The following is a lightly edited transcript of the January 10 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
This week, we learned that Supreme Court Justice Samuel Alito spoke privately with Donald Trump to recommend a former law clerk for a job in Trump’s government. Jamie Raskin tore into this news, urging Alito to recuse himself from matters involving Trump. And as it happens, Trump just asked the high court to block a New York judge from issuing a sentencing for Trump’s hush money conviction. What Raskin got right is to really zero in on the corruption embedded in Trump’s relationship with the Supreme Court. After all, between this and another big piece of news—Judge Aileen Cannon ordering Special Counsel Jack Smith not to release his report on the evidence he’s collected against Trump—the courts are really facing a crisis with regard to the president-elect.
Today, we’re trying to make sense of all this with Politico’s Kyle Cheney, one of the best reporters out there on all these topics. Kyle, thanks for coming back on, man.
Kyle Cheney: Good to be with you, Greg. Always.
Sargent: Let’s start with Alito. He put out a statement confirming that one of his law clerks asked him to take a call from Trump, and he agreed, so they had the conversation. Of course, now Trump is asking the Supreme Court to block Judge Juan Merchan from sentencing him in the hush money case. This seems like pretty bad timing, doesn’t it, Kyle? What do you make the substance of all this?
Cheney: It does. Donald Trump is acutely aware of what his lawyers are arguing on his behalf as he attempts to block this sentencing, so it couldn’t have come as a surprise to him that in the same moment he’s having this phone call with Justice Alito, his lawyers are asking the Supreme Court to do this. It creates an appearance problem, and it just creates this … Again, at the moment where the court is dealing with its own legitimacy issues, to now have this front and center as they make this politically explosive decision can’t be good for the institution either.
Sargent: By the time people listen to this, the Supreme Court may have ruled on whether Juan Merchan can proceed with the sentencing, right?
Cheney: Yeah, the decision is imminent and the sentencing is scheduled for Friday. It’s not much time for them to deal with it. Again, I’d be surprised if they really step in and try to stop this thing, but we’ve been surprised by a lot of what the court’s done over the last few months.
Sargent: Well, whatever happens there—and again, by the time people listen to this, they may know—what Representative Jamie Raskin said actually holds. I’m going to read from what Raskin said about this: “The mere act of having a personal telephone conversation with the president-elect while he has active interests and matters currently pending before the court is plainly sufficient to trigger a situation in which the justice’s impartiality might reasonably be questioned.” Crucially, Raskin added that Alito just brushed this off, even though it’s a clear breach of judicial ethics, and Raskin noted that it’s especially problematic when paired with Alito’s “troubling past partisan ideological activity in favor of Trump.” Raskin is really calling into question the whole arrangement between the court and Trump here, isn’t he, Kyle?
Cheney: He is. He made a reference to Alito and his wife having the flag that was associated with January 6 in their house. At the same time, he’s now known … He’s weighing matters related to the attack on the Capitol. Alito is smart enough to know this creates an appearance problem to take a call from President Trump. So whether there’s any sort of nefarious arrangement here or not, Alito knows exactly how this is going to look when he gets that call, It’s President-elect Trump calling you. Sure, it’s hard to turn down a call from the president, but when he’s asking for a favor, essentially, for a former clerk, you have to know that no matter how that turns out, whatever he rules is going to now be called into question because of that personal dynamic between the two of them.
Sargent: I think you really hit the nail on the head there because what’s really striking here is the audacity of it. Let’s go through the larger context. First, the Supreme Court said Trump could run for president despite the insurrection attempt. Then the Supreme Court helped Trump delay Jack Smith’s January 6 prosecution so the trial didn’t happen before the election, which arguably helped Trump win. The Supreme Court also granted Trump partial immunity from prosecution. And now Alito just hops on the phone with Trump to recommend someone for a job in the new administration? Kyle, do the Supreme Court justices worry about what all this looks like or not?
Cheney: You would think so, but then Justice Alito hopped on the phone with President-elect Trump. It does feed this perception that behind closed doors, these people are in this clubby atmosphere, that everyone’s talking to everyone and slapping each other on the back. And Trump has actually lampooned that entire culture in part of his political rise. And yet, having these kinds of conversations with these well-connected people who are making decisions. These are not just decisions that affect Donald Trump’s administration, but Donald Trump’s own personal livelihood and something that’s clearly very important to him, which is whether he’s adjudicated a convicted felon or not.
Again, it has to be an awareness of that. It’s just surprising. Or, as you say, maybe just the lack of caring is the surprising part in all this.
Sargent: That is exactly it, Kyle. They just don’t seem to care, and that’s what’s so surprising. Onto Jack Smith, Judge Aileen Cannon temporarily blocked him from releasing his report. Can you walk us through where that is now? Smith has appealed this. What’s Smith’s argument, and what’s the timeline? How does it all unfold now?
Cheney: Sure. The Justice Department has taken this to the Eleventh Circuit Court of Appeals to basically say we need immediate relief from from Judge Cannon’s order. Number one, I think they would doubt that she even has jurisdiction in the case because she dismissed the case back in July, and the Justice Department had already appealed that decision to the Eleventh Circuit, which means that Judge Cannon may not have much of a role at all right now. The fact that she issued an order that purported to stop Attorney General Garland from doing this, not just the part of the case that she oversaw but also the 2020 election subversion case that was in Washington, D.C. There’s a lot of questions about the Cannon order in the first place, and now the Eleventh circuit has to decide pretty quickly whether they’re going to toss that order or do something else.
Sargent: Right, and so what you’re referring to there when you say that Judge Cannon blocked release of the report concerning what she oversaw, you’re talking about the prosecution for the stolen state secrets. Let me ask you, what do you think that might hold, that report? How damning do you think the information about the state secret prosecution could be?
Cheney: I’ll be honest, I’ve had low expectations for these reports because so much has come out in court filings and in the indictments themselves that I was confident until Donald Trump moved heaven and earth to stop it from coming out. By the way, we should say Donald Trump has reviewed both of these reports for the last few days; he was given permission by the Justice Department to do that. So he knows what’s in there, and the fact that he is now coming out and fighting tooth and nail to stop them from becoming public … Now, he may just do that because he fights everything at all times when it comes to these investigations, but it is now creating at least this perception that maybe there really is something new in there. And in fact, in one of his filings, he does say there is new and unreleased information in there. How significant that is, we just don’t know.
Sargent: Attorney General Merrick Garland will release Jack Smith’s report on the January 6 prosecution. What do you expect to be in there? The last time we talked about this, we thought that there was going to be some really damaging information in this prosecution. How damning do you expect this report to be?
Cheney: The first thing I’m going to do is compare this to what’s already come out. I’m hopeful to see more details called from the grand jury side of the investigation, the interviews they’ve done with Vice President Pence and former Chief of Staff Mark Meadows. Things that I really look for are in some of the last minute filings that they issued in October on this as well. A lot of that had to be redacted because the case was ongoing. I’m sure there were a lot of details that they didn’t include because they weren’t germane to the specific arguments they were having at the time. Again, they may have been protected by grand jury interests that now no longer really hold. A lot of times those things are still difficult to release, they’re still sealed, but the Justice Department certainly has different interests now that the case has been dismissed against Trump there.
Sargent: Well, the larger context is worth looking at here again with regard to January 6. Donald Trump, once he becomes president, is going to undertake a pretty concerted effort to entirely erase the truth about what happened and replace it with a big historical lie. For instance, he’s going to pardon … I guess we don’t really know exactly which ones, but he’s going to pardon at least some of the January 6 rioters. He talks about them as patriots and heroes and political prisoners and hostages. He has succeeded in nullifying the prosecution of himself for January 6. In a sense, you can see why he is fighting the release of Jack Smith’s report on January 6 as well. It really could interfere with his effort to rewrite the whole story, right?
Cheney: Yeah, I think that’s honestly the larger plot or subplot of this entire thing. There’s Donald Trump, who’s coming into office with a clear intent to redefine, recast this revisionist version of what happened on January 6 and his role in it, versus all these other forces, political adversaries, and the Justice Department in trying to ensure that the truth of that day—what really happened, how bad and dangerous January 6 alone itself was, not to mention the several month effort Donald Trump undertook to subvert the election—doesn’t get lost in that clearly political effort to tell a different story.
Sargent: Right. And the big picture here is that the truth is going to come out with regard to the state secrets being stolen and with regard to the full story of the insurrection. We’re just going to spend the next few years really battling it out over what those facts mean, and whether Trump can successfully erase them, right?
Cheney: Exactly. You even see it now. It’s been four years since January 6, and a lot of the visceral memories of it have faded to a degree. As those of us who have really followed it closely every day, it’s hard to forget how dangerous and harrowing all of that was, especially when you’re in court all the time, seeing the video of it and hearing the testimony about it. For other people, it’s easier to have it get muddier, especially when the person with the most powerful megaphone in the world is trying to tell a different version of events.
Sargent: Yeah, he’s certainly going to be using that megaphone. Just to bring this back to Raskin, he really hit the mark on the big picture here with the legitimacy of the whole arrangement between the high court and Trump being endowed. There’s a big role here for Democrats to really articulate that argument going forward, isn’t there? I know you write about this stuff sometimes as well, especially with Trump’s policies likely to go before the court. This doesn’t end now. The Supreme Court’s going to have to rule on some major things going forward, right? For Democrats to really try and push the court to have to reckon with the role it’s played in the Trump era is essential to getting them to be a little more impartial.
Cheney: Yeah. And Democrats are going to have a difficult time. They’re going to be in the minority across Washington, and that’s a very difficult place to be in. However, their eyes are fully trained on 2026 and taking back at least one chamber of Congress in the midterms. This could be a big piece of their message about some of the corruption that apparently in the swamp that Trump has always said he wants to eliminate being a piece of his own governance in Washington. And Democrats did that somewhat effectively going into 2020, which was part of Joe Biden’s campaign there. Of course, you had Covid and a lot of other things, but now you have this Trump unbounded, not running for reelection and trying to exert his full power in a way he didn’t in his first term. And I think Democrats can be a foil for that.
Sargent: The courts are going to be even arguably more important given that Trump is going to really press very hard on the boundaries of presidential power. What do you see as the fault lines?
Cheney: The way Trump wields executive power in general is going to be a big story of his second term, and whether the courts can stop, can restrain some of that if he crosses certain lines. The way he wields the pardon authority is going to be very fascinating, including whether he uses it to assure people that if they break the law doing things that he asks them to do that they’ll be protected. For example, do the courts have a role in constraining that somehow? Can they constrain that? To me, that’s the number one sort of area I’ll look at because he’s going to use that pardon authority pretty much on day one.
Sargent: Yeah. I think Raskin articulating that case and other Democrats articulating the case against the Supreme Court is essentially being in Trump’s pocket is going to be critical going forward for public understanding of a lot of this stuff.
Cheney: Yeah, you’ll hear them. Look, Trump engineered this 6–3 majority that I don’t think he fully benefited from in his first term, but now he gets that 6–3 majority. He probably hopes to build on it if he can get other retirements in his second term. That may be a more potent argument for Democrats this time around because he comes into office with this 6–3 majority in a way he didn’t have for the first four years.
Sargent: Kyle Cheney, thanks for coming on with us, man. It’s going to get pretty ugly.
Cheney: I think pretty quickly too.
Sargent: Indeed.
You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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