Defending Trump’s ‘Enemies’ with Attorney Abbe Lowell

President Trump makes no secret about having a long list of perceived enemies. And for the people he targets, there’s one lawyer many of them call: Abbe Lowell. The longtime Washington defense attorney built a career representing both Republicans and Democrats. But last year, Lowell left a partner position at a big firm to start his own office dedicated to helping those "unlawfully and inappropriately targeted" by the Trump administration. Kara and Lowell talk about his work representing clients like New York Attorney General Letita James, Federal Reserve Governor Lisa Cook and independent journalist Don Lemon; the strategy behind Trump’s lawfare; and the ways Abbe is positioning his new practice to anticipate the Trump administration’s next moves. Questions? Comments? Email us at [email protected] or find us on YouTube, Instagram, TikTok, Threads, and Bluesky @onwithkaraswisher. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  Every day, something happens. If you had asked me a week ago how it's going, I wouldn't have known that I had to figure out a way to get Don Lemon out of jail the next day.

• 0:19Kara Swisher?

  Hi, everyone. From New York Magazine and the Vox Media Podcast Network, this is On with Kara Swisher, and I'm Kara Swisher. President Trump makes no secret about having a long list of enemies, and for people targeted by his administration, there's one lawyer that everyone seems to have on speed dial: Abby Lowell. Lowell is a longtime Washington defense attorney who's represented both Republicans and Democrats. During Trump's first term, he even provided legal counsel to Ivanka Trump and Jared Kushner. But in the last year, Lowell has dedicated himself to representing people who've opposed the Trump administration: clients like New York Attorney General Letitia James, Federal Reserve Governor Lisa Cook, Trump's former national security adviser John Bolton, and now independent journalist Don Lemon. Here he is, talking about Lemon's case on MS Now a few days ago.

• 1:03Speaker 00

  This is an administration that's not just willing to trample on the Bill of Rights. They're eager to do it. It's a warning sign. And if we can't rely on those Bill of Rights to protect you and Don and others who give us the news, or lawyers who come up and defend you when you do that, then we're in a lot more trouble than the average person believes.

• 1:22Kara Swisher?

  I think it's really important to talk to someone like Abby, who I met a million years ago, was a reporter for The Washington Post. And the idea of lawyers standing up to Trump is a really important thing, and a lot of them have, but a lot of law firms have acquiesced, and Abby has set out on his own, and what he's doing is critically important going forward, as some of the big law firms, more concerned with their money-making, bend the knee. All right, let's go to my conversation with Abby Lowell. Our expert question comes from New York Times investigative reporter Jody Cantor, who covers the Supreme Court, so stick around.

• 2:02Kara Swisher?

  Support for this show comes from The Guardian and their new show, Stateside, where journalists Kai Wright and Carter Sherman use the entire independent reporting resources of The Guardian to slow down the news and wrestle with the questions we all have about what is actually happening in the world. Join Kai and Carter three times a week as they utilize all the reporting resources The Guardian has across news, international coverage, climate, culture, wellness, and more. And The Guardian's not owned by a billionaire, they fearlessly report the facts without interference. Go to theguardian.com/stateside to learn more and listen wherever you get your podcasts or watch on YouTube. That's theguardian.com/stateside.

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• 4:02Kara Swisher?

  Abby Lowell, thanks for coming on, on. We've known each other for quite a while, hasn't it? For a long time.

• 4:08Speaker 00

  We have, in various iterations of our lives, which is nice.

• 4:11Kara Swisher?

  Yeah, I was at the Washington Post. Sad, let's have a moment.

• 4:15Speaker 00

  I know, that's a bad day today, isn't it?

• 4:16Kara Swisher?

  Yeah, today, yesterday, all the days Jeff Bezos has owned it in the last couple of years, actually. Anyway, let's just get started in on it, because you are sort of everywhere. And last year, you left, for people who don't know, a partner position at Winston & Strawn, a prestigious law firm, to start your own office. It's partially dedicated to representing people targeted by this administration. Now, Winston & Strawn was reportedly turning down cases defending clients targeted by the Trump administration. Talk a little bit about why so many big firms are shying away from the fight and aren't willing to end up on Trump's retribution list, and why are you?

• 4:52Speaker 00

  Let's talk about the big firm problem to start with. At some point over the last, you could name it, 15, 20, 25 years, most big law firms have become more and more reliant on their corporate clients, whether it's for corporate work or even litigation work.

• 5:08Kara Swisher?

  Mm-hmm.

• 5:09Speaker 00

  If these corporate clients have, as they often will, the need to get permission, license, something from a government entity, be it the Federal Trade Commission, the Securities and Exchange Commission, then their clients who fuel their revenue are going to say, "Don't make waves." And if a firm is dedicated, or at least they think they're dedicated, solely to the bottom line, and their majority of their clients are telling them, "You've got to keep a low profile," that's the thing that's motivating these firms the most.

• 5:39Kara Swisher?

  Right.

• 5:40Speaker 00

  It's unfortunate, because it basically reflects that over the last 25, 30, 40 years, law firms stopped being professions and started being businesses. And that's not the way it should have been, and it's even not the way the founders envisioned it when our country began.

• 5:56Kara Swisher?

  Why is it different now? Because that's, people being, caring favor of corporations seems normal, and having to deal with the government, right? This is not a new thing. What shifted? Like, and I'll note, the head of, Paul Weiss, the chairman, Brad Karp, just resigned because of, he was implicated in the Epstein files, of being... Close to him, I'm not sure, a bit of anything else, just to be clear. But talk a little bit about that dynamic and why it changed with the Trump administration.

• 6:26Speaker 00

  Yeah, okay, so there's two parts to this equation. There was a time where firms like Paul Weiss was known as a litigation firm. They would have institutional clients, but mostly people hired them to do their battles one at a time. You might represent a client once and never see them again. When you start getting institutional clients for whom you are both asking for and getting business on both sides, the litigation and the business side, that's where the business side gets to predominate and says, we need this license, we need this permission, don't make waves. But more than 50% of the equation, Kara, is not on the law firm side, it's on the government side. It's that in the history of our country, there's never been a president or those carrying out his commands that will do what these law firms are afraid of.

• 7:11Speaker 00

  That will say, I am not approving your merger, Disney, or whoever, because if you are criticizing me, I'm using my power as a weapon, and therefore you better watch out what you say and what you do. This is the combination. If firms are more and more worried about the bottom line, driven by their corporate clients, and corporate clients are afraid of going against the government, and the government is willing to use its power to stifle speech, to stifle freedom, to basically stifle all the things guaranteed in the Bill of Rights, that's the storm that's created this moment.

• 7:46Kara Swisher?

  And this is what pushed you out of becoming independent?

• 7:50Speaker 00

  Yes, but I mean-

• 7:51Kara Swisher?

  Find the benefits and negatives for you. You obviously have freedom. I don't work for big news companies because of this. Similar thing, I was like tired of listening to them, essentially.

• 8:00Speaker 00

  Okay, so in my career, I have always challenged the overreach of administrations, all the way back to Ronald Reagan's, where I sued the Federal Aviation Administration on behalf of the localities in Washington, when they wanted to change the flight paths at National Airport. I mean, the difference between my career up until 2025 and 2025 is that the government might overreach a couple of times a year, and then you would- Represent your clients, right? Now the government overreaches a couple of times a week. And so there's many more things to be done. So that's the reason that I would be in a position when the moment came to try to meet that moment, because it's why I became a lawyer to begin with. Now, with that background, I can tell you about 2025.

• 8:44Speaker 00

  In the beginning of 2025, as it would have been in any other year, various clients came and asked if I could help. The first was the FBI agents who did not want Donald Trump to reveal their identities for those who had worked on the January 6 investigations. And this was at a time that lawyers were beginning to be pressured by the Trump administration. Some law firms were beginning to make deals. And so my law firm said, that's not one we think we can do. All right, that was one. Shortly thereafter, I got contacted by a friend who worked for the USAID workers that had been stranded abroad. If you remember when that agency was taken down, many people were left literally stranded.

• 9:23Kara Swisher?

  Yeah.

• 9:24Speaker 00

  And again, the intake committee said, we don't want to ruffle the feathers on that one. And then there was another one in between, that doesn't matter. But the straw that broke the camel's back for me was when New York State Attorney General Letitia James called. She and I met two days later in her office. It was exactly what I do for a living, to help people in her situation. And at that point, I knew the firm was going to not say yes, because after all, Letitia James was the person who successfully sued and got a judgment for fraud against Donald Trump and his businesses. And so that was the moment that I told the firm, this was not going to work. And over that weekend, that's where it happened.

• 9:59Kara Swisher?

  So what is the downside? Well, you know, we all sit around and go, okay, this part, this part. What was the downside for you? Resources?

• 10:06Speaker 00

  Well, yeah, the downside was, on Friday, I decided to do this. I needed to write a letter on behalf of Attorney General James by Tuesday. And that meant, between the weekend and Tuesday, the downside was, I had to find my lawyer to incorporate me, I had to go find malpractice insurance, I had to design my own letterhead, I had to borrow office space, I had to do all the above in 72 hours, which normally law firms require their partners to give them notice and get out 30 days. I gave them less than three days. The downside was just the logistics of starting a new business in 2025 America. Everything from finding space to finding colleagues, to being able to get a computer. Remember, when I left Winston and Strawn that weekend, I was off their grid.

• 10:51Speaker 00

  My laptop turned into a brick. Forty-five boxes of files were left behind and I left the building. And so that was the immediate challenge.

• 10:59Kara Swisher?

  What was their reaction?

• 11:00Speaker 00

  Um, I don't think they were super surprised, given that there had been these events where I kept pressing them to do things. I think that was first.

• 11:08Kara Swisher?

  Yeah.

• 11:08Speaker 00

  I think they were shocked that I said we had to do it in thirty-six hours and it turned out to be like forty-eight hours. And I think ultimately, I mean, look, it was amicable in the way that I, and I understand. I understand what the big law firms vulnerabilities are. I'm not happy about it. I don't agree with it. I think the law firms could have banded together day one and said, we're not going in that direction.

• 11:28Kara Swisher?

  Absolutely.

• 11:29Speaker 00

  I think that was a lack of leadership across the board of lawyers in America. I understand it, but I don't agree with it. So I don't think they were shocked. And as I said, under the circumstances, it was amicable, although I'm disappointed. I'm disappointed in them. I'm disappointed in lawyers across America. And I'll tell you where I'm really disappointed. You've heard that some law firms, you know, went and made deals, right? Okay, we get that. And we know that some, a handful, said, no, we're fighting back. What people aren't recognizing is that almost every big firm in America used to do this vast amount of what's called pro bono work for community agencies.

• 12:04Kara Swisher?

  Right.

• 12:04Speaker 00

  Social service agencies, nonprofits, whether it was in the immigration world or the women reproductive rights world, or the environmental world, or any other world in which lawyers did their work for free. What is not being well-reported is that all those, think about this. Let's say there, I'm gonna make it up. Let's say there are five hundred law firms in America, and let's say they all have a hundred lawyers. And let's say that each of those lawyers do fifty hours of pro bono work a year. Think about the tens of thousands of hours. And law firms have cut back on that.

• 12:33Kara Swisher?

  Yep.

• 12:34Speaker 00

  And that is a gap that has not been filled.

• 12:36Kara Swisher?

  Right, right. Let's talk about your, some of your cases recently, so people get a sense of it. Don Lemon, obviously, was the most recent high-profile case, representing the former CNN anchor and independent journalist now. Uh, who was arrested in, uh, late January. Before the arrest, Don was covering a group of protesters who entered City's church in St. Paul, Minnesota. One of the pastors there is an ICE official. Don said repeatedly that he was there as a journalist, nothing more. And I should note that Don is a friend of mine and he's been on the show and on Pivot. Um, so to start, can you walk us through the days leading up to the arrest? Because Lemon told Jimmy Kimmel he even offered to turn himself in and instead he was very publicly arrested in a hotel in LA where he's getting ready to cover the Grammys. Um, I thought he would get arrested. I wasn't so sure he thought he was going to get arrested, but talk to me a little bit about this case.

• 13:21Speaker 00

  So you'll remember these events started on that Sunday, the 18th, where Don and others were in Minneapolis to cover the protests. There was this group that he got connected with that were heading to a protest. He's a journalist. He'll cover a group that's going to protest wherever they go. This group went to a church. He filmed it. He interviewed people there. The event happened. It was done. I think he was in Minneapolis for five or six hours.

• 13:46Kara Swisher?

  Yeah.

• 13:46Speaker 00

  Um, almost immediately from the top down, being Attorney General Bondi and the Assistant Attorney General Dillon from the Civil Rights Division and who else knows in the administration, started not just saying that this was an outrage, that people would walk into a house of worship and basically protest, but that Don and other journalists, there was one other independent named Georgia Fort that was there, um, were not just journalists, but they were activists doing it. And they said they need to be arrested. They need to be charged. So Don and I were connected as soon as that happened. It was probably the very day. Um, and I started understanding what was going on. And the very first thing I did was I wrote Deputy Attorney General Todd Blanch, who I've known in practice for years.

• 14:29Speaker 00

  And I said to him in words, in effect, I want you to know, Todd, I represent Don Lemon. Um, I understand you're investigating, or at least that's what's being announced. If you are, you should be in contact. We should do this the right way. There's no reason to do it in an extraordinary way to make a public spectacle of it. Let us know what you're doing and I'll make arrangements. I have done that dozens of times in my career. And especially if you're not representing somebody who's, for example, a real flight risk or somebody Who is being accused of being a serial killer, they normally will let you do that, right? Unless they're trying to make a show of it. And what we know about this administration is show first, substance second.

• 15:09Kara Swisher?

  If at all.

• 15:10Speaker 00

  And so I never heard back from Todd. Then the awful events in Minneapolis, you know, happened again in the killing of Alex Preddy. And I don't know that I thought that them going after Don Lemon was their highest priority.

• 15:23Kara Swisher?

  Right.

• 15:24Speaker 00

  I should have known better. Because what we know about this administration is they're very good at basically saying, if this is my right hand, pay attention to it while I do something with my left. They are the administration of distraction. So again, I wasn't terribly concerned and you said you had a premonition.

• 15:40Kara Swisher?

  I just was like, there was enough there. Like, I just heard from the lawyers, it was like, he got real close, you know? And I was like, did he? You know, I mean, but that's all they needed. That's all I'm saying is I didn't, I thought they would do it.

• 15:52Speaker 00

  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 before the, the two days before, and he's coming back into his hotel, and not one, and 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 11:30 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.

• 16:29Kara Swisher?

  Correct.

• 16:30Speaker 00

  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 LA 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.

• 16:49Kara Swisher?

  Absolutely. So Attorney General Pabani actually took credit for the arrest, as well as other arrests of two protesters and another journalist, the church, Georgia Fort. Bondi claimed on X that the arrests happened at her personal direction, I'm in charge here, I guess. And the White House celebrated his own post on social media with, 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.

• 17:23Speaker 00

  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."

• 17:33Kara Swisher?

  Yes, I was just trying to stop myself.

• 17:35Speaker 00

  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 routed that way and put in a car and driven off to a location. So that's itself traumatic enough.

• 18:01Kara Swisher?

  And also Georgia Fort was in her home with her children. There was like 12 of them.

• 18:05Speaker 00

  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.

• 18:14Kara Swisher?

  Okay.

• 18:15Speaker 00

  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

• 19:00Speaker 00

  Congress and they had politicized the courts was to go after the lawyers and to go after the journalists. 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.

• 19:22Kara Swisher?

  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?

• 19:38Speaker 00

  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 Eighth Circuit said, no, we're not doing that. As against that, they went to a grand jury of citizens,

• 20:20Speaker 00

  I'll come back to that in a second, and got the majority of which, a grand jury can 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.

• 20:43Kara Swisher?

  We don't know.

• 20:44Speaker 00

  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 US 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.

• 21:16Kara Swisher?

  When they did it right, presumably.

• 21:18Speaker 00

  When they tried. But by the way, that's a, 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. indictment that had any merit in which the grand jury said no.

• 21:31Kara Swisher?

  Well, DC, it's happened in DC.

• 21:33Speaker 00

  In various places.

• 21:34Kara Swisher?

  Yeah.

• 21:34Speaker 00

  True.

• 21:35Kara Swisher?

  Um, 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. Uh, yes, the protesters were nonviolent, but places of worship have become target of some violence in this country many times. Um, how do you look at that when you, when you're pushing back against that?

• 21:56Speaker 00

  So it's, 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 of freedom of practice of religion, and you interfered with it. The problem is you're going to have

• 22:40Speaker 00

  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.

• 22:51Kara Swisher?

  Right.

• 22:52Speaker 00

  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. Um, 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 were doing more than interrupting people's church services.

• 23:12Kara 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. Um, 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 prohibit people's access to abortion clinics and places of worship. This is what they're hanging on, presumably.

• 23:34Speaker 00

  It is. Now, I'm not saying that the protesters, like, 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. 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

• 24:19Speaker 00

  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 Fords 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. It's why the First Amendment has freedom of the press in it.

• 24:52Kara Swisher?

  Did his staying at least create a legal opening for the government? It was looking for anything. And that, 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, have it sealed up."

• 25:13Speaker 00

  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 would ask 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

• 25:58Speaker 00

  and is filming them and interviewing them, would he ever be arrested for doing that? Even though I think there's nothing off the table for this administration, that would have been a moment too far.

• 26:08Kara Swisher?

  Yeah, absolutely. And even if you and Lemon ultimately win here, how does the mere act of bringing--

• 26:12Speaker 00

  No, no, no. Don't say if, say when.

• 26:14Kara Swisher?

  When, when, when. Okay, I'm sorry. Okay. When you and Lemon ultimately win 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 Faro, 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. But Faro also wrote, "When governments begin criminalizing the observation of dissent using technical oversteps as justification, it's often a warning sign."

• 26:53Speaker 00

  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.

• 27:02Kara Swisher?

  Yeah.

• 27:02Speaker 00

  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--

• 27:19Kara Swisher?

  Right.

• 27:19Speaker 00

  You know, decade after decade of attorneys general have made it clear the point of what prosecutors' jobs are, 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.

• 27:54Kara Swisher?

  Right.

• 27:55Speaker 00

  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. One is the tragedies of US 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 a, you know, Selma, Alabama moment, or Pettus Bridge moment. I don't know that yet, but it could be.

• 28:38Kara Swisher?

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• 29:21Kara Swisher?

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• 29:41Speaker 02

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• 30:12Kara Swisher?

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• 31:18Kara 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 before the Supreme Court. The justices seem likely to let Cook keep her job while her case keeps playing out. 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.

• 31:58Speaker 00

  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 II, 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. And when they fire people, sometimes the letters that go out say something like, pursuant to the president's power under Article II, you are hereby fired.

• 32:43Speaker 00

  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 were 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. 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.

• 33:25Speaker 00

  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." Now, I have to explain this, and I think I can do it in just three sentences. Sure. I just pointed out Article II power. The president did not use his Article II 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. Right.

• 34:08Speaker 00

  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. 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.

• 34:50Speaker 00

  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 who don't know. I'm sorry, yes. And will 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. 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.

• 35:26Kara Swisher?

  Meaning he'll be able to fire who he wants?

• 35:28Speaker 00

  In most of those agencies.

• 35:30Kara Swisher?

  In most of those agencies, right.

• 35:32Speaker 00

  Correct.

• 35:32Kara Swisher?

  So while we're on the subject of the Supreme Court, every episode we get a question from an outside expert. Here's yours.

• 35:38Speaker 04

  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? 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

• 36:21Speaker 04

  in how the judges are going to be dealing with those cases? Thank you.

• 36:26Speaker 00

  Okay, so Jody, first I'm going to go past your reference to how long I've been practicing.

• 36:31Kara Swisher?

  Paige, I know, she calls us all Abby.

• 36:33Speaker 00

  I know, really.

• 36:34Kara Swisher?

  She just totally do.

• 36:34Speaker 00

  Tara, will you talk to her offline about that?

• 36:36Kara Swisher?

  I will.

• 36:36Speaker 00

  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. What didn't happen until the recent modern era was that litmus test, that political and philosophical

• 37:21Speaker 00

  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. Uh huh. 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 prosecutors' offices. 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.

• 38:04Speaker 00

  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. 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.

• 38:47Speaker 00

  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. Yeah. 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. 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.

• 39:17Kara 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.

• 39:25Speaker 00

  Well, we've, 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 reining him in have come from people that were appointed, by the way, by even him in his first term.

• 40:00Kara Swisher?

  Is there a way to change any of these things you're talking about?

• 40:04Speaker 00

  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, you know, 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. That's the second reason.

• 40:45Kara Swisher?

  Pay them more.

• 40:45Speaker 00

  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.

• 41:13Kara 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.

• 41:33Speaker 00

  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 are 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.

• 42:16Speaker 00

  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.

• 42:25Kara Swisher?

  And tech companies. They did that to Chris Krabs' company.

• 42:28Speaker 00

  Right, and they did it to Miles, who was a zone. 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. The judge enjoined that from happening, and on all these cases, the government is now taking appeal to the next level of court.

• 43:12Kara Swisher?

  So that's where we sit, right?

• 43:14Speaker 00

  That's where we sit on all of them.

• 43:15Kara Swisher?

  Where do you expect it to end?

• 43:17Speaker 00

  At the Supreme Court.

• 43:18Kara Swisher?

  At the Supreme Court.

• 43:19Speaker 00

  I mean, someplace, one of these cases will go to the Supreme Court.

• 43:22Kara Swisher?

  So you're also representing, as 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.

• 43:47Speaker 00

  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."

• 44:30Speaker 00

  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.

• 45:06Kara 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.

• 45:22Speaker 00

  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 had 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. They have attacked the lawyers. They have attacked the journalists. There is a thread.

• 46:07Speaker 00

  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, I named 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. So they stopped doing it. If I said to you that they were going to shoot peaceful protesters in the streets, what would you say, the US or would you say Russia?

• 46:48Speaker 05

  Moscow.

• 46:49Speaker 00

  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.

• 47:15Speaker 05

  Yeah, 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.

• 47:23Speaker 00

  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.

• 47:32Speaker 05

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• 49:38Kara Swisher?

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• 50:14Kara Swisher?

  So let's begin 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 reelection, 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?

• 50:43Speaker 00

  Yeah, this is unprecedented for even somebody like me, or Jody, or somebody to opine, right?

• 50:48Kara Swisher?

  Yeah.

• 50:50Speaker 00

  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.

• 51:09Kara Swisher?

  That's exactly what I mean.

• 51:10Speaker 00

  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 the defendant in the same case. 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 five, or sue for 230 and command Pam Bondi, "Okay, I'll drop the case, pay me 100 million." It's just beyond your comprehension, right?

• 51:45Kara 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, "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 raid have going forward? And was it a signal to local election officials on the ground, besides be scared, presumably that's the goal here?

• 52:14Speaker 00

  Well, you earlier in our conversation pointed out their desire to hold on to power. Okay. 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.

• 52:36Kara Swisher?

  Right, well, every accusation is a confession with these people, so not an unusual thing to think, but go ahead.

• 52:41Speaker 00

  And you start seeing some of the things, right? Yesterday or the day before, he says, "I want to nationalize elections."

• 52:47Kara Swisher?

  Yeah.

• 52:47Speaker 00

  I mean, he just makes up a phrase that even people in his own party say, "No, no, no, you can't do that."

• 52:52Kara Swisher?

  Yeah, the Constitution for people don't know gives states the power to carry out elections.

• 52:55Speaker 00

  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. 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.

• 53:37Speaker 00

  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, 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.

• 53:57Kara Swisher?

  Mm hmm.

• 53:58Speaker 00

  Or at least putting lawyers in the way from when they try.

• 54:00Kara 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.

• 54:07Speaker 00

  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, let 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.

• 54:24Kara Swisher?

  That's correct. Good point. Fair point.

• 54:27Speaker 00

  Let's let him figure it out the wrong way so that it could be successfully attacked when he tries.

• 54:30Kara Swisher?

  Okay. And you said election officials should lock out ballots, that can they do that even in the face of a federal warrant?

• 54:35Speaker 00

  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.

• 54:45Kara Swisher?

  Right.

• 54:46Speaker 00

  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. They have to rise to the occasion and not let it happen.

• 55:12Kara Swisher?

  There's a very good argument of get off my lawn. 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're gearing up for right now?

• 55:39Speaker 00

  Well, without tipping our hand about some of the things that are being worked on down the hallway from me right now, we have been 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. So there will be possibility of bringing suits that will define by declaratory judgment what the rights of these state and

• 56:21Speaker 00

  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 DC 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

• 57:05Speaker 00

  in the future to address those. 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.

• 57:28Kara 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?

• 57:50Speaker 00

  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 banding together, because the president can't immunize his actors from those two forms of liability. So that's also a place where people can be a little hopeful.

• 58:33Kara Swisher?

  In the future, going in the future.

• 58:35Speaker 00

  In the future.

• 58:36Kara Swisher?

  So Kristi Noem better not go to Minnesota anytime after 2020.

• 58:40Speaker 00

  Or a couple of the other places where we have the state prosecutors say, not, you know, not in my backyard.

• 58:46Kara 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.

• 58:54Speaker 00

  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.

• 59:09Kara Swisher?

  Yeah.

• 59:10Speaker 00

  It gives me courage every day.

• 59:11Kara Swisher?

  Same thing in journalism. Every day, more and more independent journalists.

• 59:15Speaker 00

  Good for you guys.

• 59:15Kara Swisher?

  Let me tell you, everybody, the water's fine, so jump in.

• 59:24Kara Swisher?

  Today's show was produced by Christian Castrocel, Michelle Aloy, Megan Burney, and Kalen Lynch. Nishat Kurwa is Vox Media's executive producer of podcasts. Special thanks to Eamonn Whelan and Madeleine LaPlante-Duby. Our engineers are Fernando Aruda and Rick Kwan, and our theme music is by Trackademics. 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. We'll be back on Thursday with more.

• 1:00:06Speaker 03

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