The “Breaking Up Facebook” Edition

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S1: This ad free podcast is part of your Slate plus membership.

S2: Enjoy.

S3: Hello and welcome to the Slate political guidepost for December 10th, 2020, the breaking up Facebook edition.

S4: I’m David Plotz City cast from Washington, D.C. I’m joined from New Orleans, where she is on a week long trip to discover the origins of jazz and blues by Emily Bazelon of the New York Times Magazine and Yale University Law School. Hello, Emily.

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S5: You’re going to put panic into the hearts of everyone who knows me and works for The New York Times. The idea that I would get such assignment. That’s not what I’m doing in New Orleans. But I really like that idea. I wish I was that person.

S2: As Alan Sings the Blues.

S4: And then from New York City, John Dickerson of CBS’s 60 Minutes. Hello, John.

S2: Hello, David. Hello, Emily. I feel like I’ve been talking to you guys.

S4: I know we’ve this is our this is like our fourth hour together in the last 36 hours. And there’s more to come. And we had the Cobbora we had our live show last night. We have there’s been a lot of singing our bodies electric yet. I have not yet sick of you. I’m not yet sick of you. I can’t seem to quit. You guys, I’m on today’s gabfest. Is this a coup? It may not be succeeding and it may be ridiculous, but is it actually an attempt to overthrow? What how American government works and what is protecting us are going to be joined by Tim Wu, scholar, who has a brilliant op ed in The New York Times today about what is protecting us from a dissolution and a collapse of the American system. Then Tim is also going to join us because he’s an antitrust expert par excellence to talk about whether Facebook should be broken up. The FTC and 46 state attorneys general say it should be. Are they right? And then we have an amazing topic. John Flansburgh, who is he is a significant chunk of they might be Giants, the wonderful band, has written us a question, a really good question in the form of a song. So we’re going hear the song and answer the question. Plus, of course, we will have cocktail chatter. We are joined by Tim Wu, a law professor at Columbia who has a really, really interesting piece in today’s New York Times. What really saved the Republic from Trump? And we’re going to talk about what really is saving the republic from Trump. Crossed fingers, fingers crossed. But I’ll read one paragraph. What really saved the republic from Mr. Trump with a different set of limits on the executive, an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state election officials. You might call these values are unwritten constitution, whatever you call them, they were the decisive factor. Tim, welcome to the Gabfest. It’s great to have you here. Pleasure. Yeah. I want to start actually with you, Emily, which is that we have it’s a kind of terrifying, freaky world. We’re going to get to the somewhat reassuring things that Tim has to say in a minute. But this week, 17 states have joined Texas in filing a suit to overturn the election results. It is going to be doomed, but it doesn’t mean that it’s not alarming that there are so many signs of weakness in the American system. But can you talk quickly about this lawsuit and why it is so concerning?

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S1: Yeah, I mean, this lawsuit is like a new level of crazy, which is saying something because we’ve had so many crazy lawsuits. But what’s so bananas about it is that Texas and now with all these other states is arguing for throwing out the results of other states elections based on no evidence of fraud, just based on the idea that Texas and these other states don’t like the mail in balloting rules that these other states passed. Never mind that a couple of the states that signed the briefs have similar rules, for example, allowing people to return their absentee ballots after Election Day so the states have control over how they pick their electors. And they had set up rules before the election. And for so many Republican attorneys general around the country to want to take part in this performance to show their loyalty to President Trump, it’s just really disturbing. It’s going to further undermine faith in the integrity of the election. This legal argument just is honestly ridiculous. And it’s just distressing to think that the pressure Trump has exerted to force Republicans to go along with his notion that this was not a free and fair election, that it’s bearing fruit in this way, even if it’s not a way that’s going to overturn the results. These public officials are you know, it’s it’s just really playing with their oath to the court to put the country first, I would argue.

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S4: So I want to turn now to Tim’s piece. So, Tim, I gave one paragraph about it, but can you quickly just make a summary of your argument about that? What are the protective forces that have saved us and what are the things that didn’t protect us that we thought were going to and maybe they haven’t saved us also. Maybe they haven’t saved us.

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S6: Yeah, that’s true. You know, if we there could be if we end up having a civil war in two weeks, I’ll have been proven wrong. But, you know, at the core of my argument is that the separation of powers system for restraining the president is a little overrated and that the real when push came to shove, it wasn’t, as Madison hoped, the Congress that constrained the executive, but it ended up being these kind of unwritten norms about how prosecutors, the military and election officials conduct themselves. So it’s sort of an unwritten constitution, I’m suggesting, or a sense of professional duty that really saved us this time. And, you know, just to say it really quick, I mean, the most obvious one to me is the fact that the prosecutors didn’t obey Trump’s orders, not orders, but his leanings, his encouragement that they criminally indict the Biden family or Biden in the lead up to the election, that they refused to do that, maintain their independence, or my mind was was pretty important to keeping the republic a democracy.

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S4: I mean. How much of this is is law, how much of this is the custom of a profession and how much of this is the individual behavior of particular officials like you? Also talk about Brad Raffensperger and and Brian Kemp in Georgia who have stood up against pressure to overturn the Georgia election.

S6: What’s striking to me is how little of this is law. There actually is nothing in the Constitution that says that a prosecutor has no duty to obey the president. In fact, the text, the Constitution might suggest the opposite. And so, you know, in another world, you could have seen Trump, you know, quietly order, let’s say, the U.S. attorney for Delaware, who he appointed so, you know, owes something to Trump, say, listen, I want you to file a criminal indictment of Hunter and Joe Biden for bank fraud and statutory rape. I want you to do that. If you don’t do it, you’re fired. And there’s nothing texturally that prevents the president from doing that. Similarly, the military, there’s nothing that prevents Trump from or a president from deploying active military to put down an insurrection. And in fact, he has the explicit authority to do so under the Insurrection Act. And so, you know, over the summer when there were protests across the country, there was nothing legal that stopped him. And so I think it was that sort of baked in. I mean, it’s what I’m calling the unwritten constitution, the sort of Bakhtin sense that you don’t do that, you know, that that’s just too dangerous. A president who can order prosecutors and military officials to do exactly what he wants for political reasons is a dictatorship. And I think our our norms saved us this time around.

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S2: I want to pick up on David’s use of the phrase custom of a profession, because it seems like these are ideas. They’re abstract, but in these two professions, the legal profession in the and because I’m kind of throwing judges in with the prosecutors, because some judges who are appointed by Trump have, it seems, kept faith with this custom of the profession, that that that norms are basically keeping customs based on abstract ideas and that the military and the legal profession kept those and that Congress, where they talk about these ideas and they talk about them at funerals and they talk about them, people retire and the durability of those ideas that they basically folded under the competition between abstract ideas and political success or political gain. Is that does that seem a frame for the way to think about this?

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S6: Yeah, I think that’s absolutely right. You know, I think we should try and understand what happened with Congress. Congress was intended by the framers to be the major check on a potential monarch or a tyrant. You know, they were very aware, you know, the framers, when they set this up, they were very concerned about the fate of republics. They had the English republic, which everybody forgets about, which became a dictatorship under Cromwell, and they had the Roman Republic, which became a dictatorship under under Caesar. So they had these these, you know, clear examples in front of them. They wanted to stop it. And their idea was that Congress would be powerful enough to stop it, but it didn’t happen. And, you know, it’s interesting. That’s why I think we should spend a lot of time thinking about this. But to my mind, the key is this virus of party loyalty and this idea that your duty to the party is higher than your duty to the Constitution. And like you said, you know, they never say that a Congress people still will call the Senate the world’s greatest deliberative body, although I think at this point my college debating team had better debates. At least people showed up and they put party loyalty. I mean, even impeachment, it wasn’t it was just another party line vote everyone knew was going to fail without a 60 votes. It was it’s all become predetermined. And I guess the punishments for going against your own party leader are stronger for members of Congress than they are for judges, prosecutors and generals. And maybe that has something to do with it.

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S1: I mean, that seems key to me, right, that Congress is not insulated from the base. In fact, Congress has if you’re a Republican in Congress, you have all kinds of electoral incentives to put party loyalty first or to put really loyalty to President Trump first, because that’s what’s likely to make you popular with your constituents and win your next election. Whereas prosecutors, judges, election officials, they’re insulated. You know, they’re often career professionals. They have different kinds of standards for getting fired, basically. And that allows them to take into account these other values. Their professional norms are strong. But if you took away the kind of job protections they had and you made them subject to election, you know, like if all the federal judges were elected, would. We have had the same kind of standing up to Trump’s ridiculous election suits. I don’t know.

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S6: It’s important that we haven’t hopefully aren’t having four more years of this because Trump was trying to erode those norms and change them. You know, those people, you’re right, are sort of insulated now, but they can be fired. So Trump would say, you know, indict Hunter Biden or you’re fired. You don’t don’t do it. You’re fired. And until someone comes along who gets the job and those are pretty nice jobs for a lot of people. So you could change the norms. And I think he was trying to change the norms. Even in my own little backyard. The FCC know a one of the commissioners is sort of far right wing guy dared suggest that the Internet was protected by the First Amendment and he was summarily, like, not fired but not reappointed. So, you know, Trump was trying hard to change those norms and get through that insulation. But I agree with you, there’s something now at least that the politicians feel it more directly.

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S4: I mean, it is the most heroic figure in this. All of this for me is this Georgia secretary of state who I you know, I don’t think he’s you know, his political beliefs, his political views are certainly not mine. And I don’t think he’s done anything that’s amazing. But given the amount of pressure on him and the amount of pressure in the system against him, here’s an individual who really, really stood up and took an enormous amount of of personal abuse and threats to his life. But you can’t you can hold it against his party and did the party, but you can’t you can’t plan you can’t rely on a system where people accept martyrdom as the price of doing their job. So how how are we going to make that what what he did the norm rather than what everyone else wants to do, the norm for elected officials, for the people who are. For the people who are political figures, I mean, he actually is elected. No, no, I’m saying yeah, I’m saying we’re talking about the professional people, the judges, the military lawyers who behave differently because their incentives are different. But can you can you can you create something which is slightly more protective for elected officials that allow them to behave honorably in the way that this guy has behaved?

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S6: Yeah, I think it’s hard to notice your instinct goes immediately to that sort of checks and balances. How do we structure this better? And I hear I hear you. I think hopefully from this experience, hopefully, you know, the state elections officials feel kind of vindicated. You know, they sort of held en masse as a team and established hopefully some norms of professionalism for themselves. But I agree, some of them are elected and I agree he’s a hero. I mean, he is a relatively minor elected official looking to have a political future. And he stood solid, you know, other than taking elections away from the states, having election officials be more like federal judges, it’s not 100 percent clear how you would do this. I mean, when tested, they held. And I think one of the best things we could hope for is that maybe this helps establish a norm, which, you know, has been the norm, that this is a professional job and people do it in a professional way. But I agree. I think it’s the most vulnerable. Speaking of heroes, I want to give credit to the military, too. I was you know, we sort of take it for granted that the the US military stays out of domestic politics, but that is not the norm for this continent now. No North and South America, nor in many European countries. You know, and that is, to my mind, the most dangerous of these possibilities is the military getting interested in politics, deciding it kind of likes being involved and never going and getting out of it. And I thought it was impressive that General Myle issued that apology like in a video, you know, the guy’s pretty senior guy and he says, you know, I shouldn’t have done that and I was in the wrong place, wrong time against his own commander in chief. So, yeah, I think they I actually think that was a big moment in U.S. military history. You know, it wasn’t exactly storming the beaches of Normandy, but it was an extraordinary, extraordinary admission and confirming of a norm of political neutrality.

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S2: It’s a really great point. There was a restraint there to withhold, withhold grabbing power that was essentially freely being offered to them and more broadly than just the behavior of local elected officials and how you grow more of that beyond the question of of dealing with elections, isn’t it the isn’t what David’s asking was how to elevate the power of ideas, which is to say the power of the Constitution over the political incentives. And then I guess launching from that time I wanted to ask you about in your attention merchant frame and world view, whether you think the the continued shredding and of our of the way we have public conversation exacerbates this problem, exacerbates is one of the structural incentives that makes it so easy for lawmakers to choose party over over the Constitution.

S6: Yeah, I mean, I think the answer is yes. Obviously, that might be appealing to micro arguments, micro audiences, which is a trend led first by advertisers, you know, find out niche markets for people who like microphones for podcasts or something.

S7: And then you turn that into let’s find the niche argument. Who believes that, you know, prosecutors should be free to indict the political opponents of the president and there is a market for that. You know, there’s a lot of people jumping up and down on my Twitter feed saying that I’ve identified every aspect of the deep state. And these are why all these firewalls need to be eliminated immediately so that the the ruler can have his say.

S6: I guess one thing, just reflecting on the structure for a second, it is crazy that the secretary of state should be an elected position.

S1: In the States, you mean not the national secretary of state?

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S7: Yes, sorry, I mean that it is crazy that the official in charge of elections should be an elected official as opposed to an appointed official, ideally one with a long tenure or something.

S6: I mean, I guess it comes from some older vision of democracy as being a check, but it seems very dangerous.

S7: And, you know, we were lucky that people held, but I could see that is the norm, most in danger of eroding.

S1: But aren’t there a few states that do it differently, like Wisconsin has that five member commission that’s appointed by the governor? I’m not actually sure that turned out to be better, but I wonder if the fact that the secretary of state is elected is saved by the fact that they’re lower down on the ballot. They’re like, you know, nobody really knows who those people are most of the time. It’s not like a super sexy, glamorous position. They will now leap into the governorship from usually. And maybe that saves it and makes it possible to have those people elected without making it too threatening.

S2: But don’t you think they will now? They’ll care a great deal about those races?

S1: Yes, it’s true.

S4: We could see a lot of money coming into those races like, you know, they have in to state supreme court another state tradition that happened in 2004 with the Ohio secretary of state, Ken Blackwell, who was a huge deal, huge deal that there was this quite conservative secretary of state in Ohio in that election and and how that presidential election played out.

S1: So I think we’ve heard this before right in the Bush versus Gore of Florida story also. Yeah. What’s your name? Very controversial. Exactly.

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S4: But Kathleen. Kathleen, I was going to say. Katherine Katherine. Katherine Harris. Katherine Harris. Nice. OK, well, that’s my lane. OK, let’s leave it there. We’re going to stay with you, Tim. Sure. I’ll be right back in a second. Actually, we’re not going anywhere. But I want to do mention right back. I do want to mention that Slate plus members get bonus segments on the gabfest. Another Slate podcast and our Slate bonus Slate plus bonus segment this week is we’re imagining what it would be like to take a road trip and what our ideal post pandemic road trip would be like. Really fun listener question that we will dive into. The FTC and 46 attorneys general, state attorneys general filed suit to break up Facebook, accusing the social media giant of operating illegally in ways that Tim and Emily will describe in a second, but essentially by buying its competitors, Instagram and WhatsApp and consolidating them and reducing competition. There was also recently a suit filed by the Department of Justice against Google for monopolistic practices around search and advertising. So Tim Wu is staying with us. Tim also reminds us he wanted to remind us and I will happily take the credit that his own opinion writing career began at Slate under the tutelage of Emily Bazelon and Dahlia Lithwick. So it’s nice for us to have had a small part in helping Tim become the giant, the monopolistic giant of a human right. So either Tim or Emily. Tim, what what are the basic legal claims that are being made against Facebook here and and where do they come from and and how do they get resolved?

S8: The claim by the federal government and the states is that basically Facebook is an illegally maintained monopoly. That is to say, they don’t argue that they got their monopoly illegally. They think they beat MySpace. Some other company is fair and square, but they believe that in the 2010s, facing challenges to their rule, essentially, that Facebook engaged in a number of illegal maneuvers which kept it on top when it might have otherwise have fallen prey to competition. And the basic conduct that they’re focused on is a string of acquisitions which they allege were intentionally done to neutralize a competition. The states put this very vividly. They say they sort of scan the horizon. They saw a bunch of companies who are threatening and they decide to either buy them or bury them. The big buys where Instagram and WhatsApp. And there’s a whole bunch of companies you haven’t heard of that they buried. That’s their argument that it is not a legitimate monopoly, that it’s illegally maintained.

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S4: The federal government, the Obama Justice Department approved the WhatsApp purchase and the Instagram purchase knowing that Facebook was the company that was buying them and that these were two growing companies. So is that dispositive for Facebook?

S8: That’s a common misunderstanding. The Federal Trade Commission didn’t approve the mergers. It took no action on the mergers. And, you know, that may sound like a detail, but I think it’s an important one. You know, like, for example, when they didn’t prosecute Jeffrey Epstein in 20 of 2004 or something, it didn’t mean that they approved of what he had done. You know, it just means they didn’t take action. And, you know, Emily is an expert on on criminal law enforcement practice. But generally speaking, when you don’t take action, it doesn’t mean you’ve approved something and that matters. And so legally, you know, in the court of public opinion, maybe it matters. But legally, I know there’s no sort of binding precedential effect of not having prosecuted them earlier. And I had reasons for not acting on those mergers at the time when when Facebook was buying Instagram, WhatsApp, everyone thought Google Plus was going to be a big deal.

S5: Do you remember Google Plus for that? Be out there somewhere in the ether.

S8: So the idea was, you know, Facebook’s in trouble. Google Plus is going to eat their lunch. This is crazy. We got to give them a fighting chance or whatever. So the facts were not well understood at the time, but it became clear in retrospect that this was more of like a cereal acquisition campaign. And I think that’s what they’re alleging. Google minus.

S1: So, I mean, Tim, you and lots of other people and I have been very sympathetic to this argument, have said for a long time that Facebook should have to divest itself of WhatsApp and Instagram, that basically the dominance of Facebook, Khoi, the website Facebook is just multiple times greater when you add on these other services, which are more popular with young people, which are popular abroad and have much more growth potential. And yet we haven’t had the government coming in and antitrust enforcement action and break up a company since they broke up AT&T and had them sell off the Baby Bells, which I think was like in the 1980s. Since then, we’ve had this standard take hold in the law about antitrust enforcement that the only kind of harm that really counts is harm to consumers about price. So it’s only when anti-competitive, monopolistic behavior makes things more expensive for consumers that the government can step in. Now, that’s not what the antitrust laws say, like that’s written nowhere in the Sherman Act, but that’s how courts have interpreted that law since the 80s. How big a problem is that here? That is that standard going to really trip up the government that’s trying to argue that, you know, the market would be more competitive in this kind of hypothetical universe in which Facebook does not own WhatsApp and Instagram.

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S8: You know, the times they are changing, the government is depending on older types of theories, actually more similar to Standard Oil than any sort of very precise idea that, hey, these two milk producers merged and the price of milk went up by 50 cents or something. They’re relying on a case like Standard Oil, but also Microsoft. And I don’t get too much into the weeds, but the basic idea is that it is anti-competitive to kill your competitors. And and that’s basically what Microsoft said. If you remember a company called Netscape ages ago when they polished off Netscape, they’re like, you can’t just kill these guys and say that’s, you know, that’s fine. You know, you can beat them in competition, but eliminating them is something different. So it’s on that kind of theory that the government is resting at. But I you know, there’s some challenges for antitrust laws, dependence on consumer welfare. They do have some arguments. They can say, well, because Facebook insulate themselves from the monopoly that has kept advertising prices high for digital ads, because there’s really two big players in the market. And for this kind of advertising, sort of Facebook, social, personal, social networking, there’s just Facebook. And so they’ve been able to get away with much higher prices. So there is a price hook if you really need one.

S2: Can I ask a question about the weaponry that the government is alleging that Facebook used, which is to say that it’s powerful DataCash and that one of the examples that is used in in some of the reading I did was when Facebook denied Vine from accessing Facebook friend lists and that kind of thing, which which which choked off vines, the video services growth. So I guess the question is, why can’t Facebook hold on to its carefully gathered user data? Why is a company why is that bad for a company to do that?

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S8: Yeah, I think that’s a a harder part of the case for the government for precisely the reason you said. But the idea is that once you become a monopoly and almost an essential monopoly, your duties become different than a normal company. You know, I guess your local website has no particular duties, but once you become the central platform and you’re sort of picking and choosing who you’re going to deal with and then discriminating against those who are competing with you or you find competitively threatening that that’s that’s a problem. But it is you know, there is a counter argument said, you know, their data. Why not let them do what they want? And I think that is a kind of a core dispute in the law, frankly.

S4: Two questions here. Tim, what do you think? We’re going to get to a point where Google, Amazon and Facebook in particular will be treated like public utilities, where they because they are so dominant, they have to act in certain ways that are that they can be regulated, like utilities are regulated and where they haven’t been. That’s the first question. The second question is really a. About maybe the trial strategy here, which is that I worked at Microsoft back when Microsoft was being sued by the federal government and Microsoft, I think nominally basically won that case or didn’t lose that case. They weren’t broken up, but it was so taxin it caused so much friction on Microsoft that it’s clear that Microsoft as a company was deeply weakened and it did allow competitors time to catch up and do things and gain on them, not Microsoft still around today. It’s still tremendously powerful and rich company, but it’s not as dominant as it was. Do you think the trial strategy is to slow Facebook down and cause them distress such that other people can catch up? Or is it really to break it up?

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S8: Those are big questions. So, number one, the public utility question, that is a matter for Congress. There are rumblings of such an approach.

S9: I think the most obvious target for such an approach is Amazon, not the other companies, because a public utility, when you think about it, is a company upon which a lot of other companies depend on me. And, you know, you can think of electricity or something like that or the phone network. I think the first instinct is, is Amazon, maybe Apple with their app store because, you know, the Amazon marketplace has become something that so many businesses depend upon, that you sort of feel like maybe they should have some duties to be fair and non-discriminatory and how they operate that marketplace. It’s just so essential. And, you know, same maybe for Apple’s App Store and Google search. So that’s where you would see a public utility law if one showed up. But that is legislative, not to be too technical, but that’s a law that Congress have to pass and figure out some category, you know, like electric utility that that made sense for them. The second question is a very deep question and I think is less a matter of trial strategy and more a matter of almost political theory as between the relationship of the state and its greatest monopolies. I think that the antitrust law, in my thinking, is kind of a proxy for the limit, the public limits or public checks on the concentrated power of a monopoly. So by bringing the bringing of an antitrust action has, as you said, with Microsoft, its own significance. You know, that was a statement that in some ways, listen, you cannot do anything you want. You’re going to reach some line. And they Microsoft lost in litigation. They did get broken up, but they lost the litigation. And as you said, it most importantly prevented them from doing what they had been doing to that point, which is they would take over a platform and make sure the Microsoft Stuff products won and everybody else lost. And by that point, they controlled the browser. So there was a different alternative future where they made sure that Bing won and their version of whatever their mobile operating system, one won and everything.

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S8: You know, once I had a chance to corner Bill Gates at a party and I think it’s going to be a good and posing as a historian, you know, gently led him to the question of this of this issue of like what was the effect and. You know, he kind of got thoughtful for a while and he said, you know, it did take me down a couple pegs. You know, I had a lot of things go go right for me in my life. And I’d won a lot of things. And that was like first time, you know, I really, really lost something. And so that and he said, you know, it made me go to philanthropy about seven years earlier than I’d planned. And he said, but it might have been good for us and for me because it kind of reoriented how we did business. So I think there’s no getting obsessed with one in loss in a very narrow sense, I think is is too myopic. Dovetails with my my piece about norms and ethics. I mean, you’re trying to send a message, which is that competition is not a no holds barred, that if you do some things, you will go too far and the federal government will come and challenge you. And I think that’s the most important things about these cases against Google and particularly Facebook, which is it? Killing your competitors is not a business model. Beating them is a business model. But killing them, poisoning them, usurping them should not be a business model. And that’s like the core message of the Sherman Act.

S4: Tim Wu is a professor of law at Columbia University. Tim, that was fantastic having you for those two segments on such short notice. Come back any time.

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S8: I may take you up on that. This was fun.

S4: And now, dear listeners, we have such a treat. They might be Giants is one of the most intelligent and fun bands in the world, and John Flansburgh is is the creator of that band and he they’ve guested on our show. They were on the Conundrum show a couple of years ago. And John Flansburgh has written us a song which we now have to answer because there’s the question is.

S10: After four years alone, making.

S11: All the specific norms will be reassessed. He listed as legally binding guidance to future presidents.

S12: You know, I’m holding my lighter up in the air. That was awesome.

S4: So there are two interpretations of this question. One question, one interpretation is, are there any norms that shouldn’t have been norms to begin with so that now that President Trump has dispensed with them, we can agree that they were stupid? And then there are others which are there any norms which have been treated as norms but actually need the force of law the more the force of be more than just more than just agreement. As we talked about in our segment with Tim Wu, just the agreement to behave is maybe not enough sometimes. So anyone want to start? I mean, I have I have a bunch in both categories.

S1: Here’s one that is kind of small, but I think telling here is a norm that President Trump broke that I think we should keep broken. We’ve in the past had rather dignified announcements of Supreme Court appointments. I’m not really recommending a continuing of the norm of the super spreader event on the White House lawn for Amy Barret’s party announcement. But when President Trump announced Justice Gorsuch his nomination and I think Cavnar, he did it on primetime television and he did it with like celebrity and pomp and circumstance and like lots of attention and a little razzmatazz. And I think it’s great. I think people who don’t pay any attention. The Supreme Court got some sense of Justice Gorsuch that night, and it just brought the whole the court to the fore of the nation’s consciousness in this prime time kind of way. And I think, why not? It’s a little, you know, crass, but like, whatever.

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S4: Great. Worth it. All right, John. So pulls out a legal pad.

S5: John. Yeah, wrong, I think.

S4: No, no. He just pulled out a legal pad, which made me think we’re in for we’re in for a bumpy ride or longer.

S2: No, no, no, no, no. Well, first of all, I really admire that you went at, like, what norms that he has shredded and what the way I think about this is it’s confetti after the parade and we have to tape the confetti back together. That’s like the norm. Shredding is so vast and also the pieces are so small. This is a real task. And I love that you started with things that are gone that maybe should stay gone, because that’s something I wrestled with in the book and it was really hard to find ones. There may be some others. I would interject just quickly, it’s the excessive deference to military generals. Trump has not shown that at all. And I think you see a debate about that with Joe Biden’s decision to nominate Lloyd Austin.

S4: That’s a great example, John. Great example.

S2: Yeah, thank you. So we can play with that. But just on your point to Emily, haven’t we discussed, though, that the president’s elevating his role as the Supreme Court picker? This is a basically do we deal with the world we want or the world we have that turning the presidency basically into a job where where where you just pick judges has turned it into a job where basically his allies will let him do anything as long as he picks the right kind of judges. And that that that elevating that job, that judge picking. Part of the role which putting it on television does further warps the view of the presidency and makes it so much about the judge that the people basically don’t look at the end and the other things the president should be able to do.

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S1: Yeah, I mean, it’s obviously taking Trump’s affinity for television and, you know, The Apprentice and putting it in the service of elevating the role and importance of Supreme Court justices. Right. You know, I was thinking about it as someone who watches the court for a long time and is constantly frustrated that the density and opacity and just complicated nature of its rulings often turns people off and makes it all seem mysterious. And so I liked how earthbound and, you know, primetime TV that was. But that’s a good point.

S4: All right. Actually, let me just quickly jump in with my one. Normed to shredded Norm to keep shredded, which is in the same vein. And then let’s get to the ones that should be more regulated. Mine, because mine was sort of the flip side of yours, Emily, which is that I actually think Trump is so bad at doing most of the head of state things, the traditional head of state, things like national morning, like like being a dignified presence at a at a at an event, at an international event that maybe we should have a head of state. We should have a person who is like more official, dignified person rather than expect the president to do this. And like instead, John, you’ve talked about this a million times, but instead have the president do the job of being president and have it be a slightly less public role. Instead, have more like a queen figure to be ceremonial.

S5: You lose no opportunity to long for royalty. Exactly. No opportunity. You are not watching enough of the crowd because that is a mess. I am sorry. Having paid zero attention to the royal family for my entire life. Now I am watching one season of the Crown because it’s about Diana. The only person I know exists in the royal family and it is bad.

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S2: OK, but I think just to interject quickly before you move on, I think and we can examine this some other time, because I think Joe Biden is trying to do this. But, you know, there’s a model of CEO where you have a CEO who’s a micromanager and then you have the CEO who is and who is an orchestra conductor and who basically sets up an organization that works like you’re saying, David, which is he empowers people and gives them such a free range that that they effectively become that his role is allowed to benefit from the ceremonial aspects of it. And he can use that in diplomacy or sorry, in politics as currency. But he’s not so down in the weeds. And there might be a way to do that organizationally without having to do it governmentally.

S4: All right. Let’s talk about things that should be codified, John.

S2: Oh, I mean, the list goes on and on taxes. Let’s just say your tax returns can run for president till you’re at least your tax returns done.

S5: One line statute.

S2: Yeah, build like a stronger wall between Justice Department and the presidency.

S1: So do you want the independent counsel statute back? What do you want?

S2: I don’t know. You’re going to tell me what I was, what I really, really want. I don’t know. But I but I mean, we’ve seen, you know, we’ve.

S4: Well, I’ll stop there.

S1: Emily, a couple of years from you, I think stronger disclosure laws. I mean, I would really like stronger campaign finance laws. And I think they’re actually linked, although that’s not an arm that Trump broke. But I think knowing where our money is, the money that is influencing politics comes from is really crucial in that we’ve really weakened all of those protections.

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S4: David, lightning round, OK, lightning round, not just the tax thing. I actually think you have to put your finances in a blind trust controlled by an independent figure because too much room to screw around with that, appointing temporary cabinet level officials for an indefinite period. That’s appalling. We can see that the regularly the cat to trump cabinet officials appointed in normal order are generally much less horrible than the ersatz toadies that we ended up with running things like DHS because they had to answer to the Senate and the Senate took it takes its job seriously, even if it’s controlled by the the party in power.

S2: I saw ersatz toady’s when they opened for the. They might be giants, by the way.

S1: Right. Well, you’re also talking about the norm of advise and consent, the power of the Senate. Right. Which we are seeing a shift in real time as Republican senators threaten to potentially not approve basic Biden cabinet appointees. And I think we should have some kind of rule, I guess, that maintains a distinction between the appointees of the president and the judicial branch. Right. The Senate has the power to advise and consent for both of them. But if you don’t let the president have his appointees in his own branch, unless there is like a clear conflict of interest or some ethical violation, some, you know, I don’t know, criminal indictment if you don’t let him have those people or her. Then you can’t do the job. That’s not the same as confirming a judge for a lifetime.

S4: Yeah, that’s true. Although I guess what I’m talking about is that which is a. I would not want a President Biden or any future president, Republican or Democrat, to do what Trump has done, which is to put in a whole bunch of officials who never have to go through a public accounting process. I mean, we have all these people who are now running the Defense Department, running DHS, who are we don’t know anything about them insofar as they have a public record. It’s terrible. And the idea that they can just sit and serve and serve and serve, you know, the 180 day terms is bad.

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S1: That shouldn’t be allowed. Think you’re talking about the flip side. This is like both sides of this problem, right? I mean, in Trump’s case, the Senate, he controls the Senate. So it says something about the low quality of his appointees that he didn’t want to even put them up for confirmation.

S4: All right. A couple others, John.

S2: Well, can I make an adjacent point, which I think is important that I’ve been wrestling with, which is there are obviously these things we’re talking about, which are basically ways to cut, way to lock in things that were done before by agreement. So that’s crucial and necessary. So but there is this other thing which I am wrestling with, which is we also have to reassert the the other norm that you can’t ever lock in with laws, which is that basically when we pick these people to lead to be president, they have to have the two aspects of character, empathy and self-control to think about the future consequences of events and not just be day trading presidents. And that my concern is, A, how you do that, basically how as voters we do that and that whether focusing so much on the law is you have to put in place to codify these norms, take some of your attention away from that other part which you can never legislate out of existence, which is the total lack, the requirement, I should say, for character, because that’s so important in the job. And there’s no way you can legislate in a way that solves for a deficiency of character. Right.

S4: I have a couple quick other ones. There needs to be more clarity about the law, about when members of the administration have to testify and have to produce documents.

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S1: Yes. Congress’s power of subpoena.

S4: Yeah. More importantly, documents. Courts cannot continue to allow this just to run out the clock presidents to run out the clock or and to refuse to present public evidence to the public who has paid for that, all that material to be gathered, all that work to be done. And Congress should have extremely, extremely broad powers and the courts should respect it and enforce that. And even if that means and I think it would mean that a Republican Senate will be calling Biden officials to Capitol Hill all the time to testify and to to break them for some tiny misdeed and some program. But it’s much better to have that than the alternative where we never get a public accounting.

S1: And then and I also think we could figure out a norm in the middle, like if the courts were willing to fast track these cases, that would do a lot.

S4: Yeah. And then one more, which is I guess it goes to your original transparency. One of you guys mentioned is, is this not revealing who the president and his aides met with is really also very bad like that? That I understand for national security reasons, you can’t say, oh, I had a meeting with the Israeli ambassador and the Saudi ambassador privately that I can understand. You don’t do, but the kind of level of domestic chicanery that goes on when you know that administration officials are meeting with this or that lobbying this or that CEO with no accountability. And that’s that’s bad. That shouldn’t be allowed.

S1: I have two more. It should be clear that obstruction of justice applies to the president in a way that doesn’t require a piece of smoking gun evidence that, you know, is impossible to come by. We had a lot of ambiguity about that. With regard to President Trump and the pardon power, I think it should be clear that the president can’t pardon himself. That would be a good rule. And I also someone on Twitter suggested that if you pardon yourself or a member of your family, you may never run for president again. And I also like to that idea is that would that be justiciable?

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S2: I mean, could you put that law in place?

S1: I don’t know. I mean, I guess the Congress could pass it.

S4: I mean, all these things are doing.

S1: You’re right. It could be seen as interfering. Yeah, but I mean, two terms for the president. I guess that was a constitutional amendment.

S4: Great song question, John Flansburgh, yes, that was wonderful. Let’s go to cocktail chatter. John, when you’re having a glass of Bordeaux, what will you be chatting about this week?

S2: My general comes to us from Gabfests and Steve Colbert. It is about an eight mile long canvas that was found in the Amazon, a canvas of Ice Age drawings. So when the hell was the Ice Age? What it was these these drawings were 12000 years ago and basically so there of mastodons, giant sloths. And they were they were painted in ochre. And what’s cool is that basically the Amazon then was nothing like the Amazon today. It was it was much more of a kind of like the scrub brush and it was a savanna, basically. And rising temperatures completely transformed the Amazon. So this is not just of an ice age. And it’s just it’s like another planet. Basically, I loved it because I love the idea that there are out there. We’ve talked about this before. There are out on the planet, in the planet, hidden gems of like this, of a totally lost time that are just sitting there waiting to be discovered. I’m so glad you brought this up. I loved those pictures.

S4: Yeah. And actually, I Googled that park that they’re in there in the national park in Columbia and the photos of the park, just the nonvote non image. It’s just a stunning place. My God, it’s beautiful. So it sounds like it sounds like a destination trip. My chatter is about the new Armando Iannucci movie, which is streaming on Amazon, which is David Copperfield. It’s an adaptation, a film adaptation of David Copperfield, one of the most beloved Charles Dickens books, one of my beloved childhood books. It stars Dev Patel as David and Hugh Laurie than it Tilda Swinton, Ben Whishaw. In some ways, it’s very like little women. If you saw the movie Little Women and that it’s about it’s a fundamentally it’s about the creation of an author. It’s about the and the creation of a book and the creation of a book about the author and the porousness between fiction and one’s own life when you’re a novelist. But compared to little women, it’s like quite acrid and not that it’s not nearly as beautiful and fun and and and sentimental, but by Armando Iannucci standards, it is it’s quite sentimental. By Armin Newquay standards, it’s like a cat photo. It is much less. It’s much, much less.

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S5: People aren’t ripping each other to shreds every time they open their mouth.

S4: Yeah, it’s much bigger hearted than energy. And it’s it’s a good it’s a good evening spent especially if you like the book. What are going to be chattering about Emily Bazelon?

S1: I had a trip down memory lane this week because I was reading a story in Bloomberg BusinessWeek by Esmé Després. I hope I’m saying her name correctly called How Mandela Lost Moms. And it was about the Mandela pump in style breast pump and how it’s basically like lost market share to new companies coming up with, like, smaller, cuter little breast pumps you can even, like, wear while they’re pumping. I actually had to leave the story and go Google these other companies to go look at this idea because I couldn’t imagine it. So I spent a lot of time with the a breast pump when my children were babies. And it saved me. I mean, it allowed me to work and continue to feed them breast milk for quite a while, which I wanted to do. But it is this like weird sort of I mean, totally uncomfortable, like kind of awful thing where you’re being milked like a cow and the notion that there could be better products coming along. I felt some pang of nostalgia for Mandela, which is a Swiss company, and, you know, gotten this market early and really did a great job getting its product to women. But the idea that it has nice, sleek competitors with names like Willow, Elvie and Spectra and of course, now there’s an app where you can track how much milk you’re producing, et cetera. I’m sure. Anyway, it all made me realize that my children were grown up. And I want to know from much newer moms than me whether these new cute breast pumps really work.

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S4: I love that phrase pump in style. I remember we had a model pump. ANTHEIL Listeners, you’ve given us excellent, excellent chatter’s you tweet them to us at at Slate Gabfest. In this case, someone tweeted D.M. to me directly. Charlotte Robson did me directly, an Architectural Digest article. And it’s a great article about how earlier pandemics changed home design. And it pointed out that things like white tile in kitchens is something that came out, that hospitals began to use white tile because you could you could see things on it. You could see the dirt, you could see the stain. You could see the blood was easy to notice the kind of grossness and that was made it easier to clean. And that moved from hospitals into kitchens. The powder room, the ground floor bathroom was something that came up. Because people had so many delivery people traipsing into their houses to deliver them coal and ice, and there was concern about whatever germs these people were carrying because they were going from house to house to house. And so the development of a downstairs bathroom where someone could clean up a delivery person could clean up when they visited you. Is is another example. So great story in Architectural Digest. Before we go to credits, are you still looking for the perfect holiday gift? You probably are. Maybe go to the slate shop. Everything is 30 percent off at this late shop, you can get a Slate logo sweatshirt for just 34 dollars, visit shop, not slate dotcom with discounts automatically applied a checkout. That’s our show for today, The Gap that’s just produced by Jocelyn Frank, a researcher is Bridget Dunlap. Man, you guys have been working hard. My God, you guys been working hard the last few days. Thank you so much. It’s ridiculous. Gabriel Roth, editorial director of Slate Audio. June Thomas is managing producer and Alicia Montgomery is executive producer of Slate podcasts for Emily Bazelon. John Dickerson, I’m David Plotz.

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S3: Tweet Chatur to us at Slate Gabfest. We will talk to you next week.

S4: Hello, Slate, plus, how are you? We have a question, a listener question for us.

S13: Hello, this is Daniela Koontz. I’m an artist in Houston, Texas. We’ve all been cooped up for so long that the idea of a road trip seems like a wonderful thing. So my question is, what are the ingredients for a perfect road trip? Who is the ideal passenger? What kind of car would be perfect and what’s on the playlist? Thank you.

S4: Excellent question. Emily, want want to give a first start at some of that?

S1: I want to go on a road trip with my kids and my husband. But, you know, it would be really fun, would be like to caravan also with really good friends who are in a separate car. Enough have to spend the entire day with them. But you could stop along the way and do things with them. I like that idea. I have to think, though, about the car for a minute since I don’t really know anything about cars. I mean, you basically would want like a minivan at least, right? If not, I’ve never stayed in an RV. I kind of want to at some point travel go around the country and an RV, but I have to actually, like, find out what that would be like.

S4: I thought about that question. I was like, oh, an RV would be great. And then I was like, I don’t want to drive an RV. It’s not very pleasant to drive an RV. So I wouldn’t want to have to be the driver in that.

S1: Yeah. I mean, I also love campgrounds, so I wouldn’t want to miss out, like pitching a tent and staying in campgrounds a bunch. So maybe forget the RV and just go with the minivan.

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S2: Yeah, I think it’s so depends on what kind of a let’s imagine you couldn’t go with your wife and kids, which are your spouse and kids or girlfriend kids. That obligatory ads are dispensed with because because then that does bring some allure of the RV. But because if you if you could if you had to go with one other person, that’d be interesting. What qualities would you want that person to have? But whether patients. But if you had a car that really made driving, you know, exciting, I mean, I don’t know what kind of car that is because I’ve never driven a super audible’s what that car is. Yeah. A red convertible or like I don’t know. I have always imagined, although I’ve never driven one, a Porsche to be, you know, kind of like incredibly thrilling to drive or just some kind of car like that. That would be that would be right. I gave the mom, let’s forget about the mom and move along. But then what qualities of the my qualities of the person in the passenger seat would be the ability to navigate with a sufficient sense of the future so that they didn’t say turn left after you just to pass the left. Second, with an ability to use Yelp and be skeptical of Yelp ratings enough to find good local food. And and then three, a sense of the nation and its history so that when you drive by, I’ve always wanted an app when you drive by some small little town that seems like nothing’s going on, that it would tell you that it was the location of the largest civil war hospital and that the patients hieroglyphs are still on the wall from when they were convalescing there so that you could say, wow, that’s really cool. I’d like to go check that out, but it would do it in sufficient time. But if that app doesn’t exist, a person exists like that.

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S1: Dude, I was the CEO of Atlas Person with amazing curiosity, interest in planning and then willingness to chat up the locals, find the cool things which I never want to do.

S4: All right. I agree with almost everything you guys have said. My I think the car point is important. I don’t I began by, I think, you know, camper van or RV and then move to actually. No, you do want to have camping gear so you can camp if you want to, although I basically welcome that convertible.

S1: That’s about it.

S4: But but probably you want a convertible. The best road trip I ever did was with Bill Brown across Texas after my freshman year of college and we were in his pickup truck and that was amazing. And then we camp sometimes we stayed in like, you know, the terrible motel, sometimes I think for soundtrack. So I have I have strong views on sound track and on guest. So sound or partner traveler. Co Traveler soundtrack. For me, this is just going to reveal my own weirdness. It would be a mix of kind of like cheese ball country, Luke Comb’s Florida, Georgia line and then a lot of punk. So like the Clash and stiff little fingers and then some Tina Turner. And that would be that would be that would be early. Tina Turner. That would be my my mix of music and the guest book.

S1: Wouldn’t you want that mix to be on Spotify. So would play other like music. You could get their playlists based on what you put in.

S4: Sure, OK, that’s fine, but I’m going to I’m going to drop the mic after my guest part, which is you want someone Irish and you want someone Irish who can tell a story and play guitar and that at night that you would have hootenannies with all the people you met locally where they would play guitar. And it would be Glen Hansard from, I forget the name of Glenn’s band. But it was like he’s the guy who stars in the movie once. Oh, good choice. It’s amazing. Talk about that movie. Amazing talker, great singer. And I think it would be a fantastic companion to it. Just spin yarns as you were driving along and then at night he’d be playing music and under the stars with with people we met on the way.

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S2: Everything you say is true and particularly the Irish part. But and this is not this doesn’t have to do with the Irish. It’s just one potential downside of that is that sometimes people who are really good at telling stories are not so good at letting the beauty of silence fill the car for a sufficient number of time. You don’t want someone, you just natters on their point. Fairpoint.

S1: What about books on tape? Don’t you want some books on tape but isn’t.

S2: Yes, but isn’t. There’s a real sometimes you want the big, long, immersive thing and then other times. I find that like you like you want P.G. Woodhouse like little bites of bright eyes or like Alice Munro short stories.

S5: The last time I drove across the country, I listen to Moby Dick with no air conditioning in the car. It’s really it was. Yeah, anyway. But it’s just like sweltering, like literally melting into our seats across Texas and Oklahoma as like the whiteness of being or whatever. That chapter’s spun on and on.

S4: Goodbye, Slate. Plus, that was a good one.