All the President’s Tools

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Speaker 2 Hey, everybody. Welcome to the weekly show.
It is July 23rd on a Wednesday. It's coming out on a Thursday.
And let me just begin with, what a fucking week

Speaker 2 this had.

Speaker 2 I can't even get into the late show, daily show of it all. Watch Stevens from Monday, watch ours from Monday.
I think you'll get a sense of how we're feeling and

Speaker 2 just how tenuous this moment. Oddly enough, the episode today is about

Speaker 2 levers of power and coercion from the government and how they use their power to

Speaker 2 manipulate and to get what they want and to and to force people into the authoritarian tendencies.

Speaker 2 And it's hard to even focus on it with, I mean, every day now is a new, there was another Epstein Dropbox, you know, the...

Speaker 2 your iPhone bringing up memories of us. Like there's another, it's them, it's Epstein and Trump at a wedding.
Now there's all these photos. It's them dancing.
There's

Speaker 2 video of them getting matching tattoos and eating spaghetti like Lady and the Tramp. Like their relationship,

Speaker 2 the fucking weirdness of it all. And

Speaker 2 God, thank God

Speaker 2 social media wasn't around in those times.

Speaker 2 We'd be watching on a loop. on CNN and MSNBC the TikToks that Epstein and Trump make in Cabo with beauty pageant contestants.
Like they very clearly

Speaker 2 dug each other in a

Speaker 2 deep Starsky and Hutch kind of a way until

Speaker 2 whatever happened. And all his attempts at, you know, as each new video and photo drop comes out, he gets more unhinged.

Speaker 2 There should be firing squads for NPR hosts. You know, he's just

Speaker 2 losing his fucking mind. And there's nothing that can distract from any of this unless Hunter Biden decides to go out and drop a three-hour mixtape of his

Speaker 2 nuttiness, which is

Speaker 2 what he did, the gift that you saw giving, which he said.

Speaker 2 He goes, oh, my dad had a bad debate, but he was on Ambien. And I'm like, that doesn't make it better, dude.
Like,

Speaker 2 it calls into question the decision-making of the whole team. Dad, you got the most important night of your life.
You got to be sharp.

Speaker 2 Here's a couple of Kwaludes to take the edge off so that you're ready to really rock that fucking thing.

Speaker 2 And he goes, what was the thing he said? He said something crazy. He goes, oh,

Speaker 2 he was talking about the deportations and how angry he is about him.

Speaker 2 He goes, if I'm president in two or three or whatever years, I'm going to call them up and go, I'm invading you unless you give those people back. And I'm just like, Hunter,

Speaker 2 dig the hypothetical, but I don't think it's going to be a worry for you that that's going to be the thing that happens. So,

Speaker 2 uh, but but the main thing is still the main thing.

Speaker 2 I mean, uh, Donald Trump using every arm of the federal government to intimidate and bully and push things in his direction and the general compliance that appears to be at the root of all of of his power, this fight against him through all legal and ethical means has to be,

Speaker 2 has to be turned up, as they would say on Spinal Tap, to 11. All of these institutions have to fight back.
And

Speaker 2 to get to that conversation, actually, I think our guests today are going to be incredibly apropos to discuss what

Speaker 2 that sort of coercion looked like in the past, how it has changed, what are the various things. So let's get to them now.

Speaker 2 First of all, I'm delighted to welcome our guests for the program today, Preet Barra, who is the former U.S. Attorney for the Southern District of New York, a podcast host.
Stay tuned with Preet.

Speaker 2 He was appointed by Obama in 2009. He was fired by one Donald Trump in 2017.
And we've got Dan Pfeiffer, co-host of Pod Save America. He's an author.

Speaker 2 He's got MessageBox, which is a newsletter about political strategy. And he was a senior advisor to Obama for strategy and communications 2013 to 2015.
Gentlemen, welcome to the podcast.

Speaker 3 Good to be here.

Speaker 4 Thanks for having us.

Speaker 2 I am excited to talk about, I feel like the two of you represent good insight into this world

Speaker 2 of political retribution.

Speaker 2 how presidents use the leverage of their office and the varieties of, let's call them for the time being, independent agencies that exist or formerly independent agencies that exist within the executive.

Speaker 2 How is that discussed? Dan, I think you've probably got a really good sense of how that's discussed behind the scenes.

Speaker 2 Pre, I think you've got probably a really good sense of how those wishes are executed and what are the guardrails that exist

Speaker 2 around there. So I guess I want to start with

Speaker 2 Dan,

Speaker 2 you've been in these meetings in the Oval Office. How explicit are presidents

Speaker 2 about their wishes to, I don't want to use the word punish, but exert influence on the

Speaker 2 institutions that may think they don't care for, whether it be the press or

Speaker 2 conservative or liberal institutions. What are those conversations like?

Speaker 4 Well, I mean, you're very careful, right?

Speaker 4 And you, because there's prior to Trump, there was a real set of guardrails that even if you had the worst instincts, if you wanted to exert influence, you want to exert retribution, there were a set of things that would prevent you from doing that, right?

Speaker 4 One is just a general good faith belief in democracy and the rule of law.

Speaker 2 Does that ever come up in the office? Do people go like, hey, man. I don't know if this is good for democracy.
We've got a good faith respect.

Speaker 4 Well, I think it's just, it was for a long time, naturally assumed, no more. And so, but then the other thing is the agencies really were independent.

Speaker 4 Like, I just can't emphasize this enough that they take the Department of Justice, where Preet knows a lot about, is as a person who had a political portfolio in the White House, I was never allowed to be in communication with anyone in the Department of Justice on any sort of law enforcement matter.

Speaker 2 I was never

Speaker 2 allowed.

Speaker 4 Not allowed, right? The only people in the White House who could talk to the Department of Justice on a law enforcement matter was the White House Counsel.

Speaker 4 And they were usually on the receiving end of information. Like I would find out, I was in charge of the president's communications for six years.

Speaker 4 I would find out about a major Department of Justice announcement five minutes before it happened.

Speaker 4 And that sometimes that was good news, like an arrest, a terrorist plot foiled, you know, a settlement in a, you know, some sort of large consumer litigation, something like that.

Speaker 4 And sometimes it was like really bad news, like the appointment of a special counsel to look into a leak investigation. But you would find out five minutes before.

Speaker 4 And that was a line that no one, everyone believed you should never cross, right? The president believed it. It did, it did not, and did not.

Speaker 2 And did.

Speaker 2 And Pre, maybe you can speak to this because I remember, and this is in the Bush years, you know, they had guys like Jack Goldschmidt who would be working on briefs that would allow them to do the things that they wanted to do.

Speaker 2 Clearly, there were there were dictates, and I imagine the Obama administration did it too, to their Justice Department where they would get their lawyers to try and draw up justifications for political moves that they wanted to do.

Speaker 2 Is it your understanding that that's how that works?

Speaker 3 Yeah, I mean, it depends on what the issue is and was.

Speaker 3 I'm not sure it was Jack Goldsmith, but you have an office of legal counsel within the Department of Justice that writes opinions on what is or is not lawful, advisable, whatever.

Speaker 3 There were the so-called famous notorious torture memos. that were written by John Yu and others in the Bush administration.

Speaker 3 And then there are people who will say, just to be fair, on the other side of the coin, that

Speaker 3 when Barack Obama, President Obama decided to engage in drone strikes against an American citizen who had turned into a terrorist,

Speaker 3 was that really justified, justifiable or not?

Speaker 3 Presidents rely on those kinds of things. But just further to what Dan was saying about the allowance of political figures to talk to folks in the Justice Department.

Speaker 3 There were guidelines about that. And when we say before Trump, it was different, it wasn't different all the way back to the beginning of the Republic.
It was different going back to Nixon.

Speaker 3 There was a guy named Nixon.

Speaker 2 No, I'm not familiar with that.

Speaker 2 Tell me.

Speaker 2 You're talking about Mojo Nixon?

Speaker 3 Look, it's always left to the immigrants to teach the people who have been here longer

Speaker 3 about their political history. Sure.
And so a lot of these guidelines that Dan is talking about came into existence.

Speaker 3 Because of Nixon's overreach and because of Nixon's unlawful activities and the unlawful activities of the people around him,

Speaker 3 there were serious guidelines with respect to what a Justice Department official could or could not take in terms of a call from a political official. Those are not there anymore.
They're gone.

Speaker 3 Another thing that we may get to, just to put a point on it, is, as you mentioned, I was the U.S. Attorney in the Southern District for a long time.
I hired a lot of people there.

Speaker 3 One of the people I hired into that office was a very, very able lawyer,

Speaker 3 exemplary assistant U.S. attorney named Maureen Comey.

Speaker 3 She shares a last name with the former FBI director, someone who the President of the United States despises with a white-hot passion.

Speaker 3 I believe that her firing was unlawful

Speaker 3 and remains unlawful because she has civil service briefings.

Speaker 2 Unlawful because the executive is not allowed to exercise hiring and firing over the district attorney's offices?

Speaker 2 Why unlawful?

Speaker 3 The President of the United States has absolute ability, as he did in my case, to fire me, to fire cabinet officials, to fire political appointees.

Speaker 3 We have civil service protections, and you can like them or not like them, but they've existed for a long time.

Speaker 3 The Trump folks like to call that the deep state. They have their own deep state.

Speaker 3 And you could repeal those laws if you want. But the interesting thing about the firing of Maureen Comey, which I believe

Speaker 3 happened because her last name is Comey. Sure.
And not because of some dereliction duty with respect to Jeffrey Epstein or anyone else.

Speaker 3 The only justification they gave was Article 2. Article 2 is the article that relates to the president.

Speaker 2 Well, that's the justification for everything.

Speaker 3 For everything. Article 2.
That means you can do anything you want no matter what.

Speaker 3 I hope that she takes legal action. But the idea that you can reach into

Speaker 3 far-flung bureaucracies and pinpoint individuals, notwithstanding legal protections and process that's accorded to them,

Speaker 3 because you don't like their name or because you don't like their father, or because

Speaker 3 you got pressure from the right, the hard right folks, who say, fire this person is not right.

Speaker 2 Well, so when you got fired, Preet, when you got fired,

Speaker 2 you're in the same office.

Speaker 3 But I was a political appointee confirmed by the Senate. I was totally subject to being fired at will.

Speaker 2 So political appointees are at will. Civil service employees have to follow certain procedures.
And if those procedures aren't followed, then that is unlawful.

Speaker 3 Yeah. Believe me, there's some people I may have wanted to fire on the U.S.
attorney, but I observe what the legal parameters were, and you can't do that without process.

Speaker 2 But this gets us into this weird cycle. And this is the thing that I want to talk about.

Speaker 2 So, Dan, you're in the office and the president of the United States decides I'm not crazy about the way this one federal prosecutor's office is running things.

Speaker 2 I would like to get rid of these two particular federal prosecutors. They are not political appointees, but I would like to do that.

Speaker 2 Isn't there a process where they say, great, let me talk to our counsel, see if they can draw up justifications. Another, isn't this a bit of an ouroboros that we're talking about?

Speaker 2 You know, we all want to talk about whether guardrails exist here, but

Speaker 2 isn't the United States bureaucracy complex enough that you can basically

Speaker 2 justify loopholes in almost any process to do whatever it is that you want to do? And isn't that how presidents often accomplish that? Is that your experience, Dan?

Speaker 4 Well, I think it goes to motivation matters a lot here, right? So what is the reason why you're doing this?

Speaker 4 Like the way this conversation would go in the White House, if when I was there at least, is the White House council would be sitting on the couch in the Oval Office, two seats over from me, and they would say, you can't do that.

Speaker 2 Talk about the couch, pillows on the couch.

Speaker 2 Is it tastefully appointed? Are there feet up on the ottoman? What do we do?

Speaker 4 Now I think the couch may be fully gold in the White House, but it was

Speaker 4 a nice stripe when I worked there.

Speaker 2 Do we have dishes with M ⁇ Ms and nuts that are sitting on the table? Does J.D.

Speaker 3 Vance have access to that couch now?

Speaker 4 Settle down. Very on-brand for Obama.
It was a bowl of apples in the middle of

Speaker 2 that. Okay.
All right.

Speaker 4 I don't think Michelle Obama was letting us put MMs in the

Speaker 2 get American movie.

Speaker 4 But the White House Council would say, you can't do that. And here's why.

Speaker 4 And the president could theoretically, like, I was never part of any conversation where he wanted to fire random prosecutors in the middle of offices. That wasn't a thing you worried about.

Speaker 4 He would say, well, what about this?

Speaker 4 And then the lawyer would push back and say, and even if you could justify, you could find a way to justify some sort of reason, you could create some cause for said firing or whatever else, there would be concern about blowback for doing it, right?

Speaker 2 But that's political, political or legal blowback?

Speaker 4 Both, both, right? So you could like the test in any, the president has all this power until a court says you don't have it anymore. And so are you going to do this?

Speaker 4 You're going to try to fire these two people.

Speaker 4 You're going to take all this political blowback from the senators from said process, you know, who are from that district where these prosecutors are from. And then is a court going to stop you?

Speaker 4 So you took the blowback for firing them, but then a court says they had to have to go back to work on Monday. And so you have gotten all the downside and none of the upside.

Speaker 2 So it's a cost-benefit analysis.

Speaker 3 Yeah.

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Speaker 2 But like Preet, I'll give you an example of what I'm talking about.

Speaker 2 Isn't there something that's a bit akin to doctor shopping for pills with lawyer shopping that, and I'll use the example of the election in 2020.

Speaker 2 You know, the the White House counsel sits with President Trump and says, yeah, you lost and you're not allowed to go through and get that.

Speaker 2 And then he says, is there another lawyer that can get me a justification

Speaker 2 for why we can challenge?

Speaker 2 You know, isn't that a process that they all go through to lawyer shop to finally get to somebody who will say, actually, the vice president can just deny the certification and throw this whole thing into the House of Representatives?

Speaker 3 Yeah, look, I'm going back to that guy, Nixon, again.

Speaker 3 He kept trying to get somebody to do the dirty deed of firing a top official.

Speaker 2 You're talking about John Mitchell when he was going up.

Speaker 3 Yeah. And they either do it or they got fired.
Now, that was sufficient blowback politically and legally that

Speaker 3 he was undone and he had to leave office. And we established all these guardrails in place of that.
Companies do it too.

Speaker 3 You want to do a thing, it's on the line, or maybe it's it's over the line and you just want someone to justify it for you.

Speaker 3 It's not a new thing in American law or American politics or American business, but there are degrees. There are degrees of this.

Speaker 4 Right, right.

Speaker 2 So we're talking about degrees of this.

Speaker 3 I think so. And look, I'll give you another example of something, just going back to my expertise.
In the last couple of days, not everyone may be following this.

Speaker 3 There was a woman, a personal lawyer to Donald Trump, who I believe completely and utterly unqualified.

Speaker 2 You talk about Emil Bove.

Speaker 3 Well, I'm actually talking about Alina Haba.

Speaker 2 We can talk about Emil Bovay. Okay, okay.
I'm sorry.

Speaker 4 It's a long list. There are a lot of them.

Speaker 2 All right.

Speaker 4 Tell me about this one. Not Judge Gene Panier Piero, right?

Speaker 2 Yes. Yes.
No. Oh, my goodness.

Speaker 3 This is a three-hour show. This goes on.
Alina Habba was appointed to be the U.S. Attorney on an interim basis in the District of New Jersey, significant district, very important.

Speaker 2 I live here. Clean the whole place up.

Speaker 3 She'll be careful. She could come after you.

Speaker 2 Yeah, yeah.

Speaker 3 By operation of law, by statute, this is not a norm. By statute, her term ended at 120 days, which, depending on how you count, was either yesterday or will be the coming Friday.

Speaker 3 And under the statute, the judges in the district can decide to appoint her or appoint someone else.

Speaker 3 And they didn't appoint her for, I think, clear reasons, and instead appointed her hand-picked deputy, her number two.

Speaker 3 And you're like, okay, well, now we have a legitimate district that's led by a legitimate person. You know what happened? They fired her.

Speaker 3 Cam Bandif, they fired the deputy who was handpicked by Alina Habba.

Speaker 3 So I don't know who becomes the United States attorney there. So that's that's not a norm.
That's a law. And a similar thing happened in the Northern District of New York.

Speaker 3 The lead prosecutor in a very significant district,

Speaker 3 the judges didn't approve that person. So they designate, you know, under the law.
So they have a runaround.

Speaker 3 They have a back-end plan. And they appointed him, I think, something like special counsel to the attorney general.
And

Speaker 3 they don't have an actual U.S. attorney in the Northern District of New York.
They have this guy who's the functional U.S. Attorney in the Northern District of New York.

Speaker 3 So it's a pattern of behavior to put his own people anywhere, no matter what the norms are, and more importantly, no matter what the laws and statutes say, no matter what the judges say.

Speaker 2 So maybe the norm is partisan but competent.

Speaker 2 And this new norm is ideological and slightly insane.

Speaker 2 Dan, I want to get to.

Speaker 2 So like when we bring up, because I want to use the examples that we have in front of us with President Obama a little bit before we really move into Trump, because I think there's a tendency here to think this is a brand new, like you say, it's not a matter of degrees, this is brand new.

Speaker 2 So, Dan,

Speaker 2 they want to do a

Speaker 2 seemingly extrajudicial drone strike against somebody who is there. Or here's, you know what, maybe this is a better example, Dan.
The IRS scandal that occurred during the Obama administration.

Speaker 2 So you have a situation where

Speaker 2 the IRS is allowing progressive, people with, you know, words like progressive or democratic, their organizations to pass through with the tax-exempt status in a way that they are not allowing anything with the word Tea Party or conservative to pass through.

Speaker 2 So, and clearly to a point where it's not random. This is something that is occurring with purpose.

Speaker 2 How do you explain that? Is that a rogue bureaucrat within the IRS? Is that something that is

Speaker 2 discussed on a political level? How does that occur?

Speaker 4 Sure. So in this situation, there's two important facts here.
The first is this was a field office in Cincinnati with career bureaucrats that had never and was

Speaker 4 the deep state. Yes.
And all the investigations showed there had never been contact between that office and anyone of any consequence in the Obama.

Speaker 2 So this was rogue. This really was rogue.

Speaker 4 And then the second part is when you actually did the full investigation, there was a whole host of progressive terms they were also flagging. And so it turned out to actually not be

Speaker 4 the scandal that people thought it actually was.

Speaker 2 Didn't that, I was, if I remember correctly, and I probably don't, because I'm it has been, it has been 11 years now, I think. Didn't they, but they, they paid millions of dollars in penalties.

Speaker 2 There was, there were some,

Speaker 4 there were, there were, there were lawsuits about it that were settled.

Speaker 4 Um, I don't remember all the details of it because we said it was a decade ago, but it, the, the initial view that they were only doing Tea Party turned out to not actually be true.

Speaker 4 They were actually had a much wider thing. But either way, that it like the fear that someone could do that is a very real fear.
Like this is, we get back to Nixon again.

Speaker 4 This is how you politicize the IRS. You have them audit your political opponents.
This individual case was truly people no one had ever heard of working in an office in Cincinnati.

Speaker 4 And so that is like, it's not, that is like, that's the fear.

Speaker 2 Are those things discussed, Dan, in the office? Like, does someone ever say, like, look, Nick, Trump is very clearly targeting tax exempt status for his enemy enemy institutions.

Speaker 2 He's threatened it with Harvard. He's threatened their accreditation.
He's threatened tax-exempt status for a wide variety of organizations that might oppose him.

Speaker 2 Is that ever something that is

Speaker 2 what are the levers of coercion that are discussed in the Oval Office? And I don't mean, I mean the Oval Office metaphorically. Yeah,

Speaker 4 those sorts of things never discussed, right? That is a bright red, Watergate-style red line.

Speaker 4 In a pre-Trump era, if you were thinking about the things that could end your presidency, it would be using the IRS to look at, to go audit, regulate, go after your political opponents.

Speaker 4 Like never once discussed, never thought of. If you brought it up in a meeting, you would never be invited to a meeting back again.

Speaker 4 You probably would be walking out of the White House holding all of your possessions later that day.

Speaker 2 But they do use, I mean, they do go through, you know, Obama used the, I think it was the 1917 Espionage Act, where they would go after, you know, they, they prosecuted more journalists under the Espionage Act.

Speaker 4 This is a great example of

Speaker 4 the

Speaker 4 problem.

Speaker 4 This is a great example of the independence of the Department of Justice, right?

Speaker 4 These were a bunch of Bush-era investigations, most of them were in Bush-era investigations, not entirely, that were then continued.

Speaker 4 Nothing drove Barack Obama more insane than having to take all the blowback for these investigations.

Speaker 2 Like drove safe, but he could not.

Speaker 2 When he got the records from the AP for- He never saw them.

Speaker 4 Right. Like, they never made it to the White House.

Speaker 2 And he never requested those records. No, never, never.

Speaker 2 Nobody in the Oval Office ever said, no, there is a leak here and we need to investigate this leak.

Speaker 4 No, no. There's never, and it would have,

Speaker 4 and I promise you, if you had polled the president's top advisors, they all would have just wanted these investigations to stop.

Speaker 4 Because we're all the ones say, like, they, in my office, when I was the White House communication director, every reporter could walk into my office without, just walk right in.

Speaker 4 And the amount of people who came in, in, they're very upset, rightfully upset about these investigations, the way it did tremendous damage to the president's relationship with the press, to the use of him as a president who wanted to,

Speaker 4 you know, protect the press, be transparent. But this was, these were decisions made by career prosecutors in the Department of Justice without any contact with anyone in the White House.

Speaker 2 Dan, I may be naive. Maybe.
We'll see. It strikes me as

Speaker 2 that seems hard to believe that political blowback is swirling around the executive about espionage prosecutions on someone like James Rosen.

Speaker 2 And they're getting records from AP, and the White House is just sitting passively saying, dear God,

Speaker 2 there's just nothing I can do here

Speaker 2 other than just suck it up.

Speaker 4 I would say. I didn't sit in national security meetings.

Speaker 4 I can imagine that there is great concern within parts of the national security community, the intelligence community, about the leaks of highly sensitive intelligence.

Speaker 4 I don't know what those conversations were like, but I can promise you from a political perspective and from President Obama's perspective, this was a, and he even talked about it afterwards, about how, about these, the problems with these investigations and took steps in his second term to put guidance in place that would, that would protect journalists in these situations.

Speaker 2 But even that, that's what I mean. Like, that, that just strikes me as an incredibly passive executive in the way that Trump may be.
But Preet, what's your experience in that?

Speaker 2 You know, you're in the Department of Justice. Is that in any way realistic that a president of

Speaker 2 status would not, if something is spiraling out of control within justice, because

Speaker 2 they are, that is in the executive, that they wouldn't reach out through various channels and try and rectify this situation legally?

Speaker 2 It's hard to believe.

Speaker 3 Look, it depends on what the thing is. So there's a range of things that the Department of Justice does or can do that a president would care about, right?

Speaker 3 And so at the one end of the spectrum that's totally legitimate, totally lawful, and I think no one would dispute,

Speaker 3 if crime rates are rising and the papers are reporting we have a crime wave in these various cities, President of the United States, whether it's Barack Obama, George Bush, or Donald Trump, can call his attorney general and say,

Speaker 3 what are you doing?

Speaker 3 Can we surge prosecutors? Can we do some stuff? Can we change policies? Can we enhance penalties? All of that is totally fair game and clear on the one end of the spectrum.

Speaker 3 At the other end of the spectrum, a president of the United States calls up his attorney general or worse, calls up

Speaker 3 the head of public corruption at the Southern District of New York and says, you know, I really hate Bill de Blasio.

Speaker 3 And I know you do too.

Speaker 3 That MF's got to go.

Speaker 3 So can you help a brother out? And by the way, I'm the commander-in-chief and under Article II, I can fire you.

Speaker 3 That's like probably the worst thing at the other end, worse than the IRS, And in between,

Speaker 3 you have a lot of stuff.

Speaker 3 So if something

Speaker 3 is spiraling out of control and it can be, I think, assessed to be properly a policy issue, like what's the policy of the department on subpoenaing journalists?

Speaker 3 I think that's more legit.

Speaker 3 But if you call up and you say, listen.

Speaker 2 Well, that's why it's hard to believe that it's not the same.

Speaker 3 Only subpoena the Wall Street Journal, but don't subpoena the New York Times, then it's more like the other category I'm talking about.

Speaker 3 So it's a judgment call, part of which is policed not by statute or by judges, but by this other thing, blowback, which seems to be a little bit of a thing in the past, because blowback doesn't seem to matter to some people, including Donald Trump, so long as his MAGA base is in tow.

Speaker 2 But I guess, yeah, go ahead, Dan.

Speaker 4 I was going to say the thing I'd say about this is, in hindsight, Given everything we've learned in the decades since, would there have been so much blowback if the president, if Barack Obama had called Eric Holder and said,

Speaker 4 this is not worth it. You cannot subpoena journalists.
Stop these investigations.

Speaker 4 Would there have been huge blowback for that?

Speaker 4 I don't know. Probably not.
Clearly not.

Speaker 4 Trump has gone much closer to the end of the spectrum.

Speaker 4 But the question is, like, here's where, like, and this is where lawyers are very cautious, particularly when they're advising presidents, is there's a slippery slope there.

Speaker 4 So one day it's don't subpoena

Speaker 4 James Rosen. The next day, it's don't subpoena this Democratic donor who's under investigation or this Democratic politician who's under investigation.

Speaker 4 Or even worse than that, go subpoena this political opponent of ours. And so they're like, the lawyers are very careful about this slippery slope.
If you care about these things.

Speaker 2 But it's hard to believe that the president himself wouldn't say these espionage investigations are unfairly targeting journalists, but I'm not going to call to find out

Speaker 2 because that's a pretty slippery slope for me. And, you know, I hate Bill de Blasio.
And I'm just going to use it.

Speaker 2 I'm going to use it.

Speaker 3 But like in hindsight, should he consensus position?

Speaker 2 Yeah.

Speaker 2 Here's where I'm knife. It's hard for me to believe that someone with the strength of conviction that Barack Obama had, that he would sit back passively and watch something spiral.

Speaker 2 I'll give you just a stupid example.

Speaker 2 During the Obamacare rollout, my show did a a little skit. We had Kathleen Sebelias on it.

Speaker 4 I remember this quite well. I was in the

Speaker 2 Sabbath. Yes.
Yeah. Okay.
So you remember.

Speaker 2 I have no recollection of it. Pre- God bless you.
You shouldn't. It's a tiny, it is a blip in the history, not just of this country, but in the humankind.

Speaker 2 Kathleen Sebelias came on, and my first question, I took out two laptops and I gave her a laptop and I had a laptop. And I said, we're going to try two things.

Speaker 2 I'm going to sit here and I'm going to try and download on LimeWire

Speaker 2 every movie and song that has ever been written. And on your computer, you're going to try and log on to the Obamacare website.

Speaker 2 We're going to see who gets there first.

Speaker 2 Dumb bit.

Speaker 2 But anyway, that sort of spiraled into kind of a long

Speaker 2 interview with Sebilias about if you believe that the government has the opportunity to improve people's lives, isn't job one kind of a technical competence?

Speaker 2 I mean, for God's sakes, your fundraising emails are 22nd century technology. And yet this thing.
So anyway,

Speaker 2 I get a call.

Speaker 2 I can't remember how much later, but it wasn't much later. The president would like to talk to you

Speaker 2 in person.

Speaker 2 And I have to go down to Washington because the president of the United States calls you and says, hey, man, let's talk.

Speaker 2 And it was, I don't want to say terrifying because I didn't have the sense of Obama that, you know, that I would have with Trump, but it was intimidating.

Speaker 2 And you're standing in a room wearing a suit during the day, which for me as a stand-up comic is hive-inducing.

Speaker 2 And

Speaker 2 you're in front of the Teddy Roosevelt picture, in front of the Coolidge desk,

Speaker 2 and you're surrounded by history, and you go into the Oval Office,

Speaker 2 and the President of the United States gives you shit.

Speaker 2 And I'm not saying it's the same thing, obviously, in terms of, but it is,

Speaker 2 I can't look at it any other way than a form of intimidation or coercion. Now,

Speaker 2 to his credit, we got past it and like we had a much longer conversation that I thought was fruitful. But Dan, isn't the point of that

Speaker 2 in some respect

Speaker 2 to get me to shut the fuck up?

Speaker 4 Well, I remember, the reason I remember that, even though it was, you know, what, 12 years ago now, is

Speaker 4 I don't know how the president, I don't know, I mean, he's a big fan of yours. I don't remember him watching the daily show on a daily basis, but it was a tremendously hot show.

Speaker 2 Yes. It was awesome.
The apprentice. This is a different era of television.

Speaker 4 You turn it on, there it is, right?

Speaker 2 The apprentice.

Speaker 2 These good old days.

Speaker 4 Sure. And he had two questions for me.

Speaker 4 One was, how did Kathleen Sebillius end up on your show? And two, what was your phone number?

Speaker 4 I can answer the second one. The first one was a much harder question to get to the bottom of.

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Speaker 2 All right. We're back.
Dan.

Speaker 4 There's certainly no norm or historical precedent of a president not calling a member of the media to talk to them.

Speaker 2 Yeah, yeah.

Speaker 4 This all comes down to the question: is like, I feel like we're sort of wrapped around the axle of

Speaker 4 these journalist investigations. They're like incredibly serious.
And in hindsight, in the real time, they were bad. They were wrong.
The government should not do that. It should not have happened.

Speaker 4 Is there more the president could have done to stop them? I don't know. I know that there was, we took the idea that you don't tell the Department of Justice

Speaker 4 how to conduct investigations.

Speaker 4 Like there is this idea, as serious as these are, that the president of the United States, in any investigation, telling them what to, telling the career prosecutors whom they should subpoena or not subpoena in an investigation is a very, very bad precedent.

Speaker 4 Right. Could he maybe have said like a public statement, like

Speaker 4 no journalist should be subpoenaed, which would have the

Speaker 4 same effect as the private phone call, but wouldn't it be maybe more transparent? I don't know.

Speaker 2 What's your understanding of the reality of this?

Speaker 3 Yeah, look, look, every president wants good press. Every president wants things to go

Speaker 3 his way.

Speaker 3 But again, there are degrees of this. Look, to stick up for Barack Obama for a moment, in one regard.

Speaker 2 This is not, I'm only making the point. No, no, no, no.

Speaker 3 Look, Lyndon Johnson, look, I was picking on Nixon. Lyndon Johnson was the master of putting the arm on people, personally and otherwise.

Speaker 3 As intimidating as it must have been to go to see Barack Obama, probably you're happy it wasn't LBJ.

Speaker 2 But

Speaker 3 all the U.S. attorneys were gathered early on in the Obama administration, the first term, and we had a photo op with the president.
And we all went to the White House.

Speaker 3 We went to one of the big rooms and waited there. And, you know,

Speaker 2 did he ask you guys for my phone number when you guys were in there?

Speaker 3 Oh, he had it.

Speaker 3 And he said a simple thing, right? And Patrick Fitzgerald was still one of the U.S. attorneys at the time.
And he says, you know, I hired all of you,

Speaker 3 but you don't work for me. You work for the American people and you act independently.
And that seemed quaint, whatever, until Trump shows up. Trump,

Speaker 3 from the White House podium, from the Oval Office, on a regular basis, pronounces the guilt of political adversaries every freaking day.

Speaker 2 Sure.

Speaker 3 But here's the thing.

Speaker 2 So now I think their view is,

Speaker 2 and this gets us now to this new administration. Their view is there is no independence in the executive branch from the executive.
But that is an opinion that is lawyer shopped.

Speaker 2 That gets us back to Goldsmith and you and the unitary executive and this idea that the executive is based on solely the whims of one man.

Speaker 2 And the Supreme Court has amplified that by granting immunity to the executive. So Pre, when we talk about these guardrails, haven't they been removed not just by Trump,

Speaker 2 but by the Department of Justice itself and the Supreme Court?

Speaker 3 No, I think you have a very good argument

Speaker 3 in favor of that position.

Speaker 3 The only thing I guess we can be thankful for, at least, and I mean this semi-ironically, is that they feel the need to at least paper a legal justification for it.

Speaker 2 Right.

Speaker 2 It's one of those things where you're like, no, I've got a Xanax prescription. Sure.
Hold on. Let me just.

Speaker 3 It's a tiny, it's a tiny, look. So, for example, right, right, in the case of the deportation of Mr.
Obrego Garcia, right, to El Salvador, everyone was talking about constitutional crisis.

Speaker 3 And the Supreme Court and other courts said facilitate his return. And they like bullshited around about what facilitate means.
We don't know what that means.

Speaker 3 We'll get him a plane ticket if he shows up, you know, in an Uber. Right.

Speaker 3 But at the end of the day,

Speaker 3 they did bring him back. Now, they filed criminal charges against him, but they brought him back.

Speaker 3 And I don't mean to put too much store on like these fine distinctions, but maybe I'm overly lawyering it. They still do feel the need to have some justification for it.

Speaker 3 I disagree with the justification,

Speaker 3 but there are scholars who think it's true. There are members of the Supreme Court who think that's a viable theory.

Speaker 3 I think both as a matter of law and also as a matter of, like, do you want to live in a country,

Speaker 3 put aside the Constitution and put, do you want to live in a country where the executive of the country, the President of the United States, can pick and choose which individuals in different states should be prosecuted and investigated by the federal government.

Speaker 3 You don't want to live in a country like that.

Speaker 2 But that's pretty, unfortunately, that's a political question.

Speaker 2 And what we're seeing is there are an awful lot of people who want to live in that country as long as the people he's picking. Are the other guys.
Are the other guys. Exactly.

Speaker 2 And Dan, to that point politically, when you watch it happen now,

Speaker 2 I mean,

Speaker 2 he faces no political blowback. You talked about the political blowback in the thing.
And you see it when he's in trouble with Epstein. What's the first thing he does?

Speaker 2 Arrest Barack Obama, strip the accreditation. As long as he's attacking the people his base hates,

Speaker 2 they're fine with it. And so when you see him doing what he's doing at Harvard, right?

Speaker 2 What does, what,

Speaker 2 what recourse do they have

Speaker 2 than to comply?

Speaker 2 What else can they do to an executive like that well i mean they can they can fight back right they can't which they're

Speaker 4 and have and have one in court like they're like they're obviously trump has the courts on his side he has a supreme court that is in his favor but the courts

Speaker 4 that'll just be like sure yeah they'll forum shop or whatever else yeah yeah a lot of the things they have done have been stopped by the courts right held out by the courts and so there are limits here what what i think has become clear in like matt iglesias the center left writer has the once said that democracy is just a bunch of norms in a trench coat, which is something that Trump has really

Speaker 4 Trump has really exploited is that a lot of the I think it's flashing us in a subway, right? That's exactly that trench coat is long gone.

Speaker 4 Has exploited is that a lot of the things that prevented you from doing certain things were not law.

Speaker 4 They were sort of, they were just ways in which everyone had done things before and this belief that there would be political blowback from not just the other party, but your party, from the public, and in particular, from the media, if you did those things.

Speaker 4 The world has changed so much. The Republican Party is so loyal to Trump.
The courts are favorable enough to him. The media, the sort of traditional political media has been

Speaker 4 minimized in its influence enough that it doesn't matter in the same way, that he can get away with a lot of things that previous presidents thought they could not get away with.

Speaker 4 But to say he's not facing political accountability is to judge it only in the context of his base.

Speaker 4 Right. Because the fact of the matter is, he does have the lowest approval ratings of any president at this point in their term since being elected.

Speaker 2 Right. And is I mean, he's almost had that his entire political career.
Right. And he lost, right?

Speaker 4 And he lost the House in 2018. He lost the White House and the Senate in 2020.

Speaker 2 Well, they've got a strategy for that too, Dan. I don't know if you've heard.
They've just decided to go in and be like, what if we gave ourselves five more seats in Texas? Right.

Speaker 4 Which I think we'll get, which gets to a question for Democrats about how you use power in this environment, about how they respond to that.

Speaker 2 Boy, that's a great one.

Speaker 2 Pre,

Speaker 2 for you, as you watch, so is it the taking away of funding for things that he disagrees with? Is it the threatening of tax-exempt status? Is it the threatening of prosecution?

Speaker 2 Is it what for you is the most egregious then unguardrailed action? that the Trump administration takes that in your mind, you just go, I can't even go back to Nixon on this one.

Speaker 2 This is just, you know.

Speaker 3 So, you know what it is? Yeah. It's actually not in my wheelhouse.
It's the pro-measles policy of this administration.

Speaker 2 Oh, that's interesting.

Speaker 3 The, the, I mean, when I think about my family, so I care about democracy. This is what I talk about.
I'm a member of the legal profession. I was the United States attorney.
I'm a rule of law guy.

Speaker 3 And I fight those battles. And maybe it's because I don't understand medicine.

Speaker 3 But when I think about my kids and my family members and other people, what bothers me the most is the ruination of health care and

Speaker 3 the false debunking of what vaccines can and cannot do. And when I see these, the thing that freaks me out the most as an American are the measles numbers.
Now, on the other side of the coin,

Speaker 2 I'm worried about all of it.

Speaker 3 The weird thing about the legal strategy of these guys is they lose a lot.

Speaker 3 And they will be losing a lot from a person.

Speaker 2 Well, is that pre because, you know, look, you can go on cable news and you can say anything anything and you can talk, and you're seeing that now in their conspiracy theory stuff. Is it all false?

Speaker 2 You know, where's Ray Epps? You know, remember before they got in there, Ray Epps was the Fed that made the J Sixers storm the Capitol.

Speaker 2 Well, now you're the feds, you're the FBI, you're the city, you're all those guys. Why isn't that guy being prosecuted for doing that? Because he did, because it was all bullshit.

Speaker 2 And, but is it because courts force you, and this is what I think the press should be doing more of, to litigate courts at their their best, litigate the parameters of our shared reality. Yeah.

Speaker 2 And is that why they fail so much in there?

Speaker 3 I think they fail because sometimes they take overreaching positions. So, for example, in my personal experience, I work at a law firm.

Speaker 3 My law firm, Wilmer Hale, is one of the four law firms who decided not to bend the knee and fought. The law firms who fought back on these executive orders are four for four.

Speaker 3 in DC courts, and it's going to go up for appeal. In scathing.

Speaker 2 What was the purpose? Explain to to me a little bit because I've heard about

Speaker 2 what is the justification.

Speaker 2 And Dan, I don't know if there were law firms when you were there with Obama in this situation, but what's the justification of going after a law firm that represented people that you don't like?

Speaker 3 Well, I think as the courts found, there isn't one.

Speaker 2 Right.

Speaker 2 There isn't one.

Speaker 2 Okay.

Speaker 3 In the same way that it makes no logical, legal, or pragmatic sense to cut off

Speaker 3 science research funding at Harvard because of anti-Semitism.

Speaker 3 It's going after your nemesis. In my firm's case,

Speaker 3 we had the temerity to have employed Bob Mueller, former FBI director and special counsel, who was gone from the firm. In the case of Prokins Cooey.

Speaker 2 Wait, is that why they went?

Speaker 2 What do they say specifically?

Speaker 3 They make a reference directly to the employment of Robert Mueller in the executive order and another person who still remains at the firm.

Speaker 2 What? Right. And what is the penalty for for employing someone like that?

Speaker 3 Well, apparently it's the intended penalty is a business death penalty.

Speaker 3 Because what you had, the point I was going to make was, even though they lose a lot, they still accomplish a lot because they have a chilling effect on other people and on other firms, some of whom are not as strong, but some of whom are just making proper businesses.

Speaker 3 Look, when they argue falsely that the Constitution says something different about birthright citizenship,

Speaker 3 they know that lots of people are not going to rely on on that provision of the Constitution when they come to the United States anymore.

Speaker 3 When they do things like

Speaker 3 question FBI agents and have them fill out a questionnaire and say, did you have anything to do with January 6th?

Speaker 3 Maybe that's lawful, maybe it's not, maybe it's proper, maybe it's not. But what it does is it tells every other FBI agent going forward for all time during this administration, hey, I got this order

Speaker 3 to follow this lead or to subpoena this witness or to talk to this guy. I now have to think, is that in any way related to Donald Trump or to Melania or to Donald Trump?

Speaker 3 Because my life or my livelihood could be affected by that. It's a process by which it doesn't matter if they're right or wrong so much as having the chilling effect that they want to have.

Speaker 3 That's not a great thing. And I don't know how much there is to be able to do about it.

Speaker 2 It's the tentacles, though. Dan, is that your feeling as well?

Speaker 2 It's the tentacles and the effect of their action much more so than the, it's almost the collateral damage

Speaker 2 that they're

Speaker 2 that their actions.

Speaker 4 Dan, thinking that too yeah i agree with that it's there's a it it creates a chilling effect right like i'm sure you know we're all in media and i'm sure everyone has gotten a very aggressive defamation training about how because now they're suing everyone for everything i don't recall and it's yes

Speaker 4 i'd call your lawyer then it's like you know and because in the sense is that if you that there's someone is watching you and they are going to make and even if they can't win the case they can get your case either to discovery they can just make you pay a bunch of money and lawyer fees.

Speaker 4 And for media, it's like, this is Trump suing Ann Selzer for a poll, an incorrect poll in an election he won, right?

Speaker 2 With that's the Iowa pollster who said that he was doing worse than he was actually doing.

Speaker 4 But still winning.

Speaker 2 But still winning. Yeah, that's exactly right.

Speaker 4 And like that could have bankrupted the newspaper there if that they eventually dropped that suit. And that affects everyone.
Like it affects like every company now has to make a decision.

Speaker 4 Like we have just been through this with media companies. Like, is it worth, you know,

Speaker 4 should you just settle and maybe pay a price for it over the course of your business or not? Like you have talked about this a lot. And, and it does, people, some people will stand up.

Speaker 4 Wilmore Hill stood up. You know, folks in the media have stood up, but not everyone stands up.
Right. And you, and you have to do that.

Speaker 4 And then now everyone in society is doing that cost-benefit analysis of, is this worth the potential blowback that I am going to get if I become targeted?

Speaker 2 And it's, by the way, it's not just about the people that are on the air. And we saw that ABC paid 15.

Speaker 2 CBS, we just saw paid 15 for a nothing just to get that merger through and by the way the FCC chairman getting back to our guardrails

Speaker 2 shit posts uh like Colbert and CBS like the FCC chair the guy who's responsible for this is just out there like yeah motherfucker how's how's my ass taste like it's like I missed that one that one I missed

Speaker 2 I'm obviously paraphrasing at some level but not by that much honestly but I will say this and I don't know if it occurs this way in the legal profession, but to the media profession, right?

Speaker 2 There's the effect of the people that are on the air now. But I can tell you this.
And by the way, it predates Trump, Ron DeSantis suing Disney.

Speaker 2 I've been in those meetings where with executives who have said to me, Look, man, we don't want to get on their radar. So

Speaker 2 there are a lot of things that will never be made, that you will never know about

Speaker 2 that were,

Speaker 2 you know, killed in the bed before they had a chance because of this chilling effect. So, the irony is, as Donald Trump famously said, I've brought back free speech.

Speaker 2 He's done

Speaker 2 the opposite. And I don't know if that's something that

Speaker 2 does your law firm now pre, are there pre-discussions about clients that won't get protection? Not even the clients that you have now or have had in the past or people there.

Speaker 2 Are there people who won't get hired?

Speaker 3 Yeah, look, I think there are people who, both in businesses and law firms, and

Speaker 3 I think it's okay to say this. You know,

Speaker 3 what Donald Trump does is he exposes people who have courage and fight in them and integrity and character from the people who don't.

Speaker 3 Sometimes over a lot of money, sometimes over a little bit of money, sometimes over about overemployment, sometimes about ambitions ambitions that they want to achieve within the government or outside the government.

Speaker 3 Yeah, no, it's a big problem. But the way to get to get after it with respect to these law firms who have these executive orders imposed on them, which are just complete legal garbage.

Speaker 3 I mean, of all the things we've been talking about, among the most garbage documents we've seen are the law firm documents.

Speaker 3 As you're a layperson and you immediately understood that to be true, is to win and win and win and win and win in the Supreme Court, which I think will send a signal that there are some things that are so egregious and so crazy and so nuts and so unlawful that even this Supreme Court will say the same.

Speaker 3 I don't know if that's going to be true about other things as well.

Speaker 3 And the lesson of all this is, or one of the lessons of all this is, if a president chooses to exercise all of his discretionary authority and power in a maximal way, and Congress doesn't give a shit.

Speaker 3 and also endorses a unitary executive theory in part that helps the executive and the judicial branch, co-equal branch of government also endorses this ever-empowering and enlarging executive.

Speaker 2 We're all in trouble. It's trouble.

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Speaker 2 Preet, do you think we're in this moment then in some respects?

Speaker 2 So he's getting the legal justifications that he needs, or he's getting the halo effect or the poison cloud from his actions that are deterring people from taking action.

Speaker 2 But are we in an unusual time because of the abdication? He has the House. He has the Senate.
And because he has such control over the base,

Speaker 2 is this really

Speaker 2 Are we moving into a new phase of the country? Or in your mind, are we in just sort of this weird eye that

Speaker 2 won't occur again, a hundred-year storm storm or something.

Speaker 3 That depends on whether Trumpism or whatever Trumpism is survives Donald Trump.

Speaker 3 The weird quandary is, just further what I was saying a second ago, there was this opinion by the Supreme Court on birthright citizenship, which wasn't actually about birthright citizenship.

Speaker 3 It was about this technical issue of nationwide injunctions.

Speaker 2 Yeah, yeah.

Speaker 3 And Amy Coney Barrett

Speaker 3 declared correctly a principle of law, right? Which is contrary to how we think about checks and balances and coechical branches of government, separation of powers.

Speaker 3 She She said the judiciary does not have a general oversight role of the executive.

Speaker 2 That's true.

Speaker 3 But the problem is, and then she said, you know, the solution to an imperial presidency is not an imperial judiciary. Well, that's all nice and wonderful

Speaker 3 on the Supreme Court.

Speaker 2 Right in the abstract. In the abstract.
But almost every power.

Speaker 3 But it's like, it's not our problem. Like,

Speaker 3 you elected that crazy guy. Right.
Not our problem. Call Congress.

Speaker 2 Well, it almost like she said, the solution to an imperial presidency is class action lawsuit. But I can give you relief for an individual, but I can't, you know, this guy

Speaker 2 I can let eat at the segregated counter, but I can't let everybody,

Speaker 2 I can't let everybody do it.

Speaker 2 Who, you know, Dan, you didn't have, you guys had a United Congress

Speaker 2 Obama's first two years. Yes? You had the House.

Speaker 2 Is the temptation there when you're in that position

Speaker 2 to do what Trump has done to some extent? Or was Democratic Congress not as compliant?

Speaker 4 They were so far from compliant. It was a very different Democratic Party.
I mean, you sort of think about what.

Speaker 2 No, that sounds about right.

Speaker 4 Right.

Speaker 4 I mean, part of that's the nature of Democrats. Part of it's just what the Democratic Party looked like in 2009.
Like, we had two senators from Montana. We had a senator from Alaska.

Speaker 4 Two senators from Arkansas, right? Who had very different constituencies. I mean, it was a Democratic.
Joe Manchin. You You had Joe Manchin.
I mean, Joe Manchin was

Speaker 4 one of our two senators from West Virginia at one point.

Speaker 4 He and Joe Manchin, actually, of the way we think about Joe Manchin today, there were like 15 Joe Manchins or people to the right of Joe Manchin on issues who were in the Democratic Party.

Speaker 4 And there was also the Senate and Congress itself viewed itself differently back then. It was a much more of an institutional actor.

Speaker 4 You know, it was the Democratic chairman of the finance committee who would not let Tom Daschell become the Secretary of Health and Human Services because of a tax problem.

Speaker 2 Yeah, that's right.

Speaker 2 How quaint is that?

Speaker 4 It's insane.

Speaker 2 Now, it was actually, frankly, he didn't pay withholding taxes to basically. The green card holder? How dare you, sir?

Speaker 4 You cannot be in government.

Speaker 4 Wow. And so it was just, you could not have gotten away with that.
Like, there was, you would face blowback from your own party for doing things like that.

Speaker 4 Like, the parties have changed, particularly the Republican Party is obviously much more

Speaker 4 ideologically coherent than it was back then.

Speaker 4 And certainly the Democratic Party was back then, but that was not, even if we had wanted to do any of the things Trump just talked about, our party would rebel,

Speaker 4 some large portion of our party would rebel in two seconds.

Speaker 2 So let's talk about that.

Speaker 2 Trump is in some ways a white hat, or I shouldn't say white hat, but a black hat hacker, where he goes in and he's exposing these strange holes in our democracy, one of which is emergency powers.

Speaker 2 You know, you go in, if you look through our 250 years, you can find an emergency power that allows you to do almost anything through the executive as long as you can withstand, I guess, the political pressure.

Speaker 2 He's using now tax exempt status. He's using funding polls.
He's using the legal system.

Speaker 2 Isn't there a reverse engineering that can be done? And aren't Republicans in any way concerned? that he is handing a blueprint?

Speaker 2 Look, do you think the federal government only spends on liberal issues?

Speaker 2 Is there no fear that a Democrat gets in there and goes, oh, no more block grants for Medicaid to red states that are going to buy volleyball stadiums in Mississippi? Like, I'm pulling that.

Speaker 2 Oh, tax exemption for that?

Speaker 2 Do we really think that Fox News or the Federalist Society or any of these other places don't get some benefit from the federal government or wouldn't face some peril from the federal government.

Speaker 2 Isn't he handing a pretty devastating playbook to the other side at some level? How are they going to fight that?

Speaker 4 I think he's met Democrats, so he's relatively confident that they're not going to do the same things.

Speaker 4 So

Speaker 4 try to think about the example.

Speaker 4 Imagine, so what would it, how would a, like, let's say the Democrat want to do follow that playbook?

Speaker 2 Sure.

Speaker 4 So, like, so on day one, Fox is kicked out of the White House press poll, like, not involved in it anymore. They invite Pod Save America in.

Speaker 4 Whoever else is now in there.

Speaker 2 Forget about that. How about they threaten their licenses?

Speaker 4 Right.

Speaker 2 Well, that's the next thing, right?

Speaker 4 They threaten the license.

Speaker 4 At some point,

Speaker 4 Fox is going to

Speaker 4 want to sell its TV business because of this probate case.

Speaker 4 How is a Democratic, would a Democratic FCC handle that?

Speaker 2 They would shit post them.

Speaker 3 Right.

Speaker 2 Right.

Speaker 4 Like, but I sometimes struggle to, like, I have, I have a very conflicted set of emotions here because on one hand, I think one of the reasons why Democrats are in this position is we have too often believed power is simply a means to a policy end.

Speaker 4 And Republicans believe power, particularly under Trump, is an end and of itself. Right.

Speaker 4 And then when you have it, you should look to nurture it, grow it, use it, because you believe passionately in your policy goals and you can only execute them if you have power.

Speaker 2 And the Democrats should be much more aggressive, by the way. I mean, it's not just power for power's sake.
They're executing enormous changes.

Speaker 4 But they view those decisions as helping them maintain power, too.

Speaker 2 Right.

Speaker 4 It's not there.

Speaker 2 I don't see how removing NIH funding from cancer research somehow helps them maintain power. Yeah,

Speaker 4 that's a fair point. But all the targeting of all these institutions, like weakening institutional opponents.
Yeah, yeah, yeah.

Speaker 4 You know, making the cow making the media bend a knee to Trump, right? All those things.

Speaker 4 But at the same time, like, if a Democrat comes in and does all those things, are we just on a downward spiral where we are just a, where we become Russia, right?

Speaker 4 Where it's just like, we're, we are a,

Speaker 4 like, we sort of live in an oligarchy. Like, there is a real danger in that.

Speaker 4 And so as a Democrat, how do you think, if you care about democracy and you care about the rule of law, how do you view your responsibility when you come in to

Speaker 4 You know, you don't want to like naively cling to norms as the, as you're headed towards the iceberg, Right. But like, what is the way in which you can more aggressively utilize power?

Speaker 4 One thing I think Democrats could do if they had power would be to take some of these norms that Trump has run over and turn them into laws. Right.
If we had to try to actually

Speaker 4 reinstate some of the guardrails that existed only through voluntary compliance and give them legal teeth.

Speaker 2 I'm not even sure that he complies with legal teeth. I don't think Trump complies with legal teeth.
Preet, do you think that would be an effective counter? I don't.

Speaker 3 It depends on what the thing is. And some things you can, some norms you can't legislate.
So, for example, some you can.

Speaker 3 And even those, by the way, that I was thinking of just a second ago, are at risk. So the norm was for almost two centuries in this country that a president would serve two terms, right?

Speaker 3 That's better for the country. It's better for democracy.
It's better for the rule of law and everything else. Washington set the precedent.
Then FDR comes along. He's like, fuck it.

Speaker 3 I'm running four times. And he runs four times.
And then you know what we did? We changed the law.

Speaker 3 And even that, like, you know, solid black and white print in the Constitution, you can't run again. He's got lawyers, forum shop lawyers making arguments like they are with birthright citizenship.

Speaker 3 You know, there's a loophole. He can serve a third term.
So, you know,

Speaker 3 the law is a blunt instrument. And

Speaker 3 if you have somebody who is completely amoral, power hungry, forum shopping, who has all executive power and a weak judiciary and a weak legislature, and is sometimes bending the knee press, it's hard for the law to curtail the worst instincts of that person, which I know sounds very pessimistic, but I think it's true.

Speaker 2 I think it sounds very realistic. I mean, I think that, and, and look, we're five, six months in, man.
Yeah.

Speaker 2 Like, he went from, I'm going to deport the worst to the worst to like, who's that valedictorian at that high school? Like, that, like, it's, it's all a reality. He wants to really.

Speaker 3 I'm a naturalized citizen, and I'm like, oh,

Speaker 3 you know,

Speaker 3 we're not that far away from,

Speaker 3 you know, 24 months in, and I don't think this is an overstatement, depending on how things go, where a naturalized citizen in this country has to be worried about saying something

Speaker 3 that they will say invokes an emergency power to denaturalize that person and go back to some other country.

Speaker 2 What are the things Democrats can do?

Speaker 2 Because the Republicans right now are basically solidifying structural advantages that are given by the Constitution that sort of empowers rural states in a way that's

Speaker 2 infuses them with more power than they might.

Speaker 2 Now, if he, you know, you get two senators in Wyoming, same as in New York, so it's population-wise, you know, there are already structural advantages to right now, the Republican Party.

Speaker 2 There's more red states than there are blue states. There may not be the people may be around the same, but

Speaker 2 aren't there things that Democrats could do? Let's say it's not punitive in terms of we're going to take away the tax exempt status from this university or we're going to do,

Speaker 2 and by the way, like all this shit about the liberal universities and they're just pumping out liberals.

Speaker 2 And you're like, everybody on the Supreme Court that's like a hardline conservative went to Yale or Harvard. Like, what the fuck are they even talking about?

Speaker 2 But aren't there things

Speaker 2 that are structural that Democrats can

Speaker 2 do in the same way that, look, in North Carolina, what do they do?

Speaker 2 As soon as the governor's a Democrat, they're like, oh,

Speaker 2 the governor doesn't have power anymore. That's too bad.

Speaker 3 Look, you have to have the votes. So I think the most important thing is to get one.

Speaker 2 Or you have to have an executive. Do you need the votes or do you need an executive?

Speaker 3 Well, that depends on what the answer. The new answer to the question is

Speaker 3 of the first lady

Speaker 3 in whose White House Dan served. And that is, when they go low, we go what?

Speaker 2 Dan? We We go what? Do we go low?

Speaker 2 Is there a new answer to that?

Speaker 4 Yeah, I just as a general life practice that served me well as I don't contradict Michelle Obama.

Speaker 3 But did she have the same? Would she have the same answer she did?

Speaker 2 No, I don't think.

Speaker 4 I'll let her speak for herself.

Speaker 2 But I think there are, if we had units, if Democrats had the House, the Senate, and the White House, like, what are some things you could do that would expand power and sort of help rebalance the scales or that would insulate, insulate them from the coercion and expansion of power on the other side undemocratically.

Speaker 2 Like I'm not even talking about like, well, let's just jam 30 liberals on the Supreme Court. I'm talking about ways to combat what we're seeing now.
Right.

Speaker 3 But there's a paradigm. The problem is,

Speaker 3 even if Democrats are not going to be as extreme in asserting executive power as Trump, They like executive power when they have the executive.

Speaker 3 And it would seem weirdly self-defeating to finally get the White House and now think charitably about the future against immediate self-interest and do things that are good for the country so that not only the next president, but that president who finally has power as a Democrat after Trump would curtail his own powers.

Speaker 3 I don't see how that's sort of possible in the laws of the political universe that we live in.

Speaker 2 Right. Dan, does that make sense?

Speaker 4 Yeah, I mean, like, it is like where Trump is the current end state of a sort of inexorable rise in executive power, right? That's been going with every previous president.

Speaker 4 Every president has had more than the last, in part because Congress has sort of abdicated all of their responsibilities for oversight.

Speaker 4 The entire idea of impeachment is now mathematically impossible, right? So

Speaker 4 if you do not care.

Speaker 2 Impeachment, by the way, like I think that's one of the things that Trump did. You know, that was always held out as kind of the nuclear weapon, if you will, of accountability for an executive.

Speaker 2 By Trump being impeached twice. What it showed itself to be is just another

Speaker 2 paper-thin political process that really had no, uh, that had no T. Oh, he was impeached twice.
It almost felt like he got a speeding ticket. Like

Speaker 2 it seems that impeachment is now even no longer a guardrail of accountability within the executive.

Speaker 4 Yeah, because even like I remember, I remember a conversation

Speaker 4 with the White House staff and President Obama during the middle of the debt ceiling crisis when we were about to

Speaker 4 the United States is going to be able to pay his bill. We'd default on our bills, be a huge crisis.

Speaker 4 And one of the options, as ridiculous as it sounds, is for the Treasury to mint a coin, declare it worth a trillion dollars. And

Speaker 2 I remember the op-ed by Krugman.

Speaker 4 Yes. And the...
You know, so it's all there.

Speaker 4 And one of the views is what would happen if you did it. And the idea is that the Republican Congress would impeach President Obama.

Speaker 4 And you'd say, well, the Senate is, they're not going to get half the Democratic senators to vote to convict him, but he would forever have that black mark.

Speaker 4 And the view is that would cripple his presidency going forward. Right.

Speaker 4 And,

Speaker 4 but clearly, that's not the case. In fact, Trump's numbers went up during the course of his impeachment proceeding the first time.

Speaker 2 Well, Bill Clinton, too. I mean,

Speaker 2 when they tried to impeach Bill Clinton, I think Clinton was the first one where you saw impeachment as, oh, this is a bit of a

Speaker 2 kind of a pomp and circumstance process that doesn't really have teeth and mean anything.

Speaker 3 It happened a second time, right?

Speaker 3 Donald Trump's political fortunes were on the wane, as I understand it, until one inflection point, his indictment by the Manhattan DA.

Speaker 3 That's when his fortunes started rising again. And so not only did he have two impeachments that he got through, four indictments,

Speaker 3 and one set of convictions on 34 counts.

Speaker 3 So

Speaker 2 we talked about it.

Speaker 2 In some ways, and not to bring it back to the measles, but it did immunize him. Yeah.

Speaker 2 To some extent, if you've been impeached twice and you've been convicted of felonies and you're still walking around, well, now you have a certain herd immunity with MAGA that allows you to act with impunity on almost, look, even this Epstein thing, he's out there.

Speaker 2 My ratings are up four or five points. This is awesome.
Yeah. Yeah.

Speaker 4 The math doesn't actually show that, but I mean, still.

Speaker 2 I'm not suggesting that that's true. I'm just suggesting that that's the way he goes.

Speaker 2 So, so

Speaker 2 would you guys advocate, at least, though,

Speaker 2 a close reading for the Democrats of what this type of executive manipulation could mean to at least protecting in some ways minority rights in this country or any of those other things that need

Speaker 2 that need protecting?

Speaker 3 Yeah, I think hardball

Speaker 3 should be

Speaker 3 in the playbook for Democrats in a way that it hasn't been before. Not to break the law, not to do egregious things, not to be cruel, not to

Speaker 3 take away people's rights.

Speaker 3 But we have seen at least a version of a blueprint of asserting very significant executive power to get your own agenda done. I mean,

Speaker 3 I wouldn't advocate and I would repudiate efforts to mimic his overreach in the many of the ways that he's done so.

Speaker 3 But there's a lot of distance between what Democrats seem to be doing now and have done in the past and what Trump is doing. And somewhere in between that, I think is

Speaker 3 an ethical but hardball approach to politics. But of course, I'm not the political expert, Dan is.

Speaker 4 But yeah, I 100% agree with that, right? Like we, like, there, Trump has set a model that we can follow about just an incredibly aggressive use of the.

Speaker 2 The levels of coercion, the levels of power that you can use.

Speaker 4 I think the question, like here, I think the test case for the Democratic president starting in 2029 is like, you can do all these things.

Speaker 2 Like, oh, I want to.

Speaker 2 Dance optimism. Did I write?

Speaker 4 Like, I mean, we got to live with some, we got to live with some hope here.

Speaker 3 You say 3029?

Speaker 2 Yeah.

Speaker 4 Some century.

Speaker 3 3029, I think. Right, right.

Speaker 4 Like, we should obviously be incredibly aggressive. If there is an agency that's not doing what it should be doing,

Speaker 4 we should try to reshape it in the way Trump has. We should use power to build back aggressively the things that Trump has taken apart, like USAID, right? Like just aggressively do that, push forward,

Speaker 4 be willing to lose in court if you can get a, if you can legitimately believe that there is a ground from which you should do it.

Speaker 4 Like the thing Trump really did, because he's lost a lot, is he got caught trying on a lot of things by his supporters, right?

Speaker 4 Even if he didn't succeed in him, it looked like he was trying to do things. And you'd much rather be seen doing stuff than not doing stuff.

Speaker 2 Yes, we can, I think, is their motto. Isn't that Trump's motto? Somebody's motto.

Speaker 2 It's definitely not CC Fue.

Speaker 3 Isn't there a reason that Ram Emmanuel is gaining some traction because he's a little bit of a bellicose Democrat?

Speaker 2 I don't know.

Speaker 2 I mean,

Speaker 2 I think it's probably very early for anybody to have a rush. I think where I put a little bit of faith, and it's probably misplaced, is that

Speaker 2 as these,

Speaker 2 as the actions that he's taken kind of accumulate in their audacity, I do think there's going to come a moment as we get closer to a possible change in power that some Republican institutions, law firms

Speaker 2 that you might know, that might go, hey, you know, they might do this shit to us. And maybe we need to

Speaker 2 be allied in some ways with those that have been, you know, maybe you have Claremont College or Liberty University going, you know what?

Speaker 2 I'm seeing how they're going to destroy Harvard. And we're close enough to a shift in power that I might want to throw my hat in allyship.

Speaker 4 That's the question for Democrats is Trump is.

Speaker 4 aggressively going after all the institutional opponents to conservatism, right? The media, universities, law firms.

Speaker 4 Would Democrats do that to the institutional opponents to progressives, right? Conservative media? Like, would a Democratic FCC chairman?

Speaker 2 I would think at this point, you have to. That has to be on the table because.

Speaker 4 But what about Liberty University, right? Like, no, that's what I'm saying.

Speaker 2 So wouldn't they stand up and go, oh, they're going to turn this shit on us?

Speaker 2 Why wouldn't they?

Speaker 3 Dan's earlier answer was, which was because they'd met Democrats.

Speaker 4 Well, I mean, the question, like,

Speaker 2 they don't believe it.

Speaker 4 They don't believe that. They don't believe we will do that.

Speaker 2 You don't think Democrats could elect a vindictive prick?

Speaker 4 I don't know. I mean,

Speaker 2 really?

Speaker 3 I already mentioned Rahm Emmanuel.

Speaker 3 That's why I mentioned him. And you poo-pooed it one minute ago.

Speaker 2 I wish that poo-pooing.

Speaker 3 I mentioned Rahm Emmanuel.

Speaker 2 He might have other vindictive dicks that he thinks could win. I would never poo-poo, for God's sake.

Speaker 3 The kind of worry is that the emulation of Trump is not going to be sort of the pragmatic and

Speaker 3 Nietzschean grab of power, but the trolling.

Speaker 3 I don't know what people think of Gavin Newsom. He's sort of trolling as opposed to, you know.

Speaker 2 But I'm saying you can learn

Speaker 2 he has left a roadmap

Speaker 2 for coercion. and levers of power that, you know, is not going to go away.

Speaker 3 Yeah.

Speaker 3 Republicans have not read read that portion of Article 2 of the Constitution

Speaker 3 that says what goes around comes around. Right.

Speaker 2 That was, I believe, that was Madison when they would make fun of his hype, but it's a different thing.

Speaker 2 Guys, I can't thank you enough.

Speaker 2 Very, very interesting conversation. Preet Barra,

Speaker 2 former U.S. Attorney SDNY podcast.
Stay tuned with Preet, Dan Feiver, co-host of Pod Save America and author about political strategy. Guys, thank you very much for joining us.

Speaker 3 Great to be here. Thanks so much.
Appreciate it. Thanks, John.

Speaker 2 Bye, guys.

Speaker 2 So

Speaker 2 I guess what it comes down to, the takeaway from the whole thing is the Democrats need a vindictive dick. I love the fact that Preet is like, I don't know, Rahm Emmanuel's kind of a vindictive dick.

Speaker 2 I think he could do it.

Speaker 2 He had that name real quick. Right? It was right, right, right at the top.

Speaker 8 Just off the top of my head.

Speaker 2 But it did still struck me. Like, we're running through all the ways that he is coercing every like liberal progressive or things that he deems liberal progressive.

Speaker 2 And then you're like, so Democrats could do this? Like, I don't know, man.

Speaker 2 That seems like, I don't know. Like, wouldn't people be mad?

Speaker 2 What?

Speaker 7 Or have you met a Democrat? I liked that line. Right.

Speaker 2 Yeah. Yeah.

Speaker 9 The Republicans are so unafraid of us turning any of the shit on them.

Speaker 7 But imagine if they do, the Republicans will be shocked beyond belief.

Speaker 2 Right. No.
It will be, how dare you at long last?

Speaker 2 Have you no decency? They will take to, I mean, there is no moral center. Remember, Mike Johnson just said, we all have to get to the

Speaker 2 root of this Epstein conspiracy. There has to be full transparency.
A day later, I'm very, I'm okay with the.

Speaker 2 Meanwhile, the DOJ is saying, oh, yeah, we're going to talk to Ghelane Maxwell.

Speaker 2 Who in their right mind doesn't think that they're just going to go to Ghelane Maxwell and go,

Speaker 2 here's what we need you to do to get a pardon. Or here's, you like steak, you like lobster, you want to eat it every night.
We can't pardon you right now because it would look too fucked up.

Speaker 2 But we need you to come out and go, they don't even know each other.

Speaker 9 Yeah. I mean, for Mike Johnson, morality and transparency is telling your son what porn you're watching.

Speaker 7 Starts there and ends there.

Speaker 2 Julian Spirit. Sounds like you could be the vindictive dick we're looking for.

Speaker 7 Yeah, they never said it couldn't be a she.

Speaker 2 and that is the democratic twist they'll never see it coming

Speaker 2 from a she

Speaker 2 a lady vindictive dick magnificent uh well it was it was i thought a very fun uh uh conversation brittany what are what are the kids what are the listeners thinking for us this week all righty um i'm sure they were yes

Speaker 2 they would start with john did they actually use my name in them john

Speaker 2 yes oh all right this one they did mr s

Speaker 2 senior stewart

Speaker 2 oh my god um why do you think trump isn't suing elon for tweeting that trump is in the epstein files i cannot for the life of me think why trump wouldn't sue elon for trump is in the epstein files trump is so clearly all over the epstein files that I mean he's trying to get back at him in other ways too like trying to get a different contractor for their golden dome no they went in and they were like we're going to get rid of all those spacex contracts and they went in they're like actually uh

Speaker 2 we can't there's there's nowhere else no one else launch a satellite that we can't use nasa because we cut their funding to the point where uh they are you know a non-functioning organization like we're gutting the very government that they that would give us options.

Speaker 9 That's a good point. Right.
And who led that charge in some respect?

Speaker 9 It's almost like the guy that drew all our money to you.

Speaker 2 You just blew my mind,

Speaker 2 young lady. Although Elon has not like,

Speaker 2 you know,

Speaker 2 he knows that those contracts are up. Like, they, I do think they have a little bit of a China-US, like, mutually assured destruction.
Like, I think they know enough about each other.

Speaker 10 Yeah, but he's been awfully quiet lately, don't you think?

Speaker 2 No question, I think.

Speaker 2 Yeah.

Speaker 2 But he's still, he's still got his

Speaker 2 lovely

Speaker 2 social media platform, which is mecha Hitlering all over people's timelines. So it's it's still a very positive, net positive for humanity.
Really exciting stuff. What else? What else they got?

Speaker 10 Not starting with John this time.

Speaker 2 Nice.

Speaker 10 Given the current state of politics, could a book like Profiles and Courage even be written today?

Speaker 2 First of all, it could absolutely be written. I think the problem with books is not if they can be written, is if anybody's going to read them.
And I have no idea what profiles. Yeah.

Speaker 2 I mean, and by the way, and to think that profiles encourage written by Jed, we have a tendency to lionize and with glossy haze, look back and John F.

Speaker 2 Kennedy wrote that book that was not cynical at all. His father had no designs on making the PT captain the president.
Like

Speaker 2 it's all a little bit of cynical craftsmanship.

Speaker 2 All those fucking, those books that people, uh, you know, that's that's one of the first steps to launching the campaign is the hagiography of all kinds of other.

Speaker 4 Uh, so yeah, it could definitely be written.

Speaker 2 Let anyone read it, and perhaps turned into a hot uh prestige series on Hulu. Yeah,

Speaker 2 all right. Uh, well, this is all this is all lovely.

Speaker 2 I, I, I, I got to tell you, this, this episode has lifted my spirits in ways that this has been an unpleasant week and uh yeah i really appreciated those silver linings as thin as they were yeah that they offered no it it was nice because you do realize with all the power that they have like we fight we curse we laugh but they still are just like yeah i think we're gonna

Speaker 2 We're gonna pressure them enough to take these people off the air and that person, or we're gonna pressure them enough that that person won't ever get a chance to get on air. Like that shit's real.

Speaker 2 And

Speaker 7 I mean, Preetz silver lining was like, at least they still feel like they need to have a justification.

Speaker 2 It's nice to read the memo sometimes.

Speaker 7 The one I've been telling myself is it doesn't come from a place of strength.

Speaker 2 Oh,

Speaker 2 I kind of like that, Lauren. By the way, that is true.

Speaker 4 Yeah.

Speaker 2 You know, every dictatorship, those. Those movements are not based on how powerful they think they are.
It's how fragile they are, you know.

Speaker 2 And ultimately, they are.

Speaker 2 Look, the thing about the United States and that whole rule of law thing is it has a stability to it that allows our economic progress and our political progress and our power in the world.

Speaker 2 And if you erode that stability, you really actually erode the secret sauce of why this country has done so well over all this time. And that's the irony of his entire operation.

Speaker 2 He's making us vulnerable, not great.

Speaker 2 But a fine, fine episode, as always.

Speaker 2 Lead producer Lauren Walker, producer Brittany Mamedovic, video editor and engineer Rob Vitola, audio editor and engineer Nicole Boyce, researcher and associate producer Jillian Spear, executive producers Chris McShane, Katie Gray.

Speaker 2 I can't thank you guys enough. You rocked it.
See you next week.

Speaker 2 The weekly show with Jon Stewart is a comedy central podcast. It's produced by Paramount Audio and Busboy Productions.

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