“Little Ronny Pudding Fingers.”

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Speaker 3 Welcome to Pod Save America. I'm John Favreau.

Speaker 5 I'm John Lovett. I'm Tommy Vitor.

Speaker 3 On today's show, Lil Ronnie Pudding Fingers finally responds to Trump's attacks and quietly signs a six-week abortion ban in Florida.

Speaker 3 Kevin McCarthy has a new debt sailing plan that's probably dead on arrival.

Speaker 5 You know, he may not have wanted to sign it, but his fingerprints are all over it. Putting.
Boy.

Speaker 3 Pudding fingers. The proof that

Speaker 3 the Democrats' Dianne Feinstein problem is not going away, and neither are Clarence Thomas's ethics scandals.

Speaker 3 Then we talked to crooked zone Max Fisher about the epic defamation case that's set to begin this week between Fox News and Dominion Voting Systems. All right, let's get to the news.

Speaker 3 The Republican presidential primary primary starting to give off some 2016 vibes. Donald Trump has been attacking Ron DeSantis as a grandma-killing establishment rhino pedophile for weeks now.

Speaker 6 That tracks you.

Speaker 3 But it was this MAGA super PAC ad that finally prompted DeSantis's ironically named never back down super PAC to respond.

Speaker 7 Ron DeSantis loves sticking his fingers where they don't belong. And we're not just talking about pudding.
DeSantis has his dirty fingers all over senior entitlements.

Speaker 7 Tell Ron DeSantis to keep his pudding fingers off our money.

Speaker 3 Here's the response from DeSantis World.

Speaker 9 Donald Trump is being attacked by a Democrat prosecutor in New York. So why is he spending millions attacking the Republican governor of Florida?

Speaker 9 Trump's stealing pages from the Biden-Pelosi playbook, repeating lies about Social Security. Trump should fight Democrats, not lie about Governor DeSantis.

Speaker 3 What happened to Donald Trump?

Speaker 3 The Super PAC also ran this online-only ad about Trump that was targeted at Republicans who attended the NRA convention in Indianapolis over the weekend, where Trump spoke, but DeSantis did not.

Speaker 9 Trump promised NRA members he'd have their back. But when Second Amendment rights came under attack, Trump abandoned us.
You guys, half of you are so afraid of the NRA.

Speaker 5 I like taking the guns early.

Speaker 9 Take the guns first. Trump cut and run like a coward.
Trump, the gun grabber, doesn't deserve a second chance.

Speaker 3 All right. What do you guys think of these ads?

Speaker 3 Take on the strategy behind them, and do you think they're effective, Tommy?

Speaker 6 The pudding thing worked.

Speaker 10 It's weird and gross and funny and memorable, and it's getting covered in the mainstream media, on social media, and it's Trojan horsing in this message about cutting Social Security.

Speaker 10 It was well done.

Speaker 3 It's very important about the Trojan horsing.

Speaker 5 I think the horse was pretty open.

Speaker 3 No, but I get it because it's like if you just did

Speaker 3 another Social Security Medicare hit, no one's going to cover that. You get some fun pudding stuff in there.
We got some weird pudding pops. Yeah.

Speaker 3 And then you got a really effective message about Social Security Medicare in there. A-plus ad.

Speaker 5 It's an A-plus ad, and we were talking about this when it first came out. It's a shockingly normal political ad.
It feels like it could be made by any normal

Speaker 5 for a Democrat or a Republican. It's just a traditional professional ad.

Speaker 3 The first thing I thought is, I'm like, David Pluff probably loves this ad. I think it's really good.
This is like a Barack Obama versus John McCain ad, a Barack Obama versus Mitt Romney ad.

Speaker 10 And the DeSantis response, like when you whine about tactics, that to me always says you are losing. If you're saying, how dare Donald Trump attack a Republican? Are you just meeting Donald Trump?

Speaker 10 Did you not watch the primary?

Speaker 3 That's all he does.

Speaker 10 No Trump voters are upset that Trump is attacking another Republican.

Speaker 5 Also, so also, first of all, I do think it gives you a little bit. There's a little bit of a hint of where they want to go, which is like, there's a little bit like he's creepy.

Speaker 3 He's famous. Oh, DeSantis.

Speaker 5 Yes,

Speaker 5 no, no, no. There's a little bit of that like, you know.
He's a a weirdo. He's a weirdo.
He's a creep. They want to get those photos with the, with the, with the teenagers back out there.

Speaker 5 So that's under there a little bit.

Speaker 5 The DeSantis response, I think, gives itself away when it ends with what happened to Donald Trump, which is kind of like saying, like, oh, because even the DeSantis ad says he used to be fucking awesome, you know?

Speaker 5 Like, you don't want your own ad to say, like, God, I missed that Donald Trump guy.

Speaker 10 Even the NRA ad, like, maybe there are some hardcore NRA fans and gun supporters that are upset by that ad, but most of the ad was Trump looking tough and talking about fighting the NRA, a powerful interest group.

Speaker 3 Like, are you kidding me?

Speaker 5 It really was like, um, it was an the gun one was much worse, I think, for DeSandez.

Speaker 5 First of all, the gun ad, maybe it, who knows how it plays for the whackadoos attending an NRA convention, but it showed him negotiating for modest gun reforms with Democrats and Republicans. And

Speaker 3 we're, what, like, we're seven years into this fucking Trump fiasco, and you still think you get points by by showing trump not caring what interest groups think like that it's it's wild to me it speaks like they their theory of the case here is so flawed yeah um like republican voters who are considering ditching donald trump are not doing so because they think he's not conservative enough on issues like guns or abortion or because like tommy said they think he's too mean to other republicans if they are considering ditching donald trump it's because they are worried that he has now lost them several elections.

Speaker 3 And for some insane reason, DeSantis isn't making an electability argument. But by the way, Trump is.
Trump knows that's a vulnerability.

Speaker 3 And what he's trying to say is, hey, all you Republican voters who are maybe thinking about DeSantis, he's going to be a weak general election candidate because he wants to cut Medicare and Social Security and because he's also a little weird.

Speaker 3 He's a little

Speaker 3 establishment, a little too rhino, but like,

Speaker 3 really vulnerable in a general election against Joe Biden. You sure you want to put Ron DeSantis up against Joe Biden? That's what Trump's trying to say.
It's smart.

Speaker 5 There's a lot of things I think you can get the Republican base to believe about Donald Trump, but you're never going to get them to believe he's not on their side.

Speaker 5 Like, first of all, everyone's tried that. It has never stuck.

Speaker 3 Aside from immigration,

Speaker 3 I would argue that Republican voters did not back Donald Trump in 2016 in the first place because of any specific policy position. Immigration was a big, it was its vibes.

Speaker 5 He owns the leadership.

Speaker 3 He's an asshole. And it's also like, the guy doesn't sound like a regular fucking politician.
And guess what? DeSantis does now.

Speaker 10 And this is when DeSantis was doing well, when he was fighting Disney and yelling at, you know, what corporations are. Which he's back at.
He's trying to do it again. Yeah.

Speaker 5 Yeah. And there's that line from Mad Men that I'll paraphrase, which is, it's what I think of whenever I see DeSantis and Trump going at it, which is

Speaker 5 DeSantis is trying to make Republicans feel as if their needs are met, but Donald Trump makes them feel as if they have no needs.

Speaker 5 And it's just over and over again, DeSantis gets himself wrapped around the axle because he's trying to win on points. And there's this underlying kind of inherent qualities that these two guys have.

Speaker 5 He's not able to get past. Electability is the only thing.

Speaker 3 Yeah. And you hear all these Trump people, even the ones that they're interviewing now who are like thinking about both candidates.
And they'll say, you know, what about Donald Trump?

Speaker 3 They're like, you know, I wish he wouldn't tweet as much. And sometimes what he says gets him in trouble.
But I like that he says what's on his mind. I trust that.

Speaker 3 And with DeSantis, they don't trust that.

Speaker 5 Yeah. It's like,

Speaker 5 you want the fun dad that's going to take you on the roller coaster or not?

Speaker 3 No one's going on any roller coasters now. DeSantis is like, shh,

Speaker 3 drive Disney World.

Speaker 5 Go out the roller coaster. You can see the state prison he's putting in there.

Speaker 5 Putting dad.

Speaker 3 Yeah, he did make a joke that he was going to maybe put a prison in near Disney World just to punish them more. DeSantis is also trying to get to the right of Trump on the issue of abortion.

Speaker 3 He signed legislation late Thursday night that would ban abortion in the state of Florida after six weeks, which is essentially a full ban since most abortions occur after six weeks.

Speaker 3 And many people don't even know they're pregnant by six weeks.

Speaker 3 DeSantis didn't say a word about the new law at the multiple events he held around the country, which tells you how much of a winner he thinks the ban is.

Speaker 3 One of DeSantis' billionaire donors, Thomas Petterfe,

Speaker 3 sounds like a perfect billionaire donor,

Speaker 3 told the Financial Times that he and a bunch of his friends are now, quote, holding our powder dry because of the governor's stance on abortion and book banning.

Speaker 3 From a political standpoint, why do we think Ron DeSantis did this? He had a 15-week ban.

Speaker 10 This seems like political suicide. The numbers are not even close.

Speaker 10 The University of Florida did a poll in February that found that 75% of Florida residents opposed a six-week ban, including 61% of Republicans. This is an insane idea.

Speaker 10 It will have huge ramifications outside of Florida because Florida was unfortunately a place a lot of women had to go to get abortion services because other states around it had even more draconian bans.

Speaker 10 The only reason the Florida legislature could pass this is because the state is so gerrymandered, but this just seems like an insane decision, like sort of a kamikaze political decision to try to win a primary that will have huge ramifications for DeSantis and the party in any general election.

Speaker 5 Aaron Powell, somebody close to DeSantis said this to the Washington Post: abortion is not an issue that motivates him. I can tell you that.
But it's one of those, what choice do we have?

Speaker 5 And it's like

Speaker 5 he clearly had hoped that the 15-week ban would get him

Speaker 5 to the other side of this issue without having to pick a fight with the evangelical base that wants a total ban. But he couldn't come out against this.

Speaker 5 He clearly didn't want to do a six-week ban, but felt dragged to it by the right-wing members in the Florida legislature. And now he has tied himself to this

Speaker 3 evil fucking thing.

Speaker 5 And he can sign it behind closed doors all he wants. It is going to follow him for the rest of this campaign.

Speaker 3 Clearly, like you guys said, the motivation is to try to win this primary and general election. We'll worry about that later.

Speaker 3 I don't even know if it really is going to help him in this primary, partly because of what we were just talking about with the NRA ad, too.

Speaker 3 It's like this theory that the evangelical base, they just, they really just care about abortion and that's it. Like

Speaker 3 maybe at one point they used to. It's all vibes now.

Speaker 3 They're not backing Donald Trump, the guy who's probably paid for multiple abortions himself, who's been married multiple times because they think

Speaker 3 he's a righteous person. But also, like, what are we doing here?

Speaker 5 Take it from the other side. Take it from the the other side.
Donald Trump, on the issue of abortion, Donald Trump is the most successful Republican president

Speaker 5 in a half century. He stacked the court with right-wing judges who are anti-abortion.
He delivered them the majority that got rid of Roe v. Wade.

Speaker 5 You can try to get to the right in this politically stupid way, but you're not going to win on that issue.

Speaker 5 It's really baffling.

Speaker 3 There are reports that Trump's been telling anti-abortion activists that Republicans risk losing big on this issue unless they soften the messaging.

Speaker 3 And Trump wants to be emphasizing exceptions to bans.

Speaker 3 And he thinks that all of these total bans are bad now, which, by the way, for Trump is very silly because it's like, like you just said, he's the guy that literally his judges are the reason that Dobbs has to do.

Speaker 10 Well, he's basically saying, look, guys, we got to lie a little bit.

Speaker 3 Come on, work with me here. He's been saying this for years.

Speaker 5 He's been saying this for years.

Speaker 5 He was when he was first, before he was, before he even got the majority to do it, he was worried about the political implications of this and kind of has always kind of joked about the evangelicals being kind of weird to him.

Speaker 5 He's never got them. They're not, they don't resonate on the same frequency.

Speaker 3 I mean, how long until Donald Trump starts openly attacking DeSantis for the six-week ban? You can see it.

Speaker 3 And I mean, it's going to be hypocritical, obviously, but I can, he's going to be too extreme. He's not going to win the general Medicare and Social Security position, his abortion position.

Speaker 3 This guy's a weirdo. It's the pudding, the pedophilia.

Speaker 5 And

Speaker 5 the one piece of this is I can imagine DeSantis thinking, like,

Speaker 5 I'm just trying to get past this issue, right? If he fights this thing that the majority of the caucus wants in the legislature, he's now in a fight over abortion that makes it more salient.

Speaker 5 He signed this law and now we kind of move past it, even though the politics will trail him. That's the only kind of cynical political argument you can say.

Speaker 10 I think you can't move past it because he's going to own the ramifications. There's going to be story after story after story of the horrific consequences of this law.

Speaker 3 I think it is. crazy to me.
I've really tried to think of it from his point of view, like just from pure hard politics.

Speaker 10 I remember thinking he was smart for not doing this and just sort of standing behind the 15-week ban, that would be more palatable politically, at least.

Speaker 5 And there was

Speaker 5 the Republican Senate majority leader, who is someone who is less conservative on this issue,

Speaker 5 was asked why she was getting behind this. And she's like, ask Ron DeSantis.

Speaker 6 She basically was like, look at him to help me get out of this fight.

Speaker 3 This is not like the legislature just like handed him something that he's like, oh, now I have to sign it or not sign it. Like he runs that legislature.

Speaker 3 They're there.

Speaker 5 He had a choice to make.

Speaker 3 He had a choice to make whether he wanted to have the fight or not yes uh believe it or not there are other republicans in this race uh though the potential field shrank by one over the weekend as never give an inch author mike pompeo did in fact give several inches when he announced that he won't be running for president a political earthquake that upended the GOP primary.

Speaker 3 Other 2024 hopefuls seem to have a higher tolerance for embarrassment. Mike Pence was booed at the NRA convention in his home state where he once served as governor.

Speaker 3 Nikki Haley's campaign was caught lying about their fundraising totals. They inflated them by about $3 million because they were double counting a bunch of money.
Like, oops.

Speaker 3 It's just getting through a news cycle, right? At a big GOP donor retreat in Nashville over the weekend, governors Chris Sununu and Brian Kemp offered some gentle criticism of Trump.

Speaker 3 And then Trump got up there and mocked every single candidate's single-digit polling.

Speaker 3 It's actually pretty, he's like, Chris Christie, 1%. Wow, phenomenal.
Nikki Haley, she's working hard. 4%, working hard.

Speaker 3 Now, before we get to the rest of the field, Tommy, is this Mike Pompeo announcement a huge blow to Worldos Everywhere?

Speaker 10 Thank you, John, for asking.

Speaker 10 It was a tough weekend for me and tens of others.

Speaker 10 Actually.

Speaker 10 Oh, I prepared something.

Speaker 5 Oh, God, he's folded something up in his pocket.

Speaker 3 I just wanted to.

Speaker 6 Why would it be?

Speaker 3 Why would it be something? Samby and Olivia do have their hands over their mouths.

Speaker 5 I don't understand why you'd have to print something.

Speaker 3 He has the laptop.

Speaker 5 It's an important moment. It's just drama.

Speaker 10 We gather here today to mourn the death of Michael Richard Pompeo's presidential ambitions.

Speaker 10 I know that some of you traveled from as far away as Santa Monica to be here, and I just wanted to say thank you and that it means a lot to me.

Speaker 10 As Neil Young once wrote, oh my God, my, my, hey, hey, perennes, out of the blue, close parens, it's better to burn out than it is to rust. The king is gone, but he's not forgotten.

Speaker 10 There's not a spot of rust on you, Mike.

Speaker 10 Once described in the New Yorker as a heat-seeking missile for Trump's

Speaker 10 Mike Pompeo soared to intercontinental political heights. Born in Orange, California, to Dorothy and Wayne Pompeo, Mike met his real daddies, the Koch brothers, after moving to Kansas in the mid-90s.

Speaker 10 From there, he took on Congress, the deep state, the State Department, and the world. It's hard to quantify what his absence will mean, John.

Speaker 10 As John Steinbeck said, according to brainy quotes, it's so much darker when a light goes out than it would have been if it had never shown. Mike Pompeo, the Cav Pack,

Speaker 10 from tweets with no engagement to tier two Sunday shows to sparsely attended Iowa events, you lit the way for dozens and we will miss you.

Speaker 5 Wow, that's a beautiful performance. He really captured, he captured the tone.

Speaker 5 Okay.

Speaker 3 There it is again.

Speaker 5 You should just, we need the

Speaker 5 We should also layer on the Azimpic jingle.

Speaker 3 I thought, yeah, also, just saying,

Speaker 5 did he do that with discipline?

Speaker 3 Wasn't he like the first person and maybe only person to blurb his own book, too? Oh, yeah, he blurb his own book. Yeah, he did his own book blurb.

Speaker 5 I want to, there was one part at the end. Thank you, Tommy, by the way.

Speaker 10 Thank you for giving me this moment of space.

Speaker 5 So Mike Bampeo,

Speaker 5 whose whole public persona is about how sort of

Speaker 5 unstoppable he is, backs out of an inch. Doesn't give an inch, decides to give all the inches and step out.
And he releases a full-page statement on Twitter about why he's doing it.

Speaker 5 But the end of the statement to me captured everything that makes Mike Pompeo someone which is the absolute worst personality in public life. And he ended the statement by saying this.

Speaker 5 To those of you this announcement disappoints, my apologies. And to those of you this thrilled, know that I'm 59 years old.

Speaker 5 There remain many more opportunities for which the timing might be more fitting as presidential leadership becomes even more necessary. Even more necessary.

Speaker 10 That's the problem with that.

Speaker 3 That is an incredible statement.

Speaker 5 It's very much like, I'm sorry, I can't meet you at the flagpole after school today. I have violin practice, but oh, next couple of days, we're going to find a time.

Speaker 5 And boy, are we going to fight at that flagpole? He is really embarrassing.

Speaker 3 Don't threaten us with a good time, Mikey.

Speaker 5 It's like, but also even the end of that statement. Like, so you're saying that now is not the time for presidential leadership, but, but in the future, it might be.

Speaker 5 It's a, it's, and it's, it's just so arrogant and stupid.

Speaker 3 God,

Speaker 3 yeah.

Speaker 5 May his memory be a blessing.

Speaker 3 I miss him.

Speaker 10 I miss him already.

Speaker 3 Raises a question.

Speaker 3 We're not going to do predictions here. We're not going to, that's going to feel like a little 20.
Oh, you're going to know.

Speaker 3 Do you, so far, do you think any of these fucking Yahoo's are showing what it takes, not even to beat Trump, but to like be the new Ron DeSantis if for some reason Ron DeSantis continues to shit the bet?

Speaker 5 It's pretty, you know,

Speaker 5 you would say like, all right, obviously none of these other fucking jokers, but like you look at someone like Tim Scott and say, okay, maybe. And then he gets the most obvious question

Speaker 5 that you could possibly be asked about abortion and gives an absolute just a word salad in response.

Speaker 5 Though it actually captures, I think, the problem that has nothing to do with each one of those individuals.

Speaker 5 There was a sort of a column looking at like the politics of what Tim Scott is supposed to say.

Speaker 5 And he's supposed to find a place in the Venn diagram that will please the evangelical base without pissing off the vast majority of Americans who are pro-choice. And they don't overlap.

Speaker 5 They just don't overlap.

Speaker 10 Nor does the Republican base in being hopeful. Yeah.
That's not what they're looking for.

Speaker 3 It seems like the the plan right now is once again to hope that Donald Trump will implode on his own,

Speaker 3 even though they all chose to defend him over the indictment that might have led to that implosion. Yeah.

Speaker 3 So even when things come up that might hurt Donald Trump, no one is going to take advantage of it or hasn't so far. No one wants to exploit it.

Speaker 3 Like if you do not go after Donald Trump directly and do so, and I, and again, I get that most of the base and most of the voters you need loves Donald Trump, so you have to be careful in how you do it.

Speaker 3 But the electability argument is, that is what's on Republican voters' minds. They are willing to hear a case about that.
Just fucking go do it.

Speaker 5 It's a bunch of people throwing buckets of water on a house fire, hoping that the house burns down.

Speaker 3 How about that? Okay, I like that.

Speaker 5 I like that. Just came to me.

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Speaker 3 Let's talk about Congress, which is back in session this week. They're back, baby.
Didn't even know they were gone. I didn't know.

Speaker 3 Kevin McCarthy is still trying to pass a budget through the Republican House that raises the debt ceiling. His latest plan is a one-year extension of the debt ceiling to May of 2024,

Speaker 3 right in the middle of the campaign. That should be fun.
Good idea.

Speaker 3 And this plan would gut all non-defense, non-entitlement spending, repeal student loan forgiveness, repeal clean energy tax credits that were in the IRA, increase fossil fuel production, and institute work requirements for Medicaid and food assistance.

Speaker 3 What's the thinking behind this plan? What are the chances it actually passes?

Speaker 5 Love it. It's funny to say what's the thinking behind the plan.
It's Kevin McCarthy.

Speaker 5 You know,

Speaker 5 he is the political equivalent of

Speaker 5 checking your watch while holding a coffee.

Speaker 3 And,

Speaker 5 you know, as a rule, when Kevin McCarthy does something, you could ask, if you don't really understand it, it's like, this, is he smart or is he stuck? And the answer is never that he's smart.

Speaker 5 And in this case, you would want to say, okay, he knows he's in a bind. He made all these promises to the base to get the speakership.

Speaker 5 So he needs to go through the motions of putting forward these kind of draconian cuts to show that this can't pass, ultimately on the road to what can pass, which is a clean.

Speaker 5 increase that is mostly passed with Democrats in the House with some Republicans who jump on board.

Speaker 5 You would like to think that that is what we are heading towards, but more likely he is just putting one foot in front of the other, trying to get through a day. Beyond that, I don't.
I don't mean it.

Speaker 10 He's just trying to figure out, he has to put something forward so he can blame Biden for refusing to negotiate, and they haven't released a budget yet. I think still, even after the speech.

Speaker 10 The thing that bumped me was doing this speech at the stock market was an interesting choice. Yeah,

Speaker 3 he went to Wall Street today and spoke at the stock market.

Speaker 10 Yeah, a bit like an al-Qaeda member doing a press conference on an airplane. You know what I mean? Like, check out this thing I'm about to crash.

Speaker 3 I don't know. I see.

Speaker 10 I guarantee you that these CEOs care a hell of a lot more about their stock price than deficit spending.

Speaker 3 Look, I don't know what the guy's doing. I mean, it's what you said, Tommy.
He wants to, all he's thinking about is I got to get something through the House. Right.

Speaker 3 And so I got to find a majority of House Republicans. I've got to find basically all of his House Republicans to vote for this plan.
And that means he needs the Freedom Caucus wackos.

Speaker 3 He needs the problem solvers, right?

Speaker 3 He needs everyone, he needs most of the caucus. And then if he can pass it, he can say, okay, Joe Biden, you told me you'd sit down and negotiate.
If I had a plan, I passed a plan.

Speaker 3 If you don't like it, that's fine, but at least sit down and negotiate. So then he gets Biden to the negotiating table.
The question is, can he even get this past the House?

Speaker 3 Because the way this plan is now, it's not the draconian balance budget in 10 years, which they've all given up on, or cutting Medicare and Social Security, which they've seem to have given up on as well.

Speaker 3 But the cuts are deep enough that some moderate Republicans are already starting to balk at the plan.

Speaker 5 Yeah, I just, it all is heading to the same place.

Speaker 5 Whether it gets killed by some House Republicans or it makes it to the Senate and gets killed by Republicans there, we're heading to a place where at some point this will be

Speaker 5 the question will become, will Kevin McCarthy say, sorry, guys, I tried? And that is where this has to head, but it doesn't seem like he's going to acknowledge that in time soon.

Speaker 10 I just think he's trying to keep the speakership as long as he possibly can. But I mean, creating work requirements to receive Medicaid and food stamps.

Speaker 10 So if you have cancer, you have to go out and get a job, and then you can get chemotherapy. That's what we're doing here.

Speaker 10 And then Reuters found that most of the spending cuts McCarthy wants will hurt states Trump won in 2020 more than blue states.

Speaker 3 No, yeah.

Speaker 3 Both the cuts to domestic spending on education and transportation would hurt those states and instituting work requirements would also hurt those states because the vast majority of people who are on Medicaid and food assistance are in those states.

Speaker 5 Yeah, I just, you sort of step back from all this. It's like, no,

Speaker 5 this ridiculous, these ridiculous cuts are never going to become law. There's not, what, there's probably not 40 votes in the Senate for

Speaker 3 dead.

Speaker 5 And so, okay, well, where are we heading?

Speaker 5 And it's just, we're, we're, whatever shenanigans McCarthy pulls over the next few months, is he going to bring to the floor something that would pass with majority Democratic votes? And

Speaker 10 then lose the speakership, yeah.

Speaker 5 And then lose the speakership.

Speaker 3 But I do think if it, um, if this fails in the House, this plan, if he can't even get it through the House, ironically, we might get a

Speaker 3 better outcome sooner because

Speaker 3 he will continue to fucking drag this along by if he

Speaker 3 he if he gets it through the house he's gonna claim it's a big win we're gonna know it's not the press is probably gonna be oh McCarthy got it passed he meant to go to negotiate time for we're gonna get a round of time for Joe to negotiate

Speaker 3 now it falls to McConnell and there's just gonna be yes sure it is gonna be a bring McCarthy why don't bring you bring McCarthy to the White House and just sit down and talk about the plan you don't have to accept the plan you just have to negotiate and Biden's gonna have to say no I don't want to negotiate it's got to be a clean debt ceiling and this is what McCarthy is telling to the members that are like, you don't make me vote for this fucking thing.

Speaker 3 That's right.

Speaker 3 But if McCarthy fails now, then I think it's right to, then McConnell and Schumer have to get together and just start figuring something out to

Speaker 3 the House.

Speaker 5 They jam through the House. But someone has to call it for a vote on the floor.

Speaker 3 Yeah. We have an update on 89-year-old Diane Feinstein, who Lovett's been trying to shove out of the Senate.

Speaker 3 Excuse me.

Speaker 5 There's no shoving.

Speaker 3 There's light.

Speaker 3 Gentle.

Speaker 5 An invitation. A push.

Speaker 6 An invitation.

Speaker 3 An invitation. Just sort of a

Speaker 6 prodding cattle.

Speaker 3 Chuck Schumer said he he spoke to the senator who said she hopes to return soon, but he still wants to appoint a temporary replacement on the Judiciary Committee.

Speaker 3 Ain't happening. First, they thought maybe unanimous consent.
Then Tom Cotton was like, nope, not unanimous consent. And then they're like, okay, well, you could do it with 60 votes.

Speaker 3 If maybe Mitch McConnell will help us out. And then all these Republican senators over the course of the day are like, what? Why would we help Democrats?

Speaker 3 Absolutely not. Which, of course,

Speaker 3 if the shoe was on the other foot and this was an old Republican senator that they were trying to replace, would we be like, oh, yeah, Democratic senators help out Mitch McConnell.

Speaker 3 Help them pass those tours. Of course not.

Speaker 5 Crazy.

Speaker 5 And so, and yeah, so there's the idea that there would be these 10 Republican votes, like everyone from the furthest right, like Hodden all the way to like Susan Collins, or like, I don't know, I'm sorry, what are you asking me?

Speaker 3 Absolutely not. No.
So what other options are there now?

Speaker 5 Love it. There's really two options.
Option number one is that Senator Feinstein returns to the Senate to participate in her vital work

Speaker 5 as a representative of the most populous state and a member of the Judiciary Committee, or she resigns.

Speaker 3 And although you and I were talking about this before the putt, if she resigns,

Speaker 3 it still might be hard to replace her.

Speaker 5 It still might be hard to replace her on the committee. So basically, everyone is, there's been a lot of kind of, I think, now this, this will happen on Twitter.

Speaker 5 I don't know if you noticed it, people just saying things like Schumer can replace. No,

Speaker 5 Schumer does not have the ability to put anyone on a committee that requires the Senate to vote. Now, normally that happens without incident at the beginning of the Senate.

Speaker 5 It's very, you know, it's very decorous. Everybody gets along, but it requires 60 votes or unanimous consent, which is ultimately the same thing.

Speaker 5 And that happens basically, Republicans get together, decide who's on their committees, Democrats get together, and then they all kind of agree.

Speaker 5 Although, if you remember, there was a moment at the beginning of the last Senate where Mitch McConnell held up the vote with a filibuster for a while.

Speaker 5 And remember, we were like, the committees can't meet. It's going to be really important.
We've all forgotten about it, but it did happen. But Cornyn today

Speaker 5 told reporters that the temporary replacement thing is out of the question, but there's a precedent for a senator resigning and there being an opening in the normal course of business that they would allow someone to fill the seat.

Speaker 5 Now, my concern.

Speaker 3 They could be assholes if they wanted.

Speaker 5 Well, my concern is that we've now had like a two-week news cycle that began with Dick Durbin saying, hey, I can't confirm judges, that has now

Speaker 5 basically made this not about a routine filling of an opening, but a question of will Democrats get to confirm more judges? So I worry that that has

Speaker 5 planted a seed that is growing in the minds of the fertile minds of your tom's cotton and so forth if only you hadn't started this news cycle dick durbin started this news cycle i just helped it along don't blame durbin you always blame durbin for everything um i don't know what to do with his power guys i've never felt so powerful i mean i you know i'm eating raw meat and thinking about what other old people i can push out of their jobs how about

Speaker 3 a perfect segue tommy that's a good idea

Speaker 5 oh wait can we do i do want to make one more point though about about

Speaker 3 amazing

Speaker 3 into the next

Speaker 3 what else you got what else you got

Speaker 5 yeah it was ranked as I just want to make one more point about this, all right? Which is because this could happen quickly between pods, and I just need to have said this,

Speaker 3 which is this.

Speaker 3 Do you want Dan to take this point?

Speaker 5 Yeah, which is which is this.

Speaker 10 That's how it usually goes.

Speaker 5 Given, given

Speaker 10 the lips of God's ears.

Speaker 5 It usually goes the other way. It usually goes message box through me to the pod, you know?

Speaker 3 So the human.

Speaker 5 I basically chat GPT for ad jokes to message box.

Speaker 5 But basically, you know, if it, if Senator Feinstein can't return soon and there's, and she, and she does decide to, as the LA Times said, heroically step aside, which I think is a nice term.

Speaker 5 I like that, too. Then it would be Newsom's job to fill the seat.
Newsom promised to Joy Reed in March of 2021 that he would replace Diane Feinstein with a black woman.

Speaker 5 Barbara Lee is obviously a black woman who is running for the seat.

Speaker 5 That would mean that both of if he were to appoint Barbara Lee, that would mean both Senate seats were filled by appointment.

Speaker 5 And now, I don't think, given that the campaign's already started, I don't think that means we don't have a race between Adam Schiff and Katie Porter and Barbara Lee. But I do think

Speaker 5 everyone who's paying attention to this, I think we all should really hope that Gavin Newsom appoints.

Speaker 5 He said when he told Joy Reed, there are many people on his list, he should appoint someone if this seat opens up that is not going to run for the seat so that Democrats get it,

Speaker 5 so that we have a chance to vote for a senator, so that both of our senators have have not come from an appointment, but that one of our senators has been chosen by us in an election.

Speaker 3 Look, I just want to thank you very much for making that point that we discussed extensively on Thursday's pod. Yeah, but I didn't discuss it.
And that, now, when is that?

Speaker 3 When you get this whole conversation,

Speaker 3 exactly that. Did they really? Leave it in.
It's all sausage. Wait, how about it? Andy, how much of it? How much of it? Sausage.
Wait, what do you mean? Wait, Andy.

Speaker 5 75%.

Speaker 5 So did you just cut it then?

Speaker 3 No, we're leaving it in. No, no, we're leaving it in.

Speaker 5 I got to listen to the Thursday pod.

Speaker 3 Yeah.

Speaker 5 I'm making a show Thursday. Check it for me.
Let's see if we can tighten this up. We'll get you a reader.

Speaker 3 Clarence Thomas.

Speaker 3 The right-wing justice now plans to amend his financial disclosure forms after ProPublica, on a roll, reported that he failed to include a real estate deal with sugar daddy Harlan Crowe, where the Nazi memorabilia buff bought three properties from Thomas, including a home where the justice's mother still lives, rent-free.

Speaker 3 The Washington Post then reported that Thomas has also erroneously claimed income from a defunct real estate firm for the last several years, though that one may be more of a bookkeeping error, but, you know, not great.

Speaker 3 So Dick Durbin, who's coming up all the time these days,

Speaker 3 people are talking more and more about him. These days.
Yeah, he's being recognized more and more.

Speaker 3 He said that they'll hold a hearing about Supreme Court ethics on the Judiciary Committee, but some activists are calling on Congress to subpoena Thomas to testify. Can they? Should they?

Speaker 3 What do we think?

Speaker 10 Tommy?

Speaker 5 I mean, they should give it a shot.

Speaker 10 I do want to just talk about this real estate deal for a minute because Harlan Crowe, they buy the house that Clarence Thomas's mother still lives in.

Speaker 10 Someone did the math on how much rent she hasn't paid, and they say Business Insider suggests that saved her $150,000. So that's interesting.

Speaker 6 He also bought like the whole neighborhood.

Speaker 10 He's gentrifying the whole neighborhood, and he's refurbishing this house that Clarence Thomas's mother lives in while also saying he wants to turn it into a museum, which is a weird

Speaker 3 museum.

Speaker 5 Oh, yeah, no, it's all about a museum.

Speaker 3 Which is a weird thing. For Nazi memorabilia?

Speaker 5 No, no, no, for Clarence Thomas,

Speaker 10 yeah, like our Clarence Thomas museum. But if you're going to turn, if they're going to be like, this is his childhood home, you don't.

Speaker 5 I run out of places to keep all my Nazi memorabilia.

Speaker 10 If you're going to like turn a childhood home into a museum, you probably don't like gut the place and refurbish it, right? So it's also not the first time he's made some sort of bookkeeping error.

Speaker 10 He also, Thomas, failed to disclose his wife's income from the Heritage Foundation for years. She made $686,000 between 2003 to 2007.

Speaker 10 And he kept clicking clicking like the box that said no on whether she had any non-investment income.

Speaker 3 You know,

Speaker 3 it's just

Speaker 3 mistakes keep happening to him.

Speaker 5 He doesn't think these are rules matter or that they're important or that he should be held to any kind of standard. To your question, John,

Speaker 5 can they subpoena him and should they? They can and they should. Yeah.
That's it. They can and they should.

Speaker 3 And there's going to be a lot of people. They can if

Speaker 3 Diane Feinstein comes back. We're going to need every vote.
We're going to need every vote.

Speaker 5 And I don't want to be a Shingles issue voter, but I do think it's really important.

Speaker 3 Oh, my God.

Speaker 3 I can't believe you saved that till now.

Speaker 5 I forgot. I typed it, actually.
I forgot to say it earlier.

Speaker 5 That's prepped, just in case.

Speaker 5 If I'm called, if I'm canceled for it, just know that it was premeditated.

Speaker 10 That's good. Sheldon White House is pushing the Attorney General, Merrick Garland, to investigate Thomas as well.

Speaker 3 Yeah, I think that's

Speaker 3 dead by then.

Speaker 3 Yeah.

Speaker 5 Yeah. Merrick Garland wandering in the Dust Department with his candle in his nightgown.

Speaker 5 Slowly moving through the old house. But look, there's been a lot of senators saying how there's all these kinds, there's so many different people that should be doing oversight.

Speaker 5 Well, they should do it too. They should give it a shot.

Speaker 3 Yeah, look,

Speaker 3 I realize there's not going to be an extremely satisfying outcome to this likely. But

Speaker 3 just from a pure political perspective, like, what's going to happen? There's all this corruption surrounding this judge.

Speaker 3 He doesn't have high approval ratings, nor does the institution in which he serves at this point. You drag him before the Senate to ask him a bunch of of questions.

Speaker 3 Yeah, it's a bad news cycle for two days and maybe he doesn't go, but what's the harm?

Speaker 3 What's the harm?

Speaker 5 He even met Romney today. What are they going to do there? Because he said that this story stinks.

Speaker 3 They're going to retaliate.

Speaker 3 So it's like, then you're worried, oh, now they're going to call justices all the time to testify. Great.
Great. Drag Elena Kagan before the Republican Senate circle.

Speaker 3 Sony Sonoma IR. What are they going to do? They're going to give great answers.

Speaker 5 Yeah, remember when they were like, we're going to get Hillary Clinton to testify all day about Benghazi. She made you look like dopes.
It was the best day of the campaign ever.

Speaker 3 Yeah, that's not retribution that I'm really worried about. Okay.

Speaker 10 Counterpoint. She did say.
This is from the Wall Street Journal opinion piece defending Clarence Thomas.

Speaker 3 Oh.

Speaker 10 Quote: One may be tempted to think that of all people, a judge should know what the law says, but that's a nonsensical standard.

Speaker 10 A judge's job isn't to memorize statute books, it's to discern law's meaning and their application to the facts and cases that litigants bring before him.

Speaker 3 How are we not doing Take Appreciator Today? That's a full playbook.

Speaker 10 It's

Speaker 3 a full playbook.

Speaker 10 James Toronto.

Speaker 3 Oh, he's awful.

Speaker 5 i've never muted or blocked him you know when we were in we were in wisconsin for the supreme court race it was this incredibly like refreshing thing that everybody was just campaigning not on some imaginary concept of what a judge does with calls malls and strikes i'm going to be the most impartial person you ever seen but it was like hey this is an ideological context there are real stakes we have real views abortion is on the line democracy on the line We should just be doing everything we can to like pull the Supreme Court like down from this mountaintop it's been on.

Speaker 5 They are, they are lawyers.

Speaker 10 They're doing a pretty good job themselves.

Speaker 3 Yeah, they are. But like,

Speaker 5 they're lawyers in drag.

Speaker 5 Six of them are freaks. At least one's a criminal.
Like,

Speaker 5 let's do everything we can to have accountability. Just like

Speaker 5 it's the right thing to do.

Speaker 10 When is John Roberts doing another public event?

Speaker 10 Because someone needs to say to him, hey, man, you whine all the time about political attacks and the legitimacy of the court and don't attack it, blah, blah, blah.

Speaker 10 You're doing more harm to the court's reputation than anyone else by letting this flagrant corruption go and not saying a word, not doing anything.

Speaker 3 I bet his schedule is pretty clear right now.

Speaker 3 I bet he's not. Well, I don't think he's a public event.
I'm going to pair it to public event. Get that question.

Speaker 10 These dorks are always talking at some law school about something.

Speaker 3 This is the problem, is they're so insulated from any kind of.

Speaker 3 This is why if you can subpoena him, it's a good question.

Speaker 5 And there's going to be a whole just

Speaker 5 idionic news cycle. People throw in terms like separation of powers and overreach.
And it's already being described as a a showdown.

Speaker 3 Just need to come and answer some questions.

Speaker 5 But the idea that, like,

Speaker 5 the idea that

Speaker 5 the laws that Thomas is accused of breaking are made by Congress. If he is to be impeached, it's going to be impeached by Congress.
He has got that seat because he was confirmed by the Senate.

Speaker 5 It's not a violation of the separation of powers to have a Supreme Court justice testify for Congress.

Speaker 3 Look, we're also

Speaker 3 doing here is we're building support, in my mind at least, for term limits. That's what I want.

Speaker 3 Expanding the court, that's a little bit of a fantasy right now. That's like thinking we're going to get rid of the Electoral College.
Yeah, it's far, far, far away.

Speaker 10 You're probably not on that PJ after six years.

Speaker 10 That's like a 12-year kind of...

Speaker 5 Well, he famously said, he's like, he's been on the court for 30. He's like, I've been friends with Harlan Crowe for 25 years.

Speaker 3 Let's start by trying to get some term limits on the Supreme Court.

Speaker 3 That's my new thought, probably. Let's see if we can get it.
We're all going to yell about expanding the court. And we're so far from that.
We're so far from being able to do that, having the votes.

Speaker 3 But I bet term limits is probably easier, and I still think it would be pretty effective.

Speaker 5 Yeah, I think a lot of these octogenarian senators are going to be big fans of term limits.

Speaker 10 What else you guys talk about on Thursday?

Speaker 5 Just senators,

Speaker 5 a lot of senators just looking at that wet butt bathroom floor thinking there, but for the grace of God, go by.

Speaker 3 All right, when we come back, Tommy and I will talk to not DMZA this, just YouTube.

Speaker 3 When we come back, Tommy and I will talk to crooked contributor Max Fisher about the Fox versus Dominion trial.

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Speaker 3 The defamation case between Fox News and Dominion Voting Systems is scheduled to kick off this week. Though as of right now, we're recording this on Monday afternoon.

Speaker 3 A last-minute settlement is still possible, guys.

Speaker 10 Could be in the offing.

Speaker 3 Could be in the offing. Here to talk about the strength of Dominion's lawsuit and the many implications of this case is Crooked's newest contributor, Max Fisher.
Hey, Max. Hey, pals.

Speaker 10 What's going on? Thanks for having me. Why aren't you in Wilmington?

Speaker 17 That's where all the cool kids are. I'm hologramming in from Wilmington.

Speaker 3 Oh, right. That is all the music.
It is wild down here.

Speaker 17 It is popping off.

Speaker 10 Some very fired up music.

Speaker 3 Hanging it out in

Speaker 3 Case of the centuries.

Speaker 17 It's a glamorous field. What can I say?

Speaker 3 So there's been reporting that Fox has wanted to settle this case for a while now, but so far Dominion has refused. What do you think might get them to change their minds at this late stage?

Speaker 17 So we don't know why. Dominion has declined to settle.
It stands to reason that Fox News wants to because they've already settled one separate case over 2020 election lies.

Speaker 17 There are two kind of most plausible reasons in my mind, although we don't know for sure.

Speaker 17 One is just that Dominion Fox News might just have very different reads on the likelihood of the suit succeeding because successful lawsuits, defamation lawsuits against big media companies are really rare because the standard is so high for them, which I know we're going to talk about.

Speaker 17 So it might just be like there's not a lot of precedent to look through to see the likely outcomes. Another that

Speaker 17 I find a little bit more persuasive, but it's speculative, is that Dominion has a bunch of defamation cases out right now related to this specific set of lies around the 2020 election.

Speaker 17 And this might partly be about signaling resolve to those other defendants that we are really willing to go to trial, like watch us.

Speaker 17 So therefore, we're not going to be pushovers when it comes to settlement.

Speaker 3 That's interesting. I hadn't thought about that.

Speaker 3 I've been reading about this and what struck me is that Dominion seems to have a pretty strong case on the liability front, on the fact that Fox is liable for this, but less of a strong case on the amount of damages that they asked for, which is

Speaker 17 $1.6

Speaker 3 billion.

Speaker 3 And I think the company was valued at like $80 million.

Speaker 3 Right.

Speaker 17 Yeah. Some of these numbers are a little like pulled from thin air.

Speaker 3 So perhaps if this is less about a cause for Dominion and more about like just it's a company and it wants financial rewards here from Fox, they

Speaker 3 just want to settle and get as much money as they can. Yeah.

Speaker 3 Though for all of us,

Speaker 3 we'd rather go to trial. We like this show.

Speaker 10 We can't show.

Speaker 3 Or like a very public apology from Fox. Right.

Speaker 17 It's the whole thing is a little weird because like the reason that we care about it and that like people should care about it is that it is a test for like how far can you go in lying about elections and inciting insurrection, but the terms that the case will be decided on are like, like you're saying, it's like, how do you count up corporate damages?

Speaker 17 Yeah.

Speaker 17 So there's this like, I think like something that is coming through at a lot lot of this is there's a little bit of a mismatch between the significance of the trial and the actual like facts of it on the face.

Speaker 3 I mean, it's also possible like, you know, they make voting systems.

Speaker 17 Maybe they care about the sanctity of democracy.

Speaker 3 What?

Speaker 3 I know, I know.

Speaker 17 These are lawyers we're talking about. So it's possible I'm overly optimistic there.

Speaker 10 Well, so Max, I mean, you sort of alluded to this. I mean, you're seeing a lot of coverage of this case.
where it's described as like the trial of the century for press freedom.

Speaker 10 The First Amendment seems important as far as the amendments go. Is that fair?

Speaker 3 Would you agree? I'd rank it number one.

Speaker 17 I'd rank it number one.

Speaker 10 Freedom of speech, freedom of the press. They're sort of derived from this.

Speaker 10 But when it comes to libel law, I know a lot of liberals, also included, are rooting against Fox because they lied and they did it egregiously, and that is bad, and we want them punished here.

Speaker 10 But the landmark case that protects all of us from liability was brought by a racist Alabama guy who oversaw the police during the civil rights era against the New York Times and a bunch of civil rights leaders.

Speaker 10 So it can cut both ways. So, you know, for you as a lifelong journalist,

Speaker 10 how do you feel about the prospect of a potential new precedent that could govern or curtail press freedom? Right.

Speaker 17 So

Speaker 17 the premise of that is, of course, that the standard set in that 1964 Supreme Court trial is famously, incredibly high for proving defamation against a media organization.

Speaker 17 It's always really set the United States apart and is considered part of its press freedoms that it is so, so hard to prove defamation by a media organization because you have to prove that they internally in their own minds knew they were lying when they did it, which is incredibly hard to prove.

Speaker 10 The actual malice standard.

Speaker 17 The actual malice standard, yeah, exactly. And so, because of that, there are very, very few successful defamation suits against the media, even when they get it wrong.

Speaker 17 And that's seen as an important part of the protections for, like, you can get something wrong, and it's not going to blow up your entire news agency.

Speaker 17 I think that there is a view among a lot of First Amendment lawyers and maybe a lot of journalists that that standard is a little bit out of sync with how much our world has changed in the last 65 years and even just the last five or 10 years where extreme polarization is so high now and the media environment is so a kind of wild west because of social media because you get of all these little networks like Newsmax One American News popping up and the stakes of it are so high because we've seen that it can lead to insurrection coups that maybe there is a need to effectively soften those standards a little bit now the people bringing these cases aren't saying we want to overturn that standard.

Speaker 17 They're all saying we meet that standard set in 1964.

Speaker 17 But any First Amendment lawyer will tell you if a good number of these cases, because Dominion is bringing a bunch, SmartMatic, another voting machine company is bringing a bunch, if a good number of these cases succeed because it's set by a Supreme Court precedent, not by law, it will move that standard a little bit in practice.

Speaker 17 And maybe that is necessary in an age where our democracy is at imminent risk from disinformation.

Speaker 17 And I think there's also a case for it on journalism grounds: that, like, if you are concerned about the future of journalism in this country and faith in journalism as an institution, maybe you want some harder guardrails to come up in the form of

Speaker 17 higher threats of liability because, you know, I don't like the fact that people think of the media as a monolith and think of journalism as a monolith, but they do.

Speaker 17 And their perception of whether journalism as a concept works and can be trusted is tied up in how they perceive some of the largest actors in the media.

Speaker 17 So you maybe want, if you care about journalism, people to see their consequences for deliberately lying. But at the same time, I do have this

Speaker 17 reservation that cuts a little bit the other way where there is this

Speaker 17 specific scenario that I wouldn't say keeps me up at night, but I do worry about in a world where a good number of these cases succeed and that standard for bringing a defamation suit gets a little fuzzier, which is that it would become, I think, a little bit easier for companies with big pockets to try to bully or coerce news agencies into not running or into watering down stories that they don't want to see run, even if everybody knows the story is true.

Speaker 17 Because this thing that big companies will do, and they've done it to me many times, is when you go to them with a story that they don't like.

Speaker 17 They will

Speaker 17 try to extract as much information from you as they possibly can can about what's going to be in the story.

Speaker 17 And journalistically, you're compelled to like, at least take that seriously because you're supposed to give them an opportunity to comment, to respond to things.

Speaker 17 They will go to your editors and try to get as much information as they can about the story. They'll go to your boss's bosses and try to get information.

Speaker 17 And then they will create a paper trail of giving you lots of

Speaker 17 emails and things in writing saying that thing that you're going to report, that is not.

Speaker 10 true. That's false.

Speaker 17 And the thing you learn very quickly is that...

Speaker 3 And then they trap you into deliberately

Speaker 3 lying the actual amount, which would be the actual amount of it. Exactly.

Speaker 10 And in London, this is a big problem, right?

Speaker 10 You've Russian oligarchs bringing completely frivolous lawsuits against journalists and basically, you know, putting them out of business with fees for attorneys, et cetera.

Speaker 3 Right, right.

Speaker 17 And the fear is if you're the New York Times, the Washington Post, and a big company is creating this paper trail and saying, you know, all of these things you're going to report are not true, even if you know they're lying, if you make some innocent mistake along the way, right, then they can hold the threat over you of, are they going to bankrupt your news agency over this one mistake?

Speaker 3 There's been a lot of talk about this very high standard of actual malice, which is, you know, either the outlet knows the information they aired was false or did so with, quote, reckless disregard for the truth.

Speaker 10 That's the description of the standard.

Speaker 3 But in this case, it does seem like Dominion might be able to meet that very high standard.

Speaker 3 Like we might not even need to move the standard at all, just because, and you see a lot of First Amendment lawyers, a lot of media lawyers who've like represented media companies in these cases before, just saying that, like, I mean, the sheer amount of texts,

Speaker 3 emails, testimony that we've already seen in the pretrial period suggests that, yeah, Fox did deliberately know they were wrong.

Speaker 3 Like, you don't even have to go with the reckless disregard for the truth standard, which is the easier one. I mean, they clearly knew this.

Speaker 3 What do we know at this stage about the strengths and weaknesses of Dominion's case?

Speaker 17 So there's not a like email from Rupert Murdoch saying we're going to do the big lie now and lie about Dominion voting systems, but it's pretty close.

Speaker 3 It's pretty close.

Speaker 17 You have to do like a little bit of connecting the dots. It's not like a 1 million percent slam dunk.

Speaker 17 But basically what you have is after the election, you have a bunch of internal emails and text messages within Fox News, which we have now because they came out in Discovery in the course of this lawsuit, saying we know that this Dominion conspiracy theory that's out there and Trump's election denial generally is false because initially they said we don't want to follow him on it.

Speaker 17 They said we don't want to go there.

Speaker 17 And they were talking about how they like Sidney Powell, who is Trump's lawyer, was pushing the Dominion conspiracy about how she's crazy and she doesn't have any evidence.

Speaker 17 And then you see that their ratings start to drop and then they start making, it's not exactly they say, let's do this Dominion conspiracy after all to get viewers back, but you see them kind of

Speaker 17 allow themselves to be pulled in to making this choice choice because they have a couple anchors who are a little bit rogue and error it and at first they're concerned about that and then they're saying, well, actually, this has a lot of ratings.

Speaker 17 And then they're saying, well, actually, we need to bring our viewers back. And so I think that it is, it's clearly pretty strong, which is why it's going to trial in the first place.

Speaker 17 Whether they can prove, you know,

Speaker 17 each step along the way adds up to an intentional lie that is responsible for that level of damages is going to turn a lot on not just were they lying because of course they were and the judges basically come out and said I think that they're lying

Speaker 3 but whether they can prove that the executives at the company were involved in the lie well and that's key because I've seen that now they want to go with the defense that Lou Dobbs and Maria Bartaromo actually believed this and so it wasn't deliberately spreading misinformation so they they really believe this and they're just crazy so we're going to throw them under the bus but I think the judge said at one point in the pretrial period, like, it's not about who said it.

Speaker 3 it's about the choice to publish and air these lies, and that rests with the executives. Right.

Speaker 17 Or it rests, or at least it doesn't,

Speaker 17 they can't push it off on the guests. Because initially they were saying, we're just reporting what the president and his allies are saying.
These are just guests on our show.

Speaker 17 We're not responsible for the lies they tell. And I think what Judge...

Speaker 17 Davies was saying is that, no, you chose to air that, and you knew it was a lie when you chose to air it. So that is not, that you're responsible for that.

Speaker 17 The question is whether Fox will be able to, as you say, to portray Lou Dobbs and Maria Bartiromo as rogue actors.

Speaker 17 And we know now that they actually tried to coerce one of the assistants on Maria Bartiromo's show into giving false testimony that would portray Bartiromo.

Speaker 17 Right. Yeah.

Speaker 17 It seems bad, and it also seems bad for Fox's case that that assistant then came out and sued the network. And it does seem like she was also pretty complicit in that lie coming out.

Speaker 17 So she's not the most sympathetic figure.

Speaker 17 But there is a lot of documentation that the executives were at the very least aware that it was happening and aware that it was false and chose not to intervene or pushed it to happen.

Speaker 10 Yeah.

Speaker 10 I want to push you on this sort of question of democracy, play a little devil's advocate here, because you do hear a lot of people say like, well, with the big lie, this is bigger.

Speaker 10 This is about a threat to our democracy, right?

Speaker 10 I think a lot of academics in particular would argue that press freedom is core to democracy right now.

Speaker 10 In India, for example, ostensibly the world's largest democracy, the leader of the biggest opposition party, the Congress Party, was just sentenced to two years in prison for defamation of Prime Minister Modi, actually of like three dudes named Modi for reasons I'll set aside.

Speaker 10 That seems to be the biggest threat to India's democracy, using defamation law to throw an opposition leader in jail.

Speaker 10 What do you make of the argument that this case could do more than more harm than good to our democracy if it in any way curtails press freedom?

Speaker 17 I think we are balancing through these trials, although no one in the trial is doing this deliberately.

Speaker 17 We are balancing a really tough set of questions about our democracy, about how we balance the absolute standards of press freedom that we have right now against the rising threat of deliberate disinformation that clearly subsumed Fox News even against the wills of its own hosts and executives, that they felt compelled to tell these lies that they knew were going to these extremes.

Speaker 17 How do you balance those things? How do you balance the freedom to get things wrong in the media against the clearly rising intentionality of lies?

Speaker 17 And just the fact that we are in such a rapidly changing political environment where we have so many political actors now who are leading the media rather than the other way around and trying to pull them towards election denialism that has

Speaker 17 clearly real gravity and real weight with the audience.

Speaker 17 I mean, it's an irony that these big, weighty questions of trade-offs are being litigated through through a question of corporate damages for a for-profit company, which is like, welcome to the United States of America.

Speaker 17 Like, that's where the priorities are. It's not like if you tell lies that lead to an insurrection, like, we're not going to see you over that.
But you lose some profits for a company. That's bad.

Speaker 3 It's also like, what do you define as journalism?

Speaker 3 You know, we've talked about Fox a lot on this program, and they like to think of themselves as a media outlet.

Speaker 3 I think there was a time when other journalists would think of them as a media outlet that was just conservative. I think that time has passed for most, for a lot of people

Speaker 3 who aren't Fox fans or MA people. So then like, are you able to get away with

Speaker 3 just lying intentionally because you call yourself a media outlet? Right. You know, and I think

Speaker 3 that's one of the things to balance as well.

Speaker 17 Yeah. And it's degrees too.

Speaker 17 And I think what's fascinating about the disclosures that we saw of Fox News's internal emails and text messages is you actually see them wrestling with this question in real time because because they have reporters.

Speaker 17 They do have obviously a diminishing part of the network, but they do have reporters who do re-reporting.

Speaker 17 And they had a reporter who fact-checked, I think, one of Sidney Powell's press conferences and was getting just dragged internally within the network because people saw, the host saw, the executives saw that that was playing into hurting their ratings.

Speaker 17 Now, at the same time, the executive.

Speaker 10 And Kennedy and maybe... Tucker Carlson said, we need to fire her like right away.
It was

Speaker 17 claimed that she was hurting the stock price, which might actually be true.

Speaker 3 Right.

Speaker 3 Oh, yeah, sure it was. Hopefully.

Speaker 17 And, you know,

Speaker 17 you saw Rupert Murdoch initially after the election saying, we're not going to go down

Speaker 17 election misinformation. We're not going to go around election denial because I think this is bad for the country.
And then he changed his mind. So

Speaker 17 I don't have any delusions that the people at Fox are going to make the right choice because of ethical reasons.

Speaker 17 But I think there is a question of what are the financial incentives that are going to push them to do the right thing.

Speaker 17 And maybe ultimately the question of what right-wing media in this country looks like will come down to are the financial penalties of lying to the extent that Fox and others lied going to exceed the financial penalties of telling the truth, which means that you're going to lose viewers to

Speaker 17 YouTube channels, basically.

Speaker 3 Basically, what do you think it says about Fox and the larger right-wing media ecosystem that they felt the need to chase these online conspiracies because they were afraid of losing viewers?

Speaker 17 So it's so fascinating because

Speaker 17 it didn't look like what I thought it was going to look like. You know, I really thought that watching like Fox News arrive at this place in real time in 2020, that it was,

Speaker 17 you know, they love Trump, they want to keep Republicans in power, so they're making a deliberate top-down choice to broadcast these conspiracies.

Speaker 17 And what we know now is that they did it basically out of fear, and they did it out of this realization that they had, I mean, you can pinpoint it almost exactly to like November 12th, if you look, or like November 10th, 12th, if you look at the emails and the text messages, where they initially said, we're not going to do election denial.

Speaker 17 And they thought that that decision was going to be enough to shape the narrative because for 25 years, Fox News has been in charge of what the right things. And they've had an iron grip on

Speaker 17 what are the narratives, what are the facts, you know, who's right, who's wrong, what are the good policies, bad policies. And you see them realize that that's not true anymore.

Speaker 17 And that they no longer have the power to set that narrative because they can tell people that Trump lost the election and then they're just going to go someplace else.

Speaker 17 And that they are realizing that they now live in a world where there is always going to be someone, some social media, some crazy network, Trump himself, who will serve the kind of most base extreme QAnon parts of the party.

Speaker 17 And they made the wrong choice in deciding what to do about that. But I think it's a big question about what choice are they going to make going forward.

Speaker 17 And I mean, hopefully facing at least the threat of financial penalties will guide them on a better direction.

Speaker 3 Aaron Powell, Jr.: Well, and to Tommy's questions about sort of the balance between protecting press freedom and stopping the spread of disinformation, the fact that Fox now chases these conspiracies that are mainly developed online that then get fed to places like OAN and Newsmax makes that question even more complicated.

Speaker 3 Because, again, what is a media outlet if it starts in some 4chan form and it spreads around and YouTube?

Speaker 10 I would argue, though, they've been doing that for a long time. I mean, what was the birther conspiracy, if not for like an online thing that hopped to Fox and to other people?

Speaker 10 So, look, I mean, I think like this is the courts are catching up with Fox's practice for a while here.

Speaker 3 I think the internet was always a source or at least for the last 20 years, however long we've been doing this.

Speaker 3 I think the internet was always a source, but the power, their power to set the narrative and change it and cut it off, that has diminished. Well, I just feel like it's flipped.

Speaker 10 I mean, like, you know, I think the big moment was when

Speaker 10 they sent Megan Kelly out to ask Trump a bunch of tough questions at a debate. He attacked her in the most vile ways imaginable.

Speaker 10 They backed her for a couple days and then eventually showed her the door.

Speaker 3 You know what's funny is when you just said, Megan Kelly, I thought you were going to talk about the 2012 election night. Remember when Carl Rove and all the Romney people were like,

Speaker 3 no, Obama didn't win yet. This is fine, whatever.
And they were, because they forgot that black people voted in Milwaukee.

Speaker 3 And then Megan Kelly went over and was like, no, that's wrong.

Speaker 3 And so, like, that was the reverse. And Fox was able to

Speaker 3 stop the crazies, but they've long lost that power.

Speaker 17 I think you're right, though, that the 2016 election was like another big version of this moment. Or it's like it's what you see with the Republican establishment.

Speaker 17 Like 2016, they hated Trump, tried to stop him, failed. And then we're like, I guess we'll just embrace him no matter where it takes us.

Speaker 10 Get in front of this parade. Yeah.

Speaker 6 Train. It is clear.

Speaker 10 It's called a parade. Yeah.

Speaker 3 It is clear that there are not a lot of tools to fight disinformation right now.

Speaker 3 And the legal one that we're going to be witnessing this week and in the coming weeks is definitely a different one that we've talked about over the last several years. And it's not perfect.

Speaker 3 The standards are not perfect.

Speaker 3 But

Speaker 3 we'll see what happens.

Speaker 17 It does feel like

Speaker 17 in my mind, it's very of a piece with the Trump Stormy Daniels indictment and the many other indictments where it's like it's a sideways way into what I think is like the biggest question facing this country right now, which is, is there going to be accountability for trying to do a coup and overturn American democracy two years ago?

Speaker 3 Because the guy who did it is, you know, a coin flip away from

Speaker 3 president crazy. Yeah.

Speaker 17 Although maybe president from a jail cell. That's fine.

Speaker 3 Either way. Max Fisher, thanks for joining us in this.
And I know you're going to be following the trial for these next couple weeks. If there is a trial.
Unless we wake up and there's a settlement.

Speaker 17 Are you guys coming down to Wilmington with me?

Speaker 3 Yes, we'll be there.

Speaker 10 Yeah, Joe says it's fun. We're supposed to do

Speaker 3 a crash in his house.

Speaker 6 I don't know.

Speaker 17 Does Amtrak go there from L.A.?

Speaker 3 It's gotta. I think there's gotta be a train.

Speaker 10 You can go through Wilmington on the way to New York, right? That sounds right. That would be my only point of reference.

Speaker 7 Train through country? Is that a thing?

Speaker 3 Fly over country?

Speaker 17 Give him a second term, and we'll have those trains out there.

Speaker 10 Dan's going to yell at us now for making fun of Delaware because we're running for Senate there.

Speaker 3 All right, Max, thanks for stopping by, and we'll check in with you as the trial continues. Great.

Speaker 3 Thanks to Max Fisher for joining and we will talk to you on Thursday. Love it.
You want to join the pod?

Speaker 3 Sounds like it doesn't, John.

Speaker 3 Pod Save America is a crooked media production. The executive producer is Michael Martinez.
Our senior producer is Andy Gardner-Bernstein. Our producers are Haley Muse and Olivia Martinez.

Speaker 3 It's mixed and edited by Andrew Chadwick. Kyle Seglund and Charlotte Landis sound engineered the show.

Speaker 14 Thanks to Hallie Kiefer, Ari Schwartz, Sandy Girard, Andy Taft, and Justine Howe for production support.

Speaker 3 And to our digital team, Elijah Cohn, Phoebe Bradford, Milo Kim, and Amelia Montoud. Our episodes are uploaded as videos at youtube.com slash podsaveamerica.

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