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Trump Loses Immunity, Johnson Loses Control · Pod Save America

0:01
Speaker 1: Thank you. Welcome to Pond Save America. I'm Jon Lovett.
0:22
Speaker 1: On today's show, Nikki Haley loses the Nevada primary to
0:24
Speaker 1: none of the above, and legendary Nevada political reporter John
0:27
Speaker 1: Ralston stops by to help explain what happened and what
0:29
Speaker 1: it means for November. Strict Scrutiny's Kate Shaw breaks down
0:32
Speaker 1: a federal court's ruling that eviscerates Trump's claim he is
0:35
Speaker 1: above the law and not subject to criminal prosecution. But first, yesterday,
0:40
Speaker 1: House Republicans planned to impeach Homeland Security Secretary Alejandro Mayorkas
0:43
Speaker 1: for the high crime of overseeing policies they don't like,
0:46
Speaker 1: and they wanted to move forward on a cynical standalone
0:48
Speaker 1: funding bill for Israel. as a way to avoid providing
0:50
Speaker 1: the aid Ukraine needs to avoid losing the war. Despite
0:53
Speaker 1: the legislative genius of Speaker, just think about baseball, Mike Johnson,
0:56
Speaker 1: both efforts failed. Joining us now is Daniela Diaz, congressional
0:59
Speaker 1: reporter at Politico and author of their newsletter, Inside Congress. Daniela,
1:02
Speaker 1: welcome back to Pod Save America.
1:04
Speaker 2: Thank you for having me on this crazy week.
1:07
Speaker 1: Daniela, first of all, I understand that you're in Virginia
1:11
Speaker 1: at the House Democratic retreat today. I don't know if
1:14
Speaker 1: that's like a spa thing, if there are sound baths,
1:17
Speaker 1: but what's the mood and what are Democrats saying right now?
1:22
Speaker 2: I mean, it's hard to overstate how giddy they are
1:27
Speaker 2: that they have this mind meld union community. They all
1:33
Speaker 2: vote together watching House Republicans totally melt down last night
1:39
Speaker 2: when they were doing these two pretty crucial votes for leadership,
1:43
Speaker 2: which was, of course, whether to impeach Alejandro Mallorca, his
1:47
Speaker 2: Department of Homeland Security secretary, something they've been talking about
1:50
Speaker 2: doing for months, and also a standalone aid for Israel
1:55
Speaker 2: that didn't include Ukraine that also failed. And I don't
2:00
Speaker 2: want to get into the weeds, but Speaker Mike Johnson
2:03
Speaker 2: tried to pass that using a procedural rule that meant
2:07
Speaker 2: that it would need two-thirds support in the House. So
2:10
Speaker 2: he was betting that enough Democrats would support this. That's
2:13
Speaker 2: not what happened. And it's really, really quite crazy. I mean,
2:19
Speaker 2: I think the best way to describe what was happening
2:21
Speaker 2: in Congress this week, what we saw last night with
2:24
Speaker 2: the House Republican conference is like a dumpster fire emoji.
2:28
Speaker 2: It's truly, it feels, I want to say that it
2:34
Speaker 2: feels like the House speaker's race, like when they booted McCarthy,
2:38
Speaker 2: like that kind of chaos. But it's even crazier because
2:42
Speaker 2: There is a speaker and there is leadership and there is,
2:45
Speaker 2: you know, they're they're trying to pass legislation that they
2:47
Speaker 2: just can't.
2:49
Speaker 1: There was a split screen over the last couple of months.
2:50
Speaker 1: You had Democrats and Republicans in the Senate working together
2:56
Speaker 1: on a series of bills to fund the government that
3:00
Speaker 1: that would then die in the House. Republicans in the
3:02
Speaker 1: House would say, we need to do individual funding bills
3:06
Speaker 1: exactly the way the Senate was doing it. But then
3:08
Speaker 1: they couldn't get anything through.
3:09
Speaker 3: Right.
3:10
Speaker 1: They couldn't they couldn't pass legislation. They could not, they
3:13
Speaker 1: barely could prevent the government from shutting down. You have
3:16
Speaker 1: in the House, you have Republicans pushing for a impeachment
3:19
Speaker 1: of Mayorkas. And in the Senate, you have Mayorkas on
3:23
Speaker 1: behalf of the administration working with Lankford, Murphy, Sinema, and
3:26
Speaker 1: others to try to come up with an actual deal
3:28
Speaker 1: to address the problem. In the House, Marjorie Taylor Greene,
3:33
Speaker 1: I thought, said something that was, I think, revealing, which
3:37
Speaker 1: is the only way we'll control the border is by
3:40
Speaker 1: impeaching Mayorkas. And yet that cynical gambit, right? They're refusing
3:47
Speaker 1: to go along with actual legislating to fix the problem,
3:49
Speaker 1: but they can't even get their cynical gambits across the
3:51
Speaker 1: finish line. What happened? Why did this impeachment effort not pass?
3:59
Speaker 1: It led to a tie and they had to kind
4:01
Speaker 1: of walk it back. But why did it fail?
4:04
Speaker 2: Well, first of all, Johnson has like a three vote
4:08
Speaker 2: margin to get anything across the finish line. That's like
4:11
Speaker 2: number one, even more slim. It's like razor thin, right?
4:13
Speaker 2: Like he can only afford to lose three to four votes.
4:17
Speaker 2: And they have an absence because Steve Scalise is getting
4:22
Speaker 2: cancer treatment. And that's something that, you know, everyone has
4:25
Speaker 2: known about for a long time since he came out
4:27
Speaker 2: and said that he had cancer. But then also he knew,
4:32
Speaker 2: that's another thing that you really have to, when it came,
4:36
Speaker 2: Let me backtrack. When it was House Speaker Nancy Pelosi,
4:39
Speaker 2: the joke within people that knew her, and when I
4:43
Speaker 2: say people that knew her, her aides, people on the
4:45
Speaker 2: other side, reporters, you know, the Capitol Hill community, is
4:48
Speaker 2: that she would never put a bill on the floor
4:50
Speaker 2: that she didn't have the votes for. Pelosi was someone who,
4:56
Speaker 2: as many have said, ruled with a Gucci glove. She
4:59
Speaker 2: knew how to get the votes, and she never put
5:02
Speaker 2: a bill on the floor that didn't have the votes.
5:04
Speaker 4: Now.
5:04
Speaker 2: we've seen in this Congress, first it was McCarthy, now
5:07
Speaker 2: it's Johnson, put bills on the floor that don't have
5:13
Speaker 2: the votes. And sometimes it's the first step of that
5:15
Speaker 2: vote passage, like we call it a rule, like to
5:18
Speaker 2: advance legislation, don't need to get too technical, but McCarthy
5:21
Speaker 2: would put rules on the floor and he wouldn't have
5:24
Speaker 2: the votes. And now we saw Johnson put bills on
5:28
Speaker 2: the floor last night that he knew didn't have the votes,
5:30
Speaker 2: but he put them on the floor anyway. And These
5:35
Speaker 2: members that voted against it, and specifically I'm thinking of
5:37
Speaker 2: Mike Gallagher, who this morning said, leadership knew I wasn't
5:40
Speaker 2: going to support the Mayorkas impeachment, and they've known for
5:43
Speaker 2: a month. I've been very clear about where I stand
5:45
Speaker 2: on this issue. It's very surprising to watch Johnson just
5:50
Speaker 2: put bills on the floor that are not going to
5:52
Speaker 2: pass and be okay with that embarrassment of what was
5:54
Speaker 2: last night, that he put two bills that were pretty
5:58
Speaker 2: high stakes and watched in real time that there weren't
6:03
Speaker 2: enough votes. So- I think it shows first that he
6:06
Speaker 2: is figuring out how to govern in real time.
6:08
Speaker 1: Yeah, that's for sure.
6:10
Speaker 2: He's figuring out how to govern in real time. And
6:12
Speaker 2: then also it shows that the conference is so broken.
6:17
Speaker 2: They don't really have... And normally it's okay to have
6:21
Speaker 2: some members that aren't supporting things. I think of, you know,
6:24
Speaker 2: when the progressives would vote against things when Pelosi was speaker.
6:27
Speaker 2: But their margin is so thin. He can't afford that.
6:31
Speaker 2: And he's not planning ahead.
6:33
Speaker 4: So.
6:35
Speaker 2: I don't I guess they're going to get Scalise here
6:38
Speaker 2: next week and they're going to try to pass this again.
6:40
Speaker 2: And that's what we're hearing with one vote, with a
6:44
Speaker 2: one vote margin, you know, like just one vote to
6:46
Speaker 2: get it over the finish line and then they'll impeach Mayorkas.
6:49
Speaker 2: But then, of course, it doesn't even matter because this
6:51
Speaker 2: is going to get buried in the Senate.
6:53
Speaker 5: Right.
6:53
Speaker 1: It's already dead in the Senate. It's already Republicans have
6:55
Speaker 1: come out against in the Senate.
6:56
Speaker 2: So it's one example of many of just pure dysfunction.
7:02
Speaker 2: I know I keep saying that word.
7:03
Speaker 1: But I don't know how else to describe it. But
7:06
Speaker 1: it's like, Hey man, uh, you know, uh, you know,
7:10
Speaker 1: you know, you didn't have a lot of training for
7:11
Speaker 1: this in the art museum, but, but now you're here.
7:14
Speaker 1: If you're going to pull a bunch of bullshit political
7:16
Speaker 1: stunts and not do anything, uh, it's pretty embarrassing to, to,
7:20
Speaker 1: you're not even able to complete your stunts, right? Like
7:22
Speaker 1: he can't even, he's not governing and he's not succeeding
7:25
Speaker 1: at his, like who is, who is getting anything out
7:28
Speaker 1: of this? Like, who does this kind of thing serve?
7:30
Speaker 6: Right?
7:30
Speaker 1: Like, Oh, they'll come back next week at a Mayorkas impeachment.
7:33
Speaker 1: Then it goes to the Senate and just dies. That's
7:35
Speaker 1: sort of the, there's sort of an embarrassing, some kind
7:38
Speaker 1: of a process that's very quick.
7:41
Speaker 2: And by the way, they're still like, they're still dealing with,
7:44
Speaker 2: I'm thinking specifically of that New York race that's happening
7:47
Speaker 2: in the next couple of weeks and they need that seat.
7:50
Speaker 2: That was George Santos. And I even heard, and I
7:54
Speaker 2: think it was a Republican in the conference saying, now
7:59
Speaker 2: people are probably missing George Santos because they expelled him.
8:02
Speaker 2: But that's really like another example of just like, the
8:05
Speaker 2: chaos of they're wanting to keep someone who's been indicted
8:09
Speaker 2: for the sake of having a vote to get things
8:11
Speaker 2: across the finish line. And then this is all taking
8:13
Speaker 2: place while this election is happening, the special race that
8:16
Speaker 2: they have a seat they need. And it's not a
8:18
Speaker 2: really good example of, you know, how Republicans can govern.
8:21
Speaker 3: Yeah.
8:22
Speaker 2: Which Democrats, again, as I'm here, are seizing on that, right?
8:25
Speaker 2: Like that's the messaging they're going to have in the
8:27
Speaker 2: next two days at this Democratic retreat is we deserve
8:30
Speaker 2: to have the House back because we can govern. And
8:32
Speaker 2: that's and they're like, we don't even have to prove it. Like,
8:34
Speaker 2: watch what's happening right now.
8:36
Speaker 1: And now heading into a potential, even if let's say
8:39
Speaker 1: they do get the votes. OK, you have you refuse
8:44
Speaker 1: to vote on border security, but instead decided to impeach
8:48
Speaker 1: the person negotiating and trying to figure out how to
8:50
Speaker 1: actually solve the problem. Like, I don't know that that's
8:52
Speaker 1: a good story for them. It is amazing to me
8:54
Speaker 1: how in the last week this is an issue on
8:56
Speaker 1: which they believe they can win on. that they have
8:59
Speaker 1: gone on the record and saying, we like the crisis
9:01
Speaker 1: at the southern border so much, we don't want to
9:03
Speaker 1: fix it so that we can run on it. Like,
9:05
Speaker 1: I don't know that that's good politics for them. On
9:09
Speaker 1: the standalone Israel bill, which also failed, just very quickly,
9:16
Speaker 1: because we've taken a lot of your time, but like,
9:17
Speaker 1: what happened there? And why did Johnson want to bring
9:22
Speaker 1: this vote? And why did it fail?
9:27
Speaker 2: Well, Johnson... used the standalone Israel bill as a proof
9:34
Speaker 2: that he wants to do something in the wake of
9:37
Speaker 2: the Senate supplemental kind of falling apart, right? He announced
9:43
Speaker 2: that he was going to do this on Saturday. It
9:44
Speaker 2: was only a couple of days ago that he announced
9:46
Speaker 2: that he was going to put this bill, you know,
9:47
Speaker 2: it's felt like a month in the last like three days.
9:50
Speaker 2: And then the deal came out Sunday, which we knew
9:52
Speaker 2: was going to happen. The text that was unveiled by
9:56
Speaker 2: these negotiators and blessed by leadership.
9:59
Speaker 4: And then.
10:01
Speaker 2: Even members of his own conference didn't want to support
10:03
Speaker 2: this bill. And I'm talking about the House Freedom Caucus
10:05
Speaker 2: members because there were no offsets to pay for this legislation.
10:09
Speaker 2: But it was also kind of a meaningless vote because
10:13
Speaker 2: President Joe Biden said in a statement yesterday, two days ago,
10:17
Speaker 2: that It was two days ago that he would veto it.
10:23
Speaker 2: And so why would Schumer put that on the floor
10:25
Speaker 2: in the first place either? So it was kind of
10:26
Speaker 2: just a messaging bill to prove that Republicans care about
10:29
Speaker 2: Israel and want to help, right? And he needed Democratic support.
10:35
Speaker 2: And I, again, don't want to get into the details,
10:38
Speaker 2: but basically he put this on the floor as a suspension,
10:41
Speaker 2: which basically means he needs two-thirds support from the House.
10:44
Speaker 2: And he knew he didn't have Democratic support. Democratic leaders
10:47
Speaker 2: yesterday in their conference meeting basically told their caucus, vote
10:53
Speaker 2: your conscience, but we're not supporting this. We're not going
10:57
Speaker 2: to tell you to vote against this. And of course,
10:58
Speaker 2: there were Democrats that did support it. In the end,
11:00
Speaker 2: it wasn't enough. And Johnson knew that it was going
11:04
Speaker 2: to tank and he did it anyway. So- many people
11:08
Speaker 2: are questioning. I mean, he was defensive of why he
11:10
Speaker 2: did it in just a press conference he had at
11:13
Speaker 2: 1130 today on Wednesday. But he said that they need
11:18
Speaker 2: to move on legislation when the Senate's not acting. That's
11:21
Speaker 2: his argument. But the disconnect between the two is pretty wild,
11:26
Speaker 2: considering when Mitch McConnell was leader in the Senate and
11:30
Speaker 2: Pelosi passed bills on the House, the Senate would would
11:33
Speaker 2: take that legislation up or the House would take up
11:35
Speaker 2: legislation that the Senate leader, Republicans would pass. So it's
11:38
Speaker 2: just so different in this Congress with this divided government.
11:42
Speaker 2: That's not happening anymore.
11:45
Speaker 1: And what is, just to come full circle, what is
11:50
Speaker 1: the possibility of a, of going back, you know, Schumer
11:53
Speaker 1: talked about wanting to bring this up if this, if
11:57
Speaker 1: the border bill either gets a vote or fails, whatever,
12:00
Speaker 1: that he wants to go to the Ukraine, Israel, Taiwan
12:03
Speaker 1: standalone bill, which is what they were trying to do
12:05
Speaker 1: before the border hostage taking took place from these Republicans.
12:10
Speaker 1: And again, the reason Ukraine and Israel and Taiwan are
12:13
Speaker 1: tied together and why Mike Johnson tried to do Israel
12:16
Speaker 1: alone is because the belief was so many people want
12:19
Speaker 1: to do the Israel and Taiwan funding, that it will
12:22
Speaker 1: be enough to make sure that the Ukraine funding passes,
12:24
Speaker 1: which again, a majority in both the Senate and the
12:26
Speaker 1: House want to pass. So are we actually back to
12:30
Speaker 1: a standalone? And did Republicans fall right into the Democratic
12:36
Speaker 1: trap set from the very beginning?
12:38
Speaker 2: I mean, that's what I'm it's funny, I'm seeing a
12:40
Speaker 2: lot of takes. And it's a lot of Republicans saying
12:43
Speaker 2: this is what Democrats wanted in the first place. But
12:46
Speaker 2: as a reporter that has covered this from the very beginning,
12:50
Speaker 2: there was good faith negotiations on this. And I don't
12:55
Speaker 2: think that that is at all what the intention was
12:58
Speaker 2: from Democratic leadership is to have them just go right back,
13:01
Speaker 2: you know, waste the last four months and then have
13:03
Speaker 2: these guys who negotiated for weekends. And we were working weekends, too,
13:06
Speaker 2: covering these negotiations. It feels.
13:09
Speaker 1: And I don't want to forget about that. And I'm
13:11
Speaker 1: sorry I didn't mention that. All right. When these people work,
13:13
Speaker 1: you have to work on the weekend. And now you're
13:15
Speaker 1: following these people around. And that sucks.
13:18
Speaker 2: Well, that's sweet of you. But I think I mean,
13:20
Speaker 2: we know what we signed up for.
13:21
Speaker 1: And that's right.
13:24
Speaker 2: I think. If this all ends up being– and I
13:29
Speaker 2: don't know yet. I think this is all– I think
13:31
Speaker 2: even senators don't know yet as I talk to you
13:34
Speaker 2: what's going to happen next because this fell apart so
13:38
Speaker 2: quickly and there was no plan.
13:42
Speaker 1: B.
13:43
Speaker 2: If this all ends up being that it's just a
13:44
Speaker 2: supplemental funding package without border security measures, it really shows
13:48
Speaker 2: just truly how crazy things are right now.
13:52
Speaker 1: It does– if that is actually what happens– it really
13:56
Speaker 1: does feel like Republicans were like little kids demanding an
13:59
Speaker 1: ice cream cone and mom and dad handed them the
14:04
Speaker 1: ice cream cone. Then because they were, they were still
14:06
Speaker 1: so upset and they didn't know how to deal with
14:08
Speaker 1: their feelings. They threw the ice cream cone on the
14:10
Speaker 1: ground and then mom and dad said, fine, we'll leave
14:12
Speaker 1: without ice cream. And now they're like, wait, no fucking
14:15
Speaker 1: ice cream. You know what I mean?
14:18
Speaker 2: It's, that's a very good, interesting, very good way to
14:21
Speaker 2: describe probably truly what it the chaos that just unfolded
14:26
Speaker 2: in the last week. And it's not even over. Sometimes
14:29
Speaker 2: I'm reminding myself it's just Wednesday.
14:31
Speaker 4: It is.
14:32
Speaker 1: And it is only Wednesday, hump day, as it were.
14:35
Speaker 1: So one, Tom Massey tweeted this morning, a platform I'm
14:39
Speaker 1: no longer on, getting rid of Speaker McCarthy has officially
14:42
Speaker 1: turned into an unmitigated disaster. Is the Mike Johnson honeymoon over?
14:47
Speaker 1: Do they miss McCarthy now? You have Matt Gaetz saying
14:49
Speaker 1: McCarthy would be a great RNC chair.
14:53
Speaker 4: Did they pay Paradise?
14:53
Speaker 2: I know, I did see that. I did see that.
14:55
Speaker 2: I mean, I would say probably the Gates Eight, that's
14:59
Speaker 2: what they're unofficially called on Capitol Hill, would not ever
15:02
Speaker 2: admit to making a wrong move when it came to
15:06
Speaker 2: booting McCarthy from the conference, but all of his allies.
15:09
Speaker 2: And a reminder, he had most of the support of
15:12
Speaker 2: the conference. Most of them wanted to keep him. Most
15:15
Speaker 2: of them don't like that this is all taking place.
15:18
Speaker 2: I mean, I think that they're missing him a lot
15:20
Speaker 2: right now and also— feeling the effects of what happens
15:24
Speaker 2: when you have someone in leadership that really hasn't done
15:26
Speaker 2: it for very long. Because it really, having experience in
15:30
Speaker 2: leadership means something, of course, as we've seen with House
15:35
Speaker 2: Speaker Nancy Pelosi when she was leader and she was
15:37
Speaker 2: in leadership for so long. And then the other members
15:42
Speaker 2: of the Republican conference who are, most of them are
15:44
Speaker 2: new in the last six years. So Republicans are really
15:49
Speaker 2: feeling that.
15:50
Speaker 1: What's the meanest thing a Republican has said about a
15:52
Speaker 1: Republican to you? Off the record or on background?
15:57
Speaker 2: Well, I can't, I remember someone saying, and I can't recall,
16:00
Speaker 2: and this was on the record, that Republicans don't deserve
16:03
Speaker 2: to be in the majority.
16:04
Speaker 4: Wow.
16:05
Speaker 2: Which I thought was pretty, pretty intense. And I shouldn't
16:09
Speaker 2: have the name of who said that, but I mean,
16:12
Speaker 2: Republicans have been saying that about themselves for a long time.
16:15
Speaker 2: And I've heard a lot, and I should say, I've
16:16
Speaker 2: heard a lot of cussing in the last 48 hours.
16:19
Speaker 2: It's just like, Members being like, what the hell is happening?
16:22
Speaker 2: I mean, you know, bad, worse words. I don't know
16:24
Speaker 2: if I'm allowed to cuss.
16:25
Speaker 4: Am I allowed to cuss?
16:25
Speaker 1: Oh, for sure.
16:26
Speaker 4: Oh, yeah.
16:26
Speaker 2: They're just like, what the fuck is happening? Like, why
16:29
Speaker 2: is this happening? And then this is embarrassing. And, you know,
16:34
Speaker 2: these are members that vote always with leadership and do want,
16:37
Speaker 2: you know, to pass legislation and move things along. So
16:42
Speaker 2: it's some crazy times, some presidented times, as everyone always
16:47
Speaker 2: says about the times.
16:48
Speaker 4: We live in.
16:50
Speaker 1: Daniela Diaz, thank you so much for your time. Good
16:51
Speaker 1: to see you. This was fun. Really appreciate it. And,
16:55
Speaker 1: you know, have a great time at that House Democratic
16:57
Speaker 1: leadership spa day that you're out there.
17:00
Speaker 4: Thank you.
17:07
Speaker 1: On Tuesday, Nikki Haley ran in the Nevada primary unopposed
17:10
Speaker 1: and still somehow managed to lose the If you remember,
17:14
Speaker 1: Nevada is doing a weird thing this year. The state
17:16
Speaker 1: held the primary on Tuesday by law, but the Nevada
17:19
Speaker 1: Republican Party is holding a caucus on Thursday, and that's
17:22
Speaker 1: where the actual delegates will be at stake. Trump is
17:24
Speaker 1: competing in the caucus, but not the primary. Haley was
17:26
Speaker 1: competing in the primary, but not the caucus. Somehow Trump
17:29
Speaker 1: is going to win both. Here to explain why the
17:31
Speaker 1: Silver State's primary voting process is so confusing this year,
17:34
Speaker 1: and if the results matter, if at all, it's the
17:37
Speaker 1: CEO and editor of the Nevada Independent, one of the
17:40
Speaker 1: most celebrated journalists in Nevada, the dean. of the Press
17:44
Speaker 1: Corps in Nevada. It's John Ralston. Thanks for being here.
17:47
Speaker 3: Dean of the Press Corps just means I've been around
17:48
Speaker 3: a while.
17:50
Speaker 1: No, I know. It's yes, for sure. Well, I think
17:52
Speaker 1: that if you were an asshole, it wouldn't matter if
17:54
Speaker 1: you'd been around longest. You know what I mean?
17:55
Speaker 3: I think we could probably get some commentary about whether
17:58
Speaker 3: I'm an asshole or not. So, but that's a different podcast,
18:02
Speaker 3: I think.
18:02
Speaker 1: For sure. So quit dodging my questions. Let's focus here.
18:06
Speaker 1: What happened? So Nikki Haley, just so people understand, This
18:11
Speaker 1: primary didn't have delegates. It was low turnout, but still
18:14
Speaker 1: somehow she managed to lose to none of these candidates
18:20
Speaker 1: by 33 points. What happened?
18:24
Speaker 3: So this is a very quirky, strange year, even in
18:27
Speaker 3: our quirky, strange state, right, John? So it's her fault
18:33
Speaker 3: that this happened, by the way. I think she could
18:35
Speaker 3: have prevented it. She ignored Nevada. She said... Nevada is
18:40
Speaker 3: not a fair state that the process is rigged. And
18:44
Speaker 3: she is correct about the caucus. But as you know
18:48
Speaker 3: better than anybody, the delegate count early on is not
18:52
Speaker 3: nearly as important as gathering momentum, controlling the narrative from
18:57
Speaker 3: the national media to say that you're still viable, you're
19:00
Speaker 3: still in the race. People get tickets out of Iowa.
19:03
Speaker 3: Then they go to New Hampshire and they have momentum
19:06
Speaker 3: coming into Nevada. Nikki Haley is a long shot. Everybody
19:09
Speaker 3: knows it. Everyone thinks Trump is going to win. But
19:12
Speaker 3: if indeed she is serious, then she can't ignore Nevada
19:16
Speaker 3: because South Carolina is still two weeks plus away. You've
19:20
Speaker 3: got to try to maintain some momentum. Minimum investment or
19:23
Speaker 3: a cheap date. Come here, do a rally or two,
19:26
Speaker 3: run some ads. Say that Donald Trump is a coward.
19:29
Speaker 3: He's a chicken. He's afraid to face me in the
19:31
Speaker 3: real primary. So he created a caucus that he's rigging
19:35
Speaker 3: like he accuses everybody else of rigging elections. Come vote
19:39
Speaker 3: for me. Would it have headed this off? Maybe not,
19:43
Speaker 3: but certainly she wouldn't have lost by the huge margin
19:47
Speaker 3: that she lost by more than two to one. as
19:50
Speaker 3: you pointed out. And now the headlines across the country
19:52
Speaker 3: are not Haley wins Nevada primary, it's Haley loses to
19:56
Speaker 3: none of the above. Ouch, worse than you can ever imagine.
20:00
Speaker 3: People are making fun of her now. And as you know,
20:03
Speaker 3: the worst thing to have happen to you in politics
20:06
Speaker 3: is mockery and ridicule, much worse than castigation.
20:11
Speaker 1: You mentioned that Trump's participating in the caucus. How did
20:15
Speaker 1: we end up in a situation where Nevada had a
20:17
Speaker 1: primary without delegates today and a caucus with delegates on
20:20
Speaker 1: Thursday and candidates had to choose which one they wanted
20:22
Speaker 1: to participate in?
20:23
Speaker 3: Yeah, I mean, it's a crazy situation. It's confused a
20:26
Speaker 3: lot of really smart people and some voters who aren't
20:29
Speaker 3: paying close attention and wondered yesterday why Donald Trump was
20:33
Speaker 3: not on the ballot when they got to polling places
20:35
Speaker 3: and either voted for none of these candidates or didn't
20:38
Speaker 3: vote at all. Nevada was a caucus state for many,
20:41
Speaker 3: many years, as you know. But then after the nightmare
20:45
Speaker 3: caucus in Iowa in 2020, and Nevada essentially had the
20:49
Speaker 3: same system, Harry Reid, the late Harry Reid, who then
20:52
Speaker 3: controlled the Democratic Party and his allies, said, listen, it's
20:55
Speaker 3: time to stop this caucus. It's not a pure process.
20:59
Speaker 3: Strange stuff happens. Let's go to a primary. Democrats control
21:02
Speaker 3: the legislature, but it ends up in a bipartisan vote.
21:05
Speaker 3: Not all Republicans voted for it, but a handful in
21:07
Speaker 3: each house did. Yeah, let's go back to a primary.
21:10
Speaker 3: Only been a primary here, you know, there hasn't been
21:12
Speaker 3: a primary in Nevada since 1996, but let's go back
21:15
Speaker 3: and do it this way. That's the state law. But
21:18
Speaker 3: they left open the possibility for the parties themselves to
21:21
Speaker 3: choose how they were going to allocate delegates. Didn't seem
21:25
Speaker 3: like an issue at the time, John, but then last year,
21:27
Speaker 3: the Republicans suddenly said, oh, we can't let this happen.
21:32
Speaker 3: We need more secure elections, raising all the election integrity
21:36
Speaker 3: nonsense again. We're going to have a process that you
21:40
Speaker 3: can trust with voter ID, no same-day registration. And, oh,
21:45
Speaker 3: by the way, you have to pay us $ 55, 000 in
21:49
Speaker 3: extortion fee to participate. And if you participate in the caucus,
21:53
Speaker 3: you can't be on the primary ballot. And They even
21:56
Speaker 3: put in rules. I'm sorry for belaboring this, but it's
21:58
Speaker 3: so crazy. They even put in rules that said super
22:02
Speaker 3: PACs cannot attempt to influence this election. Obviously trying to
22:07
Speaker 3: box out DeSantis when never backed down actually didn't look
22:11
Speaker 3: like it was going to back down and had $ 200
22:13
Speaker 3: million in the bank and could have been a force, right?
22:17
Speaker 3: So DeSantis filed for the primary, for the caucus, excuse me.
22:20
Speaker 3: And Haley got at the last second, said, I'm going
22:23
Speaker 3: to go in the primary election. and then didn't do anything.
22:28
Speaker 1: So we have this caucus tomorrow. What are you looking for?
22:34
Speaker 1: I mean, is there any, how's none of these candidates doing?
22:39
Speaker 1: Is none of these candidates visiting the state? Is none
22:40
Speaker 1: of these candidates running any ads? How's their campaign looking?
22:44
Speaker 3: None of these candidates has had some rallies, I understand,
22:46
Speaker 3: but no one showed up. So there is no none
22:50
Speaker 3: of these candidates on the caucus. They control that ballot.
22:53
Speaker 1: Oh, that's right.
22:54
Speaker 5: That's right.
22:55
Speaker 3: And so it's essentially just it's Trump versus a guy
22:57
Speaker 3: no one's ever heard of named Ryan Binkley. So Trump
23:00
Speaker 3: is going to win all the delegates. He's going to
23:02
Speaker 3: win all of the votes. But the process is far
23:05
Speaker 3: from transparent. They're not letting the media view all of
23:08
Speaker 3: the counting processes. Now, let's be clear about this, too.
23:12
Speaker 3: The state party chairman, Michael McDonald, has been with Trump
23:16
Speaker 3: since 2016. He's openly endorsed Trump despite promising to be neutral.
23:21
Speaker 3: And so that is added to the perception, which really
23:24
Speaker 3: is the reality, that this whole thing has been fixed
23:28
Speaker 3: for Trump. The only one interesting thing to watch, though,
23:31
Speaker 3: and that is this. Nikki Haley got about 21,000 votes.
23:35
Speaker 3: The turnout was about 15%, 20%. She got 21,000 votes
23:39
Speaker 3: even though she got crushed. I'm not sure 21,000 people
23:42
Speaker 3: are going to show up to caucus. Maybe they will.
23:45
Speaker 3: That would be a relatively large turnout. for a caucus
23:48
Speaker 3: for the Republicans. And even if more than 21,000 show up,
23:52
Speaker 3: you know, is he going to get more votes? Is
23:54
Speaker 3: Trump going to get more votes than Haley? Because if
23:56
Speaker 3: he doesn't, that's going to be a real embarrassment for him.
23:59
Speaker 1: So other than this idea that the election fraud justifies
24:03
Speaker 1: not doing a primary, but actually doing our own separate caucus,
24:07
Speaker 1: which obviously is silly, but like what is the logic
24:11
Speaker 1: behind for rebuffing this effort to switch to a primary?
24:14
Speaker 1: It's not obvious on its face why the MAGA types
24:19
Speaker 1: would prefer a caucus versus a primary. Trump would have
24:23
Speaker 1: had no problem winning this primary, right?
24:26
Speaker 3: He would have won the primary. There's no question about it.
24:28
Speaker 3: But I think what they were concerned about, because they
24:30
Speaker 3: want to show Donald Trump dominating in every election that
24:35
Speaker 3: he's in, we're a universal mail ballot state since COVID.
24:38
Speaker 3: So every Republican got a ballot. You could make an argument,
24:42
Speaker 3: and I think some people close to Trump did, and
24:45
Speaker 3: some people in the state party here, that if every
24:48
Speaker 3: Republican gets a ballot and a lot of the non-MAGA
24:51
Speaker 3: types vote, that maybe his margin of victory, while he
24:55
Speaker 3: would have won, wouldn't be as great compared to a
24:58
Speaker 3: caucus where they can only vote during a certain time.
25:01
Speaker 3: And by the way, this is not a pure caucus either.
25:04
Speaker 3: Caucus used to be, you go in, you argue with
25:06
Speaker 3: your neighbors, 15% threshold, you win old people, and then...
25:11
Speaker 3: People can just drop off ballots. So it's not a
25:14
Speaker 3: real caucus. They can drop off a ballot and leave.
25:16
Speaker 3: And they did that, I think, so they could increase
25:19
Speaker 3: turnout in the caucus to make sure Trump gets a
25:22
Speaker 3: lot of votes.
25:23
Speaker 1: Also, whoa, what kind of, look, I'm sure Binkley has
25:26
Speaker 1: a great argument, but what kind of caucus, it's not
25:29
Speaker 1: like there's like, what kind of ferocious debate inside of
25:31
Speaker 1: the caucus amongst neighbors could there possibly be? Like, I
25:33
Speaker 1: don't know. Like it is, even if you didn't have
25:35
Speaker 1: the fact that you can just drop off ballots and
25:38
Speaker 1: basically a person running unopposed in a caucus is a
25:40
Speaker 1: weird way to spend a Thursday evening. It is.
25:43
Speaker 3: And that's why there's some sense that maybe turnout won't
25:46
Speaker 3: be great. Now, that's why Trump came here a few
25:50
Speaker 3: days ago and urged all of the Republicans to go caucus.
25:54
Speaker 3: Don't go into the meaningless primary. They've come up with
25:58
Speaker 3: some spin and as Trump's want and his campaigns want,
26:01
Speaker 3: outright falsehoods about what the primary was versus the caucus
26:05
Speaker 3: and who kept his name off of the ballot to
26:08
Speaker 3: try to energize people to come and caucus. It's going
26:11
Speaker 3: to be interesting to see how successful they were in
26:14
Speaker 3: doing that.
26:16
Speaker 1: Anything to learn from Joe Biden defeating none of these
26:19
Speaker 1: candidates and Marianne Williamson? None of these candidates came in second.
26:21
Speaker 1: Marianne Williamson came in third. He won 89% of the votes.
26:25
Speaker 1: I'm not sure how much you can take away from that,
26:27
Speaker 1: but did you have anything that you observed?
26:30
Speaker 3: I think Marianne Williamson is not going to win the nomination.
26:33
Speaker 3: You heard this first on this podcast. But seriously, here's
26:38
Speaker 3: a problem. I mean, the Democrats are touting they had
26:40
Speaker 3: much better turnout than the Republicans. Biden got 90 percent
26:44
Speaker 3: or close to it. This shows that they're energized, et cetera.
26:47
Speaker 3: But there is no correlation in my experience between what
26:51
Speaker 3: happens in a February 6th primary and in November. Totally
26:55
Speaker 3: different universe. There's going to be 70, 80 percent turnout
26:59
Speaker 3: in November. But as a trial run for the so-called
27:03
Speaker 3: read machine here, the Democratic Democrats, organizing machine. They did fine,
27:07
Speaker 3: but that's nothing really to brag about or to project
27:10
Speaker 3: going forward.
27:11
Speaker 1: I don't think so. Uh, Nevada, obviously, uh, in November
27:16
Speaker 1: will be an important swing state, uh, for the presidential
27:18
Speaker 1: is also gonna be an important Senate race there. What
27:21
Speaker 1: are you seeing right now? We've seen some polls that
27:22
Speaker 1: I think are pretty, um, concerning for Democrats, obviously with
27:26
Speaker 1: Trump winning the state, uh, that Senate seat is obviously
27:29
Speaker 1: incredibly important. Uh, what, what are, what's the situation on
27:33
Speaker 1: the ground right now? Uh, What are you seeing?
27:36
Speaker 3: Smart Democrats I talk to, including those involved with the
27:40
Speaker 3: Reed machine, they're worried. They're concerned. I mean, Trump only
27:44
Speaker 3: lost the state by two and a half points in
27:48
Speaker 3: 2016 and 2020. And so they think it's competitive. They
27:52
Speaker 3: are correct. Some of the demographic shifts are concerning. Catherine
27:56
Speaker 3: Cortez Masto, the first Latina ever elected to the U.S. Senate,
28:00
Speaker 3: only won by 8,000 votes. And they had to essentially
28:04
Speaker 3: drag her across The finish line, Jackie Rosen, is not
28:07
Speaker 3: nearly as skilled a politician or experienced a politician, although
28:11
Speaker 3: she's become a formidable fundraiser. And so they are very,
28:15
Speaker 3: very concerned. What bolsters them, though, is that they still
28:21
Speaker 3: have that machine. And the Republican candidates generally are not
28:25
Speaker 3: great in that Senate race. The NRSC, the National Republican
28:29
Speaker 3: Senatorial Committee, has banked all of its hopes on a
28:31
Speaker 3: guy who's never won a race. and who's barely lived
28:34
Speaker 3: in Nevada for very long, got crushed in the primary
28:37
Speaker 3: for the U.S. Senate last time. And so they're praying
28:41
Speaker 3: every day he gets through the primary against a couple
28:44
Speaker 3: of MAGA types, either of whom, if they win, especially
28:47
Speaker 3: one of them who's a pure conspiracy theorist, one of
28:50
Speaker 3: the worst in the country, that's over for the Republicans
28:53
Speaker 3: in the Senate here. And that could affect the presidential race.
28:57
Speaker 1: John Ralston, thank you so much for your time. This
28:59
Speaker 1: is very helpful. Next time I'd like to be in
29:02
Speaker 1: Las Vegas. That's where I'd like to be doing these conversations.
29:05
Speaker 1: That's where I prefer to have them. But thank you
29:07
Speaker 1: so much for your time.
29:08
Speaker 3: I hope you do come to Vegas.
29:08
Speaker 1: You don't have to ask me twice.
29:11
Speaker 3: Thanks for having me.
29:12
Speaker 1: When we come back, Kate Shaw walks us through the D.C.
29:15
Speaker 1: Circuit Court's ruling against Trump's claim to presidential immunity and
29:19
Speaker 1: what it means for the timing of Trump's many criminal trials.
29:35
Speaker 1: On Tuesday, after making us wait a very long time,
29:37
Speaker 1: the D.C. Circuit unanimously and forcefully rejected Donald Trump's legal
29:41
Speaker 1: argument that he is immune from prosecution in the 2020
29:43
Speaker 1: election interference case because he took those actions as a
29:46
Speaker 1: sitting president. Here to talk us through the ruling and
29:49
Speaker 1: what it means when this case and several other trials
29:51
Speaker 1: begin is the co-host of Strict Scrutiny, our very own
29:54
Speaker 1: Kate Shaw. Welcome back to the pod.
29:55
Speaker 6: Thanks so much for having me, John.
29:57
Speaker 1: So let's start with the opinion. Nobody really expected the
29:59
Speaker 1: judges to agree that presidents are not subject to the
30:01
Speaker 1: laws of the United States while executing the laws of
30:04
Speaker 1: the United States because it would be too confusing. But
30:07
Speaker 1: this was a smackdown nonetheless. You did a great bonus
30:11
Speaker 1: episode on this yesterday that everybody should check out. But
30:14
Speaker 1: can you just walk us through it? What stood out
30:16
Speaker 1: to you the most?
30:17
Speaker 4: Sure.
30:17
Speaker 6: Now, it did take a bit longer than we wanted.
30:20
Speaker 6: And that's because every single day of delay is moves
30:23
Speaker 6: us closer to a world in which Trump cannot be
30:25
Speaker 6: tried prior to the November election. But, you know, now
30:29
Speaker 6: that I've sat down and read it carefully, it is
30:31
Speaker 6: a very good and very thorough opinion. And it did
30:33
Speaker 6: involve a lot of historical research and, you know, like
30:36
Speaker 6: really intentionally selected quotes from conservatives on the Supreme Court
30:40
Speaker 6: like John Roberts and Brett Kavanaugh and Neil Gorsuch. So,
30:42
Speaker 6: you know, this stuff takes a little time to craft. So,
30:46
Speaker 6: you know, now that it's out, like the quality is
30:48
Speaker 6: just fantastic. And a couple of things that I thought
30:50
Speaker 6: were striking. One is it is a per curiam opinion,
30:54
Speaker 6: meaning just an opinion of the court. There is not
30:56
Speaker 6: a single identified author. And that's pretty unusual in an
31:00
Speaker 6: important case like this. That's more typical in routine and
31:03
Speaker 6: short orders. And I think it might suggest a It
31:08
Speaker 6: is not crazy to be concerned about attaching your name
31:11
Speaker 6: and identity to an opinion ruling against Donald Trump in
31:14
Speaker 6: this moment in time. And so no one can, you know,
31:17
Speaker 6: inveigh against a Judge Pan opinion or a Judge Childs opinion.
31:21
Speaker 6: It's just the D.C. Circuit opinion. And in a moment
31:23
Speaker 6: where judges are getting swatted and threatened, I think that
31:27
Speaker 6: might be why it's a per curiam opinion. You know,
31:30
Speaker 6: in terms on the substance, there's just like a couple
31:32
Speaker 6: of lines that are worth flagging. One is, you know,
31:35
Speaker 6: Just the bottom line holding, right, we cannot accept that
31:37
Speaker 6: the office of the presidency places its former occupants above
31:40
Speaker 6: the law for all time. Like, that's kind of the
31:42
Speaker 6: bottom line. And I also liked that the opinion quotes,
31:45
Speaker 6: and it kind of can't improve upon, Judge Chuck in
31:48
Speaker 6: the district court, who wrote that every president will face
31:51
Speaker 6: difficult choices. Whether to intentionally commit a federal crime should
31:55
Speaker 6: not be one of them. Real mic drop in the
31:57
Speaker 6: district court gets a second airing in this opinion. So
31:59
Speaker 6: those are a few takeaways.
32:01
Speaker 1: So you and Melissa and Leah broke down all the
32:03
Speaker 1: ways in which Trump's arguments were sort of indelicate legal
32:06
Speaker 1: terms laughed out of court. What, to your mind, is
32:11
Speaker 1: Trump's best argument? Or what is the best argument for
32:15
Speaker 1: some form of immunity that wasn't made by the Trump team?
32:18
Speaker 6: None of these arguments are good arguments. They're just not.
32:20
Speaker 6: They're all bad arguments. I mean, there is an argument.
32:24
Speaker 6: that has some intuitive appeal in general terms, and it
32:27
Speaker 6: has some support in the law, which is that presidents,
32:29
Speaker 6: while they are presidenting, do get special treatment under the
32:32
Speaker 6: law because the country simply couldn't have them embedded in
32:35
Speaker 6: a lot of litigation. And so that's not frivolous, that's
32:38
Speaker 6: not crazy, and the law supports that. But the extension
32:41
Speaker 6: that Trump was seeking here, which is to fully insulate
32:44
Speaker 6: ex-presidents from any kind of accountability, including for doing crimes,
32:49
Speaker 6: just doesn't really have any support in text, in history,
32:52
Speaker 6: or in logic whatsoever. And that's, you know, essentially what
32:55
Speaker 6: the court concluded, you know, in 57 pages.
32:58
Speaker 1: You know, there are a lot of people that work
33:01
Speaker 1: in the White House and around the president whose job
33:03
Speaker 1: is to make sure that the president is not breaking
33:06
Speaker 1: the law. And those lawyers don't always agree. There's disagreement
33:11
Speaker 1: about what the law requires the president to do, what
33:14
Speaker 1: the president's powers do and do not allow. And could
33:18
Speaker 1: you see some argument made in that in that area
33:22
Speaker 1: where there is a legitimate dispute as to whether or
33:25
Speaker 1: not a president was upholding the law or breaking the law?
33:29
Speaker 1: And then why is that kind of more delicate question
33:32
Speaker 1: not an issue here?
33:33
Speaker 6: Well, I mean, that's mostly a question about civil liability.
33:37
Speaker 6: And the law has long made clear that you can't
33:40
Speaker 6: sue a president because of some official act that they
33:42
Speaker 6: took even after their president. So that's the Nixon versus
33:45
Speaker 6: Fitzgerald case where some disgruntled ex-official who said that he
33:49
Speaker 6: was unlawfully fired, sued, then ex-President Nixon. And there the
33:53
Speaker 6: court said, actually, even ex-presidents get absolute civil immunity if
33:58
Speaker 6: we're talking about actions they take within the scope of
34:00
Speaker 6: their official duties. So that's something that presidents have long
34:04
Speaker 6: been able to operate kind of secure in the knowledge of.
34:06
Speaker 6: They're not going to get sued civilly because of things
34:09
Speaker 6: they did as president. But no court has ever said
34:12
Speaker 6: that the same logic applies to crimes committed as president.
34:16
Speaker 6: And so when Trump makes this argument that it would
34:18
Speaker 6: be totally chilling and destabilizing to future presidents to have
34:22
Speaker 6: this specter of possible criminal prosecution hanging over them, that's
34:26
Speaker 6: always been the case because they've never had any kind
34:28
Speaker 6: of immunity from criminal prosecution. And back to the Judge
34:31
Speaker 6: Chuckkin line, like, if what that does is chill presidents
34:34
Speaker 6: from doing crimes, I don't see why that's a problem.
34:37
Speaker 1: Yeah, that sounds like a feature, not a bug.
34:40
Speaker 6: Yeah.
34:40
Speaker 1: So let's talk about what happens next. Will Trump appeal
34:44
Speaker 1: to the D.C. Circuit? Or was the order that went
34:49
Speaker 1: along with this ruling written in a way that means
34:52
Speaker 1: that Trump will go directly to the Supreme Court?
34:54
Speaker 6: Yeah, it was very carefully crafted, I think, to make
34:56
Speaker 6: sure he's going to just go to the Supreme Court.
34:58
Speaker 6: So a lot of the time, if you lose before
34:59
Speaker 6: a three-judge panel, which Trump did here, you can ask
35:02
Speaker 6: the full court to review the opinion of the three-judge
35:05
Speaker 6: panel as kind of an intermediate step before going to
35:07
Speaker 6: the Supreme Court. And he could still do that. But
35:10
Speaker 6: what the order accompanying the opinion said about the mandate,
35:13
Speaker 6: which is just like the thing that sends the case
35:15
Speaker 6: back down to the trial court, is that the mandate
35:17
Speaker 6: is stayed until Monday. So nothing happens until Monday. Monday,
35:21
Speaker 6: the case goes back to the trial court and proceedings
35:23
Speaker 6: can resume, except if he asks for a stay in
35:26
Speaker 6: the Supreme Court. But asking for the full D.C. Circuit
35:29
Speaker 6: to review the opinion isn't going to have any effect
35:31
Speaker 6: on the mandate. So that essentially disincentivizes him asking the
35:34
Speaker 6: full court to review. It means he'll go right to
35:36
Speaker 6: SCOTUS on Monday. And that will stay the mandate. So
35:39
Speaker 6: that'll mean things are paused. And then the ball is
35:41
Speaker 6: in the Supreme Court's court.
35:43
Speaker 1: So as you pointed out, it was a long wait
35:46
Speaker 1: for this opinion. The opinion wasn't authored by a single judge. Now,
35:50
Speaker 1: you pointed to this. One reason might be that they
35:54
Speaker 1: were just worried about the attention that comes with having
35:55
Speaker 1: written an opinion. But another reason might be that they
36:00
Speaker 1: are aware that they are writing for history, that this
36:03
Speaker 1: is a matter of incredible importance. and that potentially the
36:08
Speaker 1: reason they took so much time and did this opinion
36:11
Speaker 1: by the court, not by a judge, is to send
36:13
Speaker 1: a signal to the Supreme Court that they don't necessarily
36:16
Speaker 1: need to take this up, that they can just allow
36:18
Speaker 1: this ruling to stand. Do you think that's possible? Or
36:23
Speaker 1: do you feel like the Supreme Court will both from
36:26
Speaker 1: a political standpoint and a legal standpoint feel an obligation
36:29
Speaker 1: to have a say in a case this important?
36:33
Speaker 6: You know, we debated this a little bit on our
36:34
Speaker 6: podcast yesterday. I think There is a real chance, not
36:38
Speaker 6: a more likely than not chance, but a real chance
36:41
Speaker 6: that just as you suggested, the strength of this opinion,
36:43
Speaker 6: the fact that it's an opinion of the court and
36:46
Speaker 6: the correctness of the opinion means that maybe the Supreme
36:49
Speaker 6: Court just denies cert. And this stands as the final
36:52
Speaker 6: word on absolute criminal immunity. And then the trial happens.
36:56
Speaker 6: So I think that is a possibility. And doing the
36:59
Speaker 6: opinion the way they did may have increased that likelihood.
37:02
Speaker 6: But I do think that it's still more likely that
37:04
Speaker 6: the Supreme Court will think it's the final answerer of
37:07
Speaker 6: all the important questions. And so it should actually have
37:09
Speaker 6: a chance to speak on this question. And one thing
37:12
Speaker 6: to say on that, and, you know, timing is, of course,
37:14
Speaker 6: critically important here. I think if the Supreme Court grants
37:18
Speaker 6: this and then just proceeds kind of business as usual,
37:21
Speaker 6: like decides the case, decides to take the case in
37:24
Speaker 6: a week or two, hears arguments in April, you know,
37:27
Speaker 6: decides the case in May or June. We basically should
37:30
Speaker 6: understand that as the Supreme Court having like emblazoned in
37:33
Speaker 6: the sky that the court itself is taking away from
37:37
Speaker 6: the American people the opportunity to have a jury decide
37:42
Speaker 6: whether a former president who is a candidate for president
37:45
Speaker 6: is guilty of crimes and in particular the crime of
37:49
Speaker 6: attempting to subvert a presidential election and unlawfully remain in office.
37:54
Speaker 6: Because that's what it'll mean if it takes the case
37:56
Speaker 6: and waits to decide it. it will mean that people
37:58
Speaker 6: will never know what a jury thinks about these charges,
38:01
Speaker 6: which are incredibly serious. And that means people both who
38:03
Speaker 6: support President Trump, former President Trump, and opposed. So in
38:07
Speaker 6: some ways, I think everyone should want this to be
38:09
Speaker 6: before a jury so we get an answer. And the
38:11
Speaker 6: court slow walking this, which again, business as usual, tempo
38:14
Speaker 6: is slow walking, will mean, and that's how we should
38:17
Speaker 6: understand it.
38:18
Speaker 1: Yeah, we'll talk about this in a minute, but they
38:21
Speaker 1: did not slow walk question as to whether or not
38:24
Speaker 1: the 14th Amendment bars Trump from being on the ballot.
38:26
Speaker 1: That they're moving very quickly on. And given that, I
38:30
Speaker 1: think a lot of people would be surprised to see
38:33
Speaker 1: this court rule that Trump is immune from prosecution. What
38:38
Speaker 1: you're basically saying is, if the court were to delay,
38:42
Speaker 1: even if they ultimately ruled in that way, it would
38:44
Speaker 1: be akin to siding with Trump and not showing the
38:48
Speaker 1: same concern about a case that might harm Trump's political
38:51
Speaker 1: prospects when they have shown a lot of speed on
38:54
Speaker 1: a case where everyone expects them to rule in Trump's favor.
38:57
Speaker 3: Right.
38:57
Speaker 6: Well, and also like where the thing that happened below
39:00
Speaker 6: in the Colorado case ruled against Trump. So Trump loses
39:03
Speaker 6: and needs to change the status quo, right? And so
39:07
Speaker 6: they're accelerating wildly this 14th Amendment case. And then most likely,
39:11
Speaker 6: although I don't think it's 100% certain, will rule for
39:13
Speaker 6: Trump and he gets to stay on the ballot. And
39:15
Speaker 6: then again, maybe they take their time and they do
39:19
Speaker 6: rule against Trump on the immunity. And again, on the merits,
39:22
Speaker 6: I agree. Ultimately, it's very hard to see them coming
39:24
Speaker 6: down any other way. But as a functional matter, that
39:28
Speaker 6: will also be siding with Trump. So the takeaway shouldn't be, well,
39:31
Speaker 6: they give and they take. Trump wins one, loses one.
39:34
Speaker 6: It'll be he wins both because the function of the
39:36
Speaker 6: delay will mean no trial. And so they deserve zero credit.
39:40
Speaker 6: And actually, I think they deserve the public knowing that
39:43
Speaker 6: they have been complicit in, again, taking from the American polity,
39:48
Speaker 6: the voters, the right to know what a jury thinks
39:51
Speaker 6: about this conduct.
39:52
Speaker 1: So how quickly will we know whether or not the
39:56
Speaker 1: Supreme Court is going to move quickly? What does a
39:59
Speaker 1: court that's going to hear this fast and make sure
40:01
Speaker 1: the trial can take place before the election look like?
40:03
Speaker 1: And what does the Supreme Court that's acting to slow
40:06
Speaker 1: this down look like? Yeah.
40:09
Speaker 6: So Monday, I think he files his application for a stay.
40:12
Speaker 6: And again, that automatically pauses the proceedings. So starting then,
40:15
Speaker 6: every day, the court doesn't act. That's a win for
40:18
Speaker 6: him because the trial can't or the trial proceedings can't resume.
40:21
Speaker 6: I think in a week or two, we probably will
40:23
Speaker 6: get some action on the request for a stay. And
40:26
Speaker 6: maybe they just deny the stay and then the proceedings resume.
40:30
Speaker 6: And that would be really significant. Now, that doesn't necessarily
40:34
Speaker 6: mean they wouldn't consider and actually take the case up
40:37
Speaker 6: with a cert petition. But I just I don't really
40:39
Speaker 6: see them doing it. I think they'll deny the stay.
40:42
Speaker 6: and say the D.C. Circuit opinion will just stand and
40:45
Speaker 6: the trial will happen. And that, again, could happen within
40:48
Speaker 6: a couple of weeks. Now, the trial wouldn't happen immediately,
40:51
Speaker 6: but the pretrial proceedings would resume. And so I think
40:53
Speaker 6: then the trial could happen like in April, not March
40:55
Speaker 6: 4th as originally scheduled, but maybe a month or maybe
40:57
Speaker 6: two months later. And if they decide to take the case,
41:02
Speaker 6: they could do what they did with the 14th Amendment argument,
41:04
Speaker 6: which was to really accelerate the ordinary timeline. They scheduled
41:08
Speaker 6: a special session for tomorrow. It's not ordinarily early February,
41:12
Speaker 6: they don't hear cases. They're taking the bench just for
41:14
Speaker 6: this one case. So they could do the same thing
41:16
Speaker 6: in late February if they wanted to. The briefing was
41:21
Speaker 6: done in the D.C. Circuit. The briefing will have to
41:23
Speaker 6: happen in the Supreme Court, but it can all happen
41:25
Speaker 6: in a number of weeks and not months. Then they
41:27
Speaker 6: could hear an argument in early March and decide it very,
41:30
Speaker 6: very quickly. But again, once they're deciding things in late
41:35
Speaker 6: April or May or June, a trial is not off
41:38
Speaker 6: the table under those circumstances. It's just tight. And any
41:42
Speaker 6: additional delay might mean that there's no way to have
41:45
Speaker 6: the trial. Because I think the trial right before the
41:47
Speaker 6: election is something that a fair-minded and conscientious judge might
41:50
Speaker 6: be really nervous about. It's mid-October. We're going to start
41:52
Speaker 6: a trial. We can't do that. So I think you
41:55
Speaker 6: kind of.
41:55
Speaker 1: Yeah. And then it starts to, okay, now the election
41:57
Speaker 1: has happened and God forbid Trump wins. Now they're going
42:00
Speaker 1: to have a trial before he's sworn in. It starts
42:04
Speaker 1: to become... I mean, We've never been in a circumstance
42:06
Speaker 1: like this, but it all starts to feel impossible.
42:09
Speaker 4: Yeah.
42:10
Speaker 1: So how does this ruling affect the other sundry federal
42:13
Speaker 1: cases against Donald Trump?
42:16
Speaker 6: Well, you know, this is really not about the underlying
42:19
Speaker 6: question of Trump's culpability for the alleged crimes, right? It's
42:22
Speaker 6: not about, you know, the merits. It takes the allegations
42:25
Speaker 6: and the complaint as true and says, if true, if he,
42:29
Speaker 6: as alleged, tried to overturn the election results and unlawfully
42:32
Speaker 6: remain in office— Is he still immune from criminal prosecution? And,
42:36
Speaker 6: of course, the answer there is no. So I think
42:38
Speaker 6: it's mostly got impact on the other cases from the
42:40
Speaker 6: perspective of scheduling because there's this delicate dance with at
42:44
Speaker 6: least the New York trial, which, you know, of the
42:47
Speaker 6: four cases, you've got Georgia, you've got New York, you've
42:49
Speaker 6: got this case, you've got the other federal case, the
42:50
Speaker 6: documents case in Florida. That's the other case that could
42:53
Speaker 6: go in the relatively near term. And so I think
42:57
Speaker 6: actually if this gets back on the calendar, that one
42:59
Speaker 6: probably won't go first. There were some chances this continued
43:02
Speaker 6: to delay. I think New York would go first. And
43:03
Speaker 6: I don't think that's a great outcome. So I think
43:06
Speaker 6: that reduces the likelihood of it. But really, this is
43:08
Speaker 6: just the defense that he has asserted that he's absolutely immune,
43:12
Speaker 6: which isn't really on the table in the other cases.
43:15
Speaker 6: I mean, he could make absolute immunity from state prosecution
43:17
Speaker 6: claims as well. I mean, he's made lots of immunity claims.
43:20
Speaker 6: So I suppose, sure, but I don't think that's directly
43:23
Speaker 6: controlled by this ruling, although obviously it's hard to see
43:25
Speaker 6: how if a president doesn't have immunity here, he might
43:27
Speaker 6: have immunity from state prosecution, although the arguments are a
43:29
Speaker 6: bit different.
43:31
Speaker 1: So this isn't the only Supreme Court case that could
43:35
Speaker 1: have an impact on the election. They're going to hear
43:36
Speaker 1: oral arguments, as we talked about, tomorrow on whether the
43:38
Speaker 1: 14th Amendment bars Trump from running for office again. I
43:41
Speaker 1: am not a lawyer, but this has always seemed silly
43:44
Speaker 1: to me, as you know, and I was no match
43:46
Speaker 1: for Lawrence Tribe, but I was not convinced... I remain unpersuaded.
43:51
Speaker 1: What is your take on the merits? And then I'd
43:54
Speaker 1: love to hear what you're kind of looking for in
43:56
Speaker 1: the oral arguments. Sure.
43:58
Speaker 6: And look, I don't know that I'm going to persuade
43:59
Speaker 6: you if Tribe didn't. But I mean, your concern, I
44:01
Speaker 6: take it, John, is that there's something that feels anti-democratic, right,
44:04
Speaker 6: about the Supreme Court doing this thing, removing the choice
44:06
Speaker 6: from the voters.
44:07
Speaker 1: Is that right? So I do have that concern. And
44:11
Speaker 1: that sort of makes me suspicious of this. And by
44:12
Speaker 1: the way, I think it's important that some of the
44:15
Speaker 1: best legal minds in the country do come on a
44:16
Speaker 1: podcast and try to convince a comedy writer. what the
44:20
Speaker 1: Constitution means. That is what America is all about. But so, yes,
44:23
Speaker 1: I do have an anti-democratic concern, but I actually, stepping
44:26
Speaker 1: back from that, I have a practical political concern about
44:31
Speaker 1: a system in which the self-executing idea puts in the
44:36
Speaker 1: hands of random political bodies, elected officials, individuals in different states,
44:43
Speaker 1: and gives them the authority to question the whether or
44:47
Speaker 1: not someone has a legitimate claim to being on the
44:50
Speaker 1: ballot and the kind of world we will live in
44:54
Speaker 1: if that kind of subjective opinion becomes important in how
45:01
Speaker 1: we decide who gets to be on a ballot or not.
45:04
Speaker 1: That's my concern.
45:05
Speaker 4: Yeah.
45:05
Speaker 6: And I think those are both fair. And I honestly
45:07
Speaker 6: was pretty apprehensive about this issue at first. And I've
45:10
Speaker 6: sort of very much actually come around. And I think
45:13
Speaker 6: for a couple of reasons, I think having both to
45:15
Speaker 6: do with democracy and this question of, well, what would
45:17
Speaker 6: the consequences of the court, right, siding with the Colorado
45:21
Speaker 6: Supreme Court be versus the consequences like on the ground
45:24
Speaker 6: of a different ruling, you know, keeping and taking off?
45:29
Speaker 6: Sort of how does the world look in sort of
45:30
Speaker 6: both scenarios? And in terms of the anti-democratic piece of it,
45:34
Speaker 6: you know, it's just like, as I've really, as I
45:36
Speaker 6: thought about it, there are provisions in the Constitution, in
45:38
Speaker 6: particular as to presidential eligibility that are just anti-democratic, right?
45:42
Speaker 6: Like the 22nd Amendment says you can only serve two
45:44
Speaker 6: terms as president. And that is anti-democratic insofar as it
45:48
Speaker 6: means we can't vote for Barack Obama for president. Like,
45:51
Speaker 6: he can't run again. And that takes from us the
45:53
Speaker 6: choice to vote for him. And if we had an
45:55
Speaker 6: amazing prospective presidential candidate who was a naturalized but not
45:59
Speaker 6: natural-born citizen, we couldn't vote for them because the Constitution
46:02
Speaker 6: says that. And that is anti-democratic. And it takes off
46:06
Speaker 6: the table certain choices. And I think this provision of
46:08
Speaker 6: the 14th Amendment is understood in the same light. We
46:10
Speaker 6: just can't choose an insurrectionist. And then you have these
46:13
Speaker 6: questions of, well, how do we determine if somebody's an insurrectionist?
46:16
Speaker 6: But then those are the questions about, like, what the
46:17
Speaker 6: text and the history and kind of pragmatic considerations tell
46:21
Speaker 6: us about how to read that provision. But that, I think,
46:23
Speaker 6: is why the kind of anti-democratic piece of it, to
46:26
Speaker 6: my mind, is not actually dispositive, if you kind of
46:29
Speaker 6: press on it. And in terms of sort of allowing
46:31
Speaker 6: the proliferation of a lot of decision makers, you know,
46:35
Speaker 6: I think that it's– here is my concern– If the
46:39
Speaker 6: court says, yeah, he can run. The Colorado Supreme Court
46:44
Speaker 6: either didn't have the authority or was wrong on the merits.
46:46
Speaker 6: You know, there's a bunch of different ways they can
46:48
Speaker 6: decide it. I don't think that in any way takes
46:51
Speaker 6: off the table either Trump pushing on other eligibility rules like,
46:55
Speaker 6: for example, the 22nd Amendment. Like, I think in a
46:57
Speaker 6: world in which he's told he can run again, he
46:59
Speaker 6: runs again, he wins. I'm not the only person to
47:01
Speaker 6: observe this, but it's not hard to imagine that. four
47:04
Speaker 6: years from now, him mounting a campaign on the grounds
47:07
Speaker 6: that he was deprived of a real first term by
47:09
Speaker 6: the Russia hoax and the 22nd Amendment can't be enforced
47:12
Speaker 6: by the Supreme Court. And under those circumstances, do we
47:18
Speaker 6: want or do we not want state officials deciding to
47:20
Speaker 6: throw him off or keep him on the ballot? I mean,
47:22
Speaker 6: I'm not sure which way it cuts, but I guess
47:23
Speaker 6: I think that we are now in a world where
47:25
Speaker 6: there are challenges to these kind of core principles or
47:29
Speaker 6: previously settled principles about who is eligible for president And
47:33
Speaker 6: I don't think that the Supreme Court allowing Trump to
47:35
Speaker 6: run in any way removes the danger that you just
47:39
Speaker 6: identified of other individuals deciding to make politically motivated judgments
47:42
Speaker 6: about who can and can't run for president. So to
47:44
Speaker 6: my mind, that's actually not a reason to rule for
47:46
Speaker 6: Trump either. Did I in any way add anything to
47:49
Speaker 6: Tribe's case?
47:51
Speaker 1: Well, I just– here's my– so my problem with that, right,
47:55
Speaker 1: is– We go from what I think we would all
47:59
Speaker 1: agree is a subjective and difficult question. I actually do
48:01
Speaker 1: think it's a legitimate question. And by the way, if
48:03
Speaker 1: we were in a situation where I thought that there
48:05
Speaker 1: was a real chance that a Supreme Court would keep
48:09
Speaker 1: Trump off the ballot, I do believe Trump poses a
48:11
Speaker 1: direct threat to this democracy. And we should be doing
48:13
Speaker 1: everything within our power to keep him from returning to office.
48:17
Speaker 1: That poses a mortal danger to the country. And if
48:19
Speaker 1: I thought this was a political strategy that might result
48:22
Speaker 1: in a victory, I might be more circumspect because... I
48:26
Speaker 1: would view it as having a real chance of leading
48:29
Speaker 1: to Trump being kept from the ballot. But because that's
48:30
Speaker 1: not the case, it does feel quite intellectual. You switched
48:34
Speaker 1: from a subjective question, which I think people of good
48:38
Speaker 1: faith could disagree, to more of a kind of classic
48:40
Speaker 1: Trump claim, which is, no, I didn't rob that bank.
48:43
Speaker 1: I actually think all the money in there is mine, right?
48:46
Speaker 1: That's what the serving me on two terms would actually be.
48:50
Speaker 1: It would be just an objective lie that he would
48:52
Speaker 1: be trying to get the country to go along with.
48:56
Speaker 1: And I think I would be more open to this
49:00
Speaker 1: claim around the 14th Amendment if there was some kind
49:02
Speaker 1: of structure in which there was a law. He had
49:06
Speaker 1: violated the law that was either somehow ratified by Congress
49:10
Speaker 1: or by the legal system. There was something you could
49:12
Speaker 1: point to and say that is the proof that Donald
49:15
Speaker 1: Trump committed what we are all collectively calling insurrection or
49:18
Speaker 1: aiding and abetting insurrectionism. and therefore he is not eligible.
49:23
Speaker 1: Even political actors in states could choose to ignore that, right?
49:26
Speaker 1: That's something that could potentially happen. But if a Democrat
49:29
Speaker 1: or a nonpartisan official or even a Republican decided to
49:32
Speaker 1: say he was ineligible, there would be kind of a
49:34
Speaker 1: basis for looking at that claim and in a kind
49:38
Speaker 1: of fair-minded way, but we don't have that. Now, the
49:41
Speaker 1: response that I've heard, which I think is a fair response,
49:43
Speaker 1: I'm being critical of what the Constitution should say, but
49:46
Speaker 1: that's not what it does say, right? Maybe that would
49:49
Speaker 1: be a better system, but these lawyers are looking at
49:51
Speaker 1: what the Constitution says and saying this bars him from office.
49:54
Speaker 1: But then if we're going to start getting technical about
49:56
Speaker 1: the text, if this was meant to be applied to
50:00
Speaker 1: the president, presumably the text would say the word president.
50:04
Speaker 1: It wouldn't have just skipped over It wouldn't go from
50:08
Speaker 1: members of Congress and then worked its way down to
50:12
Speaker 1: government officials. And then, oh, by the way, that includes
50:16
Speaker 1: the president. We didn't feel the need to mention the
50:18
Speaker 1: most powerful figure in our system of government. But once
50:21
Speaker 1: you take this in a couple hundred years, you go
50:24
Speaker 1: run with it. You can apply it to the president.
50:26
Speaker 1: We just forgot to include that name. Like if we're
50:28
Speaker 1: going to get technical, presumably that's a problem, isn't it?
50:33
Speaker 6: Well, I think that's right. But the text, of course,
50:35
Speaker 6: is not the only thing that matters. And I do
50:36
Speaker 6: think that all of the historians who have really, really
50:40
Speaker 6: grappled with the kind of, you know, drafting of the
50:42
Speaker 6: 14th Amendment say it's really not a close question that
50:46
Speaker 6: the drafters did intend to disqualify from the very highest
50:50
Speaker 6: office in the country, you know, individuals who had engaged
50:53
Speaker 6: in insurrection. So I think that, but I hear you
50:56
Speaker 6: on it is there are more contestable arguments within the
51:00
Speaker 6: 14th Amendment than the 22nd.
51:02
Speaker 1: That's right.
51:02
Speaker 6: The two terms is much more straightforward, but it does
51:06
Speaker 6: seem as though when you immerse yourself in the evidence,
51:08
Speaker 6: both drafting and history, and kind of practical considerations, it's
51:15
Speaker 6: not a case that is as clear, I don't think,
51:17
Speaker 6: as the immunity case, but I think it is a
51:19
Speaker 6: case in which there is a clearly correct answer. And
51:22
Speaker 6: so then we're talking about degrees of difference as opposed
51:24
Speaker 6: to difference in kind from a two-term argument. limitation scenario.
51:29
Speaker 1: And even though this is ultimately almost certainly going to
51:33
Speaker 1: result in the Supreme Court deciding whether in a narrow
51:36
Speaker 1: way or in a broad way that this clause doesn't
51:38
Speaker 1: apply in this situation and Trump must be allowed to
51:41
Speaker 1: be on the ballot, you believe it is still worth
51:43
Speaker 1: pursuing this argument, even if it might lead to a
51:47
Speaker 1: new kind of culture in which people are trying to
51:51
Speaker 1: find ways to disqualify their opponents from the ballot, often
51:55
Speaker 1: for subjective reasons. and inappropriate reasons.
51:58
Speaker 6: I mean, I was not an enthusiast about pursuing the strategy,
52:03
Speaker 6: but we are here now. And I mean, I think
52:05
Speaker 6: that the concern you raise is one that people raise
52:07
Speaker 6: with the Trump impeachments too, that we would all of
52:09
Speaker 6: a sudden be in an age of impeachment in which anytime,
52:11
Speaker 6: you know, a party controlled the House, we would all
52:13
Speaker 6: of a sudden see rampant impeachments of members of the
52:15
Speaker 6: other party. Obviously, we are just the morning after an
52:18
Speaker 6: attempt to impeach Homeland Security Secretary Mayorkas. We may see
52:22
Speaker 6: another attempt. So maybe that all And it just took
52:25
Speaker 6: a couple of years to really take hold. And I
52:28
Speaker 6: guess I there I still thought it was worth pursuing
52:31
Speaker 6: actually both Trump impeachments in particular, though, the second one.
52:35
Speaker 6: And so because we just don't know what is going
52:37
Speaker 6: to be set in motion. And it also just feels
52:39
Speaker 6: like we are in such kind of. maximalist partisan warfare
52:42
Speaker 6: in an asymmetrical way, right? More, I think, one of
52:45
Speaker 6: our major political coalitions has decided to just pursue completely
52:49
Speaker 6: maximalist goals. But I think we're there and I think
52:52
Speaker 6: we are in this 14th Amendment debate and we can't
52:54
Speaker 6: avoid it. And I, again, shared the trepidation for a while.
52:57
Speaker 6: And yet now that we are here, I think that
53:00
Speaker 6: it's actually really important to continue to publicly press the
53:03
Speaker 6: argument that the Supreme Court should disqualify him if it
53:05
Speaker 6: takes seriously its role and obligations here.
53:19
Speaker 1: So given how persuasive this is, what do you expect
53:24
Speaker 1: in oral arguments to be the ways in which the
53:27
Speaker 1: conservative justices question this? And if you were betting on
53:31
Speaker 1: what kind of arguments they'd make to prevent Donald Trump
53:34
Speaker 1: from being kept from the ballot, what would.
53:36
Speaker 3: Those look like?
53:38
Speaker 6: I mean, one, I think, is the, you know, the
53:40
Speaker 6: officer language, I think, in terms of what they might,
53:42
Speaker 6: how they might rule in favor of Trump. So the
53:44
Speaker 6: president is not an officer. And so that's kind of
53:47
Speaker 6: a narrow textual basis on which to rule for Trump.
53:50
Speaker 6: There's also something else you alluded to this idea of
53:52
Speaker 6: self execution, there's some support in the limited case law
53:55
Speaker 6: on this provision for that idea, that this is in
53:57
Speaker 6: the Constitution, but it doesn't actually have force. until Congress
54:01
Speaker 6: passes a law actually making real the general prohibition in
54:05
Speaker 6: the Constitution. That, I think, is really hard because there's
54:08
Speaker 6: a separate provision in Section 3 that gives Congress the
54:10
Speaker 6: power to remove the disqualification if it votes by two-thirds
54:14
Speaker 6: to let somebody who would otherwise be ineligible serve in office.
54:18
Speaker 6: And that, I think, means that the baseline assumption is
54:20
Speaker 6: that they're ineligible if they engaged in insurrection.
54:23
Speaker 1: And Congress presumably doesn't have to pass, doesn't have, Congress
54:26
Speaker 1: has not passed a law that says you have to
54:27
Speaker 1: be 35 because it says it right there in the Constitution.
54:29
Speaker 1: It's in there.
54:29
Speaker 6: Yeah, exactly. So lots of provisions of the Constitution are
54:31
Speaker 6: what are known as self-executing. So the question is, is
54:33
Speaker 6: this self-executing? And, you know, I also think it's possible
54:37
Speaker 6: they may say that. The process used in Colorado to
54:40
Speaker 6: decide that he engaged in insurrection was just an insufficient process.
54:43
Speaker 6: I actually think that's not right. There was a lot
54:45
Speaker 6: of testimony and evidence. There were pretty careful findings in
54:49
Speaker 6: the trial court. And, you know, there's nothing in the
54:52
Speaker 6: Constitution that says or the 14th Amendment or anywhere else
54:54
Speaker 6: that says you have to be convicted. in a court
54:57
Speaker 6: of insurrection or charged with insurrection or that there's any
54:59
Speaker 6: specific procedures that need to be followed. And here, I
55:01
Speaker 6: think Colorado was sort of trying to figure out what
55:04
Speaker 6: to do in a kind of meaningful and robust way,
55:06
Speaker 6: and I think did devise a process that was pretty thorough.
55:09
Speaker 6: But that too, I think, is a basis on which
55:11
Speaker 6: the court might say, this isn't enough. They might not
55:13
Speaker 6: say what would be enough, but they might say this
55:15
Speaker 6: isn't enough, which might leave the door open to another state,
55:18
Speaker 6: Colorado even, or another state trying to use a more
55:21
Speaker 6: you know, extensive process to determine that he engaged in
55:24
Speaker 6: insurrection and then also try to disqualify him. So that
55:26
Speaker 6: leaves the door open, I think, to other efforts. The
55:29
Speaker 6: other two, I think, pretty decisively shut the door. So those,
55:31
Speaker 6: I think, are probably the three most likely candidates.
55:34
Speaker 1: Would there be some way the Supreme Court could rule
55:36
Speaker 1: on this case that makes it so other states and other,
55:40
Speaker 1: you know, other secretaries of state can't remove Trump from
55:45
Speaker 1: the ballot and force the court to rule again?
55:49
Speaker 6: So they can't do it. So force the court to
55:51
Speaker 6: rule again. I mean, they would have to have somebody
55:52
Speaker 6: else would have to try to get the court to
55:53
Speaker 6: rule again.
55:54
Speaker 4: Right. Right.
55:54
Speaker 1: They would have to. So basically, so they but what
55:56
Speaker 1: I'm saying, this ruling, even if they did it, if
55:58
Speaker 1: they do a narrow ruling, there would be nothing to prevent, say,
56:00
Speaker 1: another official from trying another path. And they'd have to
56:02
Speaker 1: just quickly smack that down.
56:04
Speaker 6: It would depend on what. Yeah. On what narrow ruling.
56:07
Speaker 6: But it is possible that they might do something that
56:08
Speaker 6: says this isn't good enough, like the process. But yes,
56:11
Speaker 6: another state could try. And in some ways, that's kind
56:13
Speaker 6: of the worst of all possible worlds, because we're going
56:15
Speaker 6: to be in this sort of limbo and uncertainty here.
56:17
Speaker 6: of the sort you alluded to with the earlier disqualification
56:21
Speaker 6: argument until, I don't know, the election potentially. I mean,
56:25
Speaker 6: one other possible kind of narrow or avoidance route would
56:29
Speaker 6: be to decide that because we're talking about a primary here,
56:32
Speaker 6: the court is not going to rule because actually he's
56:35
Speaker 6: not being taken off the ballot at all in the
56:38
Speaker 6: general election sense. And so somebody has to come back
56:41
Speaker 6: with a similar argument you know, before the general election,
56:45
Speaker 6: and then the court can decide. I mean, an even
56:47
Speaker 6: further kind of kick the can down the road approach
56:49
Speaker 6: would be to say, well, you know, either we'll rule
56:53
Speaker 6: when we're in the general election phase, or this is
56:57
Speaker 6: actually something for Congress to decide when it actually gathers
57:00
Speaker 6: to count the electoral votes, whether he's disqualified. And so
57:02
Speaker 6: we'll kind of leave this kind of protracted moment of
57:06
Speaker 6: uncertainty until the actual counting the votes, which obviously will
57:10
Speaker 6: happen once there is a new Congress. And that seems
57:13
Speaker 6: like a recipe for, you know, something that would make
57:15
Speaker 6: January 6th, 2021 look like, you know, extremely small time,
57:20
Speaker 6: you know, activity. And so I think that there's, I
57:22
Speaker 6: think that those are the possibilities and none of them
57:24
Speaker 6: are attractive possibilities.
57:26
Speaker 1: And I just want to also say for the record,
57:29
Speaker 1: if the Supreme Court decides that Trump can't be on
57:31
Speaker 1: the ballot, I support it completely. I don't want, I'm in,
57:35
Speaker 1: you know, I'm in.
57:37
Speaker 6: And I think we should talk– I think that a
57:39
Speaker 6: lot of the debate and the discourse has assumed, and
57:43
Speaker 6: I think kind of everyone protecting their hopes and expectations probably,
57:46
Speaker 6: that obviously this is a foregone conclusion. And that's still
57:49
Speaker 6: most likely right. But I just think that a lot
57:52
Speaker 6: of people who are very on the fence, I think
57:54
Speaker 6: across the spectrum, as they really grapple with the arguments,
57:58
Speaker 6: find this to be a case that is much harder
58:01
Speaker 6: for Trump to prevail in. And, you know, I think
58:04
Speaker 6: a couple of the justices are never going to be
58:05
Speaker 6: gettable on this. I can't imagine Thomas and Alito keeping
58:08
Speaker 6: a genuinely open mind. I'm not sure about Gorsuch. But
58:11
Speaker 6: I do think that this is a case where there
58:13
Speaker 6: is at least some sliver of uncertainty about how some
58:16
Speaker 6: of the justices, you know, John Roberts and Brett Kavanaugh
58:19
Speaker 6: and maybe Coney Barrett maybe.
58:21
Speaker 4: Might rule.
58:21
Speaker 6: And so I think there's a, you know, there's a
58:24
Speaker 6: way in which we, you know, we're not willing it
58:26
Speaker 6: into being. They're not actually listening. But I think that
58:28
Speaker 6: from the public's perspective, you know, I think there that
58:32
Speaker 6: that if we sort of say it's a foregone conclusion,
58:34
Speaker 6: I think people, the worry is people check out. And
58:36
Speaker 6: I don't think it's a totally foregone conclusion.
58:39
Speaker 1: Yeah, I do. Just like my non-legal objection to all
58:42
Speaker 1: of this and concern about all of this is so
58:44
Speaker 1: much of what I think the anti-democratic fervor on the
58:49
Speaker 1: right has led to is a kind of going to
58:53
Speaker 1: the rules and looking for new and previously undiscovered loopholes. Oh,
58:58
Speaker 1: Mike Pence can actually decide who the president is. Actually,
59:01
Speaker 1: state legislatures reign supreme technically. And that way of thinking
59:10
Speaker 1: about what the law is and what the constitution means
59:13
Speaker 1: is really dangerous. It's really dangerous to have everybody going
59:16
Speaker 1: to comb the records for a justifiable argument for not
59:19
Speaker 1: having to face their opponents or not having to face defeat.
59:22
Speaker 6: It feels like the left is doing that here. That's
59:23
Speaker 6: your concern.
59:24
Speaker 1: Yes, it does. It is what the left is doing here. Now,
59:27
Speaker 1: it may be justified, but we discovered a way to
59:30
Speaker 1: remove Trump from the ballot based on a constitutional amendment
59:32
Speaker 1: clearly designed to target Trump.
59:35
Speaker 6: Insurrectionists growing out of a particular moment with broader application,
59:39
Speaker 6: like so many provisions in the Constitution. And it's not
59:42
Speaker 6: just the law review article, right? Like right after January 6th,
59:44
Speaker 6: there were people in kind of pockets of academia who
59:47
Speaker 6: were talking immediately about Section 3 of the 14th Amendment
59:50
Speaker 6: disqualifying him from a future run, even when it still
59:52
Speaker 6: looked like he was going to be impeached like right away.
59:54
Speaker 6: So it is something that is not, I don't think...
59:58
Speaker 6: I think it's an uncharitable description to suggest we are
1:00:00
Speaker 6: literally just looking for any opportunistic argument.
1:00:02
Speaker 1: I agree.
1:00:03
Speaker 6: I share the concern. But of course, the alternative is, well,
1:00:05
Speaker 6: we let democracy flower and we have a candidate who
1:00:08
Speaker 6: has demonstrated unwillingness to participate in genuine democratic competition. And
1:00:14
Speaker 6: so I'm not sure just letting democracy run the show
1:00:16
Speaker 6: and rejecting legalistic arguments is going to get us there either.
1:00:21
Speaker 6: I guess there are no good routes is the answer.
1:00:23
Speaker 6: But this is where we are. And I think that
1:00:26
Speaker 6: the best reading of this provision of the Constitution and
1:00:29
Speaker 6: one that the court should actually try to grapple with
1:00:31
Speaker 6: seriously is that he's disqualified.
1:00:34
Speaker 1: One last question. You interviewed E.G. and Carol and her lawyer,
1:00:37
Speaker 1: Robbie Kaplan, after their big win in the defamation suit.
1:00:40
Speaker 1: Is there anything you learned from that discussion about Trump
1:00:43
Speaker 1: and his legal strategy in general?
1:00:46
Speaker 6: It was a really fun conversation. I do think that
1:00:49
Speaker 6: hearing them talk about Trump in court was pretty illuminating.
1:00:53
Speaker 6: I wasn't at the trial. A lot of folks did
1:00:56
Speaker 6: kind of dip in and out. But it did feel
1:00:59
Speaker 6: like he sort of lost control, and the loss of
1:01:02
Speaker 6: control made him further lose control. And I don't know
1:01:06
Speaker 6: what exactly that tells us about all of the many other,
1:01:10
Speaker 6: you know, sites of legal jeopardy that Trump is in
1:01:12
Speaker 6: at the moment. But it does seem as though when
1:01:15
Speaker 6: there's the prospect coming into view of genuine accountability, he
1:01:20
Speaker 6: takes actions in ways that are wildly counterproductive to his
1:01:23
Speaker 6: own interests, right, like legal and otherwise. And so it
1:01:26
Speaker 6: made me think that, you know, that things could get
1:01:29
Speaker 6: pretty explosive in some of these cases if, for example,
1:01:32
Speaker 6: the D.C. case goes to trial. You know, he was
1:01:35
Speaker 6: only a civil defendant in the E. Jean Carroll case
1:01:37
Speaker 6: and still, I think, kind of walked up to the line,
1:01:39
Speaker 6: as Robbie suggested, of conduct that would have gotten himself,
1:01:41
Speaker 6: you know, maybe hauled into custody if he were anyone
1:01:45
Speaker 6: but a former president. And so, you know, I don't
1:01:48
Speaker 6: exactly know what to expect. But it does seem to
1:01:51
Speaker 6: me that really unpredictable conduct is likely to ensue if
1:01:55
Speaker 6: some of these legal cases actually look like they are
1:01:57
Speaker 6: going to result in genuine accountability. And so that's what
1:01:59
Speaker 6: we have in store, I suspect, for the next nine months.
1:02:03
Speaker 1: Kate Shaw, thank you. Thank you for indulging me in
1:02:06
Speaker 1: a conversation about the law when I only have really
1:02:08
Speaker 1: just a great LSAT score to my name.
1:02:12
Speaker 6: Probably better than mine, John. But I enjoyed it. Thanks
1:02:15
Speaker 6: for having me.
1:02:21
Speaker 1: This coming Tuesday, there's a special election to fill queer
1:02:24
Speaker 1: icon George Santos's vacant seat in New York. Here to
1:02:28
Speaker 1: chat with us about this race and about what Vote
1:02:31
Speaker 1: Save America is going to help you do over the
1:02:35
Speaker 1: course of this election. It's Vote Save America's fearless leader.
1:02:38
Speaker 1: It's Janiqua McLennan.
1:02:39
Speaker 4: Hi, John.
1:02:41
Speaker 1: Janiqua, why are we watching what's happening in my childhood district,
1:02:46
Speaker 1: New York's third?
1:02:47
Speaker 4: Well, I did not know that was your childhood district,
1:02:49
Speaker 4: but we are watching because because it's a vacant seat
1:02:53
Speaker 4: right now because George Santos got kicked out of Congress.
1:02:56
Speaker 4: But the margins in Congress are pretty small. And so
1:03:00
Speaker 4: every additional Democrat we can get in matters. And it's
1:03:03
Speaker 4: something that people can start doing now. You know, one
1:03:05
Speaker 4: of our big goals for this year is to help
1:03:07
Speaker 4: Democrats take back the House. And this is like one
1:03:10
Speaker 4: step toward doing that. And yeah, it matters. And there's
1:03:12
Speaker 4: ways that people can get involved right now.
1:03:15
Speaker 1: Now, this seat is in a closely divided district. That's
1:03:17
Speaker 1: how George Santos was able to win in the first place.
1:03:19
Speaker 1: Republicans are trying to use immigration. As a wedge issue
1:03:23
Speaker 1: in the district, Democrats are hoping for a pickup. What
1:03:26
Speaker 1: can people do at Vote Save America in this one
1:03:29
Speaker 1: race right now?
1:03:32
Speaker 4: Yeah, you can actually volunteer. If you go to votesaveamerica.com
1:03:36
Speaker 4: slash volunteer, we have volunteer opportunities up for this district
1:03:40
Speaker 4: right now. And the election's on Tuesday. So pretty much
1:03:44
Speaker 4: this weekend is going to be really important for people
1:03:46
Speaker 4: to knock doors, make phone calls, and just make sure
1:03:48
Speaker 4: people know the election is happening. Turnout wasn't what it
1:03:51
Speaker 4: needed to be when this election actually happened in November
1:03:54
Speaker 4: in 2022. So people just knowing that it's happening, that
1:03:58
Speaker 4: it's close, will make the difference in hopefully getting another
1:04:00
Speaker 4: Democrat in Congress.
1:04:02
Speaker 1: Yeah, a bunch of things went wrong, I would say,
1:04:04
Speaker 1: that allowed George Santos to be elected a member of Congress. So,
1:04:07
Speaker 1: you know, a little bit of research might have been helpful.
1:04:11
Speaker 1: So Vote Save America. Yeah, listen, don't be sad because
1:04:15
Speaker 1: it's over. Smile because it happened. Vote Save America launched
1:04:18
Speaker 1: a new action finder. What should our listeners know about it?
1:04:22
Speaker 3: It's great.
1:04:23
Speaker 4: Honestly, we have thought a lot about.
1:04:25
Speaker 1: Yeah, no, it is great. It is great.
1:04:29
Speaker 4: We've thought a lot about people coming to the site
1:04:32
Speaker 4: and what experience they have when they get to the site.
1:04:34
Speaker 4: And so the action finder is an easy way to
1:04:36
Speaker 4: If you want to do something, but maybe you want
1:04:39
Speaker 4: to stay at home and do something, or maybe you're
1:04:41
Speaker 4: willing to go outside and knock doors, maybe you live
1:04:44
Speaker 4: in a place where there's not a lot of opportunity
1:04:47
Speaker 4: or a lot happening right now, or you live in
1:04:49
Speaker 4: a place like Arizona or in New York where there's
1:04:52
Speaker 4: a ton happening now, you can go on, check a
1:04:54
Speaker 4: few boxes to say how you're interested in getting involved,
1:04:57
Speaker 4: how much you're willing to do, where you want to
1:04:58
Speaker 4: do it, and then we will serve you the best
1:05:00
Speaker 4: options that come up for you.
1:05:02
Speaker 1: To do that. So yeah, we and Shaniqua has led
1:05:07
Speaker 1: this team to figure this out. Like at Vote Save America,
1:05:10
Speaker 1: at Crooked, we're trying to figure out in a moment
1:05:13
Speaker 1: where you are overwhelmed with requests for fundraising, for volunteering,
1:05:18
Speaker 1: when the news can be bleak or confusing, where you're
1:05:20
Speaker 1: not sure exactly where you can plug in and maybe
1:05:23
Speaker 1: a lot of people in your life aren't exactly excited
1:05:25
Speaker 1: to engage or at least aren't yet amped the way
1:05:29
Speaker 1: we're going to need them to be amped. Vote Save America,
1:05:32
Speaker 1: if you go and you sign up, We're trying to
1:05:34
Speaker 1: make it easy for you. So you can just go
1:05:37
Speaker 1: sign up and we will show you ways you can help.
1:05:39
Speaker 1: We will make sure that if you donate, those dollars
1:05:41
Speaker 1: are going to the places that make the biggest difference.
1:05:43
Speaker 1: Can you talk a little bit about one way we're
1:05:45
Speaker 1: doing that on the donation front?
1:05:47
Speaker 4: Yes. So we also launched our new anxiety relief program, which...
1:05:52
Speaker 4: I know it's very important to love it. You actually,
1:05:55
Speaker 4: it was very helpful. All the feedback you gave us.
1:05:57
Speaker 4: I just want everyone to know you, you, you all
1:05:59
Speaker 4: are involved. It's not just like, you know, you host
1:06:02
Speaker 4: the shows, you're involved in the stuff that we're doing
1:06:04
Speaker 4: and we appreciate it. But we launched the program pretty much.
1:06:09
Speaker 4: We wanted to take a lot of the guesswork and
1:06:11
Speaker 4: anxiety out of donating. So the way it works is
1:06:14
Speaker 4: you set up a recurring monthly donation at whatever amount
1:06:18
Speaker 4: feels good for you. And then we send 100% of
1:06:20
Speaker 4: that donation to grassroots organizations and down-ballot races, often the
1:06:25
Speaker 4: organizations and races that aren't as sexy to people and
1:06:28
Speaker 4: they don't pay a ton of attention to but are
1:06:30
Speaker 4: really important. And then at the end of each month,
1:06:33
Speaker 4: we are going to send an email out to anyone
1:06:35
Speaker 4: who's part of that program to let you know where
1:06:37
Speaker 4: your money went and what it's being used for by
1:06:39
Speaker 4: those organizations or candidates. And it's an important thing for
1:06:45
Speaker 4: the organizations and candidates as well. So often, so much
1:06:48
Speaker 4: money comes in at the last minute. It comes in
1:06:50
Speaker 4: around September when people start paying attention, but it's really
1:06:53
Speaker 4: hard to make decisions with money that doesn't come in
1:06:56
Speaker 4: until right before the election. So we're hoping to make
1:06:59
Speaker 4: things easier for the organizations we work with and some
1:07:02
Speaker 4: of those down ballot candidates so that they can plan
1:07:04
Speaker 4: out their work for the whole year. And across the board,
1:07:08
Speaker 4: I'm sure people have heard about progressive fundraising being down.
1:07:11
Speaker 4: And so this is another way we can just create
1:07:13
Speaker 4: a little bit of a cushion and certainty for the
1:07:15
Speaker 4: organizations that we work with.
1:07:18
Speaker 1: Now, you have some news.
1:07:21
Speaker 4: Yes, some breaking news. You heard it here first on
1:07:24
Speaker 4: Pod Save America. We're really excited. We launched the anxiety
1:07:28
Speaker 4: relief program last week, and we're already over 27,000 in
1:07:32
Speaker 4: monthly recurring donations from 600 donors who are really grateful
1:07:36
Speaker 4: to Any additional that people can add to that will
1:07:39
Speaker 4: help us help more organizations. So the more money we
1:07:42
Speaker 4: have coming in each month, the more organizations we can
1:07:44
Speaker 4: make sure have the resources they need to turn out voters.
1:07:47
Speaker 4: And I mean, we've seen donations as small as $ 2
1:07:51
Speaker 4: a month, all the way up to $ 1, 000 a month.
1:07:54
Speaker 4: So literally, whatever you can give is greatly appreciated. And
1:07:58
Speaker 4: on our Action Finder, 3,400 people have already used that
1:08:01
Speaker 4: tool to find something to do. So we hope you
1:08:03
Speaker 4: all will join them.
1:08:05
Speaker 1: And you know what? Honestly, those are good numbers. They're
1:08:06
Speaker 1: not good enough. There's a lot of people listening to
1:08:08
Speaker 1: this show. And here's the thing. If you're listening to this, man,
1:08:11
Speaker 1: you're really paying attention. And what's it all for? All right.
1:08:14
Speaker 1: Just to, you know, just so you can know things.
1:08:18
Speaker 1: That's not enough. So anyway, we're asking everybody. We're just
1:08:22
Speaker 1: asking everybody. 2024 is here. It's time to put all
1:08:26
Speaker 1: of your anxiety and energy and enthusiasm into actually having
1:08:31
Speaker 1: an impact. We all consume the news. We are all
1:08:33
Speaker 1: stressed out about what could happen. We all know the stakes.
1:08:36
Speaker 1: So please, please, please, now is the time to sign
1:08:38
Speaker 1: up at votesaveamerica.com and to get your friends and family
1:08:42
Speaker 1: to sign up too. Shaniqua, thank you as always. Votesaveamerica.com.
1:08:47
Speaker 4: Thanks, John.
1:08:53
Speaker 1: All right, that is our show for today. Thank you
1:08:54
Speaker 1: so much to Daniela Diaz, John Ralston, Kate Shaw, and Shaniqua.
1:08:58
Speaker 1: We'll be back on Friday with another episode. with Dan
1:09:00
Speaker 1: and John.
1:09:02
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1:10:02
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