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"Capitol-storming police-haters." · Pod Save America

• 0:01
  Speaker 1: Thank you. Welcome to Pod Save America. I'm Jon Favreau.
• 0:22
  Speaker 2: I'm Dan Pfeiffer.
• 0:23
  Speaker 1: On today's pod, Republican leaders reject a bipartisan commission created
• 0:27
  Speaker 1: to investigate their own attempted murder on January 6th. Democrats
• 0:31
  Speaker 1: finish a new analysis of why they nearly lost the
• 0:33
  Speaker 1: House in 2020. And NYU law professor Melissa Murray is
• 0:36
  Speaker 1: here to talk about the big news that New York
• 0:38
  Speaker 1: State has launched a criminal investigation into the Trump organization,
• 0:42
  Speaker 1: as well as what's ahead for the Supreme Court and more.
• 0:45
  Speaker 1: But first, Sanjay Gupta is on America Dissected this week
• 0:49
  Speaker 1: to talk with fellow doctor Abdul El-Sayed about the changing
• 0:52
  Speaker 1: state of medical journalism and a few stories he wishes
• 0:54
  Speaker 1: were getting more attention. Check it out. All right, let's
• 0:57
  Speaker 1: get to the news. The House voted on Wednesday to
• 0:59
  Speaker 1: create an independent, bipartisan commission to investigate the January 6th
• 1:03
  Speaker 1: attack on the U.S. Capitol. And since one Republican congressman
• 1:07
  Speaker 1: recently compared the attack to a, quote, normal tourist visit,
• 1:11
  Speaker 1: and another referred to the rioters as, quote, peaceful patriots,
• 1:16
  Speaker 1: Here's a quick reminder of what went down that day.
• 1:30
  Speaker 1: Defend your Constitution!
• 1:35
  Speaker 2: Defend your liberty!
• 1:38
  Speaker 1: Defend your Constitution!
• 1:40
  Speaker 3: Break it down!
• 1:43
  Speaker 1: Break it down!
• 1:59
  Speaker 2: Break it down. Break it down. Break it down.
• 2:09
  Speaker 1: Break it down. Break it down.
• 2:15
  Speaker 2: Break it down.
• 2:27
  Speaker 3: Fight for Trump! Fight for Trump!
• 2:30
  Speaker 2: Fight for Trump!
• 2:32
  Speaker 1: Just a couple of peaceful patriots on a normal tourist visit, Dan.
• 2:36
  Speaker 2: I would say that chanting treason while committing treason is
• 2:39
  Speaker 2: pretty amazing.
• 2:41
  Speaker 1: Yeah, that's really just, uh, hanging a lantern on your problems. Okay.
• 2:45
  Speaker 1: So there are still a lot of questions that haven't
• 2:48
  Speaker 1: been answered about a day that left five dead and
• 2:51
  Speaker 1: 140 police officers injured. Um, How organized was the attack?
• 2:55
  Speaker 1: How did the rioters breach what should be one of
• 2:58
  Speaker 1: the most secure buildings in the world? Why did it
• 3:01
  Speaker 1: take the federal government so long to send help? How
• 3:04
  Speaker 1: much responsibility does Donald Trump bear? What was he doing
• 3:07
  Speaker 1: and saying while the attack went on? Who else was involved?
• 3:11
  Speaker 1: After President Kennedy was assassinated, Congress set up the Warren
• 3:15
  Speaker 1: Commission to investigate. They did the same thing after 9-11
• 3:17
  Speaker 1: with a commission made up of 10 members, five appointed
• 3:20
  Speaker 1: by Democrats, five appointed by Republicans. That was the model
• 3:24
  Speaker 1: for the 1-6 Commission proposed by Democrat Benny Thompson and
• 3:27
  Speaker 1: Republican John Katko that passed the House on Wednesday. Except
• 3:31
  Speaker 1: this time, only 35 other Republicans voted for the commission.
• 3:36
  Speaker 1: 175 voted against it, including House Minority Leader Kevin McCarthy.
• 3:41
  Speaker 1: And now it heads to the Senate where Minority Leader
• 3:43
  Speaker 1: Mitch McConnell has already said he opposes the commission. Why, Dan?
• 3:48
  Speaker 1: Why are so many Republicans against a bipartisan commission charged
• 3:51
  Speaker 1: with investigating their own attempted assassination?
• 3:56
  Speaker 2: Three reasons, I think. One, this is what Donald Trump wants.
• 4:00
  Speaker 2: And they have latched themselves to Donald Trump no matter
• 4:02
  Speaker 2: where that ship is going, what he says goes. Donald
• 4:05
  Speaker 2: Trump says jump. Mitch McConnell and Kevin McCarthy say how high.
• 4:08
  Speaker 2: Second reason.
• 4:09
  Speaker 1: He released a statement yesterday calling it a Democrat trap
• 4:12
  Speaker 1: and telling everyone to vote against it. Or two days ago,
• 4:14
  Speaker 1: I think, right before.
• 4:16
  Speaker 2: Who knows when his statements come out, when they arrive
• 4:18
  Speaker 2: to us by raving, we don't really know anymore.
• 4:20
  Speaker 1: Yeah. Is he talking about the 1-6 Commission? Is he
• 4:23
  Speaker 1: talking about Kirstie Alley? We don't know. It could be anything.
• 4:26
  Speaker 2: That's a real thing that happened last night. People don't know.
• 4:28
  Speaker 2: He put out a statement in defense of Kirstie Alley
• 4:29
  Speaker 2: after Kirstie Alley was on, believe it or not, Tucker
• 4:32
  Speaker 2: Carlson's streaming show on Fox Nation, which is also a
• 4:36
  Speaker 2: thing that exists.
• 4:37
  Speaker 1: Oh, I didn't know the context.
• 4:38
  Speaker 2: Thank you for providing the context. I watched the clip
• 4:40
  Speaker 2: and it's basically the Tucker Carlson show, but he does
• 4:42
  Speaker 2: it in street clothes. As opposed to, it's highly right.
• 4:47
  Speaker 1: I don't recommend you watch it. So like his bow
• 4:48
  Speaker 1: tie is a little loose?
• 4:49
  Speaker 2: No, no, no, no. He's got on like, he looks
• 4:52
  Speaker 2: like he robbed a Brooks Brothers for casual wear. So, anywho.
• 4:57
  Speaker 2: The second reason, which is even more important than that,
• 5:00
  Speaker 2: which is the idea that the election was stolen. The
• 5:03
  Speaker 2: idea that Republicans have to keep up the big lie
• 5:04
  Speaker 2: is a critical predicate for the voter suppression laws they're
• 5:08
  Speaker 2: trying to pass around the country. If you allow a
• 5:11
  Speaker 2: bipartisan commission to look in and say, this was a
• 5:15
  Speaker 2: legitimate election, this was a big lie, that undercuts your
• 5:18
  Speaker 2: ability to steal future elections. And then I think related
• 5:21
  Speaker 2: to that, and the third reason I think is the
• 5:23
  Speaker 2: most scary, is sticking to the big lie is a
• 5:27
  Speaker 2: key ingredient to being able to do what is very
• 5:31
  Speaker 2: clearly their plan, which is to put themselves in position
• 5:34
  Speaker 2: to try to steal the 2024 presidential election even if
• 5:38
  Speaker 2: Joe Biden or the Democratic nominee wins the popular vote
• 5:41
  Speaker 2: and the Electoral College. And so to admit that this
• 5:44
  Speaker 2: was based on a lie, that the election was legitimate,
• 5:47
  Speaker 2: is to undercut all of those things. So therefore, they
• 5:50
  Speaker 2: do not want to commission independent bipartisan with credibility to
• 5:54
  Speaker 2: undercut that very important part of their plan going forward.
• 5:59
  Speaker 1: I agree with all that. I will say that– I
• 6:01
  Speaker 1: don't think that they started in a place where they
• 6:03
  Speaker 1: were 100% against this commission. So I'm very interested in
• 6:08
  Speaker 1: Kevin McCarthy throwing John Katko under the bus. So John
• 6:12
  Speaker 1: Katko is the Republican who negotiated this deal on the
• 6:15
  Speaker 1: commission with the Democrats. He is a Republican. He's the
• 6:19
  Speaker 1: ranking member of the Homeland Security Committee. He's more of
• 6:22
  Speaker 1: a moderate Republican from New York. But McCarthy basically deputizes
• 6:25
  Speaker 1: him to negotiate a deal with the Democrats about this commission.
• 6:30
  Speaker 1: CACO basically extracts all the concessions that McCarthy and the
• 6:34
  Speaker 1: Republicans asked for from the Democrats. The way this commission
• 6:38
  Speaker 1: is set up is just like the 9-11 commission, Republican
• 6:42
  Speaker 1: members and Democratic members each appoint five members. The Democrats
• 6:45
  Speaker 1: appoint the chair. The Republicans appoint the vice chair. But
• 6:50
  Speaker 1: even though this committee has subpoena power, they can't even
• 6:53
  Speaker 1: issue subpoenas unless the chair and the vice chair both agree.
• 6:57
  Speaker 1: So the Republican appointed member and the Democratic appointed member
• 7:00
  Speaker 1: Or a majority of members all agree, which means you
• 7:03
  Speaker 1: need some Republican-appointed members. So, like, Republicans got basically everything
• 7:07
  Speaker 1: they asked for in this commission, and then McCarthy just
• 7:10
  Speaker 1: decides to throw Katko under the bus, which Katko brought
• 7:13
  Speaker 1: up during one of their private caucus meetings, apparently. Like,
• 7:17
  Speaker 1: what changed, do you think?
• 7:20
  Speaker 2: It's always important to remember the Occam's razor of analyzing
• 7:24
  Speaker 2: McCarthy's actions is he is weak and stupid.
• 7:28
  Speaker 1: Yeah. Yeah. So it could have been both. It's probably
• 7:30
  Speaker 1: a combination of both.
• 7:31
  Speaker 2: This is– let's not forget. McCarthy gave a big defense
• 7:36
  Speaker 2: of Liz Cheney remaining in the leadership and helped ensure
• 7:39
  Speaker 2: she remained in leadership two months before he tossed her overboard.
• 7:42
  Speaker 2: They're operating on sort of shifting sands here in the
• 7:45
  Speaker 2: Republican Party. And so I think McCarthy obviously does not
• 7:49
  Speaker 2: really see around corners. But put Katkin's position to do it.
• 7:52
  Speaker 2: Thought a commission was OK. It would be independent. They'd
• 7:54
  Speaker 2: have some control. They'd get some concessions. And then it
• 7:57
  Speaker 2: became very clear that that would be unacceptable in Magaland.
• 8:01
  Speaker 2: And he reversed and sort of cut the limb off
• 8:04
  Speaker 2: behind Katko.
• 8:08
  Speaker 1: I will say, you know, you mentioned that they're afraid
• 8:10
  Speaker 1: of Trump. They're also afraid of right-wing media. Our pal
• 8:14
  Speaker 1: Tucker Carlson, who you were just talking about, said that
• 8:16
  Speaker 1: Republican voters should know the name of every Republican congressman
• 8:20
  Speaker 1: who voted for what he called a poisonous hoax. There's
• 8:23
  Speaker 1: also something else here, I think, that's going on. You
• 8:26
  Speaker 1: get people like Pat Toomey and Susan Collins and Mitt Romney,
• 8:30
  Speaker 1: all of whom voted to impeach Trump. And now they're
• 8:34
  Speaker 1: saying that they're still undecided on this commission, even though
• 8:37
  Speaker 1: they voted to impeach Trump. And John Thune in the Senate,
• 8:41
  Speaker 1: senator from South Dakota, sort of gave away the game
• 8:43
  Speaker 1: the other day when he was asked about the commission.
• 8:46
  Speaker 1: And he said, anything that gets us rehashing the 2020 election,
• 8:49
  Speaker 1: I think, is a day lost on being able to
• 8:53
  Speaker 1: draw contrast between us and the Democrats' very radical left-wing agenda.
• 8:57
  Speaker 1: They think that this commission is going to hurt their
• 9:01
  Speaker 1: chances in the 2022 midterms because they have this theory,
• 9:05
  Speaker 1: and this is the theory across the Republican caucus that
• 9:08
  Speaker 1: I think unites the crazier Trumpers with some of the
• 9:12
  Speaker 1: more reasonable Republicans, can't even use that word anymore, but
• 9:15
  Speaker 1: the Susan Collins and Mitt Romneys of the world, which
• 9:18
  Speaker 1: is that they all believe, and Republican strategists are all
• 9:20
  Speaker 1: telling them, that if they appear divided, it will hurt
• 9:25
  Speaker 1: their chances of winning the midterm. And so that they
• 9:27
  Speaker 1: can't talk about 1-6. They can't talk about 2020. They
• 9:31
  Speaker 1: don't want to talk about Trump. They don't want to
• 9:32
  Speaker 1: talk about Liz Cheney. Republicans are trying to avoid talking
• 9:34
  Speaker 1: about all of this stuff because Republican division does not
• 9:39
  Speaker 1: help them narrative-wise heading into 2022.
• 9:43
  Speaker 2: I agree with all of that, but one difference I
• 9:46
  Speaker 2: want to make clear is I don't think the Republicans
• 9:48
  Speaker 2: are scared of Trump. I think that gives them way
• 9:51
  Speaker 2: too much credit. They think that it is in their
• 9:56
  Speaker 2: political interest to abide by his lies. And it doesn't–
• 10:00
  Speaker 2: like he can't tweet anymore. Like no one even knows
• 10:03
  Speaker 2: about his statements. Like I had to dig deep to
• 10:04
  Speaker 2: find the Christy Alley statement. What matters still is they
• 10:08
  Speaker 2: think that they need his turnout. They need him. And
• 10:11
  Speaker 2: so they have two choices. They could either take the
• 10:14
  Speaker 2: time and energy and have the strength to try to
• 10:17
  Speaker 2: talk the base off the ledge or they could follow
• 10:20
  Speaker 2: him over the ledge. And always path of least resistance
• 10:22
  Speaker 2: for these guys. And so that's what happened. I think
• 10:25
  Speaker 2: the other thing around Toomey and Romney and Collins is
• 10:30
  Speaker 2: it's always important to remember that the Senate is basically
• 10:33
  Speaker 2: high school for old rich people. They have to go
• 10:37
  Speaker 2: to lunch together once a week and sit around tables.
• 10:40
  Speaker 2: And there's only so many times that these folks will
• 10:43
  Speaker 2: do something to anger all of their peers. And so
• 10:47
  Speaker 2: they voted for impeachment. They have said other things. They
• 10:51
  Speaker 2: defended Liz Cheney. And they're like, here's one where it
• 10:53
  Speaker 2: just feels like easier to go along with the group
• 10:56
  Speaker 2: and to create some sort of permission structure for yourself
• 10:58
  Speaker 2: to not have to get into an argument with John
• 11:02
  Speaker 2: Cornyn or something while you're trying to get applesauce in
• 11:05
  Speaker 2: the lunch line or something.
• 11:08
  Speaker 1: God forbid. I mean, I also think they are betting
• 11:11
  Speaker 1: on the fact that they kill this thing now. That
• 11:14
  Speaker 1: also like no one's going to be talking about it
• 11:16
  Speaker 1: come the midterms. And if this thing goes forward, then
• 11:20
  Speaker 1: potentially we will still be talking about it around the midterms.
• 11:23
  Speaker 1: And they just don't want that. I mean, the other
• 11:25
  Speaker 1: thing is McCarthy specifically is concerned that he will have
• 11:30
  Speaker 1: to testify against with this commission about his phone call
• 11:33
  Speaker 1: with Trump where, remember, the former president reportedly said to McCarthy, well, Kevin,
• 11:38
  Speaker 1: I guess these people are more upset about the election
• 11:41
  Speaker 1: than you are as rioters are storming the Capitol where
• 11:45
  Speaker 1: Kevin McCarthy is sitting. And Trump said that to him.
• 11:49
  Speaker 1: And I'm sure McCarthy doesn't want to testify about that.
• 11:52
  Speaker 2: Yeah, I mean.
• 11:53
  Speaker 1: I love that... There's a lot of great things around this.
• 11:57
  Speaker 1: Congressman Greg Pence... voted against the commission greg pence greg
• 12:02
  Speaker 1: pence voted against the commission to investigate the people who
• 12:05
  Speaker 1: wanted to hang his brother the former vice president what
• 12:09
  Speaker 1: a shitty.
• 12:10
  Speaker 2: Brother maybe maybe they don't like each other everyone.
• 12:13
  Speaker 1: Else's brother is automatically better than greg pence i just
• 12:19
  Speaker 1: it's unbelievable so uh and then the one other so
• 12:22
  Speaker 1: there's a couple republican complaints about the commission they they
• 12:25
  Speaker 1: say it's partisan it's We've just talked about why it's
• 12:28
  Speaker 1: absolutely not partisan. First of all, it was passed by
• 12:32
  Speaker 1: 35 Republicans. Second of all, the commission requires bipartisan consent
• 12:37
  Speaker 1: in order to even move forward at all. I can't
• 12:39
  Speaker 1: do anything with just Democratic appointed members or Democratic appointed staffers.
• 12:43
  Speaker 1: It needs cooperation. So it's a lie that it's partisan.
• 12:46
  Speaker 1: They are saying that it's duplicative. John Katko himself, the
• 12:50
  Speaker 1: Republican that negotiated the bill, made an impassioned floor speech
• 12:53
  Speaker 1: where he talked about how it's not duplicative. In fact,
• 12:56
  Speaker 1: he knocked down every single Republican concern. He mentioned that
• 13:00
  Speaker 1: the commission couldn't interfere with ongoing criminal investigations that are
• 13:04
  Speaker 1: already taking place, which is what Mitch McConnell complained about.
• 13:06
  Speaker 1: He also pointed out that the current criminal investigations aren't
• 13:10
  Speaker 1: sufficient because they won't tell us how to protect ourselves
• 13:12
  Speaker 1: from such an attack in the future. He even said
• 13:15
  Speaker 1: that the commission could look into other instances of political violence.
• 13:18
  Speaker 1: One of the crazy complaints from Republicans like Kevin McCarthy
• 13:21
  Speaker 1: and others is that the commission is not going to
• 13:24
  Speaker 1: look into political violence committed by the left. And in fact,
• 13:28
  Speaker 1: here's what Marjorie Taylor Greene said about the commission on
• 13:31
  Speaker 1: the floor the other day.
• 13:32
  Speaker 3: While it's catch and release for domestic terrorist Antifa BLM,
• 13:36
  Speaker 3: the people who breached the Capitol on January 6th are
• 13:39
  Speaker 3: being abused.
• 13:41
  Speaker 1: The people who breached the Capitol are being abused. And
• 13:44
  Speaker 1: what really should happen is that Black Lives Matter protesters
• 13:47
  Speaker 1: should be investigated. That is the fringe Republican position, I suppose.
• 13:51
  Speaker 2: You know that relatively unfunny meme that's like, I made
• 13:55
  Speaker 2: a bot watch 10,000 hours of Friends and wrote a script?
• 13:59
  Speaker 2: Marjorie Taylor Greene is basically a bot who watched 10,000
• 14:01
  Speaker 2: hours of Fox. It's just like catch and release BLM
• 14:04
  Speaker 2: Patriots blob.
• 14:06
  Speaker 1: It's just Antifa terrorist. AOC. Yeah, that's just wind her
• 14:11
  Speaker 1: up and watch her go.
• 14:12
  Speaker 2: All right.
• 14:13
  Speaker 1: So what happens now? What, what options the Democrats have?
• 14:16
  Speaker 2: Presuming that the Republicans will filibuster this in the Senate
• 14:21
  Speaker 2: and therefore prove to maybe Joe Manchin and Kyrsten Sinema
• 14:26
  Speaker 2: that the filibuster is not a tool to facilitate bipartisanship. Um,
• 14:30
  Speaker 2: The option for the Democrats is to impanel their own commission,
• 14:33
  Speaker 2: a special committee, much like the Republicans did on Benghazi
• 14:37
  Speaker 2: that would have subpoena power and let them go investigate
• 14:40
  Speaker 2: this as it should be investigated.
• 14:43
  Speaker 1: What do you think the benefits and drawbacks of that are?
• 14:48
  Speaker 2: The benefit is you would actually investigate it. You would
• 14:50
  Speaker 2: have subpoena power. You would not be captive to Republicans.
• 14:53
  Speaker 2: I have read some speculation that a congressional committee would
• 14:56
  Speaker 2: not– would struggle– to get to subpoena a member of
• 15:01
  Speaker 2: Congress who testified before it. An independent commission would have
• 15:04
  Speaker 2: more legal standing to do that. So that is one
• 15:07
  Speaker 2: potential drawback. I think in the ideal view of Pelosi
• 15:14
  Speaker 2: and Benny Thompson and the people who had this original
• 15:18
  Speaker 2: plan was that this really would be like the 9-11 Commission,
• 15:21
  Speaker 2: which was a very serious endeavor. It had buy-in from
• 15:24
  Speaker 2: the Bush administration. Bush and Cheney testified before it or
• 15:28
  Speaker 2: they gave depositions for it. It released its findings in
• 15:32
  Speaker 2: the summer of the year Bush was up for reelection.
• 15:35
  Speaker 2: It was all serious people. But that was a different
• 15:39
  Speaker 2: era and a different thing. 9-11 happened nine months after
• 15:43
  Speaker 2: Bush took office. The commission was looking at everything, including
• 15:46
  Speaker 2: all the things that happened in the years before we
• 15:48
  Speaker 2: had a Democratic administration. Obviously, the bulk of the responsibility
• 15:51
  Speaker 2: for what happened fell on Bush's side of the ledger,
• 15:54
  Speaker 2: but it was a global look and you had buy-in
• 15:56
  Speaker 2: from lots of people involved. There was a whole lot
• 15:58
  Speaker 2: of things to look at. Here we have one lie
• 16:01
  Speaker 2: pushed by one party, pushed by one president from that party.
• 16:04
  Speaker 2: It does not need that sort of bipartisanship. The other
• 16:09
  Speaker 2: thing that I think might be a miscalculation from the
• 16:12
  Speaker 2: Democrats is you heard some people and some members say
• 16:15
  Speaker 2: in some of these stories, if it's not bipartisan, you're
• 16:18
  Speaker 2: not going to be able to convince the Trump base,
• 16:22
  Speaker 2: Republican voters about the truth of the big lie and
• 16:25
  Speaker 2: what really happened. But I think that is a naive conception.
• 16:29
  Speaker 1: I think that ship has sailed, my friend. Right.
• 16:32
  Speaker 2: Well, I mean, it's just politics.
• 16:35
  Speaker 1: Horses out of the barn.
• 16:36
  Speaker 2: Politics has changed a lot since then. Let's say Mitch
• 16:40
  Speaker 2: McConnell and Kevin McCarthy got on board with this. So
• 16:44
  Speaker 2: you have, it is a joint report signed by the
• 16:46
  Speaker 2: minority leader, Republican minority leader, Republican minority leader in the House,
• 16:50
  Speaker 2: and you put it out. Those people have one iota
• 16:54
  Speaker 2: of the credibility of Tucker Carlson, Sean Hannity, Dan Bongino
• 16:58
  Speaker 2: with the base of the party. So it is spitting
• 17:00
  Speaker 2: in the wind compared to what Fox News would do
• 17:02
  Speaker 2: about this. So what we ultimately want to do is
• 17:05
  Speaker 2: get to the bottom of what happened. Because like the
• 17:08
  Speaker 2: 9-11 Commission, the 9-11 Commission was what happened. And how
• 17:10
  Speaker 2: do we prevent it from happening again? There is a
• 17:13
  Speaker 2: very real risk that just a few years from now,
• 17:15
  Speaker 2: we could be in the very same situation. There will
• 17:18
  Speaker 2: be another big lie push, another close election. Another situation
• 17:22
  Speaker 2: where you could see the very same thing. So how
• 17:24
  Speaker 2: do you stop that from happening again? Both how do
• 17:26
  Speaker 2: you how do you push back against the spread of
• 17:28
  Speaker 2: the big lie? And then how do you actually strengthen
• 17:30
  Speaker 2: the Capitol and put in place this the the systems
• 17:33
  Speaker 2: you need to ensure that a group of people can't
• 17:35
  Speaker 2: storm the Capitol on a day like that?
• 17:38
  Speaker 1: Yeah, I think it's a very important point that this
• 17:40
  Speaker 1: isn't backward looking, that this is very forward looking, the
• 17:42
  Speaker 1: need for this commission. because you know that the Republicans
• 17:45
  Speaker 1: are already saying like, oh, we don't want to relitigate
• 17:48
  Speaker 1: the 2020 election, right? We don't want to look back.
• 17:50
  Speaker 1: But this is, of course, about the future. I think
• 17:52
  Speaker 1: the other big difference between a select committee set up
• 17:55
  Speaker 1: by Pelosi and a committee set up by this commission,
• 17:59
  Speaker 1: the 1-6 Commission that's being debated right now is the
• 18:03
  Speaker 1: commission would have members appointed by Democratic and Republican members
• 18:07
  Speaker 1: of Congress, but it couldn't include current Democratic or Republican
• 18:11
  Speaker 1: members of Congress or any current elected official if Pelosi
• 18:14
  Speaker 1: creates a special committee, it's going to be all yahoos
• 18:18
  Speaker 1: from Congress. Democratic yahoos too, we like them. And look,
• 18:24
  Speaker 1: you could set it up so you have a majority,
• 18:26
  Speaker 1: a Democratic majority on the committee, and that the Democrats
• 18:29
  Speaker 1: and the chair of that committee have subpoena power. But again,
• 18:33
  Speaker 1: you're going to have a bunch of Republicans on that committee,
• 18:35
  Speaker 1: or at least some Republicans on that committee, who will
• 18:37
  Speaker 1: turn it into a complete circus, much like they did
• 18:41
  Speaker 1: during impeachment. But again, I think you have to figure
• 18:43
  Speaker 1: out like, what is the ultimate goal here? I actually
• 18:46
  Speaker 1: don't think that we should have a political goal in
• 18:50
  Speaker 1: mind here, not because I am above that, but because
• 18:54
  Speaker 1: I don't think you're going to change that many minds
• 18:57
  Speaker 1: on this at this point. But I do think there
• 18:59
  Speaker 1: is another goal of, like you said, just finding out
• 19:01
  Speaker 1: what happened and getting answers to these questions, which I
• 19:04
  Speaker 1: do think is incredibly important. Norm Ornstein talked to Greg
• 19:09
  Speaker 1: Sargent at the Washington Post about some other options aside
• 19:11
  Speaker 1: from Pelosi creating a special committee. He also said that
• 19:14
  Speaker 1: Biden could create a commission, but that makes it a
• 19:16
  Speaker 1: little too close to Biden if he does that. And
• 19:20
  Speaker 1: then DOJ, like under Merrick Garland, could maybe create a
• 19:26
  Speaker 1: commission as well. And then Merrick Garland could sort of
• 19:28
  Speaker 1: step away from it as attorney general and just let
• 19:31
  Speaker 1: this independent commission operate on its own and maybe have
• 19:35
  Speaker 1: a little more authority to to subpoena people than your
• 19:39
  Speaker 1: typical congressional committee. So he said that that was another
• 19:42
  Speaker 1: option too. But it does seem like, and Pelosi was
• 19:45
  Speaker 1: kind of talking about this yesterday when reporters asked her
• 19:48
  Speaker 1: about it, that she... is at least thinking in the
• 19:51
  Speaker 1: back of her mind that if this thing goes down,
• 19:52
  Speaker 1: that she could create a special committee.
• 19:54
  Speaker 2: There is this legend that sort of, whenever anyone's been
• 19:57
  Speaker 2: talking about this, and the Benghazi committee has been the
• 20:01
  Speaker 2: analogy that every reporter uses, we should note that it
• 20:05
  Speaker 2: is a very imperfect one because Benghazi had already been
• 20:08
  Speaker 2: investigated by several committees chaired by Republicans who had declared
• 20:12
  Speaker 2: that while there were mistakes made in terms of embassy security,
• 20:17
  Speaker 2: there was no cover-up. It sort of debunked all the
• 20:24
  Speaker 2: Republican conspiracy theories. John Boehner created a special committee so
• 20:27
  Speaker 2: they could keep doing that to appease the folks on
• 20:30
  Speaker 2: the right. And then there's this view that it was
• 20:31
  Speaker 2: this massively damaging political winner for them. That's not as
• 20:36
  Speaker 2: true as people think. The reason why it is seen
• 20:38
  Speaker 2: is because that is where the existence of Hillary Clinton's
• 20:42
  Speaker 2: personal email use came out, but that's a very different
• 20:46
  Speaker 2: situation here. It was not that they talked about Benghazi
• 20:49
  Speaker 2: for years. That actually was a huge, I think, negative
• 20:52
  Speaker 2: for them if you remember the hearing that Hillary Clinton
• 20:54
  Speaker 2: testified and sort of made all of them look like fools.
• 20:59
  Speaker 2: I think to your– the thing that we should be
• 21:03
  Speaker 2: I think realistic about is it is may of 2021.
• 21:08
  Speaker 2: The idea that this is going to drive conversation for
• 21:11
  Speaker 2: the next 15 or 16 months as the election is
• 21:13
  Speaker 2: just belied by everything. We should always remember Donald Trump
• 21:16
  Speaker 2: was impeached.
• 21:17
  Speaker 1: We just had two impeachment hearings. We had two impeachment hearings.
• 21:22
  Speaker 2: Yeah. No, I, I mean, what this is is a
• 21:24
  Speaker 2: very disturbing sign about democracy, the state of the Republican party,
• 21:27
  Speaker 2: the absolutely absurd position we find ourselves in. Um, But
• 21:31
  Speaker 2: it is not the thing that is going to win
• 21:33
  Speaker 2: the election. But we should get answers to protect people's
• 21:36
  Speaker 2: lives because people's lives were lost on that day.
• 21:38
  Speaker 1: I will say, to go back to a point you
• 21:40
  Speaker 1: made earlier, it is also another test of sort of
• 21:44
  Speaker 1: the mansion cinema theory of the fucking filibuster and protecting
• 21:48
  Speaker 1: the Senate as an institution. You know, this thing isn't
• 21:50
  Speaker 1: dead yet.
• 21:50
  Speaker 2: Right.
• 21:52
  Speaker 1: In fact, just before we started recording today, Manchin told
• 21:55
  Speaker 1: reporters he thinks there's still a, quote, very, very good
• 21:58
  Speaker 1: chance of passing the commission. OK, so you got McConnell
• 22:02
  Speaker 1: against it in the Senate. You had seven. You need
• 22:05
  Speaker 1: 10 Republicans to pass this thing. You had seven Republicans
• 22:09
  Speaker 1: who voted to impeach Donald Trump. You don't even have
• 22:11
  Speaker 1: them on board yet for this commission. Where the hell
• 22:14
  Speaker 1: are you going to find 10 Republicans to support this
• 22:17
  Speaker 1: commission unless, unless Mansion and Cinema decide that the filibuster
• 22:23
  Speaker 1: is not more important than a bipartisan commission to investigate
• 22:28
  Speaker 1: an attack on the very institution that they think they
• 22:32
  Speaker 1: are trying to save by protecting the fucking filibuster. It
• 22:37
  Speaker 1: like my head is going to explode thinking about.
• 22:39
  Speaker 2: Well, think about remember the video of Mitt Romney barely
• 22:44
  Speaker 2: running into that crowd that was in the impeachment hearing
• 22:46
  Speaker 2: that feels like 100 years ago, but it was like
• 22:47
  Speaker 2: three months ago. And Mitt Romney, he was almost assaulted
• 22:53
  Speaker 2: by that crowd. It was by the bravery of one
• 22:55
  Speaker 2: officer who saved him is against it. I was trying
• 22:59
  Speaker 2: to interpret what Manchin said. I think he probably thinks
• 23:03
  Speaker 2: there's some chance that there could be some additional concessions
• 23:06
  Speaker 2: made to get a bill that would have bipartisan support
• 23:09
  Speaker 2: in the Senate.
• 23:11
  Speaker 1: What else could they give at this point? I don't know.
• 23:15
  Speaker 1: Do they want Trump? Do they want Trump on the commission?
• 23:18
  Speaker 1: Is that what they want?
• 23:19
  Speaker 2: I mean, someone pointed out, I think, I can't remember
• 23:22
  Speaker 2: where I read this today, but you- Oh, it was.
• 23:23
  Speaker 1: In Max- Fucking QAnon shaman? Does he have to be
• 23:25
  Speaker 1: on the commission? Yes.
• 23:28
  Speaker 2: The five Republican members of the commission are the cast
• 23:31
  Speaker 2: members of the five. Vice Chair Gutfeld.
• 23:35
  Speaker 1: I do think, though, I think this is a good
• 23:37
  Speaker 1: test if- You know, there's a lot of important things
• 23:40
  Speaker 1: at stake here, but around the filibuster and what Manchin
• 23:43
  Speaker 1: and Sinema do on this, especially because they talk so
• 23:45
  Speaker 1: much about bipartisanship. Well, here you have a bipartisan commission.
• 23:48
  Speaker 1: What are you going to do about it? All right.
• 23:59
  Speaker 1: Enough about Republicans. Let's talk about what Democrats are up
• 24:01
  Speaker 1: to these days. The party seems hellbent on trying to
• 24:04
  Speaker 1: win the next election the old fashioned way by figuring
• 24:06
  Speaker 1: out how to get more votes. This week, Congressman Sean Maloney,
• 24:10
  Speaker 1: the chair of the Democratic Congressional Campaign Committee, the DCCC,
• 24:14
  Speaker 1: presented a 52-page PowerPoint deep dive to House Democrats that
• 24:18
  Speaker 1: analyzed over 600 polls, voter files, and state and local
• 24:22
  Speaker 1: data in an effort to explain why Democrats lost 11
• 24:26
  Speaker 1: House seats in an election year where Joe Biden won
• 24:29
  Speaker 1: by more than 7 million votes and the party gained
• 24:31
  Speaker 1: three seats in the Senate. So according to Paul Kane
• 24:35
  Speaker 1: of The Washington Post, who reported out the story, Maloney
• 24:37
  Speaker 1: basically lands on two reasons that the Democrats didn't do
• 24:40
  Speaker 1: as well in House races. One, Republican turnout, which just
• 24:45
  Speaker 1: about every poll missed. And two, Republican attacks, especially on
• 24:50
  Speaker 1: socialism and defunding the police. Still, the congressman said that while, quote,
• 24:54
  Speaker 1: the lies and distortions about defund and socialism carried a punch,
• 24:58
  Speaker 1: the Republicans think it got them over a 10-foot wall
• 25:01
  Speaker 1: when Trump's turnout gave them a seven-foot ladder. So Maloney
• 25:05
  Speaker 1: was joined on the call by the co-chairs of this report,
• 25:08
  Speaker 1: Representatives Jim Himes, Katie Porter, and Nakima Williams, who was
• 25:13
  Speaker 1: just elected to fill John Lewis's seat. What's your reaction
• 25:16
  Speaker 1: to this? Anything else interesting about this autopsy that I missed?
• 25:20
  Speaker 2: Well, first, I think we should just give kudos to
• 25:22
  Speaker 2: the House Democrats for doing this. Oftentimes, parties do not
• 25:26
  Speaker 2: want to face the uncomfortable questions about how they lost.
• 25:30
  Speaker 2: And so this was a very good thing they did this.
• 25:32
  Speaker 2: And I think the House Democrats have actually been very
• 25:34
  Speaker 2: good about this. After the 2016 election, they actually did
• 25:38
  Speaker 2: two autopsies. The DCCC did theirs. And then the members
• 25:42
  Speaker 2: assigned Congressman Maloney, who was not yet the DCCC chair,
• 25:46
  Speaker 2: to do an independent investigation. So you sort of were
• 25:49
  Speaker 2: doing a belt and suspenders approach to see Because he
• 25:51
  Speaker 2: would not have an interest as the DCCC member there
• 25:55
  Speaker 2: to sort of paper over some of the mistakes. And
• 25:59
  Speaker 2: I went back and read the reports about his 2017 autopsy.
• 26:04
  Speaker 2: What he was hypothesizing then, based on the information he had,
• 26:09
  Speaker 2: has turned out to be quite true about shifts in
• 26:10
  Speaker 2: electoral coalitions, about the Democratic challenges in rural areas, about
• 26:15
  Speaker 2: some of our challenges with Black and Latino voters. And
• 26:20
  Speaker 2: it actually played a real role in the success we
• 26:23
  Speaker 2: had in 2018. The other point I would say that
• 26:28
  Speaker 2: Maloney brought up in his call, according to this report
• 26:30
  Speaker 2: from Paul Kane, is that there was an over-indexing of
• 26:36
  Speaker 2: old media, that they struggled really to reach black and
• 26:40
  Speaker 2: brown voters and voters in rural areas because they were
• 26:42
  Speaker 2: relying too much on linear on television advertising as opposed
• 26:47
  Speaker 2: to digital.
• 26:48
  Speaker 1: Singing your song, Dan. I know.
• 26:50
  Speaker 2: Obviously, I honed in on the exact part that makes
• 26:55
  Speaker 2: me seem right.
• 26:56
  Speaker 1: I was going to bring this up later, but you
• 26:58
  Speaker 1: were just jumping right on it. I appreciate that.
• 27:00
  Speaker 2: I think, to be fair, in recent years, DCCC has
• 27:04
  Speaker 2: been a little bit behind others in terms of moving
• 27:06
  Speaker 2: away from television and to digital. But one of the
• 27:10
  Speaker 2: challenges here, and we've talked about this in other contexts,
• 27:13
  Speaker 2: is so much of the money came in late. And
• 27:15
  Speaker 2: when the money comes in late, one of the only
• 27:17
  Speaker 2: things you can do is just go buy up the
• 27:20
  Speaker 2: remaining television inventory, especially because Facebook turned off their ads
• 27:24
  Speaker 2: at the end. And so really, your only option was TV.
• 27:28
  Speaker 2: But there is a broader philosophical shift in the party
• 27:31
  Speaker 2: about how we allocate resources. And it's not just pay
• 27:34
  Speaker 2: to digital. It's also what goes to organizing, what is
• 27:37
  Speaker 2: spent early on deep canvassing and organizing. But the model
• 27:44
  Speaker 2: did not work. And there are some other reasons there,
• 27:46
  Speaker 2: which I think we should talk about. But the allocation
• 27:48
  Speaker 2: of resources is a very important one that needs to
• 27:50
  Speaker 2: be applied going forward.
• 27:51
  Speaker 1: Yeah, I thought it was interesting. Maloney at one point said, like,
• 27:55
  Speaker 1: I'd rather invest in the next Stacey Abrams. who's going
• 27:58
  Speaker 1: to build a ground organization than spend more money on television,
• 28:02
  Speaker 1: which obviously that's a popular thing to say, I'm sure.
• 28:06
  Speaker 2: That's why if I were to get into stocks, I
• 28:08
  Speaker 2: want to invest in the next Netflix, right?
• 28:12
  Speaker 1: The next Apple. That would be cool.
• 28:14
  Speaker 2: Yeah, you got to go through a lot of pets.com
• 28:15
  Speaker 2: to get to that. Juiceros.
• 28:17
  Speaker 1: All right. So what the hell do the Democrats do
• 28:22
  Speaker 1: about the fact that our polling keeps missing surges in
• 28:24
  Speaker 1: Republican turnout? Maloney said, quote, the Republican Party is betting
• 28:29
  Speaker 1: the ranch that they can do Trump's toxicity without Trump's turnout.
• 28:33
  Speaker 1: And I think that may end up being a terrible mistake.
• 28:35
  Speaker 1: So there's I guess there's two different things at play here.
• 28:38
  Speaker 1: One is like, what do we do about the fact
• 28:41
  Speaker 1: that our polling keeps missing this surge in Republican turnout?
• 28:45
  Speaker 1: And then the second is, what do we do about
• 28:47
  Speaker 1: the fact that there keeps being a surge in Republican turnout?
• 28:51
  Speaker 2: I think it's we'll just back up one step to
• 28:53
  Speaker 2: talk about why the polling miss actually matters. And why
• 28:56
  Speaker 2: it particularly matters for the DCCC. You know, because if
• 29:00
  Speaker 2: the media polling being wrong ultimately does not matter at all.
• 29:04
  Speaker 2: It affects our expectations. That's just for us.
• 29:07
  Speaker 1: That's just for our own.
• 29:08
  Speaker 2: All it means is that we either get our hopes
• 29:09
  Speaker 2: crushed or we're pleasantly surprised. No one's making decisions based on.
• 29:13
  Speaker 2: Although I will say some like grassroots donors are. Like
• 29:17
  Speaker 2: they thought a whole bunch of Senate races were winnable
• 29:19
  Speaker 2: because the polls said they were. And they clearly were not.
• 29:22
  Speaker 2: But what really matters is campaign polling. And the DCCC
• 29:26
  Speaker 2: in particular, in addition to recruiting candidates and training candidates,
• 29:30
  Speaker 2: what they do is they raise a bunch of money
• 29:31
  Speaker 2: and then they go spend it on the incumbents they
• 29:35
  Speaker 2: think are most likely to lose and then the Republican
• 29:38
  Speaker 2: seats they think are most likely to be flipped. And
• 29:40
  Speaker 2: if you have the wrong view of the map, you're
• 29:43
  Speaker 2: going to spend money in the wrong way. And it
• 29:44
  Speaker 2: was devastating in 2020 because we had six of the
• 29:50
  Speaker 2: 2018 freshmen who were running in tough districts lose by
• 29:52
  Speaker 2: a point and a half. Because according to a world
• 29:55
  Speaker 2: in which you had lower Trump turnout, those races seem safe.
• 29:58
  Speaker 2: And then you poured a bunch of money into some
• 30:00
  Speaker 2: seats we ended up losing by five, six, seven, eight
• 30:02
  Speaker 2: points because you were just looking at a fun house
• 30:05
  Speaker 2: mirror version of it. And so it's absolutely devastating in
• 30:08
  Speaker 2: a world of limited resources being spread out. There's never
• 30:11
  Speaker 2: enough money to spend on every house race. So you
• 30:13
  Speaker 2: have to make some real decisions. If you don't have
• 30:14
  Speaker 2: good polling, that's a problem. Like every other polling report
• 30:18
  Speaker 2: that has come out since the election, no one has
• 30:20
  Speaker 2: a good answer for solving that problem.
• 30:24
  Speaker 1: I'll give you an example of this. I ended up
• 30:26
  Speaker 1: doing like speaking at a fundraiser for Abby Finkenhauer, like
• 30:30
  Speaker 1: the week before the election. And I remember thinking, and,
• 30:33
  Speaker 1: and Pelosi, it was a zoom fundraiser and Pelosi spoke
• 30:36
  Speaker 1: at it too. And I'm like, I was happy to
• 30:39
  Speaker 1: do it. Cause I love Abby, but I was like,
• 30:40
  Speaker 1: why are we doing a fundraiser for Abby Finkenhauer right now? Like,
• 30:44
  Speaker 1: first of all, she's up by a lot. Why is
• 30:46
  Speaker 1: Pelosi here like this? And it turns out, you know,
• 30:49
  Speaker 1: talk to her afterwards after the election, like there was
• 30:53
  Speaker 1: a late surge from her Republican candidate that they had
• 30:56
  Speaker 1: completely missed. And the Finkenauer campaign was sort of begging
• 30:59
  Speaker 1: for more resources from the DCCC and from the Democratic
• 31:01
  Speaker 1: Party that they weren't getting because the polling had led
• 31:04
  Speaker 1: them astray for so long and sort of missed this
• 31:07
  Speaker 1: last minute surge, even though they felt on the ground
• 31:10
  Speaker 1: that they were in a bit of trouble, which is
• 31:12
  Speaker 1: just a real world example of how polling can actually
• 31:15
  Speaker 1: not just like throw political consumers off, but like actual
• 31:19
  Speaker 1: people who are running political campaigns.
• 31:21
  Speaker 2: Yeah, it's not great.
• 31:22
  Speaker 1: Not great.
• 31:23
  Speaker 2: As they say.
• 31:25
  Speaker 1: So I guess so that that's the polling. I mean,
• 31:27
  Speaker 1: the other big question here is like what Democrats do
• 31:29
  Speaker 1: about Republicans calling us left wing socialists who want to
• 31:32
  Speaker 1: defund the police. Since, you know, this report shows, like
• 31:36
  Speaker 1: many others, that that clearly had some kind of effect,
• 31:39
  Speaker 1: though we don't exactly know what and where and with who.
• 31:43
  Speaker 1: Dave Weigel and Griff Witt had a story in The
• 31:45
  Speaker 1: Washington Post last week about how rising crime rates in
• 31:49
  Speaker 1: cities are posing a political challenge for Democrats with Democrats
• 31:53
  Speaker 1: who have progressive criminal justice reform agendas. So then on Tuesday,
• 31:59
  Speaker 1: two of those Democrats won some pretty big political victories
• 32:02
  Speaker 1: in Pennsylvania. Philadelphia District Attorney Larry Krasner, who's focused on
• 32:07
  Speaker 1: reforming cash bail, reversing wrongful convictions, ending prosecution for low-level crimes.
• 32:12
  Speaker 1: won a primary election over his police union-backed challenger, Carlos Vega,
• 32:16
  Speaker 1: by 65 to 34 percent, landslide. And then in Pittsburgh,
• 32:21
  Speaker 1: Mayor Bill Peduto lost his primary to progressive state representative
• 32:25
  Speaker 1: Ed Gainey, who campaigned on equity in housing and policing
• 32:28
  Speaker 1: and will likely become the city's first black mayor. So
• 32:31
  Speaker 1: what did you think of Tuesday's results in Pennsylvania in
• 32:34
  Speaker 1: light of the findings of the DCCC report?
• 32:39
  Speaker 2: I think that they are almost wholly disconnected. I think
• 32:43
  Speaker 2: it would have sent a very disturbing message to the
• 32:46
  Speaker 2: party if Larry Krasner had lost because he was sort
• 32:50
  Speaker 2: of the– I mean there's a documentary about him. He's
• 32:52
  Speaker 2: sort of the poster child of a progressive prosecutor who
• 32:56
  Speaker 2: comes in running on a criminal justice reform platform and
• 33:00
  Speaker 2: then puts in place real change really quickly. If he
• 33:03
  Speaker 2: had lost a Democratic primary, that would have sent a
• 33:05
  Speaker 2: message that I think would have sort of paused or
• 33:08
  Speaker 2: slowed or even stopped the momentum of among Democratic politicians
• 33:12
  Speaker 2: for this very important criminal justice reform agenda. But what
• 33:17
  Speaker 2: is happening in Democratic primaries or overwhelmingly Democratic cities doesn't
• 33:21
  Speaker 2: tell us very much about what happens in purple districts,
• 33:24
  Speaker 2: how it's being seen by independent voters or the gap
• 33:29
  Speaker 2: between people in these House districts who voted for Biden
• 33:32
  Speaker 2: and the ones who voted for House Democrats. Because the
• 33:36
  Speaker 2: House Democrats underperformed Biden in most places by a couple
• 33:39
  Speaker 2: of points. In many cases, that was the difference. And
• 33:40
  Speaker 2: so how do they view these things? And so I
• 33:42
  Speaker 2: think it's a very positive– for the actual and incredibly
• 33:46
  Speaker 2: important goal of putting in place criminal justice reform legislation
• 33:50
  Speaker 2: at the state and local level, those victories are very important.
• 33:54
  Speaker 2: And I think it sort of will pause a growing
• 33:56
  Speaker 2: narrative that will be completely upended depending on what happens
• 34:00
  Speaker 2: in the New York mayoral primary in June if Eric
• 34:04
  Speaker 2: Adams– who is the most conservative on these criminal justice
• 34:10
  Speaker 2: reform issues, if he were to win that primary, that would,
• 34:12
  Speaker 2: I think, sort of bring us right back to where
• 34:14
  Speaker 2: we were before Tuesday. But I don't think it should
• 34:16
  Speaker 2: give us a lot of indication of how these messages
• 34:19
  Speaker 2: will play in November in Virginia or November 2022.
• 34:24
  Speaker 1: Yeah.
• 34:24
  Speaker 2: I mean, to.
• 34:27
  Speaker 1: Me, the Tuesday results sort of speak to the ongoing
• 34:30
  Speaker 1: march of polarization in politics. Like, just as Republicans in
• 34:34
  Speaker 1: red areas are getting more conservative, Democrats in big blue
• 34:38
  Speaker 1: cities are getting more liberal. And so when there is
• 34:40
  Speaker 1: a primary in a big city, then there's a really
• 34:44
  Speaker 1: good chance that the more progressive candidate can win that
• 34:47
  Speaker 1: primary for the same polarization reasons that we're seeing Republicans
• 34:52
  Speaker 1: in red areas vote for more Trumpy candidates. Now, so
• 34:59
  Speaker 1: before we move on from the DCCC report, What do
• 35:02
  Speaker 1: you take away from it in terms of like what
• 35:04
  Speaker 1: the party should do, both in terms of like we
• 35:07
  Speaker 1: got this polling challenge, we got this Republican turnout challenge,
• 35:09
  Speaker 1: and we got this challenge of Republicans, you know, using
• 35:14
  Speaker 1: sort of defund attacks, socialism attacks, and often lying about
• 35:19
  Speaker 1: those attacks as well.
• 35:21
  Speaker 2: Before we do that, I just want to make one
• 35:22
  Speaker 2: point just so people understand the tremendous structural disadvantage that
• 35:26
  Speaker 2: Democrats have. We're having like there's an autopsy and we're
• 35:28
  Speaker 2: talking about it. We lost 11 seats. House Democratic candidates
• 35:32
  Speaker 2: won 4.7 million more votes than Republican House candidates.
• 35:37
  Speaker 1: Yeah.
• 35:38
  Speaker 2: They won the House popular vote by 3.1 points, and
• 35:40
  Speaker 2: we lost 11 seats. That is just as Joe Biden
• 35:45
  Speaker 2: won the popular vote by 7 million votes and barely
• 35:48
  Speaker 2: won a small handful of seats that gave him a
• 35:50
  Speaker 2: sizable electoral college margin. Democrats are operating at such a
• 35:53
  Speaker 2: structural disadvantage. That structural disadvantage is likely to get worse
• 35:58
  Speaker 2: with the post- census maps being redrawn and new seats
• 36:03
  Speaker 2: in from the democracy haters in the Texas legislature and
• 36:07
  Speaker 2: Florida and elsewhere. So just we should just recognize the
• 36:10
  Speaker 2: Democrats keep winning more votes and keep losing. And that
• 36:13
  Speaker 2: is a problem that we have to address.
• 36:16
  Speaker 1: Well, but how do we address that problem? We have
• 36:18
  Speaker 1: to win elections in this fucked up system.
• 36:20
  Speaker 2: Yes. Yes. I just want to, I just think we
• 36:23
  Speaker 2: can never, we can never lose sight.
• 36:26
  Speaker 1: I just almost, it's like how many times can we
• 36:28
  Speaker 1: complain about the fucked up system in which we operate it,
• 36:30
  Speaker 1: which we are a structural disadvantage as a party because
• 36:33
  Speaker 1: the only way out of it is to win an election.
• 36:37
  Speaker 2: Or yes, we have to win elections. We, it also
• 36:39
  Speaker 2: would help if we would pass the incredibly important political
• 36:43
  Speaker 2: reform bill, which would ban partisan gerrymandering at least level
• 36:45
  Speaker 2: of playing field.
• 36:46
  Speaker 1: So that would help Joe Manchin, Kyrsten Sinema.
• 36:49
  Speaker 2: Whoever else, um, The thing that I think back to
• 36:54
  Speaker 2: doing Campaign Experts React, the YouTube series I did during
• 36:58
  Speaker 2: the 2020 election, looking at all the campaign ads.
• 37:00
  Speaker 1: Smash hit.
• 37:01
  Speaker 2: Well, smash hit. Talk to Elijah. Canceled. That's cancel culture.
• 37:08
  Speaker 2: I can't believe you've been canceled by Elijah. We'll never
• 37:11
  Speaker 2: know what happened at the end. It's a series that
• 37:15
  Speaker 2: ended before its time.
• 37:16
  Speaker 1: He's giving a show to Tucker or Jesse Waters or something.
• 37:21
  Speaker 2: That's right. I'm negotiating with the Fox Nation streaming service
• 37:23
  Speaker 2: right now. But one of the things that was interesting
• 37:28
  Speaker 2: was we would look at all these ads from Trump
• 37:32
  Speaker 2: and they were all over the map about Biden. Like
• 37:34
  Speaker 2: he's in the pocket of China and he has cognitive
• 37:38
  Speaker 2: decline and corrupt and Hunter and all of this. And
• 37:42
  Speaker 2: then- That was how it was sort of all summer.
• 37:44
  Speaker 2: And then it sort of stabilized at the end. And
• 37:46
  Speaker 2: then when we look at the Trump ads and the
• 37:49
  Speaker 2: ads about Senate Democrats and House Democrats, they were pretty
• 37:54
  Speaker 2: much the same. Radical socialist police haters. There was a–
• 38:03
  Speaker 2: For a totally fucked up party run by a moron,
• 38:05
  Speaker 2: run by a campaign staffed by grifting morons, there was
• 38:09
  Speaker 2: incredible unanimity in the Republican message about Democrats. It failed
• 38:13
  Speaker 2: against Biden because he was so well-known, that message did
• 38:16
  Speaker 2: not stick to him as it did to others. But
• 38:18
  Speaker 2: for these relatively unknown House and Senate candidates, it mattered
• 38:20
  Speaker 2: a lot. Democrats, in part because of poor polling, were
• 38:25
  Speaker 2: running ads about tying candidates to Trump, who turned out
• 38:27
  Speaker 2: to be a lot more popular in your district than
• 38:29
  Speaker 2: they thought, or were running ads about COVID, which we
• 38:32
  Speaker 2: thought was everyone's number one issue by far, when it
• 38:34
  Speaker 2: turns out it wasn't for a segment of the population.
• 38:37
  Speaker 2: And so there are two things we have to do here.
• 38:39
  Speaker 2: One is we need our version for Republicans of radical
• 38:46
  Speaker 2: socialist police defunders. What is our brand that we are
• 38:50
  Speaker 2: going to use that is going to be in every ad,
• 38:52
  Speaker 2: in every tweet? We will say Republicans, what our listeners
• 38:58
  Speaker 2: will use on social media. Like, what is that?
• 39:00
  Speaker 1: I don't know. Maybe maybe radical capital storming police haters.
• 39:05
  Speaker 2: Well, I think there is a there is a debate
• 39:06
  Speaker 2: in the party.
• 39:07
  Speaker 1: That's not it. That's not it. But yeah.
• 39:09
  Speaker 2: But there is a debate in the party about this,
• 39:11
  Speaker 2: whether it is you're tying them to Marjorie Taylor Greene
• 39:14
  Speaker 2: and sort of Trump in extremism or.
• 39:17
  Speaker 1: Tax cuts for the rich and all the rest.
• 39:20
  Speaker 2: Yes. A lot more research has been done on this.
• 39:22
  Speaker 2: I lend myself to the latter because I think we
• 39:24
  Speaker 2: have room for growth with working class Trump voters who
• 39:28
  Speaker 2: disagree with basically everything. that the Republican Party is for
• 39:31
  Speaker 2: these days. But that is what we– you have to
• 39:33
  Speaker 2: figure it out and then everyone has got to say it.
• 39:37
  Speaker 2: It's got to be in our paid advertising, it's got
• 39:39
  Speaker 2: to be in our earned media, it's got to be
• 39:40
  Speaker 2: in our social. I think that is the A number
• 39:43
  Speaker 2: one priority. We have to also– think through what our
• 39:47
  Speaker 2: better responses are to defund the police. I think a
• 39:51
  Speaker 2: lot of people thought that they were missing the conversation
• 39:54
  Speaker 2: by focusing on those issues. And I think in hindsight,
• 39:58
  Speaker 2: they were much more powerful. Now, I want to sort
• 40:02
  Speaker 2: of separate ourselves from the great– New York Times debate
• 40:07
  Speaker 2: of December 2020, when everyone would just call Astad Herden
• 40:11
  Speaker 2: and tell him their points of like Conor Lamb, AOC
• 40:14
  Speaker 2: and all of that.
• 40:15
  Speaker 1: But it is- Always, always, always have your debates in
• 40:20
  Speaker 1: the pages of the New York Times. They're always more
• 40:22
  Speaker 1: productive that way. They always, yeah.
• 40:24
  Speaker 2: It's easier just to do that than text each other.
• 40:26
  Speaker 2: But like defund police attacks and social attacks are not
• 40:30
  Speaker 2: the only reason we lost. But they were clearly, and
• 40:34
  Speaker 2: I think this is the point Congressman Maloney is making,
• 40:36
  Speaker 2: is they are more effective than I think we thought
• 40:38
  Speaker 2: at the time. So we have to go back and
• 40:40
  Speaker 2: think about how we're going to deal with them going
• 40:41
  Speaker 2: forward because they're not going to stop.
• 40:44
  Speaker 1: Well, you made an interesting point is that they didn't
• 40:46
  Speaker 1: stick to Biden because he's well known. You know, a
• 40:48
  Speaker 1: lot of people have pointed out that one of the
• 40:51
  Speaker 1: things that helped Biden with his sort of moderate image
• 40:54
  Speaker 1: is he's an older white guy, right, running, who's had
• 40:57
  Speaker 1: a long moderate record. But you know, we should point
• 40:59
  Speaker 1: out that there was a lot of moderate white guys
• 41:02
  Speaker 1: running in these house races who didn't win and who
• 41:05
  Speaker 1: these attacks did stick to. And I do think like,
• 41:09
  Speaker 1: you know, investing more and making in a lot of
• 41:11
  Speaker 1: bio spots for some of these candidates and making sure
• 41:13
  Speaker 1: they're more well known, right? Like if we had known
• 41:16
  Speaker 1: that there would be a more, you know, Republican surge
• 41:18
  Speaker 1: in turnout, perhaps some resources would be dedicated more to
• 41:22
  Speaker 1: sort of propping up some of these members and making
• 41:24
  Speaker 1: sure that people know who they are, what their stances are,
• 41:27
  Speaker 1: where they come from, what their values are, than just
• 41:30
  Speaker 1: sort of attacking your opponent. Because I do think that
• 41:33
  Speaker 1: people knowing Joe Biden and knowing who he is and
• 41:36
  Speaker 1: what he stands for really did help him weather some
• 41:39
  Speaker 1: of the horrible attacks that were leveled against him in
• 41:42
  Speaker 1: the 2020 race. And for some of these House members,
• 41:44
  Speaker 1: either they were freshmen or they were challengers and people
• 41:46
  Speaker 1: in their districts just didn't know them and weren't familiar
• 41:48
  Speaker 1: with them. So that when you attack them, and you
• 41:51
  Speaker 1: spread a bunch of lies and conspiracies about them, and
• 41:54
  Speaker 1: you distort their record, it's easier to stick.
• 41:58
  Speaker 2: Our friend J.D. Scholten, who ran against Steve King, his
• 42:02
  Speaker 2: political organization just did a poll of rural voters, and
• 42:05
  Speaker 2: they found nearly half of rural Democrats don't know they're
• 42:10
  Speaker 2: getting stimulus checks. They don't know about the American Rescue Plan.
• 42:13
  Speaker 2: And that speaks to the information gap, particularly in rural
• 42:18
  Speaker 2: areas where you're getting– In more Republican areas, there's more
• 42:22
  Speaker 2: Fox News on the air. There's more conservative local media.
• 42:24
  Speaker 2: It's maybe a place where there's Sinclair. And what that
• 42:27
  Speaker 2: says is that there is a huge flaw in a
• 42:30
  Speaker 2: communication strategy that lies on the mainstream media to get
• 42:33
  Speaker 2: your message out. It can't be we're going to put
• 42:34
  Speaker 2: out press releases and do press conferences from the day
• 42:37
  Speaker 2: we're sworn in until Labor Day of the election year.
• 42:40
  Speaker 2: Most of these candidates, in my view, should be up
• 42:44
  Speaker 2: with digital stuff now, sharing your– What you've accomplished, who
• 42:50
  Speaker 2: you are with voters at a low frequency– well, to
• 42:54
  Speaker 2: the extent you can– obviously, you need to be able
• 42:55
  Speaker 2: to raise money for this. But do that nonstop because
• 42:58
  Speaker 2: you have to define yourselves before you get defined and
• 43:00
  Speaker 2: you cannot rely on the mainstream media to do it.
• 43:03
  Speaker 2: You should not be– you should not underestimate the power
• 43:07
  Speaker 2: of the right-wing ecosystem to define you negatively just because
• 43:11
  Speaker 2: you're a Democrat.
• 43:13
  Speaker 1: Yeah. It was even worse than you mentioned. So it's
• 43:14
  Speaker 1: like– It's this poll of like 2000 or something rural
• 43:18
  Speaker 1: voters across all the swing states. And the good news
• 43:21
  Speaker 1: is 68% of them support the stimulus checks, but only
• 43:25
  Speaker 1: 50% of them associate those checks with the Democratic Party.
• 43:30
  Speaker 1: 32% thought that they came from the Republican Party and
• 43:33
  Speaker 1: 11% didn't associate them with either party. That's where we're at.
• 43:37
  Speaker 1: And that, I mean, that raises an important question, I think,
• 43:40
  Speaker 1: because we have talked about how the Democrats' midterm strategy
• 43:44
  Speaker 1: has been to just deliver benefits to voters that will
• 43:46
  Speaker 1: improve their lives. Like, we got your shots, we sent
• 43:49
  Speaker 1: you checks, we built your roads, we created a bunch
• 43:51
  Speaker 1: of jobs. Please remember us on election day. Like, what
• 43:55
  Speaker 1: if that doesn't work?
• 43:56
  Speaker 2: That's not going to work.
• 43:57
  Speaker 1: What if that's not?
• 43:59
  Speaker 2: I think there is a very important conversation to have
• 44:04
  Speaker 2: about whether simply doing popular things is enough to win
• 44:09
  Speaker 2: in an era of negative polarizations.
• 44:12
  Speaker 1: But do you think that the answer is do the
• 44:13
  Speaker 1: popular things and then make sure people know that you're
• 44:17
  Speaker 1: the one who did the popular things? Or do you
• 44:18
  Speaker 1: think it even goes beyond that?
• 44:21
  Speaker 2: The first, you know, to use Congressman Maloney's ladder analogy,
• 44:26
  Speaker 2: there is no ladder without Joe Biden and the Democrats
• 44:29
  Speaker 2: controlling the pandemic and fixing the economy. That is like
• 44:32
  Speaker 2: we are doomed.
• 44:34
  Speaker 1: That's table stakes.
• 44:34
  Speaker 2: Yes. So you got to have your table stakes. And
• 44:37
  Speaker 2: I think you want people to know you did those things.
• 44:39
  Speaker 2: But we have to. run an aggressive, strategic, relentless, ruthless
• 44:47
  Speaker 2: campaign defining who the Republicans are. It never stops. It
• 44:51
  Speaker 2: drives a wedge right through their coalition. People need to
• 44:54
  Speaker 2: understand the stakes of this election. And the stakes of
• 44:56
  Speaker 2: this election are not just, are you going to get
• 44:57
  Speaker 2: more stimulus checks? Because one of what we talk about,
• 45:00
  Speaker 2: all the hurdles we have, but one hurdle we have
• 45:02
  Speaker 2: is a lot of people in this country naturally default
• 45:05
  Speaker 2: to divided government. They think that that is better than
• 45:10
  Speaker 2: In part, just because they're skeptical politicians and it's a
• 45:12
  Speaker 2: check on the system. But we have to make sure
• 45:15
  Speaker 2: that people understand that the Republican Party cannot have power again,
• 45:21
  Speaker 2: that they are deeply dangerous. And we have to do
• 45:23
  Speaker 2: that in a way that works. And I think that
• 45:25
  Speaker 2: is going to end up being like everything that Joe
• 45:29
  Speaker 2: Biden is doing and staying popular and helping the economy.
• 45:31
  Speaker 2: That's going to get us to the point where we
• 45:32
  Speaker 2: can see over that wall. I'm going to just kill
• 45:34
  Speaker 2: this latter analogy.
• 45:36
  Speaker 1: I love it.
• 45:36
  Speaker 2: But if we're going to get over that and upend
• 45:40
  Speaker 2: the historical and structural challenges we have going into this midterm,
• 45:44
  Speaker 2: it is going to have to be because we came
• 45:46
  Speaker 2: up with the absolute best message against the Republicans and
• 45:49
  Speaker 2: we hammered them over the head with it for two years.
• 45:52
  Speaker 1: Yes, totally agree.
• 45:54
  Speaker 2: All right.
• 45:55
  Speaker 1: When we come back, I'll talk to law professor Melissa
• 45:57
  Speaker 1: Murray about the new criminal investigation of Donald Trump and
• 46:00
  Speaker 1: what's ahead for the Supreme Court. Welcome back. So late
• 46:12
  Speaker 1: Tuesday night, the Office of New York Attorney General Letitia
• 46:14
  Speaker 1: James released a statement that read, We have informed the
• 46:17
  Speaker 1: Trump Organization that our investigation into the organization is no
• 46:21
  Speaker 1: longer purely civil in nature. We are now actively investigating
• 46:24
  Speaker 1: the Trump Organization in a criminal capacity, along with the
• 46:27
  Speaker 1: Manhattan DA. We have no additional comment. Joining us to
• 46:32
  Speaker 1: hopefully provide some additional comment on this and other legal
• 46:35
  Speaker 1: issues in the news, NYU professor of law and co-host
• 46:39
  Speaker 1: of the excellent Strict Scrutiny podcast, Melissa Murray. Melissa, welcome
• 46:42
  Speaker 1: to Pod Save America.
• 46:43
  Speaker 3: Thanks for having me. It's great to be here.
• 46:46
  Speaker 1: So as soon as that statement was released, I think
• 46:48
  Speaker 1: most people without a legal degree had the same question.
• 46:52
  Speaker 1: How screwed is Donald Trump? What do you think?
• 46:56
  Speaker 3: Well, my first take on it was, wow, Tish James
• 46:59
  Speaker 3: woke up this morning and chose violence.
• 47:03
  Speaker 1: You do not want to fuck with Tish James.
• 47:05
  Speaker 3: You don't. I think this is a pretty significant development. Obviously,
• 47:10
  Speaker 3: we're dealing with someone who I think, like Mercury, manages
• 47:15
  Speaker 3: to slip through most of the crevices of accountability that
• 47:18
  Speaker 3: we've established in our system through for wrongdoing. So this
• 47:22
  Speaker 3: is not a slam dunk, certainly. But the fact that
• 47:26
  Speaker 3: this has shifted from a civil investigation to something where
• 47:29
  Speaker 3: there's likely to be criminal charges, or certainly it's shifted
• 47:33
  Speaker 3: to a criminal investigation, means that in the course of
• 47:37
  Speaker 3: that investigation into whether or not the Trump organization had
• 47:40
  Speaker 3: improperly valued assets for purposes of loans and taxes, suggests
• 47:45
  Speaker 3: that maybe they found something even bigger, whether it's criminal
• 47:49
  Speaker 3: fraud or in terms of valuing those assets, but something
• 47:52
  Speaker 3: that goes beyond what would be obviously civil liability to
• 47:57
  Speaker 3: something that is more damning and indeed would require criminal intervention.
• 48:01
  Speaker 3: And it brings to bear the offices of the state
• 48:04
  Speaker 3: attorney general to the investigation that the Manhattan DA's office
• 48:09
  Speaker 3: has already been undertaking. And so, you know, there is
• 48:12
  Speaker 3: a kind of... Efficiency, economies of scale, if you will,
• 48:16
  Speaker 3: of having these two very powerful state-level offices join forces
• 48:21
  Speaker 3: in this investigation.
• 48:23
  Speaker 1: Is that common that the two offices would work together
• 48:26
  Speaker 1: on an investigation like that?
• 48:27
  Speaker 3: I think it happens occasionally. I mean, again, this is
• 48:30
  Speaker 3: a rather high profile situation. But again, often the city,
• 48:37
  Speaker 3: the Manhattan DA's office will be investigating violations of state law,
• 48:42
  Speaker 3: which obviously concerns the attorney general. So it's not uncommon.
• 48:45
  Speaker 3: But again, I think you typically don't see it with
• 48:49
  Speaker 3: someone of this high profile. But I think it's also
• 48:52
  Speaker 3: quite unorthodox to have a former president be in the
• 48:55
  Speaker 3: crosshairs of a DA or a state attorney general. So
• 49:00
  Speaker 3: there you are.
• 49:02
  Speaker 1: What do we know about the potential crimes they're investigating?
• 49:04
  Speaker 1: You mentioned that the Trump Organization may have both overvalued
• 49:08
  Speaker 1: assets and then tried to undervalue them at tax time.
• 49:10
  Speaker 1: I saw Andrew Weissman, one of the Mueller investigation prosecutors,
• 49:13
  Speaker 1: tweeting about the Martin Act. What do we know about
• 49:16
  Speaker 1: all this?
• 49:16
  Speaker 3: So we actually don't know a lot about what the
• 49:19
  Speaker 3: scope of the investigation is or what potential violations of
• 49:23
  Speaker 3: law they've identified. They've been pretty close-lipped. other than saying
• 49:28
  Speaker 3: that they've shifted from a civil posture to a criminal posture.
• 49:31
  Speaker 3: So Andrew, who is my terrific colleague at NYU, was
• 49:35
  Speaker 3: speculating given the work that he has done with the
• 49:38
  Speaker 3: Mueller investigation and what he knows of the Trump organization.
• 49:42
  Speaker 3: But the truth of the matter is we don't really
• 49:44
  Speaker 3: have a lot of information. And I think we are
• 49:46
  Speaker 3: unlikely to have a lot of information until this becomes
• 49:52
  Speaker 3: more fully developed.
• 49:54
  Speaker 1: So not to get ahead of ourselves here, but Politico
• 49:57
  Speaker 1: reported the other week that if Trump is indicted while
• 50:00
  Speaker 1: at Mar-a-Lago, that Governor Ron DeSantis might be able to
• 50:03
  Speaker 1: step in and prevent him from being extradited to New York.
• 50:07
  Speaker 1: Is that true?
• 50:08
  Speaker 3: So Florida's extradition statute provides for the governor to intervene
• 50:13
  Speaker 3: to limit the scope of an extradition. And, you know,
• 50:16
  Speaker 3: perhaps there is speculation that Ron DeSantis might be exercised
• 50:20
  Speaker 3: to do so for President Trump. And I don't know
• 50:23
  Speaker 3: that that's really the big issue. I mean, President Trump
• 50:26
  Speaker 3: has said that he's planning to move on from Mar-a-Lago,
• 50:30
  Speaker 3: as one does when one is finished with the summer
• 50:32
  Speaker 3: and moves to one's other estates. So it's likely that
• 50:36
  Speaker 3: he will be going to Bedminster in New Jersey. And
• 50:40
  Speaker 3: I think, you know, New Jersey doesn't have the same
• 50:42
  Speaker 3: provision in its extradition statute. And I think it's unlikely
• 50:46
  Speaker 3: that New Jersey Governor Phil Murphy would be willing to
• 50:49
  Speaker 3: provide the same kind of shelter. So I just don't
• 50:51
  Speaker 3: think that that's really an issue going forward. And certainly
• 50:57
  Speaker 3: it would yield, I think, a lot of outcry from
• 51:00
  Speaker 3: individuals if Ron DeSantis was seen to be sheltering someone
• 51:03
  Speaker 3: from the rule of law but you know again this
• 51:07
  Speaker 3: is where we are.
• 51:08
  Speaker 1: Florida becomes a safe haven for criminals everywhere um before
• 51:11
  Speaker 1: we move on to more consequential topics i gotta ask
• 51:14
  Speaker 1: what you think about uh the investigations into two of
• 51:16
  Speaker 1: trump's pals matt gates and rudy giuliani we got a
• 51:19
  Speaker 1: guilty plea and a promise of full cooperation from gates's
• 51:21
  Speaker 1: buddy joel greenberg this week and we saw the feds
• 51:24
  Speaker 1: raid giuliani's apartment and office a few weeks ago.
• 51:27
  Speaker 3: I mean, I've said this before, but maybe MAGA isn't
• 51:32
  Speaker 3: making America great again, but making attorneys get attorneys. I
• 51:36
  Speaker 3: don't know what else to say. To be very clear
• 51:42
  Speaker 3: for your listeners, Representative Gates and former Mayor Giuliani have
• 51:47
  Speaker 3: not been charged with anything. And if they are charged
• 51:50
  Speaker 3: criminally going forward, they are innocent until proven guilty.
• 51:54
  Speaker 1: Of course.
• 51:55
  Speaker 3: Like just to get those caveats out of the way.
• 51:58
  Speaker 3: That said, you know, certainly the Greenberg investigation and the
• 52:02
  Speaker 3: change of plea and Joel Greenberg's decision to plead guilty
• 52:06
  Speaker 3: to six charges when there were probably around 33 charges
• 52:11
  Speaker 3: at issue suggests that there's going to be some serious,
• 52:13
  Speaker 3: serious cooperation. And, you know, maybe the focus of that
• 52:17
  Speaker 3: cooperation is Representative Gates. It could be a number of
• 52:20
  Speaker 3: other people. But the fact that we've gone from 30
• 52:23
  Speaker 3: odd charges to six suggests that he's telling the government
• 52:28
  Speaker 3: a lot and telling prosecutors lie. And to be clear,
• 52:31
  Speaker 3: if any of these charges, um, if anyone else were
• 52:34
  Speaker 3: to be charged and it were to go to trial,
• 52:37
  Speaker 3: Joel Greenberg is not a great witness for the state. Um,
• 52:41
  Speaker 3: his credulity could certainly, his credibility could certainly be impeached
• 52:44
  Speaker 3: at any time because of the nature of the charges
• 52:47
  Speaker 3: against him and his own background. Um, So I think
• 52:50
  Speaker 3: what's really important here is the information that he gives
• 52:52
  Speaker 3: up to prosecutors, if it can be corroborated with receipts
• 52:57
  Speaker 3: of all types, whether it's Venmo or bank statements or
• 53:00
  Speaker 3: other people who can corroborate the things that he's telling
• 53:03
  Speaker 3: the prosecutors, that will certainly be significant. But again, it
• 53:08
  Speaker 3: cannot have been a good day in Matt Gaetz's household
• 53:12
  Speaker 3: on Monday when Joel Greenberg pled guilty.
• 53:16
  Speaker 1: Yeah, that sounds about right. Let's talk Supreme Court. Very
• 53:19
  Speaker 1: worrying development this week when the court announced that it
• 53:21
  Speaker 1: will hear Dobbs v. Jackson Women's Health Organization, which is
• 53:24
  Speaker 1: about the Mississippi law that bans abortion after 15 weeks
• 53:27
  Speaker 1: of pregnancy. This is seen as a case that could
• 53:30
  Speaker 1: give the court's conservative majority its first big chance to
• 53:32
  Speaker 1: go after Roe, in which the court ruled that the
• 53:35
  Speaker 1: Constitution protects the right to an abortion before viability. Can
• 53:39
  Speaker 1: you walk us through why they might rule differently here
• 53:42
  Speaker 1: and what their reasoning could be? Sure.
• 53:44
  Speaker 3: So, you know, I think all of the individuals who
• 53:47
  Speaker 3: have been up in arms about this and saying, you know,
• 53:49
  Speaker 3: this is the end of Roe, like they're not being hyperbolic.
• 53:52
  Speaker 3: I mean, this certainly could be the case that results
• 53:55
  Speaker 3: in the overruling of Roe versus Wade. Certainly the way
• 53:58
  Speaker 3: the question presented when the court decided to grant cert
• 54:02
  Speaker 3: in this case makes clear that they are broadly looking
• 54:06
  Speaker 3: at the full scope of their extant abortion jurisprudence, not
• 54:10
  Speaker 3: some sort of very minor tinkering question. The question is
• 54:13
  Speaker 3: whether all restrictions on pre-viability abortions are unconstitutional, and that
• 54:18
  Speaker 3: certainly puts Roe squarely in the crosshairs. The reason this
• 54:22
  Speaker 3: case is at the Supreme Court now is because of
• 54:25
  Speaker 3: the changing composition of the court. So when Brett Kavanaugh
• 54:29
  Speaker 3: was nominated and confirmed to the Supreme Court in 2018.
• 54:32
  Speaker 3: You begin to see all of these states putting out
• 54:36
  Speaker 3: more and more aggressive restrictions on abortion. And again, it's
• 54:40
  Speaker 3: sort of to push the envelope. They understand that the
• 54:43
  Speaker 3: reception at the court is perhaps more hospitable than it's
• 54:46
  Speaker 3: ever been to abortion. the prospect of overruling Roe. And
• 54:50
  Speaker 3: so you saw a huge spate of very restrictive abortion
• 54:53
  Speaker 3: laws being passed. When Justice Ginsburg passed away in September
• 54:57
  Speaker 3: 2020 and Amy Coney Barrett was very quickly slotted into
• 55:01
  Speaker 3: her seat, again, more and more appetite for this fomenting
• 55:06
  Speaker 3: because the court has gone from a five to four
• 55:08
  Speaker 3: conservative majority to what is actually a six to three
• 55:11
  Speaker 3: conservative super majority. And with that conservative super majority, what
• 55:16
  Speaker 3: you also have is a diminution of the chief justice's
• 55:20
  Speaker 3: authority to limit what the court can do and what
• 55:23
  Speaker 3: that conservative majority can do. So last term in June,
• 55:27
  Speaker 3: medical services, the chief justice, who was no fan of
• 55:30
  Speaker 3: abortion and made that very clear in 2016 in Whole
• 55:34
  Speaker 3: Women's Health, where the court struck down a Louisiana woman,
• 55:37
  Speaker 3: or excuse me, a Texas admitting privileges law, he was
• 55:40
  Speaker 3: in the dissent. But in last term's June medical services,
• 55:44
  Speaker 3: which took up an identical Louisiana admitting privileges law, the
• 55:48
  Speaker 3: Chief Justice joined the liberal wing of the court to
• 55:50
  Speaker 3: form a majority of five. And then he sort of
• 55:53
  Speaker 3: broke away and wrote his own opinion that raised, I think,
• 55:56
  Speaker 3: a lot of questions about the scope of protections for abortion,
• 56:00
  Speaker 3: but nominally upheld the abortion right. Now the Chief Justice
• 56:05
  Speaker 3: is no longer the swing vote. The liberals cannot use
• 56:08
  Speaker 3: him to form a majority. They only have four with him.
• 56:11
  Speaker 3: And the conservatives don't need him to form a majority.
• 56:14
  Speaker 3: They're fine as long as they have the whole rest
• 56:17
  Speaker 3: of the conservative wing of the court on board. And
• 56:19
  Speaker 3: so his real authority right now is to join the
• 56:23
  Speaker 3: conservatives to form a six majority and to have the
• 56:29
  Speaker 3: authority as chief justice to assign the writing of the opinion.
• 56:32
  Speaker 3: And if he joins the conservatives and he has the
• 56:35
  Speaker 3: prerogative of assigning the opinion, I think what we might
• 56:37
  Speaker 3: see if he is worried about what this looks like
• 56:40
  Speaker 3: to the public outside of the court, we might see
• 56:44
  Speaker 3: him join the rest of the conservative wing assigned the
• 56:47
  Speaker 3: opinion to himself for the purpose of limiting it and
• 56:51
  Speaker 3: making it a more narrow ruling. And I think that's
• 56:54
  Speaker 3: likely because this is a case that is going to
• 56:57
  Speaker 3: be heard on the eve of a midterm election. And
• 57:00
  Speaker 3: John Roberts, above all, is an institutionalist about the court.
• 57:04
  Speaker 3: He's a movement conservative. He's a Republican. He cares about
• 57:06
  Speaker 3: the Republican Party, I think. And I don't think he
• 57:09
  Speaker 3: wants this smoke as people start going to the ballot box,
• 57:13
  Speaker 3: and certainly not women. And There is support for the
• 57:17
  Speaker 3: idea of a right to abortion, even if individuals may
• 57:20
  Speaker 3: disagree on what the scope of that right is. There
• 57:22
  Speaker 3: is broad public support for reproductive rights and the right
• 57:26
  Speaker 3: of women to terminate a pregnancy. And I don't think
• 57:29
  Speaker 3: he wants this to be the position with which the
• 57:32
  Speaker 3: GOP is associated when people go to the ballot box
• 57:35
  Speaker 3: in 2022.
• 57:37
  Speaker 1: Depending on John Roberts to protect access to abortion doesn't
• 57:41
  Speaker 1: feel like a great place to be in, but you
• 57:43
  Speaker 1: do make a persuasive case that he could decide to
• 57:47
  Speaker 1: use this case to write an opinion that potentially limits
• 57:50
  Speaker 1: the scope of what the conservative justices do.
• 57:52
  Speaker 3: So let me be clear. Even if this opinion is narrow,
• 57:55
  Speaker 3: it's a problem. Right, right. You can do what's been
• 58:00
  Speaker 3: done over the last 20 years to just continue to
• 58:02
  Speaker 3: constrain and constrict abortion access through more and more restrictive
• 58:07
  Speaker 3: laws to the point where the right is really just
• 58:09
  Speaker 3: a right in name only and women aren't able to
• 58:12
  Speaker 3: access it. And I think that would certainly be the case.
• 58:14
  Speaker 3: And a narrower opinion that perhaps upholds the Mississippi law
• 58:18
  Speaker 3: just sends the lower federal courts into disarray trying to
• 58:22
  Speaker 3: determine whether bans on abortion at six weeks or 10
• 58:25
  Speaker 3: weeks or 12 weeks are constitutional. So it's just a
• 58:28
  Speaker 3: mess going forward. And more importantly, there are other abortion
• 58:32
  Speaker 3: cases coming down the pike. Just a couple of weeks ago,
• 58:35
  Speaker 3: the Sixth Circuit upheld an Ohio law that prohibits abortion
• 58:40
  Speaker 3: when it is done for purposes of race selection, sex selection,
• 58:44
  Speaker 3: or because of the diagnosis of some sort of disability
• 58:47
  Speaker 3: or fetal anomaly. And that actually created a circuit split.
• 58:51
  Speaker 3: This Mississippi case, there was no circuit split. So the
• 58:54
  Speaker 3: conditions under which the court might have taken it were
• 58:56
  Speaker 3: perhaps a little more shaky. But with a circuit split
• 58:59
  Speaker 3: on this trait selection abortion law, I think what you
• 59:02
  Speaker 3: might have is the chief justice limiting this particular case
• 59:06
  Speaker 3: before the midterm elections and then after the midterm elections.
• 59:09
  Speaker 3: then you have one of these trait selection challenges, perhaps,
• 59:13
  Speaker 3: that really does allow the court another opportunity to finally
• 59:18
  Speaker 3: deliver the death blow to Roe.
• 59:21
  Speaker 1: So yesterday, President Biden's Supreme Court Reform Commission met. We
• 59:25
  Speaker 1: both know some of the fantastic legal minds working on that.
• 59:28
  Speaker 1: Not everyone is hopeful about the outcome. Brian Fallon of
• 59:31
  Speaker 1: Demand Justice said the other day that it's doomed from
• 59:33
  Speaker 1: the start. Do you agree? And what's an ideal outcome
• 59:37
  Speaker 1: in your mind?
• 59:38
  Speaker 3: So I think people say that it's doomed from the
• 59:41
  Speaker 3: start because a commission of 30 odd people, it's hard
• 59:44
  Speaker 3: to get a consensus on anything. And I think that's
• 59:46
  Speaker 3: probably right. Right. you know, it's a rather large and
• 59:50
  Speaker 3: unwieldy body for coming up with sort of concrete solutions.
• 59:55
  Speaker 3: You know, what would be a wind in my mind?
• 59:57
  Speaker 3: I mean, I've said this before, I think I've said
• 59:59
  Speaker 3: it again, but I think most Americans, certainly progressive Americans,
• 1:00:05
  Speaker 3: may not really have an inclination or an inkling about
• 1:00:08
  Speaker 3: how important the work of the Supreme Court is in
• 1:00:10
  Speaker 3: cementing an administration's domestic agenda. You can get things passed
• 1:00:16
  Speaker 3: through Congress. You can have the Senate and get your
• 1:00:20
  Speaker 3: domestic agenda put forth. But the Supreme Court is where
• 1:00:24
  Speaker 3: a lot of those legislative wins, executive orders go to die.
• 1:00:30
  Speaker 3: And I think we have to do a better job
• 1:00:32
  Speaker 3: as progressives of really making clear what the stakes are
• 1:00:36
  Speaker 3: at the court and how the court even though it
• 1:00:38
  Speaker 3: is not a political body per se, how it interacts
• 1:00:42
  Speaker 3: with politics, whether it's through the Senate where they are
• 1:00:45
  Speaker 3: charged with confirming judges to the court and the lower
• 1:00:49
  Speaker 3: federal courts, or just in terms of the domestic legislative
• 1:00:53
  Speaker 3: agenda that often is appealed to the court and the courts.
• 1:00:57
  Speaker 3: And so I hope, if nothing else, the fact that
• 1:01:01
  Speaker 3: this has been surfaced and elevated to the point of
• 1:01:04
  Speaker 3: a presidential commission gives individuals a sense of how high
• 1:01:08
  Speaker 3: the stakes are for access to the courts and indeed
• 1:01:11
  Speaker 3: the composition of the courts.
• 1:01:13
  Speaker 1: Any thoughts on whether Breyer retire billboards are the most
• 1:01:16
  Speaker 1: effective way to get the court's oldest justice to step down?
• 1:01:20
  Speaker 2: Yeah, I mean.
• 1:01:21
  Speaker 3: Probably not. He's been very clear. I saw him speak
• 1:01:26
  Speaker 3: on this a couple of years ago. And one, it's
• 1:01:30
  Speaker 3: very clear he loves his job. He's certainly spry and
• 1:01:35
  Speaker 3: fit and more than up to the task. It really
• 1:01:39
  Speaker 3: is just a question of like, do you want to
• 1:01:40
  Speaker 3: wait until you're in a situation where you are ready,
• 1:01:43
  Speaker 3: but perhaps the political circumstances aren't ideal and optimal for
• 1:01:47
  Speaker 3: you to step down? And Again, I think it's a
• 1:01:49
  Speaker 3: very personal decision. No one wants to be told when
• 1:01:54
  Speaker 3: to leave a job that they love and that they're
• 1:01:56
  Speaker 3: good at. And, you know, I don't think billboards are
• 1:01:59
  Speaker 3: going to do it. I don't know what will do it.
• 1:02:03
  Speaker 3: You know, maybe he's waiting for even more optimal circumstances.
• 1:02:06
  Speaker 3: Maybe he's optimistic about the midterm elections and thinks that
• 1:02:10
  Speaker 3: will be a brighter moment. I don't know.
• 1:02:11
  Speaker 1: But yeah.
• 1:02:14
  Speaker 3: I'm not sure bullying him into it is the way
• 1:02:18
  Speaker 3: to go.
• 1:02:19
  Speaker 1: Yeah, I don't think so either. Last question on a
• 1:02:22
  Speaker 1: law that South Carolina Republican Governor Henry McMaster signed into
• 1:02:25
  Speaker 1: law this week that will force people on death row
• 1:02:28
  Speaker 1: to choose between the electric chair or a firing squad.
• 1:02:32
  Speaker 1: Just horrific. Do you think a law like that holds
• 1:02:34
  Speaker 1: up in court? And what are your broader thoughts on
• 1:02:37
  Speaker 1: the current state of the legal challenges to the death
• 1:02:39
  Speaker 1: penalty that are popping up all over the country?
• 1:02:42
  Speaker 3: So it's interesting how the death penalty often intersects with
• 1:02:46
  Speaker 3: the discussion of abortion. I think, you know, for a
• 1:02:50
  Speaker 3: long time, those who have been pro-choice have noted the
• 1:02:53
  Speaker 3: incongruity of being both pro-life and also pro-death penalty victims.
• 1:02:58
  Speaker 3: But I actually think now it's really beginning to get
• 1:03:01
  Speaker 3: a little bit of traction. And maybe part of that
• 1:03:04
  Speaker 3: is COVID, where you saw a lot of these states
• 1:03:08
  Speaker 3: that passed restrictive abortion laws because of COVID, arguing that
• 1:03:13
  Speaker 3: they were pro-life, but then refusing to lock down or
• 1:03:16
  Speaker 3: refusing to be more forthright about mask mandates. So I
• 1:03:21
  Speaker 3: actually think there's this really interesting moment where people are
• 1:03:25
  Speaker 3: really pressing this idea. Like, you know, if you say
• 1:03:28
  Speaker 3: you are pro-life, are you pro-life for the whole life?
• 1:03:32
  Speaker 3: Or is this pro-life ethos more itinerant and selective and
• 1:03:36
  Speaker 3: focused solely on what happens in utero? You know, the
• 1:03:41
  Speaker 3: South Carolina law is, you know, to my mind, wild.
• 1:03:44
  Speaker 3: South Carolina will be one of three states that Or
• 1:03:48
  Speaker 3: I think just there are only three other states that
• 1:03:50
  Speaker 3: actually permit death by firing squad. And I think there
• 1:03:53
  Speaker 3: have only been a handful of executions in the last
• 1:03:57
  Speaker 3: century in the United States by firing squad, and they've
• 1:04:00
  Speaker 3: all been in Utah. So I think the sort of
• 1:04:03
  Speaker 3: idiosyncratic nature of a firing squad execution may be evidence
• 1:04:09
  Speaker 3: or corroboration for a challenge going to the Supreme Court
• 1:04:13
  Speaker 3: that this is not a safe or effective type of
• 1:04:20
  Speaker 3: method to be used for execution. And the fact that
• 1:04:22
  Speaker 3: so many other states have switched to other forms of execution,
• 1:04:26
  Speaker 3: whether it's lethal injection, which is believed to be more humane,
• 1:04:31
  Speaker 3: may make this stand out as an outlier that perhaps
• 1:04:34
  Speaker 3: supports a challenge at the court. Again, the composition of
• 1:04:38
  Speaker 3: this Supreme Court may not necessarily be amenable to taking
• 1:04:43
  Speaker 3: up a challenge like that. But I mean... The fact
• 1:04:46
  Speaker 3: that we're going to firing squads feels a little regressive
• 1:04:49
  Speaker 3: in 2021, regardless of how you feel about the death penalty.
• 1:04:55
  Speaker 1: Yeah, just a bit. Professor Melissa Murray, thank you so
• 1:04:58
  Speaker 1: much for joining us. Everyone check out Strict Scrutiny, fantastic
• 1:05:00
  Speaker 1: podcast with you and Kate Shaw and Leah Littman. Thank
• 1:05:04
  Speaker 1: you so much and come back anytime.
• 1:05:06
  Speaker 3: Thanks for having me.
• 1:05:11
  Speaker 1: Thanks to Professor Murray for joining us today. Appreciate it.
• 1:05:14
  Speaker 1: And everyone have a great weekend and we'll talk to
• 1:05:16
  Speaker 1: you next week.
• 1:05:17
  Speaker 2: Bye everyone.
• 1:05:19
  Speaker 1: Pod Save America is a Crooked Media production. The executive
• 1:05:22
  Speaker 1: producer is Michael Martinez. Our senior producer is Flavia Casas.
• 1:05:26
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• 1:05:30
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• 1:05:33
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• 1:05:40
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• 1:05:44
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• 1:05:47
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