0:01

Hello and

0:04

welcome to the Slate Political GAB Fest. April

0:17

25, 2024, the Election Fraud, Pure and

0:19

Simple Edition. I'm

0:23

David Pilots of CityCast in Washington, DC. Update

0:26

still not friends with the crows. From

0:29

New Haven and the New York

0:31

Times Magazine and Yale University Law

0:34

School and so

0:36

many other things. Emily Bazalon.

0:38

Hello, Emily. Hey, David. Hey, John. And

0:43

from Manhattan and CBS Prime Time, where

0:45

you can now get 90 minutes of

0:47

CBS Prime Time every day, not just

0:49

60 minutes. Is there anything better

0:51

than 90 minutes of John Dickerson? 120

0:54

minutes of John Dickerson would be even better, but 90 minutes

0:57

better than 60 minutes. Congratulations on your

1:00

expanding show, John. Thank

1:02

you. Although I should hasten

1:04

to add two important caveats. One,

1:07

it's no longer prime

1:09

time. It's called daily report because it's not in prime

1:11

time on the West Coast. It's at

1:13

six now. So can't call it prime time when it's

1:16

not in prime time. Second

1:19

thing is it's not 90 minutes yet. It'll be 90 minutes

1:22

in a couple of months once

1:24

we get all of our staffing.

1:28

It was announced this week, which is nice,

1:30

and we moved times. So I'll take the

1:33

congratulations, and it's

1:35

been an exciting week and obviously no

1:37

shortage of news. This week on

1:39

the GAF, the prosecution gets off to

1:41

a strong start in the Trump election

1:44

interference case, but trials

1:46

are long. Lots of things can happen. Then

1:49

the Supreme Court considers how much

1:51

immunity, if any, Trump

1:53

should have for his actions to overturn the 2020 election.

1:58

Then the chaos at Columbia and

2:00

other college campuses deepened what

2:03

can colleges do about pro-Palestinian,

2:05

anti-Israel protests? It

2:07

is that is it. I am looking forward to talking about that.

2:10

Plus we will have cocktail chatter. The

2:13

first Trump criminal trial is in

2:15

full swing in Manhattan under the

2:17

brisk direction of Judge Marchand, the

2:19

prosecution of Trump for falsifying

2:21

business records to cover up a scheme to

2:24

silence Stormy Daniels so her

2:26

allegations didn't disrupt the 2016

2:28

election, got

2:31

underway with fascinating testimony from National

2:33

Enquirer boss David Pecker who

2:36

testified about his conspiracy to help Trump

2:38

in the election by covering

2:40

up stories damaging to him and

2:43

covering them up by buying them, catch and kill,

2:45

catch and kill. Emily, what has

2:47

been most remarkable to you about

2:49

this first week other than the fact that

2:51

it's moved so rapidly that they got this

2:53

jury seated so quickly and got

2:55

moving so quickly? Yeah, moving quickly

2:57

is something that never happens in a case

2:59

involving Donald Trump until now. A

3:02

couple of things have struck me. One

3:05

is the theatrics or

3:07

just the presentation of having former President

3:09

Trump have to sit at this trial

3:12

where he doesn't want to be. He's

3:15

projecting to his supporters over social media

3:17

that he's storming out of court and

3:19

in other ways challenging the judge. He

3:21

wants to portray himself as shaking his

3:24

fist at these proceedings, but he's not

3:26

doing those things. He's sitting there because he has

3:28

to do that. His lawyers had

3:30

a big fight over his violations of

3:32

the gag order this week and that's

3:35

obviously moving over the trial. Trump

3:37

has continued to post

3:39

on social media about witnesses. He

3:42

reposted something about the jurors that could be

3:44

seen as intimidating and that's something the judge

3:46

is going to have to really watch and

3:49

this question of what consequences will kick

3:51

in to dissuade Trump I think is going to

3:53

be a kind of face off throughout the trial.

3:56

The second thing that I thought was really smart

3:59

was for the press. prosecution to start with David

4:01

Pekker. This is like a good way to tell

4:03

this story, right? You start with the guy who's

4:05

saying, yeah, I was the head of the National

4:07

Enquirer and we were basically part of the Trump

4:10

campaign. And here's the stakes,

4:12

right? From the prosecution's point of view,

4:14

this is a case about election influence.

4:17

And so you're showing what the stakes

4:19

were and how this alleged

4:21

conspiracy worked. And so I thought that

4:23

was just like a smart choice for

4:25

getting things started both for the jury

4:28

and for the public and the press to

4:30

get everyone's attention. John, Pekker

4:34

claimed in his testimony that the catch and

4:36

kill scheme was cooked up in cahoots with

4:39

Trump to benefit Trump's campaign for the

4:41

2016 election. And

4:44

I mean, this is with Trump and Michael

4:46

Cohen. And one great example that

4:49

was mentioned, I don't know if it

4:51

was mentioned in the opening statements or

4:53

in testimony, was that one of the

4:55

NDA, one

4:58

of the people who's caught and killed was Karen

5:00

McDougall who had also alleged an

5:02

affair with Trump and that they released

5:04

her from her NDA once

5:06

the election was over. So that it was

5:08

clearly like, clearly like this is

5:11

not to protect Trump's reputation with

5:13

his wife to cover up something

5:15

for his personal, so that

5:17

he wasn't embarrassed at home, it was election

5:19

related. Yes, the mechanism of this case

5:21

is you take a misdemeanor and then

5:23

you make it a felony by attaching

5:25

it to this election charge. But Emily

5:27

is gonna explain to us why you

5:30

don't have to actually then prove

5:32

the actual election crime was committed.

5:34

You just have to use it

5:37

to prove motive in this case or in the instance

5:39

in which you're just describing it. And

5:42

the point you're making is that one of

5:44

the possible defenses is, hey, Donald Trump is

5:46

a popular, famous guy, of course he didn't

5:48

want bad stories out there, this is just

5:50

a part of image management. He

5:53

would have done this whether he's running

5:55

for president or not. And

5:57

so he didn't run afoul of any federal election campaign

5:59

laws. by hiding a campaign

6:02

expense paid for by Michael Cohen.

6:05

A possible funny

6:07

thing here is that if Donald Trump had tried to do

6:09

this by the books and had in

6:11

fact had his campaign pay

6:14

for Stormy Daniels to stay quiet and

6:16

argued, hey, I need her to stay

6:18

quiet because it's going to hurt my

6:20

campaign. The FEC might have said, you

6:22

know, that's not a purely campaign related

6:25

expenditure. It could be to protect your

6:27

own personal reputation, therefore it's not a

6:29

legitimate campaign expense. He's on the

6:31

other side of that now. He has to

6:34

prove that this was a personal act, not

6:36

something in furtherance of his campaign. But

6:38

the thing. Can I pause for it?

6:40

Sorry, John. I know you're in the auto hold there.

6:42

But the other thing which I didn't understand,

6:44

and maybe I'm getting this wrong, is that one

6:47

of the reasons why Trump is in trouble is

6:49

that they didn't pay the National Enquirer

6:52

to the National Enquirer could

6:54

have paid Stormy Daniels themselves.

6:56

But because Trump's campaign

6:58

hadn't paid the National Enquirer for other

7:00

catch and kill stuff, the National

7:03

Enquirer was like, no, you have to pay it.

7:05

So Michael Cohen ends up paying for this stuff

7:07

rather than the National Enquirer had paid for it.

7:09

If the National Enquirer had just paid for it,

7:11

I don't think there would have been any trouble

7:13

at all. No trouble with him ever. One other

7:15

thing about David Pecker and Emily, just

7:17

speaking up on what Emily said about starting

7:19

this storyline with him, the prosecution calls him

7:22

one member of a three man plot. And

7:24

I think what it does immediately as a

7:26

storytelling mechanism is boom, Donald Trump is

7:28

in the room. He's in the room cooking

7:31

up this conspiracy with a guy who knows

7:33

from conspiracies. And the conspiracy wasn't just a

7:35

one off. It was this very involved,

7:40

by the way, thoroughly despicable

7:42

and utterly without moral anything

7:46

effort, not just to bury bad stories,

7:48

but to make up stories about Ted

7:50

Cruz and other opponents. I think there

7:53

was one about Marco Rubio as well

7:55

out of whole cloth in order

7:58

to hurt those candidates. And we saw a repeat.

8:00

repeatedly in the campaign than when the

8:02

National Enquirer put out stories

8:04

that were completely made up. Donald

8:06

Trump then grabbed them and used them in

8:08

the campaign to beat his opponents, opponents

8:10

who now think that that behavior

8:12

and everything that Trump has done subsequently means

8:15

he should get four more years in

8:17

office, which is, you know, extraordinary. Emily,

8:19

why is Pekka helping the prosecution? Well,

8:23

I think he could get in trouble otherwise

8:25

for participating in this conspiracy. And also maybe

8:27

he's just had enough of Donald Trump and

8:30

the role that he was playing. It is

8:32

a fascinating question. Unlikely. But

8:36

without him, this case is so much weaker.

8:39

And you know, I don't think he really

8:41

had criminal jeopardy here. So I mean,

8:44

this is the thing about when you get called

8:46

in by prosecutors and asked

8:48

to tell

8:50

the truth and you're under oath, like people

8:53

start telling the truth often when those mechanisms

8:55

kick in. And so maybe it's that simple.

8:57

He didn't want to lie on the stand.

9:00

He didn't want to lie when he was

9:02

being questioned by investigators. It's hard to

9:04

maintain a lie constantly when there are

9:06

so many facets to it. I mean,

9:09

this is one of Donald Trump's great

9:11

skills is the ability to lie so

9:13

often, so freely and

9:16

have no even fibrillation in the muscles

9:18

of his face when he's when he's

9:21

lying so often and in such high

9:23

stakes moments.

9:25

It's like that's hard to replicate. Right.

9:27

And what's in it for Packer to keep

9:29

lying? I mean, he's not running for president.

9:32

He's not the one facing charges. Right. Like

9:34

at some point, I think we're actually seeing

9:36

this repeatedly with witnesses. It's true about Michael

9:38

Cohen, too. I mean, he actually went to

9:40

prison for his role in all of this.

9:43

People just like run out of steam for

9:46

lying on behalf of someone else. Right.

9:48

It is exhausting.

9:50

I feel like I would definitely be one of

9:53

those people who had worked to have committed a

9:55

crime or some sort of set of lies

10:00

that were damaging that I would be so

10:02

relieved when I finally got to be like,

10:04

yeah, I did it. Totally.

10:08

I would be that kind of person. Yes.

10:10

But I'm not sure that David Pecker,

10:13

and David Pecker has a long history

10:15

of immoral, amoral, highly disruptive behavior to

10:18

benefit rather wicked people. So I don't

10:21

know that we can

10:23

conclude that he suddenly has been like, oh,

10:25

I'm so tired. I guess maybe he's never

10:27

faced FBI questioning before. Right.

10:30

I mean, it's a different kind of pressure.

10:33

What if it's the case? And I don't know

10:35

how a jury, one of the things I liked

10:37

is Katrina Kaufman,

10:39

our reporter covering the case, said

10:41

that when the jury at first

10:43

heard the opening statements, they were

10:45

all wrapped with attention to the

10:48

lawyers. And the judge said,

10:50

Judge Michonne said, would you like like a

10:53

pen and paper to write some of the stuff

10:55

down? And almost all of their hands went up.

10:57

So they're paying very close attention to what's being

10:59

said. But what

11:01

I wonder about Pecker as

11:04

a witness is, does Donald

11:06

Trump's general degradation of what's

11:08

accepted in public, by

11:10

which I mean expectations are lowered, actually

11:12

make Pecker less of a despicable witness?

11:14

In other words, in the past, if

11:16

Donald Trump had raised the level of

11:18

how you're supposed to behave in public

11:21

with respect to lies and

11:23

truth telling, and deceitful

11:25

and immoral behavior, if he'd raised the bar, then

11:27

a person coming on the stage who was kind

11:29

of had built a career

11:31

and a life out of being awful might

11:34

seem awful. But in

11:36

this case, I wonder if he's like, well, he's just part

11:38

of this group that does

11:40

stuff that's awful. So and

11:43

that in fact, that perhaps what the jury might make

11:45

him not not may not

11:47

penalize him the way it would have been a

11:49

previous generation. It doesn't make

11:51

him seem not credible. It makes him seem

11:53

like he's right. Exactly. And then the

11:55

next picture, which is going to be possibly true about Michael Cohen is

11:57

right. I think that that was the question I wanted to

11:59

ask you guys, which is that is, it seems like

12:01

the Trump's best defense here, or a solid

12:04

defense for Trump will be, yeah,

12:06

I mean, this stuff may have happened, but it was Michael

12:09

Cohen, who's out there

12:11

doing it, out there doing it, Michael Cohen,

12:13

and then Michael Cohen bilked me by overbilling

12:15

me for something. I mean, they can try

12:17

that, but they have on tape Trump talking

12:19

to Cohen about how to make this payment

12:21

and saying paying cash. He seems very much

12:24

in cahoots from that snippet of

12:26

tape, right? I mean, one thing

12:28

that Trump's lawyer previewed this week was this

12:30

argument of like, were

12:32

democracy sure I was

12:34

trying to influence the election, I wanted to

12:36

win, so what? Which is a different kind

12:40

of trying to shake off of these charges.

12:43

It was when, yes, when Trump's lawyer said, I

12:46

have a spoiler alert, there's nothing wrong with trying

12:48

to influence an election. It's called democracy. Hey, buddy,

12:50

but isn't that like saying, if you're caught cheating,

12:52

there's nothing wrong with trying to get a good

12:54

grade on the exam. It's called being a good

12:57

student. I mean, to me, that seems ridiculous, but

12:59

maybe it's some clever lawyer trick, I don't know.

13:01

No, I mean, it's interesting. When

13:04

I was reading this week, the best

13:06

arguments I heard against these charges were

13:09

coming from a couple of law professors, one of

13:11

them, Rick Hasen, who's an election law expert, and

13:13

he was like, look, this is

13:15

not the same as like trying

13:17

to stuff a ballot box. This

13:20

is a minor kind of campaign

13:22

finance violation. And that's the

13:24

real issue here. But I'm not sure that Trump's lawyers

13:26

have ever really made that argument like, okay,

13:29

yeah, maybe I'm at odds with, you know,

13:31

the FEC guidelines about how I was supposed

13:33

to report this. But other than that, so

13:35

what? There just isn't a box for paying

13:37

off your alleged mistress. It's like, you couldn't

13:39

fit it in there. Right. Well, then it

13:41

gets always to sort of the Al Capone

13:43

phase, which is like, how much are we

13:46

willing to tolerate the prosecution of someone for

13:48

a lesser

13:50

crime because we believe them to

13:52

have committed all these much

13:55

worse crimes that have

13:58

been so damaging. Right.

14:01

And thinking about the David Pekker testimony is

14:03

a great example of that. You know, you

14:05

were talking about all these other stories, the

14:07

Cruz stories, the Rubio stories, this larger plot

14:10

to influence the election. But most of those

14:12

things don't have to do with these falsified

14:15

business records. And so there's a way

14:17

in which the prosecution has so far

14:20

succeeded in bringing in evidence that makes

14:22

the election influence conspiracy seem bigger and

14:24

wider than the kind of like

14:26

tight connection to the business

14:29

record. I think you've made a really

14:31

interesting point for outside the courtroom, Emily,

14:33

which just struck me, which is that,

14:36

to your point, David, it's I am reminded of

14:38

sort of the Bill Clinton years where it's like,

14:41

Oh, come on. It was like, of course you'd

14:43

lie about sex and like it's messy and all

14:45

that. But in this case, what Pekker has taught

14:47

us is not forget the case for a moment.

14:50

What he's taught us is that Donald Trump is

14:52

perfectly fine with creating an

14:54

entire long strategy

14:56

for lying in public,

14:59

fooling the public. This isn't catch and kill.

15:01

This is the stuff attacking the other candidates.

15:03

That's one of his habits that

15:05

like he will cheat at the game.

15:07

And that's not just something he did because he got

15:09

caught having an affair.

15:11

No, this is something he affirmatively engaged

15:13

in on as

15:16

he was walking on to the tennis court.

15:18

He made an arrangement. How can I cheat

15:20

at this game? And he did

15:22

that back before he was running

15:24

for president in 2016. And he has done

15:26

nothing to suggest that that isn't his normal

15:28

course of business throughout the time he's been

15:30

in public life since then. That

15:32

just seems to me to be the way you

15:35

find the presidential question inside this, this court case.

15:38

One of the constant accusations of

15:40

Trump and Trump's allies is the

15:42

media is colluding with, with

15:45

Trump's critics or they're colluding with

15:48

Biden conspiring against him. And here

15:50

he is literally conspiring with the

15:53

media publisher to win the election. I mean,

15:56

literally at a conspiracy. So of course, of

15:59

course. We just momentarily on

16:01

the gag order, the judge says

16:03

to Trump's lawyer,

16:05

Todd Blanche, you're

16:10

losing your credibility with the court. When

16:13

Blanche sort of had to say that Trump

16:15

is just defending himself or I think he

16:17

even went a little further in trying to

16:19

defend Trump's situation.

16:21

How bad a problem is that, Emily, when

16:23

the judge tells you the jury wasn't in

16:25

the room? That our reporter

16:28

said that Blanche then went back to the

16:30

table and instead of sitting in his normal

16:32

seat, which is sort of head on with

16:34

the judge, he moved down and had another

16:36

of the lawyers sit in that head on

16:38

from the judge seat. So kind

16:40

of literally moving himself into the doghouse. Yeah,

16:43

it's not great. I mean, what can you

16:45

do? This whole side drama

16:47

about the gag order, as I said before,

16:50

I think is going to hover over the

16:52

trial and the prosecution right now is asking

16:54

for fines. Trump of course

16:56

on social media blared about how he was about to

16:58

be thrown into jail. The judge does

17:00

not want to throw him into jail. Like that's

17:02

not, you shouldn't want to

17:05

do that. That's bad for

17:07

any defendant in a case like this. That's

17:09

really not good. If

17:11

the judge ordered a fine of $1,000 a day, would that stop

17:14

Trump? I

17:17

don't know. We'll see. Do you want

17:19

to hear more from us after this episode? Stick

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Gabfest. You must be an

20:36

active subscriber to receive free dessert. This

20:39

is Gabfest Live. The Supreme

20:41

Court just heard arguments in

20:43

the immunity claim brought

20:46

by Trump to stop, delay

20:48

the January 6th charges brought

20:50

by special counsel Jack Smith. Trump

20:54

argues that he has absolute immunity

20:56

from criminal prosecution for official acts

20:58

he undertook as president. Smith

21:02

says no. The District Court judge in DC

21:04

said no also but the Supreme Court heard

21:06

argument for two plus hours today. Emily you've

21:09

just listened to all of it. Give us

21:11

the hot take. What

21:13

was the shape of it? What did the landscape look like? Emily-

21:15

I mean I have to say I

21:18

was surprised at how many justices seem

21:20

to take these arguments to

21:23

the point of really talking about

21:25

sending this case back to the lower

21:27

courts for more proceedings. There's a

21:29

couple of answers to

21:32

this question. Right? I mean one

21:34

is the answer the DC Circuit gave which is the president

21:37

does not have absolute immunity for every

21:39

single thing he does in office. Another

21:42

thing is to look at which of these

21:44

acts were official acts and which were private

21:46

acts. And in some

21:48

ways the justices seem drawn into that as

21:51

the route to resolving the case. They were

21:53

dividing the things that Trump did because he

21:55

was president from the things he did because

21:57

he was a candidate trying to hang on

21:59

to the- presidency. The

22:01

thing about that route to resolving the case

22:04

is because it's not when the lower courts

22:06

took, it seemed like the justices were then

22:08

going to use that potentially as a reason

22:10

to send the case back to the lower

22:12

courts as opposed to resolving those issues themselves.

22:14

And then we're just talking about a lot

22:16

more delay and complications. Yeah,

22:19

I thought when they refused to

22:21

wrestle with the details of Trump's

22:23

specific case, they were all acknowledging

22:26

that they're awful facts for

22:28

the president's argument. But then I realized,

22:30

no, what it will allow them to

22:32

do is say, you know, we have

22:34

to make this decision for all time

22:37

immemorial. And this is not just about

22:39

this set of facts. It is an

22:41

important thing to do to figure out

22:43

what's public and what's private. And there's

22:46

ambiguity. So send it back down

22:48

and figure out what's public and what's private. And

22:50

that, as you say, now we're

22:52

into three years from now. Yeah, I

22:54

mean, there was a lot of

22:56

concern about all future presidents and

22:58

this really basic division about what's

23:01

worse, right? So from Justice Alito's

23:03

point of view and Justice Gorsuch

23:05

was there with him, the worst

23:07

case scenario is a president who

23:09

is second guessing himself because he

23:11

fears future criminal prosecution. And Alito

23:13

raised the spectra of like someone

23:15

who just goes and pardons him

23:17

or herself after they leave office

23:19

to avoid that. That's

23:21

his boogeyman. Justice

23:23

Kedahunde Brown Jackson, other people, maybe Justice

23:25

Barrett seemed much more concerned about a

23:28

president who's not bound by the rule

23:30

of law, who's just like not subject

23:32

to the same criminal statutes as everybody

23:34

else. And that's just the fundamental divide

23:37

here. Which of those things do you

23:39

worry about more? And then how do

23:41

you apply that to this looming prosecution

23:43

against former President Trump? Was there any

23:46

discussion about the question

23:48

of time that there was a reason

23:50

for this to move expeditiously or did

23:52

the justices not even nod at that? Sotomayor

23:55

was totally thinking about that. She made

23:57

that clear that, you know, if they

23:59

send this case back, if they can't

24:01

resolve these questions, then there is no

24:04

prayer of a trial happening before November.

24:07

It may be that the trial is

24:09

basically off the table before November in

24:11

minds of the justices anyway. They

24:13

may have feel that because they waited so

24:15

long to hear this case and they're probably

24:17

not going to resolve it until the end

24:19

of the June, that that's already kind of

24:21

gone and it lets them off the hook

24:23

of worrying about this. Of course, that is

24:25

very much still within their control. They don't

24:28

have to take eight weeks to issue this

24:30

decision. They could do it faster.

24:32

And so I am sure that some of

24:34

the justices think that that is the right

24:36

thing to do and want that to happen.

24:38

I will be surprised if there is

24:40

a majority for resolving the case fast. One

24:43

thing I didn't understand, Emily, is so

24:45

Jack Smith believes that Trump does

24:47

not have immunity for either official

24:49

or private acts, that

24:52

the official acts were

24:54

also criminal. Well, Jack Smith

24:56

thinks that all the charges in this

24:59

case, a president does not have absolute

25:01

immunity for. There is a

25:03

sphere of presidential duty and conduct that

25:05

the government conceded. Yeah, you're not going

25:07

to be criminally liable after you get

25:09

out of office. There were certain things

25:11

connected to being the commander in chief

25:13

that the government conceded. Your

25:16

pardon power, they conceded. So they

25:18

weren't saying that every single thing

25:20

the president does can be subject

25:22

to criminal prosecution later because they

25:24

recognize the president has this

25:26

core set of duties that

25:29

should not have the same

25:31

kind of fear of criminal prosecution.

25:34

But then I think for some of the

25:36

justices, at least, there's a sense that like

25:38

most of the time, if you're just talking

25:40

about an ordinary criminal statute, that should apply

25:42

to the president. And also didn't they

25:45

say, Roberts at one point said, I

25:48

mean, obviously there are official acts that in

25:50

the abstract are not prosecutable. But when you

25:52

do them in the furtherance of a crime,

25:55

appointing somebody an ambassador was the chief

25:57

justice's example. It's fine to appoint somebody

25:59

an ambassador. but not if you're doing that as a part

26:01

of a bribe. It seemed like they were drawing

26:03

circles where

26:05

there are those that are Article II powers, and

26:07

then there's these other acts that are outside of

26:09

that. But anything

26:12

that's not purely

26:14

protected, like the pardon power, they seem

26:16

to be saying it's a matter of

26:18

how they use that power. Exactly, and

26:20

so they spend some time talking about what if you

26:22

order a military coup? I mean, if

26:24

you're a president, you have the power

26:26

in your office to order the military

26:28

to do stuff. But if you're ordering

26:31

something that's totally illegal, then doesn't

26:33

that have to be subject to criminal liability? And

26:35

I have to say, I mean, Justice Barrett seemed

26:37

concerned about that. It wasn't just the liberal justices.

26:40

And Trump's lawyer didn't seem to have a

26:42

very good answer on the coup front. He

26:44

did not want to talk about the coup.

26:47

So usually in these cases, it's sort of

26:49

the fulcrum is Kavanaugh, Roberts, Barrett at this

26:51

point. So when you

26:53

listen to this, Emily, where does it feel like that

26:55

fulcrum lands? Barrett,

26:58

I thought was, I did not

27:00

hear a Barrett expressing a lot

27:02

of sympathy for Trump's position. Kavanaugh

27:04

seemed interested in sending the case

27:07

back for more proceedings at one

27:09

point. At another point, he cast

27:11

doubt on the conspiracy charge at

27:14

the center of this case and talked

27:16

about how broad and sweeping it is. And that

27:18

is a real problem for the government because as

27:21

you may remember, last week, we

27:23

were talking about the charges to do

27:25

with obstructing official proceeding, which the court

27:27

is hearing a separate challenge to. If

27:29

they cast doubt on whether the government

27:31

can use those charges, and then they

27:34

say that this conspiracy charge is way

27:36

too broad for charges

27:38

against a former president, then that would be the

27:40

end of the government's case. Kavanaugh did

27:42

work in the Georgia v. Bush White House.

27:44

And I think it's very attached

27:48

to the damage that he felt was

27:50

done to the executive branch by the

27:52

nibbling away by liberals

27:55

the executive authority in his view. He

27:58

also worked for the special counsel. and

28:00

I mean he worked for Ken Starr and

28:03

he had one of his lines of questioning was about

28:05

the awfulness of the independent counsel

28:08

statute and how that left lasting damage

28:10

and that a reading an incorrect reading

28:13

of the current case before

28:15

them could leave this kind of lasting damage

28:17

which all feels like an argument for sending

28:19

it back for more clarity. Yes I

28:21

mean I felt like going into this

28:23

argument it seemed like many commentators

28:25

and including the DC circuits their

28:27

main concern is wait a second

28:31

did Trump try to subvert an election

28:33

what do we do about that and

28:35

we want to make sure that it's

28:37

rock solid clear that American presidents are

28:40

subject to the rule of law. Listening

28:42

to this argument it seems like for

28:44

some of the conservative justices there was

28:46

much more concern about weakening the presidency

28:48

subjecting the president given separation of powers

28:51

too much to a special

28:53

prosecutor or to the rulings of courts

28:55

themselves like that seemed to be the main

28:58

concern and that was really surprising to me.

29:00

The Department of Justice Department's case was

29:02

that there's no immunity in part because

29:04

there are all of these hurdles that

29:06

keep that apocalyptic result

29:08

from taking place including a

29:11

president gets counsel from his attorney general and once

29:13

he gets that counsel he

29:15

can't be prosecuted for good faith counsel that he

29:17

was given that he you know the there are

29:21

protections in in court cases that you know

29:24

there are protections in court I should say

29:26

that protect defendants that there are a lot

29:28

of so the Justice Department argued

29:30

a lot of things already that exist that

29:34

keep the apocalypse that they were pretending

29:36

might happen from taking place but I don't

29:38

know how convincing that was. You

29:40

could certainly have a president who appoints a

29:43

attorney general that he knows is going

29:45

to rubber stamp his decisions and will

29:47

declare everything to be kosher.

29:50

Yeah somebody brought that up. Right Alito brought

29:52

that up and the argument was well sure

29:54

but there's a there's a separation of powers

29:56

check there which is that the Senate has

29:58

to confirm. Now, we

30:00

obviously don't put a lot of faith

30:02

in a Senate that has

30:04

to confirm. On the other hand, presumably

30:07

in the Supreme Court, you're supposed

30:09

to pay attention to the way

30:12

the system was designed, not its

30:14

most inefficient execution at the current

30:16

moment. But that is

30:18

kind of one of the problems, is that the

30:20

system as designed doesn't work the way it was

30:22

designed to work right now. That

30:24

there are all these other things that can

30:26

have been broken, some

30:29

by accident, some on purpose that make

30:31

it not really function the way it

30:33

was intended. And the justices can sort

30:35

of take this luxury of viewing everything

30:37

from this, oh, this grand, broad, constitutional,

30:39

we have to look to history, but

30:42

then you can end up ignoring

30:44

the gritty facts and real

30:46

awful things that are happening when you

30:49

just look hypothetically. But whatever. Can

30:51

Emily, I have a question, which is, was Judge

30:53

Chutkin negligent in not having

30:55

distinguished official and private acts

30:58

having determined that earlier and sent a record

31:01

up to the Supreme Court that had determined

31:04

that these were all official acts? Yeah,

31:06

I was thinking about that. I mean, I wouldn't

31:08

say negligent, but I was thinking about how there

31:10

have always been two ways to

31:13

resolve this case. This question of, well,

31:15

of course you can't be absolutely immune

31:18

for every single thing you do as

31:20

an official act versus, well, were these

31:22

really official acts? And certainly it is

31:24

possible to imagine a set of

31:26

proceedings in which both of those

31:29

avenues were entertained in the alternative, and

31:31

then you have a different kind of

31:33

record. You know, it's a

31:35

matter of like second guessing and after

31:38

the fact quarterbacking. But if that ends

31:40

up being the reason the case gets

31:42

sent back, it's going to look like

31:44

that wasn't a great set

31:47

of decisions. Emily, why

31:49

couldn't, let's imagine a trial

31:51

has to go forward. Why couldn't it be

31:53

a defense of the Trump counsel

31:56

in the course of the court

31:58

proceedings to say You're trying

32:00

to make this thing criminal that's perfectly legal, you

32:02

know, even the even the fake electors or even

32:04

the slate of alternative electors. That's what President Grant

32:07

did. That's not illegal. That's perfectly within the bounds

32:09

of his now the problem you would come into,

32:11

which one of them pointed out. I can't remember

32:13

what is Kagan or the other is. Trump

32:15

knew that all those electors were fake and that there was

32:18

no basis for them to be named and so forth. But

32:20

then you get into a question of. What

32:22

he knew and when he knew it, but I guess

32:24

my point is could he was just doing his job.

32:27

Be a sufficient defense in the in

32:29

the in the course of a of a trial and

32:31

therefore protect the president from what they were worried about

32:34

at the Supreme Court. Yeah, absolutely. And

32:36

Sotomayor talked about this, you know exactly

32:38

what you're saying, like, okay, will you

32:40

raise this during the trial and we

32:42

have remedies for during the

32:44

trial or after the trial or the judges

32:47

instruction to the jury. And

32:49

those are all the normal routes. You

32:51

know, there was this really interesting through

32:54

the looking glass feeling about this in which

32:56

the liberal justices were basically assuming that the

32:59

criminal justice system is going to operate in

33:01

good faith and that you're not going to

33:03

have presidents indicted in the future willy

33:05

nilly. And you're not going to have

33:07

corrupt attorneys general and it was the

33:09

conservative justices who were saying things like,

33:11

oh, well, you know, prosecutors can get

33:14

a grand jury to indict a ham sandwich.

33:16

So that's not a real constraint here. That

33:18

was the way it was shaking out this

33:20

morning. And honestly, it was just kind of

33:23

bananas. I'm not sure I'm going to

33:25

argue this point, but I think if you assume

33:27

as I kind of already assumed there was literally

33:29

no chance this case was going to go

33:31

to trial before November and hence. It's

33:33

sort of moot for its impact on the election

33:35

anyway that it wasn't going to happen. And if

33:38

you assume that that was the case, it

33:40

doesn't seem to me the worst thing in

33:43

the world for the justices to. Kind

33:47

of lay down a set of benchmarks

33:49

about when a president can be prosecuted when

33:51

a president can't because I actually don't I'm

33:54

not sure they're wrong that the biggest

33:56

danger there is a significant danger to

33:59

malicious press. I think

34:01

Trump has already said that he would use

34:04

his Justice Department to go after Biden from

34:06

day one. That's what he's going to do.

34:08

He said he's going to do it. So

34:11

if you think that they are possibly

34:14

preventing some malfeasant behavior by a future

34:16

president by taking a little bit of

34:18

time, I don't think it's terrible because

34:20

I do think it was already off the table that

34:22

this trial was going to happen. I just haven't for

34:24

months, I have not believed this trial was going to

34:26

happen. So I'm not so brokenhearted to think like, oh,

34:28

now it's really not going to happen. I

34:31

never thought it was going to happen.

34:33

And if your political interest is in not having

34:35

Donald Trump reelected as president, if

34:38

these issues become central in the

34:41

campaign, both with respect to Trump

34:43

and with respect to the indictments now in Arizona, with

34:47

respect to fake electors, there are now four states

34:49

in which there are fake elector indictments who now

34:51

have cooperating witnesses who were a part

34:53

of the scheme, who

34:55

are now helping out. If

34:57

that becomes the centerpiece of the campaign,

35:01

you know, I'm not certain that's really so

35:03

wonderful for Donald Trump. Great. I mean, look,

35:05

if you've already made your piece of the idea that this

35:07

trial and the other federal trial, the

35:09

Florida one involving, you know, taking all the

35:12

documents tomorrow, Lago, if

35:14

you already thought those trials weren't happening

35:16

before the election, then, right,

35:18

this is more about politics, as

35:20

you're saying, John, and

35:23

that makes sense, right? Like that it's up

35:25

to the American voters to decide how to

35:27

weigh all of this. And the swirl of

35:29

it, the facts are going to remain with

35:31

us. And if it takes

35:33

the courts longer to thoroughly

35:36

nail down the answers to these

35:38

questions about the scope of a

35:40

president's immunity from prosecution,

35:43

a former president, I keep reminding

35:46

myself to say, then this seems

35:48

okay. And, you know, certainly

35:50

I think there are several and

35:53

maybe a majority of conservative Supreme Court

35:55

justices who are going with that. Like

35:57

their job is the future. of

36:00

the country, it's making sure that

36:02

future Justice Departments and prosecutors and

36:05

future presidents don't abuse this authority

36:07

to prosecute their

36:09

rivals or other defeated presidents.

36:13

That's the kind of tension here. Of course, I

36:16

mean, I still just can't resist bringing up

36:18

the fact that I still am confused about

36:20

why this is such a hard legal question

36:22

and why it has taken them so long.

36:25

But I realize that's kind of crying over spilled milk at

36:27

this point. We're going to take a short

36:29

break. We'll be right back. This

36:32

episode is brought to you by FX's

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38:37

Anti. Israel. Pro. Palestinian protests

38:40

encampments that have popped up

38:42

on campuses are only. Spreading.

38:44

We have ones at

38:47

Brown and Princeton. This

38:49

the today. There

38:52

in Michigan and U T. Austin

38:54

had a showdown at Berkeley. This.

38:57

Started at Columbia. Ah,

39:00

Were. Columbia President Money Shafiq is

39:02

in a world of hurt. She

39:05

tried to satisfy conservative inquisitors in

39:07

the house by expressing. Very.

39:10

Strong criticism Most of

39:12

Palestinian sympathizing professors and

39:14

students. Then she was

39:16

beset by criticisms and protests by

39:18

Palestinian sympathizing professors and students that

39:20

letter to call the and Y

39:22

P D on her own and

39:24

camp Students in Shades of Making

39:26

Sixty Eight Ah, She. Finds

39:28

herself in a situation where

39:30

pro Israel and conservative lawmakers

39:32

and donors think she's cowardly

39:34

and allowing anti Semitic intimidation

39:36

to flourish. Student protesters who

39:38

are encamped in their view,

39:40

peacefully express it. their First

39:42

Amendment right to protest think

39:44

she's a thug. Ah, Meanwhile,

39:47

At all these other schools Yale, Harvard,

39:49

Northwestern, Pit Berkeley As I mention. Princeton.

39:52

Brown Ah, their encampments arising protests.

39:54

The best advice I can give

39:56

any. Because. present is just get to

39:58

the end of the term Man,

40:01

just get to, come summer, none of these

40:03

kids are all going to go home in

40:06

the summer. You don't have protests during summer,

40:08

but oh my God. Yes, move up exams.

40:10

Seriously. I mean, that is

40:12

like a big question here that I've

40:14

been asking myself. We had arrests at

40:17

Yale as well, and it just seems,

40:19

talking to my activist friends not involved

40:21

in these protests, sometimes

40:23

what you fear as an activist is that the

40:25

other side is going to de-escalate. And

40:28

I'm just a little baffled about

40:30

why these administrators decided to relatively

40:32

quickly call the police and ask

40:34

for dozens of students to get

40:36

arrested as opposed to just letting

40:39

them camp out for a little while. Yeah,

40:41

it's a good time. And

40:43

making them take their exams, right? I

40:46

mean, for these students, the consequences of

40:48

academic trouble failure is much more serious

40:50

than getting arrested. And so I also

40:53

question that. Like, bringing in the police

40:55

is a whole different

40:58

kind of foreboding feeling to it than

41:00

threatening suspensions or just telling people like,

41:02

okay, you can sleep outside if you

41:04

really want to, but you need to

41:07

take your exams. Now, obviously there's a

41:09

whole other set of considerations here because

41:11

there are other students

41:13

who feel like the chanting and

41:15

the effective calls for the elimination of

41:17

Israel is really hard on them. And

41:20

so that is part of the calculus

41:22

here, but I still just kind of

41:24

remain puzzled by this set of choices.

41:27

Does that give evidence to the claim

41:29

then that it was just wholly performative

41:31

as a way in keeping with

41:33

the way the testimony went down in front of

41:35

Congress? In other words, to send a message that

41:38

the university is doing everything it can to make Jewish

41:41

students not feel threatened. So that you

41:43

need to show that because you're trying

41:45

to counter these calls for you

41:47

to leave your job. Yeah. So

41:50

Columbia is specific, right? Because That

41:52

testimony, I Mean, frankly, it was

41:54

not just pro-Palestinian sympathizers who were

41:57

distressed by that testimony that Shafiq

41:59

gave. A lot of people were

42:01

outraged by it because it really seem

42:04

to throw a lot of free speech

42:06

and academic speech principles out the window

42:08

and in should seek named faculty members

42:11

who are being investigated. She turned over

42:13

information about that in a way that

42:15

I'm really broke a lot of norms

42:18

i'm at Columbia and then on top

42:20

of that you have her calling the

42:22

police. So and right. So I think

42:25

of that is specific. Many other thing

42:27

obviously that specific about Columbia is it's

42:29

a relatively. Small campus so when people

42:31

camped out on that front lawn, it's

42:34

super central and then it's in New

42:36

York and so then you have all

42:38

these people outside the gates who are

42:40

really being more anti semitic and intimidating.

42:42

I think then the students inside. Which

42:45

is not to say that there's no

42:47

anti semitism inside. I don't think that's

42:49

right either on, but it does create

42:51

a kind of more tense. Picture of

42:54

and lots of other campuses and cities.

42:56

I mean I think you're right to

42:58

say that columbia example specific with Colombia's

43:00

the trigger Great Colombia's the yeah no admission

43:02

for all the others of the others.

43:04

don't happen if. Columbia doesn't do

43:06

it, doesn't It does with those because minutes

43:08

if he does clearly values keeping her job

43:10

and saw this as a way to keep

43:13

her job. But.

43:16

Do I wanted to get to the

43:18

really ambiguous question to me in part

43:20

because the coverage has been appallingly bad

43:22

about this about whether what's happening is

43:25

anti semitic or not like what is

43:27

it that is happening. And.

43:30

In who's you know? In whose eyes? Is

43:32

it anti Semitic in his eyes? Is it

43:34

not anti semitic? So there's clearly there are

43:36

broad chance. The. From the river to

43:39

the. Cats. Ah,

43:41

Did. You. Know that you're

43:44

Zionists. Unwelcome. I slept with the

43:46

Zionists. Chance are which are. Which.

43:49

The. People chanting them claim are not

43:51

anti semitic, but some people may perceive them

43:53

as anti semitic. Can we talk about that's

43:56

been There Are these other. really

43:58

non specified things It's

44:00

very hard to find specific examples of

44:03

students who are making

44:05

accusations or doing things towards

44:07

other students, which Jewish students

44:10

are feeling are anti-Semitic or

44:12

they're Jewish students who feel threatened by it.

44:14

So there's the go back

44:16

to Poland, apparently one student yelled at

44:18

a Jewish student in Columbia. There's

44:21

Jewish students who tried to walk

44:23

through, visibly Jewish students who tried

44:25

to walk through encampments at Columbia

44:27

who were sort of isolated, maybe

44:30

physically kept away from the encampment.

44:33

But Emily, do you have a really good sense about

44:35

what it is from

44:37

the perspective of Jewish students that

44:39

is explicitly anti-Semitic about

44:42

what is happening? Well, I

44:44

mean, going back months, there are

44:46

some incidents of harassment, someone

44:48

putting up posters about the Israeli

44:50

hostages in Gaza and getting assaulted.

44:52

I can't remember what campus that's

44:55

at. There are isolated things like

44:57

that to point to. I

44:59

think what's going on now

45:01

has to do with the sort

45:03

of social cost of being Jewish

45:06

and being unwilling to denounce Israel.

45:08

You know, I think we can think about whether

45:11

that's anti-Semitic. Like, one way to think

45:13

about this, and this is part of

45:15

one of the definitions of anti-Semitism, is

45:17

that if you're being told that in

45:19

order to, you know, live in your

45:21

society, you have to

45:25

denounce part of your core religious

45:27

or peoplehood identity, like that is

45:29

a form of bigotry. And

45:32

I think there are circles, at least on

45:34

these campuses, where that is the case. It's

45:37

complicated because there are also Jewish students in

45:39

the middle of the protest. I mean, Jewish

45:42

Voices for Peace is a real force among

45:44

young progressive Jews, and there are Jews who

45:46

are saying it is my

45:48

values to condemn and oppose

45:50

the war in Gaza.

45:52

And we're seeing the death toll

45:54

is horrible. The Toll

45:56

of hunger and, you know, looming

45:58

salmon is awful. All I'm not

46:01

happening during Passover. I'm really struggling

46:03

with that. so. It's I

46:05

don't think it's a simple picture

46:07

but I can understand why do

46:10

a students would find this. Unwelcome

46:12

in and difficult. and then. What

46:15

responsibility to campuses have when you have

46:17

a truly devices issue? And I think

46:20

the campuses haven't really been ceased with

46:22

this for a very long time. And

46:24

that's the struggle he or right. I

46:27

mean, most schools have said to students

46:29

very clearly, we want you to feel

46:31

like you belong. We want you to

46:33

feel welcome. We don't tolerate hate speech.

46:36

They've said that in multiple other circumstances

46:38

and so I think for some Jewish

46:40

students, this feels like, ah, breaking of

46:42

that promise that the need to other

46:45

groups. It does a

46:47

responsibility of a university administrators

46:49

change. Based.

46:52

On how the external. Circumstances

46:55

are changing. Obviously anti Semitic, The

46:57

anti semitism in America has been

47:00

on the rise for the last

47:02

couple of years. There was fear

47:04

about this before October seventh. And

47:07

so that encampments, which might not.

47:10

Be. As menacing. Two years

47:12

ago. In. A context become

47:15

menacing and I think also.

47:17

What? Seems different from the protests

47:19

of the sixties on college campuses.

47:22

I'm. Is. That you don't have

47:24

an effective party. Walking.

47:27

Through the protests. As so much

47:29

know, maybe I'm forgetting. Where

47:32

would you know with the aren't

47:34

she's wealth is so if if

47:36

if part of this debate is

47:38

whether protests in support of a

47:40

Palestinian state or I'm of Gaza.

47:43

Or can bleed over into

47:45

i'm anti semitism. That's.

47:48

One question, but it's taking place physically

47:50

in an environment where you were students

47:53

have to walk through it whereas in

47:55

the in the nineteen sixties if you're

47:57

protesting against the Vietnam War, The.

47:59

people you're the people who

48:01

are possibly injured, if

48:03

you believe that's what's happening in the protest,

48:05

aren't having to walk through the protest itself. A

48:07

point I never really thought about, I don't

48:09

know if you tuned into this,

48:12

Emily, the former Columbia

48:14

Law School Dean and the chair of the

48:16

Anti-Semitism Task Force at Columbia, David

48:18

Shizer, talked about Title VI of

48:20

the Civil Rights Act, which is whose perspective

48:23

do you take when you're considering whether something

48:25

is hate speech? Is it the intent of

48:27

the speaker or the listener? And that traditionally

48:29

universities have very much taken the perspective of

48:32

the listener. That is, the listener perceives something

48:34

to be creating a hostile

48:36

or dangerous or unsafe environment for them.

48:38

The university takes that seriously. And so

48:40

it's not do the

48:43

protesters mean it, do

48:45

they mean something anti-Semitic when they say, can't

48:48

from the river to the sea. It's does

48:50

a student, a Jewish student walking

48:53

by there feel that as

48:55

a threat to their Jewish identity? And

48:57

does it make them feel unsafe or

48:59

that they're in a hostile situation? And

49:02

I don't, like my view is, my

49:05

view is very much everyone should be allowed

49:07

to say whatever they want under almost all

49:09

circumstances and like not worry about this kind

49:11

of safety question unless it gets very specific

49:13

and extreme. But if universities have

49:15

the standard for all kinds of other speech, presumably

49:18

they should have the standard for speech about and

49:21

that's perceived to be anti-Semitic. That's

49:23

exactly the dilemma, right? I mean, you can

49:25

take a very pro speech approach

49:27

to Title VI and the rules you're talking

49:29

about, which is to say a university can

49:32

say, we're only going to discipline

49:35

for speech if it's directly targeting

49:37

an individual, right? And if

49:39

you go back to like why

49:41

the president of Harvard and Penn and MIT

49:44

got in trouble with Congress months ago for

49:46

talking about context in when

49:48

they were asked about, you know, a

49:50

chant about genocide to Jews, that's what

49:52

they meant. Like if you were talking

49:54

to one person, then that would be

49:57

targeting and threatening, but otherwise possibly not.

50:00

That answer seemed unsatisfying. And part of the

50:02

reason it seemed unsatisfying is we live in

50:04

a world in which it's impossible to imagine

50:07

people chanting kill group X

50:10

on campus and having that

50:12

be okay. Like that's just

50:14

not where universities have landed.

50:16

And so that potential

50:19

inconsistency is very real. Other

50:22

schools, like you can have a very

50:24

broad set of free speech protections in

50:26

which you just tolerate tons of speech.

50:29

The question becomes, we're

50:31

not just has its own cost, right? So

50:33

a couple of weeks ago at Berkeley, some

50:37

pro-Palestinian students put up a poster

50:39

of the Dean Erwin Chemerinsky that

50:42

showed him with like a bloody knife

50:44

and fork and called him as an

50:47

INS. And to a lot of Jews,

50:49

to a lot of listeners or in

50:51

this case viewers, that seemed clearly anti-Semitic,

50:53

like an invocation of the blood libel

50:55

against Jews. Now, Dean Chemerinsky has a

50:58

very pro-free speech approach.

51:00

He's a First Amendment scholar. So he

51:02

left those posters up. And

51:05

then the question is like, okay, is

51:07

that the right rule? Or are you

51:09

in fact, on the other hand, obstructing

51:11

learning because the people, some of the

51:13

Jews who pass those posters in the

51:15

halls are gonna feel really

51:17

troubled by them. And that's like a

51:19

real dilemma that universities are facing kind

51:21

of over and over again in the

51:23

face of these protests. Can

51:26

I make a slightly similar point just

51:28

to go into this question about learning

51:30

and disruption of learning. And clearly learning

51:32

is disrupted on the Columbia campus right

51:35

now. Every

51:38

one of the students at Columbia that

51:40

is involved in this, that is peripheral to this,

51:43

this is a formative crucible experience for them. And

51:45

so to say like, oh,

51:47

well, people can't, classes are being canceled and

51:50

that's terrible. Like I missed my art history

51:52

seminar this week is to kind of miss

51:54

the point. Like I do think that this

51:56

has so much. much

52:00

more educational value than

52:03

most art history seminars. Couple

52:05

of things to bring us home. First of all, I

52:07

just wanna repeat my point, which is that university president

52:09

is the worst job in the world. You have

52:12

no, everyone hates you. The

52:14

faculty hates you. The

52:16

students despise you. The

52:18

staff doesn't like you very much. Only,

52:21

and if donors start to hate you, then

52:23

you have no purpose at all. It's awful.

52:25

And you can only salve your discontent by

52:27

getting on the phone and begging donors for

52:29

money, which is a depressing thing to have

52:32

to do. And we should say

52:34

the donors are hovering over all of

52:36

this, right? I mean, sometimes explicitly and

52:38

sometimes in the shadows, and that pressure

52:40

is part of this picture, and it's

52:43

part of how universities have changed and

52:45

become more and more dependent on these

52:48

huge faucets of money, and that is its

52:50

own troubling part of it. Robert Kraft,

52:52

the owner of the Patriots, who's been

52:54

a major donor to Columbia, has made

52:56

it clear that Columbia is on probation

52:58

with him. Emily,

53:00

just next to last question,

53:02

what is it that you got at this right at the

53:05

beginning? It seems to me that where

53:07

the university, if the university wants to control these

53:10

protests, its best mechanism

53:12

is around the

53:14

academic status of the students.

53:16

Like, don't arrest them, but

53:19

certainly you can make students,

53:23

force them to take their exams, suspend them,

53:26

cause them academic misery that is

53:28

really, really painful if you want

53:31

to prevent them from protesting. Yeah,

53:33

I mean, look, I'm not

53:35

advocating for this, but if

53:37

you are thinking about how

53:39

you disband encampments with

53:42

the least possible police presence,

53:44

that is obviously a card that you play. And

53:46

I haven't asked any administrators why they haven't gone

53:48

in that direction. I mean, did they just not

53:51

wanna have to deal with the

53:53

due process or did they think the

53:55

fallout from parents will be worse? Are

53:57

there real violations of their rules? here

54:00

that they can enforce, because if not, they should

54:02

not be calling the police. It

54:04

just seems that you should

54:06

always, with young people, have

54:08

the lower level discipline that

54:11

you try first. And I'm

54:13

surprised that this has risen

54:15

to the level of the

54:17

cops, to bring in

54:19

the outside agents, particularly with all the history

54:21

of police presence in the 1960s. I

54:24

mean, I don't think this is the same

54:26

thing, but it's just mystifying to me.

54:28

I just don't understand it. John, as a

54:30

last point, how big a problem are

54:32

these protests for Biden?

54:35

My sense is that it's like a

54:37

major drag, not because he's not

54:40

going to lose New York and losing

54:44

a few thousand college students, but it's hard. Youth

54:48

disaffection has

54:50

always historically been a bad signal

54:52

for presidential campaigns. And if

54:54

you look back to 1968, LBJ was haunted by the war,

54:56

and it just made it very hard for

55:01

him to campaign. It made it just... It

55:04

was the first question on everyone's lips, and that

55:06

was just misery for him, and it caused him

55:08

to pull out. Well, that's because he was pouring

55:11

the bodies of middle-class boys into the fields of

55:13

Vietnam. I mean, that was a big difference. You

55:15

had the voters whose lives, or

55:17

the lives of their kids, were affected directly

55:19

by the deaths in Vietnam. So that had

55:22

a... It hit a

55:24

little closer to home. But

55:26

clearly, you have

55:29

52% of Democrats now in

55:31

a recent poll said

55:33

the way Israel's carried out its

55:35

response to the October 7th attack

55:37

has been unacceptable. 51%

55:41

of registered voters in those battleground states have

55:43

decided that they strongly,

55:45

or I

55:48

should say 51% of

55:50

the registered voters in these seven

55:52

states support aid for Israel. That's

55:54

down 11 points from November. Support

55:59

for... weapons and supplies to Israel is

56:01

down among Democrats from 47% to 32%. So numbers

56:03

are going down.

56:06

Now the question is, is it salient with

56:08

younger voters? And there's some debate about that.

56:10

In other words, they will say they care

56:12

about it. They will say they don't like

56:14

the US position with respect to Israel. But

56:17

is abortion more important? Is their

56:20

economic condition more important? Is their fear of

56:22

Donald Trump more important? And we

56:24

don't know that at the moment. We know

56:26

there was a lot of protest in Michigan,

56:28

but of the battleground polls at the moment,

56:31

the one place Biden is actually

56:33

doing better is Michigan. It's

56:35

all at the margin. It's all very close between

56:37

the two of them. But in Michigan doesn't seem

56:39

to show an acute problem. There was just a

56:41

primary in Pennsylvania in which there were opponents to

56:43

both of the major party nominees on the ballot.

56:46

Nikki Haley got 17% of the Republican primary

56:48

vote in Pennsylvania, including a pretty good share

56:50

of the people who showed up on the

56:52

day of the primary to vote against Donald

56:54

Trump and for Nikki Haley. So in terms

56:56

of like, how are the problems of the

56:58

individual candidates showing up on

57:01

the ballot, the way we worried about

57:03

it in Michigan with the

57:05

protest vote against Biden, Biden only got 7% who

57:08

voted for his opponent in

57:10

this primary. So I guess

57:12

the thing to watch is really

57:15

how lasting this is. But as

57:17

a public nightmare, we're

57:20

all covering it. It's very much

57:22

in the news. And that of

57:24

course causes the chance for donor

57:26

upset and just a constant

57:28

stone in the shoe to perhaps use a

57:30

bad metaphor. The final point

57:33

is reality might intrude. Israel is about to go

57:35

into Rafa. And

57:37

the humanitarian situation

57:39

is about to get much worse.

57:41

They just, you know, they have

57:43

found there have been additional humanitarian

57:46

reports coming out of Gaza about

57:48

atrocities. The State Department's report on

57:50

human rights abuses talks

57:52

about Hamas and the October 7

57:54

attack and the ongoing treatment of the hostages, but

57:56

it also talks about what Israel has done in

57:59

this war. The fuel for

58:01

demonstrations is going to keep

58:03

coming for

58:05

a while now. Let's go to cocktail chatter when

58:08

you're speaking to your college

58:11

student children about something which

58:13

isn't protest, what

58:15

we'd be chattering about. Also update, the

58:18

crows during taping just chased off

58:20

the Blue Jay. There

58:22

was a battle royale in

58:24

the back garden where the crows drove

58:27

the Blue Jay away. I didn't

58:29

love it. Wait, because some people are

58:31

negative on Blue Jays. They sort of think

58:34

of Blue Jays as in the class of

58:36

crows. I was taking a David Plots like

58:38

walk this weekend and came upon an entire

58:43

thicket of red winged blackbirds all

58:45

singing their spring mating song. It

58:47

was gorgeous. That's amazing. Well, you

58:49

can have a chatter, John, because

58:51

you evoked such beauty

58:54

there. I've

58:57

wrestled the chatter. Well, I

58:59

guess just playing off of your idea of

59:01

speaking to college age children, which often only

59:04

happens after a large interregnum,

59:06

there was another thing that's far away and

59:09

took five months to communicate. That was the

59:11

Voyager spacecraft, which has

59:14

for five months been

59:16

sending a loop of

59:18

indecipherable gibberish from 15

59:21

million miles away. That's

59:25

a thought, oh

59:27

no, our beautiful

59:30

signature exploratory

59:34

vehicle out there is done. It

59:36

served its useful purpose in life and now

59:38

it's no longer working. It's just sending back

59:41

gibberish. We

59:43

should note that Voyager 1 sent back. We

59:46

know so many things about the rings of

59:48

Jupiter and Saturn and all of these wonderful

59:51

things about our galaxy

59:53

because of Voyager 1. But then

59:55

they fixed it. They basically from

59:58

15 billion miles away. That's

1:00:00

B with Carl Sagan, discovered

1:00:03

that it was basically a memory chip and some

1:00:05

of the code was

1:00:08

corrupted. And so they basically relocated

1:00:10

the necessary code from the faulty chip

1:00:13

to other parts of the system. I

1:00:15

mean, talk about like an IT

1:00:17

fix from a remote location. And

1:00:20

now it's sending back useful data from

1:00:23

VoIP. VJAR is on the march again.

1:00:25

Emily, what's your chatter, even though you

1:00:28

apparently didn't see any red-winged blackbirds? I

1:00:30

know, which is so sad, though I did see

1:00:32

a lovely cardinal this week. It's spring

1:00:34

here too. I

1:00:36

cannot let pass the major

1:00:39

Supreme Court argument in a

1:00:41

case about Idaho's abortion law,

1:00:43

which is banning abortions

1:00:46

unless a woman is at risk of death,

1:00:49

versus MTALA, which is the

1:00:51

emergency provision federal law that

1:00:54

says that emergency rooms have

1:00:56

to stabilize people by giving

1:00:58

them necessary medical treatment. And

1:01:01

so you had a face-off at the Supreme Court

1:01:03

this week, essentially between the liberals and the court,

1:01:06

sort of Justice Barrett, thinking about this

1:01:09

group of cases where you have women

1:01:11

who could lose an organ or they

1:01:13

could not be able to be fertile

1:01:16

again because they don't receive an abortion

1:01:18

in an emergency situation. And

1:01:22

then on the other hand, you had

1:01:24

the male conservative justices basically saying, like,

1:01:26

well, that's up to Idaho. And

1:01:28

if Idaho wants to force a situation

1:01:30

where some people have to be airlifted

1:01:33

out of the state in order to

1:01:35

receive the treatment they want because they're

1:01:37

not at actual risk of death, well,

1:01:39

that's okay. And

1:01:41

it's a legal question about

1:01:44

the scope of this federal law,

1:01:46

MTALA. And it's a political

1:01:48

question, too, even though, of course, that's

1:01:50

supposed to be in the background about

1:01:53

drawing attention to this particular group of

1:01:56

sympathetic cases in which people are being made

1:01:58

to suffer because of a very... very

1:02:00

strict abortion law. So it will be

1:02:02

interesting to see how this breaks down.

1:02:04

I mean, it was hard to see

1:02:06

five votes for choosing

1:02:08

MTALA over Idaho, but you know, we'll see.

1:02:10

It was a little hard to tell. I

1:02:13

think Idaho, I think I'm right. I'm

1:02:15

remembering this from listening to CityCast Boise

1:02:17

has already lost something like a quarter

1:02:19

of its OBGYNs.

1:02:23

And that's a state that has a pretty high

1:02:26

birth rate. I don't really know

1:02:28

what's going to happen there. It seems like a mess. My

1:02:32

chatter, I have several chatters. First,

1:02:35

log rolling chatter. I lead a

1:02:37

tour for Terusie, a Civil War

1:02:39

fort here in Washington, DC in

1:02:41

Rockford Park. It has five stars

1:02:44

on Airbnb. It's a great tour. I love

1:02:47

doing it. Do it about once a month. And I

1:02:49

just put up a whole set of new dates

1:02:52

for fall and winter of

1:02:55

this year. So please check

1:02:57

that out. You can go to exploring

1:02:59

a secret fort on Airbnb. Look for

1:03:01

exploring a secret fort, or you can

1:03:03

email me, davidplotsageemail.com, and

1:03:05

I'll send you the link. Also,

1:03:10

CityCast is hiring a membership manager. If

1:03:12

you want to help us build membership

1:03:14

at CityCast, please also email me or

1:03:17

check out CityCast's job page,

1:03:19

citycast.fm slash jobs, because

1:03:22

we're hiring someone to help us attract

1:03:26

members, people who love what we're doing. But

1:03:29

that's not my chatter. My chatter was in the Washington Post on

1:03:33

Earth Day by Eve Shab. And

1:03:37

Eve Shab, who is a person

1:03:40

who is all for improving

1:03:42

our planet, says it's

1:03:44

time to stop recycling plastic and

1:03:46

has some really shocking numbers about

1:03:48

how ineffective and

1:03:51

inefficient plastic recycling is. In

1:03:53

the best case, Every

1:03:57

bit of recycled plastic requires. I

1:04:00

three times as much. New. Plastic

1:04:02

just don't create something out of

1:04:04

that recycled plastic. The years you're

1:04:06

continuing to create new plastic Huge

1:04:09

reds, new plastic, a rhythm use

1:04:11

of recycle only about a tiny

1:04:13

only a tiny fraction of plastic

1:04:15

five percent gets reuse is also

1:04:17

can't be used for. It has

1:04:19

to be used for a much less. Effective

1:04:22

use so it's actually not recycle, it's

1:04:24

downcycled, It becomes used for. Something.

1:04:26

That's that's much worse and just contributes

1:04:28

to the overwhelming amount of plastic in

1:04:31

the. In. Our Ways chain.

1:04:33

So plastic Sachs plastic is terrible, so

1:04:35

read: The goal is to use much

1:04:37

less classics And and the five percent

1:04:39

that's recycled plastic compares to sixty eight

1:04:41

percent for paper and cardboard, so would

1:04:43

seem to be doing a pretty good

1:04:46

job with that's so. Maybe. We

1:04:48

should reconsider that. But. It doesn't

1:04:50

really. Recycling plastic like it's fake mean

1:04:52

when they say that they're recycling classic in

1:04:54

the city that generally. Are really not

1:04:56

doing. I would like to web the

1:04:59

sand memo to members my household who

1:05:01

would disagree with you but I'd share

1:05:03

your position. I am. I also have

1:05:06

members of my cellphone to the Greece's

1:05:08

oh My God. There are Shakespeare plays

1:05:10

that are less performative then the recycling.

1:05:12

I'm theatricals that go on in this

1:05:15

household. I'm. I'm kidding. I'm

1:05:17

kidding by that. Not text. says.

1:05:20

The prefer. Earth. It's Oh. My.

1:05:22

God. If I don't we have so many

1:05:24

sorting. I mean, it's not just a place

1:05:27

to put the paper. There's a paper on

1:05:29

which you use script to. right? Then there's

1:05:31

the paper that cardboard that comes from an

1:05:34

outside source. Then there's papers. It's cardboard that

1:05:36

you might use again. Then there's papers admitting

1:05:38

that block letters. You sound like

1:05:40

Andy Rooney right now. I have a

1:05:42

homicide test for I sound like any rooting for.

1:05:46

A. Ghost you

1:05:48

getting We go one episode well my role

1:05:50

in it. I would do it. Says

1:05:53

were an average of more than just

1:05:55

as my God you've got all have

1:05:57

been full of logged rolling. Right

1:06:01

listeners? You have great. Chatters,

1:06:03

You been sending us excellent tatters. Use

1:06:06

email them to as a gap as

1:06:08

it's like.com We really appreciate so fun

1:06:10

reading them every week. Something you're chatting

1:06:13

about your cocktail party and our listeners

1:06:15

out of this week comes from Michael

1:06:17

Star in New York City so I

1:06:20

political gabfest. We saw Patrick Pages show

1:06:22

All the Devils are Here, a wonderful

1:06:24

performance that gathers many of Shakespeare's greatest

1:06:27

bad guys. Needless to say, Richard the

1:06:29

Third is all inspiring and accepting himself

1:06:31

as a villain was prompted. Me to

1:06:34

read his biography. Guess what? It's

1:06:36

all tutor propaganda. Richard the Third

1:06:38

was shriveled in mind or body

1:06:40

nor personal capacity. He was the

1:06:42

greatest military leader of his day.

1:06:44

Solid support to his brother, King

1:06:46

Edward the fourth. He was far

1:06:48

from England's worst king ever. He

1:06:50

was a loving and loyal husband.

1:06:52

As for murdering his nephews, the

1:06:54

evidence is so murky as to

1:06:56

suggest a very probable alternate perpetrator.

1:06:59

This biography was written before the

1:07:01

discovery of Richard the Thirds body

1:07:03

and twenty. Thirteen, which revealed that he

1:07:05

did have scoliosis, in spite of which

1:07:07

he wrote to his death on horseback

1:07:09

wielding his battle axe to great effect.

1:07:12

Never has a biography so changed my

1:07:14

view of it's subject. The Machine be

1:07:16

Will. Have

1:07:24

that much effort at a big

1:07:27

emphasis produce person or other researchers

1:07:29

Jewish you can the music of

1:07:31

I They Might Be Giants and

1:07:33

Richmond Podcast Operations Center Director of

1:07:35

Economic Emery Audio slate. V P.

1:07:38

M. Hello!

1:07:56

How are you. Maybe

1:08:00

it's just a pain, a lot of attention to it. I don't know. The

1:08:02

Supreme Court is very busy week in addition to, considering

1:08:05

Amtala, in addition to hearing the Trump

1:08:08

immunity case, they heard an argument about

1:08:10

ordinances passed by the city of

1:08:13

Grants Pass in Oregon to

1:08:15

effectively criminalize homelessness. The Grants Pass, which

1:08:17

is a city of about 40,000, had

1:08:21

several hundred homeless residents. And

1:08:23

the town made it a

1:08:25

crime to sleep outside with a blanket,

1:08:27

among other things, which anybody

1:08:29

who is homeless is going to do in

1:08:32

the course of being homeless. It's very hard

1:08:34

to not break the law

1:08:36

of Grants Pass while you're

1:08:38

homeless in that town.

1:08:42

So the Ninth Circuit had ruled that this

1:08:45

ban violated Eighth Amendment protections against

1:08:47

cruel and unusual punishment, and

1:08:51

looks back to a ruling, a

1:08:53

Supreme Court ruling in Robinson

1:08:55

back in the 60s, where the Supreme

1:08:58

Court said, you can only criminalize conduct,

1:09:00

you can't criminalize status, and that effectively

1:09:03

Grants Pass by making it impossible to be

1:09:05

a homeless person was criminalizing the status of

1:09:07

being homeless. That when a person has no

1:09:10

choice but to sleep outside in a blanket,

1:09:13

you are criminalizing their status

1:09:16

as a homeless person, rather than the conduct of the

1:09:18

homeless person. Emily's

1:09:21

going to explain this more clearly in one second. It

1:09:23

is not an easy case, Emily. This

1:09:27

is a pretty gnarly case, because you can really

1:09:29

see the balance that

1:09:33

cities are trying to meet. Like cities do

1:09:35

have an obligation to control public space and

1:09:37

make public space available, accessible,

1:09:40

safe for all citizens. And

1:09:43

yet they also have this problem with people who

1:09:45

do not have homes. There are

1:09:47

no easy ways to regulate it. Yeah,

1:09:50

and there are different ways to

1:09:52

think about why this is so tricky.

1:09:54

One question is whether the Eighth Amendment

1:09:56

and courts and this idea of cruel

1:09:59

and ugly. The unusual Punishment about

1:10:01

the status of homelessness that's the

1:10:03

I'm advocates on I say the

1:10:05

case that their stance is this

1:10:07

the best way to try to

1:10:09

address this problem? Oh, this is

1:10:11

okay. so major argument that it's

1:10:13

not and it's not. That those just

1:10:15

a snippet from our Slade. Plus conversation.

1:10:18

If you want to hear the whole

1:10:20

conversation, go to sleep.com Plus.plus Plus to

1:10:22

become a member today. It

1:10:26

may sound dumb. seen

1:10:29

even monotonous, That

1:10:31

this is with miracle sound like. This

1:10:34

is the sound of a child surgery be

1:10:36

performed by a robot. A

1:10:39

personalized. Currently to miraculous saying.

1:10:45

Like innovative procedures. With less

1:10:47

pain and pastor a temporary. Children's.

1:10:50

Hospital Colorado. Here. It's.

1:10:52

Different. I'm

1:10:55

dial is linked to an i'm host

1:10:57

of amateurs sleep I guess the Law

1:11:00

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