Democracy Decoded, Season 4, Bonus Episode 1 Transcript

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Trevor Potter: What we're seeing is the administration attempting to remove all checks on the president's authority.

Adav Noti: The end game I think for the president and for the administration right now, what they're ultimately trying to do, is lay the groundwork to contest, or challenge, or even overthrow future election results that they don't like.

Simone Leeper: I won't blame you if you feel like the first 100 days of this Trump Administration has felt longer than 100 days. On many fronts, Trump's second administration has proven to be a dramatic departure from his first term, and a departure from any other administration in American history. There has been a record number of executive orders. An unelected mega- donor has been slashing the federal budget, dismantling executive agencies, and firing federal workers. And the conflicts of interest for Trump's cabinet and other senior officials are almost too numerous to count.

The shocks to the system have been obvious to everyone following the news. We at Campaign Legal Center have spent our careers protecting and advancing the American system of democracy. It's our role to know the law, to know our place in history, and to understand the fundamental workings of our government. To put Trump's first 100 days in proper context, and to discuss how CLC is responding at this moment, I have brought together two of my extraordinary colleagues who know the law intimately and whose experience I have sought many times over the years.

Trevor Potter is the founder and president of CLC. He has also served as chairman on the Federal Election Commission, and was general counsel to John McCain's 2000 and 2008 presidential campaigns. Adav Noti is the executive director of Campaign Legal Center. He has worked as an advisor to members of Congress on democracy- related legislation, and he has also conducted dozens of constitutional cases and trial and appellate courts, and the United States Supreme Court.

Trevor and Adav, I appreciate you joining us on this special episode of Democracy Decoded. One of the first orders of business for a president in their first 100 days is to nominate and fill a cabinet, and make appointments to other high level political positions.

What are your takeaways about Trump's new cabinet?

Trevor Potter: It has been an extraordinary process of partisan ramming through in Congress of his nominees. We have people in the cabinet who I think it's safe to say anyone would agree would not have been confirmed in any other administration. Issues with personal behavior, issues with having no background or knowledge at all of the subject that they're supposed to be in charge of. We saw nominees pushed through in a rush on a party line vote with very little background checking. That's the first thing.

The second is that many of these nominees have significant conflicts of interest. They have been deeply involved in the industries that they regulate, and now they're in charge of regulating industries in which, in many cases, they still have a financial interest.

Simone Leeper: Adav, what about you?

Adav Noti: There are the issues with the cabinet that Trevor flagged. But even beyond that, there are all sorts of people exercising power right now almost on a cabinet level, or what you would expect to be a cabinet level, who have no government position at all. Elon Musk being the prime example of this.

In addition to everything Trevor mentioned, you also have this de facto shadow government that wasn't even ran through Congress. Congress had no say whatsoever and those folks are exercising enormous power.

Simone Leeper: Let's get a little bit more into that. Adav, as you have properly identified, Elon Musk is not in the presidential cabinet, but he has unprecedented amounts of decision making power for a single person without, as you said, a formal role in the administration. His US DOGE service is wielding tremendous influence in the federal government.

What do you have to say about that?

Adav Noti: First, the whole story of how this came to be is extremely troubling how Musk came to wield this power in the government. We've had on the laws for generations in this country a limit on how much any one person can give to a candidate for office to prevent very wealthy people from buying undue influence over elected officials. That limit is about $ 5000, that's the most that anybody can give to somebody who's running for federal office.

Elon Musk spent $ 288 million in support of the Trump campaign in 2024. Problem number one right there is that the laws have been weakened and unenforced to such an extent that the limits that are supposed to prevent very wealthy people from buying influence are ineffective. Then, we have in the case of Musk, the worst case scenario actually coming to pass, which is a very wealthy person spending gobs and gobs of money to get somebody into office.

Then that candidate, that office holder, upon winning rewarding their largest financial supporter with governmental power, with the power to make governmental decisions that effect himself. You have Elon Musk, who runs a number of highly regulated businesses, effectively overseeing the agencies that regulate his business. That presents opportunities for corruption on a massive scale and it all comes about through a level of campaign spending that really shouldn't have been allowed in the first place.

Simone Leeper: Trevor, do you have any additional thoughts about Musk and the US DOGE service?

Trevor Potter: The, I think, flagrant violation here of the Constitution, of the structure of American government. We are supposed to have a system of what's called checks and balances, which means one person doesn't run the government. Part of that is the constitutional requirement that principal officer of the executive branch, people who are going to be enforcing laws and making policy, must be confirmed by Congress. When the founders laid out the Executive Branch, all they were aware of was the possibility that there would be a few cabinet officers, so Secretaries of State, and Treasury, and so forth. They must be nominated by the president and confirmed by the Senate, but that extends to other principal officers of the Executive Branch.

The structure was that anyone in a senior position in the government would have to be approved by the Senate to make sure they were qualified for it and reportable to Congress. Here you have somebody to whom may of the principal functions of the federal government have been turned over, who is exercising unimaginable power in violation of other provisions of the Constitution that require congressional control over spending, and they've never been before the Senate, they've never had a hearing over what they're proposing to do, they haven't been confirmed. You have this serious constitutional problem.

Then, you have the reality as Adav has explained, that this is someone who exceeds any imaginable boundary of campaign finance laws. You go back to why we have these laws, which was the Nixon reelection campaign in 1972 and what was then the scandal that one person gave a million dollars to Nixon. The question was, " What in the world is he buying for that vast sum?" Here, you have someone routinely described as the wealthiest person in the world spending the most money that has ever been spent by an outside individual on a presidential campaign. And, contrary to the basic Supreme Court judicial theory, doing so in close coordination with the campaign. The theory the court had that even allowed large independent spending is that it was independent. That they couldn't talk to the candidate or the party, and it might or might not be helpful if they didn't know the party's strategy. And yet, for a variety of reasons here, Musk was able to actually coordinate this activity with the Trump campaign in key states as he put together an essentially private political party.

You have a president who is completely the creature of a successful Musk political effort, then turning over significant powers of the presidency to this wealthy person who, as Adav as pointed out, is regulated by many of the agencies that he is now in charge of, or revising, or firing people from. He's had matters before these agencies. He's had fights with these agencies. They've been investigating some of these companies and he suddenly is now more powerful than the cabinet members who are running those agencies.

Simone Leeper: A million dollar donation seems a bit quaint in 2025 when we're talking about Musk-level sums.

Changing directions. Let's talk about executive orders. It's obviously not unusual for presidents to issue executive orders soon after they take office. But the Trump Administration has taken this tactic to a whole new level. What executive orders did we see in the first 100 days that touched on CLC's issue areas?

Trevor Potter: It's important to recognize that an executive order is the president telling their administration how they should interpret and enforce the law, acts of Congress. The executive order, which doesn't exist in the Constitution, is simply an internal directive, but it can't create new law or change rules. There are procedures for that that involve Congress in almost every case. It is supposed to be an internal directive.

The president has been using these as if he were a king or emperor and could simply announce what the new law was going to be. That is particularly noteworthy in our areas of concern in elections. Because the Constitution says that states shall run elections, which is both state elections for governor and legislature, and the elections for federal office in those states. House, Senate, presidential electors. The exception to that is unless Congress steps in and adopts specific rules for the federal elections in those states.

There's no role in the Constitution for the president to do anything. The president is not mentioned in connection with elections, he doesn't have any powers.

Congress has established some independent agencies to enforce federal law in this area. You have the Federal Election Commission, which is responsible for ensuring that contribution limits are followed, and that full disclosure of spending occurs. Then you have the Election Assistance Commission, which came in after the Florida 2000 Bush v. Gore controversy, that is supposed to help states with technology and federal funding for voting machines and established standards for machines. Both of those are independent with commissioners in term appointments, and the president has no role in either of those. I was a Federal Election commissioner. We would occasionally get misdirected invitations from the White House to come and be briefed on the campaign. We would respond, "Thank you very much, but we don't work for the president. We have been nominated by the president, confirmed by the Senate, we're now independent.
Part of our job is to regulate you and your campaign."

That's the framework in which President Trump has issued some executive orders. Firing the chair of the Federal Election Commission. Saying that it has to submit changes in its rules to the White House to the Office of Management and Budget. That it has to clear its litigation with the Justice Department. All of which is contrary to existing law. Then the president has issued some executive orders that purport to tell states or the Election Assistance Commission what they must do or what they can't do in the conduct of federal elections. Remember, we have the midterms coming up next year. I think the real problem here is the president is trying to assert authority and power over the running of those midterm elections. Constitutionally, he can't do that.

It's really important that he not be allowed to get away with that, or even to try it, because his party will be running in those elections. We know from 2020 that the president tried to interfere with the counting of ballots, claiming there was fraud, telling the Justice Department to seize voting machines. That Justice Department said, "We have no authority to do."

I think the worry here is the president is trying to lay groundwork to exercise control over the conduct of those elections, and conceivably prevent voters from expressing themselves. His attempts and what we've seen out of the Justice Department goes to who is going to be allowed to vote, how the registration procedures work, barriers to registration, the mass deletion of people who are entitled to vote from the voting roles because of computer questions, all the way through to how long the election will occur, which ballots will be counted, who will do the counting, how will they be counted.

All of these are really important issues that, in our country, are diffused to the states and local election authorities, and the president here is trying to intervene in those.

Simone Leeper: Trevor, you just mentioned this elections executive order and the things that it purported to do. What is CLC doing to fight back against that order?

Trevor Potter: We filed a lawsuit saying that order was unlawful, unconstitutional, within days of it being issued. We filed on behalf of a range of groups that are adversely affected by this, saying that the courts have to step in and stop this. We are in the middle of that battle right now, with hearings in district court in the District of Columbia.

Simone Leeper: As you both know, a federal judge actually just agreed with us, that the president doesn't have the authority to dictate our election rules. For the benefit of our listeners, a key part of President Trump's anti- voter executive order was actually just successfully halted in court after Campaign Legal Center filed a motion to block the Election Assistance Commission from implementing part of the president's executive order. That's great news for voters.

Adav, do you have any other thoughts on executive orders?

Adav Noti: The only thing I would add to what Trevor laid out is that there's been quite a lot coming out of the White House and the administration in the first 100 days, executive orders being a large chunk of that. Some of those, frankly, are for show. Some of those actions are not particularly significant. They're intended to get headlines or get people riled up, but they don't do very much. But then, some of them, like the orders that Trevor talked about, are not normal and very troubling.

The part of the calculus for those of us who are working to advance and improve American democracy is to figure out which of these actions are threatening to our democracy and to really focus on those. I think the ones that Trevor laid out represent several of them, although there are others, including orders on birthright citizenship and some additional ones that are really quite concerning.

Simone Leeper: Let's talk about that executive order that you just mentioned on birthright citizenship. It obviously grabbed some of the most headlines in the early days of the Trump Administration. What do you have to say about it?

Adav Noti: The order that the president purported to issue about citizenship is, to my mind, one of the most troubling actions that the administration's taken in its first 100 days. This order said that people who are born in the United States under certain circumstances are not entitled to American citizenship, and directed federal agencies not to issue the relevant citizenship documents to those people born in the United States.

Citizenship is the core of democracy. It is the primary and in most cases sole determinant of who can vote. It's the determining factor in a whole range of abilities to participate in and interact with our government and our democratic process. It is specifically very clearly laid out in the Constitution to avoid exactly this sort of question.

That if you're born in the United States, you are a US citizen. For the President of the United States to say, " No. I am going to unilaterally deny citizenship to certain people born in the country," is incredibly troubling. Both as a matter of abiding by the law, abiding by the Constitution. And also, because of what it means for democratic participation.

If the president has the right to decide who is and who is not a citizen, then the president can decide who can and can't vote. Or who can and can't otherwise engage with the government. That is a very dangerous situation for the president to be able to determine that litigation was filed immediately challenging the citizenship executive order. That litigation has, to this point, been successful and the order is not in effect.

We at Campaign Legal Center are helping out, just making sure the courts are aware of the ways in which this order intersects with democracy issues. But ultimately, the Supreme Court is going to decide the issue. They're going to hear argument in May on that question and probably decide within the next two months or so after that. I think even this Supreme Court is going to be pretty hesitant to endorse what the president has done here.

Simone Leeper: What you said reminded me of my world of re- districting, where with gerrymandering we often use the phrase, " Voters should pick their politicians, not the other way around." This takes that to a whole nother truly disturbing level. I hold that hope for the Supreme Court as well.

Earlier, Trevor got a bit into how the administration through executive orders has attacked some specific independent agencies, namely the EAC and the FEC. Has the Trump Administration tried to interfere with other independent agencies as well?

Trevor Potter: What we're seeing is the administration attempting to remove all checks on the president's authority. Congress established some of these independent agencies for the express purpose of regulating conduct by the Executive Branch. The Merit Systems Protection Board, for instance, which the president has fired members of, is there for the purpose of ensuring that regular government employees follow the law and that the entire system of nonpartisan employees is properly administered. The check is on senior Executive Branch officials who might want to politicize the nonpartisan civil service. It's important that board be there to ensure that the civil service is administered as Congress has laid it out in the law. A law that's been in effect now for over 100 years.

We're seeing the result of removing all of these guardrails and ways to check the president's authority, destroying the independence of IGs, inspector generals in departments across the government. There's a law that says the president can't fire them without cause and has to notify Congress of what that cause is. The president came in and fired many of them without any notice to Congress at all. Now, if there is an ethics complaint involving a cabinet member or senior member of the administration that would normally go to the inspector generals, those are going to be either empty or people Trump has temporarily appointed and who are directly beholden to him without any sort of congressional confirmation.

Simone Leeper: Now, at the start of the second Trump Administration, experts said that our system of checks and balances would be tested, but that we could withstand the pressure if those with the power to hold the president accountable when necessary did their jobs. 100 days in, I want to talk about how that's been playing out.

Are there any bright red lines that you believe this administration has already crossed where those with the power to check the president have not done their jobs?

Trevor Potter: One of them is clearly the president's refusal to abide by laws passed by Congress on the establishment of agencies or programs in the Executive Branch where he has simply shut down programs that Congress has authorized funding for and has specified what their role should be. A lot of that is in the foreign policy area, whether it's the Voice of America, or entities the president has simply announced he's going to close even though Congress has authorized them.

There, I think what we're seeing is a surprisingly supine leadership in Congress. The Republicans control the leadership of both houses and they have pretty much explicitly said they don't want to challenge the president, publicly at least. They don't want to push back at his usurpation of their power over the purse. There, the checks and balances built into the system so far really have not done their job.

Then the president has politicized the Department of Justice and fired a very large number of attorneys for standing up and trying to follow the law or department regulations. The president recently issued a statement requiring the Department of Justice to investigate two officials from the first Trump Administration for the "crime," as he called it, or the "treasonous activity," as he called it, of criticizing the president. Of talking about why they felt what he had done in the first administration was wrong or incompetent. Or in one case, for saying that the 2020 election was not actually stolen, that there was no sign of fraud in that election.

The president said that was itself fraudulent and treasonous, and the individual should be investigated.

We're seeing this overtly partisan politicization of the criminal justice system and the Department of Justice with no guardrails to stop him so far. Now of course, those individuals will fight the president in court, say that this is illegal, and they may well win those cases down the road, but they're going to have to defend themselves against acts that should never have occurred.

Adav Noti: I'll add one more example. It's not from the democracy field, but it's really glaring. 

TikTok. Congress passed a law last year requiring TikTok to be sold. It was incredibly hotly debated. It was all anybody talked about for weeks. It passed and it was signed. It went to the courts, and it went to the US Supreme Court on an expedited basis. Everybody said, "What is the court going to do?" The court upheld it. President Trump came into power and said, "No, I don't care. I'm not going to enforce it."

Congress, which spent enormous political capital of its own to pass and defend this law, has done nothing. Has said nothing, has done nothing. There are many examples, as Trevor went through. But it's one of the most glaring, where the checks in the system, having another branch of government like Congress and like the courts, really mean nothing to this administration.

Trevor Potter: I would note that the presidential oath of office taken on inauguration day is to ensure that the laws are faithfully executed. That's the president's job. That's why it's the Executive Branch. They are executing the laws as passed under the Constitution. The law that Adav just mentioned, the TikTok one, is a prime example of the president ignoring that constitutional duty.

Simone Leeper: That's also a good reason why all of these things are democracy issues. Even if it's not a law about democracy, it's about the functioning of our democracy and relying on the branches of government to do their roles.

We've put a lot of faith in the courts to protect the Constitution and the rule of law, especially as we just discussed, when Congress is neglecting to do their role as part of the systems of checks and balances. How has the independent judiciary functioned so far in the Trump Administration this time around?

Adav Noti: I would say so far, so good. The federal judges all across the country, judges appointed by President Trump, appointed by other presidents, have really been doing admirable work in scrutinizing the legality and the constitutionality of the administration's actions. When appropriate, issuing orders requiring the administration to conform to the laws and the Constitution. There have been some cases where the administration's compliance with those orders has been less than 100%, let's say. But even in those cases, the judges and the courts have been playing their role quite well in independently and neutrally assessing what the administration is doing.

In some of those cases, the administration is prevailing. And in some, organizations like us and like our allies are obtaining court orders finding that the president has acted illegally and mandating changes. In those situations, by and large, the orders have been carried out and are being carried out, and the unlawful actions are being stopped.

Now a lot of these cases are going to end up at the US Supreme Court. Not all of them, but many of them. The current Supreme Court is politically very closely aligned with the president and the administration, so there are going to be some cases where the Supreme Court has a political leaning that may lead to legal results that are not what we would necessarily like to see from a legal perspective.

But when it comes to the core question of compliance with the law, compliance with the Constitution, compliance with court orders, all courts, including the Supreme Court so far, have been performing admirably. I expect that the Supreme Court will continue to play its role as an independent branch of government, interpreting the law and directing the president and the administration to conform to it.

Simone Leeper: Are there any other aspects of our justice system and judicial system that are facing pressure under Trump 2.0?

Adav Noti: One of the more troubling things that the president and the administration have done in the first 100 days is try to manipulate judicial and legal outcomes. Not through the proper way of trying to win court cases, which is to make arguments to judges, but to threaten, and intimidate, and harass the judges and even the lawyers in these cases or in prior cases involving the administration.

What we've seen is the president by name singling out law firms and judges, and calling them corrupt, and calling them crooked, and demanding that they be investigated. Some of the president's allies, including Elon Musk, demanding impeachment of judges. All of which is really unprecedented in modern American history, and is an obvious attempt to bully lawyers and judges into letting the administration do whatever it wants and consolidating its power.

So far, the courts have recognized those efforts for what they are. I don't think there's been a single case where any judge appears to have been swayed or successfully intimidated by the administration. Many of the lawyers and law firms that the president has targeted are fighting back successfully. Some, to my mind, very unfortunately have decided not to contest what the president has done to them, even though it's obviously illegal. They've decided that, for their own financial interests, that they would cut deals with the president and that’s really, really disappointing.

I say it as a lawyer and as somebody who cares about the rule of law in this country, to see some of the most prominent lawyers in the nation bend in the face of an obvious threat to the rule of law and everything they've devoted their careers to, is really disappointing. But most have not done that. Most have stood up for law, for justice, and so far the courts have recognized the illegality of the president's attempt to take on and bully these lawyers, and have stopped the administration's actions in that respect.

Simone Leeper: With attacks on democracy coming on all fronts as part of this flood the zone strategy of this administration, it can feel overwhelming. But CLC and our pro- democracy allies are hard at work to ensure that our system of government, imperfect as it may be, is protected and upheld on behalf of the American people.

Trevor, how is CLC responding to this moment?

Trevor Potter: Our overall goal is to ensure that we do everything we can to preserve the rule of law. Not of one person doing what they want, but the way Congress has passed the laws and the courts have interpreted and enforced the laws. And thus, to preserve our constitutional framework, the separation of powers, the checks and balances, the role of Congress and the judiciary as co- equal branches of government.

Our immediate reaction, the way we have fought for the rule of law, is to file lawsuits and get these issues into the courts where we think the law has been broken. We have filed two major suits in the last weeks. One saying that the actions of the US DOGE service violate their powers.

That the office in the White House established administrations to do technology work does not have the power to go into cabinet agencies, change budgets, fire people, all the things they've been doing. Then, a lawsuit opposing the president's executive order on voting and elections. That's one way in which we have been immediately pushing back to protect the rule of law.

Then, on the ethics side, on the anti- corruption side, we've been looking at the massive possibilities here of grift, of enriching the president's family, or the unethical behavior of senior officials in their administration in cabinet offices, or Elon Musk. We've been documenting conflicts of interest. We've filed ethics complaints about Elon Musk intervening with the Federal Aviation Administration, the FAA, where he has business before that agency. The Commerce Secretary intervening to push up value of Musk's Tesla stock.

There are anti- corruption guardrails across the government that are being dismantled by this administration and we have been publicizing that. And where we can, pushing back on it.

Simone Leeper: Adav, can you speak a little bit to how CLC is responding in this moment?

Adav Noti: Sure. The end game I think for the president and for the administration right now, what they're ultimately trying to do, is lay the groundwork to contest, or challenge, or even overthrow future election results that they don't like. They're trying to do that by restricting voting access on the front end, and also by controlling the levers of election administration on the back end in the vote counting process, and things like that.

The counter to those efforts is to ensure that the elections, particularly the federal elections in 2026 and 2028, are free, and fair, and secure. And that voters have the ability to register, the ability to cast those votes, and that those votes are counted. The way to do that is a mix of taking on the administration's efforts to control the election system, as we've talked about in the context of executive orders and other things today. And also, to work in states all across the country, because states really control their own election processes despite what the administration is trying to do, and to strengthen and secure those processes.

We've been doing that for many years with some significant success at states all around the country, in terms of making their systems more accessible, and safer and more secure, and putting in place really good procedures for vote verification, vote counting that ensure that all legal votes are counted.

And that the opportunities to overthrow an election by throwing out ballots here and there to try to change a result is not going to succeed. That overthrow was attempted in 2020, it didn't work. It's been attempted, not in a presidential election, but in other elections since 2020 and it has not worked in any of them. I'm pretty confident that what we're doing to both push back against the federal overreach, and strengthen at the same time the state processes, is going to result in free and fair elections in 2026 and 2028. The voters can use those elections to express their views on the candidates before them.

Simone Leeper: There's no way around it, this administration will be an extraordinary test of the American system of democracy. But other presidents, and other courts, and other lawmakers have faced each other down during the nearly 250 years of our democracy. Up until this point, the country has survived, the checks and balances have held. The safeguards that generations of Americans have built into the system have indeed kept our country intact. Yet, our system has plenty of weaknesses. The questions facing us during the Trump presidency may seem to have materialized all at once, but they point to persistent issues in the law that have lingered for much longer than one person or one policy.

In the next season of our award- winning podcast Democracy Decoded, we will be looking squarely at some of these persistent, corrosive elements of our system. Starting in September, we will examine several critical factors, including money and politics, corruption, gerrymandering, and efforts to restrict the freedom to vote that threaten the future of our country. With the help of an exiting slate of distinguished guests, we will explain these intrinsic threats and we'll also point the way to solutions, as well as steps that you, the listener, can take to advance democracy. Our goal is to empower you to do what we endeavor to do, hold our government accountable and ensure everyone can participate fully in our democracy.

Campaign Legal Center is a nonpartisan legal organization dedicated to solving the wide-range of challenges facing American democracy. We fight for every American's freedom to vote and participate meaningfully in the democratic process. Particularly, Americans who have faced political barriers because of race, ethnicity, or economic status. Right now, during this pivotal moment for our country, it is critical that CLC has the support it needs to continue to fight on behalf of the American people. Your tax- deductible donation can directly fund our efforts to do just that. If you would like to support our work, just go to campaignlegal.org and click on the Donate button.

Special thanks to our guests, Trevor Potter and Adav Noti, for joining us today.

I'm your host Simone Leeper. This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. Leading the production for CLC are Casey Atkins, multimedia manager, Mannal Haddad, senior manager for strategic communications and marketing, and Madeleine Greenberg, communications associate. This podcast was produced by Sam Eifling and Ebyan Abdigir, edited and mixed by Luke Batiot.

Democracy Decoded is a member of The Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.