The Courts vs. Trump—Plus, “Gotham at War”

Jon Wiener: From The Nation magazine, this is Start Making Sense. I’m Jon Wiener. Later in the hour: 20 minutes without Trump.  There’s a wonderful new history of New York City from the Depression thru WWII, out now – It’s called “Gotham at War,” written by Mike Wallace, he won the Pulitzer Prize in History for the first volume in his “Gotham” series. To talk about ‘Gotham at War,’ we’ll turn to Brenda Wineapple. But first: the Supreme Court’s new term began this week – David Cole will comment on the illegal things Trump is doing that the courts are considering – and that the courts are NOT considering. That’s coming up – in a minute.
[BREAK]
The Supreme Court began its new term this week, and the constitutional issues posed by Trump’s orders and actions have never been greater. For comment, we turn to David Cole. He recently stepped down as National Legal Director of the ACLU to return to teaching at Georgetown Law School. He writes for the New York Times, the Washington Post, and the New York Review, and he’s The Nation’s Legal Affairs correspondent. David, welcome back.

David Cole: Nice to be here.

JW: As the court met this week, Trump was sending 200 National Guard troops from Texas to Chicago after a federal judge declined to block them. As we speak on Tuesday, we are told they have not yet deployed around the city. Illinois Governor Pritzker, and Chicago Mayor Brandon Johnson, are trying to block the deployment and their lawsuit will be heard on Thursday. We’re told by the New York Times that as of Tuesday afternoon, there was no visible military presence outside the Federal Courthouse in downtown Chicago and that it’s just normal business there.
Meanwhile, in Oregon, a judge has ruled that Trump has temporarily blocked from deploying federalized troops from any state, including Texas to Portland. Trump had invoked the law that allows presidents to call in the National Guard of any state to suppress a rebellion. He claimed Portland was ‘war ravaged by Antifa and other domestic terrorists.’ He said ‘professional agitators and crazy people’ were ‘trying to burn down federal buildings.’
The state of Oregon and the city of Portland sued and explained what’s obvious to anyone who’s there: there is no rebellion or threat to public safety in Portland. Local law enforcement has been handling the sporadic vandalism there. The lawsuit argued that Trump violated the 10th Amendment that gives states broad powers to handle their own affairs. The district court judge here, Karin Immergut, is a Trump appointee. She concluded her ruling that the president’s claim of emergency was ‘simply untethered to the facts.’ I wonder what your comment is on all this.

DC: I think that statement, which was accurate about Portland, could be applied to so much of what the Trump administration has done since taking office. He has invoked and exercised emergency authorities in the absence of any emergency. The Alien Enemies Act, the killing of people allegedly smuggling drugs on the high seas, the tariffs, the targeting of the ICC. All of these are the exercise of emergency powers, but there is no emergency. The only emergency that we are experiencing is the one of Trump’s own making, and it’s refreshing to see a court call him on that bogus assertion.

JW: As the Supreme Court starts its new term, some of our friends say it’s hopeless. The Supreme Court will okay everything he does.  And of course they have ruled in his favor on some shocking cases, starting of course with immunity from criminal prosecution
But lower courts at this point, I looked up these numbers–lower courts at this point have blocked about 130 of Trump’s actions with temporary restraining orders and preliminary injunctions.  And the Supreme Court has agreed to hear arguments on only a handful of them. As we speak on Tuesday, none of Trump’s executive orders have been definitively ruled legal by the Supreme Court in a full signed opinion. This is according to the website, Just Security, which is following 432 cases challenging Trump.
In this term, the Supreme Court has agreed to hear only three of the 130 rulings against him: the tariffs, his efforts to take control of independent agencies. and his attempt to fire a member of the Federal Reserve Board. What’s your assessment of all of this?

DC: So I think, first, the lower federal courts are doing the job they’re paid to do, which is to uphold the rule of law, to stand for constitutional protections in the face of political actors who are running rough shot over those rights. Second, the Supreme Court has ruled for the Trump administration on the emergency docket a surprising number of times, but the Trump administration has been selective about what it has asked the Supreme Court to review. And so yeah, they’ve gone up about 20 some times. The court in most of those cases has ruled for the President, not in a number of significant ones, but in most of them. But if there’s 130 injunctions down there blocking him, and he’s only gone up 20 times, that suggests that actually the courts are doing an important job and he’s not confident about prevailing in the Supreme Court on many of those cases.

JW: Let’s look at Trump’s losses in federal courts. Just in the last week we’ve had, I think it’s at least six. Let me list them briefly and then ask you which you consider the most significant. A federal court appointed by Trump on Saturday blocked Trump’s deployment to the National Guard in Portland. When he tried to get around that by sending National Guardsmen from California, the judge forbade the deployment of any federalized National Guard from any state to Oregon fo14 days.
A Federal judge ruled on Tuesday that Trump violated the First Amendment free speech rights of international students and professors who had been arrested, detained, and deported. These are non-citizens, students and faculty members, who had engaged in pro-Palestinian activity.  In this case, which was brought by the AAUP and its allies, there was a nine day trial in July that included the testimony of 15 witnesses.
Third example: a federal appeals court in Boston ruled on Friday that the Trump administration can’t withhold citizenship from children born to people in the country temporarily or illegally. This is yet another court that has rejected the president’s order on abolishing birthright citizenship. There’s now two appellate courts and a total of three district courts which have declared that executive order unconstitutional.
A federal court in Tennessee ruled that trump’s many legal moves to incarcerate and deport Kilmar Abrego Garcia constituted ‘vindictive prosecution,’ that Trump had sought to punish Kilmar for having filed a lawsuit successfully challenging his initial unlawful deportation to El Salvador. The New York Times called this ruling ‘an astonishing rebuke of the Trump administration’.
And on Friday, a federal court ruled that Trump’s firing of three members of the board overseeing Puerto Rico’s finances was illegal and restored them to their jobs.
And then two weeks ago, we should mention in Rhode Island, a federal court ruled it was unconstitutional and illegal for Trump to ban the use of federal funds to, in his words, ‘promote gender ideology.’ This was a case concerning a policy Trump had ordered on the National Endowment of the Arts in awarding grants. I think you argued that case.
And of course there’s one more: the Supreme Court itself let stand an appeals court ruling that Trump can’t fire Federal Reserve Board member Lisa Cook, at least not at this point in the litigation.
Which of these many defeats Trump has suffered in the last week or two do you consider the most significant?

DC: I think they’re all actually incredibly important. The First Amendment cases are especially important because Trump has targeted free speech, like really no president since the McCarthy era. And it is absolutely critical that courts stand up for free speech rights. And when the court in Boston held that non-citizens among us have the same First Amendment rights as citizens, and you can’t deport them for engaging in speech that’s protected for citizens, that was an absolutely critical decision.
The decision in the NEA case that I didn’t argue, I’m co-counsel with it, but my co-counsel from the ACLU argued, is also very important.  Basically says even when the government is just distributing funds, it can’t seek to suppress viewpoints that it finds politically incorrect, which is what they were doing in saying that no NEA grantee could promote gender ideology, which they interpret, the Trump administration interprets, to include any recognition that trans people actually exist.
The decision on Lisa Cook critically important because if the Fed is going to function as a stabilizing force in our economy, it has to be insulated from everyday political pressures. I think everybody agrees about that with the exception of Donald Trump.  And the fact that the Supreme Court was not willing to allow him to remove Lisa Cook is a good sign that the court is going to protect at least the independence of the Federal Reserve.
But I think, again, the big picture here is courts are doing their job, courts are standing up to the president, calling out his claims when they are either lawless or unfounded, and there will be many appeals to come. And at the end of the day, many of these cases will go to the Supreme Court and we will have to judge the Supreme Court on how it does. We don’t yet know because, as you said, it has only addressed emergency matters and it has not addressed on the merits any of his actual orders.
This term I think it will probably decide birthright citizenship. It will decide the tariffs. 
It might decide the Alien Enemies Act, the use of the Alien Enemies Act to try to deport Venezuelans. And those are all major, major cases.

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JW: And there’s one other major, major case which right now is not being litigated anywhere. The intentional murder of civilians on orders from Donald Trump who recently announced that the United States is in a armed conflict with drug cartels from Venezuela that are distributing narcotics. This announcement seeks to give legal cover for taking the lethal action against traffickers and follows multiple strikes against what the administration has claimed are Venezuelan boats, which are in international waters. First of all, how many people did the United States kill in these attacks? And the bigger question, what is the legality of Trump’s orders?

DC: So I think the count is now 20. If the last boat had three people on it, it was 17 with the first three boats. These are people who, we don’t even know their names. We don’t know what was on the boats. We don’t know what they were actually engaged in — because the United States just blew them out of the water, sank all the evidence, never gave them a trial, never got a warrant to search the boat, never sought to arrest them — even though Marco Rubio stated that they could have captured these people. Interdiction of people suspected of drug smuggling on the high seas is something the Coast Guard does on a regular basis.  But Marco Rubio said ‘it would send a stronger message’ if we just kill them. This is to me, the single most outrageous thing that the Trump administration has done.
I mean, pardoning the January 6th rioters, that’s outrageous.  Prosecuting Jim Comey, vindictively–that is completely outrageous.  Targeting universities because they don’t agree with the political views of the President — That’s outrageous.
But murder is different, and what you have here is premeditated targeted killing of people who are civilians. They are not in an army. They have not attacked us. There is absolutely no justification under war powers to be targeting them and killing them. If they’re smuggling drugs, they can be tried. If you convict them, they can be detained. They can’t be killed. Even if they’re tried and convicted, there’s no death penalty for drug smuggling. And yet you have the president and the military now carrying out death penalty after death penalty with no trial, no charge, no evidence, and no war. It is completely outrageous.

JW: Trump claims as his justification, his designation that the Venezuelan gang Tren de Aragua is a ‘foreign terrorist organization.’ What does that designation actually authorize?

DC: It authorizes only economic sanctions against that organization. That is the government, when it designates a terrorist organization, it can then prohibit Americans from doing business with that entity, from providing any technical or monetary assistance to that entity. It does not authorize executions, and that’s what he is doing here.
The war on drugs is a metaphor, but President Trump is not treating it as a metaphor. He is essentially saying, no, it’s a real war. We should treat it as a real war. And ‘I get to kill whoever I want to kill in situations where of course I could capture them, but it sends a stronger message if I just kill them.’ It really is to me, in a league of its own, in terms of international crimes, war crimes, crimes against humanity. To me, what’s disturbing is it’s gotten some concern, but not a lot of concern. You have the President of the United States killing now about 20 people, and very little concern expressed by the public.

JW: Does anyone have standing to challenge Trump on this?

DC: I suppose the survivors of the people who were killed on the boats might be able to try to bring a challenge. There are lots of obstacles to suing the President in these kinds of circumstances, but I hope someone will because it is absolutely lawless. And just because he has the power to kill shouldn’t mean that he can kill without any accountability.

JW: And what about congress here?

DC: So he’s apparently notified Congress that he has declared this fictitious armed conflict with this group trend arawa that no one ever heard of until he decided he wanted to deport them and decided he wanted to claim that they were somehow attacking us militarily. He’s notified Congress. Congress under the war powers resolution could disapprove of his actions by a joint resolution, but that joint resolution would have to be signed by the president or overridden with a veto. So you’d not only have to have a majority in both houses, which are controlled by Republicans, but you’d have to have two thirds majority in both houses because of course, he would veto any such resolution. So Congress doesn’t have much authority.
I think they could deny him any funds. They could say you cannot spend money killing people without justification outside of an actual war. But the politics of it are not good. I mean, he knows that he’s put anybody who’s defending these people on the side of defending drug smugglers and not many politicians want to be on the side of defending foreign drug smugglers. So he’s got good politics, very bad law, and essentially, as I wrote in a piece of the New York Review of Books, ‘he’s getting away with murder.’

JW: I understand from your piece in the New York Review that there’s a draft bill in Congress now that would expressly authorize Trump to execute ‘narco-terrorists.’

DC: Yeah. Well, this is the brainchild of some trumpites in the house who has come up with the brilliant idea of essentially giving the President a blank check to kill whoever he claims is a narco terrorist. We’ve been down this road before. The authorization to use military force after 9/11 at the time seemed like an appropriate response to an armed attack that killed 3000 civilians by an organization that had safe haven in Afghanistan. But it was then used by successive administrations to go after all sorts of people for targeted killings, but at least that was tied to an actual act of terrorism. This proposal is to say, give the president the authority to declare anyone he doesn’t like a narco terrorist and then execute them. That is not something you do in a democracy. I hope the proposal dies on the vine and that many Republicans would vote against it, giving the President that kind of power if it did come up for a vote. I’m not in favor of drug smuggling, don’t, don’t get me wrong, but I am definitely in favor of respecting the dignity of human life and not taking lives of civilians by calling them narco terrorists and shooting them out from the skies.

JW: David Cole — his most recent piece about Trump ordering the murder of Venezuelan civilians is titled ‘Getting Away With Murder.’ You can read it at nybooks.com. David, thanks for talking with us today.

DC: Thanks for talking.
[BREAK]

JW: There’s a wonderful new history of New York City from the Depression through World War II that’s out now. It’s called ‘Gotham at War,’ and it’s written by Mike Wallace, who won the Pulitzer Prize in history for the first volume in his ‘Gotham’ series. To talk about’ Gotham at War,’ we turn to Brenda Wineapple. She’s the author of many highly acclaimed books, most recently her book about the Scopes trial, which was a hundred years ago this past summer. That book is called ‘Keeping the Faith.’ It was a bestseller, named a Best Book of the Year by The New Yorker, and it’s out now in paperback. We talked about it here, with Adam Hochschild. Brenda Wineapple writes regularly for the New York Times book review and the New York Review, and she’s currently a visiting professor of biography and memoir at the City University Grad Center. Brenda, Wineapple, welcome to the program.

Brenda Wineapple: Pleasure to be here. Thank you.

JW: Where do you begin The story of New York City in World War II? Mike Wallace starts his story the day Hitler was sworn in as Chancellor of Germany — January 30th, 1933. What came next, of course, was just the beginning of the attacks on Jews in Germany, but refugees started leaving, and some Jews in New York thought they should do something. Let’s talk about that early boycott campaign.

BW: The boycott was not easily launched. Once it was launched, it was very successful actually. There were big department stores that were no longer importing German goods, but it was a drop in the bucket. One of the things I found fascinating and heartbreaking at the same time in this book and in this particular time, sort of early to mid thirties, is that there were huge numbers of people who knew what was going on in Germany, knew about the persecution of a great number of people and who really were determined to try to stop it. That was what the boycott really tried to do, and as I said, it was effective, but was only so much that you could do because, and this is, I think, Wallace’s next point, there are many industries that are, I wouldn’t say collaborating– that’s perhaps too strong–its such a powerful word these days; but in cahoots with German industrialists.

JW: Let’s say they were happy to do business with Hitler.

BW: There you go. Happy to do business with Hitler.

JW: And let’s name some names here.

BW: Well, you have IBM, you have GE, you have General Motors. It’s chilling actually, because there was a kind of willful ignorance that allowed these corporations to ignore what more and more people knew was happening.

JW: And even though people followed the news from Germany, anti-war feeling remained very strong in the United States through the thirties and into the 1940 and ’41.  Who was anti-war in New York City — and why?

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BW: In New York you have these buying isolationist groups. I think the most famous one today is America First and anything that’s associated either with the radio priest, so-called–Father Caughlin, who was broadcasting from Detroit, not New York, and at the same time Charles Lindbergh. But at the same time you had a group of pacifists and anti-war groups that are also against American intervention, and they’re very moral and dedicated. I’m not saying that they’re not. 

JW: World War I still loomed large in their thinking.

BW: It was like yesterday. So those were the people of sort of moral rectitude who are very nervous about getting involved in another war. And then you have the Communist party too, which is arguing that they didn’t want to get involved in a war of, I think the phrase was ‘rival imperialisms.’

JW: And there were Nazis in New York. There was the German American Bund. They brought thousands of people to Madison Square Garden in 1939–Swastika and American Flags. They denounced ‘Franklin D. Rosenfeld and his Jew deal.’

BW: Oh yeah. 

JW: This was a real force in New York City.

BW: Oh yeah, definitely. There’s a very large German and German-American contingent in New York City for sure. The Nazis don’t change, but certainly some of the more pacifist leaning groups do change.

JW: And one of the most important things here is what led them to change. September 1st, 1939, Hitler invades Poland. There’s still a lot of anti-war sentiment that’s probably a majority in New York and in the nation. The turning point, Mike Wallace says, didn’t come until September, 1940 when the Luftwaffe began bombing London almost every night. And New Yorkers and Americans could listen to Edward R Murrow on the radio reporting directly from London and hear the bombs exploding in the background. Finally, Wallace says, New York’s fighting liberals mobilized to prepare for war against Hitler.

BW: And then of course you have Pearl Harbor.

JW: The Mike Wallace book ‘Gotham at War’ has a lot of great stories then about the war effort. Let’s just want to mention a couple of these. I like the one about Rex Stout, famous for writing the Nero Wolf detective series. He plays a small but interesting part in New York at war.

BW: He certainly does, I mean very popular. And he gets involved in one of the organizations. The Fight for Freedom Committee, always writing for–basically it’s propaganda, but a point of view on the side of the angels working toward galvanizing American support for the war effort and against, particularly against Nazis and Nazi persecution. At the same time, he, he had some pretty nasty things to say about women, women in the workforce in the 1940s, which is no small thing because suddenly women are drawn into the workforce because so many men have been drafted or have signed up to go overseas. They were very young women, and one of the things that Wallace can do is cover the cultural as well as the political landscape. And in doing that, he talks about how these young women, often teenagers, in defiance of child labor laws, who are working, they have more discretionary income. And so when he talks about the superstar Frank Sinatra in New York in the 1940s, he’s also saying that to a large extent it was women who made his popularity possible.

JW: And how about Franz Boas, the anthropologist at Columbia University in 1936?  Time Magazine put him on the cover for ‘knocking the flimsy props from under Nazi ideas of race purity and race superiority.’

BW: A wonderful and fascinating man, Franz Boas, who influenced an enormous number of anthropologists out of Columbia University where he was started. He himself was an immigrant too. It was a lot in his book about immigration, and he was a decidedly outspoken voice against any idea of white or racial superiority. And he was very influential with Ruth Benedict, Margaret Mead.

JW: Of course, one of the most difficult topics for anybody who’s writing about New York City and World War II is what happened with the reports of mass killings of Jews in Eastern Europe, which started reaching New York City in June 1942.  Historians have been debating for decades the mix of willful ignorance, apathy, and outrage around the relative lack of news coverage of what we now call the Holocaust.  And the New York Times, of course, is a key element in this. What does Mike Wallace have to say about that? What do you have to say about that?

BW: It’s one of these episodes that is chilling, very difficult to read in the present, because it’s very hard to separate what we know from what you may or may not have known. The New York Times, family owned, Arthur Salzberger is aware, he’s made aware of what’s going on in Germany, but as in the case of people who were against the boycott, many of them felt that to publicize what is going on will just increase antisemitism in this country. It seems a disingenuous to say the least point of view today.
One of the things that’s admirable about the book is that the narrative itself is extremely fair-minded, but it never lacks a moral center. And so in just choosing what to write about and the information that was coming in through various groups, the Polish Bund Group for example, when you find out that in, say, for example, the New York Times has the information, but it’s not on the front page, it’s on page 10 or 20, I don’t remember, but you have to look for it. People who I hope read this book will find themselves in a kind of, as I did, a moral quandary, which doesn’t mean that you lack judgment and outrage, but you try to understand where people were coming from at the particular time, even as you are critical of it.

JW: What else is in this book that we haven’t talked about?

BW: Well, one of the things we haven’t talked about, and it’s a very large part of this book, is the way the arts are affected in New York and by New York during the war — because you have a publishing industry that is very attuned to the fact that suddenly there are soldiers who have what will be paperbacks in their backpacks so that they can be reading. At the same time, you have an influx of immigrants and artists coming from Western Europe primarily, not exclusively, and they land in New York, and suddenly they are meeting one another, influencing one another. And out of some of their conversations and dialogue, you have a whole movement that’s largely associated with New York, which is Abstract Expressionism. So you also have, we mentioned Harlem, but you have up in Harlem, you have a kind of excitement of, I guess the child of, or different kind of music: bebop. So all of those things seamlessly folded into this ‘Gotham at War,’ which is not just at war tragically in terms of what people are learning about the war and feeling helpless or angry about the war, but also because here they are forced into this place New York where people live side by side. And actually there’s a kind of exciting cross-fertilization out of which art comes.

JW: Where do you end the story of New York City in World War II? In popular culture, there’s the iconic photo in Times Square on VJ Day, the day Japan surrendered, the photo of the sailor kissing the woman in the white dress in the middle of Times Square with people celebrating all around them. That picture is not in Mike Wallace’s book, and he does have a picture of Times Square on VJ Day, but that’s not where he ends the story of New York City in World War II.

BW: It’s interesting, isn’t it? It’s touching actually, when you think of where we started and where the book started, and the book starts in 1933 with Hitler kind of consolidating his power, and where the book ends is in the creation of the United Nations. And I sort of have the chills when I say that because you can actually see the sort of larger point of view. It is not optimistic exactly, because Wallace is too smart, too savvy and moral and too knowledgeable a historian, it seems to me, to just say, oh, good, United Nations here. We have a new organization dedicated to the fellowship among people. Yeah, that’s true.
But he’s also very, he’s quick to point out that and does a very good job at pointing out that the United Nations was itself founded with a series of compromises. And one of the compromises was that as much as it was a kind of optimistic and progressive in the larger sense of the word organization, it had no enforcement capability. And a lot of what was, how it was established was by catering to a group of southern senators to get the United Nations or charter passed, who were devoted segregationists and certainly didn’t want an organization where they felt that their own racial politics would be called into question.
Part of the reason, too, that the book ends there is that, again, you see that we’re always making compromised coalitions for cooperation, that nothing is utopian. But it’s also interesting too, given that where is the United Nations? It’s located in New York, and again, it’s a combination: what allows it to be located in New York?  it’s big business, it’s politics, it’s a sense of a better world. It’s all of those kind of folded into this building, literally the building of the building.

JW: Brenda Wineapple–she wrote about Mike Wallace’s book, ‘Gotham at War,’ for the New York Review. Brenda, thanks for talking with us today.

BW: Thank you, Jon. My pleasure.

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