TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross. If you want to understand the far-reaching domestic goals of the Trump presidency, you have to understand the working relationship between Steve Bannon, Trump's chief strategist, and Jeff Sessions, the former Alabama senator and new attorney general. That's according to my guest, Emily Bazelon, a staff writer for The New York Times Magazine whose latest article is about how Bannon and Sessions have long shared a vision for remaking America. Now, she says, the nation's top law enforcement agency, the Department of Justice headed by Sessions, can serve as a tool for enacting that vision. Bazelon is also the Truman Capote Fellow for Creative Writing and Law at Yale Law School.
Emily Bazelon, welcome back to FRESH AIR. Why did you want to write about the relationship between Jeff Sessions and Steve Bannon?
EMILY BAZELON: When I started researching the ties between Jeff Sessions and Steve Bannon, I was really struck by their ideological accord and also by the number of years they've been working together in a kind of concerted fashion to advance that agenda. And it actually seemed to me that their relationship predates Bannon or Sessions' relationships with Donald Trump. And that in a sense they were laying the groundwork for this presidency years earlier, although I don't think they were doing that on purpose.
I think they took a long-shot bet on Trump that just happened to pay off. I also wanted to think about what makes potentially the Trump presidency different from other Republican presidents. You know, a Republican president comes into office. We expect a more conservative approach on a variety of issues. But there are also ways in which the Trump presidency is distinct from other Republicans. And I think that looking at Sessions and Bannon is a way to really get at what those differences are.
GROSS: Why is that a way to get at it?
BAZELON: Well, Bannon and Sessions share an ideology that - they often talk about it as being anti-immigrant. And it is. But I think that it's broader than that. I think they really see the chief internal threat of the country as being the way the country's demographics are changing. We're going to go from being a country with about 30 percent of minority voters to about 40 percent in a few presidential cycles. And that - unless the Republican Party changes its platform, that will be a challenge to Republicans and to Trump's base of support, which is 90 percent white.
But I also think there's a kind of deeper cultural discomfort with the growing population of people who are not white in this country, coming from a kind of traditional white sense of propriety of what America is about. That is what's motivating Sessions and Bannon, and that it's part of what's driving the more extreme elements of this presidency.
GROSS: So the goal is to keep America more white and Christian?
BAZELON: Well, yes. I think, bluntly speaking, that's the case. So Sessions, for example, on Bannon's radio show a couple of years ago was talking about an earlier period in American history of high immigration in the beginning of the 20th century. And he talked about that as a radical time. And he used that in a kind of pejorative sense. And then he said that the solution was the 1924 immigration quotas Congress passed and that those quotas were, quote, "good for America."
So the 1924 immigration quotas barred immigration from most of Asia. And they tightly capped the number of people who could come from Italy, the number of Jews, people from the Middle East and Africa. So we're not talking about a kind of neutral form of immigration restrictions. We're talking about a particular way of trying to hold on to a vision of America, the kind of traditional Christian European demographic.
GROSS: So you say that Sessions and Bannon see immigration and the country's changing demographics as America's chief internal threat. What is the threat?
BAZELON: Well, I think from their point of view, there's a kind of cultural threat going on. So one of the things Bannon said before the election was that he was worried that so many of the CEOs in Silicon Valley were from South Asia or from Asia.
And then he said a country is more than an economy, we're a civic society. That seems to imply that if we have too many minorities and foreign-born people here, we're not going to have the same kind of civic society that we've had in the past, that there is a kind of damage or fraying that will be happening. And that's a, you know, very distinct idea of why you want to prevent immigration.
BAZELON: In 2015, Jeff Sessions wrote a 23-page memo to his colleagues saying that the party had to show working class voters how lax immigration policies have stolen their jobs and erased their prospects for moving up the social ladder. What do you know about that memo?
BAZELON: Well, opposing immigration was absolutely the signature issue for Jeff Sessions when he was in the Senate. It was the thing he was known for. Sessions here is hitting the kind of economic rationale for limiting immigration. And in public and certainly on the Senate floor, this is something he talked about a lot, this idea that immigrants are stealing jobs from native-born Americans.
And Sessions is someone who always emphasizes the costs of immigration as opposed to the benefits. Immigrants also make the economy bigger. They are consumers. They buy stuff. They take jobs sometimes that native-born Americans aren't as interested in. But for Sessions, it's always about the cost that immigrants are imposing.
GROSS: So how did Steve Bannon and Jeff Sessions meet? And this was during the period when Bannon was the head of Breitbart News and Sessions was a senator from Alabama.
BAZELON: That's right. So around 2013, Congress started debating a bipartisan comprehensive immigration reform. And this was the bill that was going to put more money into keeping the border secure but would also provide a path to citizenship for some undocumented people. Sessions was adamantly opposed to this bill. He was the most right wing senator on this immigration issue. And he spent a lot of time on the Senate floor opposing this legislation. Breitbart started giving Sessions very flattering, supportive coverage, really highlighting the role he was playing.
And this is a time in which Sessions and Bannon were talking a lot about messaging, sometimes with each other and also with Stephen Miller, who at the time was a top aide of Jeff Sessions and then went and joined the Trump campaign and now works in the White House with Stephen Bannon. So you can see Miller as a kind of actual embodiment of this close tie between Sessions and Bannon.
GROSS: So what was Breitbart News writing about immigration at that time?
BAZELON: Breitbart News covers immigration and immigrants in a very harsh and demonizing way. So you see lots of headlines about illegal aliens committing crimes, a real emphasis on that even though we know statistically that immigrants are less likely to commit crimes than other people. In Breitbart, immigrants are always, you know, murderers and rapists and causing trouble. And often, you see pictures of immigrants - criminal immigrants, their mug shots. They're usually people of color. So there is a real negative racially-tinged association that Breitbart is making over and over again between criminal misconduct and immigration.
GROSS: So Trump, when he was campaigning, sometimes presented people who had been the victims of crimes that were done by immigrants. And he'd use that as an example of the dangers of immigration.
BAZELON: That's right. And we've seen that into his presidency as well. When he gave a speech to Congress recently, he also highlighted victims of immigrant crimes. And, you know, these are real crimes that happened. On the other hand, when you always talk about one category of people committing crimes, you're creating a misrepresentation of who those people are as a whole and leaving an impression that they are disproportionately responsible for violent crime. And that is a false impression.
GROSS: So you're right that Steve Bannon and Jeff Sessions decided that Donald Trump could be the vessel for their brand of Republicanism. And Sessions, in fact, became the first senator to endorse Donald Trump after Donald Trump decided to enter the race. So what do you mean when they - when you say they saw Trump as a vessel for their brand of Republicanism?
BAZELON: Well, I think it's important to remember that before Trump's candidacy, these were marginal fringe figures, Sessions and Bannon. They did not have anything like a central role in Washington. They didn't have a whole lot of power. But they had really strong ideas. And they had, I think, a very well developed sense about messaging. So then Donald Trump comes along. And he begins his campaign by, you know, in this broad brush way accusing Mexicans of being rapists. He gets a lot of attention. Nobody really takes him that seriously.
But Sessions and Bannon could see a willingness to kind of sign on to this anti-immigrant, divisive, nationalist agenda that they had been pushing for a few years. And so that's what I mean by vessel. In a sense, like, Donald Trump from their point of view was this happy coincidence that came along. What we do know is that, as you said, Sessions endorsed Trump pretty early on. And then Bannon wrote with some excitement to a friend of his to say that while he liked some of the other Republican candidates like Ted Cruz and Carly Fiorina, he was ready to sign up for Trump because Trump had endorsed the nationalist anti-immigration plan that Sessions was working on.
So you can see the way in which they really found a kind of common ground here. By signing on to Trump, Sessions gave Bannon a reason to get on board. And then a few months after that, you see Sessions actually crafting or helping to craft an immigration policy for Trump.
GROSS: Was it understood from the start, do you know, that Jeff Sessions would be appointed attorney general if Donald Trump became the president?
BAZELON: Sessions made it clear early on that this was the Cabinet position that he was interested in. And it's not a coincidence. First of all the, Justice Department is just one of the most powerful agencies in our country. And also, Sessions had a background as a U.S. attorney in the 1980s. So he had actually worked for the Justice Department in that capacity before. And so I think you see a kind of perfect synergy here. Sessions is exactly the right person for Donald Trump in this attorney general position given his larger agenda, the one that he shares with Sessions and Bannon. And for Sessions, it's a very powerful post that he is well qualified for.
GROSS: So Jeff Sessions is in an interesting position though in the sense that he helped craft Donald Trump's immigration policy. And now as the attorney general, he gets some say in whether that policy is legal or not.
BAZELON: That's exactly right. Part of what the Justice Department does, one of its many functions, is to defend the acts of the executive branch in court. And so Jeff Sessions, working with whoever becomes his solicitor general, will be figuring out what arguments to make as this immigration policy - as, for example, Trump's executive orders are challenged in court. So again, it's very useful to have someone in the attorney general role who absolutely shares Trump's beliefs and hopes for this - for these immigration restrictions and for his refugee and travel ban as well.
GROSS: Is this a kind of fairly typical relationship between a president and an attorney general, that the attorney general would have helped craft a policy and then be in the position of judging whether it's legal or not - or not being the sole judge, but being part of that process?
BAZELON: That's a pretty distinct and special kind of relationship, that back and forth. There have been a couple of different types of attorney generals over the centuries. And now, I'm borrowing from a professor at Fordham Law School named Jed Shugerman. This is his theory. He points out that some attorneys general have been close friends and even cronies of the president, like, people who were the president's campaign manager. And other attorneys general are well-established lawyers with their own credentials and kind of professional reputations who come into the job.
Sessions is the second type. But he's also a politician, which adds a kind of different dimension. And I also think you're right to highlight his close previous relationship with Trump because it raises questions about his independence.
GROSS: So what will his role be in deciding on the legality of this second executive order travel ban?
BAZELON: His Justice Department will defend that travel ban in court. It may still be struck down in court. But it doesn't have some of the really obvious flaws that the first ban had. This time around, I would assume that the Justice Department lawyers were in there from the beginning, making sure this was as buttoned up to withstand legal scrutiny as they could manage.
GROSS: Well, let's take a short break here and then we'll talk some more. If you're just joining us, my guest is Emily Bazelon. She's a staff writer at The New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. And we're talking about her latest piece for The New York Times Magazine, which is about Jeff Sessions and Steve Bannon and how their relationship helped kind of set the tone for part of the Trump presidency. Let's take a short break and then we'll be back. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Emily Bazelon. She's both a lawyer and a journalist. She's a staff writer at The New York Times Magazine. And her latest article is about how President Trump's chief strategist, Steve Bannon, and the new attorney general, Jeff Sessions, have long shared a vision for remaking America and how the Justice Department may be used to help them do it.
So you write it's through the Justice Department that the Trump administration is likely to advance its nationalistic plans. What are those plans you're referring to?
BAZELON: Well, I concentrate on three different areas. The first one is policing and crime. One of the themes that Trump emphasized throughout his campaign and has continued to push as president is the idea that there's this very dark rise in crime happening particularly in what he calls the inner cities. It's not statistically accurate. Actually, we've had a 25-year decline in crime with a small uptick in 2015. But Trump really pushes this notion that America is under threat and that there's all this danger. And there's an obvious political reason for this. Republican presidential candidates since Nixon have tended to win office when they really strike a law and order theme. You know, Mitt Romney and John McCain as candidates didn't do this and they lost.
So you can kind of see what the impetus for this is here. And it runs straight into the Justice Department's responsibilities. Specifically, one of the priorities for the Obama Justice Department was to investigate or decide whether to investigate police departments for civil rights abuses. And the Obama administration launched investigations in 25 different cities and counties around the country because they were worried that law enforcement, you know, was using force excessively or in other way - unlawfully arresting people or in other ways discriminating against them. And 25 investigations isn't some crazy number. It's the same number as the Clinton administration. The George W. Bush administration launched 21.
But these investigations are sort of a burr in the saddle for both Trump and Sessions because they want the police to have really unfettered discretion. They're really concentrating on kind of unbinding the hands of the police. A lot of police officers supported Donald Trump. And so instead of kind of balancing the interests of law enforcement with the interests of people in the community who feel threatened by the police, we're really seeing a shift here toward always siding on - with the police.
GROSS: And again, in terms of what you think is the Justice Department's goals now under Jeff Sessions, another area you highlight is voting rights. So what do you think that President Trump and Attorney General Jeff Sessions plan to do about voting rights issues?
BAZELON: Well, broadly speaking, there are a couple of different approaches to voting law. You can talk about how to make voting easier for people or you can talk about making it harder. President Obama wanted to make voting easier. And so his Justice Department looked at the Voting Rights Act of 1965, which protects the rights of minority voters, and tried to use that to prevent states from unnecessarily restricting people's voting rights.
So for example, Texas and North Carolina passed laws with strict voter ID and then other kinds of limitations, like taking away same-day voting registration. And the Justice Department sued those states and tried to make sure that the people who were going to be prevented from voting or for whom voting would be more difficult were being protected. And we know that in both states people who tend to lack the required forms of ID are more likely to be black and Latino. So we're talking about hundreds of thousands of minority voters for whom access to the polls becomes more difficult.
The Republican Party has had a different set of priorities. They have really pushed the idea that what's really important is to use the law to prevent voting fraud. Now, they've been doing this without evidence that in-person voter fraud is anything like widespread. But Donald Trump we know has really picked up on this theme. I mean, he made this unproven - wholly unproven allegation that millions of people had voted illegally in the election. And Sessions also has a history from when he was a prosecutor in the '80s of prosecuting African-American civil rights activists for voter fraud.
So there's again a kind of commonality here. And when you push the idea that what the Justice Department should be doing is preventing voter fraud, you've really made a case for using the law in a way that, as I said earlier, makes it harder to vote. And so I think what we're going to see and already seeing is the Justice Department shift from opening up access to the ballot to trying to restrict it. And in the Texas case, the Justice Department under Jeff Sessions has essentially switched sides. So instead of suing Texas, they're now saying they don't think that Texas intentionally discriminated against minority voters.
GROSS: Are there other areas where you see a big change in direction between the Obama Justice Department and the Trump Justice Department?
BAZELON: Well, one thing that's been important already is a complete reversal on the access that transgender students should have to bathrooms in their schools. So the Obama Justice Department issued a kind of nationwide directive telling schools to let transgender kids choose the bathroom that they wanted to use. Sessions withdrew that order. And that has had a kind of cascading effect where the Supreme Court case that would have presumably decided this issue nationally, the court - the Supreme Court has now decided not to hear that case, has sent it back to the lower courts. So without that guidance from the Justice Department in place, what we will have is a local set of decisions in which some transgender kids will get to use the bathroom of their choice and some will not.
GROSS: My guest is New York Times Magazine staff writer and Yale Law School professor Emily Bazelon. Her latest article is about the working relationship between Steve Bannon and Jeff Sessions, their vision for remaking America and how the position of attorney general is the best perch from which to enact that vision. After we take a short break, we'll talk about what the attorney general is responsible for and how the Sessions Justice Department is taking shape. I'm Terry Gross, and this is FRESH AIR.
GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to our interview with Emily Bazelon, a staff writer for The New York Times Magazine. Her latest article, "Department Of Justification," is about the working relationship between Steve Bannon, President Trump's chief strategist, and Jeff Sessions, the former Republican senator from Alabama who is now attorney general. Bazelon writes that Bannon and Sessions share a vision for remaking America. Central to that vision is restricting immigration and emphasizing America's European and Christian roots. Bazelon says that the attorney general position is the best perch from which to transform the country the way Sessions and Bannon have wanted.
Would you give us an overview of what the Justice Department does and what comes under its umbrella?
BAZELON: Yeah, sure. So we're talking about an agency with more than 100,000 employees, 11,000 lawyers. It does things like prosecute environmental cases, environmental violations, prosecutes fraud, oversees all the U.S. attorney offices around the country, which prosecute federal crimes. It has in it the Office of the Solicitor General, which argues cases before the Supreme Court. Another important office, a little more obscure, called the Office of Legal Counsel, which gives internal guidance about the government's legal actions. It's sort of like the Supreme Court inside the government deciding what's OK to do and not do.
Then we have the Civil Rights Division, which is sometimes called the crown jewel of the Justice Department. It's quite small, just 700 employees, about 380 lawyers. But it is charged with enforcing all of our statutes and laws that prevent discrimination. Some of them date from the 1960s. Some came into play later. And it also has this power given to the Justice Department by Congress in 1994 to investigate police departments for these civil rights violations. So it has this very special role in the government. It's the place in the government that also sues the government and effectively polices the government.
GROSS: Right. And as - it also - did you mention the FBI and the Drug Enforcement Agency?
BAZELON: I should have done that, yes (laughter).
GROSS: Because they come under the Justice Department, too.
BAZELON: Absolutely, they do. And the fact that the FBI comes under the Justice Department, you know, is raising some really interesting questions in the Trump administration as we see the FBI participate in this investigation of potential ties between the Trump campaign and Russian intelligence officials.
GROSS: Yes. And that's a very unusual situation right now. I mean, you have two things going on. You've got the FBI looking into connections between Russia and the Trump campaign. But you also have Donald Trump having said over the weekend that President Obama had tapped Trump Tower, had wiretapped Trump Tower. And Jim Comey, who's the head of the FBI, wanted Donald Trump to retract that because he says it's not true. And he also wanted the Justice Department to back him up on that, and the Justice Department has not done that. So we're seeing a situation now where the FBI is in conflict with the president, the FBI is in conflict with the Justice Department, which oversees the FBI.
BAZELON: That's right. What we're seeing are these tensions over a kind of separation of powers within the executive branch. So we usually talk about separation of powers as the legislature or the executive and the courts. But the executive branch of the federal government has become so large that there are people and agencies that are differently positioned within it. Jim Comey as head of the FBI has a fair amount of independence. But you're right, the Justice Department oversees his work. And he wanted a kind of backup in refuting Trump from the Justice Department that Jeff Sessions was not willing to give.
There is a kind of further wrinkle here, which was that because Sessions didn't mention his own meetings with the Russian ambassador during his confirmation hearings, he has said that he has recused himself from the FBI's investigations of the Trump campaign. So when the Justice Department refused to weigh in on Comey's behalf, it's not even entirely clear who was making that decision. Although we will soon presumably have a deputy attorney general who will be in place to oversee that investigation.
GROSS: So what happens in a case where James Comey, who's the head of the FBI, has asked Jeff Sessions, his boss, the head of the Justice Department, to refute a claim by the president? I mean, what are Americans to think? We have, you know, the president and the head of the FBI and the head of the Justice Department in some kind of conflict here.
BAZELON: Right. I mean, this is a really startling development because there doesn't seem to be any evidence we know of to support President Trump's allegations. And they're very serious allegations which are accusing President Obama of breaking the law and also the Justice Department of breaking the law, which is why Comey wants them refuted. Now, Comey could speak out himself, right? I mean he could hold a press conference. He could write a letter.
The sort of deep irony here is that, of course, it was Comey over the summer speaking out about the investigation into Hillary Clinton's emails that the FBI was conducting that caused a lot of ruckus and questions about kind of political interference with the election, especially when Comey then made another announcement shortly before the election which then kind of came to naught. But it seemed like he was again implicating Hillary Clinton.
So there's all these cross-currents. I mean, one could argue that Comey is not speaking out now because he learned a lesson from that earlier intervention and he doesn't want to be playing politics again. Or one could argue that he picked the wrong time to speak out and this is the right time. I'm really not sure what to make of it. I don't think we know enough to quite know what to think.
GROSS: So Attorney General Jeff Sessions has agreed to recuse himself from the investigation into Russian interference in the presidential election. This was after - at his confirmation hearing in January, when Al Franken asked what Sessions would do if evidence emerged that the Trump campaign communicated with the Russian government in the course of the campaign. And Sessions said, I'm not aware of any of those activities. I have been called a surrogate at a time or two in the campaign. And I did not have communications with the Russians. I'm unable to comment.
So he said he had no communications with the Russians. And after that, the story emerged that he twice talked to the Russian ambassador to the U.S. during the time of the campaign. So some Democrats are saying that Sessions committed perjury in the confirmation hearings and therefore he should resign. What would count as perjury?
BAZELON: Perjury is a hard crime to prove. It's not merely that you made a false statement under oath. It's also that you did so intentionally and willfully. You kind of have to be in someone's head or have, like, a smoking gun piece of evidence that they knew that they were lying. And Sessions is saying that he essentially compartmentalized here, that he was being asked a question about contacts between the Russians and the Trump campaign and that he'd met with the Russian ambassador in his capacity as a senator, so it just, like, didn't come into his head at that moment. I'm not sure how persuasive that is, but it certainly would make it trickier for a prosecutor to prove perjury beyond a reasonable doubt than if we had kind of harder proof that Sessions was deliberately concealing something.
GROSS: So you mentioned a prosecutor. Who decides if it's perjury?
BAZELON: Yeah. Well, a prosecutor would decide whether it was perjury, either someone in the Justice Department or someone in a U.S. Attorney's Office. Which, of course, brings us back to the circular question about lines of authority and what happens when you think it's the attorney general who may have committed a crime. This has happened before.
So during the George W. Bush administration, Alberto Gonzales testified before Congress. He wound up I believe saying, I do not recall, more than 60 times. This was in relation to another scandal over firing a group of U.S. attorneys that actually was also prompted by voter fraud investigations if you can believe it. And Gonzales was not prosecuted for perjury. But he did have to resign.
GROSS: So I'm a little unclear about the role of attorney general when it comes to the president. On the one hand, the president chooses the attorney general, who then, of course, has to be confirmed. So you assume the president is going to choose an attorney general who will carry out the president's agenda, who share some kind of vision.
But at the same time, what is the attorney general's role in being the watchdog of the president? Because those two roles seem to be in conflict, you know, carrying out the president's vision but also making sure that the president isn't doing anything that violates the law.
BAZELON: Well, that's right. Maybe the way to think about it is that those dual roles are in tension with each other or at least they can be. So as long as the president's agenda is lawful and the attorney general feels like it's within the bounds of justice, the attorney general would carry out that agenda. But the attorney general works for the American people ultimately and has some greater responsibility to uphold the law. So if the attorney general thought the president was doing something potentially illegal, then his role changes. He might in that case have to resign his position in order to call attention to an illegality or to make sure that he doesn't become implicated in it. But the whole role shifts in that kind of circumstance.
You know, there's nothing nefarious about the attorney general and a White House adviser and the president having a close relationship and working together in concert. Mostly, we expect the attorney general as the chief law enforcement officer of the president to be on board with what the president wants to do. This comes into question when we're concerned about wrongdoing on the part of the president. And then we do want the attorney general to show real independence and integrity.
You know, one of the most famous historical episodes involving this during the Watergate scandal in the Nixon administration, Nixon asked his attorney general, Elliot Richardson, to fire the special prosecutor Archibald Cox who was investigating Nixon. Richardson refused to do that and resigned. The next person in line, William Ruckelshaus, also resigned. And those resignations signaled that something was deeply wrong within the administration and really helped create the conditions for Nixon's resignation. Now, we don't have something like that happening here with that kind of drama of a constitutional crisis. But we do have questions about independence.
And I do think it's a very good sign that Jeff Sessions recused himself from the investigation of the potential ties between the Trump campaign and Russia because that was an important norm kicking in. Trump publicly asked Sessions not to recuse himself, said he didn't see any reasons for Sessions to do that. And Sessions did it anyway. And that was the right thing for him to do in terms of his professional integrity. It was the advice he said he got from career lawyers in the Justice Department. And so I think there we can see the kind of internal check and balance that we want from within our government.
GROSS: My guest is Emily Bazelon, a staff writer for The New York Times Magazine. Her latest article is about the vision for remaking America shared by Steve Bannon and Jeff Sessions. We'll talk more after a break. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Emily Bazelon, a staff writer for The New York Times Magazine and a professor at Yale Law School. Her latest article is about how President Trump's chief strategist, Steve Bannon, and the new attorney general, Jeff Sessions, have long shared a vision for remaking America and how the Justice Department may be used to help them do it.
So Rod Rosenstein is the nominee for deputy attorney general. And if Jeff Sessions recuses himself, that means Rod Rosenstein takes over for that investigation. And if Jeff Sessions were to leave the position, Rod Rosenstein would become attorney general. So what is the role of deputy attorney general?
BAZELON: The deputy attorney general has a really big office, lots of people working for him. It's the person who sort of makes the trains run on time and really has his hands deep within the administration of the Justice Department. It's a very important job. We know that Rod Rosenstein is a very experienced prosecutor. He was the U.S. attorney under George W. Bush. He stayed all through the Obama administration. So he is the kind of deputy attorney general who comes to the job with his own professional reputation and with deep experience as a prosecutor.
GROSS: So since Jeff Sessions has recused himself from the Russia investigation, what role exactly will Rod Rosenstein play, assuming he's confirmed?
BAZELON: Rod Rosenstein will be in charge of that investigation, which makes him a kind of key player in Washington right now with a lot of power to determine where that investigation goes. And one of the questions he's already facing from Democrats is whether he should choose a special prosecutor, someone who would be independent for the most part of the Justice Department, to look into this investigation and really take it over.
GROSS: In continuing this story of conflicts, you know, within and between different groups in government now, President Trump has said that the real criminal investigation, in terms of the Russian interference in the election, we should be investigating who leaked information, and those people should be prosecuted. So what exactly is he calling for?
BAZELON: Well, that goes back to the Justice Department. He made that request directly to Jeff Sessions. And so then that would presumably require Sessions to get prosecutors looking into where those leaks came from, were they from the intelligence community, were they from the White House or some other part of the executive branch. And that again kind of raises these questions about who is answering to who.
It was quite unusual for Trump to make that request for an investigation directly to the Justice Department. Usually, if there's a leak in the federal government, it is up to the department from where that leak came to put in a request to the Justice Department. And you can see why you would want the request to come from an agency as opposed to from the White House. It just seems less politicized that way. But this is a norm that Donald Trump blew right through.
GROSS: Do you think in some ways the checks and balances and safeguards within our government are being tested?
BAZELON: They're absolutely being tested. You know, you can argue that so far they're holding up fairly well. And the argument for that is that the courts pushed back fairly forcefully against the Trump executive order on the refugee and travel ban, that the leaks themselves are a form of check and balance. Now, they may not be the happiest kind because they suggest that there are career employees in the federal government who are really concerned about what's happening and who are worried that if they don't come forward anonymously that some of this information could be lost or that it won't - that these investigations might not be properly concluded. But still, the leaks are some kind of form of check and balance, even if there are a kind of desperate kind.
We also rely on the press in these situations, even though, obviously, the press isn't a branch of government. And the press has been aggressive in covering the Trump administration and trying to really kind of do a lot of ferreting out of the truth and fact-checking. So, you know, we could have another conversation about whether there are also lots of flaws in the press coverage. But on this particular front, I think we see the courts - the kind of career bureaucracy in Washington and the press coordinating to really constrain and limit the powers of the Trump administration.
GROSS: Well, you see the press as part of the checks and balances on government, but President Trump and his chief strategist, Steve Bannon, see the press as the enemy. President Trump has tweeted many times about how the press is, you know, lying, they're deceitful, they're fake news. Bannon has called the press the opposition party. And during the campaign, Donald Trump said that he would try to tighten the libel laws to restrict the press. So what power does President Trump have to tighten controls on the press and limit the press's ability to do its investigations?
BAZELON: President Trump does not have a lot of authority over the libel laws. Most of our ideas about libel law and how important it is as an element of press freedom in this country come from the Supreme Court in a big decision from the 1960s called New York Times versus Sullivan. It's deeply embedded in our law. Trump would be hard-pressed to go after that directly. However, there are other ways to try to limit the power of the press. Leak investigations are a potentially powerful tool. The Obama administration did some of this. They never prosecuted a reporter, but they did try to get reporters to testify against government sources. And some critics of Obama have said that he kind of left that as a weapon for the Trump administration to pick up. And so we'll see what happens with these leak investigations and whether there are real repercussions for reporters who are aggressively trying to ferret out the secrets in the government.
GROSS: If you're just joining us, my guest is Emily Bazelon. She's a staff writer at The New York Times Magazine, and we're talking about an article she recently wrote about how President Trump's chief strategist, Steve Bannon, and the new attorney general, Jeff Sessions, have long shared a vision for remaking America and how the Justice Department may be used to help them do it. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Emily Bazelon. She's a staff writer at The New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. Her latest article for The New York Times Magazine is about Jeff Sessions, Steve Bannon and how the genesis of their working relationship is crucial to understanding the domestic goals of the Trump presidency and how the law may be used to reach those goals over the next four years.
In your New York Times Magazine article, you mentioned the - immigration policies that were crafted in part by Jeff Sessions and Steve Bannon, or perhaps I should say anti-immigration policies, are designed in a way to get immigrants to be so afraid they want to leave the country or they don't want to come here. And that, you know, you say they're encouraging a form of self-exile as part of what they want to accomplish. Does that come from listening to Bannon radio shows or podcasts or from reading Breitbart? I mean, your interpretation of that.
BAZELON: Yes. It also comes from listening to what Jeff Sessions said on CNN I believe last summer, when Trump started talking about making undocumented people leave. Sessions said quite candidly that to do that, you have to get people to self-deport. Now, that's a phrase from Mitt Romney that Romney was derided for and mocked during his campaign. But the truth is that deportation is a gargantuan task if the country really tried to carry it out on a mass scale. It would be incredibly expensive, tie up the immigration courts. And it also could be just so fraught and divisive. If you can get people to leave on their own, then they're essentially doing your work for you.
And so if Trump is going to do anything like fulfill his promise to have millions of undocumented immigrants leave the country, then I think that creating a climate of fear, leveraging fear as an immigration rights lawyer put it to me, that becomes a really crucial tool. I think we're already seeing this, that the ICE raids that are playing out in surprising and unanticipated ways coming after people, for example, when they're driving their kids to school or when they wake up early in the morning. These are tactics that really can unsettle an entire community and make people rethink what it means to live in the United States.
GROSS: I'm wondering if you've been following the Supreme Court and if you have any sense of whether the Republicans in the court will be sympathetic to Trump's agenda?
BAZELON: Well, that's a great question. I think it depends what kind of posture the case that comes before the court will be and what the challenge to it is. But on the immigration front, the president - any president's power is really at its zenith with immigration. And it's important to remember that President Obama took advantage of this in trying to, you know, limit deportation of a whole group of immigrants, people we called DREAMers, the relatives of DREAMers, meaning - the DREAMers are people who came to the United States as children. That was Obama taking an executive action to try to provide essentially a form of deportation relief.
If Trump tries to, as he already is, increase deportation, there are limits to how he can go about that. And there are some due process rights under the Constitution that immigrants have. But they don't have the same kind of rights to due process or equal protection that citizens of the United States have. And some of those questions about how far their rights to equal protection or due process go aren't really settled yet.
And a Supreme Court that presumably will soon have Neil Gorsuch on it and then have a kind of 5-4 Republican-Democratic appointee split is one that might be more sympathetic to Trump on those fronts. Although it's hard to predict exactly what the ideological breakdown will be when we start talking about questions of executive power. That can yield unpredictable results.
GROSS: You write that President Trump may be able to appoint a greater share of federal judges than any first-term president in 40 years. And, of course, the courts are part of the system of checks and balances in our government. So President Trump stands the chance of really, you know, reshaping the courts in some way. Why are there so many vacancies?
BAZELON: This is a happenstance of history. And I owe this insight to my colleagues at The Upshot at The New York Times. They crunched some numbers. And they found that there are a large number of vacancies and a large number of older judges on the court. And so when you predict retirements for those older judges or people taking what's called senior status where they hear fewer cases and then you look at the vacancies, it looks like Trump will have a chance potentially to appoint more judges to the district courts and the federal appeals courts than any president in 40 years.
GROSS: And how might that change things?
BAZELON: Well, their views, as I mentioned, can be unpredictable on executive power. But there is a kind of set of challenges right now to deferring to the judgments of federal agencies. That's been a tradition and the law given from the Supreme Court for a few decades now. But some conservatives are really questioning the wisdom of that whole set of rules.
And then there's the business agenda. You know, the Chamber of Commerce is a very active litigant in the courts, wants fewer consumer protections, fewer protections for employees. And those kinds of changes are changes that a Republican-dominated bench would probably be more likely to put into place.
GROSS: Well, Emily Bazelon, thank you so much for talking with us.
BAZELON: Thanks so much for having me.
GROSS: Emily Bazelon's article "Department Of Justification" about the vision for remaking America shared by Steve Bannon and Jeff Sessions was published in The New York Times Magazine, where she's a staff writer.
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