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Welcome to PodSafe America. I'm Dan Pfeiffer.
And I'm Melissa Murray. As our listeners know well, Melissa is the co-host of our excellent legal podcast, Strict Scrutiny, a law professor at NYU, and an MSNBC legal analyst.
Melissa, it is always great to have you on Pod Save America. Thanks for having me back.
Really great to be here. Well, you're one of the smartest people I know, not just on legal issues, but on all things.
And we have plenty to talk about in the legal world. And I would say very little of it is good.
But let's start with the news because there's a lot out there these days. Before we get into the latest with Trump and his nominees, let's talk about the UnitedHealthcare killing.
This story is showing some real staying power, both for predictable reasons. It's a cinematic murder with spooky clues and a mysterious anti-.
And for less predictable. I believe a handsome antihero also should be said.
I think that is a big part of the same power. I was going to leave.
I mean, he seems attractive to me. I'm very comfortable saying that.
But to each their own, I would say. Would, yes.
Correct. Yes, yes.
Correct. But also for less predictable ones, namely the way the story has launched a conversation about our for-profit healthcare system.
John, John John, and Tom, we talked about the discourse around the murder on the Tuesday pod, but that was before we knew anything about the accused killer. Do you have a take on this story and why it's become such a cultural moment? Well, I think for all of the reasons that you all have rehearsed on the pod, health care sucks.
Health care sucks in this country. Obamacare was a huge step forward, but it still leaves in place a largely insurance-based system of health care provision, which is really difficult for lay people to navigate even in the best of circumstances.
And the circumstances of this killing makes clear how many people are just absolutely bedeviled by having to deal with insurance, getting denied insurance coverage for things that they need, whether it's cancer treatment or things for their children, whether their children are ill. It's just a really inhumane system.
And it has sparked this conversation in the context of a really inhumane murder, because it really goes to

some kind of experience that obviously feels universal for a lot of people. I really sort of hate the discourse about the discourse.
And so I'm going to stipulate at the beginning of this that murder is bad. Celebrating murder, also bad.
A healthcare system where the bonuses of the CEO and the value of the stock are tied to denying cancer treatments is also quite bad. But I do think that everyone in politics, and in particular Democrats, should take note of the reaction here.
And I don't mean the trolliest people online who are saying the most outrageous things and maybe chasing clout or saying things. I just mean the fact that in a time when it's very hard to capture the nation's attention, this has done so.
And that tells us something about how people feel. And it is tied in a lot of ways to what happened in the election.
I think that's exactly right. People are really frustrated.
Healthcare provision is at bottom an economic issue.

Individuals are bankrupted by their medical debt. The Biden administration was taking steps to deal with that at the end of the summer.
So it's a big deal. And I do think the fact that the discourse

has shifted now that the suspect has been identified and captured and people are actually

talking about other things, a little more humorous, a little more human, like whether they would put money on his books in prison if he is convicted. And I think that sort of shows like people are thinking about this in human terms.
I don't think people are discounting that someone has died here or someone who has a family, a wife and children, and this is a tragedy for that family. But I think what some of this discourse is speaking to is that healthcare provision is an actual tragedy for many more Americans too.
That's right. And I think it is, like healthcare is at the core of this specific issue, but the reaction to me is more, says a little bit more about how people are pissed at the system.
And I define the system broadly. It includes healthcare companies, includes drug companies, include Wall Street banks.
It includes the companies that are price gouging on gas and groceries and eggs and bacon or wherever else. It includes politicians.
It includes the media. It includes Hollywood.
It's an anti-institutionalist moment. That's right.
And Trump weaponized that in a very cynical and dangerous way. And as Democrats think about our path forward, we have to recognize the moment in which we are existing.
It can't be a moment in which we are defending institutions, that we are the protectors of the status quo. It has to be.
And I think the reaction here should suggest to us that we need to be bolder. Bolder in our messaging.
Bolder in our response. Bolder in our policy prescriptions to speak to that moment.
Because if we don't, these are the moments in which historically demagogues and authoritarians have taken power. We've just had that happen here.
And so we have to understand that a normal, this tells us, the reaction to this is not normal. And it tells us that we need something more than a typical response to it.
Yeah, I think that's right. And I think one thing that's been really interesting is the discussion over Obamacare in the wake of this.
And, you know, I'm an older person at this point. So when Obamacare was introduced in 2009 as a policy prescription and then actually enacted, it was actually radical.
I think now, many years later, yes, we can understand that it was essentially a kind of reform of the existing system. But that was a really big deal.
So I don't want to lose sight of that. But it's been a number of years.
It's been decades. It feels like people are on board with Obamacare.
Maybe this is the moment to push even further and to think about a system that would address some of the things that even Obamacare cannot. Yeah, Obamacare is at its most popular.
You're exactly right. It's hard for people who were not around in politics or paying attention to politics back then to understand how radical an idea it was because the core principle of Obamacare, for as imperfect as the process was to get it done, was that there is a right to affordable health insurance in this country.
It did not achieve that for every single person, but that was the goal. And the reasons it didn't, the Supreme Court made it worse by affecting the Medicaid mandate.
Republican governors made it worse by refusing Medicaid expansion in their states. There were problems in how the law was written, that's problems in the implementation of it, but it changed the conversation.
And now the question is what comes next? And I hope that as a party, Democrats engage in that in a bold way. And it's not as simple as Obamacare plus to Medicare for all, right? There's got to be something, there's got to be a broader conversation includes everything in the middle.
Yeah, I think that's exactly right. Independent journalist Ken Klippenstein published the shooter's full manifesto, which is really more of a memo, I would say.
I don't know if you read it, but what did you make of the decision to publish it versus mainstream media outlets' initial refusal to do so? So I actually had to dig around and find Ken Klippenstein's sub stack in order to read this, which I have to say, like, I kind of expected more of the media. I don't think you have to glorify it, but it does seem newsworthy to publish it in full.
And maybe you can have disclaimers around it, sort of explaining its provenance, like whether it can be attributed to the suspect, all of those things. But it does seem like there is a public interest in having it in full.
And I did read it. And I think it accords with this moment where we're talking about what is the average person's experience of health insurance.
And here is someone who is really railing against the system and this institution because he's had apparently a really terrible time. Yeah, I don't really have a super hot take on whether publishing is the right thing or the wrong thing.
I am generally of the view that this idea that the mainstream media can serve as gatekeepers and protect people from information is long past because just the words Ken Clemency and Substack suggest that the New York Times, the Washington Post, the Wall Street Journal aren't the arbiters of what is journalism, what people get. I'm sympathetic to the long held view that publishing these manifestos can inspire copycats.
And so everyone can make their own decision about it. But it's just this idea that you're keeping it from the public.
I remember thinking about this kind of conversation around the publication of the Steele dossier, now that we're just fully back in 2017 mode here. It's going to get out there.
And sometimes maybe it makes sense for larger journalistic institutions who have the capacity to provide context and research with it can do that as opposed to trying to pretend like it doesn't exist. So if anyone wants to read it, they're going to be able to read it, whether The Washington Post wants them to or not.
I don't want you to blame The Post, but any media outlet. I think that's a great point.
I mean, one of the things I think the mainstream media did very well, for example, with all of the different Trump indictments is, you know, to provide a guide to lay readers about how to contextualize and interpret these documents that might feel very unfamiliar to individuals who aren't lawyers. I mean, I think there could be a similar kind of contextualization, as you say,

for something like this.

I mean, there's all this discussion

about the Unabomber's manifesto

and the alleged suspects' connections to that writing.

I mean, all of that could be, I think,

importantly contextualized by journalists,

by reporters in ways that advance the discourse

rather than allowing more disinformation to flourish.

Yeah, just you have expertise that like, when there's this big debate about, you know, Elon Musk is on Twitter, saying we're all you're all the media now. And Jim Van de Heij of Axios is giving these thundering speeches saying that journalism is a special thing.
And if you journalism is a skill set, show me show your work your work. Is a skilled experience, that's right.
Use it, right? That's your competitive advantage against anyone with access to the internet and a Twitter account or a sub stack is to use your expertise, use your sources, your resources, your disposable to contextualize things. And so I think they probably missed the boat here.
Okay, let's pivot to the more pedantic news of a bunch of clowns turning the cabinet. Okay, this time last week, it seemed like Fox Weekend anchor Pete Hegseth was about to follow Matt Gaetz and become the second major Trump nominee to withdraw.
But the tides have turned. Iowa Senator Joni Ernst, who is a key voice on defense issues, who had been openly skeptical of Hegseth, put out a statement on Monday saying she supports him for at least for now.
And as of today, it looks like Steve Doocy's understudy is on the path to becoming the Secretary of Defense. According to Mark Caputo at The Bulwark, Ernst changed her mind after coming under intense pressure from Trump's MAGA allies.
If Hegseth can get through, despite his inexperience and the reams of stories about his personal failings, does this mean that the Senate is basically just going to be a revolving door for all of Trump's nominees? Probably, yes. I mean, probably, yes.
You know, I actually said this on strict scrutiny and, you know, caught a lot of strays for it. But I think the fact that Matt Gaetz sort of bowed out, rightly so, and Pam Bondi came in and was just not Matt Gates.
And people aren't really kicking the tires on that. There's been discussions of how much of a loyalist she has been, what she has done to advance the Trump cause as Attorney General of Florida, but not the kind of deep, deep digging that you would expect.
And I think that's largely because folks are tired. I mean, like they are flooding the zone with a lot of stuff.
And I think expecting everyone to get like a full and proper vetting that is incredibly skeptical and high quality, I think is just going to be unlikely. And that's really disappointing.
I mean, that is what the Senate is supposed to do. But as a general matter, the Senate isn't dealing with, on a regular basis, nominees of this caliber.
I mean, like, all of them are really, really questionable. And I just don't think that's business as usual.
I will say one thing for Donald Trump that, you know, is worth mentioning. This is a man who rewards loyalty.
And, you know, I'm not saying the Democrats should do it, but it's really interesting to me how the Democrats are always like, who's the best person for this job? Like, you know, meritocracy, where he's just like, who's my guy? Who's been here for me? And who am I going to reward? Like Harmeet Dillon to head civil rights in the DOJ. It's not because she has been good on traditional civil rights.
It's because she's been a loyalist and she's been good on the Trump administration's vision of civil rights, which is about equal rights for aggrieved, outspoken conservatives. And he rewards that.
Yeah, I'd say a couple of things on this. One, you're never going to make money betting on the courage and integrity of Senate Republicans, right? Most of these people are always are going to get through.
Damn it. That's how I was going to send my kids to college, Dan.
Yes, it is not. Basically, the House always wins in that game.
It's like playing slots in Vegas. And so most of these people are always going to get through, no matter how bad.
I mean, a bunch of really bad Trump appointees got through last time. Betsy DeVos, Jeff Sessions, most of them are going to get through here.
It would be notable if none of, people rarely get voted down. They just generally have to drop out before the process takes.
And I imagine these Republicans feel like they have, you know, they could maybe oppose one or two, maybe, but what's the upside for them? Well, don't you think the Senate really relies on journalism to do a lot of the digging and the surfacing of all the crap so that there is pressure on the nominee to sort of like come to terms with the fact that they are abjectly unqualified and not great for this position and bow out. And it just seems like the more stuff that gets surfaced, people are just like digging in and like, like there is no shame.
Well, this does speak to the diminishing influence of the media in terms of holding at least Republicans accountable.

Yeah.

The fact that it, the fact that the New York Times or CNN or the Washington Post surface

some information about Pete Hegseth or Pam Bondi or someone else is often seen as evidence of their fitness for the job, not the opposite. Because in this world, those are the bad guys.
And Republicans really are defined by their enemies. And if the New York Times is against you and the CNN is against you, that's validation of your bona fides as opposed to the opposite.
Do you remember the days when Zoe Baird

and Kimba Wood could get just completely axed simply because they hadn't paid taxes on their

nannies? I mean, how quaint does that seem right now? That's nothing. My former boss, Tom Daschle,

who was nominated to be the Secretary of Health and Human Services of Barack Obama,

had to drop out because the law firm for which he worked provided him a free car service as part of his salary,

and he did not, as part of his benefits package, and he did not cite that as income on his taxes.

And he was ditched by Democrats. Now, what is different here than the Obama age and the Clinton

age is that now the filibuster does not exist for executive appointments. So we had 59 Senate seats back then when Obama was trying to get Daschle through.
We would need at least one Republican to do it. If you lose a couple Democrats, you're toast.
Trump only needs 50 of 53. So his bar of success is lower.
But it seems like most people are going to get through. Maybe Tulsi Gabbard will be one.
And what's interesting, I think what's interesting in the Ernst thing is that Trump's theory and the theory of his mega allies like Steve Bannon and Charlie Kirk is that making Ernst publicly embarrass herself sends the message that resistance is futile. No, I think that's exactly right, which is so unfortunate because say what you will about Joni Ernst, and there's a lot you could say, she has actually been really good about advancing this question of how the military can address and rid itself of sexual violence.

And this is a terrible stain on that legacy.

The important context for Ernst's decision is that she is up for re-election in 2026.

Yeah. In a state that Donald Trump has won by double digits the last three elections.
She is in very little danger, absent some cataclysmic change in the political environment, to lose reelection to a Democrat. It's the primary.
But she could. Yeah.
She could lose in the primary. And that's what these people are threatening, is that if she opposes Trump, she becomes an anti-Trump person, she becomes this cycle's Jeff Flake or Mitt Romney, she's not going to make it.
No, they will find some car dealer in Dubuque, and they will run him against her, and Donald Trump will come out for him, and he'll win, and she'll be toast. And you're right.
Maybe he'll win, right, like Brian Kemp her, that's her only, the only risk to her re-election is in the primary. Brian Kemp is also a dude.
So she also has a gender problem. That's true.
That's true. And she, Iowa does not, although it has gotten better, a great history of electing women statewide.
But I think what is interesting here in the strategy is that Susan Collins and Lisa Murkowski have very different political calculuses than Joni Ernst. They're sort of defined as not anti-Trump.
Murkowski is somewhat anti-Trump,

but not pro-Trump, right? They're somewhat defined by their opposition to Trump on some things, not named Brett Kavanaugh. And then Tom Tillis is up for reelection in a state where Republicans,

he has more leverage because if they ditch Tom Tillis for the car dealer from Wilmington, North Carolina, that person could very well lose while Tom Tillis would be favored in that race. They saw that in Iowa, whoever is on the Republican ticket is almost certainly winning.
In North Carolina, that's less of a guarantee. But do you think there are some

downsides to this strategy, the bullying strategy? No, because it's working, right? I mean, this is what they do, and it works. The real question is, would it work for everyone? Democrats, sometimes it works, but more often it doesn't.
But it seems to work for them. And again, I think Trump is a kind of singular figure in the Republican Party.

And the idea of him against you, I think, really does inspire fear among some of these sort of rank-and-file Republicans. And they're just loathe to step out of line.
And I think we're seeing that here. Part of the reason why this strategy likely works, although he has little margin for error, because Collins, Murkowski, and Mitch McConnell, who's never running for anything again, and doesn't exactly love Trump, that puts you at 50 exactly.
So then you only have one more to lose. And so they're still operating with little margin for error.
But the reason why it works better than it used to is the only Senate Republican representing a state that Kamala Harris won is Susan Collins. Yeah.
And so just you have a lot of leverage and most of them are representing states that Donald Trump won by large margins. Yeah.
So they don't feel pressure. They almost no one ever feels pressure from the middle anymore.
They only feel it from their ideological flank on the Republican side. We still have a bunch of Democrats who are in battleground states who are in a different situation.
No, I mean, that's the way it is with judges, too. I mean, the fact that you only need a majority, a simple majority to confirm a judge means that they can advance these really ideological picks.
And all they have to do is just like shore up their base, and they can get people in line because they do have this following in these individual states. And if you go against them, they'll run someone in a primary and you're toast.
And I think this partly explains Susan Collins and Brett Kavanaugh entirely, but it was a harbinger, I think, of things to come. I'm sure that the way in which the Republicans bullied Joni Ernst is probably very frustrating to Democrats who wish Biden could have done something similar to Joe Manchin.
Yeah. But it doesn't really work that way because Joe Manchin's in a state that Donald Trump had won by nearly 30 points the time before.
And so he could easily switch parties, which did actually happen once for this is where I am dating myself. But in the year 2001, George Bush was super pissed at Vermont Senator Jim Jeffords for opposing him on taxes.
So they attacked him and in the ultimate pettiness disinvited him from the White House ceremony honoring the teacher of the year who happened to be from Vermont. And Jim Jeffords switched parties and gave the majority in the Senate to the Democrats.
I remember when that happened. don't think that's going to happen in this case, but there are risks to it.
Yeah. Which is sort of why he treats Susan Collins a little bit with kid gloves, because not that I think she's going to leave parties, but she has leverage that Joni Ernst does not.
That was a really great moment. That was truly the fuck around of times, the find out of times.
And I wish we could see that again. Good stuff.
Good stuff.

That was, you know, like six months before 9-11. I remember that.
That was probably the last moment of the 90s, right? Even though we were well into 2001, that was the end of the 90s. Yeah, I remember where I was.
At least 90s politics. Like someone was like, and Jim Jeffords is going to caucus with the Democrats.
And they were so excited. Yes.
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And I know you were crushed not to be able to come on to talk about the prospect of Matt

Gates for attorney general, but he does have a consolation prize for you and America.

Let's take a listen.

I could not be more excited to join the One America News family.

The best reporting, the best analysis, and the most in-depth coverage of the Trump administration is going to come from our team. I've got the sources.
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There's no place that's going to cover it better than One America News. Melissa, how excited are you for Anchorman Matt? Not very.
I will say, I didn't realize that's what OANN stood for. I've just been calling it OAN and I didn't realize it was One America News Network.
So thank you. That was good information.
I didn't know. And now I do and I can't unhear it.
But yeah, I actually preferred him better on the Cameo platform. Are you thinking of getting yourself a Matt Gaetz message for some of your Strix co-hosts? Well, Leah Lipman has an upcoming birthday, and I did submit a request.
Oh, interesting. I'm not clear if it will be granted, but...
Yes, we'll have to find out what's in his OANN contract, I guess.

I mean, yeah. But I do think, you know, that was a good platform for him.
As the ladies on Hysteria said, cameo is like OnlyFans for ghouls. And I kind of like that.
It's very good. I think it's just, it's probably, like, this is ridiculous.
He is ridiculous. if I were to try to divine some larger point out of Matt Gaetz ending up on OAN at the end of this, which we should note is the third tier right-wing pro-Trump network.
It is a distant third to Fox and Newsmax. So you are far down the line here.
It probably says something about where political power exists in the Republican Party, that he is more likely to build a following and maintain his relevance doing right-wing propaganda than being at a think tank or running for a local office or something else. The consolation prize for is news anchor is just kind of probably does underscore the idea that and this is Gates has always understood this that attention is power in mega politics.
And so he's looking for attention. Don't count out one American news network.
I think this is actually a very savvy move for them to build their audience like they're making a move to be a player. Watch this space.
And I don't say that with any admiration. I genuinely think that's likely to happen.
I would love to know what he's getting paid for that. Oh.
I think. Well, I mean, he's already wealthy.
He comes from a wealthy Florida family. And he probably doesn't need it.
But I'm sure that they are paying him enough to make this worth his while. I mean, this is a nine to five, like he's getting paid.
I kind of thought they had disappeared because when they were kicked off DirecTV back in the day, there's another 2017 moment, but I sort of thought OAN, it was sort of like on the downward slope, but maybe this is their comeback. Their comeback is made.
There is a redemption arc here, like redemption in the loosest sense of the word. And again, I say watch this space.
All right, we will do so. Okay, one other Trump appointment I want to get your take on.
We learned yesterday evening that the next ambassador to Greece would be none other than Kim Guilfoyle. The appointment comes after a report in the New York Post that Guilfoyle and her fiance Donald Trump Jr.
broke up after several years. I know you, like me, are a fan of reality TV, and this has real Bravo vibes.
So let me clear out the space and hear your thoughts on Kim Guilfoyle, Greek ambassador. I'm so glad you asked this.
First of all, why Greece, right? Was Percy Jackson unavailable? Does she have a connection to Greece? I don't know. But I think you're exactly right.
If she is ready, this is an amazing Bravo show about a plucky television journalist teetering around Athens in extraordinarily high heels and putting back together the shards of her broken heart after a tumultuous relationship and breakup. This is going to be fantastic.
If she can lean into it, you can have her setting up the embassy in Athens, hosting all of these parties, like kebab night. It would be fantastic.
And I would watch. Like 10 out of 10 would watch.
And yeah, this is a consolation prize. I think they think it's a consolation prize.
I'm like, girl, this is your redemption arc. Like, this is the best thing that could happen to you.
Like, being ambassador to Greece is a zillion times better than being Mrs. Donald Trump Jr.
I will, I would definitely stipulate that that is probably true. This is the probably this is the Bravo version of the Netflix show The Diplomatat i also think there's a little bit of hush money here like who knows what she knows oh yeah yeah who knows what she knows she's been around everything she was accused of some sketchy of involved the best is yet to come the best is yet to come and this is a woman who went from being married to gavin newsom to almost married to donald trump j.
Who knows what chapter three is here, right? So you can stick her in Greece for a few years. It's only going up, right? Yes.
I think they are probably grateful she accepted this job because who knows what she was going to say. Because if you, we don't need to get into the gossip here, but if you read the New York Post report, Donald Trump Jr.
has moved on quickly. Yes, to a younger model.
It seems to be an Apple not falling far from the tree trait there. I mean, I think this is great for her.
It's probably a better outcome than she deserves. Well, that's for sure.
Okay. All right.
Trump's threat on Meet the Press this weekend to GL members of the January 6th committee has raised pressure on the Biden White House to consider some sort of preemptive pardons for people like Anthony Fauci, Liz Cheney, and anyone else who's on Kash Patel's literal enemies list. We've talked about the politics of these pardons on recent pods, but it probably makes sense for us to get thoughts from an actual legal expert.
So let's start with the basics. Can a president really pardon people for crimes for which they have not been charged? Yes.
See Gerald Ford pardoning Richard Nixon. Yes.
Like very recent example of this. There is a Supreme Court case from 1866 called Ex Parti Garland that basically says the president's authority to pardon is unlimited except in cases of impeachment.
So you can't just sort of pardon for things for which the president has been impeached, but it can otherwise extend to every offense known to the law and able to be exercised either before legal proceedings are taken or during the pendency of legal proceedings or after conviction and judgment, which is usually the case. But again, Ford pardoned Nixon before Nixon had been formally convicted or even indicted on any crime.
And again, it was sort of to clear the air, like end this long national nightmare, as Ford said. But, you know, there is an example.
To be very clear, this question of a preemptive pardon of that sort has never been confirmed or blessed by the United States Supreme Court. So there may be some question of first impression were this to be challenged.
Again, the Ford pardon of Nixon was never challenged and did not make it to the court. But there is a lot of case law that suggests that the pardon power is broad, is absolute.
The most recent of this case law is the immunity decision from last summer that said as much. So, you know, yes, I think Donald Trump could do this.
I think Joe Biden could do this. And we'll see what the Supreme Court has to say about it.
I imagine it will, it might depend, the court's response might depend on whether a Democratic or Republican president is advancing. No, no.
I mean, I know it. I know.
I know. I'm so jaded in my dotage.
Well, let's just, I want to put a finer point on this. So I'm not going to, I'm going to make up an imaginary person for this example.
But let's say Biden does a bunch of preemptive pardons for people who worked in his administration, did the things that he asked them to do, did them legally. And then, so it's a blanket pardon.
And then we find out a year from now that this imaginary person I just made up embezzled money from the federal government. That person could not be prosecuted if it happened during the period of time in which the pardon was issued.
I mean, it depends on how the pardon is written. If it's sort of broadly any crimes during this period of time, like the Hunter Biden pardon, for example.
I think that's a real question. I think that's a real, I mean, obviously, that isn't perhaps what the president is contemplating in issuing this pardon to someone who works for him.
I think it's likely to insulate that individual from legal liability going forward for things done in the scope of that person's job. But if the pardon is written broadly, it could include these things that fall outside of the perimeter of that person's job.
And then I think you definitely have a circumstance where we're teed up for some kind of legal challenge, maybe one that even goes to the Supreme Court. But again, the power is absolute until the court says it's not.
Given what Trump said on Meet the Press, given the people he's appointing, Kash Patel, Pam Bondi, do you think Biden should issue these pardons? Would it be a good idea? And if so, how should he go about doing it? I think there's definitely a case to be made to do it for individuals within the administration, sort of rank and file workers who are not covered by the immunity decision who might likely be prosecuted or targeted by the next administration. I think for some of the more high-profile people like Adam Schiff or Liz Cheney, that's a harder question in large part because those individuals don't seem to want pardons, or at least Adam Schiff doesn't, because a pardon suggests that the conduct for which you are being pardoned was actually criminal, and they don't believe that their actions were criminal.
In fact, their actions are not criminal. And so, you know, there is a kind of signaling that goes on when one receives a pardon.
I mean, think about the way we have talked about the Roger Stone pardon, or, you know, Paul Manafort. I think there is some fear that there is a signaling effect and being lumped in with a group of people to whom pardons had been issued would suggest that you are someone who is a criminal and they're not willing to take that step.
But again, it might actually be something we're thinking about for some of these rank and file people who genuinely were just doing their jobs and are likely to be targeted. Yeah, I've been really torn on this one.
The signaling issue is real. I put myself in the position of what if Donald Trump had issued a bunch of these on the way out the door? Yeah.
We would assume all of that. We assume that was just basically an admission of guilt in all, and very well might have been, right, given the history of the people he pardoned or was likely a pardon in that hypothetical situation.
But then also, it is, I mean, the Kash Patel situation, and speaking of nominees who seem to be cruising to confirmation, is a very dangerous situation. And I mean, you can speak this better than I can, but when a law enforcement goes digging around, if they want to find a crime to charge, they often can find a crime to charge.
Because what's the saying about indicting a ham sandwich? Yeah, like a grand jury will indict a ham sandwich. Like the standard for a grand jury indictment is so low that it's very easy.
Yeah, I think that's right. And again, I know you've talked about the Hunter Biden pardon on the pod.
Yeah, I want to get your take on that. Oh, sure, sure.
Again, I think it is very likely that there would have been additional targeting of Hunter Biden in the incoming administration. And so it makes sense.
I'm not especially mad at President Biden for doing this. I actually think the outcry among Democrats about the Hunter Biden pardon is largely because it speaks to another impulse that Joe Biden has that I think people would like to be really mad about and for whatever reason just cannot.
And that's Joe Biden often says he's not going to do things and then over some period of time manages to reconsider and to prioritize his own personal interest in doing something over the principle that he previously stated. And so, you know, Hunter Biden's pardon after Joe Biden expressly disclaimed the prospect of a pardon for him also, I think, reflects the way Democrats might feel about the fact that Joe Biden said he was going to be a one-term president and a bridge to the future, and then ultimately decided to run again when he likely should not have.
And now we are on the precipice of a second Trump administration. I mean, I think that's really what has people mad, not the pardon itself, but this idea that it kind of speaks to a personal proclivity that is just not great and has actually been harmful in some way.
Yeah, I've really sort of gone through a process on this. Before the election, I said, I sort of thought to myself, he should definitely pardon his son, right? Especially I was in my head, it's like Kamala Harris wins, he stepped aside, he did this, Let him have this.
And then when he did it, I was initially mad at the way he did it. I was mad at the timing.
I was mad at that you just sort of- I broke that news. I was the one on MSNBC just filling in for someone after Thanksgiving.
And they're like, by the way, there's some breaking. I'm like, really? Right.
On a Sunday night. Without explaining it or defending it, right? And that put the Democratic Party in a top, his defender, people who want to defend it put in a top position because he did not articulate his reason.
I thought that was sort of political. Well, he did issue the statement.
Right, but you sort of like, this is not 1928, like you got to go on camera and defend it. Right away, yeah.
And he has paid, to the extent that he can pay a political price or there's a poll out this week that shows that two in 10 Americans support the party. Yeah.
When I think that number could be higher if he had gone out and defended it. Yeah.
And explained. As he wrote in the thing.
Right. As a president and a father.
And the more I thought about this, if I was sitting there with the power to keep my son out of prison for a nonviolent crime for which I believed he had been prosecuted for primarily because he was my son, I would do the same thing. For my son, my daughter, I would have done that.
And I think you could probably explain that to people. Maybe that's right.
Maybe that's wrong. But the reason why people are mad, you're right about this.
It's a proxy for – and I think this is my initial reaction too. It's that people are mad at Biden.
Democrats are mad at Biden for the position that he put us in in this election by running for re-election and then waiting a month after that debate to stay in the race. Prioritizing his own personal interests over principle or party.
And I'm going to catch stories from all the fans who – but I do think that's what people are mad about. I think people understand, as a father, why you would do this.
I think people understand that this was like the most uncomfortable Thanksgiving in Nantucket ever with Jill and Hunter like just on him. I think the statement also, I think Hunter had something to do with the statement.
Like not all of that is Joe Biden's voice, I think. I think some of that is very clearly coming from the family.
I just imagine Joe Biden, like that Ben Affleck meme, like, you know, on the porch after Thanksgiving, furiously smoking, because he is like, he has been getting it all weekend. And yeah, this is the output.
But I don't think that's why people are mad. And I don't think that's why people don't support this pardon.
It's something bigger. Do you think this is a pardon that could be challenged? Again, the Supreme Court has already said that the pardon power is that— But it's written broadly in a way.
It's written very broadly. I mean, it's a 10-year span.
And yeah, I think it could be challenged, but I think it's unlikely to be challenged. And I think if it were to go to the Supreme Court, I think this is pretty airtight.
I think the court would have to really go back on some of its prior precedents talking about pardons, including the immunity decision in order to undo this. Yeah, I would also it would also be remiss of us not to mention the fact in any conversation about pardons that Joe Biden's gonna issue is that Donald Trump has pledged once again, to issue pardons for the January 6th riders when he gets into office.
I think this is something Joe Biden really should get on right now, not the January 6th protesters and their pardons, but the clemency power is woefully underutilized by presidents. And there are a lot of people, low-level drug offenders in federal prison, people who are hemmed up on conspiracy charges, like women who have conspiracy charges because they may have been around while their boyfriend was doing major kingpin stuff.
That happens all the time. And there are lots of people in federal prison who could benefit from the kind of rehabilitative and redemptive instinct that has benefited Hunter Biden and will likely benefit these January 6th.
And I think this is the moment not just to preemptively pardon those in the administration who are likely to be targeted, but to use the clemency power to meaningfully affect the lives of a lot of other people, many of whom are black and brown. I think, you know, one of the reasons, and again, this is just me riffing, I think one of the reasons that Donald Trump did better than expected with some constituencies, including black men, is that he actually used the pardon power a lot for Kwame Kilpatrick, the embattled mayor of Detroit who had been convicted.
I mean, that stuff, I think, is actually meaningful in communities where the impact of the criminal justice system is deeply and keenly felt. And not to mention, he worked with one of the most famous people in the world on many of those pardons, U.S.
pardon attorney, Kim Kardashian. It was on multiple episodes of the Kardashians.
Attorney is a generous term for this, but yes. Yeah, I mean.
I mean, there was a lot of coverage on social media. There was her in the White House.
It was on literally multiple episodes. It was a season arc on Meeting the God.

I mean,

I came out of the curve. There was a lot of coverage on social media.
There was her in the White House. It was on literally multiple episodes.

It was a season arc on Meeting the God,

Keem up with the Kardashians.

That is a meaningful thing that you can do

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I mean, a redemption story

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This is something that has been eating at me since the election. I've been meaning to talk to someone smart about it.
I now have you here. So I'm going to use podcast co host privilege to get into this.
But think about it this way. And this is a very painful way to look at it.
But if there had just been a shift of two points in Michigan, Pennsylvania and Wisconsin, Donald Trump could very well be headed to prison instead of the White House. Now, it probably seems bizarre to the average American, not that I consider myself the average American, but should winning an election really be a get-out-of-jail-free card? So I wanted to go through with you, who is once again an actual expert, what is going to happen with Trump's criminal cases.
And I wanted to start with the crimes for which Trump has already been convicted. The Hush Money trial in Manhattan and Trump's attorneys are trying to dismiss the conviction.
Manhattan DA Alvin Bragg laid out some alternative scenarios, including treating Trump like he's dead. Can you explain to us lay people what is happening there? Okay, so Alvin Bragg, I want to be really clear about this.
Alvin Bragg is standing on business and defending his conviction. So the first thing that he has been very clear about with Justice Marchand is that dismissing this indictment after a trial and a guilty verdict because the defendant later won an election would actually damage the judicial system.
It would undermine the public's perception that the system is fair because it would be like winning an election is a get out of jail free card. So he has made that argument.
Nevertheless, I think there is broad consensus among law school professors, constitutional law scholars, that you can't have a state criminal prosecution of a president while he's in office for a number of different reasons. Some of this has been fleshed out by the Supreme Court, but in the context of civil cases, but criminal cases where the stakes are just higher.
You mean the Paula Jones case? Yes, Clinton versus Jones. And the stakes are just higher in a criminal case.
So, I mean, I think there is an argument to be made that while he is president, that can't happen. Now, to be clear, Alvin Bragg has been very straightforward that he is not the president right now.
He is the president-elect. There is no immunity for the president-elect.
And for that reason, you could have the sentencing happen now in advance of January 20th. And then you could sort of hold the sentence and the fulfillment of it in abeyance until the end of his term.
So Alvin Bragg lays out two possible paths for this. So again, one is just suspending the case until Trump's term is over, you know, like maybe sentencing him now and suspending that, the completion of the sentence until his term in office is over.
Or alternatively, not sentencing him now and holding all of it over until after the completion of his sentence. All of that, you know, are possibilities.
There's a second option, and this goes to your treat him like a dead man point. The prosecutors, and that's kind of an interesting point, they suggested that Judge Marchand could look to what is known as abatement, which is a procedure by which when a defendant dies after a verdict has been issued, but other aspects of the case remain pending, you just sort of abate the prosecution.
And that preserves the conviction, but ends any further proceedings. And I think that's sort of the last best scenario for Alvin Bragg, because it makes clear that this was a sound conviction.
It holds as a conviction. It just kind of kills everything else, including the sentencing going forward.
So he's offered a couple of different paths for judge slash justice Merton. He's actually justice because he's a New York trial court justice.
Oh, sorry. I messed that up.
I apologize. No, I mean, nobody knows.
It's kind of vigory. I should.
There was a period of time in my life when I knew that, and I had wiped it from my brain. Well, I mean, as you should.
But I think, again, that's sort of the TLDR of it. And I think the real bottom line is Alvin Bragg is really working to preserve this verdict and the conviction that flows from it.
As he should. Yeah.
It's insane that they would dismiss the conviction because they didn't know he was going to be president when they did it. Like, that's insane.
It is insane. Like, it is a, it makes, that is one of the things that make zero sense to human beings.
He committed a crime, a jury of his peers, heard the evidence, they rendered a verdict. And then afterwards we're like, oh, sorry guys, we didn't realize how important he was.
So we're going to take that one off the books. Like that would be insane.
Yeah. And so I certainly hope justice Mershon or the judges who are hearing this do not do that because that that is nuts.
OK, I'm also curious about the Fulton County prosecution. This one sort of got lost in a whole bunch of minutia and and hearings and such.
But it is a local, not a federal case. Trump can't fire Fannie Willis or director not to prosecute him.
What's the latest with that case? Is it possible they could just put it on pause until Trump's out of office? Well, I mean, that case has already been kind of mired in all of this procedural stuff. So you'll recall that Willis had all of those ethics concerns because she had appointed her then boyfriend to be part of the prosecution team.
She was told by the trial judge that she could stay on the case as long as her boyfriend resigned from it. And that happened.
But then a state appeals court was scheduled to review that question of whether or not she could remain on the case. They were scheduled to consider whether she could do so this month.
But they recently canceled that hearing after the election because Donald Trump won and Trump obviously denies wrongdoing here. What happens next, I think, is really unclear.
If the appeals court decides that Fannie Willis is disqualified and cannot remain on the case, then the prosecution goes to a state board of prosecutors who decide whether or not the case is going to continue. And if it does continue, they'll assign a new prosecutor.
This has typically been a scenario where cases go to die. Like, I mean, there are currently cases pending.
I'm one involving Fannie Willis, from which she was disqualified because she had held a fundraiser or participated in a fundraiser for someone who was involved in the case. That case was never staffed up with a prosecutor.
It took a very long time for that to be worked out. So that's a place where a delay could be indefinite and, you know, could be the case could be killed entirely or the effort to find a new prosecutor could delay it substantially.
Even absent those considerations, there's still the looming question of the Supreme court's decision in the immunity case, which does impact the Fannie Willis prosecution because much of that conduct for which Donald Trump and others were indicted occurred while he was president. And so you still have the same kind of questions that attend the Jack Smith prosecutions and the January 6th election interference case.

You know, is this within the scope of the president's duties?

Is it in the outside perimeter?

Like, what's official?

What's unofficial?

So I just don't have a lot of faith that there's much that's going to happen in that case.

So don't circle 2029 on my calendar.

Yeah.

Yeah.

You're to be in Atlanta.

I mean, I don't think this is. Yeah.
I mean, this is I would not buy a ticket to Atlanta necessarily. OK.
All right. For this recently, there are a lot of other good reasons go to Atlanta.
OK. Special counsel Jack Smith plans to resign before Trump can fire him.
And so the both the classified documents in January six cases, which at the time seemed kind of open and shut before the Supreme Court got involved, will simply disappear forever without Trump ever facing accountability. What do you make of Smith's decision? Why is he resigning? I think he's going to resign because he otherwise would be fired by Donald Trump on January 20th.
So this sort of allows him to step back. He gets out of it.
It allows the prosecution to be wound up and perhaps a report to be issued by the DOJ. So there's time to prepare that report and then for the attorney general to issue it, maybe issue it to the public.
I think that might be part of the calculus here. Those cases were dismissed without prejudice, which means that the judges have made no statement about the merits of the underlying charges or whether the prosecution would have been successful or unsuccessful in establishing their case.
So, you know, that is something, you know, maybe a Democratic president could take this up again in the future, although I think it's highly unlikely. I think if we get to a Democratic president in 2028, I think this country, I would hope, would be willing to just like turn the page on this episode and just like just be done with it and like move on and like to something better, I would hope.
I mean, I know this is just tilting at windmills here, but it is just wild. I know.
He's going to get away with all of it. I mean, I can't like...
He may face political accountability in the end here. The Republican Party may end up facing political accountability in the end here.
But it's just that you can win an election and all your crimes go away. Because you can fire.
And this is, Jack Smith seems like to be a man beyond reproach. But stay on and get fired.
Make Trump fire the special counsel, right? At least get the echo of Watergate. Make him take the action to dismiss the crimes against him.
That's what I would do if I was him. Maybe he's literally winding this up and heading back to The Hague in the hopes that he will not be extradited by Cash Patel.
Maybe he is busy packing his boxes to move to a non-extradiction country. That's exactly right.
Maybe that is what he's doing. I guess he does.
It's easy for me to say that I would stay on and get fired when I am not specifically mentioned, to my knowledge, in Kash Patel's book. So maybe that is what he's done.
I do have to ask because I know Merrick Garland in his time as a judge was sort of revered as one of the all-time greats. But it really feels to me like he really screwed the pooch here.
If he had started the January 6th investigation earlier, we could have at least had a resolution before election day. He waited until basically Liz Cheney and Adam Kinzinger bullied him into doing a prosecution here.
What is your take on his approach? Has he damaged his legacy here? I mean, I think Merrick Garland as a judge was one of the greats. Yeah, he was a great judge in large part because he was deliberative.
He was contemplative. And those qualities that made him a great judge made him a terrible attorney general for this moment.
And, you know, that's unfortunate. I think a different attorney general would have taken a different tack here.
I mean, the strategy of pursuing the rank and file January 6th protesters first, and then sort of going up the chain, and then starting late on some of those rank and file protesters, I mean, like, it was just every, it was all going to come down to the election. And maybe that was by design, like maybe, you know, they felt that this should have been something that was sort of left to the voters to decide.
And, you know, the voters have decided. But there's also an argument to be made that a different attorney general might have started and gone top down.
And that would have been a more effective strategy, at least for resolving. The one thing that really strikes me as deeply problematic about these cases not getting to trial is that trials are a mechanism for surfacing and ventilating information to the public.
And I think the public had a right to hear the case against Donald Trump and to judge whether the government had met its burden

to establish guilt beyond a reasonable doubt. Like some would say that the January 6th special committee did some of that, had a kind of public airing of that.
But that is really what a trial is for. And I think the public was just served by not having that opportunity.
Yeah, I think when the history of this time is written, Merrick Garland is not going to be covered in glory. No.
Because he just was not the right person for this moment, right? He is like, to borrow a phrase from the Godfather, he is not a wartime conciliary, right? And I think Biden, to a certain extent, suffers from a similar challenges. They were constitutionally and experientially not- They were institutionalists.
Prepared for, institutionalists for this moment against someone like Donald Trump. They thought he was going to go away on his own.
Mitch McConnell made the same thing. If you could define this period in one thing, it's that a bunch of institutionalists making the wrong decisions about or misjudging where politics are going and suffering catastrophic consequences for it.
Yeah, I think that's a great point. I think they did expect he lost.
He's going to tuck his tail between his legs and go off. No, that's not this guy.
This guy has another arc in him, and we're going to see it now. I also think, and this is in the vein of the institutionalists, Joe Biden was, I think, more principally focused on rebuilding the DOJ as an independent agency.
And for that, maybe Merrick Garland was the perfect person. And the accountability piece probably didn't get attended to.

Like, that wasn't top of mind either for the president appointing him, nor for the attorney general who would take on the charge.

The real charge was rebuilding morale in DOJ and making it independent of the White House. We'll see how that works going forward.
There was an interpretation of the 20, I mean, I could honestly talk about this for years, but there was a interpretation of the 2020 election that it was a validation of norms. It was a rejection of norm breakers and anti-institutionalists.
And I still think back to a conversation we had on this podcast with our very good friend, Jen Psaki, about being press secretary. And that one of the things that the President Biden said to her was that it was very important that she do the press briefing on a daily basis the way it's always been done.
Because there's always been this discussion about how you change it to make it meet the modern media environment, but Biden wanted to return to norms. And I understand that instinct.
Like, it's not wrong, but in hindsight, that's not what that election was about. And the idea, like, it was not – the DOJ should be independent.
I'm not saying it shouldn't be.

But there is actual independence, and then there is perception of independence.

Following the exact normal process where career prosecutors looked at the evidence and then made a decision was not the process that actually happened.

What actually happened was sort of a political decision that pursuing Trump would look like, would undermine the image of independence. And you were never convinced of a lot of people that the Justice Department was actually independent.
So you've just got to do your job the right way, the way it's supposed to be done, and let the consequences fall where they may. And I think this is exactly, it's the same mistake that Jim Comey made with that letter to congressional Republicans at the end of the election.
It was trying to appease the unappeasable with the illusion of independence when it is not actually independence. It's actually bias for the purpose of showing independence.
Yeah, I think that's exactly right. Okay.
That unhinged rant for myself is probably a good place to end this. Melissa, thank you so much for joining us.
Wait, I have one more hot take. Can I offer one hot take? Go, go, jump in.
Go, go, go. I have been listening to Pots of America regularly since the election.
I was like, I just want to offer. Oh, did you just learn about us? No, more regularly than usual.
Like, I mean, now I'm like, I'm tuning in every time. You always listen to the Friday pod.
You probably, you're probably mixing in some love it there periodically. I get it.
Actually, my husband and I binge it on long drives, but we haven't been driving, like doing long drives recently. So I've actually been doing it while I work out in the morning.
And so I've been watching like much more regularly that I usually just like get you all in like two hour chunks, but now it's like, I'm on it. So I want to offer just a take.
Like, again, I'm just riffing. I'm not a real political person.
So I'm like, I'm a law professor. But it strikes me living in New York City that this election, and I know lots of people have talked about how New York City is sort of drifting to the right, certainly in the outer boroughs.
And I think that's right. I used to live in Oakland, California.
Oakland also had a really interesting election. I think you have said this, and I think you're exactly right.
This election was marked by real anti-incumbency flavor. And I think that's exactly correct.
But I want to just offer a different slant on it from the perspective of someone who lives in a blue state and has lived in blue cities. I don't think the interest in Trump, even in New York City, where people are sort of drifting to the red, is a deep-seated interest in Donald Trump.
I do think it is perhaps a referendum on the failures of blue state, blue city governance. I see this in Oakland, where they recalled the mayor and where everyone in Oakland knows that you can live in a fancy neighborhood and pay a shit ton of taxes and you still have to get a private security force to police your neighborhood because the police don't come.
I think people in New York City feel this way. You are paying a ton of taxes in a blue city, in a blue state, and the services are really negligible.
You may not feel comfortable sending your kid to public school or the public schools are failing in many respects. The services are not what your compatriots around the country receive in their red states.
And, you know, things like the subway are not unsafe, but they are unpleasant in many respects. And so the question, I think, for a lot of people is like, what is blue city governance? Like what does progressive governance mean? And why should I expand it to the national level? And I think that's a challenge that Democrats really need to take up in this moment when they are in the wilderness.
How can we make blue state, blue city governance appealing? And this is why Jared Polis gets so much airtime because he's managed to make it look really appealing in Colorado. And I just don't think it's necessarily appealing in all of these other states.
It's not that people are abandoning progressive values. I think they just want government to work better than it does.
And if the Democratic Party could kind of lean into that, like how can we make the Democratic Party be the party of doing shit right and better? It would really go a long way to addressing some of these Trump-curious voters who drifted in this election. That's just my personal take.
That's not a hot take. That's a great take.
Thank you. That is a great take.
As someone who rides the subway. I mean, I obviously have a lot of friends who live in San Francisco and in Oakland and New York and places in Chicago, places like that.
And you hear this all the time, right? Just disorder, right? Yeah. Everything from riding the subway to having to get someone to unlock the anti-shoplifting case for your shampoo at CVS, right? Dan, did you read that New York Times article about the Chinese Americans in California who drifted to the right? If you just expunged any kind of ethnic markers, it was basically about everyone living in Los Angeles and Oakland and San Francisco who are like, I just want the city to work.
That was basically the whole argument. Like I want crime to be dealt with.
I don't want the police to be over-policing, but I do want them to be doing some policing. You know, I don't want to park my car and have it bipped when I go to the Safeway in downtown Oakland.
Like, that's what it read to me. And I just, I don't know, maybe Ben Wickler, whoever runs the DNC, like that seems like something they should get on board with.

Yeah, I think absolutely.

In our analysis of it, that is a big part of, especially those huge shifts in California,

New York, New Jersey, places like that.

It's worth looking at.

Okay.

All right.

We're not trying to date Republicans.

That's not what we're saying.

We just want things to work better.

Is that a thing?

I don't even know.

I mean, we started with Luigi and his mugshot. I think we should end right here.
No one's trying to date Republicans. I learned that on Hysteria too.
Okay. A couple of quick things before we go.
If you love hearing Melissa on today's show, I would urge you to check out her podcast, Strict Scrutiny, with her co-hosts, Leah Lippman and Kate Shaw. Every week, they break down SCOTUS arguments, no law degree required.
In the latest episode, they dive into the court's big case on gender affirming care for minors. Melissa, anything you'd like to add? We are so into this moment at the court.
I just want to be really clear about it. The court is going to be like a bag of dicks for the next four years.
But we are totally committed to making it understandable to you, pointing out when they are being inconsistent,

pointing out when they have emotional support billionaires.

The court is something I think feels really inaccessible.

It's not.

You've got to get in it.

This is where good policy goes to die, and you've got to be on top of it.

So tune in to Strict Scrutiny every Monday.

I love Strict Scrutiny, not just on long car drives.

I listen to it all the time. Catch Strict Scrutiny every Monday.
I love Strict Scrutiny, not just on long car drives. I listen to it all the time.

Catch Strict Scrutiny every Monday

or wherever you get your podcasts.

Also, we just announced

new Love It or Leave It LA dates

for spring 2025.

Join Love It every Thursday

starting January 9th.

He'll be sifting through the week's

most important and absurd news stories,

skewering the biggest names in politics,

and sitting down with a special celebrity guest

for a one-on-one conversation

you won't want to miss. We have some big names for the first few shows, including Joel McHale and Rachel Bloom.
Head to crooked.com slash events to see dates and grab tickets. See you there.
That's our show for today. Thanks so much, Melissa, for being here.
John and I will be back in your feeds with a new show on Friday morning. Bye, everyone.
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The show is mixed and edited by Andrew Chadwick. Jordan Cantor is our sound engineer with audio support from Kyle Seglin and Charlotte Landis.

Writing support by Hallie Kiefer.

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Thanks to our digital team, Elijah Cohn, Haley Jones, Phoebe Bradford, Joseph Dutra, Ben Hefkot, Mia Kelman, Molly Lobel, Kirill P, relationship issues, and bodily ailments. With that kind of drama that seems to follow me, you never know what's going to happen.

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