• We’re three weeks into President Donald Trump’s second term, and already Democratic lawmakers are warning that we’re in a constitutional crisis. They point to the fact that Elon Musk, an unelected billionaire, is getting a major say in how government agencies operate; the Trump administration shuttering USAID – an independent agency created by Congress – without Congressional approval; and the push to block funding that’s already been appropriated. While federal courts have helped Democrats slow down some of Trump’s more brazen actions, Vice President J.D. Vance fueled fears of a deeper constitutional challenge Sunday when he tweeted, ‘Judges aren’t allowed to control the executive’s legitimate power.’ Kate Show, co-host of Crooked’s legal podcast’ Strict Scrutiny,’ helps us make sense of the legal drama.
• And in headlines: Trump sat down with Fox News’ Bret Baier for the traditional pre-game Super Bowl interview, Hamas released three more Israeli hostages in exchange for nearly 200 Palestinian prisoners as the ceasefire continued to hold, and the Trump administration moved to shutter the Consumer Financial Protection Bureau.

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TRANSCRIPT

Jane Coaston: It’s Monday, February 10th. I’m Jane Coaston. And this is What a Day, the show that is taking it nice and slow today because the Superbowl was last night and some of us are still running on pure guacamole. [music break] On today’s show, Project 2025 coauthor and new director of the Office of Management and Budget, Russell Vought has only been in office a few days and he’s already shutting shit down. And Ye is back on his hateful Twitter rants. Can someone just take his phone? But first, we’re three weeks into President Donald Trump’s second term, and already Democratic lawmakers are sounding the alarm that we are in a constitutional crisis. They point to the fact that Elon Musk, an unelected billionaire, is getting a major say in which government agencies get to exist, that the Trump administration has tried to shutter USAID, an independent agency created by Congress, without congressional approval. Also, the administration’s push to block funding that’s already been appropriated and basically run roughshod over laws that were established decades ago. Here’s Connecticut Democratic Senator Chris Murphy speaking on ABC’s This Week on Sunday. 

[clip of Senator Chris Murphy] Yeah, listen, I think this is the most serious constitutional crisis the country has faced, certainly since Watergate. The president is attempting to seize control of power and for corrupt purposes. The president wants to be able to decide how and where money is spent so that he can reward his political friends, he can punish his political enemies. That is the evisceration of democracy. 

Jane Coaston: And New Jersey Democratic Senator Cory Booker echoed the sentiment on CNN’s State of the Union. 

[clip of Senator Cory Booker] This is an astonishing allowance of corruption and abuse and violations of people’s privacy and other most sacrosanct values. We are in a crisis right now. And Democrats will use every tool possible to protect Americans, to drive down costs to make us safer. These are the very opposite that Donald Trump is doing to Americans right now. 

Jane Coaston: As if trying to give Democrats fear some more weight. Vice President JD Vance took to Twitter on Sunday to argue that the courts don’t have legitimate authority to control the president’s power. Guys, that’s bad. But let’s take a step back for a minute. As of now, the administration hasn’t openly defied the courts, and federal judges have handed Democrats, nonprofits and unions some big wins. The courts have put holds on some of the administration’s most brazen actions, like trying to end birthright citizenship, pushing millions of federal workers to take a deferred buyout and freezing federal grants and loans. Here’s the thing, though. If we’re in a constitutional crisis, what can we do about it? And how should the courts and members of Congress respond? To make sense of all of this, I called up Strict Scrutiny co-host Kate Shaw. Kate, welcome to What a Day. 

Kate Shaw: Jane, thanks for having me. 

Jane Coaston: So some Democrats say we are in a constitutional crisis. Are we? 

Kate Shaw: Yeah. Yeah, we are. And I think we don’t need to basically have like a fully developed theory of what a constitutional crisis is to know we’re in one right now. So I think it’s kind of more obvious that we’re in a constitutional crisis if we think about defying court orders, which hasn’t happened yet, at least not overtly. But I think defying Congress in the way this administration has done is contemptuous of the Constitution and is essentially, you know, that’s the stuff of constitutional crises in the same way as defying court order. So, you know, long answer, but the short one is, again, yes. 

Jane Coaston: Let’s get into some of the cases in front of the courts right now. Today, a Massachusetts judge has scheduled a hearing on Trump’s deferred resignation offer to millions of federal workers. That same judge already put a pause on the original deadline last week. What are you going to be watching for in that case? 

Kate Shaw: So, you know, I think that maybe uh to take a step back, we have a few different categories. There’s like kind of the personnel category and then the policy category. And so the deferred kind of the buyout, individual removals of officials, both, you know, anonymous officials, at least as of yet, whose names we don’t know, but FBI and DOJ officials who worked on the January 6th cases. Um. And also, you know, more high profile people, commissioner of the Federal Election Commission and the National Labor Relations Board and I guess like the Kennedy Center trustees. Um. So there are a lot of both removals and actions vis a vis personnel. Um. And those, I think, are in a category where the administration thinks that the Supreme Court has given it a lot of leeway and it kind of thinks that for good reason. Right. John Roberts and the conservative justices on the Supreme Court have issued a series of decisions expressing this, I think, pretty ahistorical conception of the presidency, which is the presidency has I mean the president who occupies it has something approaching plenary, a complete control over subordinate officials in the executive branch, whether that’s, again, people, commissioners on these multi-member boards and commissions or essentially the entirety of the federal workforce. And that where statutes seek to constrain the president’s total control over those subordinates, those statutes are at the least constitutionally suspect, if not you know outright unconstitutional. So I have a feeling at the end of the day, the federal courts are not going to disable Trump and Musk from doing things like, again, offering deferred buyouts. These outright terminations I think can be are are more difficult. And then that’s just kind of everything in the personnel domain. There are these, you know, a ton of different cases about substantive policy moves. Happy to talk about those as well. 

Jane Coaston: So in short, are you saying that because of the conservative majority in the Supreme Court, the plan is to tee up cases to appear in front of that Supreme Court?

Kate Shaw: Yeah. 

Jane Coaston: With the hopes that the conservative majority will side with them? 

Kate Shaw: I think pretty clearly, yes. I mean, they can’t the Supreme Court can’t decide all of these cases, though, right. So they’re doing so much, so sloppily and so fast that I think that they’re going to get stymied, at least in the short term, by the lower federal courts that do still believe we, you know, kind of function in a system of law. Congress passes statutes. They mean something. You know, presidents and unelected special government employees don’t get to just dissolve federal agencies and fundamentally change the conditions of federal employment kind of by fiat. And the administration, I think, will appeal much or all of that, ultimately hoping to get before this conservative Supreme Court. And they will with some of these cases. And they will win some of them, but they won’t get all of them up there. And I think that they even if they get a lot of them up there, they’re not going to win in all of them. And I think that that’s a really there’s a really important point there, which is, you know, the courts actually, even if they’re not going to save us, can do a lot to create friction, to slow things down, to actually stem the bleeding um that a lot of these moves are causing. And I think that is important and valuable. Even if ultimately the Supreme Court does side with the administration in some significant portion of these cases. 

Jane Coaston: But Musk and Vice President Vance are already throwing the authority of the courts into question. On Sunday, J.D. Vance appears to have been overtaken by the spirit of Andrew Jackson when he tweeted, quote, “Judges aren’t allowed to control the executive’s legitimate power.” I mean. 

Kate Shaw: Yeah. 

Jane Coaston: That’s bonkers. 

Kate Shaw: It is. 

Jane Coaston: That’s the point of the Court. So what’s your read on a statement like this? Because it also is telling because I’m pretty sure that he would be pretty into the Supreme Court restraining, say, the Biden administration. 

Kate Shaw: Yeah, I mean, that was a real escalation. Right. And so I you know, I think it’s deeply concerning. And it’s not the first time that, you know, Vance has revealed himself to be a little like, you know, Andrew Jackson curious, like  a couple of years ago, right, he has he gave a couple of interviews in which he explicitly said, you know, fire every mid-level bureaucrat. I mean, he’s like giving advice to hypothetical future President Trump. And he says get, you know, fire every mid-level bureaucrat. And when the courts stop you, stand in front of the country and say, John Roberts has made his ruling now uh let him enforce it. Um. So, I mean, a couple of things. One, I actually always thought that quote was really revealing because it actually made clear that when the courts stop you. Right. This predictive claim made clear that the things that he was contemplating and advising Trump to do were unlawful under existing law. So that actually seems like a meaningful concession insofar as some parts of their coalition are saying, no, no, the you know, the law actually is on our side, or at least, you know, the Supreme Court, when it gets these questions, has put in place the foundations that like make this thing we’re doing lawful, even if it’s not lawful at this present moment under existing law. Um. But yeah, I mean, it is the suggestion of defiance of courts is deeply concerning. We haven’t actually seen it yet. So I don’t until unless and until we are actually in a position where we are seeing something more concrete than this kind of saber rattling on social media. I don’t want to assume that we’re there, but certainly the constitutional crisis you started by asking about um is a a much more serious one. If, in fact, we are looking a week from now or even days from now at this administration, outright defying federal court orders. 

Jane Coaston: Now, somehow we are only three weeks into Trump’s term, which is–

Kate Shaw: Insane. 

Jane Coaston: Insane. 

Kate Shaw: Yeah. 

Jane Coaston: But where do you think Democrats could find success and where might courts side with Trump potentially shattering precedent? 

Kate Shaw: So I think that some of these removals, right, like the firing of FEC commissioner and NLRB commissioner, I think there’s a very good chance that Trump wins those court cases. And the Supreme Court overturns this 1935 precedent called Humphrey’s Executor, that said, statutes can limit the president’s ability to fire individuals who sit on these independent boards and commissions. And that’s not to say the president can ever remove somebody in one of those positions, but the president has to provide reasons. They can’t just do it, you know, just because they’ve decided they want to replace that person with someone else, um which is and the fact that Trump didn’t try to supply reasons for those firings suggests to me that they are very interested in in, you know, taking the fight directly to the Supreme Court and trying to get this 1935 precedent overruled. So those are cases where I think the administration is going to um very likely prevail. And I don’t exactly know what the consequences will be, but I think they could be, you know, basically seismic. Um. On the kind of substantive policy fight, like does the president have the ability to just ignore money that Congress has appropriated for spending? I think that the arguments in defense of what the administration seems to be doing with places like USAID are weak. Um. And I have a sliver of hope that even, you know. John Roberts and Brett Kavanaugh. You really just have to pick off those two. Or John Roberts and Amy Coney Barrett um would have some kind of awareness of what it would do to the kind of separation of powers to, you know, to to cosign the president’s having basically unilateral authority over spending, which is basically unilateral authority over lawmaking. Right? Like the Constitution sets forth a process with like real rules for Congress, the courts, the president. And it would essentially collapse all that kind of into uh executive power. 

Jane Coaston: Kate, thank you so much for being here. 

Kate Shaw: Thank you so much, Jane. 

Jane Coaston: That was my conversation with Strict Scrutiny co-host Kate Shaw. We’ll get to more of the news in a moment. But if you like the show, make sure to subscribe. Leave a five star review on Apple Podcasts. Watch us on YouTube and share with your friends. More to come after some ads. [music break]

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Jane Coaston: Here’s what else we’re following today. 

[sung] Headlines. 

[clip of President Donald Trump] And I’ve had a great help with Elon Musk, who’s been terrific. [?]–

[clip of Bret Baier] Bottom line, you say you trust him? 

[clip of President Donald Trump] Trust Elon? Oh. He’s not gaining anything. In fact, I wonder how he can devote the time to it. He’s so into it. 

Jane Coaston: I wonder that, too. Mr. President, I wonder that, too. The long held tradition of the presidential Super Bowl pre-game interview continued on Sunday with President Trump. Fox News host Bret Baier sat down with Trump at Mar-a-Lago ahead of the game to discuss the president’s first weeks in office. The network aired part of the pre-taped interview right before the big game. Baier asked Trump about his relationship with Elon Musk, head of the Department of Government Efficiency or DOGE. And the president said Musk is doing great work finding ways to cut federal spending. 

[clip of President Donald Trump] Then I’m going to tell him very soon, like maybe in 24 hours to go check the Department of Education, he’s going to find the same thing. Then I’m going to go go to the military. Let’s check the military. We’re going to find billions, hundreds of billions of dollars of fraud and abuse. 

Jane Coaston: Baier also asked the president about one of his key campaign promises, bringing down the price of groceries. Baier asked Trump when Americans will finally feel that sweet, sweet economic relief. To which he said this. 

[clip of President Donald Trump] No, I think we’re going to become a rich n– look, we’re not that rich right now. We have $36 trillion. That’s because we let all these nations take advantage of us. 

Jane Coaston: So we’re too poor now. But when we’re rich, we won’t care about grocery prices? Fox will air the full interview tonight on the Special Report with Bret Baier. Also on Sunday, Trump became the first sitting president to attend the Super Bowl. He greeted the Kansas City Chiefs on the field when he arrived in New Orleans with some of his children. Trump also brought along some of his Republican colleagues, including Speaker of the House Mike Johnson and Senator Lindsey Graham. Prince Albert, the second of Monaco, was also seen in the president’s suite. Hmm. The ceasefire deal between Israel and Hamas continued to hold over the weekend. Hamas released three more Israeli hostages on Saturday in exchange for nearly 200 Palestinian prisoners. And on Sunday, Israel’s military withdrew more troops from northern Gaza. This is all in accordance with the first phase of the ceasefire deal, which ends in three weeks. The next phase calls for a complete withdrawal of Israeli troops and the releasing of all of the remaining Israeli hostages. But nothing is guaranteed. Officials from Israel and Hamas are still negotiating whether or not to extend the cease fire, and those negotiations could get even more complicated. Egypt announced on Sunday that it will host a summit of Arab leaders later this month to discuss the, quote, “new and dangerous developments in the Palestinian issue,” a.k.a. President Trump’s big idea for the U.S. to take over Gaza and make it the, quote, “Riviera of the Middle East.” And his proposal that Egypt and Jordan take in the roughly two million Palestinians living there. The Trump administration is working to shut down the Consumer Financial Protection Bureau with an order to halt nearly all of its work. In a notice confirmed by the AP over the weekend, Russell Vought, the new director of the Office of Management and Budget, ordered the CFPB to, quote, “cease all supervision and examination activity.” Since its creation, the CFPB says it’s delivered around $20 billion in consumer relief for people across the U.S. through canceled debts, compensation, and reduced loans. And because the CFPB is a creation of Congress, it would need a separate act to officially shut it down. But that has yet to stop the Trump administration from steamrolling all over the federal government and its independent agencies. According to an email sent Sunday by administration officials, the agency’s headquarters in DC are also set to be closed this week. Employees and contractors were asked to work remotely, something I thought Trump fans hated. Coincidentally, Elon Musk posted on Twitter Friday, quote, CFPB, R.I.P. with a tombstone emoji. Professional. The online home page for the agency was also down on Sunday. This is so 2022. Can you guess what David Schwimmer was referencing when he wrote that on Instagram? Will Smith slapping Chris Rock at the Oscars? J-Lo and Ben Affleck getting married? Beyonce’s Renaissance album? No, no, and sadly, no. Over the weekend, the Friends star called out Ye, the artist formerly known as Kanye West for his anti-Semitic comments on Twitter and Elon Musk for allowing Ye to post those anti-Semitic comments on Twitter. Ye posted a series of disturbing tweets including, and I quote, “I’m a Nazi. Hitler was so fresh. And Elon stole my Nazi swag at the inauguration.” The list goes on and on and on and on. There’s a lot to be concerned about here. In response, Schwimmer wrote on Instagram, quote, “We can’t stop a deranged bigot from spewing hate filled ignorant bile, but we can stop giving him a megaphone. Mr. Musk. Kanye West has 32.7 million followers on your platform X. That is twice as many people than the number of Jews in existence. His sick hate speech results in real life violence against Jews.” But the actor’s direct message to Musk, a man who prides himself over his platform’s free speech policies may be moot. Musk said last year, in reference to Twitter ads, quote, “If it’s a choice between censorship and money and free speech and losing money, we’re going to pick the second.” Though he has absolutely no problem booting people from the platform because he doesn’t like them personally or they post things he doesn’t like. And that’s the news. [music break] One more thing. For reasons beyond my understanding, Secretary of Homeland Security Kristi Noem likes to go on Sunday morning news shows and talk. And Super Bowl Sunday was no exception. She went on CNN’s State of the Union and spoke to Dana Bash. And what she said was interesting. 

[clip of Dana Bash] I remember a time when Republicans were very careful about and worried about the government, particularly unelected people. 

[clip of Kristi Noem] Oh we can’t trust our government anymore. 

[clip of Dana Bash] Having having access to–

[clip of Kristi Noem] That’s [?]–

[clip of Dana Bash] –personal data. 

[clip of Kristi Noem] Yeah. Oh. Absolutely. 

[clip of Dana Bash] But you are the government. 

Jane Coaston: Yes, Kristi, you are the government, the so-called deep state lady. You now run a government department set up after 9/11 that once put anti-war activists in a federal terrorism database. I have been mad for three straight weeks with occasional breaks to watch sports or old episodes of Law and Order. I’m not scared. Not chastened, just mad. And I think I’m mad in part because of the exact phenomenon illustrated so beautifully by our puppy killer, secretary of Homeland Security. For pretty much my entire life, the Republican Party has operated not as a political party with its own ideas, but as an opposition party. There are a lot of moving parts within the GOP. A lot of actors who don’t get along and don’t agree. Seriously, what do Senators Tom Cotton and Rand Paul even talk about. But they can agree on what they don’t want, and that’s whatever Democrats or liberals want. They were and are the party of no. But that has also meant that they are almost fundamentally allergic to the responsibilities that holding power requires. There’s always a scapegoat, always a reason why they should get all of the power, but none of the blame for problems. Look, if you have a political belief, it is imperative that you think to yourself, what is the worst possible outcome if I got everything I ever wanted. But the American right just doesn’t do that. Instead, you get excuses. You’ve all heard them. If it just weren’t for those activist judges, if it just weren’t for the Hollywood elite, when women bled out in their cars because of bans on abortion after the Dobbs decision, some conservatives responded that it wasn’t their fault. It was the fault of those hospitals for fearing litigation, the litigation based on laws Republicans wanted in the first place. You bought the ticket. Take the fucking ride. Seriously. There are people within the Trump administration with power over the lives of millions of people who seem to think that they should get to do whatever they want because Kathy Griffin posed with a fake severed Trump head once. Having power is fun and cool. Responsibility is hard. So the GOP has decided that they’ll take one and not the other. So I am not surprised that Kristi Noem seems unaware that she is now really and truly the government. Because honestly, I think she kind of wishes she wasn’t. After all, it’s pretty hard to complain about bad governance when you’re the one doing it. [music break]

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Jane Coaston: That’s all for today. If you like the show, make sure you subscribe. Leave a review. Shudder in horror at what the Super Bowl halftime show used to be like and tell your friends to listen. And if you’re into reading and not just about how before Michael Jackson performed at the 1993 Super Bowl, previous themed halftime shows were entitled Winter Magic and Be Bop Bamboozled and featured some of the worst marching bands you have ever seen in your life, like me. What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Jane Coaston and thank you Kendrick Lamar. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Desmond Taylor, our associate producers are Raven Yamamoto and Emily Fohr. Our producer is Michell Eloy. We had production help today from Johanna Case, Joseph Dutra, Greg Walters and Julia Claire. Our senior producer is Erica Morrison and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. Our production staff is proudly unionized with the Writers Guild of America East. 

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