times. I'm an investigative reporter. My job is to illuminate the Supreme Court. And because of that, I would like to ask Abby Lowell about judges. And I'd like to take advantage of your long experience. An amazing thing about your career is that you've been practicing for a long time. How have judges changed generationally? Do they do their jobs, in your observation, exactly the way they did 20, 30, 40 years ago?

36:22Kara Swisher:You've got some very sensitive cases connected to the Trump administration right now. What are your reasons for either confidence or a lack of confidence in how the judges are going to be dealing with those cases? Thank you.

36:39Abbe Lowell:Okay. So, Jodi, first I'm going to go past your reference to how long I've been practicing. Age.

36:44Kara Swisher:I know. She called us all Abby.

36:46Abbe Lowell:I know. Really? She just totally did. Will you talk to her offline about that? I will. All right. Good. Secondly, to answer your question, this is a way I've tried to describe what I've seen over my years. There has, for the longest time, been some political and philosophical litmus tests to appoint Supreme Court justices. And you can trace that back for probably 30 years, maybe even longer for sure. And so we were used to that. And we were also used to the Senate playing a role of making sure that at the edges that didn't go too far. Everybody knows that Robert Bork didn't get the votes necessary when the Senate thought that was a little bit further than the court should ever go, and there were opposite such things.

37:27Abbe Lowell:What didn't happen until the recent modern era was that litmus test, that political and philosophical litmus test, didn't go to the lowest courts. We didn't see that phenomenon on who's going to be at the trial court level. We used to have judges who had trial court experience to be trial court judges. Now that litmus test is what the political parties do at every level. So that's one phenomenon, Jody, that's different about the judges. Also, because judges have stayed in the area of public servant salaries, the people who populate the judges' positions are often from the government to start with, which also means that they're often from prosecutor's offices.

38:07Abbe Lowell:You don't have a lot of people that are working at big law firms at hundreds of thousands of dollars a year, giving up that to be in a lifetime appointment to be a judge. So you have that phenomenon. I mean, what do first-year associates make on Wall Street? $300 ,000? I mean, that's nuts. So you have that phenomenon going through. So between the litmus test, the populating with judges, with people of your philosophy, the disparity in where we're getting judges from, the benches are turning a little bit more conservative and sometimes way more conservative. That's what I've observed over the years.

38:40Abbe Lowell:Having said that, since Donald Trump got into office, there's hundreds of lawsuits that have been filed against him. They thought their plan was to, what they call it, flood the zone. Lawyers have flooded the zone. And I think there have been over 150, maybe as many as 200, injunctions that have been issued at the trial level. Now, of course, some are getting reversed on appeal and some of them will get to the Supreme Court. But not all of them will get to the Supreme Court. So to be succinct about it, Jody, first, we have the litmus test on all levels of judges. Second, we have the disparity from where judges come from, which will make them more conservative by bent.

39:20Abbe Lowell:And third, we have an administration that's willing to press every legal issue in terms of the unitary executive to its father's extent. And that would get you 2026.

39:29Kara Swisher:But they are pushing back. A lot of judges are pushing back, even if they're conservative, correct? You've seen that trend, which I think is a surprise to the Trump people.

39:37Abbe Lowell:Well, I mean, we've had some amazing opinions that are being issued by the most conservative judges on some of the courts of appeals that are basically saying we're not allowing the president to do what it is he wants to do. I don't know that I think that there is a test that says that all the favorable opinions are coming from democratically appointed judges and all the unfavorable ones are coming from Republicans. I don't think that's the case, but I think it's a good sign that some of the most vociferous of the opinions reigning him have come from people that were appointed, by the way, by even him in his first term.

40:13Kara Swisher:Is there a way to change any of these things you're talking about?

40:17Abbe Lowell:This is what I would do. First, I would have all judges from the Supreme Court down to the district court level not be lifetime appointments. I think that's one of the things that happens is all these presidents appoint 40-year-olds to be on the Supreme Court for 30 years. I mean, I would have, you know, 10-year terms or 12 perhaps tops. Second of all, on the district court and the court of appeals, I would do the same. Next, I know that this is maybe different because every public servant should be paid a better wage. But if you want better judges and you want the best of law to go to those, you're going to have to figure out a compensation system that doesn't put them at such a disadvantage to everybody else.

40:57Abbe Lowell:That's the second reason. Pay them. And third, just like in the law firms where we started talking about this, people have to remember why people should be lawyers. People have to remember that this wasn't supposed to be a business at all times. It's supposed to be part of the cause that represents and protects the rule of law. So those would be three things that would make a difference. One of the things that's good about what's going on now is that I think applications to law schools are up. And I'm hoping that that's the case because people are saying, wait, this is a moment where lawyers can do their job.

41:26Kara Swisher:So let's connect your clients, Mark Zaid and Miles Taylor, two others. They had their security clearances revoked, which people who don't live in Washington, that's a big deal. These cases tend to fly under the radar, given everything else the Trump administration is doing. Talk about why they're worth paying attention to. This is sort of oxygen for many people like them.

41:46Abbe Lowell:All right. So to operate in Washington when you're a whistleblower lawyer like Mark Zaid, when you're somebody who operates outside as a government contractor, or when you were in government like Miles Taylor was, you need, as I have to have, a security clearance. I have to have one to represent people like this. And security clearances are uniquely vested in the executive branch to decide who gets it on criteria for which they get a lot of discretion. However, when the president makes clear that I'm revoking your clearance because I don't like that you sued me, or I am invoking it because of something called the national interest and not because you're a security threat, or does it because he said, I don't like what you wrote about me, then you provide a window to challenge that.

42:29Abbe Lowell:And so he did a remarkable series of things among all the remarkable things. First of all, back in the spring, you remember, he revoked the security clearance of lawyers in entire law firms.

42:38Kara Swisher:And tech companies. They did that to Chris Krebs' company.

42:41Abbe Lowell:Right. And they did it to Miles, who was his own. So in terms of that, remember that the district court judges who heard that prevented it, issued an injunction to restore or to prevent the suspension of those large law firms. In the case of my friend and client, Mark Zaid, who's an individual, he not only had his security clearance suspended, it was actually revoked. And remember, Mark's offense was that he represented one of the people that was involved in coming forward as a whistleblower that caused the impeachment of Trump over the Ukraine phone call. And so we also challenged that in court.

43:18Abbe Lowell:The judge enjoined that from happening. And on all these cases, the government has now taken appeal to the next level of court.

43:25Kara Swisher:So that's where we sit, right?

43:27Abbe Lowell:That's where we sit on all of them.

43:28Kara Swisher:Where do you expect it to end?

43:30Abbe Lowell:At the Supreme Court. At the Supreme Court. I mean, someplace, one of these cases will go to the Supreme Court.

43:35Kara Swisher:So you're also representing, I said, people who Trump wanted to target. We've talked about New York Attorney General Letitia James. As you mentioned earlier, the administration's repeatedly gone after James, so far has not succeeded. What extent those failures mask the long-term threats? Because the administration doesn't feel like it's going to stop. And federal prosecutors have reportedly launched a new investigation into James and her hairdresser.

43:59Abbe Lowell:I think the answer to that is similar to your question to me about its impact on the First Amendment and on free journalists. So if you don't care if you win and if you keep investigating somebody over and over again, today it's about the mortgage, tomorrow it's about your hairdresser, after that it could be about your parking ticket. then it's wearing. Luckily, though, there's the ability of somebody who's as dedicated and courageous as Letitia James not to be coward, not to be fearful, but to keep fighting back. But does it have an impact? Of course it has an impact. It has an impact when the president of the United States on more than three, four dozen occasions can say, I want to go after Letitia James.

44:43Abbe Lowell:Now, the motion that never got heard in our case because we won on an earlier motion was the motion in which we put forward the concept of what's called prosecutorial vindictiveness. And if there is never a better example than the president demanding that she get charged, that's a great example. So does it have an impact? Does it erode? It does. If there's a silver lining, and it is there, it's just a thin silver lining to what's been happening is that we are able to show the motives of this administration. And on many, if not a majority of occasions, we are winning.

45:19Kara Swisher:What is the common thread in all of these cases? There's a broader strategy, presumably, beyond catering to his whims. Apparently, if he says it three times, they have to do it. Whatever. He'll be gone at some point. But it may be just catering to the king. I don't know.

45:34Abbe Lowell:I don't know. No, no, no. Unfortunately, I don't think these are ad hoc things. I think there is. No. I think this group of people who were out of power for the four years of the Biden administration and hoped that Donald Trump would return, who authored Project 2025 and did other things, knew that if they got back in power, this moment it occurred. And it is deliberate. It is. What have they done? They have basically eradicated the Republican Party. It's the Trump Party. There's nobody on the Republican side in the United States Congress with very rare example that does their job. They have politicized the courts and have basically detracted Americans' confidence in the court system.

46:14Abbe Lowell:They have attacked the lawyers. They have attacked the journalists. There is a thread. The thread looks like pre-World War II Italy. The thread looks like other parts of the country. I could say it this way. Let's say it was four months ago, maybe even a better year ago. And I said, okay, name the city and the country that. basically took lawyers out of the game by taking away their security clearances and made them cower and decide not to take cases. That they basically told the press that if you ever report against me, we're going to put you out of business and I'm going to sue you for defamation.

46:50Abbe Lowell:So they stopped doing it. If I said to you that they were going to shoot peaceful protesters in the streets, would you say the U.S. or would you say Russia, Iran or other places? This is not random. Everybody ought to know that there are people who believe the time has come to take this power back from the people, from the institutions. To what end? I don't know. I can't quite figure out why the Stephen Millers and the Donald Trumps and the others who enable him think that when they're gone, they're going to leave a legacy that's going to survive. But they don't seem to care. And for the next two years, that's what we're dealing with.

47:27Kara Swisher:I think keeping themselves in power is the end of itself. And hatefulness. Stephen Miller seems a really complex psychological figure in so many ways.

47:36Abbe Lowell:It is a complicated mess. So in order to decipher this, you need historians, you need lawyers, and you need a bunch of psychologists to figure it out.

47:46Kara Swisher:We'll be back in a minute.

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50:36Kara Swisher:So let's end by looking at some of the big legal challenges in the next few months or years. First, there's Trump's decision to sue the IRS for$10 billion over the leaking of his tax records in 2020. Now, Trump likely does have a legitimate claim against the IRS, but the sum is absurd and it's a massive conflict of interest. Before he won re-election, he also sued the DOJ for$230 million and that case is ongoing. What's to stop the government from settling with him? He is the government. How does that work?

51:05Abbe Lowell:Yeah, this is unprecedented for even somebody like me or Jody or somebody to opine, right? Yeah. So this is great. This would be like in our average lives if I was the person who slipped on my own sidewalk and I was going to sue myself for my negligence and I would make a deal with my left hand taking money out of my pocket and giving it to my right hand from my other pocket. That's exactly right. So, I mean, so I get the framework. This is what could stop it. First of all, there is going to be people, entities who challenge the conflict, who point to the law that says that you can't be both the plaintiff and, in effect, the defendant in the same case.

51:48Abbe Lowell:And secondly, what can I tell you? Hopefully there are judges out there who realize just how awful this would be if we allow him to sue himself for$10 billion and then settle the case for$5 billion or sue for$230 billion and command Pam Bondi, okay, I'll drop the case, pay me$100 million. It's just beyond your comprehension, right?

52:07Kara Swisher:Yeah, yeah. Well, we'll see. Another major story is the FBI's seizure of 2020 voting records in Fulton County, Georgia, which includes most of Atlanta. Days before the raid, Trump said, quote, people will soon be prosecuted for what they did. The president's claims of voter fraud in Georgia that year have been repeatedly disproven. But with the midterms later in the year. A lot of people are very worried. What kind of ripple effects could this rate have going forward? And what does it signal to local election officials on the ground besides be scared? Presumably, that's the goal here.

52:36Abbe Lowell:Well, you earlier in our conversation pointed out their desire to hold on to power. OK, what I think I go around and people are equally fearful of, other than being shot in the streets for protesting, is that somehow people think Trump is going to steal the 2026 election or the 2028 election, or he's going to make sure that it doesn't happen at all. Right.

52:58Kara Swisher:Well, every accusation is a confession with these people. So not an unusual thing to think. But go ahead.

53:03Abbe Lowell:And you start seeing some of the things, right? Yesterday or the day before, he says, I want to nationalize elections. Yeah. I mean, he just makes up a phrase that even people in his own party say, no, no, no, you can't do that. Yeah.

53:14Kara Swisher:The Constitution, for people who don't know, gives state the power to carry out elections.

53:17Abbe Lowell:There were people who said you can't knock down half of the White House either, which he seemed to be able to do. So you can't put it past him to find a way to nationalize the elections or put national guards around people's voting booths so that people are intimidated to come and vote. People should be rightfully concerned about that. And using the power of the government to go after a debunked theory of fraud in the 2020 election. He's not even doing it about something that happened yesterday. today. He's saying he's doing it to continue his hoax that the election of 2020 was stolen from him and sends the FBI and others to a voting center in Fulton County to grab the ballots.

53:58Abbe Lowell:That is an omen about what could happen in other places that he has been yelling about. One of the reasons he said on TV, I think, he wants to nationalize. He said, there's corruption in Philadelphia, Philadelphia in Atlanta. I forgot the names of the cities. So if I were the election officials in those places, I would basically start locking up your ballots or at least putting lawyers in the way from when they try.

54:22Kara Swisher:Now, how could he use the legal system and power of the Justice Department to try to take over elections? Because it's very explicit in the Constitution.

54:29Abbe Lowell:I think he says it. And now his minions are going back to the room to figure out, how could we do that if we wanted to? So I don't know the answer. And by the way, lets you and I make a deal that if you're a smart person and I try to be a smart person, let's not come up with a way he could do it so that he could use that. That's correct. Good point.

54:47Kara Swisher:Fair point.

54:47Abbe Lowell:Let's let him figure it out the wrong way so that it could be successfully attacked when he tries. OK.

54:52Kara Swisher:And you said election voters should lock out ballots. Can they do that even in the face of a federal war?

54:57Abbe Lowell:Well, yeah, I mean, I think the thing is, is that you bring what you can, right? If they seize things, you can make a motion to unseize things. If they subpoena things, you can move to quash the subpoena. If they come in without a subpoena or without a search warrant, election officials all over the country need to know their rights. You don't have to talk to any of these folks and you don't have to give them anything without a court order. And what does that mean? Just like I'm trying to figure out why somebody would be indicted for being a journalist in Minneapolis, magistrates and judges are a frontline protection for the overreach of the executive branch.

55:32Abbe Lowell:They have to rise to the occasion and not let it happen.

55:34Kara Swisher:There's a very good argument of get off my lawn. Get off my lawn. Get off my lawn now. So in an interview back in August, you said one of the things you're doing at your firm is not waiting for the next bad thing to happen, but knowing that it's coming. I think about this a lot. I'm like, they're so good at getting to set the agenda with reaction rather than action. So how do you anticipate what the Trump administration is going to do next? And what are the big fights you are gearing up for right now?

56:01Abbe Lowell:Well, without tipping our hand about some of the things that are being worked on down the hallway from me right now, we have spent many weeks talking about offensive litigation instead of being completely defensive. I always tell people that when people say, like, when you get down, what would make you down? I say, well, sometimes I feel like I'm at the carnival game of whack-a-mole. You know, we hit one of them down and another one comes up. The good news is that maybe there's one fewer mole than there was the day before. Having said that, so we know his game plan. We now know that he's seeking to intimidate people in the elections world.

56:35Abbe Lowell:So there will be possibility of bringing suits that will define by declaratory judgment what the rights of these state and local officials are that can't be nationalized. There are, we know, his aggrandizement for things and property, whether it be the new arch over the Memorial Bridge, whether it be knocking down the East Wing. He's talked about wanting to take over the D.C. public health courses. We now know where he's going, and there can be those suits that are brought offensively to tell him that he's outside the bounds of whatever statute or no statute he believes he is going to do. When his people take actions like shooting and killing people on the streets, sure, they've got a certain amount of immunity, and I guess this is reactive, but nobody is using the Federal Tort Claims Act as much as it will be being used now in the future to address those.

57:29Abbe Lowell:So there are offenses that can be done. Again, the system was created to give a presumption of regularity to the government doing its job. And in a sane and rational moment, that immunity makes sense. The problem with the system is that it envisioned that we would live in sane and rational moments. So we're now trying to figure out the solution.

57:50Kara Swisher:Well, a lot of Trump people, they're asking for immunity right now or soon, like more immunity from him directly. And I was like, why? Did you do anything? And they're like, no. But I was like, well, you're going to jail if you did, I'm guessing, in the future. But if you didn't, possibly not. So how do you get to them if they get that immunity, the ones that actually did wrong things?

58:12Abbe Lowell:Okay, so what the president can do, as he has done over and over in this administration, which is a story unto itself, is the buying pardons, the buying commutations. He can immunize under federal statutes lots of things. What he can't do is immunize people from civil liability, except for narrow circumstances of what the statutes allow. And what has been one of the best parts of the last year, if you're looking for, again, a silver lining, the rise of state attorneys general to meet the moment, to use the powers of state law or local prosecutors who are also banning together because the president can't immunize his actors from those two forms of liability.

58:52Abbe Lowell:So that's also a place where people can be a little hopeful.

58:55Kara Swisher:In the future, going in the future.

58:57Abbe Lowell:In the future.

58:58Kara Swisher:So Kristi Noem better not go to Minnesota anytime after 2020.

59:02Abbe Lowell:Or a couple of the other places where we have these state prosecutors say, not, you know, not in my backyard.

59:08Kara Swisher:Yeah. Okay. Abby, this is so fascinating, so substantive. I really appreciate it. And the work you're doing is really, I mean, to me, God's work.

59:16Abbe Lowell:Well, thank you for having me. And I want to say before we end that I'm not alone. There are so many of us out there now. Yeah, we may not be in the biggest firms that you've heard the names of over the last decades, but there are lots of people that are now flooding the zone to push back against the abuse of power. Yeah. It gives me courage every day.

59:33Kara Swisher:Same thing in journalism. Every day, more and more independent journalists. Good for you guys. Let me tell you, everybody, the water's fine. So jump in.

59:46Kara Swisher:Today's show was produced by Christian Castro-Rosell, Michelle Alloy, Megan Burney, and Caitlin Lynch. Nishat Kerwa is Vox Media's executive producer of podcasts. Special thanks to Eamon Whalen and Madeline LaPlante-Duby. Our engineers are Fernando Arruda and Rick Kwan, and our theme music is by Trachademics. If you're already following this show, you're standing up to Donald Trump. If not, watch out for Pam Bondi and her goon squad. Go wherever you listen to podcasts, search for On with Kara Swisher and hit follow. Thanks for listening to On with Kara Swisher from Podium Media, New York Magazine, the Vox Media Podcast Network and us.

1:00:20Kara Swisher:We'll be back on Thursday with more.

1:00:27Kara Swisher:This is advertiser content brought to you by Stonyfield Organic. Our cows, them going out to pasture, they love it. They're so excited to go out. Every day, they wait right at the door. In fact, we milk them and we just open up the laneway and let them just go right out to pasture. I'm Rhonda Miller Goodrich, and I'm a dairy farmer in Cabot, Vermont. Our farm is Molly Brook Farm. We're an organic dairy farm, and we are a supplier to Stonyfield. Molly Brook Farm has been in my husband's family since 1835. We started our organic transition in 2015. We had 53 acres of corn ground, and of course we had to use herbicides and pesticides, and the soil was dead, really, for all intents and purposes.

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1:01:59Abbe Lowell:Support for this show comes from Odoo. Running a business is hard enough, so why make it harder with a dozen different apps that don't talk to each other? Introducing Odoo. It's the only business software you'll ever need. It's an all-in-one, fully integrated platform that makes your work easier. CRM, accounting, inventory, e-commerce, and more. And the best part? Odoo replaces multiple expensive platforms for a fraction of the cost. That's why over thousands of businesses have made the switch. So why not you? Try Odoo for free at odoo.com. That's O-D-O-O dot com.

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