S1: This ad free podcast is part of your Slate plus membership.
S2: It is plainly untrue that the president has the same free speech rights as any private citizen.
S3: Our response to what Bruce Castor says should be no response. It doesn’t matter what he says. It matters what we do. Hi and welcome back to Amicus, Slate’s podcast about the courts, the law and the rule of law. I’m Dahlia Lithwick. I cover those things for Slate and we are taping this show. Is Donald Trump’s attorneys present their defense of the former president in his second impeachment trial in the United States Senate? And I confess, I spent the week glued to the trial, not merely for professional reasons, but kind of as an emotional capstone to the four years that have come before and the kinds of things we’ve thought about and talked about on this show. So it seems a foregone conclusion that there’s going to be a second acquittal.
S1: And this raises real questions, especially for a lot of folks who’ve written to me this week about why we’re doing this at all and whether it’s time to just move on. And if we can’t do it thoroughly, should we do it in a truncated way? And this week, we’re going to ask questions about those issues. First of messaging guru ANot Shenker Osorio and then of Bob Bauer. He’s former White House counsel to President Barack Obama. He also led the Biden campaign’s legal efforts this past fall. Now, later on in the show, Slate plus members will get to hear from Mark Joseph Stern on what’s happening at the Supreme Court. This week really did feel like the perfect legal encapsulation of all the Trump years, as we have talked about for such a long time on this show, there cannot be anything that even resembles rule of law if the hallmark attitude of the president and the people around him is that law is just for suckers. And yet it does appear that despite the best efforts of House impeachment managers to prove up their case against the president for inciting a violent insurrection at the Capitol on January 6th, there’s going to be no law. There’s going to be no constitutional accountability. Yet again, it feels like impeachment is for suckers. Now, a month ago, it felt like the national mood might have permitted something different, but not anymore. So on Tuesday, as the trial opened, the former president’s legal team signaled really how very little any of this mattered. When Trump’s first lawyer, Bruce Castor, delivered a rambling, ill focused opening statement that I think we could have just redubbed 17 random things, I think about senators, but it didn’t matter. On Wednesday, some Republican senators were doodling and sitting in the gallery with their feet propped up didn’t matter. On Thursday, more than 13 GOP senators were just absent from the chamber altogether as the managers argued their case. And several Republican jurors coordinated on Thursday night with the president’s defense team, which confirmed that while all of us are indeed multitasking and covid, nobody is working more jobs at once than the Republican senators currently serving as jurors, witnesses, victims and cocounsel in the impeachment effort. That means that it all feels a little futile and a little overdetermined. This process that is neither a legal effort nor a political effort, nor even exactly a constitutional effort. It feels like impeachment despite the framers intentions. And they thought very hard about this. Impeachment has become a big national communications problem, a messaging glitch. We’re going to tackle some of the intentions of the framers and their concerns and the legal arguments around this trial, but not a trial with Bob Bauer in a few minutes. But before we do that, this communication messaging piece, the last few shows, we’ve talked to folks who have urged us to think about legal problems through non-legal lenses. And I’ve gotten a lot out of that. And so we wanted to take another run at the same questions with a not Shenker Osorio. And that is a communications consultant, researcher and author who applies tools from cognitive science and linguistics in her work with progressive organizations and in addition to running her own firm, Asso Communication. She’s the author of Don’t Buy It The Trouble with Talking Nonsense About the Economy, and she’s host of Words to Win by a podcast about Progressive Wins and not has advised a whole lot of people about how to talk about the things we want to talk about. And I should note here that I also have been just really deeply influenced by the ways she taught me to think about questions around voting in the elections this past fall. So we wanted to ask her how to message this impeachment. And it’s a delight. I’m such a huge fan and not welcome to the podcast.
S4: Thank you. I could go on and on and gush about my own fandom of you, but I suppose we have business to attend to.
S1: Let us bracket the fandom for another day. Just set the table for us about how you have come to think about language and messaging and politics and all the ways in which not to put too fine a point on it. But progressives just really are generally stuck at some of this.
S4: Yeah, it’s hard to know where to begin. I guess I will rely upon a trusted canard that I trot out a lot, which is that if the left had written the story of David, it would have been a biography of Goliath. By which I mean, we like to talk a whole lot about our opposition. And frequently, if you look at progressive messaging, one hallmark of it across issues is that we like to begin with some permutation of, boy, have I got a problem for you? And it turns out, shockingly, that people got 99 problems and they don’t want ours. They are generally not shopping for new things to worry about. They have plenty on their plates, especially right now. And so when we present ourselves as boy, have I got a problem for you. And when we present ourselves ever and always in the, quote, resistance in opposition to what the other side is doing. We unwittingly actually cement their power or cement their ideas, cement this sense that doing anything about it is an exercise in futility. And while that may kind of engender a fight response among our hard core and dedicated activists, many of whom I’m sure listen to you among a broader base, by which I mean people who agree with us ideologically but are not politically motivated or not sort of active, may not even be voters. It invokes a freeze response because in a battle of fear against fear, the right will always win. We will never be more terrifying than them. And for most people, fear causes a shut down response. So, I mean, that’s a very broad strokes kind of look at what we know about language and how language works and the kinds of mistakes that we keep committing over and over again.
S1: And I guess this leads me to I don’t know. I know you are. So when I invited you, you are so careful to say I’m not a lawyer, I’m not a lawyer. And so I don’t want you to make declarations about law. But it has to be noted, I guess, for purposes of this conversation, that law is words and law is messaging. And this impeachment trial, if you strip away all the insanity around it is about using words to persuade and also about kind of interrogating Donald Trump’s words over the course of the last six months. And I wonder if there’s a way in which if you take away and I know you do think about this a lot, the notion that language is rooted in truth, rooted in fact, it’s really, really hard to do law this way. And one of the strange split screen phenomena of watching this impeachment process is that words seem to be totally unmoored from anything. Right. It’s just everybody’s talk. And we’ve had a lot of talking. And yet it feels as though using this as a search for what happened and why it matters is utterly useless. And so I guess I’m asking if we’ve disconnected law from language. Is everything you think about just fall apart?
S4: I don’t think that we’ve disconnected law from language, the law, and it’s not alone in this, this is true. For example, when I do projects on the economy and I’m dealing with a bunch of economists, anybody who has a particular training and a particular orientation and an expertise in their domain tends to think that whatever language they’re using is an attempt at accuracy. And it’s built inside unconsciously of a rational actor model where we think that we will just tell people the facts. We will just tell people the truth. We will just tell people what is going on. And then they will be able to reasonably come to the correct conclusion. But in point of fact, that is not how people reason then come to judgments. That is not how people understand things. And that is true of all people, because all of us are sense making machines. So let me just give you a super particular for instance, in an experiment that we did a number of years ago, brought people into a lab and we asked them to think about economic inequality and we presented them the facts. The way that economists do this quintile has this much, this quintile has that much, this quintile has that much, etc. And for half the sample, we said the gap between rich and poor is growing, which is the dominant metaphor to talk about inequality, we talk about an achievement gap in education. We talk about a health disparity in that realm. We talk about a wage gap, a gender wage gap, a racial income gap, etc. Gap is like we like in this abstraction, which is a financial difference to a physical difference, a chasm. It’s like the Grand Canyon wealth is over here and poor people are over there. And for the other half the sample, we said the economy is increasingly off balance. Then we asked everybody, is inequality a problem for the economy overall? And our gap people, 80 percent of them said, no, it’s not a problem for the whole economy, 20 percent said yes. The exact reverse proportion was true of our off balance people, 80 percent said it’s a problem for the whole economy, 20 percent said it wasn’t. So why is this in reality? Inequality is neither a gap nor an imbalance, and it’s also both because any time we need to refer to abstraction, we default automatically and unconsciously to conceptual metaphor. That’s just how we talk, right. Your your point flew right by me. I’ll have to chew that over. I couldn’t swallow your argument because we have a conceptual metaphor that likens ideas to objects. So this is neither true nor not true. Right. This is a way that we make sense of the world. And the law, like any domain, requires language, which means that by definition it requires conceptual metaphor in order to know what is justice, is justice like scales? That’s a metaphor, right? So what’s happening is that people are continuously attached to this rational actor model and stubbornly clinging to this idea that we just need to be right, which we are, and then we just need to tell people just need to tell people the truth. But what we see is that facts bounce off of frames. A better descriptor of the human cognitive processing system would be I’ll see it when I believe it, not the other way around. This is why people routinely tell us I don’t see racism. I don’t see sexism because the instances that occur before their very eyes aren’t categorized as such. And so they come up with rationalizations to discount them. So what happens in this trial is that people have a pre formulated idea or judgment or argument, and then whatever facts are presented to them, they find a way.
S1: To send those facts outside of that frame, and we’re very good at that as humans, the thing I’ve been really struggling with with impeachment is the absolute factual reality that these Senate Republicans were in the room. Right. Some of them were calling their family. They were texting. I always believed at some point rational self-interest ends when you are viscerally afraid for your life. And so you’re trying to just get proximate to that right to that frame where you were here, you saw it. You don’t need witnesses because you witness this and you get things like impeachment manager Stacey Plaskett saying things like this really happened. This happened. You were here. Right? And you get this amazing call and response. So many impeachment managers trying to make this physically proximate. You were sitting right there. You were in this seat, right? This physically occurred in this room. And that’s supposed to reattach fact to the experience of the folks who were in the room who are now making that experience go away. And what you’re saying is they’ve simply constructed a frame whereby that bounces off, whereby even if Stacey Plaskett says this happened, you were here. It’s immaterial. That’s what you’re saying.
S4: I don’t know that it’s immaterial. I think what we see and, you know, we’re doing at this point nearly nightly public opinion research. And basically, if we look at the place in the narrative where the hole is for voters speaking in broad strokes and obviously where the hole is for Trump, 20, 20 voters and Biden 20, 20 voters is different. The floor is not. This happened. This was violent. You could have been killed. The floor, the hole, the missing piece narratively is why did this occur? What caused this to happen and when we look at deeply conservative people, people who are sort of at their core ideologically conservative, there are certain psychological underpinnings to their thought structure that we have to contend with. One is many of them are adherents to what John just calls a just world theory. In short, just world theory says good things happen to good people and bad things happen to bad people. And there needs to be some sort of explanation, some sort of underlying vindication and rightness in order. So if, for example, people are struggling to make ends meet economically, it needs to be the case that they have somehow done something wrong, because otherwise we would have to believe that we live in a society. We’d have to believe in reality. We’d have to believe that we live in a society in which people are systematically barred from well-being based upon their color, based upon their accent, based upon their gender, which is in fact true. But if you believe unconsciously in a just world theory, that can’t be the case because that would not be a just world. And your material wealth, your material well-being would be nothing more than what it is, which is a product of winning the womb lottery. And it wouldn’t be about you and your goodness. So you have these Republican senators and I hope it’s clear I have zero, like, negative excuses for them. I’m also horrified and angry and all of the things it’s it’s it’s difficult actually, as a word person to formulate the words for just how disgusting this is. But if your Ted Cruz or if you’re Mike Lee or if your Josh Hawley and your being asked to believe not that the violence occurred, you know, the violence occurred, you’re being asked to believe that the proximate cause of the violence was spreading lies about the election, then you would have to believe that you were part of causing the violence against yourself unindicted co-conspirators. Right. And that’s just simply impossible for you to believe either. Cynically out of self-preservation, even if you do believe that somewhere in the core of your being, you can’t admit that because to admit Donald Trump’s guilt is to admit your own because you did the same thing. So maybe that’s what’s going on and it’s all a ruse or maybe perhaps even more pathologically what’s going on. And and sidebar, we see this with with adherence to Kuhnen, this sort of very strong attachment to adjust world theory. Maybe what’s going on is at a deeper level, they are incapable of internalizing the notion that anything that they said actually had anything to do with, you know, the guy shirtless in the face paint and the guy with the Confederate flag and the rest of it, because they would have to imagine that at some level they have they’re fundamentally part of creating, causing, fomenting evil. And they refuse to believe that about themselves.
S1: I was thinking today about your lodestars of how you tell a good story, how you message something and you need good guys and bad guys. You need a clean narrative. You need shared values. All the stuff that I think having watched the first and this impeachment that the managers did really well, like much better this time. And there’s no dangling tentacles of who’s Songman again. And no, it’s not seven minutes binmen and it’s Sondheim. No, it’s not. It’s on like. Right. It was so confusing that even I who would have to go on TV and talk about it, couldn’t explain the conspiracy, couldn’t explain quid pro quo. This is tight. This is clean. Right. There’s good guys. There’s bad guys. There’s values. What, if anything, would you do different if you were wrangling the impeachment managers and the story they’ve tried to tell this week?
S4: I agree with you. They have absolutely done an incredible job. I mean, in the face of PTSD, let’s just be fair and honest. So, you know, the fact of doing a, like, halfway decent job in the midst of that is astounding. And they’ve done an excellent job. They have led with shared values. They have made this about who we are as a country. They have made this about what we expect, rightly so, of our elected leaders, no matter what we look like or who we vote for, we believe our elected leaders have a duty to uphold our democracy and govern in our interests. That’s kind of one of the higher order values that we’ve pushed and pushed and pushed the place where I would argue they. And I’m I’m I’m saying this haltingly because it’s not a fair thing to demand of them, so I’m about to say a not fair thing. And here I go. Yeah, right now, the biggest problem that we have when we look at the way the public is perceiving this trial is that what they want is pandemic relief, what they want to talk about, what they want to focus on, what they want to hear their leaders doing is delivering relief. That is number one, number two and number three in their minds. And so anything that feels to them like a distraction or a delay or a complication around delivering pandemic relief. They don’t like and so the thing that they could have done, not necessarily during the course of the trial where you have to present evidence and talk about what actually occurred, is making a closer attachment between the failures of these people to deliver US aid and to prevent this pandemic and the failures of these people to respect our rights. So what would that sound like? It would sound like no matter what we look like, where we live or who we vote for, Americans believe our leaders should act in our interests from ensuring we can provide for our families to holding those who would do us harm to account. But today, the same Republicans who left millions of us grieving our loved ones and struggling to make ends meet are letting a president who incited a deadly attack on our country get away with it. So it’s making the attachment back. They failed you on covid. I don’t know. Today’s no apologies. I haven’t looked it up, but plus four hundred thousand Americans, they turned a horrible virus into a devastating pandemic and they tried to distract us from their failures by sowing doubts and casting aspersions on the votes of black people, young people, new Americans, because they hoped we would look the other way. While they denied us the basic sustenance so that they could hand tax breaks so that they could hand kickbacks to their corporate cronies, they fed this big lie because they knew that we would not vote for them. And in this country, we believe that Americans, that voters, we pick our leaders, our leaders do not pick which voters to heed, in which to silence. So the need to attach back as much of a like. But that’s a totally different issue. But that’s like a side thing letting go of the pandemic, which, by the way, they didn’t do. Right. They are fast tracking. They are pushing, pushing, pushing the pandemic. But rhetorically, just rhetorically letting go of the connection between they failed you, they screwed you, they left your family for dead. They wouldn’t give you relief. They’re blocking it. Now, these same people do not govern in your interest. And here is the litany of ways that is true.
S1: I love that or not because it answers a little bit this problem, this messaging problem that I think Jamie Raskin tried to rescue at the end of of his closing on Thursday, because I think there is this sense that this is backward looking. This is vengeful. Here’s Nikki Haley now saying like, oh, we all make mistakes. Poor little Trump. You know, it’s a going against one’s heart goes out to him. He was so flawed. And all the ways in which if you cast this as a backward looking, vengeful enterprise, it doesn’t feel salient to people who are trying to look forward and figure out if they can keep their jobs and they can not die in a pandemic. And I felt that Raschein made that turn at the end on Thursday, where he tried really hard to say. And I think we heard it from Joe Nagase as well. But this idea that if we allow this to go unchecked, it will happen again. And that was very, very explicitly, I think, brought out that this isn’t just about punishing Donald Trump. This is about an encroachment of an idea about power and about the connection between violence and power that we have to arrest because it’s coming in the future. And I think that’s at least a version of it’s not necessarily covid connected, but it’s a version of we’re not doing this because we want to punish Donald Trump. We want we are doing this to stop in its tracks an authoritarian, illiberal move towards violence and politics, and that if we don’t stop it, the next one’s going to be worse. That felt like it was coming through, at least to me on Thursday, the way that I would tweak that.
S4: And this sort of gets to the essence of the first thing I said about saying what you’re for rather than what you’re against, is that that argument is about amelioration of harm. And stronger arguments are about creation of good. And so in lieu of saying if we do not do this, it will happen again, which is a classic fear and threat based message. I mean, I can’t imagine a more textbook. I mean, that that is a threat based message is to say when we stand up, when we uphold our oath of office, when every single senator in this chamber does right by the American people, we can make this a government of, by and for the people where we govern in people’s interests. And we ensure that every decision that we make is for the people we elected us, whether that’s holding those who would do us harm to account so that it never happens again or it’s quickly delivering the economic relief, vaccines, school and small business support. They have been desperately needed. And so it’s basically that. But the inverse it’s not about making you afraid that this will happen again, because when people are made afraid, their amygdala starts firing and their prefrontal cortex literally is starved of blood. You can’t have both things going. And so if you’re asking people to sort of be in their rational brain as observers of this, then you need to present this as the possibility of creating something good, of having a government that acts with and for the American people and genuinely reflects the very best of every kind of American as opposed to ending something horrifying.
S1: I wanted to ask you about one central metaphor that I thought was interesting and creative, and that is impeachment manager Raskin, who says this isn’t like shouting fire. In a crowded theater, right, the classic speech formulation of what is incitement, this case is much worse than someone who falsely shout fire in a crowded theater.
S5: It’s more like a case where the town fire chief who’s paid to put out fires, sends a mob not to yell fire in a crowded theater, but to actually set the theatre on fire. And who then when the fire alarms go off in the calls, start flooding into the fire department, asking for help, does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV with glee and delight. So then we say this fire chief should never be allowed to hold this public job again, and you’re fired and you’re permanently disqualified. And he objects and he says. We’re violating his free speech rights just because he’s pro mob or pro fire or whatever it might be. Come on. I mean, you you really don’t need to go to law school to figure out what’s wrong with that argument.
S1: I guess I’m curious because you study language and metaphor. If this idea of taking this metaphor that has always been or classically been the metaphor of what would incitement would look like and then reframing it as no, that’s actually not what Trump did. What he did is so much worse. He encouraged people to go set the theater on fire and then he refused to put it out. Is that in your wheelhouse of of of how we think about metaphor, a useful move?
S4: Yeah, I mean, this is going to seem like a distinction without a difference. It’s not a metaphor. It’s an analogy because it’s occurring at the conscious level. It’s constructed. It’s not meant to sort of fly by you. I think what’s interesting about this case is that you have sort of a Russian nesting doll of this question yelling fire in a crowded theater. Basically, that classic formulation is about telling people a lie to scare them. That’s what it means to to lie that there’s a fire and then everybody goes rushing out in order to save themselves. The way that Donald Trump and Ted Cruz and Josh Holly and the rest of the hundred and forty six members of Congress who voted against certification, the way that they incited violence wasn’t just any old way. It wasn’t just you should go attack the Capitol because we’re right and they’re wrong and we should be in power forever. It was a very particular lie. It was a lie about the votes of black people, of young people, of indigenous people, of new Americans. It was race baiting in the coded speech of a dog whistle. Right. It was votes in Philadelphia. It was voters in Detroit. All of that is code for black people. Everybody knows that just because you don’t say it. So I think that the analogy of, you know, the fire chief lighting the thing on fire, I think probably the most apt analogy is the fire chief handing out tiki torches and telling people, go torch the building and not doing anything to call it off. I think the yelling fire in a crowded theater gets confusing because that’s not really about trying to destroy the theater. It’s forcing a stampede, not a sort of deliberate attack. And it’s important to keep this in the they attacked our country. That is one of the three lines that we’ve seen over and over in the research, that one six twenty one was an attack on our country, was an attack on our country, incited it was an attack on our country, fueled by the lies of a handful of politicians determined to hold on to power they do not deserve. I think it’s a powerful and apt analogy. I think the connection back to what it is not is never helpful.
S1: Right. So this is useful. And it makes me remember that the classic Oliver Wendell Holmes formulation from 1919, the case of Schenck versus United States, where Holmes writing for the court says the most stringent protection of free speech wouldn’t protect a man in falsely shouting fire in a theater and causing a panic. And we always forget when we think about that metaphor that Holmes was really clear that it’s falsely shouting fire in the crowded theater. That would be problematic. You would hope that if there is in fact a real fire in a crowded theater, you would want people to shout. So what you’re saying is there was already a lie baked into even the classical formulation of what the court in Chank wasn’t protecting. You’re going one further and saying this is a lie about the lie, which is classic anot formulation. So I want to talk just for a second about the videos, because there’s a very deliberate decision to do this trial by film. And I’m sure you saw some of them. And you’re probably as sick watching them as I am from seeing the new footage. But it’s interesting to me that at least initially, one of the objections has been to the extent. There were messages from Trump’s lawyers that there’s something wrong with the movies, with doing this by film. I wonder what trial by film signals to you. Is this a smart messaging tactic or is it just too easy to say? Oh, right. We’re trying the TV president by movie. Perfect scene.
S4: Yeah. Visuals and moving images are just intensely more powerful than words. And I say this as the words lady, regardless of what people’s conscious and reasoned argument is about the images, the moving images that they’re seeing. Oh, that it was manipulated. That was this was that that’s inconsequential because this is a battle of hearts, not minds. And even if you’re a diehard Trump supporter or you’re on the fence and you’re what we are calling now in our research are conflicted Trump voter who’s sort of having second thoughts or who doesn’t believe or has detached from the big lie about the election. The impact emotionally of seeing these images in this sequence is so incredibly powerful that even if you construct on top of that a conscious well, it’s because they edited the footage that way. That’s not how it’s affecting you. And in fact, their condemnation of the trial by TV or the trial by footage is proof positive that they know how powerful it is, that they know how effective it is. Otherwise they wouldn’t be yelling and screaming about it because they would consider it sort of null and void. I think that it’s very, very hard, you know, if you’re not a person who has ever been held up at gunpoint and sadly, I am a person who like if you have never had the experience of thinking. Owe to debt, this is it. This is. This is my last day. And wondering how the how the information will be conveyed to your parents or to your partner or to your children if you’ve never actually internalized that experience, it’s it’s impossible to imagine what that feels like inside of your body. And so the best that we can try to do is to construct that feeling for people so they understand the emotional stakes here and why this is so vital and why this is so serious and why it is so incredibly important that every one of our elected leaders actually stand up and do their duty, demonstrate the courage of their convictions and stand with and for us because they’re supposed to represent us. So, no, I think it’s an incredibly powerful tool and I think they know that it is. And that’s why they’re making up these bullshit stories about it.
S1: It leads me to the only other impeachment question I wanted to ask and that which is as a message person and a words person, what does one do with Bruce Castor? I mean, what does one do with I don’t even know what all that was. I, I really do think Lionel Hutz would have knocked this out of the park like this was just shockingly bad lawyering and maybe he’ll recover. But what do you do when the message from the other side seems to be, I don’t even need to bother to construct a message that I’m not even going to there feels like there has to be some component of own the libs here that the pure joy of not even mounting a comprehensible defense is its own screw you signal. And maybe I’m overreading it. But what does one do when the choice is made to not even present a coherent counternarrative?
S4: I will say the thing that I have been saying since the twenty sixteen election talking about Trump is how we got Trump. That applies to Bruce Castor. The left has become throughout this entire period like cats with the laser pointer, basically saying, can you believe he just said this? Can’t believe he just said that. Now he said this now, COFI now I don’t even remember anymore. Right. Because like the last four months have been four hundred and seventy five years. But all the completely incoherent, nutty, you know, everywhere, from incoherent to slanderous to horrifying to terrible and our instinctive response. Because we are either horrified and disgusted by the racism, by the misogyny, or were horrified by what you just said, like they’re not even pretending, right? They’re not even going to turn in the homework and they still are like, you’re still going to give me an I look, I’m not even going to bother to do the assignment, but. When our reaction to that is to lift that back up. Is to say, can you believe that Bruce Castor was basically like uttering nouns and verbs in some sort of semblance of a non coherent order? What we’re doing is we are robbing ourselves of air time. To say what we’re for, to say what we believe, to say what we want. Our response to what Bruce Castor says should be no response. It doesn’t matter what he says, it matters what we do. And what we do is understand that either we have lawmakers who will do their duty, stand by their oath to the Constitution to protect our rights. Govern in our interest, from pandemic relief to economic support to holding those who would incite a deadly attack on our nation to account or will administer justice ourselves, as we just did in this election, and that justice will be administered at the ballot box, because at the end of the day, it doesn’t matter what they say, it matters what we do. And because and I’m devastated to go here. But let’s just be honest for a moment. We’re not going to have a conviction. They’re going to fail to convict. I don’t think I’m, you know, not shocking anybody. I would love to be wrong. So what are we going to do with that point? What are we going to do at the point where some amount of our voters who thought, yes, of course, he’s guilty, but don’t do this, it’s a waste of time. It’s looking backwards when we need to move forwards, it’s a lost cause. Why are you plunging yourselves into a lost cause? And why are you further cementing short of division and anger when we need to pass these giant Recovery Act bills? Focus there, do what you need to do because we need money. And the thing to say about that is throughout this incredibly horrible last 12 months. Americans have proven that we pull through by pulling together, we delivered masks and we delivered meals, we marched to demand justice for all and we voted in record numbers despite every barrier put in our way. They can knock us down, but they will never knock us out. And regardless of what a handful of Republicans do in this trial to demonstrate that they are perfectly willing to incite violence, perfectly willing to spread lies about the votes of our fellow Americans to try to hold on to power they do not deserve. It’s time for us to issue justice because it’s always been on us. And we have proven time and time again that no matter what they do to us, no matter what barrier they put in our way, we will scale it, we will overcome it, and we will make this a place where we have a government that acts in our interest, delivers on our needs, and makes justice and liberty for all. No exceptions. And I think that that’s what Democrats are going to have to prep to be saying to people, because otherwise, you know, it becomes despondency, it becomes despair, it becomes why did you engage in this exercise in futility, which I hope it’s clear. I don’t think of it in that way. I think it’s absolutely vital and necessary. I’m just talking about messaging to the average voter.
S1: And that’s your answer to the question I know you spent again, I heard you say over and over again, stop centering Trump. Stop saying Khu, stop saying Hoak. Stop saying stolen election. Don’t center his message. That’s going to be going forward. Your guidance, which is stop talking about Marjorie Taylor Green, you idiots, because you are just yet again being sort of powerless and reactive. And instead of saying what you’re for, pushing her crazy to the top of the heap. Right. That’s what you’re going to say.
S4: So it is pretty depressing to watch us only have metaphorically beheaded Trump, only to recast him in a younger female version.
S1: Nuttier version, like vastly nuttier, I think.
S4: I don’t know. Jury’s out. It’s hard to say. It’s hard to say. I guess it depends which things you’re comparing. We need to condemn this person. We need to condemn Josh Holly. We need to condemn Ted Cruz. The issue is the way that Democrats and the way that the left more broadly is sort of making her a superstar. First of all, it’s literally minting her a fortune. She is making money off of this. That is a fact. And what concerns me is the Todd Akin effect. And for those of you who do not remember Todd Akin, famous Missouri representative, who, you know, like to play amateur OBGYN, they all like to have their side hustle and informed us with his nonmedical degree that if a woman is, quote, if it’s legitimate rape, quote unquote, that she won’t get pregnant because the body has a way of shutting these things down. Thank you, Doctor Akin. And what happened with that is that he was soundly condemned. However, it had the effect of making the rest of his party who believe that people should be forced to stay pregnant and to give birth regardless of the circumstances of getting pregnant, including rape, incest, including whatever is happening with the fetus and whatever endangerment that poses to the pregnant person, they suddenly look like Alan Alda. They’re suddenly a bastion of like right thinking and empathy because they actually credit the notion that a person could not want to have sex with someone and become pregnant. And what happens with Margaretville Arena and we see this already in our polling is that I mean, I hope that Ted Cruz and Josh Hawley are feeding her checks because she is doing them a massive favor. Right. She is shifting what is considered to be beyond the pale, what is considered to be too nutty, what is considered to be too extreme, where suddenly they are now looking like Mitt Romney. And that’s the danger, the danger in focusing on her extremity and her nuttiness is actually letting the other folks off the hook. So there are ways to condemn these people. We need to condemn them as a category. For feeding and spreading lies, for attempting to suppress the will of the people, for attempting to subvert our democracy and for issuing death threats, you know, if you issue death threats against your co-workers, you get fired.
S1: The end that’s got nothing. And that chancre, Sario is a communications consultant, a researcher, an author, a speaker. She applies tools from cognitive science and linguistics in her work with progressive organizations. She runs her own firm, Asso Communications. She’s the author of Don’t Buy It The Trouble with Talking Nonsense about the Economy, upon which her phone has been stacked on a pile of them. She’s also host of Words to Win by a podcast about progressive wins. And I really I think what I want to say or not is that as somebody who if I had a bumper sticker on my butt, it would say in the last four years, words, words matter, words matter, and trying to fix that to theories of the rule of law. But boy, you live it and you put real meat on the bones of that idea. And I’m so incredibly grateful for your work. So thank you for joining us. This was a big frame shift that I needed. Thank you.
S4: Thank you for having me and thank you for all of the work that you do. Making sense of things that make no sense.
S1: Our next guest, Bob Bauer, I think of him sort of as a Where’s Waldo of the past few months, and I would talk to him about any component of that. He and Jack Goldsmith, who we had on the show a few weeks ago, co-authored After Trump Reconstructing the Presidency. It was published this summer. I think it is the roadmap to thinking our way through some of the issues we talk about on this show. Bob served as White House counsel to President Obama. He’s a professor of practice and distinguished scholar in residence at NYU School of Law and the co-director of the university’s Legislative and Regulatory Process Clinic in 2020. He also served as a senior adviser to the Biden campaign, and he’s going to co-chair Biden’s commission to study reforming the Supreme Court. And in all his ample free time, he’s here with us today. So, Bob, thank you so much for coming back to the show. It’s a pleasure. Thank you. And I wanted to, I think, start with this existential struggle that I think a lot of progressives are having this week around impeachment, which is there’s just an overwhelming sense that nothing about this is serious. The fix is in. You could get up and you could dance and the Republican senators wouldn’t care. The votes are not there. Donald Trump’s defense team seems to be, I don’t know, free styling, interpretive dancing. And yet there’s a deep sense, Bob, that if we succumb to that, we’re just colluding with it. We’re just allowing it to not matter. And one of the reasons I wanted to talk to you is to help us think through this line between empty political theater and a deadly serious constitutional enterprise that should be taken seriously. And so I guess my framing question for you, I know you’ve been writing about this is where do we put the nihilism that undergirds some of this and where do we put particularly, I think a lot of folks who feel there’s a real urgency to deal with covid and to deal with the economy and other Biden priorities. So is this a colossal waste of time because the fix is in or does it matter in some sense that we treat it very seriously?
S2: It does matter that we treat it seriously, and it does matter that the Senate still found time with all the public health and other problems facing the country, the public health emergency and the economic stresses associated with it, that the Senate found time for an impeachment trial. Clearly, in some respects, it falls well short of what many would have liked to see. And that is a trial with witnesses and more extensive fact finding. The House managers, I thought, did extremely well with what they had to work with, which is the public record and the ample video documentation of what happened on January six. And I thought it was very important that the Senate take this up and if, in fact, it turns out, as many believe it will in an acquittal for one of 17 Republican votes, well, then it ends up that way. But there will have been at least established a record of what happened here. Does it go as far as I would like to see it go? No. Where their practical constraints on the Senate’s ability to do everything I would have liked to see the Senate do. Yes. And I don’t think the outcome in the end, while it’s not unimportant, is as unambiguous as it should be in sending a clear message about the kind of presidency Donald Trump established, culminating in the events of January six.
S1: We talked to Dan Goldman a few weeks ago and on this show, and he it was almost a little depressing, Bob, because he said at the end of the day, this isn’t a legal proceeding. These jurors are compromised. These jurors, some of them are co-conspirators. They’re certainly at this point colluding with defense counsel. And yet nobody’s ever going to rule. Nobody is going to say, OK, the Senate took a vote. This is constitutional. That issue is off the table. Move on. And so then you get the sense that there’s no finality, there’s no law of the case. There’s just people’s feelings about things. And I wonder if I guess it’s a two part question. Pat Leahy doesn’t have the authority to issue rulings on any of this. He can’t punish Republican senators who are not in the chamber. Right. There’s no authority here.
S2: No. I mean, there’s nothing to prevent a senator from leaving the floor or to sit there openly doodling on a pad or doing a crossword puzzle to exhibit contempt or boredom with the proceeding. There’s really nothing that can be done about that. I suppose Senator Leahy could order the chamber back into, you know, some sort of discipline if there was shouting taking place or fisticuffs broke out. But short of that, no.
S1: And the same answer on this question of constitutionality, right, and if one thinks about this as a legal issue, the Senate has now voted. It is constitutional, as it has done before, by the way, to try a former officer. It’s not going to in any way affect the fact that Republicans will largely vote, that this proceeding was unconstitutional and therefore nullify, in some sense, their prior ruling. There’s nothing to be done about that either.
S2: You no to call it. And I’m not sure in what sense Dan Goldman managed to call it a legal proceeding is correct in one sense, but a little misleading and another I mean, it’s a constitutional process. There are law type procedures and law type arguments that are made council appear on behalf of the president and the House managers, I think, have been selected among the ranks of lawyers in the House, which I think there are a lot of lawyers in the House, just as there are a lot of lawyers in the Senate. But it is a constitutional process that necessarily involves the exercise of institutional and political judgments. They’re just not cabined by particular legal doctrines or dictated by particular paths of legal reasoning. And so I think there’s going to be necessarily some muddiness, if you will, some ambiguity. Does it matter? I think it still matters that the Senate voted the way it did. Does it confuse the outcome that individual Republican members will stand up and say, notwithstanding the chamber vote, I am going to vote to acquit on the specific grounds that I don’t think this proceeding is constitutional? Yes, that’s going to muddy the outcome on that issue, just as it did in the 19th century in the Belnap trial. May be the only reassuring way to look at this is that. Impeachment’s do have an impact, they do have an impact, and the two trials of Donald Trump over the course of a single four year term will help define that presidency in a way that I will. I do think it will be significant. But again, I probably count myself among those who don’t who wish it had gone farther than that for sure.
S1: And can you just briefly, I can’t tell how important it is. And we’ve certainly avoided on this show going deep in the weeds of talking about Chank and talking about Brandenberg and talking about legal standards of incitement, because it’s beside the point for impeachment purposes, it appears, and we’re taping this on Friday afternoon, that the gravamen of the defense is this is all protected free speech. Is it worth probing these deep questions about whether this was face to face incitement and whether there was imminent? Is that a useful inquiry for your sense of what this impeachment is trying to do?
S2: It’s useful. Of course, any violation of law is relevant to a decision that the House makes on impeachment and the Senate makes on conviction. The problem, of course, that it tends, and particularly in a society so used to debating these questions, legally, debating these questions in legal frames, it then tends to put into the background the larger constitutional question. And the larger constitutional question is what sort of speech has a president who has taken an oath? What kind of speech is permitted to that president? And that is consistent with the execution of that oath and the performance of his or her constitutional responsibilities. It is plainly untrue that the president has the same free speech rights as any private citizen. The president has those speech rights when he or she becomes a private citizen. But as president, clearly, it is not correct that, for example, the president can defend on free speech grounds against giving a speech from the Oval Office in which say he declares that he is a white supremacist and that he plans to govern as a white supremacist and that he will do what he can to shape policies or shape policies so that they reflect his belief in the superiority of the white race. That is an impeachable and convicted offense. Clearly, even if that is an opinion that president holds know as a matter of genuine conviction. So the problem, of course, with the legal line of argument is that it tends to move away from the constitutional context and we should be evaluating what a president can or cannot say, and I think in that sense can confuse the issue.
S1: So, Bob, this brings me to the reason I really wanted to talk to you this week, which is you’ve been writing and thinking about this demagogic presidency and the ways in which the enduring harm of what Trump did was conflate really strange notions of limitless free speech with the persona of president, with the performance of the presidency, and that that almost more than any one thing he’s done and I know this is building on Susan Hennessy’s work and been witnesses, the things that they’re thinking about. But can you just lay out for me the argument about why this conversation you and I are having right now about the president and his speech is really a marker for you of what’s dangerous about what we just saw and why we need to talk about it?
S6: Yes, no, of course I’m happy to. The founders were extremely concerned about demagogues. And as you know, there was reference to demagogues in the first of the Federalist Papers and also a reference in the last of the Federalist Papers and their understanding of the demagogue, which has been, I think, very beautifully captured in a book by Eric Posner called The Demagogues Playbook, is that a demagogue was a threat to Republican government and to liberty because a demagogue utilizes the tools of emotional manipulation and falsehood and lack of respect for institutions, all in the service of one goal self aggrandizement, which is also the reason why demagogues tend to cast doubts upon and given the opportunity themselves, rig elections because of the desire to hold on to and never relinquish power. But over time, what they do is they damage trust in institutions and they do so again because they are looking to have the institutions serve them, not the institutions serve those that they took an oath to serve and turn the public. To my mind, this impeachment is about the kind of presidency, and this is something Bennewitz and Susan Hennessey has written about, have written about, this is about the kind of presidency that Donald Trump sought to establish and January six in the weeks leading up to it and the weeks leading up to it, as the House managers have made clear, and I think absolutely correctly are critically important in understanding what the Senate is really voting on here was not a lapse of judgment on a single day. It was an onslaught against institutions. And of course, it was Donald Trump’s claim all along that he couldn’t possibly lose either in 2016 or in 2017 unless the election had been rigged against him. In this respect, he was true to his word. And this was classic demagogic behavior, corrosive of public trust in the institution, built on emotional manipulation, lies and the vicious attack on the motives of political adversaries. And it is the sort of presidency out of which this event offload that I believe the January six event flowed, that I believe the Senate needs to pass judgment on in very, very clear terms, because I don’t disagree with Ben and Susan that in some respects, even though no no one ever accused Donald Trump of being a political theorist, he is and has put up as an alternative to our standard conceptions of the presidency, this demagogic model. And there are others, no doubt, ready to pick up the mantle and do what he did and perhaps to a considerably better with even greater cost to our institutions. And we need to do what we can to deter that.
S1: So this is useful to me because I think I have very much been thinking in terms of other whether it’s the rise of authoritarianism or liberalism or fascism, if you want to go there, the demagogic model is helpful because I think at least as you’ve been writing about it and framing it, the problem with the demagogue is he’s going to wrap himself in free speech claims, but then use those free speech claims. The claims about this is just my opinion, to actually shape reality. And then people who believe in him then believe in the things he says. Right. That’s the problem. That’s the move. And then to stand up and say, I’m being persecuted and I know you pointed this out in some of the briefing, I’m being persecuted for unpopular opinions is a way of saying I can say anything I want and thus manufacture any reality I want and my believers will believe it. And this all is protected. So this is the nexus between speech and authoritarianism that I think for me this helps frame it as a constitutional question and a concern of the framers.
S7: No question that his his position would be if you were to tease out from him in this way that whatever it is that he says is acceptable, it is true because he said it. He the leader, his instincts are the measure of what is acceptable and true and that he can say it. And if he says it, well, after all, he’s a stable genius. He’s somebody with his phenomenal, if you recall, some point overriding instincts about things and that he’s therefore not only entitled to, but he has to. It’s a character of his leadership that he spouts these lies and that he misleads the public in the way that he does. And behind it also because so many of these falsehoods are directed against governing institutions, is the view that he substitutes for those institutions. Those institutions have failed. They’re rigged, they’re corrupt. They need to be disregarded in the same way that he attacks the independence of the Department of Justice over the entire time that he was president and wondered out loud why he couldn’t order up the prosecution of his political adversaries. He is saying, I the person of Donald Trump, I am the alternative to these institutions, and that is the self aggrandizement of the demagogue. It is how the demagogue styles his person as the object, if you will, of political worship. And so you hear on January six, the mob are repeating out loud through their bullhorns or in other ways. He told us to come. He told us we should be here. He told us Pence could do this. He told us that Pence was a coward, all of it, a measure of truth located in what he himself chose to say in his own interest.
S1: And so you wrote this week, and I think it’s I think this is encapsulating what you’ve just said, Bob. The demagogic presidency and its threat to the constitutional order are also on trial this week. And so I think what you’re trying to say is we have to repair this narrative that he has really, I think, entrench that he can say anything. It’s not performative. It’s not connected to action, and it doesn’t incite that. Absolutely. Every word out of his mouth is not only true, but even if it’s not true, it’s protected free speech because you’re worried. I think you’re hedging against the next person who comes along and does it better.
S7: Yes. I mean, there’s every reason to think that. And this was also true of Donald Trump and his business practices as head of the Trump organization. He didn’t always surround himself, if you will, with the best of the best. And, you know, we’re now down to the quality of legal representation that we’ve seen on display in the Senate. But somebody who comes behind him might very well be savvier, more experienced in government and in politics, have a better appreciation of what it takes to have the government brought to heel, if you will, and more subject to his presidential whims. And this trial now is at least one occasion on which the Congress can pass judgment on this. I’m pretty gruesome facts, vivid, gruesome facts viewed by Americans captured on videotape. Ben and Susan had hoped in writing their book The Twenty Twenty election would be that verdict. But that didn’t work out because the demagogue, if you will, turn the tables on everybody and began attacking the legitimacy of that election even before it took place. And so the election wound up being contested, he persuaded many of his followers that it was not legitimate. And so really, the impeachment trial becomes even more critical as an occasion for an institutional judgment on the kind of demagogic presidency that he sought to establish.
S1: And to the extent that no surprise the entirety of the defense, at least so far, maybe it will change over the day Saturday. But the entirety of the defense is free speech, free speech. He fire. Does it mean fire theater doesn’t mean theatre fight, doesn’t mean fight wild doesn’t mean wild. Stand back and stand by. Does it mean none of this means the meaning that you and I would attach to it? To the extent that that is the defence, does it matter that he prevails on that? In other words, does the line move in the opposite direction of what you’re concerned about? If the take away here is that, of course, all presidential speech, no matter how incendiary, how violent, is all protected, do we lose in a bigger way than just this impeachment trial?
S6: It’s going to be a very murky outcome. He was impeached and then he was acquitted, of course. It’s very possible that some Republicans who vote. To acquit him will put their rest, their case on the so-called unconstitutionality of convicting someone already out of office, a private citizen, quote unquote.
S7: That’s, by the way, I think incorrect, too. But that’s a different argument. And they might say at the same time that they say that I disapprove of how he behaved. I disapproved of what he said. Some of them have even said this should be left to the criminal justice process to address. So they may still create a record, if you will, of congressional disapproval in a broad sense. And a majority may well express that disapproval. But the headline will still read.
S1: Trompe acquited, I wonder if you thought there was anything new that came out in the House Managers case, and I’m really stuck on this moment where I think it became clear that the president knew Mike Pence was in physical danger, was being removed from the chamber. While he was tweeting out. He continued to tweet out incendiary rhetoric about Mike Pence. I guess I wonder if more needed to be made of the fact that not only that Donald Trump sort of lit the match and pointed the protesters at the Capitol, but that he really did nothing to stop it. And now we seem to have this cherry on top, which is in the fullness of knowledge that his vice president and Nancy Pelosi were in danger. He didn’t stop. Does that matter?
S7: I think it matters a great deal. I don’t think it looks like it’s going to change anything right now. The Tuberville admission that he told the president the vice president was under attack were all being evacuated, which I take it he also understood, although Mike McLeese is saying he doesn’t want to discuss the content of that phone call, he may have also expressed them. Heard the same from Mike Lee. And then 11 minutes later, I believe it was, he’s out there tweeting yet another attack, which is being faithfully circulated within the mob that surrounded the Capitol. So do I think that matters? It absolutely does matter. The fateful choice that was made and there were reasons why it was made was not to collect additional evidence about what was taking place on the inside of the White House. Those who knew, for example, as press reports indicate and could testify that he didn’t understand why people weren’t thrilled with this attack on the capital. He’d been looking for a way to delay this or disrupt this process. And lo and behold, it was happening. The process was being disrupted in the electoral vote count proceeding was suspended. And I was thinking earlier today, it’s interesting, we have two tapes cases, the Watergate tapes case and the Trump tapes case. The Watergate tapes capture what was taking place on the inside. The Trump tapes capture only we could see on the outside. And I think in that latter case, that tells you a great deal of what distinguishes and I think creates real problems for this impeachment process.
S1: And we don’t need evidence of his state of mind. As you said at the beginning, this isn’t a criminal prosecution. We don’t need to know what he was thinking, which is why those outside tapes are sufficient. I suppose we need to only know what was happening. And so I guess it’s I’m just thinking about Nikki Haley excusing only Donald Trump. It almost doesn’t matter for our purposes whether he knew in the moment that he was making it worse. Right.
S7: You mean it might not make a difference because we see what happened? Well, I certainly think that what we see, what happened, what’s on tape on the outside is convincing enough for my purposes, I do think and something this important, a complete factual record and perhaps one that could persuade the persuadable right now would make a difference. And so let’s assume that a White House aide testifies. Think about it, by the way, in the Nixon case, you know, John Dean or Alexander Butterfield, a Trump aide, testifies that he was told that Pense had to be whisked out of the building and the proceedings suspended because of the mob attack. And Trump replied, great exclamation mark. Do I think that’s an important piece of evidence? Absolutely. It goes to state of mind. And as you say, that may not be necessary, but it also was objective evidence that he fully understood, as I think he did anyway, what was taking place and he fully favored it. I’m not suggesting, by the way, that we have any evidence that he wanted to see Mike Pence murdered. I think one of the proceedings to have ground to a halt, that was the delay to Rudy Giuliani and perhaps others were calling around that day looking for ways to persuade members to slow the proceedings up. And this is what he wanted to have happen.
S1: And the decision not to call witnesses, not to press further on what he was doing in those hours at the White House. That was just an expediency decision. We got to do this quickly. There’s other priorities. We can’t spend weeks trying to find this. In other words, I guess the sense was you could have all that evidence. You could take six months and you’re not going to get those 17 votes.
S7: Right. You’re not going to get those 17 votes. And then this goes again to American trust in institutions. There are people who are really suffering, you know, thousands dying a day, hundreds of thousands since the fall, huge economic disruption, parents struggling with students out of school. And there was going to be limited public tolerance for this fight.
S1: What’s your best advice, Bob, for how to if we can’t put Donald Trump on trial in the Senate to talk meaningfully about what the senators have done? In other words, to deflect this in a conversation into a conversation about the senators and I’m thinking specifically of all the frantic emails I’ve gotten in the last 24 hours saying, can’t they do a secret ballot? Can’t somebody punish the senators who aren’t there? How do we make manifest that this is, as you and I said at the beginning, a deeply serious enterprise that’s not being taken seriously. Is there any way to effectuate that message other than just have the managers put on a strong case and have Bruce Castor get up and speak in tongues?
S7: What happens after the impeachment trial, I think is also important in that respect. If the impeachment trial is not going to represent a decisive verdict on this kind of presidency, then there are other steps that need to be taken to reflect an awareness that this can happen again. And that would include some important institutional reforms of the presidency to build in safeguards against presidential abuse of that institution. I do think there may be an attempt to censure the president, a former President Trump, but I don’t think that’s useless. Now, people point out that when Jackson was censored, his people came in when the Congress his composition changed and uncensored him, if you will. So that’s a moving target. But on the other hand, I think it’s important that at the time there be a clear statement that this conduct and it can be, by the way, strongly worded, I mean very, very strongly worded that there be a statement like that could be useful. But I think the longer the critical step, from my perspective, are these longer term reforms to just protect ourselves from someone like Donald Trump in the future.
S6: And for some of that, I do think there is bipartisan support, whether it’s conflict of interest, regulation, so that someone can’t run both the government and the business at the same time. And that includes the disclosure of tax returns or the politicization of some of the presidential exercises of the pardon power or safeguards of Department of Justice, law enforcement independence. I mean, there are things that can be done that will stand in the way of the sequel to Donald Trump, if we’re unfortunate enough to have it.
S1: So I think that leads me to my last question, which is how sanguine are you that we’re not going to get the next Donald Trump? How as compared to say, I know you’re up to your ears in the election litigation, but has the lesson taken hold that this is deeply, deeply toxic and problematic, that the institutions are not as strong as we thought, that the institutions rest on a lot of good faith and goodwill? Even the institution of impeachment itself is bound up in a lot of thinking about how senators should conduct themselves after they take an oath. So knowing what we now know about how fragile some of this is. Are you 80 percent confident, 90 percent confident that institutions can be bolstered in the coming years, or are you? I don’t know. I think I’m just a little glum from having watched eight hours of impeachment for a couple of days. But is the next one to come going to be the kick in the face? Donald Trump version 2.0. That’s really smart, well-organized and able to wreak havoc.
S6: It’s something to worry about. I don’t think we can discount the possibility, especially if the public concludes. So most of the public, a substantial portion of the electorate concludes that for reasons. And of course, that’s where a lot of conspiratorial thinking enters in the institutions of government are just consistently failing them. And if government consistently fails those expectations, we’re going to have conspiracy theories and we’re going to have people gravitate to the strong man or woman who says you have to depend on me because those institutions have failed you. They failed you because they never cared about you. They failed you because you’re in the grip of other interests that are willing to seize all the goodies and deny them to you. I’m your hope or to go back to the convention. When Trump said, I am your voice, I’m the only one who can fix it. I which is an appeal when people lose confidence in the collective we. And so I don’t think that we should be sanguine about this at all. By the way, you’ve mentioned elections. So I’d like to say one quick thing about elections. We have to be serious, not just in the reform of the institutional presidency. There are also reforms of other governmental institutions that I think would make a difference there. Congressional reforms, for example, the Congress, you know, is certainly not functioning the way people would like it to. But consider the election administrative machinery in the United States. We talk about the right to vote and how very important it is. The electoral infrastructure in this country almost collapsed in the spring of twenty twenty under the pressure of the pandemic. It wasn’t salvaged by government intervention. It was salvaged by heroic efforts by individual election officials and by voting rights and other advocates, and by an infusion of private resources into jurisdictions that were really struggling to put an election on hundreds of millions of dollars of non-public but public spirited money. We don’t take the electoral process as seriously as we should as a fundamental question of building that structure up. So it really serves the voters reliably. And that’s a conclusion that I reached and that we reached on a bipartisan basis on the presidential commission on election administration that I served on the President Obama set up in 2013, and we’re still struggling with that and we shouldn’t have to.
S1: And it’s interesting because it’s worth saying, as you and I are recording this, there are vote suppression efforts going on around the country. Right? There is a redoubling of enthusiasm for exactly the kind of, you know, in addition to the rickety election structure that you have described and that you deplore. But there’s also a really, I think, manifestly terrifying effort to constrict the vote and that we can say all we want, hey, you know, we have record turnout and people showed up in a pandemic and vote by mail work. But the lesson is not a bipartisan lesson necessarily. That encouraging broad widespread expansion of the franchise is the lesson of twenty twenty. It’s quite the opposite.
S6: Yes. Although I do want to say one thing for the election officials. Even on the Republican side, I would I shouldn’t even say even on the Republicans. I say on the Republican side, who many of them around the country really stood up at the end and they delivered voting to the electorate and they stood by the results and defended them against enormous amounts of political and personal pressure. But, yes, you know, you’re quite right. We’re now dealing with a wholesale effort to revise rules that are intended to restrict categories of voters, limit voters, inhibit voting in the interests of narrowing an electorate so that one party can do better than the other at the polls. And there’s a long, sordid history of that in the United States. This is not the first time it’s happened, but it is something that just needs to be very, very carefully followed and resisted at every level.
S1: But thumbs up, thumbs down. This impeachment effort, although experienced by some Americans, is a distraction and some Americans as vengeful and some Americans as tearing the country apart was worth it. In your view, I’m hearing you say this needed to be a marker of something. And even if it was brief and even if there were no witnesses, this is something that needed to be done in this moment, in this way. That’s what you’re saying?
S6: Absolutely. I think it would have been a horrifying abdication of congressional responsibility to have bypassed the impeachment process entirely. Originally, the House wanted to rush it just to get Trump out of office before he could do any more damage before the conclusion of his term. The House was correct to do that. It didn’t turn out that the Senate could take that up, but before Trump left office. But I think it is absolutely in the public interest. Critically important that a record. Established and that this argument over this presidency continue with what we have seen as a record is produced through this impeachment process.
S1: Bob Bauer is co-author with Jack Goldsmith of After Trump Reconstructing the Presidency, which was published this past summer. He served as White House counsel to President Obama. He’s a professor of practice and distinguished scholar in residence at New York University School of Law, as well as the co-director of the university’s Legislative and Regulatory Process Clinic in 2020. He served as a senior adviser to the Biden campaign, and he will co-chair Biden’s commission to study reforms to the Supreme Court. Bob, I could just book you on the show every week for the next six months and I would have good questions for you, but I am so, so deeply grateful to have you help me think through this impeachment, which was, I think, as we agree, singularly important and singularly maddening at the same time.
S6: Thank you very much. I really enjoyed the conversation.
S1: It is time now to have our check in with Slate’s wonderful Mark Joseph Stern, who covers the courts and state courts and elections, law and gerrymandering and all the things for us here at Slate. And this is our super secret slate plus conclave, where we get to talk about other stuff that is going on that we maybe didn’t get into the regular show. Marc Stern, welcome back.
S8: Hello. Happy to be here. Happy to not be talking about the impeachment trial with you today.
S1: How much have you been watching? I know you’ve been writing about all the other stuff, so it makes me feel like maybe you have given yourself or been given a reprieve to not watch the endless re traumatizing, slashing pain of the thing.
S8: So I have watched almost all of it. I have to admit, with Trump’s lawyers, I couldn’t you know, I just I can’t. But I watched the House managers presentation and I just felt like it was kind of a patriotic duty in a way, like as an American citizen, to watch these really brilliant lawmakers, Jamie Raskin and such and such a fantastic attorney, you know, make this very compelling, I think, bulletproof case against the president. And to just sort of sit with the knowledge that there is no chance in hell that Trump will be convicted or disqualified. And I just felt like it was sort of important to spend some time this week watching the House managers make this unimpeachable case and then remind myself there is one of two major political parties that just doesn’t care.
S1: I’ve been really struck by how good the lawyering has been from the impeachment managers this time, even as compared to last year, where you, Adam Schiff and his team, I think, did a phenomenal job. But this really does feel like a master class in prosecutors prosecuting deftly. And I have just been very, very impressed with the quality of just the coordination, the chunking out of the issues. A few tech glitches notwithstanding. This really looks like something you could show no one else that would encapsulate in a sense, how to be a persuasive. Advocate using all of the facts that you can marshal, it’s been really an impressive array of lawyers.
S8: Yeah, I think so. And, you know, I’m not normally a big fan of prosecutors, but I do think that good prosecutors tell a story with a beginning and an ending and an arc and it all fits together and they give you the pieces. And then in your mind, you can put those pieces into place and you feel like I get this, I am on the same page. And that’s exactly what I think the House managers have done, not just using their brilliant audio visual presentations or these incredibly disturbing videos, but just standing at the on the floor of the Senate telling this narrative that is just every piece of it can be backed up with a piece of evidence. It’s all factual. There is no leaps of logic. They’re not making any real assumptions. They’re just showing precisely step by step how the president incited this failed insurrection. And I do think it’s a master class for one else and for all of us, especially in the face of certainty that it won’t really work. Right. We all know the Senate’s going to acquit. And yet they were still able, these House managers, to go out there and put so much emotion and intensity and rhetoric into this presentation against all odds. It was impressive to me and I think really commendable as an act of lawyering. That’s one of the reasons why I felt like it was important for me to watch.
S1: Let’s talk for a minute all the way back to last week and the Supreme Court with the syrupy time, the molasses time we now live in, it feels like six months ago. But there was another big, late night order on covid and religion and churches in California. And you wrote about it at the beginning of this week. Can you update us? Mark, this has been this slow march of cases that is building a weird late night doctrine of covid and religion. Can you catch us up to what’s happening now and what is shifting and changing in these orders?
S8: Yeah, so so the court’s order last week, which does feel like it was a decade ago, lifted partially California’s covid restrictions. So California had put a total ban on indoor worship services in areas where covid is surging and it is surging in much of California right now. In fact, there’s this California variant that’s very infectious. And the Supreme Court lifted that total ban by a six to three vote. So Chief Justice John Roberts and the other five conservatives lifted the total ban by a very splintered vote. They kept in place a 25 percent cap so churches could only fill up to twenty five percent capacity. And they kept in place a ban on singing and chanting during these indoor worship services. And the vote on those two other restrictions was so splintered that we don’t actually know exactly who voted how, particularly with this 25 percent cap, it’s pretty much impossible to count five justices who upheld that cap. It really looks like it was only four. But because this is a shadow docket order, a late night decision, the justices aren’t obligated to note their votes. They did not all note exactly how they voted. And so we have this utterly unsettled yet vitally important law of covid and religious liberty where some restrictions are OK, some aren’t. We don’t really know why. We don’t know exactly where the line is. We can’t even count five votes because we don’t know how all the justices voted. But that’s the guidance that states and lower courts have to live with in dealing with a once in a century pandemic. And as Justice Kagan pointed out in her dissent, that is going to lead to a huge amount of uncertainty and could possibly exacerbate the pandemic and actually kill people.
S1: And it’s worth saying, Mark, because I think you’ve written this and we’ve certainly talked about it, the utter weirdness of having these shadow docket cases come to stand for some kind of law of the case, some kind of precedent when we don’t know if the law is we just know that in this particular instance, some vote was taken. But the idea that these are becoming an edifice that builds on itself to stand for some legal proposition that we don’t quite know, the contours of this is just really, really problematic.
S8: Yeah. And let’s also be clear that this is an emergency order. It’s not supposed to be a decision on the merits. Right. The court didn’t hold oral arguments, didn’t have full briefing, and yet the conservative justices did not apply the standard for emergency orders. That’s supposed to be a very, very heightened standard for the court to step in. In a situation like this, the rights at issue have to be. Unmistakably clear, there has to be a balancing of interests and a consideration of the public’s interest, and the court didn’t do any of that, the conservatives just issued a merit’s decision without even a nod to the actual rules governing these cases. So I know this can sound really wonky and arcane, and it feels like you and me and Steve Vladeck are the only people who care sometimes. But in truth, it matters because the Supreme Court is not just dealing with these petitions as they come, but making new law, the law of the land through late night orders that don’t apply the proper standard through votes and splits that we can’t even tally because it’s all shrouded in mystery.
S1: So speaking of can’t even tally shrouded in mystery, let’s talk about the Thursday night order in this death penalty case in Alabama, because it seems like it’s another variant of the same disease, which is something happened, somebody wasn’t executed.
S8: Explain that metaphor about variance. It’s a little too close. I’m sorry. You’re right. But let’s remember the history here, right? 20, 19 by five to four vote. The Supreme Court allows Alabama to exclude an imam from the death chamber for a Muslim inmate, even though Alabama offers Christian chaplains. So Alabama says, look, if you’re a Christian, you can bring your spiritual advisor into the death chamber. If you’re not well, you’re out of luck by five to four vote. The Supreme Court still lets that execution move forward. The liberals dissent, the kind of shame Cavanaugh and Roberts, who a couple of months later come on board in a very similar case that involves a Buddhist instead of a Muslim. And this time around, Cavenagh and Roberts say, well, if Texas is going to let a Christian chaplain into the death chamber, it’s this was a case out of Texas. Then you got to let the Buddhist spiritual adviser in. These were all, by the way, shadow docket decisions, late night orders, just like what we’ve been talking about. So it’s kind of hard to count votes, but they’re the law of the land stood until Thursday night when the Supreme Court, by maybe a five to four vote, maybe a six to three votes, blocked Alabama from executing Willie Smith, who was a Christian inmate. Now, this is interesting. Willie Smith wanted to bring his Christian chaplain into the death chamber with him. But Alabama, after all of this mess before, just banned all religious figures from entering the death chamber. Alabama said, you know what, we don’t want to deal with this stuff about imams and Buddhist spiritual advisers. We’re just going to ban all spiritual advisers. You know, nobody gets to accompany anybody into the death chamber. And this time around, the Supreme Court said, no, you can’t do that either, actually, and cited this federal law that guarantees religious freedom in prisons and says, look, if a prison is going to restrict religious freedom, it has to meet strict scrutiny. It has to show that these are the least restrictive means of promoting prison security. And Alabama has not shown that these are the least restrictive means of making sure that the execution goes off without a hitch. So Justice Kagan writes this opinion explaining all of this, saying, you know, it doesn’t meet strict scrutiny. There’s a problem here. Justice Amy, Connie Barrett joins that opinion, which is notable, right, sort of crossing over Justice Sotomayor. And Justice Breyer also joined that opinion. But if I am counting correctly, and I think I am because I watched a lot of Sesame Street, that is only four votes. Four votes do not block an execution. You need five. So who is the fifth justice who voted to block this execution on religious freedom grounds? We don’t know. We only know that Thomas Cavnar and Roberts dissented, so they would have let this execution move forward. That leaves Alito and, you know, Gorsuch, OK, but we don’t know which or both of them cast this fifth or maybe sixth vote to block the execution. They didn’t even note their votes, let alone write to explain why they voted. They didn’t join Kagan’s opinion. And the weirdest thing may be that two years ago, Alito wrote an opinion joined by Gorsuch that seemed to reject the argument that Wilesmith put forward in this case that the liberals and Amy CONI Berrett endorsed. So total mystery exactly why the court blocked this, right? Because we don’t have that fifth vote mystery. Who exactly blocked it. Mystery why? And at the end of the day, this is like a really big decision for religious liberty behind bars. But no lower court is going to know exactly how to apply it. And none of us are going to know exactly what it means because it’s a shadow docket decision. It’s all shrouded in secrecy and obscurity and reading.
S1: Cavenagh and the chief justice, do you have any sense of what it is that has shifted for them if something has shifted?
S8: So covid on the chief stick with this argument that they had adopted. Two years ago, where they say, look, we’re only interested in discrimination between religions, so if a person is going to let a Christian chaplain into the death chamber, then it has to let an imam into the death chamber. It has to let a Buddhist spiritual adviser into the death chamber. But here, Alabama, in response to those other rulings, just put a total ban on spiritual advisers in that chamber. And for on Roberts, that was that’s adequate. Okey dokey. No issue. So we know that Alito or Gorsuch or both don’t agree with them. But again, we don’t know why or who.
S1: Mark, I guess the last thing and you’ve written about it this week is Georgia and Donald Trump and election interference, because it sure looks like Georgia not entirely inclined to let it go, that Donald Trump was trying to scare up votes by phoning election officials. Can you talk a little bit about there’s some push me pull you going on there. But can you talk a little bit about your sense of whether Georgia is really serious about looking into at minimum, but actually doing something about election interference?
S8: So Attorney General Chris Carr of Georgia. I really doubt that he is serious about doing anything. He’s a Republican. He’s a Trump supporter. He opposes Trump’s impeachment. He still seems to be all aboard the magazine.
S9: But Fulton County District Attorney Fanny Willis, who does have power to prosecute this case because it part of it took place in her county, she is apparently going full speed ahead here. She sent document preservation notices to a bunch of government officials, including Secretary of State Brad Raffensperger, who is the guy that Donald Trump called to demand that he essentially falsify the vote record to give Trump Georgia. And this district attorney has said, look, you got to keep all these documents, all these records, because we are opening a criminal investigation into this phone call between Trump and Raffensperger. We are looking at potential felony charges under Georgia law for election fraud. We are going to bring this case before a grand jury as soon as March. And we believe that subpoenas will follow shortly thereafter. So the state attorney general might not be doing much. But this district attorney who does have independent power to prosecute this case, she seems to be really committed to scrutinizing and investigating this phone call, figuring out whether it meets the standard for these Georgia criminal laws, which I think it very clearly does, and bringing a case and potentially trying Trump for felony election fraud in Fulton County in the near future. That is a really big deal. If anything, I think it’s being sort of underreported and there’s no indication that she’s going to slow down or give in to potential political interference.
S1: And Donald Trump has no defenses against this. Right. This is going to look a lot like the New York investigations and other investigations into taxes and fraud and other very serious criminal issues that may or may not arise in the coming months and years. There’s not much he can do. He’s going to have to be subject to this, at least as a matter of of the process of it.
S8: Right. So Trump is out of office, which means he can’t claim immunity from subpoenas. He can’t claim immunity from this investigation. He can be indicted. His only defense is going to be a standard defense of someone facing criminal charges, probably that he didn’t have the requisite state of mind. And, you know, of course, it’s very early, but my guess would be that he’d say, hey, I wasn’t asking Brad Raffensperger to falsify any records or falsify any documents. I just wanted him to find those 12000 votes, his words. Right, because I really believe they were there. That is a question for the jury. That is not really a question for the prosecutors at this stage. You know, if they think they have a strong case, they can bring it and contend with that argument in open court. But no, Trump cannot shield himself from any of this process by citing his presidential powers, because guess what? It’s February twenty twenty one and he ain’t got none.
S1: Mark Joseph Stern covers the courts, the law, voting state courts, state supreme courts, many other things. And he joins me here in what I think I want to call the Shadow podcast.
S8: Can we can we can we name it that?
S1: Because it just seems to me that it’s all the good stuff. It’s top secret and no one really knows your opinions. Well, maybe not the last bit. Mark, thank you so, so, so, so much for being with us again this week. I know you’re crazy busy. We appreciate it.
S8: Always a pleasure hanging with you in the shadows.
S3: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you so very much for your letters and. Your questions, you can keep in touch at Amicus, at Slate, Dotcom, or you can always find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sarah Birmingham. We had research assistants from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We’ll be back with another episode of Amicus in two weeks.