S1: This ad free podcast is part of your slate plus membership. Enjoy.
S2: Hello and welcome to the Slate political gabfest from May 14th, 2020. The there is no plan addition. I am David Plotz, Business Insider, coming to you from a cubbyhole just off of my bedroom. I’m joined, of course, by Emily Bazelon of the New York Times Magazine and Yale University Law School. From her home in New Haven, Connecticut. Hello, Emily.
S4: Do you feel like cubbyholes is somehow more like it’s like you have a new job from closet the last few weeks, a new a new identity.
S5: I decided this isn’t this functions. This place functions as a closet, but mostly it’s a place the cats go and hide. And it’s so hence it’s more of a whole hidey hole. John Dickerson of CBS 60 Minutes is in his tent. Emily is the only one of us who’s in a regular room in Montana.
S6: Well, yeah. I mean, a tent because of the it’s where I’ve been recording the audio book, and it’s all very good for the acoustics. But I’m also in a tent because it’s the only tiny little postage stamp where I where I feel like I’m not encroaching on someone else and someone else is not encroaching on me cause I’m I feel like I’m always in someone else’s space and vice versa. So it’s really everybody should get like a shower curtain and just enclose themselves in it.
S1: Is that a shower curtain that’s around? No, it’s actually it’s Drei. It’s OK. I said drapery covers a window, OK. The softness of the drapery is more appealing to me than the shower curtain, especially if you’re giving advice to the world about their heads. Well, I just do.
S5: The shower curtain would hope it would repel all of the spit the GI would I?
S6: I’m assuming that more people have shower curtains than they come down. I’d vigorously agree that we have in our bedroom because we live in a New York brownstone anyway.
S5: We have a gab fest on today’s gabfest. Have we completely wasted the two months of shut down and are we now resigned? Should we now resign ourselves to a situation where we’re basically doing nothing and limping along, vaguely minimizing harm? Then the Supreme Court tackled the most consequential case about presidential power in a generation. And it looks like President Trump is largely going to win it. But maybe Emily disagrees. I don’t disagree. All right, great. And then we talk to Isabella and a great Chilean American writer about writing about pandemic, about Chile and about family. Plus, we will have cocktail chatter. So you, dear listeners, are living through this. And so, you know what I know, which is that we have had two very hard months. We have essentially squandered them. There has been misery and we have lower death rates. We have case rates that are generally headed in a better direction, the U.S., but we have not at a national level taken any of the deep, hard steps we need in order to break the back of the pandemic. There is no national testing plan. There’s no plan to do surveillance testing, no contact tracing of any note. No quarantine plan. No agreement about what a lockdown means. No agreement about what reopening means. And most of all, no clarity of leadership from the federal government. A president who has basically abandoned his post and instead is spending his time tweeting crazy theories about the former president. It’s a catastrophe, Emily. Am I overstating the case or are we actually in better shape than I just said?
S1: No, you’re not overstating the case. It’s a just colossal, colossal failure of leadership from President Trump. I do think that there are some steps that, you know, particularly governors in these regional compacts of states, steps they’ve taken that are helpful and will help parts of the country partially reopen incrementally, more safely. I also think it’s important that we’ve learned things about the virus, some of them alarming, some of them reassuring. So on the alarming side, since I’ve been obsessed with kids and trying to figure out what the risk is to them and praying desperately that this is a relatively safe picture for kids, we have more than 100 cases now of this rare inflammatory disease that’s quite dangerous. There seems to be new research connecting it more closely to coalbed. That’s really depressing to me. On the other hand, I was reading this morning in an op ed in the Times by Johns Hopkins public health professor that we he was saying at this point and this is a moving target, but I’ll just give you his rendition, that the case fatality rate for young people is like the seasonal flu. It’s obviously much higher for old people and much higher for people with pre-existing conditions that put them at risk. But I do think we’re starting to see some clear evidence about that age difference. That is significant for managing it. And then also this rural. Urban divide, which is very tricky politically. So there’s a study from the Heritage Foundation that showed that nearly half of the deaths from coronavirus come from places with about 15 percent of the population. So those are the urban centers. Then there’s another 15 percent of our population nationally who is living in rural counties where there is zero or one death. And, you know, thinking about that helps me understand why some people in rural areas are so frustrated and feel like they want to get back to their normal lives. I don’t think the federal government has done anything like the job we need to make fighting this virus a truly national endeavor. And it’s also possible that it will make sense to have different levels of managing the risk in different parts of the country. You know that that could be an evidence based approach. What do you guys think about that?
S6: Well, I think we are aware already in the middle of the experiment of different responses to different levels of country based on risk. You know, you’ve had those states that have more than a dozen that have basically started to take the beginning steps to move out of the most severe form of quarantine or lockdown. Many of them in contravention even of the fuzzy White House guidelines. So we’re we’re basically trying this test in real time. One of the things that’s so frustrating about that is, A, you have the lag, the natural lag in numbers. So, for example, when Georgia first announced it was going to begin these steps, I was focused on that idea that you need to to have 10 percent of the tests. You do come a positive 10 percent or lower to be in a healthy situation. And Georgia was at 23 and someone on Twitter said, yeah, but on the 22nd of April, we only had 31 new cases misunderstanding that those cases come in over a long period of time. So the 22nd of April, which had 31 cases on the twenty third of April. Now, on the 14th of May, the actual number for that day was eight hundred and sixty five. So in order to understand where we are, you have to wait. And so that’s frustrating because you want to know, like, where are we at this moment? We don’t quite exactly know. It turns out that day may have been the peak day for Georgia. We don’t know because we’re. So the numbers look good for a minute, but then they look bad as you get the actual data that comes in. That’s frustrating. And then you everybody’s arguing for different pieces of data that they’re looking at. So it’s hard to even know that these experiments that are going on, whether they’re they’re working. And then you have idiosyncrasies like Florida, which looks like it’s things are turning out better than people expected. It may, in fact, be one of the contributing factors may be that the Florida residents paid attention to the warnings before their governor did and were self isolating and quarantining even before the state told them to, or at least those who were most susceptible and therefore are responsible because of personal responsibility are giving the state a better a better overall picture. Then you have the fact that all these state numbers are shorted through this ridiculous partisanship, which means you can’t have it. You can’t. What we all want is data from a state that then we can scale to other states. But in addition to the fuzzing is just a the number. You then have the stupidity of people grabbing numbers in any moment to use his weapons in an existing fight, which screws up more. And it is so frustrating to try to get actual clear numbers in these experiments that are going on about how we move back into the post quarantine period.
S5: I mean, it does seem there’s some basic principles. The basic principles are inside. Spaces with poor air circulation are the most dangerous that people who are in at risk populations which are elderly and certain people, certain physical ailments or certain preexisting conditions are more at risk that, you know, the more you directly are interacting with other people in those enclosed spaces, the worse. And so it does seem like we have learned enough that in the reopening we’re going to probably minimize things. And we fortunately, the fortunate fact, which, Emily, you’re getting out with a rural urban divide is that we live in a pretty big country and people also tend to live fairly distantly from each other in America, except for an a few big cities. And in places like nursing homes. And so that the the vast majority of people are the vast majority of the country is not nearly as risky as Manhattan is or as a nursing home is. But we have not done a good job of distinguishing among those places. I want to call out to me what just to point something else out. The most interesting number that I saw this week actually came from a Washington Post Ipsos poll, which was looking at the popularity of governors and the most popular politician in this country in terms of their response to the pandemic is Mike DeWine, the governor of Ohio, a fairly conservative Republican in Ohio. And he has a 86. Percent approval rating for his handling of the crisis, 90 percent among Democrats, 90 percent. But he was early. He’s stood behind his public health officials and he’s been fairly aggressive in handling the crisis. And what it points to is that this would have been an amazing opportunity if we had a Republican president who is willing to grab it to have been a national leader on it and to have have have basically taken on a Nash in a national way. The position that DeWine took that Republicans would have gone on Maskin wouldn’t be a political issue. Reopening wouldn’t be a political issue if we had a president or a conservative president who took the stance that DeWine has taken. I think if you had a Democratic president who taken a stance on masking or on reopening, being conservative, being reluctant about reopening that Democratic president would be in trouble. But I think a Republican president who was very aggressive about being a national leader would have had enormous support. And Trump has just so wasted an opportunity for his own re-election. But mostly he’s wasted for the health and safety of the country. And it’s a tragedy.
S4: David, are there a Democratic governors or other governors who have really high approval rating? Yeah, sure. He’s an 80s just. Yeah. Yeah, make that. Yeah.
S7: Newsome, Newsome and Cuomo both do. Inslee. Yeah. But in general, Governor, all the gov. The only governor who isn’t doing well is the trumpet’s governor Brian Kemp of Jordan to Santurce is the one who the Santurce isn’t doing great either, but he’s OK.
S4: The Florida is not terror. But what about Gretchen Whitmer, where there’s been a lot of buzz? Like she’s fine, too fine. Yeah, she’s more than difference between two.
S7: Why? The interesting thing about DeWine is DeWine has Democrats and Republicans and Newsome and and Cuomo also have Democrats and Republicans with huge support. What what? But DeWine is just a real standout.
S6: What’s what supports your point as Hogan?
S5: Hogan Sorry, John. One more point. I think Hogan in Maryland, similarly, and I think Charlie Baker and Massachusetts and clearly Republicans who who who have acted fairly aggressively have enormous support from Democrats at this moment.
S6: What supports the point even further is that Cuomo, who’s got some liability on nursing homes and on the slowness of response, was able to overcome that by doing the basic things you’re supposed to do in an emergency, which DeWine has done, too, which is offer clear information handed over to the experts, talk about unity and bring people together rather than trying to divide them. I mean, the balls are put on the tee by the emergency and all a governor has to do is just hit those balls, a president as well. And if you look at what the president has chosen to do instead, it’s really extraordinary. I mean, this week he was pushing not just a lie, but a complete fantasy about Joe Scarborough, a former aide to Joe Scarborough. I mean, this is the president of the United States saying that a television host is responsible for this young woman’s death, which is not only just awful to bring that up again about the young woman’s family, but this is in a moment where he’s not only not keeping his eye on the major ball, but he’s also diverting. I mean, there’s always an opportunity cost when he has kind of weighed in. On Thursday, he attacked Foushee for saying basically his congressional testimony tried to have it both ways. So he’s actively undermining the person who has given the cleanest information. And he’s he’s not contributed to what the governors have been doing, which is saying this is what we know at the moment. It can change and we’ll trying to adapt as much as possible, which is to explain to people that the information you’re getting is fuzzy. It’s changing. We weren’t for masks. Now we are because we’ve learned something new. And to teach them and teach all of us that the changing of information is not something sinister or not because somebody was was of ill intent, but just because this is a fast moving, strange and shifting situation. And if you do that, people receive new information with an openness as opposed to receiving new information saying, oh, well, it’s all wrong. Everything from the future that we hear will be wrong. And therefore, I don’t have to listen to anything. And the key to opening up, again, whatever that means, is going to be listening and following through on whatever the new guidelines are.
S1: I guess the other thing I wonder about in one of you said this a couple minutes ago, but I just want to explore it a little more. How much do people’s actions depend on what the government tells them to do at this point? So in Wisconsin, the Wisconsin Supreme Court conservative majority threw out the governors safer at home order this week. In my view, when you look at their reading of the statute, they have just like layered on some whole set of red tape process onto the words in the statute that don’t seem to be there to me. I looked pretty closely at the statute when I was writing about Wisconsin’s election law a few weeks ago. And it just seems like the public health official had a. Already to do what she did. But now the court says that she didn’t. And there’s kind of this fear of chaos in Wisconsin. It’s also possible that people in Wisconsin could make a whole bunch of sensible decisions that could be true in these other states, too. Like you said, I think China could help explain why places like Florida have not had the surge that was feared, because people can look at the information for themselves and make some good choices. And I just have little sense. I mean, it’s hard. It’s like a huge collective enterprise. You read these stories about, you know, armed guards outside a tattoo parlor that insists on opening and you think like, well, that doesn’t seem good. On the other hand, I could understand from the point of view of the tattoo parlor open that if you’re going to let the hair salons and the gyms open, why not me to look there? I wonder about whether we could just depend on people to make good decisions as opposed to the government. And I’m influenced in this by a piece in the Atlantic this week by his up to Feki, who I think it’s been really good on this issue. She’s a professor at the University of North Carolina and she was talking about Hong Kong and arguing that the government’s response in Hong Kong was terrible and that it was the people in Hong Kong, particularly the protesters, who are used to collective action, who really saved that country from a terrible outbreak. I mean, she was not arguing that Americans are very well equipped to do that, but I wonder if we could exceed expectations on this one front.
S5: Yeah, I think it’s naturally going to happen in that way because, in fact, people are not going to flock back to restaurants. People are not going to spend as much time in gyms. They’re not. I mean, I think that the mass gatherings aren’t going to be allowed some movie theaters, even if movie theaters are open, no one’s going to go to them. And things like concerts and and sporting events are not going to happen under these circumstances. So I do think, like the natural reduction of transmission is going to occur for the reasons you cite, Emily, but it just means that we live with some sort of low level anxiety and Lola and a and a significant economic depression for a very long time.
S4: And Redhill, we. Yeah. Endris outbreak.
S7: And and basically none of this gets resolved until there is a therapy or vaccine. And so, like, the tattoo parlor was filled and some of these other individual restaurants that have reopened have been filled. They’ve been filled kind of its protest statements. If you if all restaurants reopened, none of them would be filled. They would all be operating at 10, 20 percent, and they would all be terrible businesses. The anomaly of this tattoo parlor opening and having lots of people there, it’s it’s really an anomaly. It wouldn’t if if this continued over a week and all the tattoo parlors were open. None of that would happen. And we would realize, like, oh, people just don’t have faith to go back and that the economy can’t reopen until we deal with these other things, namely people’s sense of safety, which they will not feel relieved about until there’s a vaccine or a therapy.
S6: To answer your question, Emily, The Washington Post had a poll this week and asked rural voters, but asked as to everybody. But among rural voters, the support for staying home as much as possible was 77 23. So even in areas where if rural areas are ones that are not as hardest hit, they still have support for staying home. Noncollege white voters, who tend to be the president’s strongest supporters and polls support staying home 75 25 people. Got it. I mean, people will stay home for self preservation. But there’s a moment in which you you want to push people out to get the economy moving again when it’s right to and safe to and when position when when things are in place and the things that needs to be in place are testing and vaccines and therapeutics, all of which require two things. One, clean information from a trusted source, which we don’t have. And then number two, we don’t have a market created for either masks that could actually be, you know, of more medical grade quality that everybody could wear. That would be that would be better. Or a market for therapeutics, a market for testing and vaccines, which has to be taken or has to be primed by the federal government so that a lot of these companies can take risks and take the risk and know they’ll get paid essentially even if they’re there. Testing doesn’t turn out or the vaccine doesn’t turn out. And that’s what Bill Gates has essentially done privately, but which when we talk about federal response being weak, the kind of action, frantic action to create a market for all these things, testing therapeutics, masks and vaccines, that hasn’t. That hasn’t happened in a sufficient way. And that’s one of the actions that the federal government could be taking. It might be throwing, you know, some money away if it goes wrong. But if it goes right, it shortens the distance between, you know, where we are now and the better day. Right.
S1: And when you think about the relative costs, right. Throw that money away. But you you know, on the upside, you could get people back out faster. It’s like it’s a no brainer. And it’s the huge difference between, I think between the United States and. She’s like South Korea and Germany, which are just leagues ahead of us.
S8: Well, I want to make two points about that one, Emily, that isn’t exactly the right point that any any investment in mask’s testing, vaccines, therapeutics is worth it. And any windfall profit raked by the companies that develop it, it’s worth it because the scale of the gain is so enormous compared to the investment cost that seven hundred eighty billion dollars you would end up spending to vaccinate everybody is is trivial compared with the lost. You know, the loss of life, the loss of productivity, the loss of health, the loss of happiness that we’ve had because of this. But the other thing I would say is like about Germany and South Korea, it’s not like Germany and Germany in South Korea are miles ahead of us. It’s like Germany in South Korea. Life is normal. It’s not until there’s a vaccine or therapy. Life will not be normal. They still don’t. They’re having played baseball in Korea in front of empty stadiums. They’re not having regular life. They’re just having slightly less irregular life.
S1: And I don’t think it’s slightly, though, I guess. I mean, I still live there, but I look at them and I think, first of all, you could have some faith that this was progress, that like you could trust your government, you could feel like everyone is marching along in a way that is suppressing death. That’s really important. And also resuming normality incrementally but significantly. I mean, because I am so obsessed with kids going back to school, you know, reading about German children, self administering covert tests so that they can get like a little green sticker or whatever and then be in class like, OK, they’re not having the same kind of class. They’re doing social distancing, etc.. There’s a lot that can happen within those parameters that is a lot better for people’s well-being and mental health and like development in the world than what we are having here, which just feels like this miasma of horrible stagnation.
S6: One of the things that was getting fuzzy it up this week is that in South Korea, it was not just the two move. Moving fast is so much is so important in this instance. And so a lot of people were saying, well, the testing in the United States is catching up to South Korea or surpassing it. First of all, there’s a per capita issue. But secondly, it if you do the tests, you can do a heck of a lot more tests. But if you’re two weeks late, it won’t matter. The point is, South Korea did its work in the beginning.
S7: That is absolutely true. I also think it’s not quite fair to compare South Korea to the United States. South Korea had it and all the Southeast Asian countries had had these huge scares in the last decade over murres and Saar’s the. A lot and made them very prepared in a way that we weren’t. And it did naturally take us time to gear up.
S1: It is fair to compare us to Germany, though, right? It just seems like Angela Merkel like got on it. People get paid attention to the science. They thought about it in a smart way and like they’re way ahead.
S7: Yep. Slate plus members, you get bonus segments on the gabfest, other Slate podcasts and today’s segment. We’re going to talk about great counterfactuals in history, like moments where the world really could have changed if something small had happened differently.
S8: This was a really terrible week for, I think, the state of the American government. A lot of it was. I want to talk later. We’ll talk about the Bridgegate decisions and what’s going on with Michael Flynn. But probably a lot of this was located in the Supreme Court, cases that were heard on Tuesday to profoundly important cases about presidential power. One concerned, three subpoenas issued by the House of Representatives committees of the House of Representatives to get documents held by Trump’s bankers and accountants. The other case related case was a criminal investigation by New York state prosecutor who sought the same basically the same materials for gathering evidence in a criminal case against the president. The context, of course, is that President Trump has never disclosed his tax returns. He’s maintained ownership of his businesses, and he has very complicated, secretive finances that we know. We know based on the bits that have snipped out partnerships, tax deals, debts. But there is no knowledge among the public about what could be corrupting and shaping the Trump administration and its decision making. And every bit of evidence we have seen that’s gotten out suggests very convoluted and a likely corrupt corporation filled with all kinds of shady us. And so the Supreme Court this week was was listening to whether the House or a state prosecutor had the right to get access to some of those records. Emily, talk about the cases. What was at stake in each of them and how they came about?
S9: Well, the first couple of cases about the House of Representatives subpoenas are about congressional power and specifically Congress’s power to investigate. And the kind of language at issue here is whether Congress had a valid legislative purpose in subpoenaing ordering the release of Trump’s tax returns from his bank and his accountant, not from the president directly. The other case is from the Manhattan district attorney’s office, Cy Vance. They are investigating the Trump organization for the kinds of corruption you’re talking about, not that is established, but looking into those questions. And they say they need Trump’s personal tax returns in order to properly do this investigation. So one fundamental question here is why, especially the congressional scope of power is not been resolved over lo these many, many years in American history. And I think it’s important to just say here that the catalyst for all of this is Trump’s refusal to turn over these records in a modern era in which this has become a norm. And so Trump’s lawyer came into court and said that Congress’s requests for these documents was unprecedented. But, of course, the driving unprecedented element here is on Trump’s part. That is what has kind of pushed this into a huge constitutional challenge and big clash of the separation of powers. It is important both for just this question, is Congress going to get to look at these tax returns? Will the public get to look at them? It’s also related to a set of questions about the subpoena power that Congress has over Trump. Officials like Don McGann, the former White House counsel, that is a separate case, but they are in the same family here. And so the Supreme Court’s answers to the first set of questions that is currently before it may. Informant answers later.
S6: And the balance at issue here, Emily, since where since this is new ground for the reason you just cited, is that is that on the one hand, you Congress has the power to investigate. But on the other hand, you don’t want Congress to have so much power that if there were a situation where you had a Congress controlled entirely by one party, they could bedevil a president of another party and use their power to just kind of Hounddog the president all the time. I mean, that’s the balance here is whether the request gets in the way of the president doing his job. Right. Any president, not this one.
S9: Right. And that’s a real concern. I mean, a valid legislative purpose. Like if you broadly interpret that phrase, that could be almost anything. And this was a point that Justice Kavanaugh was making to good effect in oral argument. And I think Gorsuch as well, like, what’s the limiting principle here? And Ginsburg. Was saying in response, we’ll look, you start off and you get the documents and then you figure out what to do in response.
S1: And that makes sense, but it doesn’t provide a limiting principle. And I think the fear that you just articulated about presidents being their personal documents turning into like one more political football in an era of divided government, that is like a real concern. And so I think the court is struggling to figure out what the limiting principle is. And that is what makes the congressional subpoenas a more difficult case, I think, than the New York district attorney, who I would argue like should have a clear path to victory. And it seemed like the justices agreed with that.
S7: Well, so. Yeah. The New York district attorney case, of course. Just to remind listeners, is the one in which an earlier iteration and a lower court, Trump’s attorneys had argued that if the president shot somebody on Fifth Avenue, there would be no right to criminally investigate him while he was president.
S3: Right. Not today. Not convict in Venice to investigate.
S7: So it’s it is it which I think was such an outrageous claim that I’m sure that the Supreme Court justices are not going to be on the side of yet. The president could shoot somebody and no one can investigate him. But, Emily, I want to get into this question about harassment.
S8: So. So the question of presidential harassment is it was the one that was at the heart of the argument we’ve seen with the Benghazi investigation. We have seen with Iran-Contra that investigations and investigations that Congress starts. So I guess the Walsh one was not supported by Congress can get out of hand. On the other hand on the other hand, we have gone so far to the extreme in this White House that it’s Congress has been so emasculated in its ability to investigate and to gather information that is slightly weird, to have to put this in the context of congressional harassment. What we have is a president in Trump who has claimed all kinds of privileges to deny the public information about what what his administration is doing that we’ve never heard before. You don’t you? He’s essentially barred vast swaths of his administration from ever talking to Congress. We had this crazy spectacle this week of Foushee being allowed to talk to the Senate, but not being allowed to talk the House because the House is controlled by Democrats. I mean, that’s insane. And you have denial of blanket denial to produce documents that Congress asked for. And so the idea that the branch that needs to be reined in is Congress is a kind of excessive Congress, not a not a completely stonewalling executive branch is so weird to me.
S1: I don’t get it right. I mean, that’s. Yes. I think there’s a way in which that larger separation of powers dynamic and the weak Congress. And we should also say, like the erosion of congressional clout predates Trump. I mean, we’ve talked about it. You have talked about it for years on this show. So when you look at it from that perspective and you think like, oh, great, we’re sort of further, you know, knock-down Congress and give it even less ability to or assert itself on the occasions when it actually chooses to do so. That just seems like a bad idea. I think from the point of view of the Supreme Court, because they’re supposed to be playing a long game, they have to be cognizant of that very present reality without letting it completely take over their analysis. Like, it sweeps me along. I just feel like, c’mon, we need Congress to be stronger. And, you know, yes, the parties will reverse. Then Benghazi sucked for Hillary Clinton. But I would rather live in a world, I think, of Benghazi investigations and the release of President Trump’s tax returns than a world with less information and a more hidden, secretive, unaccountable presidency.
S6: And if you becloud yourself with an investigation and Congress, presumably the voters in a working system would punish you for it. I mean, that’s so putting it back in their hands is probably a relatively safe place to to put it. I thought actually, if you let your guys testify in front of the Senate and not the House, I think you can you can imagine that within the scope of traditional executive branch hardball. You’re not saying Congress gets nothing. You’re just saying I’m just going to give it to the Senate. So that’s an that’s as a kind of super abstract case. But then with the particularities, just as a kind of modern example or present example of what’s at issue here in the mingling between the president’s private behavior and his public role, is that when he declared that we have prevailed, which is, by the way, something we should have mentioned in the previous topic, which is an extraordinary thing to say with nearly 90000 deaths and ongoing, is that the president linked in his Twitter account, which has the force of a public statement to. And a notice about the opening of one of his golf clubs. So this is happening in the mixing and mingling between public and private. And and the use of his office for private gain or this or the helping out his his properties is happening in the nanosecond. It’s not I mean, it’s so it’s ongoing. It’s not just the issues that are at stake in the conversation, but it’s ongoing even today.
S1: I would just want to make one more point about the New York district attorney case. So in this case, as opposed to the other one, I think we have a very clear precedent on the books. United States versus Nixon, in which the Supreme Court said when there was a grand jury investigation related to Watergate, a federal grand jury investigation, that President Nixon had to turn over his tapes and that was this nine to zero unanimous decision. It’s a clarion call about the president being bound by the rule of law. Kavanaugh and. Miller has cited as this historical precedent. And so that’s part of why I think that that case is should be easier for the Supreme Court.
S7: And to note importantly there, Emily, that that would not make Trump’s records public, would make Trump’s records go to a grand jury and remain secret. Whereas the congressional cases would almost certainly result in the records being made public pretty quickly.
S1: That’s right. If the district attorney opted to bring an indictment, then you could imagine in that legal process, then presumably the tax returns would become public. But it’s a multi-step process. You’re right.
S7: I just want to tie these two cases back to the Bridgegate case of last week and then Michael Flynn case. So in Bridgegate, we had a Supreme Court, a nine nothing Supreme Court decision overturning the convictions of two New Jersey officials who had closed the George Washington Bridge, presumably at the at the behest or the implicit behest of Chris Christie in order to punish a political rival of Christie’s. And their convictions were overturned, essentially, as I understand it, because they it was it was deemed that what they were doing was they were acting using their regulatory function in office to conduct government, unethical government acts. But it was there within their bounds of regulatory responsibility. And they had not they hadn’t been bribed because they had received no money or other benefit for doing this.
S1: Yeah. And the federal statute they were charged under says the government officials doing this act have to deprive someone of property. And so the idea was like they hadn’t deprived anyone of property. That’s the court said, look, what they did was bad. They were just arguing that the statute didn’t cover it.
S8: So that plus the the overturning by the Supreme Court a couple of years ago of the conviction of Virginia Governor Bob McDonnell, who had been bribed with a bunch of nice things combined to say essentially you can as as a public official, you can go ahead and put it, as long as you’re not getting directly getting some kind of cash in hand for a particular quid pro quo favor. You can pretty much go ahead and do what ever the hell you want. The restrictions on you as a an actor, as long as you were the executive, you’ve been elected and you have these responsibilities, you can do whatever it is that you want. And it’s not going to be a crime. There was that case and then there’s a Flynn case where you have this incredible spectacle of the Department of Justice pulling back after Flynn is twice pleaded guilty to lying and pulling back this case and essentially letting this person are trying to. I mean, the judges have intervened now. But letting this person who who committed these crimes on behalf of the president walk free. We have the spectacle of Manafort being released from home detention this week, seemingly that was pushed by Trump. You have Trump’s attempt to intervene in the Roger Stone case. Trump’s, you know, various pardons, the efforts by the administration to pursue people who have interned, investigated them and the personalization of justice. And, Emily, all of this to me adds up to this incredibly dangerous situation where we’ve granted the executive enormous authority to do whatever they want, essentially no ability of either Congress or the courts or no willingness of Congress or the Supreme Court to check the executive. And that’s an executive dictatorship. And that the kind of retreat is well, the election will will resolve this in the next election. But the cheating that the president is doing is, in fact, to cheat in the election. And so the next election is not a free and fair election under these circumstances. It really worries me. It really feels like this is executive dictatorship inaction.
S1: Yeah, it’s interesting to connect all those things. I mean, my response to Bridge Gate was sort of like yours, that the McDonnell decision paired with Citizens United, which had a similarly crabbed and I would argue wholly unrealistic view that unless it’s quid pro quo and you have a smoking gun like it’s just business as usual, that’s such a cynical view of government. And if you don’t allow law enforcement to step in and mark that a governor taking Rolodexes in exchange for a promising relaxes Rolex that is going to Biograph machine for you. That’s excellent. I love that. It’s because I don’t even really know what a Rolex watch is, honestly. OK, I would rolodex that governor take a Rolex is in exchange for promising meetings. I mean, the promise of meetings was what the prosecutors could show. The idea that there was really no other benefit coming along for those bribers seems not that like it.
S9: It just seems hard to believe. So, yeah, we have the court, the Supreme Court pulling prosecutors back from playing that kind of watchdog role. Now, Congress could come in and try to pass another statute. That would probably be a good idea. But, you know, we don’t have a Congress that is terribly functional on those fronts. So the notion that law enforcement is losing the tools at. As to police, corruption is really dismaying. And you’re right to connect it to Flynn. What bothers me the most about the government seeking to drop these charges against Flynn. So this is after, of course, Flynn, Trump’s former national security adviser, had twice pleaded guilty to lying to the FBI. Now the Justice Department is coming along with this very Johnny come lately theory that his lies, the FBI, were not material to the developing Russia investigation. The FBI official who conducted the questioning was at the center of this said this week in an interview that then leaked to the press. No, you’re wrong about that. Another, a federal prosecutor whose notes were at the heart of the government’s excuse making, said, no, that’s not what I meant when I wrote those notes.
S1: What’s at issue here is that Trump has made his stated desire to have Flynn off the hook. Very clear. And so it just seems like Bill Barr, the attorney general, interfered. You have the career prosecutor who is working on the Flynn case, resigned from the case, and Barr Associates step in to become the lawyer who signs it. This is a lot like what happened when the Justice Department lightened the sentencing recommendation for Roger Stone after Trump was very public about that desire. And it just looks like effectively the Justice Department is stepping in so that Trump doesn’t have to exercise his pardon power. Trump still has that power. He could pardon Stone, he could pardon Flynn. But that, I guess, is like a step too far in the open correction business. And so if you can get the Justice Department to do your bidding, all the better. Just the fact that we are talking about it in those terms is so depressing. And then to top it off, you have this FBI search warrant for Senator Richard Burr’s cell phone, which gets delivered this week. And that looks like it could be a response to these accusations that Burr was pursuing insider trading when the pandemic broke out. And immediately, the speculation is like, well, maybe Trump is mad at Burr and that’s why the Justice Department allowed this to go forward instead of some basic faith that there is just a kind of impartial enforcement of the law going on here.
S6: So much to untangle here. Dabar say that this was a perjury trap. Emily with Flindt.
S1: They did inch up to making that argument. Yes.
S6: So just because. What would the the biggest danger here to me, it seems to me, is that that when you say perjury trap, obviously nobody’s in support of a perjury trap or which is to say that using the weight and intimidation of the police power to get people to admit to things they didn’t do, nobody would be in favor of that. So but when you use the language of that to then apply it to a case where that’s not the case, you do a double disservice. You’re not only perverting the normal course of justice, but you’re perverting the next case that comes along by making that’s that claim of a perjury trap seem frivolous. Judge Sullivan, who’s overlooking the case, has, as I understand it, appointed a former judge, essentially doing what he did in the Ted Stevens case, which was basically look into the claim that the bar Justice Department is now making. How does that work out, Emily? Because in the Ted Stevens case, if I’m right, Sullivan basically said to the Justice Department, I’m going to now investigate your claim that you’re making against this Republican senator. And he ultimately threw out the case against Stevens and basically said you overreached, which I guess is a possibility available here, too, that he could say that to bar in this latest decision. Is that right?
S1: Yeah. I mean, what happened with Stevens was this giant revelation of prosecutorial misconduct really shocking at the heart of that prosecution? And you’re right, it was the same judge and his interest in kind of looking into that department to figure that out. Now, we have retired Judge Gleason, who is basically going to represent the Justice Department’s former position. Here’s why we thought it was legitimate to ask these questions of Michael Flynn and pursue this guilty plea. And I should just say, like, it’s gonna be super interesting to watch that play out in court, to say the least of it, to your point about, you know, perjury traps. What the problem with the Flynn decision that the Justice Department just made is how not even handed it is. Right. Like if the government wants to pull back on its manipulative interrogation tactics and stop trying to, you know, in any way like use subterfuge or in in any way try to lure people into telling them things that it’s not in their interest to say. That is one thing, but that’s not what happened here. Like what happened here is this custom just spoke new kind of standard for Michael Flynn as opposed to something that applies to everybody.
S6: The president spoke about this repeatedly and has created a market for performance in his base and among politicians who would like to curry favor with him. But we’re in the midst of a major national crisis and the opportunity cost of all the time spent on this Flynn business. And the president’s repeated and obsessive care from Michael Flynn at the expensive showing similar empathy for the country or the suffering is is in particularly high relief. This isn’t just on its own. It’s happening in this much bigger context in which he should have other things higher up on the to do list.
S1: We are here for this segment, which I get to introduce with a novelist, Isabel. Again Day, who I have been reading for years and years with pleasure and delight and great benefit. I remember my mother giving me Isabel’s book, The House of Spirits, which was published in 1982, and she has written many other books, translated into many languages, including Of Love and Shadows and Evil, Doña Door to other titles. I remember with great admiration and appreciation, and her new book is called A Long Petal of the Sea. We’ll talk about it more in a minute. I’m going to just say one more thing about Isabel’s many honorifics, which I think is cool, which is that she won the 2014 Presidential Medal of Freedom from President Obama. Isabel, welcome. Thank you so much for joining us. Thank you for having me. So I wanted to start by asking you a little bit about the role that authoritarian leaders play in your fiction. To me, this seems like a theme from the House of Spirits all the way to a long paddle of the sea, which is about the Spanish Civil War, Franco’s takeover of Spain, and then a couple who immigrate to Chile. And I just wonder what you see as the role that these authoritarian takeovers play in your fiction and why you’re drawn to that subject.
S10: Well, I would say that my life changed and my vision of the world changed on September 11th, 1973, when we had the military coup in Chile. And I saw what? Authority. Power with impunity can do and how they play to the fear of people. They find a scapegoat. And in the case of Chile, it was they left the communist. That anybody who had supported the government of IBM was the enemy. And so it’s easy to find a scapegoat. In the case of the Nazis, it was the Jews and so forth, and mobilize a mob mentality that works with fear and hatred. And that kind of authoritarian, autocratic power cannot be questioned because all the institutions that could question are censored or forbidden. There were no political parties, no Supreme Court, no. Habeas corpus, no. Well, everything that that would have protected a citizen was not there. And so I’ve seen how it works.
S9: And your father was the cousin of Salvador Allende who was the leftist president of Chile who was removed in a military coup in 1973.
S10: Because of that and because it forced me into exile. And I it changed my life and I became a writer. The themes of power with impunity keeps coming back in different forms. I wrote, for example, a book about the slave revolt in Haiti in eighteen hundred. And why would I write about that? There were no plantations in Chile, no African slaves. Why? And then after the book was published and I asked some abolitionist movements, got in touch with me because there are now more slaves than ever in the world. Then I realized that I had been writing about that, about power with impunity, the power of the master over the slave life and death. I realized that for me, this is a very important issue. I would say an obsession.
S11: Isabel, you talked about being an exile. And I wonder and that also is is I mean, through your personal life, it’s also in your writing as well as as people are going through living in upheaval now as a part of this pandemic. Do you think that they are getting in touch with sort of for the first time, what those who in Latin America and even in your own experience have had to experience more constantly, which is basically always living in a state of upheaval?
S12: I don’t know. I think this is the first time that we have a global experience of fear and danger because we have had pandemics and wars and catastrophes before. But because communications was not what it is now, we’ve ever had the feeling that everybody was in the same boat. Now we do. However, there saw with fringe movements and people who instead of understanding that they go to the other extreme and they they do. They have absolutely no empathy for the other. The other. And we become very tribal. So I think that a broadly a majority of educated people in the world today are understanding that this is an opportunity for change, a wonderful opportunity to change our social contract and see what kind of world we want to live in. But there are others who who are not in that.
S7: Pulsation. Isabelle, you’re a writer of magical realism. Although I don’t know if you actually use that term yourself, so I won’t ascribe it to you. And if you don’t want it. But it is striking, I think, for so many of us today. How surreal life seems that what you used to seem mundane, mundane activities. Now it has taken on magical or surreal qualities. And I wonder as a writer who who’s able to conjure that? Who is able to create magic in the mundane? What is it about this moment? What is it that causes people to have that sensation? I understand why those things can feel that way retrospectively. But how in the moment is it that mundane things are feeling so odd and so magical?
S12: Well, I think when I’ve been asked in my life, what is magic realism? What is the difference between magic realism and fantasy magic realism? You see things that you cannot explain and you cannot control that manifest themselves. In reality. Let’s say coincidence, a synchronicity. Prophetic dreams, things like that, that we know they are there because we see their manifestation, but we can’t explain it. Fantasy you never see in real life any form of it. For example, the invisibility cloak of Harry Potter. Have you ever seen an invisibility cloak? I’m sure you haven’t. But you wouldn’t see it. It would be, of course. Yeah. But there are invisible Indians in the Amazon. So what are they, invisible Indians in the Amazon? The feeling is that they are invisible. But they have painted their bodies in the colors of nature and they will walk so swiftly in the vegetation that they can be six yards away and you don’t see them. So there is an explanation that you don’t know the explanation for that and that it would be magic realism. And why is it prevalent in lives and literature of places like Latin America, our Africa, or sometimes among minorities in the United States even? Well, I think it’s because we don’t have any control of a lot of stuff. Sometimes we have an explanation, but we don’t have control. And that that feeling that you have that you need magical powers to control your reality is very prevalent in Latin America.
S10: So no wonder you find those elements in literature.
S1: You’ve written that you belong to the first generation of Latin American writers who grew up reading other Latin American writers.
S12: And I was wondering when I say that I grew up reading the other Latin American writers. It was the boom of Latin American literature with great names. Garcia Madoc is mighty. A lot of guys your circle so well. And also Octavio. You name them more. Yes, all of them. That was like a choir of multiple voices, all of them different, but telling the world who we wear as Latin Americans and telling us who we wear because we were so separated in different countries and cultures. And this choros gave us a sense of Latin America. This is who we are.
S1: And Pablo Neruda, the poet, is a character and in a really important presence in a long petal of the sea. And I wonder about his role in your literary development as well.
S12: This new book, A Long Battle of the Sea. First of all, the title comes from a quote by Knoedler. The quote is that Jela is a long battle of sea wine and snow. And if you look at it in the map, it looks like a long battle. This book would have never been written without it.
S11: You meant Neruda had lunch with him. And weren’t you a journalist? And didn’t he say stop being a journalist?
S10: She was very, very kind to me, I have to say, when I repeat the story, people think that he was a monster.
S12: But you have to think of the tone. He was this big. It wasn’t his big man who was in a poncho. And he invited me for dinner and he was living in an island in Islamabad, which is a a beach resort that in winter is empty. There’s nobody there. And so I had to drive all the way in winter training to see him because he wanted to see me. And we had lunch. He was very kind. He gave me a beautiful bottle of wine and white fish. And then I said, I’m all I have to do the interview because I have to go back before it gets dark. It’s rainy. And he said I would interview. So I came to interview you. Was it. I would never be interviewed by you. You are the worst journalist in this country. You put yourself in the middle of every story. You cannot be objective. And I am sure that if you don’t have a story, you’ll make it up. And so I left without the interview because he added at the end he said, well, why don’t you switch to literature where all these defects are virtues? I wrote my first novel. Eight years later. So I wasn’t thinking of all. But he was right. I was a lousy journalist and he was absolutely true. I made up everything.
S1: I was never part to, though.
S11: But obviously your work pays very close attention to the history and to the stories sometimes of people who are not written by the historians, the people behind the. So you’re a journalist in the sense of getting the facts of the moment correct. So you are using it in some ways in your in your literature.
S12: What I did learn a lot as a journalist, I learned to manage to handle language. What they only instrument you have is words. Letters. That’s it. With that, you have to create feelings to make to move people, to express ideas. Everything. Then how to just search. And the other thing that was really important is to listen, to observe and to listen and ask the questions that everybody else takes for granted. I mean, those questions. You get the stories.
S1: Isabella Hyundai, thank you so much for joining us. Your new book, A Long Pedal of the Sea, is very much available. I’m in the middle of it and enjoying it tremendously, so I recommend it to our listeners. Thanks so much. Thank you.
S12: Thank you, everybody.
S7: Let us go to cocktail chatter. John. When you are kicking back with a little Dickersons and with Mrs. Dickerson, you to be chattering about this week two things.
S6: Two performances. One is that on the 14th of May. There will be on YouTube a 1985 Prince and the Revolution concert re aired. That is supposed to be one of the great first of all, it just captures a perfect moment in time. Prince and the right like revolution represents the nineteen eighties interest, the costumes, the behavior, the whole thing. But it also contains what’s supposed to be an extraordinary 20 minute rendition of Purple Rain with a Prince guitar solo prince. Among his many skills was an extraordinary guitarist. So that’s on the 14th and then.
S5: Can I pause for one second? Also there, which is that this week, John, I end up YouTube being around and looking at old performing. You remember Morris Day and the time you’re No. Four from the movie Purple Rain. Oh, my God. Just look at their old performances of Jungle Love and the Bird. Oh, God. They could kick it. They were so great. I wonder what they’re doing now.
S6: And then my other is that Covenant House, an organization that I’m involved in, is having a fundraiser show streaming live on the 18th Monday. Kabera is part of it. Dolly Parton and Diane Keaton and Rachel Brosnahan. And lots and lots and lots more other people are all performing to raise money for kids overcoming homelessness. So Audra McDonald and I are the hosts, but the performances are really going to be great. So if you have time to tune into that on the 18th.
S5: That is great. Emily, what’s your chatter?
S3: One of my kids this week found a tone deafness test put out by a music lab at Harvard. And we will share the link. Also, if you just Google, I think, like Harvard. Tone deafness test, you can probably find it takes three minutes. Really fun, John. You will ace it. You need to put in headphones and be in a quiet place. But I really enjoyed this. Yes.
S7: And this is very it’s it’s the one which tells you how old you are. Different. Okay.
S3: That sounds good, too. Was that a tone deaf test?
S7: No, I miss it. It’s where you listen to tones and it’s certain you stop being able to hear tones at frequencies into your ears that 35 can hear this frequency at 45 at this frequency. And so you can basically know how old your ears are just by what you can hear.
S3: This is just about, I guess, basically how good you are at hearing pitches. And one thing I will say about it sort of sets up the idea that some people have perfect pitch and some people are tone deaf. And I don’t like those absolutes. I feel like it’s much more about a muscle that you can get better over time. And yeah, sure, some people have more natural aptitude than other people. But still, it made me long for the days when I did bar singing and would have done better at this test. But it was fun. And then I got to add on a little second time. Do you want to say something first though?
S5: Well, my son has perfect pitch and I find it. It’s like witchcraft to me. Yes, I find it absolutely so crazy. It is magic when somebody has perfect pitch.
S6: Yeah. Oh, I. I think it’s the closest thing we have to witchcraft on the planet. I like that skill. Price has a version of it too. And it’s a it’s. It really is spooky.
S3: All right. Well maybe I just haven’t been around perfect pitch enough to like have a deep magical appreciation of it. And the other thing I want to say is a book I have talked about on The Gap as a four, which I love, is now out for everyone to buy. It’s called Rodham. It’s by Curtis Sittenfeld, who’s been a guest on our show. It’s an imagined life for Hillary Clinton. What would have happened if she had not married Bill Clinton and had gone off to have her own interesting and political life? And I really just devoured it when I read it a couple months ago. So Rodham by Curtis Sittenfeld.
S7: It’s so good. It is also the foundation, the inspiration for our Slate Plus segment today. So those reversely Slate plus members, please continue. My chatter comes from something I saw when I was doing my newsletter, which I’m doing with Henry Blodget. Go to read DOT B.I slash plots to get that daily newsletter for me. Henry Blodget from Business Insider. And it was a an amazing piece of political theater created by a man named Richard Demn Second Florida, a white man named Richard Demps. Second Florida in response to the murder of a Marberry, the African-American man who was chased down and killed while jogging in Georgia. Dem sec, whose stickered, you know, young white guy. Took a shirt off, put a hat on backwards and ran through a largely white Florida neighborhood while carrying a flat screen TV. Just to show what would happen. And, of course, what happens is everyone waves at him and smiles at him and nobody calls the police on him. Nobody does anything. And this does prove anything. It’s just like a reminder of what what privilege is. And it’s really stunning to see somebody who’s just like, you know, I’m God for all anyone knows. He’s just stolen this TV and he’s running through their neighborhood. This is the neighborhood which had had a spate of robberies. In fact, it’s really grim. It’s a grim little video.
S3: I’m really glad you brought up that case, because at some we haven’t talked about it on the show. But it was an incredibly sobering event the last few weeks.
S7: Also, listeners, there’s some incredible chatter’s that you sent us. And I really appreciate you tweeting them to us at Slate Gap as please keep them coming. And at QOF Shaw, who is I know, have recognized that Twitter handle. So I think Shopko has given us Listener Chatter’s before sent the most amazing listener chatter, which is a story from The Guardian, which is an excerpt from a book called Humankind by Game. A Dutchman, I think, named Rutger Bregman, a new book that comes out this week. He discovered or rediscovered a long forgotten episode in which six teenage boys from Tonga were shipwrecked on an island on an uninhabited island and they had to survive for 15 months alone on this island. They were presumed dead and they were found these 50 months later by randomly, essentially by a passer by boat passing by. And it was a real life Lord of the Flies. It was literally the same circumstances of Lord of the Flies. And what Bregman discovered is that these boys treated each other gloriously like they treat each other incredibly well and they took care of each other. They organized work. They they quarreled. But when they quarrel, they gave themselves time outs to recover from the quarrel. One of the boys broke his leg and they nursed him back to health and covered his work for him. They built a fire and kept the fire burning for 15 months. They created a guitar out of coconuts and used that to entertain themselves. It’s so inspiring to please check that out on The Guardian.
S2: That is our show for today. If you enjoy the gap as please subscribe, you’ll get new episodes. The second we publish them were produced by Jocelin Frank. Our researchers, Bridget Dunlap. What a team. What a team. What a pair. Gabriel Roth is editorial director of Slate podcast. Jim Thomas is managing producer. Please follow us on Twitter at that Slate gab fest and tweet Chatto to us there for Emily Bazelon, John Dickerson and David Plotz. Thank you for listening. Hope you’re well and safe and doing OK.
S7: Hello, Slate plus. How are you? Really? OK. I didn’t really mean it. I didn’t mean it. I didn’t want to hear at all about that. I didn’t want to hear all that stuff, man. But that’s tough. That’s tough. I think you should be. Yeah. I think what you told your sister is right. So we want to talk about counterfactuals and history. And the inspiration for this is Emily’s Chatter Rodham, this wonderful novel by Curtis Sittenfeld that comes out this week. It’s a biography of Hillary Clinton. I guess an autobiography of Hillary Clinton, since it’s told from her perspective when she is not Hillary Clinton. She is Hillary Rodham. She never marries Bill Clinton. And what happens to her and what happens to the world when she doesn’t marry Bill Clinton? I’m not going to spoil any of it. But suffice it to say that the act of her not marrying Bill Clinton creates an entirely alternate universe than the one that we live in. That there are enormous consequences that change that changed the world. And it made me think about small events that had huge consequences and made me want and I particularly want to hear this from YouTube, because you both are students of history. Emily, particularly legal history. And John, presidential political history, small moments that had they turned out differently would have enormous consequences for our world. And I’ve thought of a couple of them, but I’m sure you guys have other ones. I go first.
S6: Yeah. You go first because I actually you always help me remember. Yeah. I actually have huge. I think of counterfactuals all the time and then I smother them in because there’s. Anyway, go ahead. You go.
S7: Okay. I’m trying not to think. And also I think I’m trying not to think ones that are super obvious like that. Lincoln doesn’t go to the theater. Yeah. Yeah. Or a Kennedy does. So. Trying to think of. Yeah. So I’m trying to think of things like that. So. All right, here’s one. The Nicholas is Tsar Nicholas and Alexandra, the last czar, had a haemophiliacs on one of the results of that was that the ALEXANDRU fell under the sway of Rasputin. And I think, I mean, Russia was in stable, unstable, and it was headed towards some kind of crack-up anyway. But her falling under the sway of Rasputin and her just becoming this kind of very him becoming a very difficult, contentious and problematic figure and then her becoming a very difficult, contentious, problematic figure, too. And it probably changed the course of what happened with the Russian Revolution that accelerated in and unfolded differently than it would have had that family been a more stable family. So that’s that’s an example. I don’t think you have a communist dictatorship that unfolds in the same way in the Soviet Union. I don’t think that the Soviet Union, if they don’t have a haemophiliacs son and and the kind of spiritual maelstrom that Alexander gets pulled into. So that’s an example. Here’s an example from. My own interest, which is there’s this small battle in the civil war that nobody talks about, which had it gone another way, I think would have had enormous consequences for the world. It’s the battle that takes place in this fort called Fort Jaroussky and Fort Stevens in northern Washington in 1864. There’s an attempted Confederate invasion of Washington, D.C. The Confederacy had a bit had lost the war at that point. It was the summer of 1864. They had lost the war, but there was this attempted invasion. And the purpose of the invasion was basically not to do anything except to cause Lincoln to lose re-election, to disgrace Lincoln, to capture Washington and to discredit Lincoln with the hope that Lincoln would then lose the election. McClellan would win the election. And McClellan wanted peace and would have settled. He would have settled the civil war with the Confederacy either intact or the Confederacy allowed to maintain certain privileges, presumably slavery, that it wasn’t going to be allowed to maintain it under Lincoln’s policy of of total victory. And there’s this battle that’s fought. You know, it’s a close thing. And the Washington repels the invaders. And to this this invasion by this Confederate General, Jubal Early is repelled. And there’s also this even secondary moment within it, which is that Abe Lincoln himself goes to the battle. It’s the only time in American history that a U.S. president has ever been under fire. Lincoln goes to the battle to see it and he’s standing on the parapets. And a surgeon who stent, who’s with him, get shot next to him in the shoulder. And by legend Oliver Wendell Holmes cruises a decamp, grabs him and says, Get down, you fool. To Lincoln so that Lincoln doesn’t get shot. But there’s a moment where, oh, you know, it’s Lincoln. Lincoln is shot and killed. Or if the this battle is lost, that maybe that election of 1864 is lost by Lincoln and the world changes. Those are two examples.
S9: I have a more recent one. I was trying to think about Supreme Court events that have had a real impact, that maybe I didn’t need to happen the way in which they did. And when Sandra Day O’Connor decided to retire, she did that because her husband had Alzheimer’s and she wanted to take care of him. And Samuel Alito joined the court when she left it. And that was like a really important move from a kind of moderate Republican appointee to someone who’s much further on the right. O’Connor then said afterward that she regretted having left. Her husband actually died fairly soon after she left the court. And there was this period of time in which she was remained vigorous and could have stayed on the court. And she sort of said that she was sorry that she had left too early. You can look at a number of decisions that came down in the interim. Now, whether she would have really wanted to stay on the court until she could have been replaced by Barack Obama, that seems much more debatable. She was a loyal Republican. And I’m sure part of her timing had to do with the fact that George W. Bush was in office. But that has made a real difference in American jurisprudence and in American life.
S7: Oh, my God. That’s such a good example. It’s a great example. Emily, the I mean, Scalia’s death is baby. Yeah. Like, what if Scalia leaves another?
S6: That was a really good one. That was my idea. I was. Well, so the potato. So you know what happens before Scalia dies on that Saturday, two hours before a Republican debate in South Carolina, is that Mitch McConnell moderated by one. John Dickerson is McConnell and Donald Trump are at odds. You know, Mitch McConnell basically says we’re not going to nominate somebody who is not a conservative for our party, by which he means Trump. And the Scalia death gives Trump this moment to be in perfect sync with with McConnell on an issue that both McConnell and more important, many, many Republican voters care a great deal about. And it’s not just that electing a Republican president will get you a seat. That’s, you know. OK. That would have been the case if you’d elected John Kasich. Except John Kasich said when somebody asked him on a Sunday, would you consider Merrick Garland, who by that time had become the president’s choice? He said, sure, I would consider him. Trump said precisely the opposite, which was not only did he immediately have an instinct to say that the Senate must block Garland, but he then put out a list at the prodding of Don McGann, his Federalist Society aide in the campaign, and then White House lawyer put out a list that was a kind of that it went further than any Republican president had gone before in terms of not just saying, I want somebody in the model of Thomas or Scalia, but I want these specific people. And those people sent a very specific kind of signal about the kind of person that he would name. Why did that matter? Because voters who were skeptical about Trump on every other issue knew that he would was making a promise to do what they wanted with respect to the court, which Mitch McConnell and a lot of others believe is actually what helped him win enough support among Republicans to win the election.
S7: Those are you guys that those are great examples, actually. Before we go, I have another Sandra Day O’Connor counterfactual, which is not nearly as good as yours. But isn’t it true that Rehnquist proposed.
S1: Yes. Yes. Married. Right. That’s very crazy thing. Yes. And when Reagan when her name surfaced and Reagan was considering nominating her, Rehnquist apparently was like, oh, yeah, my life. Like he was in love with her. Yeah, my old flame.
S6: Fandi, baby, can I offer one other counterfactual, Neblett? I’m terrible at these, but this one just occurred to me, which is Lyndon Johnson finds out through intelligence intercepts that Nixon his is working to delay the peace talks at the end of the Vietnam War in the hopes that if the peace talks are delayed by basically him offering the South Vietnamese a better deal, saying, wait, wait till I come into office and you’ll get a better deal. Johnson knew he was doing this and was basically convinced not to bust him out loud because it would show that he was tapping certain phones with intelligence that he didn’t want to be. But if that had come out, would that have, you know, changed the election and Humphrey wins and so forth and so on. And so that would be that would be one other little one I would offer.
S7: Nice if it was better than expected. Slate plus, we’ll talk to next week. Goodbye.