0:06

Welcome to Talking Feds, a roundtable

0:08

that brings together prominent former federal

0:10

officials and special guests for a

0:13

dynamic discussion on the most important

0:15

political and legal topics of the

0:17

day. I'm Harry Littman. This

0:20

week saw all three branches of

0:22

government embroiled in positioning and strategic

0:25

maneuvering over battleground issues for the

0:27

2024 election, which is

0:29

just around the corner, the Iowa

0:32

caucuses being less than a month

0:34

away. The I-word,

0:36

impeachment, made yet another return

0:38

to Congress when despite having

0:41

meager, if not zero, evidence,

0:44

every House Republican voted to

0:46

open a formal impeachment inquiry

0:48

into President Joe Biden. The

0:50

I-word may have lost its sting

0:53

in recent years, but the inquiry

0:55

seemed to mark a new degradation

0:57

of the term since the proponents

0:59

proved unable to offer any predicate

1:02

conduct that might legitimate an impeachment

1:04

of the president, raising the

1:06

question, what do they hope

1:08

to accomplish? In the wake

1:10

of a 56 page indictment

1:13

against him alleging multiple tax

1:15

crimes, Hunter Biden and his

1:17

lawyer came out swinging as

1:19

the younger Biden lashed out

1:21

at Republicans during brief remarks

1:23

standing outside the Capitol. Having

1:26

been served with a congressional subpoena

1:29

to appear privately for a deposition,

1:31

Hunter insisted he would testify only

1:34

in public for fear that the

1:36

GOP might twist his words. In

1:39

a stark reminder of the Supreme

1:41

Court's authority not solely to adjudicate

1:44

cases, but also to select which

1:46

cases it will address, the court

1:48

got involved in two matters this

1:50

week, both holding potentially pivotal implications

1:53

for the upcoming 2024 election. First,

1:57

Jack Smith moved the court for a

2:00

petitioned before judgment, seeking consideration

2:02

of Trump's claim of immunity

2:04

before it had progressed through

2:06

the lower courts, an uncommon

2:08

request that fits the situation

2:10

like a glove. Second,

2:13

the court took up a

2:15

case challenging the distribution regulations

2:17

surrounding the abortion drug, Myphopristone,

2:20

setting up a high-stakes fight that

2:22

could sharply curtail access to the

2:25

medication, even in states

2:27

where abortion remains legal. To

2:30

help us understand the high stakes and

2:32

the strategies of the combatants, we welcome

2:34

three of the most respected analysts of

2:37

the political landscape in the country. And

2:40

they are. Al Franken

2:43

is the host of the Al Franken podcast,

2:45

which for four and a half years has

2:47

been one of the most

2:49

entertaining and insightful podcasts out there for a

2:51

change. He served as the United States Senator,

2:53

of course, from Minnesota from 2009 to 2018.

2:59

And he was one of the original

3:01

writers for Saturday Night Live, where he

3:03

worked for 15 seasons and

3:06

won five Emmy's for writing and

3:08

producing, no matter what Wikipedia says,

3:10

right? Five is correct. You can't

3:12

correct Wikipedia. He recently bet

3:14

Lindsey Graham $20 that

3:17

Biden would beat Trump in 2024. Welcome

3:20

back to talking Fed Senator Al Franken.

3:22

Thank you. Great to be back. Alexei

3:25

McCammond, she's the opinion

3:28

editor now for the Washington

3:30

Post and an MSNBC contributor.

3:32

Before joining the post, she was

3:35

a political journalist for Axios, a

3:37

freelance journalist for Cosmopolitan, and a

3:39

news editor for the online magazine

3:42

Bustle. In 2020, she was named to

3:45

Forbes' ultra prestigious 30 Under

3:48

30 list. Thank you

3:50

for returning Alexei McCammond. Thanks, Harry.

3:52

Good to see you. Likewise. And

3:55

Bob Schrum, a renowned

3:58

democratic strategist, as

4:00

the director of the Center for the

4:02

Political Future at USC.

4:04

The Atlantic Monthly has described

4:06

him as the most sought-after

4:09

consultant in the Democratic Party.

4:12

Bob notably served as a speechwriter

4:14

for Senators George McGovern, Edward Kennedy,

4:16

in their presidential campaigns but has

4:18

consulted for countless others

4:20

and up to the present. Thanks

4:23

very much for joining us, Bob

4:25

Trump. Glad to be here and I

4:27

probably would have to be in

4:29

some magazine as 80 people over

4:31

80. There's

4:34

gonna be a lot of fighting for that distinction.

4:36

Alright, let's begin

4:38

with the I-word impeachment

4:42

which resurfaced in Congress this

4:44

week. Actually, it's a double-I.

4:46

The House Republicans have green-lighted

4:48

an official inquiry into an

4:51

impeachment or maybe a triple-I,

4:53

an investigation into an inquiry

4:55

into an impeachment. In

4:58

any event, it poses the question, is

5:01

there anything there? Is there

5:03

any scintilla of evidence of

5:05

something impeachable on

5:07

the part of President

5:10

Joe Biden? I don't think

5:12

so. You know, they keep citing the testimony

5:14

of this business partner of

5:16

Hunter Biden's Devin Archer who

5:20

actually said, Joe Biden

5:22

never had anything to do with our business. We

5:24

never discussed business with him. He

5:26

would phone his son and

5:28

sometimes we'd listen in but they would

5:30

just exchange pleasantries. He was just checking

5:32

in on Hunter. And this is when

5:35

he's vice president, right? Yeah, I think

5:37

it's a very dangerous road the Republicans

5:39

are thinking of going down. In 1998,

5:41

when they were headed toward impeaching

5:45

Bill Clinton, we made a

5:47

series of ads. The president called me and

5:49

said, I really want to fight this stuff.

5:52

We made a series of ads in the last two or

5:54

three weeks that said impeachment,

5:57

impeachment, impeachment, or

6:00

What about Social Security? What

6:02

about Medicare? What about investing

6:04

in education? Why are they wasting

6:06

our time? And 1998 proved

6:10

to be a disastrous midterm election for

6:12

the Republicans, and actually forced Newt

6:14

Gingrich out of the speakership. Maybe that

6:16

we'll get rid of Speaker Johnson this way. That

6:19

was sort of also, what about peace

6:21

and prosperity don't you like? Yeah. I

6:24

mean, that was a pretty good

6:26

time in America. In fact,

6:28

that's what Gore probably should have

6:30

run on. Just really

6:33

seeing that lost selection. Just

6:36

a historical aside there. Yeah,

6:38

just make everyone feel sad

6:40

for a moment. Actually,

6:42

he did run on the prosperity

6:44

part of this. It

6:46

was actually quite relevant. The

6:49

difficulty was that Bill Clinton had

6:51

a very high job approval rating

6:54

and a very low personal approval rating. And

6:57

every focus group we went into, they

7:00

were kind of relieved at the idea

7:02

that he was not going to be president

7:05

anymore. So you couldn't run for a third

7:07

Clinton term. You had to go out

7:09

there and run on things like prescription drug

7:11

coverage, which we finally have

7:13

achieved. And of course, if

7:15

it hadn't been for the butterfly ballot in

7:18

Palm Beach County, Florida

7:20

wouldn't even have been

7:22

closed. Theresa Lepore,

7:26

Alexi, I know you were eight at

7:28

the time, so you forgive the old

7:30

men growling, but you had a thought

7:32

about the current day. Yeah, I

7:34

mean, obviously it's so misguided. I

7:36

think it's just ridiculous that they're

7:38

investigating something they've already investigated and

7:40

still have found no evidence. And

7:43

they're running out of ways to say that. And

7:45

it's remarkable that they're trying to do this

7:48

simply to help Trump with

7:51

his campaign to do his bidding. Trump's

7:53

putting on to social, that that's what

7:55

it's all about, that it's about his

7:57

retribution. And it's just remarkable because

7:59

I... I wonder if these folks

8:01

even care about keeping the house next

8:03

year. They have such a slim majority

8:06

and they're not even thinking about what

8:09

they were elected to do. They're literally

8:11

thinking about Donald Trump's campaign only. Do

8:13

you think the idea there is to

8:15

say everyone's dirty, so don't worry so

8:17

much about Trump? Or is it the

8:19

idea to actually change the subject and

8:21

dirty up Biden? It's both of those,

8:24

right? I think with some

8:26

people, with MAGA people, it's both

8:28

of those. And

8:30

with, I think your garden

8:34

variety on the

8:36

fence, undecided person, will

8:38

look at this. And unless

8:40

the fishing expedition comes up with

8:42

some fish, they're

8:44

going to look at this and say, this is

8:46

ridiculous. And there were a number

8:49

of Republican House members who voted for this

8:51

who are really in tough

8:53

districts, in districts where Biden won.

8:56

And I don't see how they hold

8:58

on to the House

9:00

unless there's some weird way of

9:02

election, because this House has

9:05

disgraced itself over and over again. And

9:08

part of it is subpoenaing Hunter

9:11

Biden and Jim Jordan as a

9:13

guy who didn't answer a

9:15

subpoena himself. So it's

9:18

all ugly and it's all sad. Can

9:22

I follow up on Bob's point,

9:24

though, with one contrast, arguably, with

9:26

1998, which is these

9:28

are very prosperous times. And by

9:31

normal benchmarks, Biden's performed superbly, I

9:33

think you could say, on the

9:35

economy. But it's clear

9:38

that somehow he hasn't made

9:40

that sale. And the opinion

9:42

of the American people

9:44

is that he hasn't done much,

9:46

or at least they're OK, but

9:48

the economy is tanking. Trump would

9:51

do better. So it appears

9:53

that Biden is playing from the

9:55

same playbook that you mentioned, Bob.

9:58

He came out and said. Instead

10:00

of addressing pressing and critical tasks, they

10:03

opt to squander time, etc. But

10:06

he's more vulnerable

10:08

on the prosperity

10:10

for kind of puzzling

10:12

reasons, but he doesn't have the

10:14

same tailwind as Clinton had in

10:16

1998 on the economy now. Clinton

10:21

didn't have the

10:23

9% inflation a year

10:25

ago or a year and a

10:27

half ago, whatever it is, and boy

10:30

that stings. And

10:32

because of that inflation, even

10:34

though it's down to 3.1% or something like that now, even

10:39

though it's that, prices are higher because

10:41

it was 9% in the middle of

10:44

last year. But

10:46

I will say that it

10:48

seems like everybody predicted a

10:50

recession in this year and

10:53

far from it. And

10:55

employment is high. In 1994, the

10:58

economy was actually getting a lot better and

11:00

people didn't realize it. There's a

11:02

lag time between the reality and

11:04

the perception. And there are a couple

11:06

of data points that I think may tell

11:08

us where this is headed. One,

11:11

the New York Times has a big

11:13

story today about the prices of some

11:15

goods actually coming down some major consumer

11:17

goods, which is encouraging people to go

11:19

out and spend money and shop. Secondly,

11:25

in 2022, people actually suffered a

11:27

loss in the median income, which is

11:29

the best

11:32

data point you can get because if

11:34

you use the average income, you're factoring

11:36

in the wealthiest people in the country.

11:38

But at the median income level, people

11:41

actually suffered a loss in their real

11:43

incomes. In

11:45

2023, they actually gained in

11:48

terms of their real incomes. Their

11:51

real incomes actually went up faster than inflation

11:53

did. And I think

11:55

it's going to take three or four months,

11:57

although there's some straws in the wind. of

12:00

Michigan consumer confidence survey all

12:03

had numbers that went up by pretty

12:06

substantial margins in the last month and

12:08

people were a little surprised and why did that

12:10

happen? Well, because I

12:12

think the effects of all this

12:14

are beginning to be felt in real

12:17

people's lives. Gas is what, $2.78

12:20

a gallon in Washington, DC.

12:22

I mean, that's... Wow. Not in

12:25

California, but... Yeah. Well, California has

12:27

a special problem as we know.

12:29

Yeah. And some special virtues. Alexei,

12:31

I wonder if I can close

12:33

this out with you. I'm sort

12:36

of following up on the Senator's

12:38

point about the potential problems for

12:40

the, right now, what

12:42

is it? Two or three person

12:44

house majority. So, you're Johnson, how

12:47

big a roll of the dice is

12:49

this for him? Is he the next,

12:51

you know, spinal tap drummer? Can I

12:53

use that reference? But is it all

12:56

on the line for him now? And

12:58

if so, what looks like

13:00

a win? What looks like a loss for him

13:02

and the party in the house? What'd you say?

13:05

I mean, I think the one thing

13:07

we forget to mention with Republicans, especially

13:09

in the house, is that they're

13:12

doing a lot of this stuff because what

13:14

else would they be doing? What are they

13:16

fighting for? What type of vision do they

13:18

have for the future beyond, oh my God,

13:20

Joe Biden's America, is terrible and scary. And

13:22

that's why you need to elect us. It's

13:24

remarkable. So I think Speaker Johnson, I mean,

13:26

the way that he got into the role

13:29

he's in now, I wouldn't imagine

13:31

he's there for the

13:33

long term. Again, I think

13:35

what's interesting is Kevin McCarthy

13:37

obviously helps Republicans in California

13:39

win competitive congressional races. George

13:41

Santos in New York, who knows

13:44

how that'll change things. But the

13:46

recent map redrawing obviously helps Democrats

13:48

in those races. And those two

13:50

states alone can make a huge

13:52

difference for the majority. And without

13:54

Kevin McCarthy's full help and Speaker

13:56

Johnson in charge of an impeachment

13:59

inquiry, likely become an

14:01

impeachment vote. He's putting

14:03

his members in really tough positions,

14:05

again, without fully, I think, thinking

14:07

about the future implications for the

14:10

party, for their power, for

14:12

their agenda. So you think it's likely

14:14

this ripens into an impeachment vote? The

14:16

base is going to demand it, but

14:19

I don't know how many of those, and

14:21

we just talked about New York. I don't know how

14:23

many of those members of Congress from New York in

14:27

what are pro Biden districts now, and

14:29

will probably be more pro Biden after

14:31

the map is redrawn. I don't know

14:33

that they're going to enthusiastically walk the

14:36

plank and they don't have

14:38

much margin there. If they're going to lose

14:40

three or four votes, that's it. It's

14:47

now time to take a moment for

14:49

our sidebar feature, which explains some of

14:51

the issues and relationships that are prominent

14:53

in the news. Today's sidebar

14:55

addresses the question, what is

14:57

the health insurance portability and

14:59

accountability act of 1996, also

15:02

known as HIPAA? To

15:07

explain and answer this question, we

15:09

welcome Jennifer Morrison.

15:12

Jennifer Morrison is an actress,

15:14

director, and producer, most recently

15:16

known as Cassidy Sharp on

15:18

NBC's This Is Us. You

15:21

also may remember her as Alison

15:23

Cameron in the medical drama series

15:25

House, and as Emma

15:27

Swan in the ABC adventure fantasy

15:30

series Once Upon the Time.

15:33

Jennifer's director's credits

15:35

include HBO's Euphoria

15:37

and the 2017 comedy drama

15:40

film, Sundogs. I

15:43

give you Jennifer Morrison on

15:46

HIPAA. Maintaining patient

15:48

confidence has been a part of healthcare since at

15:50

least the time of Hippocrates. Indeed,

15:52

the Hippocratic oath includes a promise to keep

15:54

patient information under wraps. In

15:57

1996, Bill Clinton signed into

15:59

law the health insurance. Probability and Accountability

16:01

Act, also known as HIPAA. HIPAA

16:04

codifies robust patient confidentiality protections while

16:06

allowing the sharing of health information

16:08

necessary to high quality care. HIPAA

16:11

applies to all medical providers,

16:13

healthcare, facility staff, insurance companies,

16:15

electronic medical record companies, and other

16:17

covered entities. Primarily, HIPAA

16:19

protects Personal Health Information, or PHI,

16:21

as well as PII, which stands

16:24

for Personally Identifying Information, such as

16:26

name, address, social security number. The

16:29

law required the creation of national standards

16:31

to protect PHI and PII from being

16:33

disclosed without patient consent or knowledge. It

16:36

also imposes civil and criminal penalties for

16:38

violation. Detailed HIPAA standards and

16:40

requirements appear in regulations issued by the

16:42

United States Department of Health and Human

16:44

Services. Chief among the

16:46

various implementing and clarifying regulations are

16:49

the so-called Privacy Rule and Security

16:51

Rule. The Privacy Rule, published

16:53

in 2000, sets out how covered

16:55

entities may use and disclose protected

16:57

health information. The Security Rule,

16:59

published in 2003, provides administrative

17:01

physical and technical safeguards required to

17:04

protect patient information. There

17:06

are several exceptions to HIPAA's

17:08

strong privacy and confidentiality protections.

17:11

First, routine disclosures related to

17:13

treatment, payment, and healthcare operations are permitted

17:15

so as not to hinder patient care.

17:18

Non-routine disclosures are also contemplated.

17:20

These include, for example, sharing of information

17:23

with law enforcement and in judicial and

17:25

administrative proceedings, as well as disclosures without

17:27

patient authorization in certain medical emergencies, cases

17:30

of child or elderly abuse, and

17:32

similar extenuating circumstances. Violating

17:35

HIPAA can have serious and

17:37

headline-generating consequences. In 2008, UCLA Medical Center

17:41

fired 13 employees and suspended

17:43

six physicians after they accessed Britney

17:46

Spears' medical records without a valid

17:48

purpose. Word to the

17:50

wise, patient confidentiality is no joke. For

17:53

Talking Feds, I'm Jennifer Morrison. Jennifer's

18:00

upcoming directing project is in

18:03

the second season of the

18:05

true crime series, Doctor Death,

18:07

for which she directed and

18:09

executive produced the first four

18:11

episodes. All eight episodes

18:14

of Doctor Death season two will

18:16

be available on Peacock on Thursday,

18:18

December 21st. All

18:26

right, it is now time for

18:28

a spirited debate brought to you

18:31

by our sponsor Total Wine and

18:33

More. Each episode you'll

18:35

be hearing an expert talk about

18:37

the pros and cons of a

18:40

particular issue in the world of

18:42

wine, spirits, and beverages. Thanks, Harry.

18:44

In today's spirited debate, we start with

18:47

two of our absolute favorite things, dessert

18:49

and wine, and combine them into one

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delicious topic, dessert wines. What are they

18:53

exactly and how are they made? Grab

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a fork and a glass and let's dig into the

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sweet subject matter. Dessert wines are

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just as you'd hope they be, sweet wines that are

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typically served after a meal. Sometimes

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they're served with a dessert and sometimes they're

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served as dessert. And then there are those

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lack of acidity make for a pleasant

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and easy-going taste that pairs perfectly with

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when I'm craving something sweet to enjoy while unwinding

19:19

in the evening or after a big meal. To

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make a sweet dessert wine, the fermentation process

19:24

is halted just prior to the yeast converting all

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the sugar to alcohol. Interrupting the

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fermentation ensures that there is sugar remaining in

19:30

the wine, which gives us that sweetness we

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crave. But the amount of sweetness

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varies from wine to wine and there's no

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shortage of options. Just pop into Total Wine

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19:41

from ports to ice wines to so turn

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wines come in both still and sparkling too.

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They're also made from both red and white

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that really, when it comes to dessert wines,

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guide for a recommendation. Cheers! Thanks

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to our friends at Total Wine and

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More for today's a spirited

20:13

debate. Alright, let's

20:15

move for a few minutes back where

20:17

actually you started Bob, which is the

20:19

the whole idea here is to somehow

20:21

try to connect it to Hunter Biden.

20:24

So they were buoyed in a sense

20:26

by the aggressive 56-page indictment

20:28

that came down against him here

20:30

in California. He

20:33

is sort of a wild card here, yeah,

20:36

because you know after lying low for a

20:38

few years, he and his lawyer, Abby

20:40

Lowell, have come out swinging and

20:42

it presumably they'll stay that way. Does that complicate

20:45

or undermine the

20:47

White House strategy as you see it or

20:49

does it complement it? First,

20:51

I think that people are going to decide whether to

20:54

vote for Joe Biden. They're not voting

20:56

for or against Hunter Biden. Secondly,

20:58

I think there's a lot of

21:01

sympathy that folks feel for what

21:04

Joe Biden went through with

21:06

his family and what he's gone through in terms

21:08

of trying to get Hunter on the right track.

21:12

Lots of people know someone

21:14

in their family or a friend who's had

21:16

some of these kinds of problems. Number

21:19

three, and I agree with Abby

21:21

Lowell on this, if his last name wasn't

21:23

Biden, this 56-page

21:26

indictment wouldn't have happened. I mean, you're

21:28

the expert on this, Harry. I'm on

21:30

record with exactly your position. It's an

21:32

outrage. If somebody doesn't pay their taxes

21:34

and then they pay them and they

21:37

get straight with the government, they don't get indicted

21:40

and the gun charge is hardly ever prosecuted

21:42

at all. So I think that

21:44

either out of his own inclination, the

21:47

special counsel, or because

21:49

he's under pressure, felt he had

21:51

to move forward or he wanted to move forward. I

21:54

would be very surprised if this

21:56

indictment results in a

21:58

conviction. respond to that

22:00

as a prosecutor, we should say a lot

22:03

of it stinks. It's an abuse, I

22:05

think, of prosecutorial discretion. He'll try

22:07

to make a selective prosecution claim.

22:10

But once you're over that

22:12

line of USV, it's

22:14

a different game, and most of those

22:17

things can't really come into a jury.

22:19

So I agree completely with what you

22:21

said about the genesis of it. The

22:23

odds are always against the defendant in

22:25

cases like this. He said

22:28

in the speech that he's proud

22:30

of B s

22:32

m a. And that I thought was a note that

22:34

he probably didn't have to say he was

22:37

being on the board of B

22:39

s m a. I felt terrible

22:41

for him during much

22:43

of it, but I also felt some

22:46

vulnerability because we don't know.

22:48

He's obviously ir responsible,

22:52

and very often that's illegal.

22:54

So but and I don't know what the

22:57

normal course is in terms

22:59

of indicting someone with

23:01

these crimes. I do. It's not

23:03

that it's not what they've done. Well, that's too

23:05

bad. So they've been overly aggressive with him. And

23:08

I think that's a shame. And

23:10

it's unfair. But that's the game

23:12

now, I guess. Let me ask

23:14

you said 80 over 80

23:17

in just Bob, but you guys know

23:19

Biden some he's by all accounts a

23:21

very concerned father, he's you know, his

23:24

son may be looking at prison, which

23:26

he knows he wouldn't have been indicted, but

23:28

for the last name, how big

23:30

an emotional toll does it take in

23:33

the middle of an election campaign? And

23:35

you guys are intimately familiar with campaigns

23:37

as well. Does it take him off

23:40

his game, do you think or can

23:42

any pro just separate out even such

23:44

severe news as this? I think

23:47

it makes it more determined, not

23:49

inclined to walk away from this, not

23:51

inclined to let people use his son

23:53

to do this to him. And by the way, I'm

23:56

sure his son and his family don't

23:58

want him to walk away from this either. Such

24:00

a good question because I think

24:02

Hunter Biden has been talking a lot

24:05

about this being very vulnerable. He did

24:07

this podcast with the Artist's Movie recently

24:09

and I listened to the whole thing

24:12

and there's something to be said especially

24:14

about men talking

24:16

about their feelings, talking about,

24:18

he said he gets on an hourly

24:21

basis texts from journalists, reporters being like,

24:23

we're writing this about you, we're writing

24:25

this about you. And he's very aware

24:27

of how that could affect President Biden's

24:29

mental health. He ties it to Beau's

24:32

death and obviously how that makes the

24:34

relationship even more important to him. It's

24:36

so opposite from the nasty

24:38

crack, gun-owning caricature that Republicans

24:41

have made of him. I

24:43

thought it was a really

24:45

remarkable podcast that everyone should

24:47

listen to. Bob's insight

24:49

that how does this

24:51

affect Joe Biden is

24:54

a big one because you can

24:56

say, was this a good strategic yes or no?

24:58

Are people going to like this, hate this? If

25:01

it lifts Biden's ire

25:04

and fighting spirit, that's good,

25:06

right? As opposed to

25:08

sitting back and feeling helpless and

25:11

taking punches. So I

25:13

hadn't thought of that until Bob said

25:15

that. That's why he's the most sought-after

25:17

consultant in the Democrats Atlantic. That was

25:20

a long time ago too, Eric. Let's

25:24

just close out here. Do voters

25:26

care about Hunter Biden? Is there

25:29

any stickiness to this idea of

25:31

the Biden crime family,

25:34

etc., or will nobody

25:36

give a fig about it?

25:38

What's your thoughts about the political

25:41

purchase? It sticks with the MAGA

25:43

base. The MAGA base likes it.

25:45

They like the Biden crime family. I don't

25:48

think it sticks with the voters who

25:50

ultimately are going to decide this election.

25:53

There is absolutely no

25:55

evidence whatsoever of

25:57

Joe Biden profiting in any way.

26:00

away from any of

26:02

Hunter Biden's business dealings. By

26:04

the way, there's also a technical question, Harry, which

26:06

you might be a better expert on. I

26:09

always get his name wrong. Senator

26:11

from Republican Conservative, Senator from Oklahoma

26:14

said today that he's

26:16

very dubious about this whole thing because

26:19

under the Constitution, you

26:21

have to impeach somebody for

26:23

something they did while they were president, not

26:26

something they did at some other time. He

26:29

doesn't see the evidence yet, but

26:31

even if it were there, what would it add up to?

26:34

Now, if the evidence were there, it would

26:36

hurt Biden back if it

26:38

looked like he had profited from this.

26:41

But we know, for example, that he

26:43

went over to Ukraine with specific instructions

26:45

from President Obama, and the agreement of

26:47

all the other countries in NATO that

26:49

the chief prosecutor was corrupt and had

26:52

to be fired. He wasn't doing

26:54

it to help Burisma. Also, you

26:56

look at the Trump kids. How

26:58

many trademarks did she get from China?

27:01

$2 billion in investment from

27:03

Saudi Arabia. I worry

27:05

that people already didn't

27:08

want a Biden-Trump rematch. People were

27:10

sick of Trump in large part

27:12

because of the baggage and the

27:15

chaos and the confusion. I

27:17

worry that people will be like, I

27:20

didn't want them in the first place. Biden

27:23

seems as sketchy as Trump. They

27:25

both are not my vibe.

27:27

I'm just going to stay home. I

27:31

think that's also concerning when you look

27:33

at the polling and see this clear

27:35

interest in third-party candidates or alternative folks.

27:37

Even if they don't end up voting

27:39

for these people, when you're giving them

27:41

choices, they're like, great, I'd rather have

27:43

someone else. It's easy for

27:45

us to dissect the details of who was

27:47

responsible for what, what we know, what we

27:50

don't know. I think a lot

27:52

of people will hear this. Trump will use

27:54

it over and over again at his rallies,

27:56

online to really muddy the waters.

28:00

the folks who are low information

28:02

voters or watching Fox News and

28:04

CNN, because they want

28:06

to get both perspectives. I think people

28:08

will be like, Oh, it's such a

28:10

drag. Everybody's got this baggage. Everybody's corrupt

28:13

Washington blows. Can I enter a

28:15

mild dissent, Harry, with respect to the polls?

28:18

I think we're paying way too much attention to

28:20

the polls right now. In the fall

28:22

of 1983, there was a poll. I

28:25

don't know if it was a Gallup poll or another poll. 62%

28:29

of people did not want Ronald Reagan to

28:31

run for reelection. A year later,

28:34

he got 60% of the vote. One

28:37

of my biggest complaints about the

28:39

media right now is there's

28:41

so much horse race coverage, so many

28:43

polls, so many of them are

28:47

sketchy in my view. We ought

28:49

to not be paying so much attention to them, but

28:51

I think they get eyeballs and clicks,

28:55

and the result of that is that news

28:57

enterprises, which are after all business, give

29:00

people what they want. I think

29:02

it's hard to deny the patterns we've seen

29:04

in polling that are backed up by focus

29:06

groups and anything you see

29:08

online. I know people like to roll their

29:11

eyes about TikTok, but I know you all

29:13

have seen the same peer data

29:15

and otherwise that I have that so

29:17

many more people across the board get

29:19

news on TikTok. I mean, people

29:21

are unhappy. It's more than polls. I do

29:23

think a lot of people love to use

29:25

polls as a news peg, obviously, but there's

29:28

a clear pattern of people being totally

29:31

dissatisfied with their likely choices,

29:34

and again, for better or for worse,

29:37

they're singularly focused, it seems, on

29:39

Biden's age, which is obviously something

29:41

he cannot change. And

29:43

it's unfortunate that people, although Trump is

29:45

nearly the same age as Biden, see

29:48

Trump as some physically

29:50

fit guy. I

29:52

think there's a way in which that

29:54

sort of reinforces Bob's point.

29:56

We'll be figuring this out by political

29:58

scientists over the... coming years, but

30:01

I think polls are maybe a

30:03

little different now, just because the

30:05

electorate is so sour. And

30:07

so whatever you serve up to them,

30:09

they're against it. So it depends whether

30:11

Biden is the focus. I think something

30:14

really is flawed in a way we

30:16

haven't come to grips with. I

30:18

also think that economic

30:20

news we've had some

30:24

this past week, very good economic

30:26

news, and this was

30:28

supposed to be a recession this year.

30:30

That's all the common wisdom was that

30:33

instead 5% growth

30:35

in the third quarter. Uh,

30:37

now I think 3.1% unemployment

30:40

or something like that. And

30:42

it looks like a soft landing. It looks

30:44

like the fed is actually going to start

30:47

bringing down interest rates. One of the things

30:49

that when you get bad numbers from is

30:51

people are still remembering 9% inflation. You

30:54

don't forget that. You just don't.

30:57

And that 9% brought

30:59

prices up higher than they were over

31:02

here. So even if you have

31:04

just 3% here, they're higher

31:06

than you remember them. They, you know, two

31:08

years ago, a year ago. All

31:10

right. More to come on this. I just

31:12

want to answer that hanging chat. If I

31:14

could put it that way, Bob, of your,

31:17

your legal question for what it's worth in

31:19

case people were curious, I think, you know,

31:21

it seems like a pretty good argument. This

31:23

is when he was vice president. But I

31:26

think what we've learned over the last few

31:28

years is the impeachment remedy

31:30

and rules and regulations are kind

31:32

of whatever the Senate and House

31:34

can get away with, and the

31:37

court won't be intervening. So there

31:39

could be some senators or even

31:41

members of the house who proffered that

31:43

as a reason, but it's whether it

31:45

appeals to them rather than, you know,

31:47

men and women in roads, I think.

31:50

But speaking of men and women in roads,

31:52

but I couldn't have written a better segue

31:55

and I didn't write it, but in a

31:57

vivid reminder of the Supreme Court's power. Not

32:00

simply to decide cases, but to

32:02

decide which cases it will decide.

32:04

A huge part of the court's

32:06

authority that people often overlook. But

32:09

the court became involved in two cases

32:11

this week that have potential reverberations in

32:13

the 2024 election. I'd

32:16

like to talk about both of them, the abortion

32:19

case, but first the immunity

32:22

case involving the January 6th

32:24

prosecution. Jack

32:26

Smith moved the Supreme Court to

32:29

get involved early, sort of a

32:31

petition before judgment and I'll just

32:34

put on my ex-Supreme Court clerk

32:37

hat and tell you that a very

32:39

rare maneuver, but I

32:41

thought totally fitting here, it's

32:44

sort of thing that after you

32:46

saw it was like, oh wow,

32:48

what a great move. But let's

32:50

talk about in terms of the

32:52

political landscape. So under the

32:54

timeline, he did two things. He

32:56

said take up this question and

32:59

also expedite it. And so far

33:01

they're expediting, right? Given Trump, who

33:03

could otherwise have had 30, 60

33:05

days, nine days, Wednesday

33:07

he needs to respond to the

33:09

petition for cert. So under the

33:12

timeline that Smith has asked for,

33:14

the court could hear arguments and

33:16

issue a ruling if you think

33:18

of USP Nixon as the big

33:20

precedent in say 60 days. And

33:23

how would that change the

33:25

political landscape in the lead

33:28

up to 2024? Let

33:31

me make one more nerdy legal point,

33:33

which is because Chutkin a few days

33:35

ago, stayed not just

33:37

the trial, but the litigation, the

33:40

discovery, this pause that we're now

33:42

having is sort of one to

33:44

one with delay in the trial.

33:47

It's sort of a certain thing, I think. They

33:50

won't start the whole clock again

33:52

until the issue's been

33:54

decided. So right now we're looking at a

33:56

60 day delay at best, I

33:58

think. you the

34:01

legal basis for him asking

34:03

immunity because is it that

34:05

something he did as president

34:07

he can't be tried for? That was

34:09

his main submission and his fallback submission

34:12

is going to be as

34:14

long as I was sort of acting as

34:16

a president within the outer

34:18

perimeter but that's going to be a loser

34:21

on the facts I think because we

34:23

already have strong indication that's not what

34:25

he was doing it was a campaign

34:27

rally besides which he was looking to

34:30

overthrow the constitution the real issue though

34:32

is how much time it takes to

34:34

settle this all out and what that

34:36

does to the prospects for a trial

34:38

in 2024 especially because the other cases

34:41

are looking less and less likely. Well

34:43

Harry that's exactly the point the

34:46

whole modus operandi the whole

34:48

strategy of the

34:50

Trump lawyers and Trump himself and

34:53

I'm not sure by the way that the lawyers tell him what

34:55

to do or that he tells them what to do but

34:57

the whole strategy here is

34:59

delay delay delay delay try

35:01

to win the election pardon

35:03

yourself or turn the power over to

35:06

the vice president for a day and

35:08

he can pardon Trump and if he's

35:10

at least out of all the federal

35:12

charges and then argue that states can't

35:14

prosecute a sitting president that's the whole

35:16

strategy but for me I mean

35:19

you talked about a couple of these arguments

35:21

being losers the general immunity argument to me

35:23

is a complete loser I

35:25

mean if you say presidents can't

35:28

be held responsibly so that

35:30

means Richard Nixon could order the bombing

35:32

of the of the Brookings Institution and

35:35

not be held accountable for it I

35:37

don't think anybody's made this as

35:39

a serious argument before and finally

35:41

Alexi's going to rightly snap back

35:43

at me about polling but

35:45

the polling does show that

35:48

if he gets convicted of any of

35:50

these things his chances of winning an

35:52

election are very very small it's really

35:54

a dramatic that one result in polling

35:56

it's true if the court does what

35:59

you say Here's

36:02

issues of ruling in 30 days, 60

36:04

days. Then I

36:06

think you push the trial off in

36:08

Washington to April or

36:10

May. I don't think that's good for

36:13

Trump, actually. What

36:15

he wants is he wants the trial pushed

36:17

off to November or December. I

36:19

just want to say for the record, I was

36:21

not defending polling, but the media and

36:24

only segment of the media. By

36:26

segment, I mean myself and the way I think about it.

36:29

I totally agree. I mean, everyone was

36:31

just totally misreading the polls and just

36:33

counting them ahead of 2022 and everyone

36:36

was so wrong then that it's remarkable

36:38

we just turned around and covered them

36:40

the same way now. Let's

36:43

say the Supreme Court holds against

36:45

him on immunity, which I actually think is

36:47

fairly plausible. You

36:50

know, he's so focused on winning. So

36:53

far, it seems as if the

36:55

indictments haven't really affected at least

36:57

his base and maybe a little

36:59

bit of erosion in the middle.

37:01

What impact would it have of

37:03

a headline of Supreme Court rejects

37:05

Trump theory? Is that a seismic

37:07

political event as you see it?

37:10

Again, I'm not a political scientist and I don't

37:12

have all the data in front of me, but

37:14

I love watching focus groups and seeing what people

37:16

are talking about and how they're making sense of

37:18

these things. I just think they show

37:20

time and again that it's not registering with

37:23

people in the same way that we all

37:25

understand it to be this monumental event. I

37:27

think even the idea that democracy is at

37:30

stake again is really lost on people because

37:32

they're like, what are you talking about? You

37:34

said that last time and we survived Trump

37:36

so we can do it again. It

37:39

just really feels like a disconnect between what we

37:41

all know is a big deal

37:43

and what other people can shrug off when

37:46

if you all shrug it off and reelect

37:48

Trump, who knows

37:50

what is going to happen the second time

37:52

he is in office. Can

37:54

I make a point about

37:56

immunity? I want to

37:58

quote Mitch McConnell. in the speech

38:00

where he said I'm not voting for a conviction.

38:04

He said, we have a

38:06

criminal justice system in this country. We

38:09

have civil litigation and

38:12

former presidents are not immune from

38:15

being held accountable by either one. Happened

38:17

to have Mitch McConnell right here as

38:19

they say, another MM. Thanks Mitch. But

38:22

I mean the point is that, wait

38:25

a minute, that was part

38:27

of your argument for not

38:29

voting to convict. It

38:31

was part of it. That was

38:33

pretty convincing that, no,

38:35

he can be tried afterward, after here. I

38:38

just think that should be part of

38:40

the case. By the way, every time I hear

38:42

that and never as good as when you say

38:44

it, it's such a poignant moment to me. It's

38:46

one of three or four moments

38:48

where really we could have gone the

38:50

other way, you know, if McConnell had

38:52

just had the fortitude.

38:54

Let's move to another very

38:56

important shadow cast by the

38:59

Supreme Court on the election,

39:01

which is they've agreed to hear and

39:03

will decide by June, the myth of

39:06

Pristone case involving the

39:08

most by far common

39:11

form of pregnancy termination in

39:13

the country. So

39:15

the case is actually about

39:17

here, putting this, my Supreme Court

39:20

nerd hat on again, administrative law

39:22

and standing. But is that too

39:25

fine a distinction for voters? If

39:27

the court holds that the FDA approval was

39:29

faulty, say, is that just

39:32

automatically another political firestorm in the

39:34

way that Dobbs was? It's a

39:36

disaster for the Republicans. It's the

39:39

classic case of, this will

39:41

be the second time on this issue that

39:43

the dog caught the car. And

39:46

if you look at 2022,

39:49

the reproductive rights issue,

39:51

along with dangers to democracy,

39:54

were big driving factors in us

39:56

not having a red tsunami and

39:58

at best a red trickle in the

40:00

house. Throw on

40:02

top of that the fact

40:04

that Donald Trump has reopened the

40:07

idea of repealing Obamacare, which

40:10

is very, very popular in the country,

40:12

and you've got a threesome here. My

40:15

guess is that, and you're the

40:18

expert here, but my guess is

40:20

that Roberts will not want to

40:22

go down this road, and that

40:25

he probably will be able to persuade a

40:28

Kavanaugh or an Amy Coney Barrett not

40:30

to go down this road, because

40:33

he worries about the courts legitimacy.

40:36

Right now, the sense people have of the

40:38

court, the confidence in the court, is very,

40:40

very low. But in the political

40:42

terms, there's absolute

40:44

catastrophe if they

40:47

say the FDA shouldn't authorize this

40:49

drug, or if they say, you

40:51

can't mail it. It's

40:54

a catastrophe for Republicans. It's really

40:56

a catastrophe for women. That

40:59

would be the tragedy here. As

41:01

you said, more than half of abortions are

41:03

used in the myth of Pristone. So

41:06

politically, yes, it works for

41:09

Democrats, but we had Kate Cox. Oh

41:13

my God. What a horror

41:15

show, right? If that isn't an example

41:17

of when

41:19

you can terminate a pregnancy,

41:21

then there's no example. She

41:24

was carrying a fetus that wouldn't

41:26

be able to survive, wouldn't necessarily

41:29

even make it to birth, but

41:31

after birth, wouldn't make it to

41:33

die almost the next day.

41:35

If you believe her doctor, as opposed

41:37

to Ken Paxson, that is. Yeah. Well,

41:40

Dr. Paxson, isn't he? Does he play one

41:43

on TV? I don't even know. He's actually

41:45

in Diete Paxson. That's true. There you go.

41:47

By the way, abortion is going to be

41:49

a huge issue next year,

41:51

no matter what the court does with this

41:54

case. Yeah. What's

41:56

the state of play there with the court told

41:58

us this is going to settle things. And

42:00

instead you're seeing states really pushing

42:03

the envelope. So it is it

42:05

inevitable that a it'll be an

42:07

issue and be it'll play the

42:10

democrats favor. Or. Yes, I say

42:12

gayest. Inevitable. it's going to be an issue.

42:15

And we're going to have more things like. The.

42:17

Koch situation in Texas that will

42:19

raise the soft Women are really

42:21

angry about this. And by the

42:24

way, sore a lot of math. It's. Not

42:26

very popular. To. Take away

42:28

rights from people. Once.

42:30

You had a right and that right as existed

42:32

for. Fifty. Years and you

42:34

suddenly rip it away. People.

42:37

Don't like. And. As we

42:39

saw in Twenty Twenty Two. They. Come

42:41

out and vote. And. They're hurt. And

42:43

look at what happened in that Ohio reference. Were.

42:46

Turnout Enough special election and

42:48

Twenty twenty three. Was. Just

42:51

a scintilla short of the turn out

42:53

and twenty twenty two right that almost

42:55

never happens in the Republicans had planned

42:57

that election. For. August in

42:59

the middle of the summer. Hoping.

43:02

That they go low turnout electorate

43:04

that was skewed older and instead

43:06

they got a high turnout electorate

43:08

that was skewed younger. Why? Don't

43:10

a Mitch Mcconnell with me but there

43:12

is a woman on the panel said

43:15

we ask Alexi for your your thoughts

43:17

hear another. Example: the Kentucky Gov phase

43:19

of it in the oven or of

43:21

a share had that I've looked at

43:23

her ethics join the young woman who

43:25

was raped by her stepfather and that

43:27

in a D stories are not going

43:29

away. The news cycle will not change

43:31

it. Will get harder and harder to ignore.

43:33

The thing when they're so this role

43:35

they touch men as the other thing

43:37

and just as much as women. It's

43:39

a family that he has an economic

43:41

issue. And people really

43:44

don't like when the government seems

43:46

to the overreaching in any capacity

43:48

but let alone. When. it

43:51

comes to your own body

43:53

the decision whether to have

43:55

kids and how often it

43:57

is a clear example as

44:00

a reality in which Republicans want women

44:02

to be living in a totally different

44:04

time period than they

44:06

are and then we currently should

44:09

be. You know who else has touched as I've

44:11

come to realize recently? Parents.

44:13

I have an 18-year-old daughter and

44:15

you know she's going to college

44:17

in a blue state but if

44:19

it were red I'd be petrified.

44:21

Let me ask though the converse of

44:24

this because I actually last

44:26

time with Supreme Court nerd hat

44:28

on. It's a beautiful hat. Thank

44:30

you. Double stripes on either

44:33

side. I think

44:35

they're going to reverse. Let's say

44:37

they find that the Fifth Circuit

44:40

is wrong and that total nutcase,

44:42

Casmerich, District Court is wrong and

44:44

basically the FDA did act lawfully.

44:47

Does that actually give a

44:50

boost to Trump on

44:52

the theory of oh that Supreme Court

44:54

they're not so bad after all. I'm

44:56

here to tell you it would have

44:58

nothing to do with their abortion jurisprudence

45:00

and overall conservatism. As I say it's

45:02

about standing and administrative law

45:04

but you know if the headline is

45:06

the other way is that

45:09

actually a boost for Trump?

45:11

You know I like that Supreme

45:13

Court. Oh I

45:15

hated that they took abortion away

45:17

but on this one they're not

45:20

so bad. They're not so bad

45:22

after all. Is that what you're

45:24

saying? That's my question. Yeah okay

45:26

not going to happen. Okay the

45:28

issue is reproductive rights not whether

45:31

or not the courts rode back

45:33

a little. Yeah and Democrats

45:35

are still pushing to get abortion

45:37

rights ballot initiatives all over the

45:39

country to great success plus

45:42

I mean they could be like okay well they made

45:44

the right decision now what if they take it up

45:46

again in a few months or six months or when

45:48

Trump's back in office. So yeah I

45:51

don't think it's going away. All

45:53

right three votes for that conclusion. Okay

45:55

we are about out of time say

45:57

for our much-loved final

46:00

feature of Five Words or Fewer,

46:02

where we take a question from

46:04

a listener or a fictional listener,

46:08

or from Mitch McConnell. Today's is

46:10

from a Mitch McConnell in Kentucky.

46:12

My question is. 50

46:15

years from now, you look up

46:18

Rudy Giuliani's name in a US

46:20

history book. What does it say?

46:23

What will Rudy Giuliani's epitaph be?

46:26

Five words or fewer,

46:28

guests, please. Down,

46:30

down, down, down, girl. America's

46:36

mayor no more. Always

46:39

a disgraceful demagogue. Always.

46:43

You are so kind. And

46:46

with a little valedictory flourish,

46:49

how the mighty have fallen. And

46:55

we are out of time. Thank you

46:57

so much, Al Franken,

46:59

Alexei McCammon and Bob Schrum. And

47:01

thank you very much listeners for

47:04

tuning in to Talking Feds. If

47:06

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47:09

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48:23

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