The “Impeachment Trial Again” Edition

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

S2: Hello and welcome to the Slate political gabfest for February 11th, 20, 21 to 11 21.

S3: The impeachment trial edition of Impeachment Trial again, Ed.. I guess I’m David Plotz of City Cast. I’m in Washington, D.C. I am joined, as ever by Emily Bazelon of the New York Times Magazine, Yale University Law School, from her home in New Haven, Connecticut. Hello, Emily. He, David Kijang.

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S4: And by John Dickerson of CBS 60 Minutes from not from his home because he’s he’s doing the shoe leather reporting that John Dickerson is so famous for. Where are you, John?

S5: I am in Georgia working on a piece for 60 Minutes, which everybody will hopefully be able to see in the middle of March.

S4: That would be great. Today, you’ll still get delicious content from John Dickerson and that delicious content. We are going to talk about the impeachment trial that preoccupies the Senate. We going to talk about whether the right wing media ecosystem can be saved and what effect these lawsuits that are being brought by some of the companies attacked by FOX and other right wing media. What affect those lawsuits might have on the right wing media. Then we’ll talk about whether Tennessee executed an innocent man. We have a baseline investigation and the implications of that for the future of the death penalty. Plus, we’ll have cocktail chatter. Plus, who will Joe Biden nominate to succeed? Stephen Breyer, who has not yet resigned plots watch day 22 anyway. John Roberts cannot be bothered to preside over the second impeachment trial of former President Trump. You cannot blame him. Exactly.

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S6: The first two days of this trial were taping on Thursday morning have been really sad and really ugly. A spectacle of the tragic crisis, the tragic, perilous moment in American politics. It has been a depiction of the true ugliness that was unleashed on January 6th and the what led up to it. It is clear, Emily, that Donald Trump will not be convicted in this trial and then therefore, there cannot be a vote to bar him from future office. Is that a shame? I mean, should there be, given this damning presentation, should he be convicted based on what you’ve seen so far?

S1: Well, it would be nice to feel like you had a jury that was neutral and open to the evidence. Right. Like, I mean, neutral is a little much to ask of members of the Senate, but like open to the possibility of conviction and of weighing the evidence or of not convicting on the Democratic side if they feel like the case for incitement has not been made. Because remember, I mean, we’re seeing this very damning footage, but and it’s really upsetting. We should talk about that. But the question is how much to hold the president responsible? And I don’t think that we do have that openness to hearing the evidence in any kind of impartial way. And it’s partly because some of the senators who are sitting listening to this were kind of part of stoking the fears and the lies that led them.

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S6: To be fair, Josh Hawley is not listening. So it’s not fair to accuse him of listening to his block, to sitting there reading. He’s just sitting there reading other things during the trial with his feet up on a desk. It’s astonishing. He’s lucky he has it so. Also, Emily, I just want you to hit the legal question that was dealt with on the first day a little bit, which is the Republicans who are going to vote not to convict the president are hanging their defense on the idea that this trial is not allowed under the Constitution because he’s no longer the president. It’s not doable. What is the basic nature of that claim? And was it rebutted?

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S1: The basic nature of the claim is that you can’t impeach the president after he leaves office because the Constitution talks about impeachment in the context of removal as the punishment. The the rebuttal, which I believe is powerful, is that there is a second mention of impeachment in the Constitution, which also talks about further disqualification from office. And of course, that punishment does not depend on being in office. I would say a second part of the strong argument in rebuttal is that Congress has done this before. They have impeached people who had already left office, like the secretary of state for Ulysses Grant at some moment in the 19th century. David will at least remember the decade that I think he was secretary of war. Thank you. Or not, secretary of state. It was secretary of war. OK, good. Thank you. We don’t even have that anymore. This is Secretary of Defense. I know. I like it better. Anyway, for me, what is perhaps. So those are compelling parts of the argument. I buy this argument. The other part of this is that if there is a clause of the Constitution where we would care what Congress thinks and how Congress wants to interpret that clause, it is the impeachment clause. This is a congressional power. And so the notion that the Supreme Court is going to step in and say, no, no, no, when there’s this precedent on the books and this other textual reference, I, I just it seems wildly implausible to me.

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S4: John, do you think as far as Republicans and Republican voters, that this ploy, this sort of, oh, we can’t possibly do this or this whole trial is is constitutionally invalid, it’s unsterile, can’t be touched, that that’s that’s going to work with their constituents? It seems like it.

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S5: Yes, because it does. And that’s because that’s what’s motivating them, as we’ve talked about for several weeks. What is the the how robust is the market that Donald Trump created and the market that created the conditions that led to the insurrection, putting fantasy over reality, privileging the narrow interests of the most virulent members of your base over the public good? And there was a glimmer of a chance that the distribution of reason might increase from zero in the deliberations of some of the members of the Senate. I think in the last several weeks, it’s been pretty clear that the that the interests of the base are. What’s ruling here is that somebody said the Constitution is this constitutional argument is helpful because you don’t even have to you know, it allows you to not have to engage in those in the ugliness of the day or engage even with the managers case, which was pretty well prepared and put together. And I mean, the the first day they they spent a great deal of time talking about the January exception, which is the idea that a president can do whatever they want to try and stay in office and they’ll go scot free because basically their term will run out, which is the the logical conclusion of believing that the Constitution had no role to play in the impeachment. And they all came and kept kept coming back to that, which is, it seems to me, a useful argumentation. And then the way in which they used footage and emotion and particularly the the breathtaking footage of how close it all came to senators getting killed probably or at least severely injured. And the vice president and the speaker of the House, I thought they all did that, that all very well. But of course, the benefit of the the notion that this isn’t constitutional is that it allows those members who feel some pull either from their conscience or who might worry that that some constituents might be bothered by their seeming indifference to the horror of the day. It gives them, you know, some potential cover, although, as Emily points out, it’s not that much cover. And then finally, this is about history and about something bigger than than something. I think you can escape through a narrow door. When people look back at this moment and look at the horror of that day, it seems to me they will ask, well, what did you do in the face of that? And if the answer is nothing or I made successful claims about how to sort of protect Donald Trump or protect our party, I don’t know how that’s going to look in the long stretch of history.

S1: Well, speaking of the long stretch of history, Lindsey Graham’s remarks this week or that history would be the judge, not the Senate, but of course, the fundamental misunderstanding there is that history judges, when in the moment people respond. Right. Nixon was disgraced because of his resignation. If that had been ignored, he would have a different historical valence and. And we would draw different lessons, and so I think it’s just a fundamental abdication of responsibility to talk about history, judging someone in that way.

S5: Also history. What’s amazing about the footage and the is, is I mean, it’s powerful and it’s not going to go away. I mean, you have powerful images that as a member of the Senate, you have to wrestle with, although some of them are not. I mean, Ted Cruz said Wednesday’s hearing with all of its emotional and powerful footage was just sound and fury. Lindsey Graham said it was a waste of time. Senator Scott from Florida said a version of the same thing. Obviously, they’ve said that before about various things. They certainly said it about the first impeachment. But one of the things that’s happened with the insurrection was that what was foretold either the minute after the election when Donald Trump said it was stolen and people said there’s a cost to saying that and that cost is going to be high, or people who even long before that predicted that the president’s behavior would lead to a moment like the insurrection, when when what has been foretold comes to pass. It seems to me it should change your view about history’s ultimate verdict. I mean, a lot of what gets you out of thinking, history’s going to judge you poorly as you think, and that’ll never happen. But people who said that will never happen, then the sixth happened. So you would think that you might be a little more tender in your feelings about how maybe history is going to turn out the way that people predicting it might actually or predicted.

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S4: Yeah, but I mean, you’re treating you’re treating these senators. You’re treating Graham and Scott and Cruz like they’re. Bigger people than they are, they’ve chosen a path of. Ignorance and pandering to the worst instincts of their. Political supporters for for entirely crass reasons, and as we’ll get to in our next topic, they have a media ecosystem that allows them to do that without consequence.

S6: And so I think when you talk about like, well, history will do this. History will do that. I mean, really just depends on what who writes the history, whose history is it? To me, it is not at all certain that that in a century people will look back on the capital insurrection and say, oh, look, there was a moment of right wing white supremacist nationalist craziness stoked by the president gone awry that destroyed our system.

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S4: It may may be seen as this kind of beginnings of some sort of patriotic moment, depending on how our history unfolds. Honestly, it’s just I have no confidence in any of it.

S1: So I will confess that I was skeptical going into this week that I wanted to sit through a lot of this. I felt like we were being yanked into the reality of a month ago. I want the world to move on. I want Washington to accomplish some things. Like I just had this feeling of like, do we really need this? And I felt like the video I saw this week that I had never seen before actually mattered in the world because it was from the point of view of the Capitol Police and other security and a lot of instances and whatever mistakes there are highers up and some of them made on that day. Some of them were in terrible danger and in a position where, you know, in pairs or or on their own, they were faced with these people coming in the door.

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S7: And I felt the sense of danger and the overrun this of it really like got to me and Ed. I think the images you were talking about, John, involving, you know, actually seeing Vice President Pence being whisked down the stairs not far from where people were marauding or Nancy Pelosi staff like hustling their way into an office and locking the door, a door that was going to be burst down, although luckily there was an inner door that held in that office. I found myself having more patience for it than I thought I would like. I was a little worried that it was going to feel forgive me for this self-indulgent. The Congress that was the victim of this assault was going to seem too self-absorbed, but I don’t feel that way now. I feel reminded of how much this was an assault on our democracy, on all of us, in a sense.

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S6: Do you think if a senator had been killed, that this would be in any sense different? Yeah, do you think they take it more seriously?

S5: I would say amazing. I do think that although now that I think about it, I mean, I agree with you, Emily. I have the same feeling. I thought it was kind of going to be overdone. And I thought that’s why I thought it was effectively argued. But David, to your point, was one of the striking things that came across in Wednesday’s testimony was this footage, which I guess has been out there, but I hadn’t seen it before, where the insurrectionists are huddled around Ted Cruz’s desk looking for what they call evidence. And one of them reads that, that Cruz was going to object to the counting of the electoral votes from from Arizona and said he was going to sell us out all along. He misunderstood what Cruz was, in fact, trying to do. And one of his confederates quickly fact checked him. But but what it proved to me was, of course, they weren’t there for a cause, really, other than Donald Trump. I mean, this was not a fully a group that was fully versed in all the details. And secondly, but for the fact check, you know, the marauding band, if they’d run into Ted Cruz, would have perhaps gone after him. And he was one of the people that was, you know, on their team and on their side. And when you if those of you who are listening, if you haven’t seen the footage. It’s not too much to say that they would have gone after them.

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S7: I mean, it’s absolutely it’s absolutely clear the cries about going after Mike Pence are very audible. Hang Mike Pence.

S5: Yeah, but I mean, also just the sort of the the voracious swinging of anything close at hand to to go after the cops. The pace and the virulence of it was something that I had not felt until the footage of Wednesday.

S7: I mean, it was a mob, right? That’s what happens in mobs. People lose control.

S4: Do you guys think that the the stronger charge against the president in this impeachment and by asking this question is clear? I do think this is a dereliction of duty rather than incitement. Claim that, yes, it is absolutely true that he he encouraged this, you know, encourage them to go to Capitol. And his whole month of buildup was was, you know, was fuel in it. But that that his his complete abdication of responsibility as president to do anything to intervene when when Congress was under deadly attack is. And two, in fact, appeared to be excited about that is to me, it’s just like, wow, that is completely disqualifying. That’s a clear a clear dereliction of duty. And that is there’s no question that that’s a crime.

S5: And you don’t have to guess. In other words, once the violence starts happening, people were calling the president, Kevin McCarthy, the Republican leader in the House, was calling the president, telling him to call off the dogs. Why was he calling? The president could have called other people. He was calling the president because the president could do something. Kellyanne Conway called the president. He did nothing. And in fact, there’s reporting that he was delighted by it. One of the things that going back to your point about history, David, which I think is a good point, one of the things that strikes me when you think about history and how it will look at this is the gymnastics that are required to defend the president and how absurd those kinds of gymnastics look, when time passes. And I feel this way when I go back and write whistle stops, I think, how could anybody have said that? In the moment? It looks so cockamamie after some years pass and and you lose the passion of the moment. But you have people saying, well, the president on the 6:00 did say the word peacefully. So there are people in high office who constantly rearrange the plain meaning of the president’s words or ignored the president’s words in order to not have to come face to face with them and now are putting the entire weight of their defense on the idea that despite everything else he said, the word peacefully means that he wanted the protesters to protest peacefully. He wanted them to just rush up to the Capitol and furrow their brows extra hard and clench their tiny fists as they shook them at the lawmakers. But let’s imagine for a moment that you embrace the idea that he wanted this to be done peacefully. If that were the case, if a single utterance of the word could beat back all of the other work that he’d done to incite these people, if that was truly what was in his heart, then presumably when all this violence started happening in his name, he should have been Bastad himself a little bit. But of course he didn’t. So that’s back to your point, David, which is you don’t have to guess it happened and he didn’t either fulfill his duty or I mean, he did the opposite.

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S1: I hope everyone caught that paraphrasing of where the wild things are in the middle of John’s excellent speech. I just want to make clear. So our producer is asking the question, why not have a separate charge for the dereliction of duty? And I think that that’s partly because the House managers probably wanted to keep this relatively simple and clean and because they see that lack of action as evidence for the incitement charge in the way. Basically, John, you were just arguing. And the other thing about incitement, if this were a criminal prosecution, we would have a narrow definition of incitement comes from the Supreme Court in the 1960s. You have to have the specific intent to cause an imminent unlawful action. And the question would be, does that what to me seems like double speak of peacefully mean that Trump didn’t think that he was urging people toward something that was a criminal act?

S7: I mean, it seems to me like if you were in a criminal case, you would argue that it was pretty clear. It was really clear he wanted them to disrupt the counting of the electors and that that was the criminal act, that even if you can’t prove exactly that he was advocating violence, that you could have that part. But it would be harder. It doesn’t matter in this context because impeachment can be for high crimes and misdemeanors. Congress gets to define it. And in this context, I think it’s clear, at least to me, that you can make an argument. There should be a broader definition of incitement that includes recklessness. Right. This is the president. You want the president to not act with recklessness in a way that could stir up violence. It’s actually really unusual to have incitement by an elected leader of a big country right against his own people, his own coequal branch of government. And so that, I think, is an important, at least to me, legal distinction to make about the context of this proceeding.

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S4: I think it would fail as it just straight up criminal case. I mean, he’s he’s distanced himself. He’s careful. I mean, that’s whole trumps whole thing. I mean, Trump has spent the last five years inciting people, encouraging people towards violence, like when the rallies, when he’s always like, you know, we we used to, you know, hit those guys hard or whatever those things.

S1: He was yeah, there was a lawsuit over that. The judge ruled against him and then the appeals court judges ruled for him exactly about this double speak. Go get him. Oh, well, I didn’t mean to hurt them anyway.

S4: Yeah, I think I think he he is always careful to be, you know, literal when he wants to be literal and figurative, when he wants to be figurative and picks whatever side is convenient. Right. Yeah. So, John, one one reason why Trump might get an acquittal here is from for a claim of ineffective assistance of counsel that he has. His lawyers are quite unusual. Do you think do you think that is helping him?

S5: I don’t. I think it’s I don’t think it’s helping him particularly. I mean, Bruce Castor, his lead lawyer who came on after the first presentation by the House impeachment managers. Was it was like a Doddy is just amazing.

S8: Ladies and gentlemen, we are in a trial in the Senate, but many of you live in the House and yet this is not happening in the House. Of course, some of you may live in apartments and there is no branch of the government called the apartments. And why? Because the founders made it that way. It was I mean, he didn’t say those things, but that was funny. That was the version of what was going on.

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S5: It was it was it was. I mean, I guess there’s some reporting that that his intent was to try to kind of. Deflate the pressure from the room, he complimented the impeachment manager on their case several times, which is a familiar lawyer’s trick, which is I show magnanimity in the presentation of their case because I’m not completely devoid of reason. I can recognize a good case, even though I think the case has the following holes. But there was no real decimation to come. So, you know, but of course, it sort of proves or shows the extent to which it doesn’t really matter because the audience is not. The House impeachment managers have to convince 17 Republicans those 17 Republicans aren’t aren’t going to materialize. And the quality of of the defense isn’t going to change that too much. Although after all those images, I wonder if even though it might not pick up more in the 17, I wonder I mean, all these senators are going to have to come up and explain their vote in some way and and maybe a lot will just try to run out of the room after saying it’s not constitutional, but to to have seen all of that and not address it in some form as a as a member of American public life, I think that that feels like it’s harder after all those images.

S1: I thought it was interesting, though, to Senator Cassidy from Louisiana said afterward, like his lawyers were terrible, the argument for constitutionality in favor of it was much stronger. And he joined the other five Republicans who are expected to vote for the trial being constitutional. And apparently he’s gotten a ton of criticism at home in Louisiana from all his voters.

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S7: And he’s like going to be in a little bit of a pickle. I mean. Right. Because he’s now admitted the kind of dry legal principle anyway.

S5: Yeah, no, but, you know, that shows the market at work.

S6: All right. Let’s move on. One reason why the senators and the Republican caucus are feel so safe. Not taking this impeachment trial seriously is that the conservative media is not taking this impeachment trial seriously, if you tuned in to Fox or Newsmax or one American network, not that I did, honestly.

S4: This is just me reading about what other people say about them. I do not tune into them as a matter of regular practice.

S6: They are paying very little attention to what’s happening, the impeachment trial. They’re attacking the socialist Biden agenda instead. Is there anything, Emily, that you think can can crack this open? There are these now a pair of lawsuits that are attempting to stole.

S7: You stole my line about the white knight that’s riding in on the horse. The.

S4: OK, go ahead. Right now, I feel like a white knight. White Knight is the name of a white supremacist group that hasn’t quite got.

S7: Oh, no, I scratch that. Forget it. OK, so it’s like a purple knight riding in on a yellow steed. How about that anyway? OK, so often journalists, people who worry about robust free speech rights do not like libel lawsuits because they can be used as a tool of the powerful to silence opponents. These libel lawsuits are against Fox and Giuliani and Sydney Pål, lawyer for spreading defamatory lies about companies, actual companies, these voting machine companies, Dominion and Smartmatic. And what is significant here is that this is exactly what the law of defamation is created to protect. You are trying to build yourself as a property, and your reputation has been shredded to pieces by the widespread dissemination of completely conjured lies about you that, you know, you were founded by Hugo Chavez in Venezuela. When you have nothing to do with that, that you participate. Your machines were all over the country in these, you know, quote, disputed states when actually they were nowhere to be found anywhere. I mean, it just goes on and on. And so usually media outlets, when they let people come on air and spread lies, have the defense. Well, we didn’t know what they were going to say and we were just covering this. But this the question in this case, there are two big legal questions. So the first is we’re Dominion and Smartmatic public figures in the law, which means that then they have to reach this higher bar of showing reckless disregard for the truth. I actually think maybe they could show that, but it would be easier if they were treated as private figures, legally speaking. And then the second is, did FOX and, you know, these other right wing networks, were they clearly on notice about what these guests were going to say? And were their hosts aiding and abetting and encouraging and, you know, participating basically? And when I look at the evidence in this complaint, it seems pretty clear to me. And so I feel like it’s actually going to be important that these suits happen and you already see repercussions. Lou Dobbs is going off the air and, you know, news yanked the my pillow guy the other day and, like, shut him up, sort of gave him the actual hook to get him off. So, look, I mean, that seems like it is one check. It’s not enough, but it’s something.

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S4: Yeah, it’s so not enough. I mean, it’s just vastly not enough. I, I love the public figure question because one of the interesting points here is that Smartmatic and Dominion voting systems, two companies you had never heard of. Definitely, and I’m like an election law nerd person, we’re public became public figures because they were subject to a campaign of smears and libel or defamation by folks in the right wing media ecosystem. And that’s what made them public figures. They certainly didn’t. They had no intent of being public figures. They weren’t. They were they were acting very quietly in all other respects.

S7: Right. And that is means that they have a strong argument that they’re not public figures because it can’t be that like, oh, we ruined your reputation. And that’s why you’re a public figure, because we talked about you and lied about you a lot.

S5: Yeah. Can I just underline why this is so important? You know, the market isn’t created by Donald Trump. I mean, he boosted it, but it’s being maintained by an ecosystem that is that is detached from reality. Or to put it another way, it is all about the tribe. And there’s a there is a smaller version of this, as Senator Bennett argues on the Democratic side. I’m not saying there’s equivalence. I’m saying that there are parts of the and this is true of political parties always. There are those who are interested in making the tent bigger and those that are interested in ejecting heretics. It’s just that the brittleness of religious heretic ejection is far, far more virulent on the on the right than on the left. Well, I should say far more on the right than the left. I’ll take one far away.

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S4: I want to talk about this right wing media ecosystem less as a function of human malevolence and of of partisanship than as a function of technology. And I think those of us who hearken back to a quieter and more consensus time in America, a time when when there was parties were able to work together, look to look to a period in really post-war America until the 80s, say. And what you had was a media technology which did not allow for a huge diversity of voices, that you had three broadcast networks for most of that time in most cities, you had one or two newspapers that could afford a widespread distribution. You had a quite limited number of radio outlets because it was constrained by the availability of of of spectrum that you could use that was available to radio. And the proper play, if you were media business was consensus and it was to drive people towards consensus because you were playing for a mass audience. And what happened with the first with the rise of the FM band on radio, then with the rise of cable, then with the rise of the Internet, is that to own a media venture is no longer to to be seeking a mass audience because there are so many different ways to reach an audience at scale. And it no longer is the case that you want to really go for some kind of Mytilene Mudie gluey center because that center was only forced together because people had fewer choices. Once people had choices and they could pick a thing that was much more congenial to them, they began to be targeted. And one of the things that the folks who founded Fox realized was, oh, there’s a real market to target conservatives. And then it becomes it just accelerates and accelerates and the Internet makes it you know, you can get crazier and crazier and crazier. And what has happened with the right wing media ecosystem is no different than what it is very analogous to what’s happening to all of us. With those of us who are streaming TV fans, it’s like, oh, now there’s a world for me where I can watch, you know, this kind of British crime drama all the time. And that that niching is is a function of the technology that allows us to be targeted better and better and better and and a vanishing of the value of ultra mass media. John, you happen to work. Both of you actually work at, like, the biggest mass media things that exist, but they have so much less influence. The CBC of today has so much less influence than it did as the CBC of of 40 years ago in The New York Times. Similarly, it’s a huge amount of influence, but in a very narrow, demographically kind of coherent.

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S5: Well, your entire audience also now has so many more other things to go watch and think about that have nothing to do with news that in other words, in the past, you weren’t you weren’t competing with such a an attractive entertainment environment, such and such an attractive attention distraction environment. So you have one portion of your audience that has a kind of light touch interest in the news, and they now are just basically interested in so many other things and have you know, they can get what they need in kind of little bursts. And the most virulent part of your audience, the true news junkies, they can do what you’re saying, which is go narrowcast. So the hiving off of the audience that you used to be there for the mass appeal is kind of it feels like a two pronged thing.

S6: One other point in that vein is that actually one reason why I think the right wing is so much more successful in the news politics ecosystem than the left is that that the left is so good at all the rest of culture that so much else of culture is dominated by the left, so that the right for the right news and politics has become a form of entertainment that they’re really good at and successful at and by and where it’s really vibrant and that you can make a real strong case that the most successful conservative entertainer in America is Tucker Carlson. Well, Donald Trump, I guess, but it’s Tucker Carlson. It’s somebody who who is a who’s fundamentally sitting there fulminating about the news, whereas the dump, you know, left wing entertainers, it’s everyone. It’s the whole world. And you have so many other choices. If only there was like good conservative music or good conservative television like people could conservative people would spend less time watching the stupidity on FOX.

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S1: Oh, so I think you must have overstated that slightly, although I take your basic point. So one thing though, I want to go back to. So, David, you made this excellent historical market based argument. I have to add the legal part, which is that part of the reason that we had the market structured that way was law. We had this idea that once you got your spot on the broadcast network or the radio channel, you had a public interest obligation. You had an obligation to present multiple points of view, the to do the Fairness Doctrine, which lasted from 1949 until the Reagan administration killed it in the early 80s. And you see. Rush Limbaugh go on the air exactly when the Reagan administration ends the Fairness Doctrine, right, and then you see the rise of Fox a few years later after the Reagan administration and the George H.W. Bush administration give them a pass and let them buy things that the usual diversity of ownership regulations wouldn’t have allowed for. So I just feel like it’s always important to remember there is this legal and regulatory like skeleton, this these bones behind the market based choices that helped drive them.

S5: And I have to throw in a plug for my friend Brian Rosenwald’s book, Talk Radio’s America, which outlines this historical both the points you were just making about the change in the industry and how that basically overtook the Republican Party and all of these really interesting ways.

S1: Can I say one more thing about competition? So there’s this economist at Stanford named Matthew Gentzkow who said something to me like two years ago that I think about all the time, which is that the problem with conservative media is there’s not enough competition and actually lately there’s more competition. Fox is being kind of, you know, sniped at and threatened by OCN and Newsmax, but it’s actually pulling in a more right wing direction, like the idea was supposed to be that you would have more conservative choices, that they would fact check each other, that you wouldn’t have dominion in Smartmatic having these defamation suits against every single network, because someone would be saying, like, hey, I’m speaking for the truth here on the right as a trusted authority among reality based conservatives. And I’m still wondering where that is. And I wonder, David, if your point about culture is well taken here to that if there were more conservative voices in pop culture and there are some but more trusted voices, who were this reality check like, whether that is also this big blind spot of the left to take over that space and make people who are more conservative feel excluded from it, if that is part of the problem here. But I realize it’s become very broad.

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S5: Let me engage in fantasy for a moment. Do either of you think there is a market? Because we all know the benefit of strong, well presented arguments from the opposite side, whatever side you are on. So if you are either in the middle or to the left, do you think there are enough people in the middle or to the left who would want a well reasoned conservative argument about any of the major issues of the day for the purposes, if for no other reason, for the purpose of understanding how being informed, understanding it or sharpening your own thinking? I mean I mean, I am still worried about how many people don’t how many humans do we think are involved in that?

S6: Yeah, I mean, that exists. I mean, that’s what the bulwark is. That’s to a certain extent. When National Review is that there are occasional guest in front, David Frenches, and it’s like there’s no market for it. Right?

S4: There is no market for it on the left or the right. It is like a tiny market of our friends. That’s where the market is.

S5: Yeah, well, that’s I guess what I’m that’s what I’m asking. Is it is it is it that small and you’re saying it is.

S4: Slate plus members, this week’s bonus segment on the gabfest is going to be, in and of itself, the magnificent Hulu film documentary show that we’ve all now watched and wanted to dig into. So we’re going to talk about that slate dotcom slugfest plus to sign up.

S1: Emily, who is sadly, Ali, sadly, Ali is a man from Tennessee who in 1985 was arrested and prosecuted for murder. There was a terrible killing in Millington, Tennessee, which is outside of Memphis. There’s a naval air base there. Young Lance Corporal named Suzanne Collins went for a run one night and her body was found terribly brutalized. The next morning. There were some witnesses who saw somebody driving a brown station wagon near where they had also seen Collins running and said Ali was driving a dark green station wagon. So he was picked up by investigators from the Navy. At first, he denied knowing anything about the killing. He had been drinking heavily that night. After about 12 hours of questioning, he gave a confession, which he later said was false and coerced. The confession had problems. It didn’t match various facts about the crime in that way, that false confessions can be off like he gave the wrong location. He described the injuries in a way that was impossible. You know, just didn’t match the autopsy report. But he was convicted anyway. It’s pretty clear his lawyers had no faith that he was innocent. They mounted an insanity defense, which was pretty doomed, and he was sentenced to death because of the heinous nature of the crime. So this all happened before the advent of DNA testing. But there’s a lot of crime scene evidence, including this pair of male underwear that was found right near the body that the investigators assumed came from the assailant and various other objects to. In 2001, Tennessee passed a law giving a really broad right to DNA testing post conviction. You don’t have a constitutional right to this. There are some states that you where you don’t get to do the testing, but this is like a good law for defense lawyers. And so, sadly, Ali’s lawyers went back to court and they tried to get the testing. And a Tennessee appeals court gave what I think of as like a bizarre reason to deny the testing. Ali’s lawyers had said, look, one thing we could do if we tested this evidence, we could obviously find out if Sedley Ali’s DNA is on the evidence. But if it’s not, we could also run it through the databases where you look for other potential suspects. And the Tennessee court said, no, that’s not part of what the statute does. You can’t look for another suspect. And so, sadly, Ali was executed in 2006 without any DNA testing of this evidence, in 2011, the Tennessee Supreme Court said, oh, wait, that reading of our DNA statute wrong, that doesn’t make sense. No, no. You can look for another suspect. And so what has happening now that got me interested in this case is that, sadly, Ali has a daughter named April and she has gone back to court representing her father’s estate, trying to stand in his shoes to say, I want to test this evidence. I want to know whether my father committed this crime. And more importantly, there are other potential suspects out there that investigators and other states have identified. And I want to find out whether this killer is still at large. So there was an argument at the Tennessee Court of Criminal Appeals last week in this case, and that was why I wrote about it.

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S5: Emily, you said that to date, no case had emerged in which DNA or other evidence could provide definitive proof that that an innocent person was executed. Is that right or is that just in Tennessee?

S1: No, it’s true. I mean, so, look, there are a number of cases in which there’s really strong evidence that we probably executed someone innocent. Maybe some listeners know about Cameron Todd Willingham, who was executed in Texas with this super fishy evidence of arson based on fire marks. That seems like it’s really suspect, but we don’t know for sure. DNA analysis that excluded Sedley, Ali and actually found somebody else on that clothing would be that kind of close to 100 percent certainty. Now, I should make clear it is possible. It is, sadly, Ali’s DNA on that evidence. Right? I don’t know. Part of what I found quite moving about talking to April, his daughter, was that her father always said that he couldn’t remember. He didn’t have any memory of committing this crime. But he also told her, well, if I did do it, then I deserve to be executed. And so for her, this is partly about the idea that either way, she would be at peace. But it haunts her that there could be some other person out there who is still hurting people or, you know, was arrested for another crime who actually did this? I think that, you know, to me, the kind of fundamental part of this argument is like, well, if we don’t know the answer, like, do we lose interest in the answer to the mystery, the whodunit, because someone has already been executed because of a legal error that the courts made the headline in the piece, Emily, is, did Tennessee execute an innocent man if DNA exonerated?

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S4: Sadly, Ashleigh, it could hasten an end to capital punishment. DNA brings a kind of certainty that eyewitness evidence does not that doesn’t that mean that DNA evidence is a stronger tool for the death penalty if it can bring greater certainty and then people will feel like, oh, the chances of us executing someone innocent is much lower than it was back in the days when we just relied on eyewitnesses who are incredibly unreliable.

S1: I mean, that’s a great point. You can DNA definitely like it’s a double edged sword in that way. You know, it’s not completely infallible, I should say, but it is more definitive than what we had before. However, I think the argument that this could accelerate the end of the death penalty, which was that Barry Scheck, the head of the Innocence Project, said to me, is that it’s terrifying to imagine the state killing an innocent person. It’s an irrevocable punishment. It’s like a the most horrifying kind of exercise of the police power. And I guess the second thing I would say is that there’s still a lot of murders and other crimes committed in which there’s no DNA and it’s all about witnesses. And so the problems that we have with witness fallibility remain endemic in the system.

S6: One of the things that I liked as I read about this was starting to understand one of the really stupid rules that was put in place that forbade people from appealing their convictions and making a claim that they were innocent after they had pled guilty. Like lots and lots of people end up pleading guilty and then go back and say they’re innocent. And in a lot of states, it sounds like that was barred. So many people make guilty pleas because they’re just like, yeah, like pile so many charges piled up and they make like a they make a strategic decision about their life.

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S4: Like, I cannot possibly the risk of not taking this plea is so great that I’m going to take it even though I’m innocent. But I can’t. If you’re then barred from ever saying that you’re innocent, it’s it’s kind of sucks.

S1: Yes. One of the reasons for those kinds of court limits is that we didn’t understand how prevalent false confessions were. Like they turn out to be like 20 percent of exonerations. It’s really high. It happens a lot. Like people just get desperate. They’re under questioning for many hours. They think, well, if I just say this, it’ll be better afterward. They get confused, like they just want to get out of the situation they’re in. Sometimes it’s often young people. It’s very haunting. And I just think it took a long time. For the system, for four voters, you know, the people that make the rules, the judges, to understand that this was really a prevalent problem because it feels so hard to understand. Right. Like why would you ever say you did something terrible that you didn’t do except that if you think that the system is so.

S5: Much against you as a black American, that that going through the system is going to be even worse. Reminds me of when you were a kid and your bike went wobbly, when you were going fast down a hill. And there was a time where you thought, I’m just going to lay down the bike even though it’s going to crash and it’s going to be awful. It’s better than the awful of either enduring the speeding down the road to the ultimate total cataclysm that will happen at the bottom. Or so there’s both the enduring and then the cataclysm. But it’s basically like awfulness that I can control is better than the uncontrollable, even worse awfulness.

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S4: Let us go to cocktail chatter.

S6: When you are having a quiet drink with the fan, John Dickerson, what are going to be chatting to them about?

S5: I was. For one reason or another in life, I signed up for an auction house that, you know, sends out like various things that are for sale, that are of a historical nature. And there was a George Washington letter that was for sale. I can’t remember how much they were asking, but I was reading the letter and it was it was a some innocuous thing. But at the end, he signed it. Your obedient servant, which we all remember from from Hamilton, that was part of various songs and and and was used most amusingly as Hamilton and Burr sent poison letters to each other that despite the dripping poison in the letter, they would sign at your obedient servant. So I was wondering where that came from. And it comes from the sort of period of court. I think it comes from the 17th century. And basically when you were in court or in formal affairs with people who were more powerful than you were, you did that as a sign of absence and then that sort of trickle down into just common communication, because I was thinking, why would George Washington, who is of course, basically above everyone, say that he was anybody’s obedient servant? So anyway, it was basically custom that falls out. But what I didn’t realize in and of course, should have is that yours and yours sincerely, which do sort of remain in our common parlance or yours truly are just shorthand for your obedient servant, that that’s that’s that’s where they come from. So when I’ve signed letters yours in my life, what I’m really saying is your obedient servant, which I didn’t really realize.

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S1: Oh, my God. Huh. Well, you shouldn’t say that anymore. You’re not.

S6: But why is yours sincerely yours?

S5: Yours means yours truly means your obedient servant, truly or truly your obedient servant. Hmm. That’s that’s the Internet told us. Anyway, the listeners, maybe listeners came a look on the second. Yeah, exactly. Yeah. You listeners are free to, to write in. And this may be another instance of of Luke operation.

S1: I mean that seems totally possible. It’s like yours. Like I am yours. It’s a literal meaning.

S4: Yes. But yes, I’m going to start Googling as you chatter. Emily, what’s your chatter?

S1: My chatter is about the census, my favorite don’t say boring obsession. So the Census Bureau is shortly going to announce, I believe, that they are delaying the provision of redistricting data to the states until late September, and that is going to throw a big wrench into the state’s map, drawing plans. There are a couple of states with twenty, twenty one legislative elections. This is going to cause trouble for Virginia and New Jersey. And that will mean, presumably, that the old maps will have to stay in place. There’s just not going to be any way to get them done in time for people to qualify for primaries, etc.. But even going into twenty, twenty two, there are some real questions about how this map drawing is going to happen because there are some statutory and state constitutional deadlines. So here is another issue that is going to come up. So Illinois has a provision with a deadline for finalizing maps of September 1st. And if you don’t make the deadline, the state constitution says that you turn mapmaking over to a panel of four Democrats, four Republicans and one person randomly chosen from the two parties. That is really different from the Democrats who control the legislature in Illinois drawing the maps. So in the House of Representatives, Illinois currently has 18 seats. Democrats control 13 of 18. And they had their eye on doing more gerrymandering to get more seats. If it’s like if they lose control over the gerrymandering process, they won’t be able to do that. And, you know, I am not particularly a fan of extreme partisan gerrymandering. So even if you are pro the Democrats expanding their House share, you could think, well, fine, we’ll just have a better, fairer map drawing process. My point is simply that this is worth watching this delay because it’s going to have a kind of ripple effect on how redistricting happens for 2022 and perhaps beyond. And you’re going to see a lot of litigation about it. I didn’t listen anything and I should probably go on.

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S4: I’m sorry for the English language forum on stock exchange. It appears a lot of ambiguity there, John. It does appear that that yes, it is. Your humble servant is one version of yours, but it’s also your faithful son. You would also find it your faithful son. So it’s not simply a shortening of the servant role. It’s a shortening of any place where you had you would identify yourself, your your loving uncle and becomes yours. So it is not all the servant relation, but how did it all first 100 percent clear that it is that that’s the only usage of your.

S5: But is it that yours may have arisen independently. Oh so you think it made of it. That’s the question is whether it arose independently. I can imagine it derogating and then being accepted in those different contexts, but your point is that it might spring from its own branch branch.

S4: Well, it might have sprung from its own branch. Yours truly appears to be somewhat different. And if yours, insofar as yours is certainly a shortening of a possessive, it could it was your humble servant, but it’s also your your loving, your loving son and your your your faithful husband, all of those things. But George Washington was a humble servant, loving, loving son, doting husband of great uncle as well.

S1: So this is really a very specific address to the person you’re writing the letter to, or is my son ups so generic? Right. I never think of it as like your excellent friend.

S4: My, but I guess once in a while what I always liked was those your children.

S1: You probably write to your you your excellent friend. Was it I meant more like your loving mother, right? I’d never write that. I don’t actually write to my children like with sign offs at all. I text them who signed off on a text they like when I send them email, they’re confused.

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S5: Yeah. I don’t know why. When texts became the mode of communication, I still find them. Why not use email leave? I want three people to be able to text me, my wife, my daughter and my son. Everybody else go back to email.

S4: I’ll stop texting, you know, terrible.

S8: You’re you’re like a reply. You’re you’re in the in the anteroom to that group. But I mean, everybody on God’s green earth is texting now. And so now it’s just as cluttered as as email.

S4: All right. My chatter is about a really good, interesting, thought provoking documentary I watched on television last night on Hulu. It’s from your colleagues at The New York Times. Emily, it’s called Framing Britney Spears.

S1: Yes. Seems so good. I’m looking forward to watching this.

S4: And it’s about Britney Spears, but not really about Britney Spears, as you understand. It’s about the odd way in which Britney Spears, shortly after her career started, when she was still a very young woman, had her life taken over by her father and she was placed in what’s called a conservatorship. And so that Britney Spears for the last 13 years has not controlled her own money or really what her own what she does with her life or her body and her herself. And she’s under a close watch in a way that most adults are not in. Conservatorship is something that’s usually done for for an incapable older person. And it’s very unusual for somebody like Britney who is young and who’s so clearly capable in certain aspects of her life to be placed in this in this position. So it’s it is it’s a really provocative documentary. And also, I mean, the kind of most disturbing parts of it are, look, harkening back to the rise of Britney Spears when she was 17, 18 years old, and the really disgusting ways in which the media treated her and obsessed about her body and her sexuality. And and it’s it’s very unsettling to see that. And I’m sure we do it. We’re still doing it today. No doubt with young women. It’s a thing that happens to young women, young women and in public life. But it really was incredibly gross with Britney listeners. You send us great chatter’s you tweet them to us at at Slate Gabfest. It’s wonderful. Send us so many choices. And now we’ve adopted this great new practice. We don’t talk about it. You get to talk about it. So this week’s listener chatter comes from James Dillard. Take it away, James.

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S9: Hi, John. David and Emily. I’m James and I’m coming from Zurich, Switzerland. My cocktail chatter this week is an article called The Mystery of Trust by Amanda Ripley. And it’s about how the US military was able to become more trusted in the period from 1970 to the present. And it’s actually the one institution that has been able to do this. And what I really enjoyed about it is that it provides some fodder for thought about how other institutions that might be able to do this as we try to rebuild a civic society where people trust each other in the U.S., one passage in particular spoke to me. It’s it says this The research on trust is at once interesting and incomplete. Typically, trust gets traced back to three central ingredients ability, benevolence and integrity. Ability captures the obvious rational reason to trust something or someone they seem to know what they’re doing. Benevolence reflects the sense that an organization has their best interests at heart, that they are motivated by the forces of good. And the integrity means that the institution has strong, admirable values to which it occurs, even under pressure to do otherwise.

S5: And then that that feels like an outgrowth of our friend Amanda’s forthcoming book, which is going to be great. Also, that was a model of the form of the listener chatter. I just want to say love clearly outlined evidence presented and on point as James Dillard in Zurich, Switzerland, that is our show for today.

S3: The Gabfest is produced by Jocelyn Franka, researchers, researchers at Dunlap. Gabriel Roth is editorial director of Slate Audio, June Thomas as managing producer Slate Audio. And Alicia Montgomery is the executive producer of Slate podcasts. Please follow us on Twitter at at Slate Gabfests and tweet chatur to us they are for. Leave as one and John Dickerson and David Plotz, thank you for listening, we will talk to you next week.

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S4: Hello, Slate plus. How are you? Last week, we gave you a heads up that we were going to talk about in and of itself, and we are going to talk about in and of itself, if you have not seen in and of itself, you might not want to listen to this, because we definitely will be spoiling it after some fashion conversation.

S1: You haven’t seen it.

S4: If you have any interest, you haven’t seen it. You definitely go see it because it’s really interesting. Even the very few people I’ve talked to who don’t like it found it really interesting. So let us let’s go. So in and of itself is a was a stage show that was done in Los Angeles and then in New York, principally in New York, in New York, for, I think, 600 or so performances in the late teens by a man named Derek Delgaudio, who is a magician and he’s a close up magician. Card trick magician would be kind of the simplest way to describe his skills. It is a show that he created in concert with Frank Oz, who’s a director, sort of entertainer. He was the voice of Yoda, also Frank Oz celebrated person. And together they made the show. And then Frank Oz then has directed a documentary film which is on Hulu called In and of Itself. That documentary film is a filming of this stage show of Delgaudio in New York. You see it as a single coherent performance. But it’s also it’s clear from the way the show was put together that they are melding together many, many layers in many, many, many examples of this show. So so you see different audiences and the same trick done five, 10 times and done in different ways. Is that a fair basic summary of what?

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S5: What? Yes, I think yes. And just to jump in, though, the the idea of magician and trick, you have to really open up your aperture for that. I mean, there are the wonderful thing about this show is the way in which it pulls you in and makes you think and and destabilises you and and it just is different than normal trickery or normal magic. And yet it uses that as a you know, as a way to get you. So but but because I think people seven people are really confused because they think it’s just like, you know, like David Copperfield, which it’s just not to me.

S6: I actually to be blunt, I didn’t even like the first two thirds of the show. I thought it was pretentious.

S4: He takes on this role, the real artist, and the set of interlocking stories about his life. And I did not connect with that. I didn’t know what was happening. And then in the last third of it, with the two, again, to use this term trick, it’s not I don’t even know what to do. But there’s this this act in which a person in the audience who seems to have been chosen at random is given selected a letter at random. And inside that letter is a handwritten note from a loved one that has clearly been sent that Derek Delgaudio has acquired by some means. And this person is now reading out loud or reading not necessarily out loud, but reading to themself. And then I guess out loud on stage is a feat of kind of incredible. And then the final trick where everyone in the audience has chosen this card of identity. And Derek Delgaudio identifies what card you have chosen and does it in such a way that people, every person feels themselves to be seen, fully seen in that moment by him and to somehow he has connected. It’s not just like that they randomly chose a card, but that somehow some piece of their identity has been has been expressed in this card. And it’s expressed because he sees it so vividly. Those two things I thought were among the most like that. Thirty minutes was just knocked the hell out of me. And I just don’t really understand. I mean, I have some ideas about why, but I just am interested in your guises, whether that was also what moved you or did the whole thing move you or what what what struck you?

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S5: I felt like the rule artist and that part of the story is about what the final thing you described is about. So they are connected. I feel like it sets the stage for it and and gets you to it. I went to the show since everybody’s listening, has watched it. And if you haven’t, really not good because you shouldn’t be listening to this.

S1: But can we scold you one more time.

S5: So I, I picked storyteller. And so when you, when you pick something, when you choose to name yourself in an intimate way, it sets up and then you hear another person after this emotional thing and which you’ve been thinking about identity and say it back to you and also in a public forum. It gets at this, as you said, David, feeling seen, and so there’s the feeling scene when you’re just by yourself, which is quite powerful, but then there’s the feeling seen in that collective and who’s adopted picked accident. And he said, you’re an accident like me. And I can’t I can barely say that without breaking up, and she obviously was and still is incredibly. Moved like I mean, she was the most probably the most transporting thing that she’s ever been involved in, maybe not the most, but it was very, very, very, very powerful. Always child. Yeah. I mean, I know I know there are many things maybe that would compete. But anyway, it was super powerful.

S1: So I think what’s so interesting about that, so I also I’m not a big fan of the set up part, though. I agree, John, that it is setting something up. And I just want to recommend the Culture Fest did a great segment on this and Julia captured Julia Turner captured quite a cynically, I think the more skeptical take on Delgaudio and like how much he is emotionally manipulating the audience as well as, like, actually tricking us. So what I think is so powerful about that ending is that, first of all, as it’s happening, it’s hard to imagine how they possibly could have pulled it off. It’s hard enough that I wasn’t even thinking about that. I was just experiencing people feeling seen. And it’s so profound. It’s all these tiny moments of connection that it sort of feels like it doesn’t matter what trick they employed to make that happen because and I wasn’t there. But it feels like the room is coming together in this way that I completely understand why and felt so profoundly affected by it. And that fascinates me that even if there is artifice at the heart of this collective experience, it can still be transcendent.

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S5: Yeah. And I mean, isn’t that the case with every magic trick or every piece of art that it creates a diversion for the purposes of finally pulling the chain and delivering the amazing moment and thing? Isn’t it all art does?

S4: John, I’m so glad you said this, because this sets up to me what I why I realized I found this so. Magical in the in the small AM sense, which is I’ve been to a bunch of magic shows and I, I in some ways I’ve always thought of myself as a fan of magic until the show. And then I realized, actually, I hate magic that. So do you guys know Ricky Jay? So Dirk Delgaudio in fact studied under Ricky Jay and was an assistant. Ricky Jay is this famous card trick person who’s a real student of magic in the history of magic and the intellectual history of magic. And he did a stage show in DC, I don’t know, 15 years ago that I went to.

S6: And I was like, wow, this is incredible. Like the things that he did on stage were incredible and it was the coldest thing I’d ever seen. And I realized, like, the problem with magic, magic is the easiest form of art. It is bullying as art it is. I’m going to trick you. And I’m going to withhold how I trip you, I’m going to deceive you, and I’m never going to reveal the truth of why I did it and or how I did it. And I’m not going to give you any satisfaction and not and it is it is an intentional separation of the artist and the act from the person who receives it. And it’s and it’s vicious. It is a vicious form of art. And it makes you feel worse about yourself. I suppose it makes you feel a sense of wonder how do they do that? But mostly it makes you feel like, well, I don’t know, I’ll never know. I’m so much lower. And this person, this condescending motherfucking magician, is smirking and laughing at me. And that’s a terrible feeling. I think the kind of the trick the trick the Delgaudio does is that, as you say, Emily, I didn’t even I didn’t I mean, I spent some time trying to think, like, how did he do this? Have to do this, but didn’t matter. It was like that he he took what was these tricks and turned it into human connection rather than distancing us from it. He brought us together. Right. And that’s that is that’s I mean, I just keep coming back. That is magic. That’s like what wonder is is like it’s not the it’s not that people can do incredible things. People can do incredible things and make you feel somehow more deeply connected to each other.

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S5: That is that’s that’s so brilliantly put and particularly about magic. And I had a magician once described to me when when Bruce was involved in magic, at one point we went to a magic shop and he said, you know, there’s something depressing, though, about becoming a great magician because you lose the sense of wonder when you’re in the audience because you’re always trying to pick apart the other magicians. You always kind of know how it happens. But if great art is is the is allowing a gap between what you show and the viewer or reader or listener and then letting them close that gap, which makes them a participant in the art and therefore makes it more deeply felt. That’s exactly it feels like what you’re describing and you felt you were taking them, you were playing a role in this revelatory thing, which is like which is what is so joyful and moving about art. That’s awesome.

S4: Byfleet plus.