0:00

It's a new year, but it's the same

0:02

old, no law, just vibe Supreme Court. I'm

0:04

Alyssa Murray. I'm Leah Litman. I'm Kate Shaw. And

0:07

we are the hosts of the Strict Scrutiny podcast

0:09

on Crooked Media, who also happen to be constitutional

0:11

law professors in our free time. Join us each

0:13

week as we unpack what's on the docket for

0:15

the Supreme Court term and break down the latest

0:18

headlines while still managing a laugh or two. So

0:20

whether you're a lawyer, a law student, or just

0:22

trying to make sense of what these cases mean,

0:25

Strict Scrutiny has got you covered. New episodes out

0:27

every Monday wherever you get your podcasts. And for

0:29

some bad decisions. Welcome

0:38

to Talking Feds, a roundtable that

0:40

brings together prominent former federal

0:43

officials and special guests for a

0:45

dynamic discussion of the most important

0:47

political and legal topics of the

0:49

day. I'm Harry Litman. Before

0:52

we jump into this week's episode, I

0:54

just want to take a second to

0:56

plug a really exciting event we have

0:59

coming to kick off a first of

1:01

its kind series in the San Diego

1:03

area. We are launching a

1:05

lecture series, Talking San

1:08

Diego, that will feature live

1:10

conversations with some of the most prominent

1:12

figures in the country. We

1:14

plan in coming years to

1:16

bring to Southern California a

1:18

great set of the most

1:20

interesting political figures, authors of

1:23

important new books, public intellectuals,

1:25

and out of the box thinkers

1:27

and performers. And I

1:29

feel so honored to have as our

1:31

first guest for Talking San Diego, a

1:34

friend of the pod, constitutional law

1:36

professor, a prominent congressman,

1:39

and most notably, a tireless

1:42

warrior for constitutionalism and the

1:44

rule of law, Representative

1:47

Jamie Raskin. Representative

1:50

Raskin will be joining me in

1:52

conversation at UCSD's new

1:54

downtown building at Park and

1:56

Market on Monday, March 18th

1:58

at 8. two o'clock.

2:01

If you or someone you know

2:03

in the region would be interested

2:06

in purchasing a ticket which are

2:08

going fast or want to learn

2:10

more about the upcoming events for

2:13

Talking San Diego please visit talkingsandiego.net

2:15

or click the link in the

2:18

description of this episode. That's

2:21

talkingsandiego.net. Alright,

2:24

on with this week's episode. It

2:27

was a tough week for the cause

2:29

of accountability not because any court

2:31

held for Trump on any question

2:33

of significance but because events conspired

2:36

to depress the odds that Trump

2:38

will face justice in the form

2:41

of a jury trial for his

2:43

wicked conduct as president and after.

2:46

Most importantly the Supreme Court after

2:48

13 days of deliberation

2:50

opted to hear Trump's immunity

2:53

appeal. The court said

2:55

a fast but hardly blazing timeline

2:57

that means it will retain the

2:59

case and the stay in Judge

3:02

Chutkin's court will remain in place

3:04

until at least the end of

3:06

May. That in turn translates

3:08

to a trial around a Labor Day

3:11

at the earliest and any

3:13

of several contingencies could knock

3:15

it back further to after

3:18

the election as Donald Trump

3:20

dearly hoped. Other complications in

3:22

Fulton County and Mar-a-Lago pushed

3:25

those cases back leaving

3:27

the New York DA case scheduled

3:29

to begin in three weeks as

3:31

the likely main and sole event.

3:34

That trial is the subject of

3:36

sharp differences in perception as to

3:38

whether it's a tacky sex case

3:40

or a serious fraud scheme to

3:43

keep damaging information from voters. And

3:46

Mitch McConnell who danced with the

3:48

devil during his tenure as Republican

3:50

leader in the Senate announced he

3:52

was stepping down from that position

3:55

though retaining his seat. For

3:57

many people his legacy will be sheer

3:59

honor. Machiavellian power mongering

4:02

and indifference to the erosion

4:05

of Senate traditions of bipartisanship

4:07

and collegiality. To

4:09

assess the dwindling prospects of a

4:11

trial in Washington, D.C., Fulton

4:14

County, or Mar-a-Lago, and to

4:16

provide a first draft of

4:18

the legacy of one Mitch

4:20

McConnell as Republican leader in

4:22

the Senate, we have a

4:24

fantastic crew of three talking-fed

4:27

stalwarts, really great friends

4:29

all to the podcast. And

4:32

they are Norm Eisen,

4:34

a senior fellow in governance studies

4:36

at the Brookings Institute, a legal

4:38

analyst for CNN, and the author

4:40

of five books and

4:42

counting. Hello, Uncle Norm. Hello,

4:44

Uncle Harry. You can tell everybody

4:46

about the sixth book. It will

4:48

be coming out in the week

4:50

ahead. This is the one on

4:53

the Albin Bragg trial, right? Yeah.

4:55

Yeah. And that's going to be important. And

4:58

we're going to have a special episode that's going

5:00

to be a real nuts and bolts trial lawyer's

5:02

episode about how that's going to play out and

5:05

featuring the Norm Eisen trial

5:07

notebook. But that's for

5:09

later. Uncle Norm Ornstein,

5:12

an emeritus scholar at the

5:14

American Enterprise Institute, a contributing

5:16

editor for The Atlantic, a

5:19

very prolific author and co-host

5:21

of the podcast Words Matter

5:23

with Kavita Patel. Thank

5:25

you, Harry. And I do have to say that

5:27

I've already bid in for an autographed copy of

5:29

Norm's new book, and it was only $130,000. Very

5:31

good. And, and Jen Rubin, an opinion columnist for

5:34

The Washington

5:39

Post, a best-selling author and a law

5:41

school classmate. Thanks as always for joining,

5:44

Jen. It's always funny. Wait a

5:46

minute. You didn't know this? Jen

5:48

Rubin was your local classmate. What

5:50

else? And what other little detail

5:52

should we add? Just like Norm is

5:54

one of the top hundred thinkers of

5:56

all time. And Jen Rubin is

5:58

first. in the damn class

6:01

so you know I wasn't. There

6:04

you have it. So but let's jump

6:06

in. Man, a lot's happening in the

6:08

different areas. We'll start with the

6:11

immunity case and the Supreme Court's order

6:13

issued yesterday. So after 13 days of deliberations,

6:16

the court opted to

6:18

treat Trump's emergency motion

6:21

as a petition for cert, proceeded

6:24

to grant it, and set oral argument

6:26

for the week of April 22nd. All

6:30

right, so let's just start with the

6:32

all-important question on everyone's mind of timing.

6:35

Add what? A month minimum for

6:37

the court to write the opinions,

6:39

probably more than one? That would

6:42

be pretty quick. So we're talking

6:44

about a best-case scenario that the

6:46

mandate returns to Chutkin late May,

6:48

say early June. I think that's

6:51

where most people are. Where does

6:53

that leave the prospect for a

6:55

trial in 2024? Norm,

6:58

Uncle Norm Eisen wrote, there's still

7:00

a chance the insurrection

7:02

cases determine before if they

7:04

act with haste. Explain

7:06

your view why the prospects are

7:08

still alive and then we'll get everyone

7:11

else's thoughts. The Just

7:13

Security website posted an

7:15

assessment, a timeline of

7:17

all the different possibilities.

7:21

And the conventional wisdom

7:23

is too severe, in

7:26

my view, on the

7:29

prospect that a trial has

7:31

become impossible. Instead,

7:34

if the Supreme Court

7:36

resolves the question presented

7:39

in a way that

7:41

rejects absolute immunity, which they must

7:43

do, but doesn't leave fact-finding

7:45

for the court. If they say, well,

7:47

talk about the question presented. There

7:50

is a key reference in there,

7:52

the key word, allegedly. Which

7:55

allegations are they talking about? Jen

7:57

and I are on one side.

8:00

Jack Goldsmith is on the other side which

8:02

surely means Jen and I are right. If

8:05

allegedly means if it's a reference

8:07

to the allegations in the indictment

8:10

and the Supreme Court is going

8:12

to make a ruling based on what

8:14

is in the indictment, then

8:16

we certainly can get a trial

8:18

started at some point August September.

8:20

If there's a remand for an

8:23

evidentiary hearing, forget about it. And

8:25

those are the two gating questions

8:27

for your question. And we'll

8:30

go back to the question presented

8:32

and I actually think the different

8:34

camps here have a same kind

8:36

of timing in mind. So remote

8:40

or dead in the water or real

8:42

possibility, what are we going to see

8:44

a trial in 2024 Norm and Jen?

8:47

I'm still a little more pessimistic

8:49

although I've listened carefully to what

8:52

Norm and Jen and others have

8:54

said. The reason that I'm pessimistic

8:56

is I don't trust John

8:58

Roberts to keep a firm hand on

9:00

this and what I

9:02

fear is that Clarence Thomas who

9:05

I am sure being consistently corrupt

9:07

will not recuse himself from this case

9:10

and I fear that he and Alito

9:13

will work to drag this out as

9:15

long as they possibly can and that

9:18

Roberts won't intervene. So

9:20

that's my problem with

9:22

this. If this were done in

9:24

a pristine basis going by the

9:27

facts, going by the language that

9:29

we've been talking about, yeah

9:31

there'd be a chance but I think

9:33

it's gotten slimmer when you think about

9:36

the Roberts Court. Well if

9:38

you consider all of the off-ramps the

9:40

court didn't take, I think it tells

9:42

you why we're where we are. First

9:45

of all the court could have

9:47

denied CERC and denied the state.

9:50

There was a perfectly sound Absolutely

9:53

laudable agreement by the DC Circuit

9:55

and that you can't have absolute

9:58

immunity, of course you can. Yeah

10:00

and the famous seal six

10:02

example the to seem to

10:04

accept the boom. Yeah, thats what

10:06

he was. matthews immunity from. So.

10:09

They could have to nicer set up

10:11

like they could have grass insert. And

10:14

at a summary from it's. Third,

10:17

They could have moved with the same

10:19

alacrity that the one of the court

10:21

did have. An thanks to Norm Eisen

10:24

Just Security I looked it up and

10:26

they only took about a week here

10:28

they took two weeks. Next they have

10:31

a trial they to our Ai hearing

10:33

get rather on April twenty second. If.

10:36

You're playing by the Watergate Wolves

10:38

within a couple weeks you can

10:40

have an opinion but this term

10:42

ends usually be end of June

10:45

sometimes the beginning of April ninth.

10:47

that's where they could end up.

10:49

They are to and as we

10:51

said they might say listen on

10:54

the all allegations of the complaint

10:56

which are remember him trying to

10:58

prevent the. Transfer of power

11:01

from his presidency. Of

11:03

course there's not immunity. Both work.

11:06

Or. We could have a model

11:08

that mixed opinions and one or

11:10

more of the justices setting up kind

11:12

of fact based question and just a

11:14

flesh out what's. Normal eyes

11:17

and said the issue about.

11:20

The. Alleged conduct. What does that

11:22

mean? It says the alleged contact

11:24

of official acts. Certainly.

11:28

Be complaint. Doesn't alleged their

11:30

official act in search of the

11:32

allegations of the to by Jack

11:35

Smith. It is not

11:37

says. And official

11:40

So they're taking that as the

11:42

standard and accepting at face value

11:44

that that is the alleged that

11:46

said sort of like the standard

11:48

for a motion to dismiss you

11:51

accept the allegations is given but

11:53

as the allegations of the defense

11:55

side of the allegations of the

11:57

prosecutors. so the like which is.

12:00

Score only it leads to

12:02

their suspicions and probably be.

12:05

Been. Than or I am. I think most

12:07

of the night trying to figure out what

12:09

they were trying to say. What does this

12:11

mean it and doesn't make a difference And

12:13

the ultimate answer is we don't know who

12:16

did a fine now and we're going to

12:18

tell lot from the or argument. But I

12:20

will say this I do not think even

12:22

on the supreme court. There. Are

12:24

five votes. To. Issue.

12:27

A quarter of that says anything like

12:30

what Trump is looking for, which is

12:32

a free pass of. Actions

12:34

not central to the presidency

12:36

are not denominated Powers in

12:38

article to and concerned his

12:41

own reelection. I cannot believe

12:43

that there are five justices

12:45

for that. Go. Had

12:47

no I just wanna make one

12:49

more point nor me a normal

12:51

know the i thought they were

12:53

known as the norm the elder

12:55

and normally younger or are rock

12:57

band. The. As a goal norms.

13:00

Of. I have definitely the elder. I

13:03

could imagine a ruling, even one

13:05

that denies absolute immunity, but that's

13:07

dragged out long enough. That.

13:09

It doesn't affect the election.

13:12

Trump wins and in effect

13:14

he's given absolute immunity for

13:16

those acts. The. Oddity

13:18

and somewhat convoluted nature of the

13:21

question present in the. Supreme.

13:23

Court. does that say Very carefully

13:25

wordsmith the questions present that they

13:28

was. It's not that one of

13:30

their party's presented at the second

13:32

point to gents voice: fast blood,

13:34

not us, we mix in or

13:37

bush rigour. Fast. Pretty fast for

13:39

three weeks. now. For Trump to

13:41

fall his brief, we've seen way

13:44

faster bullets zero in on the

13:46

question, present an acid norm Yoda.

13:48

great piece. Normally younger about what.

13:51

Zeroing in on three different. Parts

13:53

of the quests ingenue at a whole

13:55

article on us. I want a proper

13:57

one of norms free which is to

13:59

what. That. The. Court

14:01

says weather and to what extent.

14:04

To. What extent frightens me alive Because

14:06

I think it suggests something like

14:08

what Jack Goldsmith is talking about

14:10

in other words, some members of

14:13

the court and eventually moving over

14:15

thirteen days to a five member

14:17

saying we don't want to say

14:19

never, ever, ever the way the

14:21

Dc circuit the Goldsmith as put

14:23

it in terms of core functions

14:25

or whatever. If they say anything

14:28

like that, I totally agree with

14:30

Jan. there's no scenario that he

14:32

would prevails on the merits. But

14:34

that's a scenario that requires I

14:36

think a remained not necessarily Norm

14:38

the younger for an evidentiary hearing.

14:41

I think she could just decide

14:43

more or less on I as

14:45

a matter of law. There's no

14:47

argument that what he did was.

14:50

Fit within the standard. but then

14:52

I think maybe we have another

14:54

quick round up and down the

14:56

courts and we are in a

14:58

place with no margin for error.

15:00

Any thoughts anyone has about the

15:03

specific, an odd language of the

15:05

question presented. So. Ah

15:07

come in first on the

15:09

to what extent. You

15:11

can read it two ways. You.

15:14

Can read it. As. Saying

15:16

if there's a Cecile

15:18

next to any extent

15:20

commingled. In the Allegations

15:22

Again, I think it's the

15:24

allegations in the complaint. To

15:27

read, you'd have to rewrite

15:29

the question presented. To get

15:31

to the other view. With. Maybe it's

15:33

just com the drafting by the course. Well.

15:35

Are drafting by committee? Five people had

15:38

to go for that question. Yeah, well,

15:40

that's part of the negotiation. about time

15:42

and. Content. clearly as

15:45

what took over two weeks. So.

15:48

You can read it as same a

15:50

hint of his any extent enough or

15:52

not. we just went through this in

15:54

the Mark Meadows litigation up to and

15:57

including the Eleventh Circuit. And.

15:59

And ah, Bonk 11th Circuit

16:01

said no. To what

16:03

extent? To a slight

16:06

extent, to a partial extent, no,

16:08

there needs to be a causal

16:10

connection. You need to

16:12

have a predominant officialness. Trump

16:15

fails on that standard. He

16:17

certainly fails on the allegations.

16:20

I'm told I yell when I'm thinking, you

16:22

know, when I have to think, it just,

16:24

my brain goes into gear. I don't perceive

16:27

that at all. You have a, you're very

16:29

Soto Voche. But

16:31

I do hear where you're going. But

16:33

what is the holding there that doesn't

16:35

require a remand? It's a holding on,

16:37

we are going to make a determination.

16:40

This is a determination that is made

16:43

on the face of the indictment. And

16:45

looking at this indictment, the extent

16:48

to which there is official act does

16:51

not predominate. So

16:54

case over, we are ruling that

16:56

based on the indictment, there's no

16:58

immunity. Harry, there's no

17:01

role for a president in

17:03

vote counting in Georgia. It's

17:06

constitutionally pre-termited.

17:09

There's another way that to what

17:11

extent can be read. Actually, there's

17:13

two others that I can think

17:15

of. One is

17:17

that we get into

17:19

a qualified immunity balancing

17:22

test in which we're

17:25

weighing the severity

17:27

of, I guess the

17:29

charges in this case, even though let's

17:31

see Nixon help it in criminal cases,

17:33

the balance does tip that way. But

17:35

I guess you'd have to repeat that

17:37

here. So you're saying there is a

17:39

qualified immunity, but not an absolute immunity.

17:41

That's the, to what extent. And the

17:43

other is that we're talking about our

17:45

perimeters again. And that is

17:48

that, well, the laws, he's supposed to

17:50

make sure the justice department accurately, you

17:52

know, enforces a law, blah, blah, blah.

17:54

So that's good enough. So there are

17:57

a bunch of ways in which

17:59

you. And either

18:02

the Supreme Court was trying not to

18:04

say anything about anything, or this

18:06

is just evidence that the hands

18:08

of those who want to muck

18:10

this up and make it more

18:12

complicated than it needs to be

18:15

are prevailing because they came up with this

18:17

cockamamie question that no one can really even

18:19

figure out what they want. Okay,

18:22

and this is getting rather tall-mudded, but I

18:24

want to go to the bottom

18:26

line here. I think Norm, the younger,

18:28

even as you put it, it's

18:31

a remand. Are they really going to

18:33

hold? Maybe they're going to say we

18:35

have this record. We have the allegations

18:37

and not just state what the standard

18:39

is for immunity, but actually determine on

18:42

that standard, which should be an easy

18:44

determination. I grant you, Trump

18:46

loses is not in their normal

18:48

job description. So even if they

18:50

put it the way you put

18:52

it and something about predominate, etc.,

18:54

I don't see that Section 4

18:56

that then says applying it to

18:59

the petitioner. We find, I mean,

19:01

it's just the normal thing then

19:03

to remand. And of course, as

19:05

Dan says, we're shooting in the

19:07

dark. And that's why I'm not

19:09

100%. Right. Okay.

19:11

So wonderful, Ryan Goodman, my editor

19:13

on this Just Security piece. And

19:16

he is wonderful. Yeah, he is

19:18

wonderful. I wrote Likely,

19:20

and he's like, Well, your reasoning

19:22

is it's more than merely Likely.

19:24

I'm like, No, I'm not going

19:26

there. Likely is as far

19:29

as because there's so many uncertainties. And

19:32

all of this tea leaf

19:35

question presented reading has

19:38

to be taken with a grain

19:40

of salt. We're figuring it

19:42

out together in real time. Okay.

19:44

So part of that is putting

19:46

your ideas, you have a reaction,

19:48

you have a gut instinct. Of

19:51

course, Jack is a lawfare colleague,

19:53

who I often debate with. But

19:55

he also has makes a very

19:58

powerful contribution to the public. public discourse.

20:01

And you know, we're just examining all parts

20:03

of the question and we'll see if we're

20:05

right. And if I'm

20:08

not right, I'm always quick to say

20:10

so once every 10 years or

20:13

so. We just hope to

20:15

illuminate it for others. But let me

20:17

say, I think everyone is basically of

20:19

the same view about timing. Everyone is

20:22

basically of the same view about next

20:24

to no margin of error. And

20:26

that I think, however we

20:28

parse the language, that's an

20:31

important consensus to keep in

20:33

mind. Let's say we're all

20:35

correct and nothing more happens

20:38

and a trial would otherwise start in

20:40

September. I know Chutkin has

20:42

said, I'm not going to think

20:44

about the election, etc. If Chutkin

20:46

says we're going ahead, Trump will

20:48

clearly say we are in the home

20:50

stretch here. What are you talking

20:53

about? Try to do a mandamus. Is

20:55

there another thing we have to put into the hopper

20:57

of some higher court

20:59

will freeze things saying we're

21:01

just too much in the thick of the election?

21:04

I think it will start, but that

21:06

process of seeking a mandamus and all

21:08

the other horsing around will be another

21:10

couple of weeks. So we can't

21:12

ignore that. I just want to make

21:15

one additional point. We've been focusing

21:17

on the Supreme Court and slow walking

21:19

it. I want to

21:21

underscore again and again, we

21:24

would not be in this

21:26

fix. If Maricold had gotten

21:28

on his horse and said,

21:30

you know what, I don't need to

21:32

work my way from the bottom up.

21:35

We have the crime. It's been on

21:37

national television. We know what this guy

21:39

was doing. I'm going to send my

21:41

investigators in through the White House, start

21:43

sending out subpoenas, question these guys and

21:46

indict when I have evidence that the

21:48

President of the United States committed

21:50

a crime. I don't need to tie

21:52

him to the proud voice. If I

21:54

ever find that, I'm going for the

21:56

guy. And had he done that,

21:59

we would have been This is done by

22:01

now. And I gotta say, the comparison

22:03

between him and Tish James,

22:05

who is an aggressive prosecutor

22:07

who does not listen to

22:09

the harrassing from the

22:11

right wing, is like night and

22:14

day. And I'll just note my

22:16

standing dissent here. Norm, you wanted

22:18

to pile on your fellow Midwesterner,

22:20

Merrick Garland, and an old friend

22:22

as well. The great and

22:24

tragic irony here, and let's hope it

22:26

doesn't come to it, is that in

22:29

bending over not just backwards, but

22:31

doubly, triply, quadruply backwards,

22:34

and that includes not prosecuting any of

22:36

the members of Congress who were neck

22:38

deep in insurrection, so

22:40

far as we know, nothing

22:42

against Clarence Thomas who lied

22:45

over and over on his disclosure

22:47

forms, which is a crime that

22:49

has been prosecuted in other places,

22:51

to show that this was a

22:53

different Justice Department than the Bill

22:56

Barr Justice Department, may lead us

22:58

to a Justice Department that makes

23:00

Bill Barr's look pristine by comparison.

23:02

And that would be a legacy

23:05

that no one should wish to

23:07

happen. Standing objection

23:09

renewed. Last question is,

23:12

what impact does this whole thing have on

23:14

the one trial that is

23:16

going forward, Alvin Bragg? It

23:19

pushes it right from center. It's

23:21

gonna be perhaps most likely, more

23:24

than likely than not, the

23:26

only trial that begins, and

23:28

certainly the only trial that

23:30

ends before the election. And

23:33

I think people who pooed

23:36

it, have cast aspersions on

23:38

Alvin Bragg for even bringing

23:40

the case. I think

23:42

it's an important case. It does go to

23:44

deceiving the electorate. This was the electorate in

23:46

2016. He

23:49

committed, if the allegations hold

23:52

up, crimes including the business

23:54

falsification. And He did so

23:57

in furtherance of other crimes.

24:00

Grimes on State and

24:02

Federal Election Finance. For

24:04

hims this is serious. Stuff it

24:06

has been prosecuted, It comes

24:08

with potential jail time and

24:11

we're going to see. How

24:13

Donald Trump treats voters, treats

24:15

the electorate and trees. The

24:18

law which is with complete conduct.

24:20

And that we will see someone without

24:23

remorse and it'll be very interested to

24:25

see if he gets on the stand

24:27

and defense his behavior. A

24:29

twenty sixteen case. Harry

24:32

was the gateway drug.

24:36

To. The Twenty Twenty

24:38

Misconduct. At. Least as you

24:40

know I feel and I've been saying

24:42

there for. A very long

24:44

time. And. I think people are

24:47

starting to wake up to this and

24:49

I think it's gonna be part of

24:51

the drama. Of the unfolding the

24:54

the pre trial that we're now in. The.

24:56

Trial itself. And.

24:58

The Verdict: I believe the

25:01

criminal sentencing and likely jail

25:03

sentence that will unfold. I.

25:06

Think it's gonna be this drama of

25:08

is it of. Glaciers.

25:11

Minor. As money

25:13

matter or is it actually a

25:16

very profound question of corrupting an

25:18

election. Extremely close election.

25:20

another sex scandal on top

25:22

of Access Hollywood. the last

25:25

eight. That. Might have.

25:27

Changed the outcome. Of

25:30

an election decided by eighty thousand

25:32

votes will never now is three

25:34

states. And. Then I

25:36

cover up of that election corruption. Thousands.

25:39

Of people are prosecuted don't believe

25:41

when they say oh document. Was.

25:45

A vacation know? That.

25:47

Is not a rare specimen crime that is.

25:49

The bread and butter is like airy when

25:51

you were a federal prosecutors like mail and

25:53

wire fraud. That's. The Bread and

25:55

butter. Ten thousand cases alma. Across

25:58

New York since twenty fifth. And

26:01

hundreds of people are prosecuted, investigated,

26:05

fined for making

26:07

illicit contributions to campaigns, doing things

26:10

with the intent to benefit a

26:12

campaign. Okay. That's what Donald Trump

26:14

was doing in these payments. Because

26:16

the evidence is when the campaign

26:18

ended, he asked Michael Cohen, do

26:20

I still have to pay? So

26:23

I think what people are going

26:25

to realize is this is a

26:27

very important election-related case. It's corruption

26:30

of an election, it's election misconduct.

26:32

In a way, it's the election

26:34

tampering of 2020 precursor. And

26:39

it's 34 felonies. Each

26:41

felony carries a year and a

26:43

third to four years. I

26:46

don't think the judge will stack

26:48

them, but I do think that

26:50

he will face a significant risk

26:52

of jail time. And

26:54

that is the last chapter

26:56

in my forthcoming book, the

26:59

working title, which is going to press as

27:01

we speak. I have to finalize the title.

27:03

My working title has been, it's

27:05

not just a hush money case,

27:08

because I constantly say that to people.

27:10

It will be a complete trial notebook,

27:12

like the trial notebooks that I prepare

27:15

when I try a case, they have

27:17

a big notebook that I carry with

27:19

me everywhere that has the most essential

27:21

documents. That will be a trial

27:23

notebook for all of you. And

27:26

I think that that is going to

27:28

be the drama of

27:30

this trial. I just want to

27:32

say trenchant analysis at the same

27:34

time as he's publishing his

27:37

newest book, just another Friday for

27:39

Norm. This

27:42

by the way, is the danger of

27:44

Trump getting on the stand to testify.

27:46

Because if he gets on the stand

27:49

and lies, this goes to sentencing. But

27:51

if, if he goes on the stand, he

27:53

lies. Exactly. So if he

27:55

does that, he is walking himself right

27:58

into jail. So if. You

28:00

are eight same defendant with a sane

28:02

council. You do not get on the

28:04

stand. Trump is not the he. He

28:06

has an excellent lawyer in this case.

28:08

We shouldn't be fooled by the way

28:10

that the same bozos who will drag

28:12

him in the Rebel cases are gonna

28:14

show up here. He is gonna be

28:17

imploring his client not to get on

28:19

the fan, but ultimately the client, the

28:21

sites and. By the way, a tough judge

28:23

who will do just that though I can't

28:25

quite see putting him in pending appeal, Know

28:27

he's not gonna be put in. He's gonna

28:29

be centered. No way. he's put his exactly.

28:32

What is pending appeal? I agree

28:34

with that, right? Sorry Norm, Be

28:36

out there for my rudeness. Sorry

28:38

that's barging hands. Ah up. So

28:40

I had started referred to this

28:43

as the election related fraud case,

28:45

but I think Norms given us

28:47

a better title. This is the

28:49

election tampering case. We. Need

28:51

to get it away. From if it's

28:54

about Hush Buddy, you're going to have

28:56

a lot of people who think we're

28:58

Yeah, you know he did something really

29:00

bad. he slept with a porn star,

29:02

but he it was embarrassing. It's thought

29:05

about embarrassment, it's about tampering with an

29:07

election. The second point is when Bragg

29:09

brought this case. Very.

29:11

Very widely there was criticism of

29:13

him. This. Is a stupid

29:15

case? This is a week case.

29:18

Why is he hoarding in when

29:20

we have these powerful cases on

29:22

January Six, in Washington on in

29:24

Georgia on the morrow, Lago. And

29:27

Norm Eisen. Was. Among those

29:29

who said wrong. This. Is

29:32

really serious stuff. And.

29:34

What we're finding out now is

29:37

thank God for Alvin Bragg. Because.

29:39

This is the one sure thing

29:41

we have and the others are

29:44

far from being a sure thing.

29:46

So. i agree with everything you guys have

29:48

santa ana the way norm puts his

29:50

is it really is gonna be this

29:52

sort of struggle you can already see

29:55

bragg out there trying to explain why

29:57

it's a righteous case and i agree

29:59

with him and And I just

30:01

think it's really useful if you can

30:03

to bring it back to exactly where

30:05

we were It seems like eons ago,

30:07

but access Hollywood was like the first

30:10

of what has it been 15 times

30:12

where we said Oh now

30:14

he's done But this is a guy who you know

30:17

all through the campaign was the underdog

30:19

Decidedly and he had done this thing

30:22

and he was hanging at Best Buy

30:24

a thread and obviously when this came

30:26

out the real Risk is

30:29

that it would be the coup

30:31

de gras and the end of

30:33

the his electoral prospects Like he

30:35

cared so much about Melania back

30:37

home with their newborn and that's

30:39

to recreate and have people remember

30:41

that time and Understand

30:43

the panic in the Trump world

30:46

wasn't about you know another affair being

30:48

revealed Or about it was specifically that

30:50

they were hanging by a thread and

30:52

this could have cut the thread Okay,

30:55

let's just talk a little bit about whether

30:57

the whole brew

30:59

ha ha and mess in Fulton County

31:01

where it leaves that and whether

31:04

Eileen Cannon, you know who also had

31:06

a hearing today where it sure

31:09

looked like the July

31:11

or August move was just a

31:13

prelude to more moves whether

31:15

any of those actually is

31:18

in the running for a 2024

31:20

trial I Will

31:23

go on Fulton County. We

31:25

have spent the last few weeks now

31:28

down one rabbit hole

31:30

after another as

31:32

the judge allows the defense to

31:36

ruffle through if you excuse the

31:38

expression the bedroom sheets of Fawny

31:42

Willis and Someone with

31:44

whom she had a personal relationship to

31:46

no end The law

31:49

in Georgia is crystal

31:51

clear a Sexual relationship when

31:53

I'm talking about a sexual relationship

31:55

between the prosecutor and someone on

31:57

the defense side We're talking about

31:59

within the prosecutor's office

32:01

does not constitute a conflict,

32:04

that this is irrelevant. The

32:06

only issue that might constitute

32:08

a conflict would be a

32:10

financial one. And we could

32:13

have established that weeks ago that

32:15

there was done. That issue is

32:17

not factual in dispute. So

32:19

what have we been doing?

32:21

We have been going down

32:23

this road with witnesses talking

32:25

about when the affair started,

32:27

cell phone wrappers, all

32:30

of this, you know, has a

32:32

right, which is irrelevant and is

32:34

really harmful. And I have

32:36

to say, I do not think if

32:38

this was a white male prosecutor, we

32:40

would be here. I think this is

32:42

the kind of smear that Trump has

32:45

always run against women, against women of

32:47

color. It's entirely irrelevant. McAfee, who

32:49

I thought was pretty much, you know, a

32:52

square judge, down the middle kind of

32:54

guy on earlier rulings, let this whole

32:56

thing get out of hand. And so

32:58

we've been kind of spinning our wheels.

33:00

Now, I'll say two things. One,

33:03

I think it's back part because women and

33:05

women of color do not like this one

33:07

bit. And those are the people who vote.

33:09

And those are the people who go on

33:12

juries. Second point, even

33:14

if we get through all this, and

33:17

Norm, the younger is not going to like

33:19

this, this has been one of our friendly

33:21

debates. She made this a

33:23

RICO case, which is sprawling, which

33:25

is huge, which has nearly

33:27

20 defendants. She did not

33:29

go the Jack Smith route

33:32

of finding a narrow four

33:34

or five count complaints, indictments against

33:37

Trump, and maybe a few in

33:39

his inner circle. And as a

33:41

result, jury selection will take

33:44

months. A trial

33:46

may take years. So as much

33:48

as I would like to rely

33:50

on this case, because I think

33:53

it, number one, is foolproof from

33:55

any kind of federal pardon.

33:57

And number two, it really does get to

34:00

the heart of his constitutional offense, we're

34:02

not gonna get there. Though I

34:05

was gonna say age before immunity,

34:07

but I'll just barge ahead. Norm

34:10

Vialgia, this is a talking fed, pause

34:12

like no other. The

34:14

other weird thing that has happened is,

34:17

as my colleagues know, my computer Zoom

34:19

failed on my computer for

34:21

some reason. So I've been trying to do

34:23

this on my telephone, which falls over every

34:25

15 minutes or so with

34:27

a vertigo-like effect. Like

34:30

Hitchcock's vertigo. This is getting to

34:32

be a very strong subplot of

34:35

a day in the life of Norm's

34:37

eyes, and we'll see how much it

34:39

actually follows through. In fact, in fact,

34:42

here we go. Watch some moderator's prerogative

34:44

right now. Norm Ornstein, what's your response

34:46

to Jen Rubin, and we'll let Norm

34:48

cogitate on his a bit. Okay,

34:51

a couple of points. The first is, I

34:53

have always thought that electing judges

34:55

was a terrible, terrible part of

34:58

our system, and

35:00

it has many, many pernicious side effects.

35:03

And I think that's what's happened with

35:05

Judge McAfee here. That he's

35:08

up for reelection, and he decided, instead

35:10

of doing what he should have done,

35:13

which is exactly what Jen said, looked

35:15

at what the law is and it's crystal clear,

35:18

made it very clear early on that this was

35:20

all about whether there was any kind of a

35:23

money exchange that would have been corrupt, made

35:25

it very clear there wasn't, and moved on. He's

35:28

let this play out because he wants

35:30

to let every part of this electorate

35:32

know how fair and open he is,

35:35

and I think that has been a terrible mistake.

35:38

The second thing is that because of

35:40

this particular shit show that

35:43

what I think Fannie Willis was trying to

35:45

do and had started to do was

35:47

to have this large group and narrow it

35:49

down to a handful by getting

35:51

all the others to plead knowing that

35:53

they might face significant jail time, and

35:56

these are not people who could afford

35:58

to do that. And... she

36:00

began to get several of them to

36:02

go and we were working towards the

36:04

domino effect. This pushed it all aside

36:06

and I fear that combined with the

36:09

other things that are happening, a lot

36:11

of these defendants are going to gamble

36:13

now that Trump could win and

36:15

pardon them all. That

36:18

makes it more likely that what Jen said

36:20

that it's a trial that could go on

36:22

with jury selection and the rest of it

36:24

far longer than I think

36:26

Fonnie Willis had in mind. I

36:29

have a different perspective. I feel

36:31

that the judge is one of

36:33

the outstanding young jurists that I've

36:35

seen. He's got less than a

36:37

year on the bench. He's just

36:39

done, he's a former prosecutor. He

36:41

learned his lessons

36:43

well as a prosecutor and he's

36:45

just been outstanding. I

36:48

think that if he had deep six

36:50

this that the questions would have swirled

36:52

and we never could have gotten past

36:54

it. Now maybe it could have moved

36:56

a little more quickly, but

36:59

there is a theory of the

37:01

case that the defendants,

37:04

I mean she's not quite a

37:07

Lena Haber level, but Ashley Merchant

37:09

who is the lead counsel for

37:12

this has, she

37:14

clearly did not spend too

37:16

much time acquainting herself with

37:18

the rules of evidence before

37:20

embarking on her trial career.

37:23

So that was clumsy and bumbling,

37:26

but there is a theory of the

37:28

case here and the judge has taken

37:30

it seriously and he's not, I don't

37:32

think he's playing politics. He's

37:34

genuinely asking, look if

37:37

a prosecutor sets up a

37:39

secret bonus system for herself

37:42

and is perpetuating the case

37:45

in order to get luxury

37:47

vacations, is that a conflict

37:49

of interest? That's a real question. The

37:52

answer now we have all the evidence

37:54

is no and I

37:56

think Nathan Wade needs to signal

37:58

we can't. just get

38:01

past this. It's not just like calculus,

38:03

the law and the evidence. Yes, that's

38:05

clear. We need

38:08

to, you know, clear the air.

38:10

And so I think Nason Wade needs to

38:13

signal that he's ready to move on. He

38:15

has been the victim of racism. People didn't

38:17

think he was qualified. The guy has tried

38:19

75 major felony cases,

38:22

including capital cases. He's

38:24

won. He's beat his team that

38:26

he leads, has beat some of

38:29

the best lawyers in the country.

38:31

In this case, George Terwilliger, Don

38:33

McGahn, they're two of the greats

38:35

in DC. They're not my flavor

38:37

politically, but I respect them both.

38:39

I actually get along on a

38:42

personal level with Don quite well.

38:44

You know, he's been opposite me

38:46

my entire career on these campaign

38:48

finance issues. And then both of

38:50

us sort of, our careers blossom

38:52

beyond just political law.

38:55

So I think there's a real

38:58

thing there. I think that it

39:00

was a stupid, foolish, dumb, terrible

39:02

mistake to have this relationship. That

39:05

must be said. The case could still

39:08

be revived for 2024. I disagree with Auntie

39:14

Jen on that. But you know,

39:17

it's a lot of uncertainty. It's

39:19

like I used to do

39:22

financial litigation and I was involved

39:24

in prosecuting some of those civil

39:27

cases on behalf of the

39:29

state AGs against the subprime

39:32

financial crooks. And you

39:34

know, what they did was they would take

39:36

three shaky mortgages and package them up and

39:38

say that they were an A mortgage

39:41

because of the way the odds

39:44

of failure amortized across the mortgage

39:46

pool. Well, the same with

39:48

these, there's three cases beyond Alvin, all

39:50

of which have uncertain timetables. But I

39:52

think if you stack the odds, you

39:55

get one other case out of those

39:57

three. So I think it's more

39:59

likely than not. will have two cases remains

40:01

more likely than not two

40:04

cases. I'll bet you

40:06

a kosher hamburger with

40:09

kosher Parmesan. I think from your

40:11

days as ambassador. It's

40:18

now time to take a moment for our

40:20

sidebar feature, which explains some of the issues

40:23

that are prominent in the news. Today's

40:25

sidebar is about the national foundation

40:27

on the art and the humanities

40:29

act of 1965, the

40:33

act that established a national

40:35

body to promote progress and

40:37

scholarship in the humanities and

40:39

the arts. To explain this

40:41

topic, we welcome Julian

40:44

Schlossberg. Julian is

40:46

a veteran motion picture theater and

40:48

television producer. His production

40:50

credits range from the British

40:53

mystery, widow's peak starring Natasha

40:55

Richardson and Mia Farrow to

40:57

the Broadway musical bullets over

40:59

Broadway. He's been nominated

41:02

for two Oscars, two prime time

41:04

Emmys, and his plays have won

41:07

Tony's, Obie's, Drama Desks, and Outer

41:09

Critics Circle awards. So

41:11

I give you Julian Schlossberg on

41:13

the national foundation on the art

41:15

and humanities act of 1965. In

41:21

September, 1965, president

41:23

Lyndon Johnson signed the national

41:26

foundation on the arts and

41:28

humanities act into law. The

41:31

act was the culmination of several

41:33

years of organizing by elite education

41:36

groups, such as the American

41:38

council of learned societies. The

41:41

act established the national endowment for

41:44

the arts and the humanities foundation

41:46

foundation in turn, comprise

41:49

two independent sub agencies.

41:51

One, the national endowment

41:53

for the arts, NEA

41:55

focused on the arts. The

41:57

other, the national endowment for humanity.

42:00

NEH focused on the

42:02

humanities. Since

42:04

their founding, the agencies

42:07

have followed a directive to

42:09

quote, "... develop and promote

42:11

a broadly conceived national policy

42:13

of support for the humanities

42:15

and the arts in the

42:17

United States and for

42:19

institutions which preserve the cultural

42:21

heritage of the United States."

42:25

In 1996, the

42:27

Institute of Museum and Library

42:29

Sciences was established as

42:32

another sub-agency of the Foundation.

42:35

Over its existence, the NEA has

42:37

given away nearly $5 billion in grants.

42:42

The current operating budgets of the NEA

42:44

and NEH are $162 million and $207

42:46

million respectively. Among

42:53

the institution's signature achievements

42:55

are the NEA

42:57

Jazz Masters Fellowships, the

43:00

Library of America Special Collections

43:02

Series, the funding of

43:04

Ken Burns' masterwork documentary The

43:07

Civil War in 1990, the

43:10

Jefferson Lecture, and the National

43:12

Medal of Arts. Not

43:15

all lawmakers embrace the NEA

43:17

and NEH. Critics

43:20

sometimes oppose the content

43:22

of funded programs, especially works

43:24

of art they consider

43:26

decadent or offensive to

43:28

religious sensibilities, such as the

43:31

photographs of Robert Maplethorpe.

43:34

Others take aim at what they

43:36

perceive as a public subsidy for

43:38

elite patrons of the arts who

43:41

least need them. Over

43:44

the course of their

43:46

existence, the NEA and

43:48

NEH have dodged multiple

43:50

proposals to scrap them

43:52

or sharply reduce their

43:54

budget. These attempts include

43:57

a 1981 proposal by

44:00

the Ronald Reagan White House to

44:02

abolish NEA. Most

44:04

recently, former President Donald Trump

44:06

has repeatedly called for shutting

44:09

down these agencies. In

44:11

2020, his administration provided

44:13

the NEH with a

44:16

budget directed towards an

44:18

eventual shutdown. These

44:20

plans were reversed by the

44:22

Biden administration. Having

44:24

survived multiple challenges, the

44:26

agencies continue to provide

44:28

much-needed support for the

44:31

arts and humanities in

44:33

America. They continue to

44:35

be integral to our national

44:37

cultural landscape. As President

44:39

Johnson put it, art

44:42

is a nation's most precious

44:44

heritage, for it is

44:46

in our works of art that

44:48

we reveal ourselves and to others

44:50

the inner vision which guides us

44:53

as a nation. And where

44:55

there is no vision, the people

44:57

perish." End quote. For

45:00

Talking Feds, I'm Julian

45:02

Schlossberg. Thank

45:04

you, Julian Schlossberg. You

45:06

can listen to Julian on his two

45:09

podcasts, Movie Talk and

45:11

Tales from Hollywoodland, which

45:13

release weekly on Spotify and

45:16

Apple Podcasts. All right, it is

45:18

now time for a spirited debate

45:23

brought to you by our sponsor Total Wine and More. Each

45:27

episode, you'll be hearing an expert talk about the

45:31

pros and cons of a particular

45:33

issue in the world of wine,

45:35

spirits and beverages. Thank you, Harry.

45:38

Today's spirited debate comes with a bit of a twist

45:40

as we look to the very top of

45:42

the wine bottle. Cork or screwtop? At

45:45

face value, people think screwtop equals cheap wine,

45:48

which, as it turns out, isn't

45:50

exactly true. The reason for screwtop

45:52

is that it's not a good idea to

45:56

make a difference in the world of wine. And

45:59

that's why we're here today. tops is to ensure

46:01

the wine tastes as the winemaker

46:03

intended. Cork, which has been

46:05

used to seal wine bottles for over

46:07

a hundred years, is a proven way

46:10

to age wine effectively by allowing minute

46:12

amounts of air to come in contact

46:14

with the wine. This slowly

46:16

develops a softer texture and

46:18

enhances flavor. Now,

46:21

cork, traditional as it is, has

46:23

a downside called TCA, which causes

46:25

something called cork taint. Now,

46:28

cork taint, while affecting a very

46:30

small percentage of wines, can be

46:32

a big disappointment, causing a must-see

46:34

aroma similar to the smell of

46:36

wet cardboard and contaminating a great

46:38

bottle of wine. We turn

46:40

back again to screw caps, which are cork

46:42

taint proof of course, not to

46:45

mention much easier to open, especially

46:47

in a kitchen surrounded by witnesses.

46:50

How the aging process affects wines with a

46:52

screw cap is yet to be known as

46:54

wineries continue to test. Whether

46:56

it's a cork or screw top, at Total Wine

46:58

& More, our guides will help you find the

47:01

perfect wine to match your taste. After

47:03

all, it's not just about what's on top

47:05

of the bottle, it's what's inside that counts.

47:08

Thanks to our friends at Total Wine

47:10

& More for today's A Spirited

47:13

Debate. Okay, look,

47:15

I do want to have a little bit of time

47:17

for Mitch McConnell. I'll add my two cents

47:20

here, which is in accord with much

47:22

of what people said, but I really

47:24

agree with Jen at the end of

47:26

the day, because as you say Norm,

47:28

if these things happened, it's

47:30

a problem, but you had a

47:32

defendant bringing emotion and the whole

47:34

thing, he put the cart before

47:36

the horse and had all this

47:38

evidence without any kind of proper

47:40

that established any basis for it

47:42

and it would have been not

47:44

just safe, but I think absolutely,

47:46

you know, routine and impeccable to

47:48

say, Mr. Roman, let's see some

47:50

affidavits or some proof of

47:53

a possible problem and then we can go

47:55

forward rather than having this whole circus

47:57

and I had to date and maybe

48:00

in the future also been impressed with them. Alright

48:03

let's move on to a different

48:05

and maybe a larger stage

48:08

one that Norm Ornstein knows

48:10

better than almost anyone

48:12

in the country. I'd have to

48:15

say the announcement yesterday from Mitch

48:17

McConnell that he's gonna be leaving.

48:20

Our time is short so I

48:22

just want to give everybody a

48:24

chance to respond to say these

48:27

two questions or parts

48:29

of them and that is why

48:31

is he leaving and also does

48:33

it represent anything in particular by

48:35

way of a tired

48:37

resignation that Trump's in

48:39

charge and he ain't gonna be anymore

48:42

and he's been beat by

48:44

the man he could have convicted just

48:47

a few years ago. So Norm you get to

48:49

choose you want to be first or last because

48:51

you're all over this. I'll go first

48:53

so that maybe others may even want to respond.

48:56

I was talking with a Democratic senator

48:58

who was on the floor when McConnell

49:00

gave his speech saying

49:03

he's stepping down from the leadership but not from

49:05

the Senate and he shook

49:07

his hand afterward and said to me he

49:09

is really really frail and

49:12

we know that McConnell has had serious

49:14

health problems. He had polio as a

49:16

child he fell and had a concussion.

49:18

We saw these just cringe-worthy

49:20

horrible moments when he simply

49:23

couldn't speak. I think

49:25

health is a part of it. The energy required

49:27

to be a leader is greater than that of

49:29

just being a senator but

49:31

let's face it there's another element

49:34

here. Mitch McConnell among other things

49:36

is singularly responsible for Josh Hawley

49:38

getting elected to the Senate. Josh

49:40

Hawley said the sooner he leaves

49:43

the better. For Mitch McConnell

49:45

who created this Senate who recruited

49:47

a lot of the members who

49:49

coddled them this is a

49:51

group of people who've turned on him

49:53

because he is not MAGA enough and

49:56

it's ironic because nobody

49:58

is more responsible. for this

50:01

Supreme Court, for a lot

50:03

of the horrors that we're seeing out

50:06

there, then Mitch McConnell. He has carried

50:08

water for Donald Trump, but like so

50:10

many others, Trump's undercut him, turned against

50:12

him, and that's true of other senators.

50:15

But I can't leave without noting that if

50:18

we are looking at who's responsible

50:21

for the denigration of norms, for

50:24

the poisoning of our political system.

50:27

Newt Gingrich is number one in my book, but

50:29

Mitch McConnell follows closely behind. He

50:32

destroyed the comedy in the Senate,

50:35

destroyed the norms, and

50:37

they're going to be very, very difficult to

50:39

bring back. And his legacy

50:42

is going to be that, more

50:44

than anything else. And

50:46

it's a shameful one. And it's

50:48

too bad because I met him

50:50

when he was new to the

50:52

Senate. He was a good, traditional

50:54

institutionalist. He's still at least, fortunately,

50:56

tried to do the right thing

50:59

with Ukraine and Russia, but

51:01

he's turned in a direction that has taken

51:03

him completely to the dark side. And

51:06

Oybe, Ukraine and Russia, but all the king's

51:08

horses and all the king's men. Okay, Norm

51:10

the Younger. I'll go next.

51:12

While I don't have Norm's long

51:15

standing relationship, I

51:18

do know him. He was kind

51:20

to me in my quest for

51:22

an ambassadorship because it was, as

51:25

Norm Ornstein will recall, those Obama

51:27

years, he called it.

51:29

That was the beginning of the

51:32

asymmetrical dysfunction. And Norm and Tom Mann

51:34

were the first to see it, that

51:37

a monster had been let out of

51:39

the box. And it

51:41

was an asymmetrical one. And

51:43

I got caught up in that. I was

51:45

told by one senator, they really fought over

51:48

my nomination. I was told by one senator,

51:50

it's not personal. We just want to get

51:52

back to Obama. Because he

51:54

cares. Because he's your friend. And he

51:56

was very upset by it. I won't

51:58

go into the conversations. He was very

52:00

upset by the treatment because they had nothing to do

52:02

with me. So I got

52:04

to know McConnell a little bit then. And,

52:07

you know, Joe Lieberman was a great and

52:10

McCain, they were my two and Carey,

52:12

those are my three champions, all figures

52:14

of a Senate gone by. And

52:17

McConnell stood before the desk,

52:20

of course desk when the vote was happening.

52:22

And he parceled out the, I later joked

52:24

about it with him when I was on

52:26

the floor every day with him for the

52:28

impeachment. He stood there

52:30

and you could see on C-SPAN thumbs

52:32

up, thumbs down. He was making sure

52:34

I had enough votes. So

52:37

I wouldn't be embarrassed or compromised.

52:39

I ended up with more

52:41

than half. He, I think he

52:43

tallied it out more than half of the

52:45

Republican caucus over well over

52:47

70 votes, but

52:50

also not that there were so few

52:52

that my opponents would not be embarrassed

52:55

by the scant support

52:57

for their position in the caucus.

53:00

So that was my first taste of

53:02

McConnell's, you know, that is a kind

53:04

of old Senate compromise where you

53:06

do the right thing, you get everything done. Then

53:09

I had the privilege of talking to him

53:11

and I made a point of talking to

53:13

him every day, I won't disclose what was

53:15

said because I think the expectation

53:18

was that it would not be disclosed.

53:20

And he trusted me and I didn't

53:22

write about it in my impeachment book, but

53:24

I talked to him every day when I

53:26

was on the floor because he is for

53:29

all of the moral compromises, you

53:31

know, when you're doing an impeachment trial, you get to

53:33

sit there on the floor of the Senate. It's the

53:35

only time in my life that will happen since

53:38

my wife has forbidden me from ever

53:40

running for political office. She hates my

53:43

TV career enough without having to do

53:45

it for free. So,

53:47

uh, I talked to him every day and I

53:49

learned from him and he was very candid with

53:52

me about what was going on. So

53:54

I know Norm is right. He's

53:56

a destroyer, but

53:58

you know, I can't have. but in

54:00

a sense, and a human

54:02

level appreciate that he is

54:05

a complicated and very

54:07

interesting. And I think on a

54:10

human, pure human level, very decent.

54:13

But on a policy level, he wrecked the

54:16

Senate and he wrecked our country. And

54:18

how can you forgive him? But

54:20

I do forgive him because I know him

54:23

as the human. It's the oldest, you know,

54:25

it's like the Washington dinner table privilege. It's

54:27

in old Washington when we used to, when

54:30

I got here, we used to forgive each

54:32

other our policy sins. You can no longer

54:34

do that when you're dealing with a

54:37

creeping autocracy. You don't

54:39

forgive fascists for having

54:41

nice table manners. I'm

54:44

not saying he's one, he's not. You're not saying

54:46

he has bad table manners, we know. And

54:48

he has lovely table manners. He is not

54:50

a fascist, he's something else. He's a man

54:53

who made very poor judgments. He danced with

54:55

the devil and the devil burned him in

54:57

the end. I wrote

54:59

a column recently that says in

55:02

every fascist threat, there were three

55:04

types of people. There

55:07

are the people who are active

55:09

collaborators. They join the Nazi

55:11

Party. They rat out the Jews

55:13

in their midst. There

55:15

are the people who are the

55:17

resistors. They join the resistance. They

55:19

hide the Jews. They do the

55:22

right thing. But the vast

55:24

majority of people are accommodators.

55:26

They are moral cowards who

55:28

refuse to stand up to

55:30

evil. And they believe by

55:33

doing so, they will absolve

55:35

themselves of blame. But

55:37

in fact, by not confronting evil,

55:40

by making it have a patina

55:42

of respectability, they are as bad

55:45

in their own way as

55:47

the collaborators. And that is what

55:49

Mitch McConnell is. When he

55:51

came to Washington and he declared

55:54

he wanted Obama to fail, because

55:57

he wanted him to be a first term president, institutionalized

56:00

the notions that Democrats could

56:03

never legitimately hold power and

56:05

that the country and the

56:07

country's interest would come second

56:09

over his own political personal

56:11

ambitions. And he

56:13

legitimized with his packing of

56:16

the Supreme Court the

56:18

notion that there were no

56:20

restraints, there were no norms,

56:22

there was no hypocrisy too

56:24

great, there was no bending

56:27

and twisting of the rules too

56:29

great, there was no disingenuousness too

56:32

horrible to stomach. He

56:34

made all of that possible. And

56:36

he in his own way was

56:38

an accommodator of evil. Trump

56:41

is not Hitler, but he's a

56:44

fascist. And Mitch

56:46

McConnell accommodated him. Can

56:48

I just say these are three dazzlingly

56:51

off the cuff comments and really justify

56:53

where I started with what good friends

56:55

are on the podcast. I don't have

56:57

any nearly as personal or in depth,

56:59

but I will return to my standing

57:01

objection, Merrick Garland

57:04

and for this, I cannot

57:06

forgive him. All right.

57:08

And speaking of Mitch McConnell, we

57:10

got just a minute left for

57:12

our final talking five. And

57:14

the question is, what is the

57:17

aforementioned Senator McConnell looking forward to

57:19

as he gives

57:21

up the reins of leadership? Five words

57:24

or fewer, please. Family

57:26

members. Scorter days. There

57:29

you go. So first the preface

57:32

is he talked to Tommy Tuberville and

57:35

the answer is spend more time

57:37

breeding his family. I

57:41

will say crying to figure

57:44

out morality. He

57:47

was never one to act as if

57:50

morals or morality had anything to do

57:52

with it. All right. And I

57:54

got three words this time. Senior

57:57

pickleball tour. We

58:01

are out of time. Thank

58:03

you so much, Jen, Norm Eisen,

58:06

and Norm Ornstein, and thank you

58:08

very much listeners for tuning in

58:10

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1:00:00

Reed L L L C I'm Harry Lightman.

1:00:03

Party or later.