Why the Coming January 6th Hearings Are So Important

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Dahlia Lithwick: This Ad Free podcast is part of your slate plus membership.

Speaker 2: These seven deadly sins of Trumpery. We independently derived them from the evidence. But then once I have them, I’m like, Oh, this is just uniquely American flavored autocracy.

Dahlia Lithwick: Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. And this week’s show is actually about that latter topic about which I have been known to fret. So I’m Dahlia Lithwick. I cover the courts for Slate, and it is less than six months out from the midterm elections, a year plus out from January six, 2021 a day, which maybe should have lived on in infamy, but somehow manages to either be forgotten or dismissed or likened to just hapless tourists lost on the way to the Capitol gift shop, or just last week in the mouth of Senator Ted Cruz, likened to a peaceful protest in comparison to abortion rights protesters who are at the homes of Supreme Court justices.

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Speaker 3: On January six of 2021, you had tens of thousands of people peacefully protesting, and yet the corporate media and Democrats slander them with the made up term insurrectionist. And yet, in this instance, they are not willing to call off their goons even now, even now, as this has the potential to escalate and escalate further.

Dahlia Lithwick: But of course, it’s not just about January six, and it’s not just mass shootings rooted in the, quote, great replacement theory that Tucker Carlson keeps talking about and saying he never talks about. This is not just the Pennsylvania election this week in which a Trumpist election denier cruises to victory, not just Clarence Thomas, whose wife apparently was trying to set aside the Arizona election results in 2020.

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Dahlia Lithwick: It’s not just vicious, racist claims that, yes, life begins at conception, but migrant babies do not deserve infant formula. It’s not any one piece of this breakdown and corrosion of democratic institutions. It’s all of it. And trying to wrap your arms and your head around all of it is really pretty tricky on your best day. It’s almost impossible if you’re trying to do all the other things like feed your family. Answer Even a 10th of your emails say Keep your job. Change the pillowcases. Get tested for COVID. Look, none of this is super conducive to a contemplative survey of the big picture. Our guest this week is Norm Eisen and he’s going to help us paint out the big picture by numbers. He’s going to talk about the new volume he’s edited and co-written. It’s called Overcoming Trumpery How to Restore Ethics The Rule of Law and Democracy.

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Dahlia Lithwick: Now, later on in the show, Slate Plus, members will have access to my conversation with Mark Joseph Stern, where we’ll talk about the stuff that we didn’t get to in the main show, including the Supreme Court’s most recent intervention in campaign finance reform. Score another one for Ted Cruz. Plus, a Fifth Circuit decision finding the SCC to be, well, incapable of functioning and new abortion laws out of Oklahoma that will make abortion illegal any time post fertilization.

Dahlia Lithwick: If you’re not a Slate Plus member, but you’d like to be head on over to Slate.com slash amicus plus membership comes with all sorts of perks, including ad free versions of all of Slate’s shows and never hitting a paywall on Slate.com. And the biggest perk from where I’m sitting today is that you would be supporting all the journalism we do here at Slate, for which we are truly grateful that Slate.com slash amicus plus.

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Dahlia Lithwick: Okay, onward. Our guest today, Norm Eisen, has been contemplating the systems and patterns that define democracy in the rule of law, certainly since I’ve known him. And his brand new anthology is called Overcoming Trumpery How to Restore Ethics The Rule of Law and Democracy. And one of the things he notes is that a defining feature of the style of governance that he calls Trumpery, by the way, which survives Donald Trump, the man and which exceeds the harm of the Trump years. One of the defining features is a total disdain for the rule of law. So today we’re going to try to get him to connect some of the threads and to offer some fixes, big systems, fixes on democracy and the rule of ambassador.

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Dahlia Lithwick: Norm Eisen is a senior fellow in governance studies at. Brookings executive chair of the state’s United Democracy Center and a globally recognized authority on law, ethics and anti-corruption. He served as special counsel to the House Judiciary Committee for the first impeachment hearings. He is author of A Case for the American People the United States versus Donald J. Trump and the Last Palace, europe’s turbulent century in five lines and one legendary house Norm Eisen served in the white house from January 2009 to January 2011.

Dahlia Lithwick: A special counsel and special assistant to the President for ethics and Government Reform and was U.S. Ambassador to the Czech Republic from 2011 to 2014. Norm has been acting as counsel and adviser to multiple pro-democracy people and groups, and on days when I start to feel like I’m just wallowing. He is one of my go to democracy. Yoda’s So Norm Eisen Welcome back to Amicus and thank you so much for this new book.

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Speaker 2: Thank you for having me back. Thanks for all you do on Amicus and otherwise to keep us all informed about this turbulent scene. When I hear introductions like you’re very kind one sometimes I pause for a minute and I’m like, What is that mean? I grew up in a little hamburger stand, my family business in Los Angeles with my migrant parents. And when I’m reminded of the incredible adventures that I’ve had in the six decades that followed, that I feel so privileged to be able to have done all those things and to do the work of defending democracy that you so kindly note. And that is the subject of my new book, Overcoming Trumpery.

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Dahlia Lithwick: So let’s talk about the book because I have to confess Norm. It was a pretty bracing reminder of like essentially a four year crime spree that I’ve worked very hard to repress, including, you know, ethics violations, self-dealing. I feel like the last time you were on this show, we talked about emoluments, which feels almost quaint now in the face of what we’re staring down. Can you by way of just setting the table for the conversation that is to come walk us through these seven elements of Trumpery, maybe define Trumpery and then walk us through the elements. Each element of which you note, and I think I noted up top, is hardly limited to Donald Trump or the Trump administration itself.

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Speaker 2: So true. Overcoming Trumpery was my first post Trump administration book and like many, I hoped that the staggering corruption of the Trump administration emoluments where the original sin we’ll talk about that and they factor in the book together with hundreds of other sins that we have catalogued and categorized.

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Speaker 2: You know, when Trump was evicted and there was that brief moment of hope when his own party condemned the events of January six, which, as we’ll talk about, they’re the logical culmination of four years of his predations. I had a moment of hope that the country was really going to move beyond him, but it soon became clear, starting with the fact that you could only get seven Republicans to vote to convict in the trial in the Senate, it soon became clear that he was reestablishing his hold. And I think with this week’s primary results, on top of what else we’ve seen, it’s clear that the spirit of Trump has taken a hold, and that spirit is Trumpery we in this book analyze it.

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Speaker 2: I had ten experts do deep dives on all of the things that went wrong, the ethics violations, the disdain for the rule of law, the attack on the Justice Department. And even I was shocked when I waded through it all. The extent of it, it all stemmed from that first violation when before he was president, Trump said he was going to keep his businesses and he was going to take cash and benefits from foreign governments emoluments. The only ethics rule that’s so serious, the founders and framers put it in the Constitution and that predicted all.

Speaker 2: And when you analyze what is Trumpery, it’s a older word that is defined in the Oxford English Dictionary as deceit, fraud, improper. Posture or trickery. Something of less value than it seems. Worthless stuff, trash, rubbish. But it’s very dangerous rubbish.

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Speaker 2: And we looked at everything, domestic and foreign, and we came up with these seven deadly sins. It turns out Trumpery is not the random, ad hoc, chaotic, venal, reflexive corruption you might think. No, there’s a method to the madness. Dahlia. And those thousands of examples fall into the following seven Deadly Sins of Trumpery. It starts with disdain for ethics. It moves to the attack on the rule of law, lying shamelessness, sacrificing the public interest to personal and political selfishness, exacerbating fanning the flames of division.

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Speaker 2: And all those six precursors wrapped up into one big final explosion of Trumpery the seventh deadly sin that we saw in the post 2020 election period and indeed in the run up attacking democracy itself. Those are the seven deadly sins of Trumpery. And as we’ll discuss. Fact, I have a new op ed in Slate this week talking about it. Trumpery continues to rage strong. It has become the dominant ideology of the Republican Party. Tragically.

Dahlia Lithwick: One of the things that you just hinted at when you were reading this sort of definition of how it’s little things, shiny things, silly things, things that shouldn’t matter but do. And I think one of the threads I want to pull on is the ways in which the silliness gets in the way. Right? His heartlessness, the dumb cough, heavy stuff, the dumb Sharpie markers, changing weather maps, that there’s a way in which all of this looks deeply childish and cartoonish and that it can’t possibly be a serious threat to democracy because it all just has that edge of just being a joke.

Dahlia Lithwick: And I know one of the points that you have made for years and that you’re certainly making again now, is that even if you concede that that stuff is silly and trivial, which we don’t concede, it paves the way for the non silly nontrivial version of it to come. Right. That in the hands of Ron DeSantis. This is not silly or trivial. This will be a lot more than sharpies and a lot more than blurted out truths.

Speaker 2: After having studied everything that I think he embraces coffee. He made a joke of it. I think it’s part of the genius of Trump. There’s a sort of reptilian I don’t think it’s highly reflective or planned, but he seizes his brainstem, seizes those opportunities to both obscure his philosophy that has these seven features and to promote it, to drive it forward. He serves you as side of sick humor with his authoritarian ism.

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Speaker 2: And I should say that this is these seven deadly sins of Trumpery we independently derive them from the evidence. But then once I had them, I’m like, Oh, this is just uniquely American flavored autocracy, right? It’s an American style of autocracy. At any rate, the book analyzes it, and it turns out there’s the Trumpery of the Trump administration. There’s the Trumpery of the effort to overthrow the election, culminating moment. Then there’s the new Trumpery. And this week we were in the midst of that with perhaps its foremost advocate.

Speaker 2: There is no one beyond Trump who is a greater driver of Trumpery of the big lie of the election and these other frauds than Doug Mastriano, who’s now the Republican gubernatorial candidate in Pennsylvania. He is going to be in charge of one of the most important breaks in the blue wall if he wins and he’s already joking with supporters. There’s a video of him, one of his supporters joking and he’s laughing about the 20 electoral votes in Pennsylvania. So we need to study the past so that we a to paraphrase, so that we can learn from its mistakes and prevent it from recurring.

Speaker 2: And the book is also full of solutions. And I want to talk about those because I’m very flattered that you say you’re someone I turn to for a cheerful take on disaster, but I do have some optimism about solutions to this new. If you will, the new mutation of the virus of Trumpery, the post-Trump Trumpery.

Dahlia Lithwick: So I do. I in fact asked you to come to do the the sunny side, but I do have to ask one more question and maybe you’ve just. Teed it up for me because I think by disaggregating this away from Trump and creating a kind of mathematical formula, what you’re doing is help predict. And as you say, then you can use these seven lenses, seven kind of types of governance to really understand other phenomena.

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Dahlia Lithwick: And I do want to give you a minute to elaborate on Justice Alito’s leaked Dobbs opinion, because when the draft opinion came down two weeks ago, ostensibly that has five votes to overturn Roe. Your first instinct was to say this is a Trumpery decision. And because this is a show about the Supreme Court and the law, I just want to give you a second just to show your work. Show us how you apply these principles of Trumpery governance or leadership and how they apply to Alito’s draft opinion in depth.

Speaker 2: I will tell you, I don’t have too much optimism to share about Dobbs. I just think what’s happening is just heinous, that Trumpery has crept on to the Supreme Court. But when I read the opinion, I started cutting and pasting bits in my notes using the Trumpery framework. And I found that everything that I hated about that opinion, and that’s what I wrote for Slate, everything that I hated about that opinion fit the Trumpery model and of course, the prior dance with Trumpery.

Speaker 2: When Trump and his allies attempted to get the Supreme Court to do a repeat of Bush v Gore and take up the Ken Paxton led election challenge, which was madness, only two justices favored taking it up. They didn’t signal how they would rule, but that was Alito and Thomas. And now we have some more light on Thomas’s corruption because of what we know about his wife’s involvement. And Alito now from Reading Dobbs, we know that Alito has gone full Trumpery okay, he’s adapted these seven deadly sins.

Speaker 2: I thought that the piece was an assault on the rule of law because it’s one of the most vicious attacks on stare decisis that I’ve ever seen. Listeners to your podcast know that that means the principle that the rulings of the Supreme Court become settled law. And it shows utter disdain for the truth. It’s packed with disinformation and false statements about pregnancy and adoption and the availability of resources for poor women in particular, and women of color. He doesn’t tiptoe. It’s not gradual. It’s just a brazen overthrow of settled constitutional law. It’s his personal doctrine. I found an old link in the Slate piece to an old story about his mom, an interview with his mom describing his anti-abortion beliefs.

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Speaker 2: I have religious beliefs, too, but I don’t voice them. When I was in government, I didn’t foist the White House or the embassy and on and on through the seven deadly sins of Trumpery culminating in the attack on democracy itself. This is a body blow to the credibility of the Supreme Court, the stability of the separation of powers and the continuity of our institutions. And he has done tremendous damage not just to women’s lives, which is horrible, but also to all of our lives. It affects all humans. If it becomes the final opinion, the decision, and it deeply damages our democracy. Trumpery in action all seven deadly sins.

Dahlia Lithwick: Nor might want to start the conversation about fixing things because, as I said, we’re not here to wallow. But I do want to offer up government itself as a place we need to start. And the way I want to do that is to just point out that new polling that just came out this week shows, unsurprisingly, 64% of Americans don’t want Roe v Wade overturned. 14% of Americans believe that gun laws should be less strict. But the Supreme Court, I think, in ruin, is poised to massively weaken gun protections. And here we have Justice Alito helpfully writing in his draft opinion and.

Dahlia Lithwick: DOBBS Hey, if you don’t like this result, vast majorities and pluralities get out there and vote. But Norm, of course, it was Justice Alito who authored last year’s BRNOVICH decision constricting voting rights. It was Alito who signs off on Shelby County doing away with Section five of the Voting Rights Act. It’s Alito who blesses political gerrymanders. It’s Alito who blesses dark money sloshing around in government.

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Dahlia Lithwick: Every single talk I have. Given since Dobbs came down, I have said some version of the following. We have five of the six Republicans on the Supreme Court appointed by justices who are seated by a president who lost the popular vote. But because of the vagaries of the Electoral College, still got to be president. They were then confirmed by a mal apportioned Senate that then joins together as a Supreme Court to make it harder and harder for majorities to win elections. This is Norm a systems problem. This is not an abortion problem. It’s not a gun control problem. We have a government that is now working hand in glove with the Supreme Court to shrink majority rule.

Dahlia Lithwick: So before we get to the fixes, I need you to tell me what we do. And I know you talk about filibuster reform, and I know there are ways to think about how we fix the Senate, what we do about the Electoral College. But what do we do about the fact that government itself was constructed to do precisely what it is doing really well right now, which is make sure that some people don’t vote and that other people, often tiny minorities, get what they want.

Speaker 2: Well, you know, the post-Trump exercise of the seventh deadly sin of Trumpery, the assault on democracy, it’s the new Jim Crow. So it’s resuscitating Plessy v Ferguson, the infamous case that allowed racial segregation. So I offer that reflection. And I do want to talk about short, medium and long term fixes, including to this, because there’s always been a deep strain of American law, but it applies really to every dimension of American existence. There’s a deep strain of our law that has been profoundly regressive from the beginning of the legal system, and it’s contained in American society in the protection of powerful minorities. And that’s why we didn’t have, in the early decades of our politics, of the post constitutional era.

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Speaker 2: And by the way, this is something that the regressive forces want to return back to with the independent state legislature theory. You didn’t have direct vote. For our senators and our representatives as you do now. So even the idea of voting was contested and then you had not just the racial element, you had property limitations, gender limitations. That’s just one of these seven deadly sins.

Speaker 2: So I think that this is a very familiar battle that we are engaged in. And I do make the point in overcoming Trumpery that Trump simply exploited and accelerated some trends while adding to them and putting in new developments and new new breakage to create Trumpery this philosophy of corrupt governance that, as you noted earlier, God help us if a two scientists Hawley a J.D. Vance, they’re intelligent, they’re Ivy League educated. They genuinely got into the Ivy League, unlike Trump, and they’ve learned from him. All of that brings us, though. The hopeful part is the short, medium and long term solutions. You see, I’m so congenitally optimistic. It’s a methodological bias. Dahlia I cannot talk about the crisis. My brain just turns to the solutions. That’s how I get out of bed in the morning.

Dahlia Lithwick: Let’s do.

Speaker 2: It. And you imagine what it was like writing this book and having to wallow in almost 400 pages of all the terrible things that happened in every dimension. The ten worst dimensions, domestic and international of Trumpery I mean it only through designing solutions could I survive.

Dahlia Lithwick: So let’s do it. Let’s do the solutions. Let’s do, shall we start? I feel like we should start long term, but maybe we should start short term, since there’s a sense that the clock is ticking and that midterm election is bearing down upon us faster than we can do accountability.

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Speaker 2: Unless we get the short term or exactly no longer. Exactly, I think hope for overcoming Trumpery comes in four boxes. Short term, the book is bristling with short, medium and long term solutions. I forced all my authors and myself. I told them all, Do not just describe what happened in your area. Don’t just give me the analysis of the problems. I want solutions short, medium and long term, and I don’t care if we can’t get them.

Speaker 2: Now you put the solutions in there. So there’s a book with for posterity and you know, if they kvetch, I had to send some of these chapter back to get the solutions and by the way, to make it readable. I said, tell a story in your area. Don’t just give me a list. Tell a story of what happened. I think it’s a very readable, short term hope comes in four boxes, the tally box, the cable box, the ballot box and the jury box.

Speaker 2: Okay. What do I mean? The tally box. Tally sheets, as you know, are what Congress uses and state legislatures use to pass laws. And I’m still hopeful that we will, even though we didn’t get the big democracy reform package we wanted in this Congress, there is a very vibrant, bipartisan effort in the House and in the Senate to bipartisan, bicameral effort to reform the rules that Trump tried to exploit. And it’s called the Electoral Count Act.

Speaker 2: But to do an electoral count act plus package where you combine that with dealing with some of the worst things we’re seeing now, the threats to election workers, the need for more money, for safety, like the worst aspects. So it’s a plus. Okay. There’s hope for that in this Congress. And the book is also full of not just legislation, but regulatory ideas that pro-democracy officials in the states of both parties, governors, secretaries, legislatures that they can work on and pass and implement.

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Speaker 2: The tally box, that’s number one. Okay. Number two is the cable box. The January six hearings are coming. This is a once in a generation opportunity to educate the American people and the world about not just January 6th. I don’t even like that name the January six committee. It’s really the insurrection. They should call it the Insurrection Committee. And insurrections are not the work of a day.

Speaker 2: We know what happened on January six. There’s some questions. What was Trump doing during those mysterious hundred 87 minutes when he was silent? There’s questions about January 6th, but the biggest questions are about the run up to January 6th and the aftermath. The insurrection hasn’t ended. Dahlia I write about this in the book, The Big Lie Attack, and we see this in the winds of candidates like Vance in Ohio, like Mastriano, like the Trumpery advocates who succeeded in North Carolina and this cycle and many more down the pike. Georgia is a Trumpery ticket with Herschel Walker for Senate, David Perdue for governor, and Jody Hice for Secretary of State all in various forms embraced the big lie. Trumpery is on the ballot. That’s the third thing.

Speaker 2: But to set that up the cable box, the January six committee must tell that story before the insurrection, the day of the insurrection, and the continuation of the insurrection driven by Trump’s big lie, his what a federal judge has now found to be a likely criminal conspiracy, an attempted coup that hasn’t ended. They’re setting up for the next coup, telling that story effectively. And I think they’ll do it brings us to the ballot box like 2020.

Speaker 2: You mentioned my previous book, The Case for the American People. That book explained the first impeachment and trial in terms of making a case. We knew we weren’t going to get 67 senators, so why did we do it? We wanted to make the case to the American people turn the 2020 election into a referendum on democracy versus Trumpery the ballot box. 2022 The general election is going to be enough, another referendum. So American people are going to be called on. I think they’ll repudiate Trumpery. That’s why I think Trump has to be front and center. One of the things this model does. I’m not on the people is saying, no, never talk about Trump. No, he needs to be Trumpery not Trump. Trumpery needs to be a part of every conversation. 2024 is going to be a referendum on both Trump and Trumpery because if he’s alive, he’s running.

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Speaker 2: That brings me to the fourth box of hope, the jury box. I’ve written several long analysis and innumerable op eds, including my op ed this week in Slate. Trump is very likely going to get prosecuted, at least in Georgia, by the Atlanta, the Fulton County D.A., Fani Willis, who has a very advanced and very good criminal case, the Georgia statutes.

Speaker 2: In a simple case, Dahlia, he’s told Brad Raffensperger to just find 11,780 votes, even if you believe he was ripped off. You can’t take the law into your own hands any more than if a family member got assaulted. I’m allowed to go do vigilant. It’s vigilantism right now. He also did not believe he won. But that’s a perfect case because you don’t have to prove his intent. All you have to do is show he wanted to fabricate one more vote than Biden had. You can also prove his intent, I think, beyond a reasonable doubt. And Georgia law is a very tight fit. As I wrote for Slate. This week.

Speaker 2: I also think the DOJ slowly, carefully myself and my wonderful co-authors, Stuart Grayson and Dennis after good, experienced prosecutors, Stuart was a very senior DOJ official Republican one, may I add. That’s why we explained the DOJ in its own slow, methodical way. Garland has built up the political capital of DOJ, and we think he’s about to expend it on a very serious investigation of Trump. And based on looking at the evidence, I think there’s also a good federal case to go with the state one, and I think we’ll see more state cases.

Dahlia Lithwick: I guess that leads me to this question of it all feels like it’s too late, Norm. It feels as though, you know, you are hoping that people are going to be infuriated and activated by July and they’re going to race to the ballot box in November. And for folks like me and this is the kind of Lucy football confession, because if you wake up happy every morning, I wake up and then just flag the shooters back to bed. And I think the thing that I’m worried about is we’ve done all this in both impeachment trials. We know what happened in that call to Brad Raffensperger, because we all heard it. We know what happened on January six because we all saw it. And so there is this sense and I deeply understand what you’re saying, which is folks need to see it. They need to hear the story. They need to be reminded of the visceral horror of it.

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Dahlia Lithwick: And here’s me saying to you, at the same time, we have elections officials quitting en masse. We have states choking off the vote. And we have this sort of footrace between the values you’re suggesting, which I agree won 2020, and then efforts to make it even harder to win in 2022. And so I guess I want you to reassure me that in this foot race, A, the things that you are talking about, all of your four boxes are salient and timely. It’s all going to happen in time. And that be it’s somehow going to over master what feels like a really dangerous push from, I think, arsonists on the other side who don’t care about institutions the way you do. And we’re going to get there on time.

Speaker 2: It’s a very profound question. It in my view, it is the single most profound question in American public life today, and it is mirrored internationally by a similar version of the question about the Russian and Chinese assault on the international rule of law system. It is a mistake to view Ukraine as only a Putin endeavor, just as Trump requires a lot of enablers and colleagues, so does Putin. And China’s first among the enablers couldn’t do it without China. But be that as it may, I will answer your question for the United States.

Speaker 2: We leave for another day. Ukraine, which is the other most important because of Ukraine, but also because of the larger implications for the global system within. And by the way, the world is looking at your question as well, because without America, you know, the international blue wall also falls apart completely. If Trump were in office, Putin would have had his way with Ukraine and much more.

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Speaker 2: Okay. So now to answer your question. We know that we can succeed in 2022 and 2024 and beyond in defending democracy as a nation, because we survived the dry run, the spring training of autocracy, the regular season, let us say. We know we can now survive the playoffs with the Super Bowl coming in 2024 because we won in 2020.

Speaker 2: And I think that it would have been nice. We didn’t have that federal. Democracy Protection package, H.R. one, the Senate S1 and its various analogs, including the John Lewis voting rights revision. A lot of people were on their hands, but we had an assault on democracy led by someone in the White House Dahlia in 2020.

Speaker 2: And I was privileged wearing my state’s United Democracy Center nonpartisan hat with my bipartisan, wonderful partners, including former GOP governor and Cabinet member Christie Todd Whitman, to be a part of all that. I wasn’t only observing. I was helping speak out for the state officials of both parties who were the key in the states joining with the American people of both parties to defend our democracy. We can do that again. The elements are there and indeed, in some ways the system is weaker because this formula Dahlia they have a formula, it’s a playbook. They’re running again, the autocracy playbook.

Speaker 2: They tried in 2020, led by Trump to attack the rules. That’s why they went to court. That’s what they thought the Supreme Court was going to do. Those 63 losses to attack the referees, they viciously pressured the election deciders at the state and federal level up to and including Mike Pence himself. And why to change the results. That’s all they’re doing now it’s not fancy states united this we get a huge new report out with protect democracy and law forward democracy crisis in the making. We’ve been revising it now for over a year. We publish it roughly every quarter describing these trends. They’re trying to change the rules. That’s what all these election bills, hundreds of them around the country, pressure the refs. We have another report called Replacing the refs at States United so they can change the results.

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Speaker 2: Right. The same coalitions, bipartisan coalitions that saved us in 2020 can come together again in this great referendum at the ballot box, nonpartisan in 22 and 24 to do the right thing. And that is why I believe that these four boxes of hope, including the hundreds of Republicans who have cooperated in the cable box, the one six investigation, the bipartisan negotiations going on now for an A-plus package in the tally, congressional tally box and the ballot box and where you have Republican leaders like Stephen Richer in Arizona.

Speaker 2: And finally, the jury box, it’s not not a partisan thing. I’m sure when juries convict, I’m sure there are Republicans on the special grand jury that’s sitting in Georgia right now evaluating Trump. I think that the jury box, it’s the genius of the American system. They will do the right thing. I believe the hearings will show there’s proof beyond a reasonable doubt. I have hope.

Dahlia Lithwick: It’s very funny, Norm, because when I asked you that last question, my producer sent me a note on Slack saying, oh, you made him sad. And so I’m very glad that you rallied and prevailed.

Dahlia Lithwick: Before I am forced to release you back into the world, I do want you to answer the question that I know you get a million times a day. We get it all the time on this show, which is that you are talking about huge systems fixes, right? You’re talking about reforming the Electoral Count Act and you’re talking about massively rethinking filibuster reform. And people want to connect that to an action that they can take today. And, you know, I often say, like, these systems are big and they’re wonky and they’re complicated and they’re multifaceted. And that’s a really unsatisfying answer. I want you to give them a better answer than these are huge machines of democracy that need to be fixed. Pick up a lug nut and go tell them what the leg net is.

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Speaker 2: Yeah, we know we talk about the need for filibuster reform and we were two votes away from changing a structure not contemplated by the founders and framers of our Constitution. They would be shocked at these supermajority protections. I believe in the Senate, but we were really just two votes away from changing that. The baseline has been moved. Let’s preserve what we learned. Let’s save it for the future the next time there’s a Democratic majority in the Senate, particularly if it’s 52, 53, somewhere in that range filibuster is going to be changed for democracy reforms.

Speaker 2: But there’s a role for every listener to this podcast in those four boxes of hope. Pay attention to what you’re about. You see on the cable box. Share it. Some of your listeners are in the position to do more than just pay attention. They’re in the position to do things about it. But there’s a role for everybody in in what is we’re about to learn in the one six hearings explained to everyone tweet, Facebook, Instagram, shout from the roofs. This is not a one day affair. This is a three part insurrection, the run up to January six and the ongoing big lie afterwards. The knowledge, the truth, very important.

Speaker 2: Number two, the legislation that’s going to move. Insist on a decent ESEA plus package and then support it matters. I worked in Congress. I’ve worked in Congress on and off, including my whole career, including for a year as impeachment counsel. They pay attention to what people say and think. Let them know your listeners have the ability to drive a real, not a naked ESEA. That’s no good. It’s got to have that strong plus package protecting election officials, money and whatnot.

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Speaker 2: Number three, vote. Tell everyone to vote. Support candidates. I don’t care what party. I spend more time all day long with Republicans than I do in these bipartisan coalitions than I do with Democrats. We need to support the great candidates of both parties. I’ll say that in my personal capacity. Only, by the way.

Speaker 2: And then finally, to those jurors out there, to the constituents of these prosecutors, don’t let your prosecutors do what Alvin Bragg did and give up a case where he had proof beyond a reasonable doubt of Trump’s financial crimes because he apparently didn’t want the political hassle of fighting with Trump. And then at the end, the possible risk it happens of losing. Embolden our officials. Give them a pat on the back. Thank them for investigating.

Speaker 2: You shouldn’t talk to them about cases if you see them in the supermarket. But how do you do that? The community speak up at the places where you are. Please don’t talk to them. If you happen to see the attorney general of the Fulton County D.A. about the case, you’ll get a very agitated security person will suddenly show up, but do create a climate of support for them. And then, of course, ultimately, you know, study the facts. If you think there’s proof to prosecute, say so. And some listeners of this podcast may get a jury notice. Please show up and do your jury duty. I’m actually going in for jury duty, which I’m very excited about in a few weeks. Do your duty so you can help fill those four boxes of hope.

Dahlia Lithwick: Norm Eisen. You are the Tigger to my ear and I thank you. I really needed it. And I want to tell folks to go out and get themselves a copy of Trumpery. It’s not only, I think, a map of what has happened, but a real guidebook to how to avert it in the future. Norm Thank you so much for joining us.

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Speaker 2: Thanks, Dahlia.

Dahlia Lithwick: Ambassador Norm Isan is a senior fellow in governance studies at Brookings, executive chair of the State’s United Democracy Center and a globally recognized authority on law, ethics and anti-corruption. He served as special counsel to the House Judiciary Committee for the Trump impeachment from February 2019 to February 2020 and his book Overcoming Trumpery How to Restore Ethics The Rule of Law and Democracy. We are now at the slate. Plus, members only say all the things that are not salable on the main show portion of the show. Mark, welcome.

Clarence Thomas: Thank you. That makes it sound like this is a samizdat that has all of these dark, dirty secrets that were hiding from the state. And maybe we are.

Dahlia Lithwick: Exactly. We’re actually trolling Amicus itself. Mark Joseph Stern covers the courts, the Supreme Court, state courts, everything for slate.com. And I feel like we spoke recently, Mark, and yet again, I can’t remember what we might have spoken about because many things have transpired in the intervening time. But I wonder if we could just start our little slate plus member’s only chat with Ted Cruz’s big victory at the Supreme Court. And another dagger in the heart of campaign finance reform.

Clarence Thomas: Yeah. So this court is not done dismembering the McCain-Feingold Act, which is the law that it infamously hobbled in decisions like Citizens United. Opening up the floodgates to campaign spending. And this case, the Ted Cruz decision involves a provision of McCain-Feingold that limits the amount of money that candidates can raise after an election. So after the outcome of the election is known in order to pay off their own personal loan to their campaign. So a lot of politicians lend themselves money when they’re campaigning and end up in debt afterwards.

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Clarence Thomas: And what McCain-Feingold says is that if you’re in debt after the election, you cannot raise more than $250,000 from donors in order to pay off that debt. And the reason why is pretty simple, because if you already know the outcome of the election, then you can go around to your donors and say, Hey, I’ve won and I want you to give me this money which will line my pockets. And in exchange, I will do a favor for you. And just to be clear, the limit starts at $250,000, which we should stipulate is a lot of cash. But we do live in a country in which most, if not all, of our politicians are millionaires. So they have a lot of cash to lend themselves.

Dahlia Lithwick: I mean, $250,000, that’s like sofa cushion money, right? That’s just stuff you find in between the couch cushions.

Clarence Thomas: Exactly. And that’s what happened here. So Ted Cruz lent himself a huge amount of money in a campaign, won that election, but couldn’t raise back more than $250,000 of it. So the next time around, in the next election, he lent himself just a little too much money, $260,000, and then afterwards said, hey, there’s this $10,000 that I can’t get back from donors.

Clarence Thomas: He filed a federal lawsuit. And we should note that Ted Cruz is a senator. He could have introduced a bill, tried to persuade his colleagues, passed a law repealing this provision of McCain-Feingold so he could get that money back. But he realized, as many of us have, that it’s a whole lot easier to just march into a federal court and ask them to do it for you. So he walked into a federal court and said, hey, my inability to collect money from donors after an election to pay off a personal loan with money that will go straight into my bank account that violates the First Amendment right to freedom of speech. And to nobody’s surprise, the Supreme Court agreed in a 6 to 3 decision written by Chief Justice John Roberts, in which he held that the government lacks any legitimate interest in limiting the amount of money that politicians can collect after an election to repay their own loan.

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Clarence Thomas: Even though, as Justice Elena Kagan wrote in her really incredible dissent, which was characteristically sharp but also mournful. The money that you raise after an election is not funding political speech, at least when you are collecting money during a race. That money is funding a campaign and you are using it to further political expression here. This money is just going into a politician’s bank account.

Clarence Thomas: And again, as Justice Kagan pointed out, you can just go to your donors and make a dirty deal and say, give me some money to pay off this loan and I will give you an appointment or a government contract or whatever. And we know that that happens because there is a big record in this case of it happening. Congress was responding to a real problem, not just a theoretical one, but the Supreme Court said, we don’t care. That’s just how the First Amendment works. And it struck down this law and allowed Ted Cruz to go on and enrich himself even further.

Dahlia Lithwick: And Mark, I just am curious about your thoughts on this. What does this do to the current schema in which we all like to talk about John Roberts woke liberal? You know, it’s really tempting in the face of the leak and all the conversation around the leak of Here’s John Roberts. He really cares about the public estimation of the court and he’s realizing that. But for him doing some of the stuff he did, hashtag Citizens United in Shelby County, we wouldn’t be in this pickle. He’s really learned from the error of his ways. This is not the John Roberts who showed up this week.

Clarence Thomas: No, this is the regular John Roberts who showed up, the one who came of age in the 1980s, during the Reagan revolution. And he is still pursuing all of the goals that he was back then in the eighties when he was a foot soldier for Reagan in the Justice Department. And I think what’s so disturbing about this decision is how readily it brushes off this possibility, this reality, in fact, that politicians will raise money from donors after an election in exchange for corrupt favors and just say, give me the cash and I’ll give you a government benefit. And even if that happens, that’s no big deal because that’s what self-government is all about. That’s what free speech means in American society. And that’s not bribery. That is just, quote, influence and access.

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Clarence Thomas: And so we have this vast gap between the majority and the dissent where the majority says, that’s A-okay. That’s no big deal. Of course, you can basically bribe your way into government benefits if you’re an oligarch and you have the dissent saying, wait a minute, that is destroying responsive self-governance. That is telling the public, we don’t work for you. We only work for these super rich people who can get us out of the hole after we’ve won our election. And to John Roberts, all of that is totally above board. He celebrates this fact that this is what politicians do. And to Kagan, it is another devastating blow to democracy. And there’s just no middle ground between the two wings of the court on this Amicus.

Dahlia Lithwick: Plus, listeners, just to be clear, open the little change section in your car where your $250,000 resides, and just pull it out and find a way to make that speech. Your voice in the democratic system. Okay, not bitter.

Dahlia Lithwick: Mark, speaking of the eighties vision of the Constitution, I guess we need to talk about the Fifth Circuit, which issued a kind of stunning opinion this week in a case that I think essentially held that everything that the Securities and Exchange Commission does is unconstitutional. Can you describe the case and then maybe just link it to the many, many conversations we’ve had about the sort of conservative legal movement’s interest in doing away with, I think, what Elena Kagan once described all of government.

Clarence Thomas: Yeah. So this case essentially challenges the Securities and Exchange Commission as an unconstitutional agency. I mean, the plaintiffs here say that the SEC is structured in a fundamentally illegal way that renders most, if not all, of its work, just unlawful and unenforceable. And, of course, you know, it was brought in the Fifth Circuit because the Fifth Circuit is the most radical and rogue court in the nation. And it landed before two very far right judges, Jennifer Walker Elrod and Andy Oldham, appointed by George W Bush and Donald Trump, respectively.

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Clarence Thomas: And what they say, in their opinion is that the SCC is unconstitutional for three separate reasons. So you can just take your pick. First, they say that it violates the constitutional right to a jury trial. Second, they say that and this is, I mean, truly incredible. They say that it violates the non delegation doctrine, which is a theory that is not at all rooted in the Constitution or in history, that says that Congress can’t delegate too much authority to agencies.

Clarence Thomas: And third, they say that it is too independent because administrative law judges who are the civil servants who are bringing a lot of these enforcement actions against fraudsters, that they have too much protection from political interference, and that their ability to do their jobs without the corrupt influence of partisan politics is actually a terrible and unconstitutional thing. I don’t know. I personally think that it’s good to have judges who are generally shielded from politics. But to this court, to these two judges, it is abominable and unconstitutional.

Clarence Thomas: And I think this is really terrifying stuff for a couple of reasons. I mean, first of all. You know, the SCC is important, its work is important, it prevents fraud, it protects investors, it prevents these bubbles from forming that can blow up and destroy the entire economy. But more broadly, what these two judges say is that the entire civil service may be unconstitutional, not just administrative law judges in the FCC, but the system that we set up about 150 years ago to ensure that federal government could run correctly to replace the spoils system with a merit based system with career appointees in the federal government who could do their job without too much political interference.

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Clarence Thomas: That whole system just runs contrary to the US Constitution and must be dismantled, which would mean that the President can reach into any realm of the federal government what Trump called the deep state, and just fire civil servants willy nilly, or fire them for doing their jobs too well, or for bringing enforcement actions against the president’s political allies and not targeting the president’s opponents enough to his satisfaction.

Clarence Thomas: And this is an idea that the Supreme Court has sort of been inching toward for about a dozen years, but hasn’t gotten all the way there by any means. And the Fifth Circuit panel just takes the leap and clearly is trying to force the Supreme Court’s hands to go whole hog on this and completely destroy whatever remains of a merit based and independent federal civil service.

Dahlia Lithwick: Oh, this is the sound of I’ve got no words. I guess this is a slight answer to the emboldened Fifth Circuit Panel. Does what? Which feels like it’s a really big part of the current conversation we’re having around reproductive rights and reproductive justice, which is, I think a lot of the folks who want to say, oh, please, it’s not that bad always want to say it’s just not rational to assume that a couple of renegade judges on an appeals court are going to do the next thing. Because why would they?

Dahlia Lithwick: Here’s why. Because those renegade judges are going to push at precisely the weak spots. And this is really, I think, an example of if you’re watching the Supreme Court for all of your signals, you’re missing part of the story. Watch the Fifth Circuit. Watch these newly emboldened panels who are driving at where they want this to go next, right?

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Clarence Thomas: Yeah, absolutely. And I think it’s easy for casual observers to miss the fact that lower courts can really manipulate the Supreme Court’s docket if we have fanatics on the lower courts who are willing to do what the Fifth Circuit did here and in so many other cases and push these doctrines to their extreme. And then even further, the Supreme Court has to step in. The Supreme Court has to intervene and decide whether it’s going to let these radicals on the lower courts totally abandon overhaul the law.

Clarence Thomas: And so you read these editorials, an op ed in The Washington Post in The Wall Street Journal, where they say, oh, of course, the Supreme Court would never even consider a case that, for instance, allows a state to ban contraception once again. You know, how could that even happen? And the answer is because all it takes is one crazy federal court of Appeals to uphold a contraceptive ban. And, you know, going back further than that, it only takes one state or one municipality or one county or whatever to start trying to outlaw contraceptives.

Clarence Thomas: And suddenly you’ve got this case that is on a direct path to SCOTUS, and the conservative judges on the lower courts have really kind of mastered this process of setting the Supreme Court’s docket.

Clarence Thomas: So I think it is either incredibly naive or willfully ignorant to pretend that these far out cases could never land on the Supreme Court’s doorstep because we have this collusion between conservative courts and conservative Republican lawmakers trying to engineer these cases for the express purpose of getting SCOTUS to move the law to the right.

Dahlia Lithwick: So this, of course, brings us inexorably to the discussion of what red states are doing to force these issues, because it’s not, of course, just two judges on the Fifth Circuit. It’s states who are also letting us know that fawning articles about the Supreme Court’s moderation notwithstanding, the Supreme Court isn’t telling Oklahoma what it can pass. And Oklahoma on Thursday passed a bill that would ban abortion from the moment of fertilization, effectively ending all abortions in the state. And, you know, with the nice little vigilante prong out of respect for Texas, SB eight, can you talk for a moment about this new Oklahoma law? I guess it could still not survive, but what it telegraphs to you about this notion that everyone’s going to just be satisfied and mollified when the court says this ends with abortion.

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Clarence Thomas: I think it’s just ridiculous to see Alito and so many of his allies claim that overturning Roe will somehow cool down the abortion debate or make it less salient to national politics or less divisive. Because what the court’s actually going to do is unleash a series of truly extreme and sadistic restrictions on both abortion and what pro-lifers call abortifacients, which are really just contraceptives like IUDs and Plan B, which do not cause abortions.

Clarence Thomas: But in Hobby Lobby, the Supreme Court basically said, if you believe that they do, because your religion tells you, then the courts have to accept that. And these laws, including Oklahoma’s, really threaten also fertility treatments like IVF, which frequently involve the creation and destruction of embryos. And if embryos are now legal persons under Oklahoma law, then. Individuals who want to act as vigilantes, as bounty hunters, can start bringing civil suits against IVF clinics for potentially destroying embryos. And even if those suits ultimately fail, the targets will still have had to go through horrific round of litigation that was very expensive, for which they will never be able to recoup attorney’s fees that might ruin their business and ruin the lives of everybody involved.

Clarence Thomas: And so I just think that it’s a clear fiction to claim that overturning Roe will lead to nothing more than straightforward bans on abortion, in part because we already see states going further, but also because as soon as abortion is criminalized, every uterus becomes a potential crime scene.

Clarence Thomas: And we are already seeing in red states like Alabama, pharmacists and doctors refusing to treat miscarriage patients because treatment for a miscarriage is really the same thing as treatment for an abortion, and especially the medication that is taken after a miscarriage to complete the miscarriage is the exact same medication that’s used to induce abortions.

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Clarence Thomas: And we are seeing pharmacists refuse to fill these prescriptions for miscarriage patients who are suffering immensely because they’re afraid of being the target not only of prosecution, but of potential civil suits.

Clarence Thomas: And so what red states are already doing is setting up this really terrifying legal regime in which, again, every uterus is a potential crime scene, and not only police and prosecutors, but also random people can try to wield the power of the state to punish anyone they suspect of exercising reproductive freedom.

Dahlia Lithwick: And two quick points. One is Oklahoma actually exempts plan B. I think this particular law for now exempts plan B. But I just want to say, because we forget to say it, friends, abortion is still legal. You know that Justice Alito’s opinion is a draft opinion from February. We don’t have reason to believe it’s going to change a whole lot. But I think that the clinics and the groups who do reproductive justice want us to end on the note that abortion is still legal in America, even though it is apparently not going to be legal in Oklahoma. And the other thing I want to say, Mark, is that I really want to thank you for being on board with the proposition that when a court that tells you it doesn’t believe in stare decisis then tells you Obergefell and Lawrence and Griswold are safe, you should start from a place of doubt and suspicion, not from a place of. Thank you, sir. Can I have some more?

Clarence Thomas: No matter how badly conservatives and centrists gaslight us on this stuff, I think it’s quite clear that when the Supreme Court is destroying the entire constitutional doctrine that forms the basis of unenumerated rights, it’s a safe bet that they are coming after other unenumerated rights and that they are not going to stop with Roe.

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Dahlia Lithwick: Mark Joseph Stern covers the courts, the law, state courts, supreme courts and all the things for Slate.com. That piece that he’s referencing, by the way, about Alabama physicians who are really feeling the need to turn away miscarrying patients from the E.R. is up at Slate.com, as is the rest of our. If I do say so myself, really good coverage of reproductive justice. Mark, thank you so much.

Clarence Thomas: Always a pleasure, Dahlia.

Dahlia Lithwick: And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you so much for your letters and your questions. Keep them coming and you can always keep in touch at Amicus at Slate.com or find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts at Slate. We’ll be back with another episode of Amicus on June 4th when we will start coming to you weekly. As the Supreme Court’s term hurdles toward its conclusion and we are overrun with big decisions, hoping that you can join us then to try to navigate the last few weeks of the Supreme Court to.