The “Halloween” Edition

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S1: This ad free podcast is part of your Slate Plus membership. The following podcast contains explicit language. Hello welcome to the Slate Political Gabfest.

S2: October 30 2013. You really reached for it on the telephone. Nice leaned into a change their Twitter bios play these weird Halloween Halloween editions.

S3: I’m nuts about with this here. I don’t really like Halloween at all.

S4: I have no interest in it but it’s raining here which is not good for trick or treaters.

S3: That’s Emily Barr’s line of the New York Times Magazine and Yale University Law School. Hello Emily from New Haven Hello.

S5: And then next to me were its Throwback Thursday that super sweaty and John and I are in a studio and it’s unbelievably hot even though it’s the end of October. John Dickerson of CBS is 60 Minutes Hello.

S6: John Dickerson Hello. David it’s great to be in this sweat lodge with you. Oh it’s terrible.

S7: It’s the on you. Yeah you are miserable. Thank you. Oh that’s nice.

S8: On today’s US where he will talk so easily play with us tonight. We will talk about impeachment.

S5: We’re going to talk about the House voting on the procedural rules for the ongoing impeachment investigation the voting that’s happening as we tape then Twitter is banning all political ads all campaign ads all issue ads. Is that the right thing to do or is it superficial then the appalling revenge porn slash workplace sexual misbehavior incident episode that brought down Democratic congresswoman Katie Hill. Plus we’ll have cocktail chatter as we’re taping the House of Representatives has just finished a procedural vote on its ongoing impeachment investigation a vote that will set the rules the procedures for the investigation as it continues in the house. And indeed a Democratic controlled House has by a vote of 232 to 196 voted to approve these procedures every Democrat but two voted in favor two voted Nay and I think one abstained every Republican but three voted against it three abstained. So it was a very partisan division. Jon should we be surprised that the parties held and that Republicans didn’t break ranks at all. I.

S9: I no I don’t think we should be surprised by it.

S6: We should note that 31 Democrats voted to in the basically the equivalent vote in 1998 with Bill Clinton so 31 Democrats voted to go forward with impeachment proceedings. You know just a few things were stating the Republicans have been calling for a transparent open process that has a vote.

S10: Well now they’ve gotten what they called for they’ve said they’ve they’ve moved the goalposts saying that what happened what preceded it makes the whole business unfair and that the poison to rewrite exactly there dare I say fruit of the poisoned tree and they’ve also argued that the rules as the House majority set them up which is perfectly in keeping with tradition and with the process that the rules are unfair to Republicans you know that I think that my from my conversations with the Republicans on the Hill they feel like that they did gain and that they have seen more support for the president in the last few days or so because the argument that the Democrats were being unfair from a process standpoint was at least causing more vocal response from some portion of the Republican base. Why does that matter. Because lawmakers take that into account. So they’re going to stick with this process argument I guess what I wonder is now when these pretty compelling voices come forward these career officials you know whether those voices what they look like now when they’re going to be live and in color. I’m not sure I will. I mean these these hearings are going to be a total circus no matter what.

S5: Maybe they should do them in black and white. That would create even more dignity. Emily what broadly speaking has the House just approved what what is the what are the outlines of the procedures that they’re going to pursue as they move this this impeachment investigation from the private circle this narrow private circle to a more broader public forum.

S11: There will be public hearings. The president’s lawyers will be able to cross-examine witnesses. There will be a procedure where Republican members of the committees can ask to call their own witnesses and there will be votes on those requests. The Democrats on the committee will still control the outcome because they have more votes in the committees because they’re the majority in Congress. But there will be kind of back and forth and a building of the record and it will happen out in the open and it will be challengeable. So in my view it looks solid. It has fundamental elements of due process that we care about and want to see. And a lot of what the Republicans have been asking for. So I think it will be hard for them to keep complaining about process though I’m sure as John pointed out they will try. I mean we’ve already had these completely ludicrous metaphors like talking about you know declaring a mistrial from the Republican majority leader and or whatever the head of the Republicans in the House Kevin McCarthy but ever his title is. So you know there’s already been just such a perversion of these terms getting thrown around that I don’t have a lot of faith that we won’t continue to hear that rhetoric but the public is going to be able to see these people talk and assess their credibility.

S12: What was it John that made Democrats willing to take this vote. They had been resistant for a while. I think there was a Cordray of House members who presumably didn’t want to take this vote because they felt it would be damaging. But something changed. What does that change.

S10: Well I think it’s been a rolling things set of things that have changed. I think the original transcript that we learned this week might have been to call it a transcript as to fall into to a mistake at the get go. So it to the summary of the phone call that that I think was the first thing that pushed a lot of those reluctant Democrats into at least being for an inquiry I think what moved the speaker to have a formal vote I think is a kind of combination of things one is the testimony from people like Bill Taylor who was the top U.S. person in the Embassy in Ukraine which had been compelling the way in which what has leaked from the closed door sessions has established a fact pattern and the storyline that seems to make this look like a serious thing worth investigating. And then I think also probably some pressure on Pelosi that these process arguments are having a little purchase and that they might as well go ahead because that’s where they were inevitably going to end up anyway.

S12: Do either of you guys think these process objections will survive persist thrive in the new now approved procedures.

S11: We’re moving to in terms of the political debate. Going to be that Trump did nothing important wrong. It’s going to be about that question because there’s just not going to really be anything else.

S13: And then you have this question of like is this really bad.

S14: So I was thinking about analogies to Watergate in Watergate. You have Nixon stated in a break in which is like a crime right into you know Democratic headquarters office at the Watergate. And what we have here is the president using the might of his office abroad to try to ask a foreign power to do something scurrilous. So is that equivalent. Is it better. Is it worse.

S10: Worse. Well I think one of the things the challenges is for whoever the leader of I mean this is a challenge of modernity. But it seems to me a particular challenge for Democrats is to is to set the problem at the beginning. You know that’s what you have to do in any case but is to argue as Emily was just doing basically saying here’s what we’re trying to figure out.

S15: Did the president use the government and the whole arm arm of government not only his power on a phone call but also the ambassador to Ukraine and his entire national security apparatus and then build a second up apparatus outside of that for personal political gain. That’s one question the other is did he warp U.S. policy towards Ukraine for personal political gain. That’s another separate category which is important. Did he your vocal blue warp U.S. policymaking by creating what Bill Taylor called the irregular channel which has its own set of problems which is not only related to Ukraine but also all the other ways in which the president used an ill read irregular process for his own personal impulses which have national security implications. Then you have to figure out whether he has obstructed or shredded or caused to shred important U.S. values in the context of defending himself. So for example this week we had Alexander Veneman who is an Army lieutenant colonel who still carries shrapnel in him from an of from an improvised explosive device from Iraq who in the defense of the president some of his allies basically said had dual loyalties. He is literally a poster child for the American idea which is that no matter where you were born you can dedicate your life as an immigrant to that idea. Why is he a poster child. Because Ken Burns made a movie about that in which he used his characters in the movie two young children. One of them was Alexander Vincent and the other was his brother. He’s literally the poster child of a thing that used to be the central argument of Ronald Reagan’s version of America which is that it is such a powerful ideal that people can come and dedicate their lives in the service of that country based on the strength of that idea that this week was shredded in the defense of the president. So what other things have been shredded along the way in defense of the president. And then finally you have the denigration of the Foreign Service which has been a part of this which is in other words to call people who’ve dedicate their lives to foreign service for the country as never trumpeters or as deep staters or some other thing. Those are kind of the main points. And somebody who articulates that originally and basically tries to pull all those threads you were talking about Emily always back to those central questions. And by the way the answer to those questions can be no. The president’s exonerated off we go.

S9: But just keeping the conversation focused in the modern age of attention shredding seems to me to be basically the biggest task here in the next week.

S16: And that’s it. That was very well articulated John. When you put it that way I’m like wow that guy should be impeached.

S12: Emily I have actually have a legalistic might have inquiry here which is so far the president has announced he would not cooperate. They are not that many of the people who ought to be testifying have declined to testify. They’re not turning over documents. They’re not complying with subpoenas. It looks like that’s going to continue. I mean there’s still people testify in the civil service professionals and military officers are coming to testify but it looks like the president is not going to let any key people who are who might have something dastardly to say come and actually give sworn testimony and they’re not going to provide any documentation when they don’t have to. Is there any compulsion that is now going to work. There’s always been this theory that well in impeachment they’ve got to provide these documents. But is are they actually gonna have to provide them. Is the Supreme Court going to push in quickly enough to to compel that what the Supreme Court even compel it.

S4: Oh I am so happy you asked me this because I’m working on a piece for The Times magazine as we speak that will go right next week that tries to delve into these questions so I actually know the answer or at least I have ideas and I have ideas about the history of the answer to so the Supreme Court has never been asked what to do in a case that pits executive privilege.

S14: In other words a claim by the president that you can’t turn over documents you can’t let witnesses testified because they fall within this zone of presidential confidential communications that’s untouchable. That’s executive privilege. The Supreme Court has never decided between executive privilege and a congressional subpoena in an impeachment inquiry in any kind of inquiry. They’ve just never been asked the question or answered it. So we are in uncharted territory. We actually only have a handful of lower court opinions about this question and they don’t settle the matter because they’re not about exactly the same scenario. They’re pretty fact specific and I think only one of them from the Nixon era is actually about the president him or herself.

S17: So the reason that you are seeing Congress proceed with the career professionals Thomas talking about is that those are the willing witnesses and there is nothing that we see in the court in the sort of case law that suggests that willing witnesses who have congressional subpoenas in hand may not testify.

S11: Courts have never said that you asked a different question an unwilling witness a top political official like Mike Pompeo or Rudy Giuliani who of course is not a actual official but is US senior figure in all of this. Those people are unwilling witnesses.

S14: They’re saying we don’t care about your subpoena Congress and they have on their side a direct order from the White House counsel that’s supposed to apply to everyone not to testify. But what’s been totally fascinating is that that direct order from the White House counsel also applies to all these people who have decided to testify. And so even though there’s no reason why this congressional subpoena is somehow more legally powerful than a direct order effectively from your boss these people are coming forward anyway.

S18: There is this is what could possibly be a legitimate how could any court look at that direct order and say we have directly ordered essentially everyone who works in this administration not to comply with Congressional requests to talk. And how could the court honor that and say oh that’s legit. That really is a fair claim of executive privilege. That’s absurd.

S17: Yeah it’s very blanket I mean you can also see it as an opening gambit right at challenge of the whole legitimacy of Congress investigating as opposed to a specific act. And I am now channeling Josh chafe that’s a law professor at Cornell who I’ve been talking with this week. So I don’t think that that order from the White House counsel lends that baloney is going to hold. But you could still have a lot of fighting in court about the specifics of executive privilege and I it’s been interesting a lot of the witnesses who’ve appeared have noted along the way that they have not had direct communications with the president. And I think that’s deliberate. It’s to suggest that this broad executive privilege claim doesn’t apply to them. What’s happened in the last decade in both the George W. Bush and the Obama administrations was that there was White House balking and stonewalling over congressional subpoenas not involving the president the first case has to do with Harriet Miers and Josh Bolten who were top aides to Bush. The second case in a much more limited way was the Obama Justice Department over the Fast and Furious operation this like anti gun trafficking operation and the Justice Department that kind of went awry. So they had these long court fights over executive privilege and the power of the subpoena. And basically what Congress learned is that as Josh put it to me they can lose by winning. And what I mean by that is that the delay of all the court proceedings and all the discussion among the judges plus the reluctance of the judges to like decide the questions because this is an entire branch struggle all of that just plays into the hands of the executive because DeLay supports the status quo which is not turning stuff over. And so it just like Peter the political momentum peters out. And so Adam Schiff who of course is running the impeachment inquiry for the House Democrats said this week we’re not going to get into a lengthy rope a dope game in the courts over this stuff. And that’s why the Democrats haven’t gone to court to challenge Pompeo and Giuliani and all the folks who are not complying with the subpoenas. But there’s this guy Charles Cooperman who was a top adviser to John Bolton Trump’s erstwhile national security adviser and Cooperman has gone to court and what he has said plaintively incorrectly is like I’m facing these competing demands from the executive and legislative branches I can’t satisfy both of them. What am I supposed to do here. That’s a very novel kind of lawsuit. He sued Congress and the executive branch. We don’t know what’s going to happen with that but his lawyer who’s a longtime Republican figure in all of this Chuck Cooper is also John Bolton’s lawyer. And Boehner said he’s not going to show up voluntarily but kind of invited a subpoena from Congress. And so now we’re going to see with those two witnesses what does happen in court. And I would say the kind of nightmare scenario is the Supreme Court reaches out for this case and then shuts down willing witness testimony and reduces the power of the congressional subpoena. And I think that would be bad for this impeachment inquiry which should proceed with information from government witnesses who are not in. We should have some zone of candor and confidentiality for the presidency by all means but it should not extend to everybody who works the executive branch but also would be really bad going for right. It’s kind of been useful that we haven’t had this question settled in if the Supreme Court settles it in a bad way that is going to be unfortunate highly unfortunate.

S16: So an impeachment law minute.

S4: Yes. There’s also more like seven minutes.

S12: No. That was fantastic John actually I want to jump on that too. Kind of a timing question which is. So what do you think the likely or what. What are the possible variables about how this proceeds. Who wants it to go fast. How would who wants to go slow. What what what what could happen.

S9: I don’t know. I think it depends on how it care how it plays out. If it is a. So let’s think through some of the permutations here. If it is like the previous congressional hearings that we’ve seen where it’s just a chaos madness fast where both the opposition party is encouraged to just kind of throw up gorilla dust and keep everything confusing and go down side roads and talk about servers in Ukraine and talk about Benghazi and do anything to create a. Increase the number of threads whether they’re real threads or synthetic ones. And then you have the majority whose job should be to stay focused on points one through five and continually go back to them and say we’re trying in this set of questions to get at this question one two or four whichever they choose and not try to build their own reputations by being fancy with their questions and their statements or being outraged or doing all the other things that detract from the central case depending on how much that goes on would depend on how helpful this is or not. I mean if it if it goes well and orderly then it’s an orderly case against the president which maybe doesn’t get him impeached and a Republican Senate but which creates the conditions for the election if it’s a total chaos nightmare for the Democrats in which they act as a disorganized party which is almost in the Democratic DNA code then it becomes something where the president says and this is in line with his ad campaign the rendering the press during the World Series. Yeah. You know he does something on uncouth stuff and he’s a little rough around the edges but you know he gets the job done now. Nevertheless. Never mind what the job was in this case because in this case it was to counter Veen American foreign policy views in the furtherance of his campaign never mind all that. It’ll it’ll you know the president will able to sort of use the the confusion or the lack of sufficient evidence to say look these guys are just sitting here doing nothing. And at least I’m getting I’m getting things done. I want to just say three other quick things that are worth keeping in mind. ANDREW JOHNSON When we think about the what people get impeached for two of the articles against him. One was making three speeches with the intent to attempt to bring into disgrace ridicule hatred contempt and reproach the Congress of the United States. And then the next one after that was bringing disgrace and ridicule to the presidency by his aforementioned words and actions. So essentially Andrew Johnson two of the articles against him were for being a big mouth which is just an important little historic reminder that when it’s a partisan process the partisan partisans can make the Articles of Impeachment whatever they want. The problem with that is it’s got to survive in the Senate. What might happen in the Senate I was talking to some senators on the Republican side yesterday who said there is a movement from some of their members to try to vote to immediately dismiss it once there’s some sort of a motion dismiss at the beginning once this gets to the Senate as it’s likely. And they’ll assume it will. Robert Byrd the master of the Senate self-proclaimed actually brought up a motion to dismiss with Clinton in 1998. And if you go back and read what the House impeachment managers said at the time about the motion to dismiss was they basically said this would be a total abrogation of the Senate tradition and history. So we’re gonna have that repeated one more time here as we as we go forward.

S4: Just opposite this hole in my memory what happened in the Senate in the Bill Clinton impeachment trial.

S9: They basic. Well David will correct me here but basically Trent Lott and Ted Kennedy put together a deal. Basically they were they all were like look we’re not going to convict him but the Republicans had to do that. They felt like they couldn’t just say oh thanks. House managers you did a nice job but we’re going to dismiss this because it doesn’t hold up and we’re we’re never gonna get the votes you’re never going to get the votes anyway. We have to do basically the minimum to show that we take this seriously and that we care about the work that you did. But that’s going to leave no kind of foolishness and loose ends that will let this get out of our control. So basically Lott and Kennedy came up with. I’m going on. This is all from memory but Latin Kennedy basically came up with an agreement to limit debate to a certain number of hours they went and did the debate and then they had the predictable vote that they were going to you know they limited the majority and it was a majority for several.

S5: No they there were some.

S15: Yeah. Oh yeah yeah. There was evidence there was evidence and there was. You know they went through the proper procedure but they put a time limit on it and it was a relatively short it wasn’t super super long.

S5: Yeah it was about 10 days I think and the vote the vote was a majority vote to convict. But it wasn’t a supermajority needed.

S19: Right. Right. I did a couple of the reason I was thinking about this is that it’s important to remember that the impeachment inquiry in the House is not actually the trial so. Right. Like Trump is getting a lot of due process for what is essentially like the building of the case for indictment.

S14: I mean it’s not a perfect parallel to the criminal process but there are these two steps and the actual trial part which is where in a criminal case most procedural rights attach is not even until you get to the Senate and two other things that I was reminded of by someone on the Hill yesterday is one during the trial you cannot have a Blackberry or an iPhone.

S9: It was blackberries back in 98 I guess. So they’ve got to sit there and listen all the jurors and they’re not allowed to talk to each other. And Rehnquist was pretty strict about that. So having the senators focus for that long length of time and not be able to talk is going to be a stranger strain on the body on on its own but it’ll be it’ll be really interesting to see if it gets to the Senate or how that motion to dismiss works because it was it obviously wasn’t successful in 1998 but surely somebody will try to gain a few news cycles out of out of that and consider and then we’ll watch Susan Collins and Lisa Murkowski and one or two other poor souls be hung up to dry and go through some long anguish especially Susan Collins in which in the end she does whatever is politically expedient for her to do.

S12: One thing to watch out for is there’s this Kentucky gubernatorial election next week whenever that’s when the election’s all right. Elections are next week. Yeah Tuesday and the incumbent governor is incredibly unpopular Republican Matt Bevin and he’s running against a Democrat who is just focusing on state issues and the unpopularity of the governor Governor and Bevin is trying to make it about impeachment. Bevin is trying to nationalize the election and make it not about Kentucky make it about make it about Democrats is trying to impeach the president and it’ll be interesting if if Bevin pulls it off I bet that will embolden Republicans at least in in very red states that in certain places it can be a winning issue. I want to end actually we haven’t really talked about the substance of a lot of the testimony that came out this week but I had a I want to leave you guys with a question which is is it now possible for Trump or another president to do something like this again as he did with Ukraine. So now signal to foreign governments we will help you if you do our domestic political bidding like that. If you do if you do something to help me we will help you. The Trump has sent that as the strongest possible signal it is now out there to the world. But on the other hand you can imagine that if we suddenly see the government of whose Becca stand announcing an inquiry into Elizabeth Warren’s investment in news Becky mining companies that people are going to say oh this is just a dirty trick. This is this is this is a false flag. And and so it will never be trusted.

S17: So it is has Trump put himself in a position where he’s going to get more of these or that he can no longer do it which which is it likely to be I think that in the medium to long term if we don’t make a big clear declaration that this is not OK it’s not consistent with our values as Trump’s new Russia Ambassador. And point you said I believe on the Hill that we are going to get more of this. It will be a behind the scene. It will be corrupt and it will continue because we are a huge power and people want to deal with us. And you know one of the defenses of Trump is going to be that quid pro quos happen all the time in American government of course we’re trading things for other things. What we have to keep our eye on the ball is that that does not mean that the president gets to use the might of the entire government to further his own political personal interests by digging up dirt on his political opponent like that’s the part that’s not OK.

S9: Well that’s that’s exactly right. Is that the means and ends. I mean so what always happens is people who are in trouble on the ends front say oh but previous presidents have said things that are untrue. OK. But previous presidents have said things that are untrue in the furtherance of something that is at least attached in some way to an American value or that is in the furtherance of something that is can be nominally put in the category of the jobs that the job that a president should do in this case. It’s using that technique. And by the way as we all know the quid pro quo is only one part of this and isn’t necessary for him to make the case that the president has has bent the foreign policy process in his in his White House in a way that’s objectionable. But you’re exactly right.

S5: If you’re going to use the tools of statecraft you have to use them for the state and not for yourself Hey get us listeners remember we are going to be live at the Fox Theater in Oakland California on Wednesday December 18th for our annual conundrum show for tickets information go to Slate dot com slash live there’s still tickets available we really want to see you there that is going to be a delightful delightful live show and we also want to collect your conundrums so tweet to us at Slate gabfest with the hashtag conundrum or go to Slate dot com slash conundrum and submit your conundrum there but really it’s a glorious night. You will learn a lot about the failings and in our character probably mostly but you’ll also. It will be it will be a laugh riot. Go to sleep dot com slash live. Wednesday December 18th Fox Theater in Oakland in a series of tweets. On Wednesday Jack Dorsey the leader of Twitter announced that Twitter would stop allowing political advertising or issue advertising about politically contentious issues. This of course is in stark contrast to our friends at Facebook whose CEO Mark Zuckerberg said last week that Facebook would even accept political ads that are lies that would not fact check line political ads and would gladly accept all sorts of political ads from whoever want to do it for any candidate that wanted to do it. And YouTube too which also accepts a lot of political advertising. So Emily is it a big deal that Twitter is turning down these ads. It is a infinitesimally small amount of money that is at stake for Twitter. It is not a big platform for political advertising.

S11: It’s more about the debate among the social media platforms and among all of us about what we think the standard should be than it is about the practical import of Twitter running political ads. I mean Facebook just has such a giant footprint in this world because of Facebook itself and then also because it owns Instagram and WhatsApp. You know Jack Dorsey is like a million people pointed out immediately was basically sub tweeting. Mark Zuckerberg and getting a lot of praise quickly online from people who are concerned about false political advertising. I think a lot of us tend to see this through the lens of Donald Trump because the Trump campaign is running already a false ad about Joe Biden. And so it just seems like that is a threat. There is a counter argument about the way in which political ads especially issue ads can be very helpful for groups on the left and the right that are getting started a way of galvanizing people of making campaigns come together. You know other candidates in the Democratic field like Elizabeth Warren and Bernie Sanders have seen their support really grow in part because of support and you know kind of avalanche of attention on platforms like Twitter. So it’s not that this is like absolutely a slam dunk thing. That’s the right thing to do. But this problem of false information about elections and the way in which disinformation is destabilising people’s faith in the media all kinds of media traditional and social media. That debate is really important for us to be having. So I’m glad for that reason that Twitter is taking a different position and just making us all think about this.

S20: One of the things that I find bizarre about this John is that the if the premise of it is essentially the political ads are lies because if all political ads were in fact truthful ads ever.

S12: Now I don’t think I think it is. I do think that’s the premise of it.

S17: I think the premise is that some of them are lies and Twitter was saying we can’t police. We don’t want to get in there and decide which is which.

S7: Right.

S5: But so it’s essentially saying we’d rather than the other rather than having money rather than having speech including what we all recognize are legitimate and legitimate discussions of political issues and framing the political issues so that candidates can make their point about who they are. It is safer it better for the public health for hygiene for political hygiene for their to be not this discussion at all for the discussion to to to have to take place in other ways which I as a matter of public health as a matter of epidemiology I think is probably correct. But it is it’s it’s a little bit disconcerting for us to kind of collectively agree that that the health of the country is better off if speech is limited in this way.

S21: Well remember we’re talking about the reach of paid stage not speech at all. Right. That’s an important that is totally hip. John I’m sorry I interrupted.

S6: Well that no that was actually just the point I was going to make is the argument is that the rich should be earned and not paid for. I wonder if there is a hazard in that which is to suggest then that anything that has reach has some kind of value because Reagan’s legitimate. It actually it absolutely doesn’t have that. And and if we go all the way back to the beginning of our constitutional experiment the idea of something that gains reach through popular passions is actually to be feared.

S18: So that part of it’s a little trick Erica had to jump in there. I think that would be an easier point to make if Twitter itself wasn’t such a atrocious ecosystem where people are able to gain reach through all kinds of dark methods you know using robots using fake personalities using you know some kind of baleful completely mysterious foreign influence at least with money the money it’s money it’s it’s pretty hard transparent.

S20: I mean I think about another solution to this might be Twitter will allow political ads but the kind of they have to be the tweets have to be super labels like here’s how much it cost or here’s you know here’s who this is targeted at. So it’s very evident what’s going on. But instead what’s happening is you have this ecosystem where there’s all sorts of disgusting hostile stuff where white nationals are allowed to flourish where anti-Semitism allowed to flourish where all kinds of mysterious troll ish foreign interference is allowed to flourish. And that’s OK because that’s somehow like legitimate grassroots speech happening. But this purchase speech is not allowed to happen again. I don’t know that. I’m not saying that the the solution is the wrong solution it’s just it doesn’t really solve the problem that we have which is that Twitter and Facebook are are poisonous garbage piles for destroying political debate and discussion.

S6: I like the Emily’s framing that this is best to be thought of as a chess move and an ongoing act of competition between social media companies and that Jack Dorsey said in his long Twitter thread where were that it was hypocritical to say we’re working hard to stop people from gaming our systems to spread misleading information. But if someone pays us to target and force people to see it well then they can say whatever they want. I think that’s a nice thing to call out but I think to your point David that the problem is that anybody will think that this actually gets at the root of the problem. It is a kind of perhaps good thing although we’ve talked about how it may in fact have backfire effects. But whether it’s good or backfires it’s really not. It doesn’t feel like it gets at the core core thing. One thing I wonder for either one of the two of you is if you were a low information voter who is going to be influenced by a political ad a Hamilton voter if you’re going to be influenced by a political ad and there’s some problem with this question. But anyway stick with me if you’re gonna be influenced by a political ad and therefore it should be taken away from a thing that conveys value because of its reach. Aren’t you going to be swayed by some other thing pretty quickly and easily and therefore the actual effect of doing this is really not going to change the actual environment.

S22: Yeah I think that it will have a small effect overall. That doesn’t mean it’s OK to take money as a company for lying. Political advertising it’s but it’s not an overall solution. I mean I think what you’re putting your finger on is this fundamental challenge of creating a method of incredibly effective communication in terms of transmitting you know messages and ideas over these huge networks but then having a problem of just being completely overrun in low quality or false and formation like what happens when the way in which speech is suppressed is that there’s so much terrible speech that you don’t know what to trust anymore and the true speech. True in any kind. Just gets like completely overcome by that dynamic. We haven’t faced up to that or and we’re just starting to have a conversation about it because it’s antithetical to how we think about our first amendment. We imagine still it’s marketplace of ideas in which the good ideas triumph in the end not one in which the sludge buries anything decent beneath it.

S6: By the way if people are concerned about the about Donald Trump and and his ability to kind of hoodwink people into voting for him again which I think is implicit in some of the applauding for Twitter and some of the efforts to kind of try to sanitize what say you know a bilge filled venue if you look at the 30 second ad that the Trump campaign bought during the World Series on Wednesday night you will see a far more powerful and effective ad is good.

S9: It was a really good ad and it’s going for the voters they need to say it was basically the president touting with you know the traditionally massaged figures but the economy creation.

S18: Yes a million new jobs 500000 manufacturing jobs. We smashed ISIS.

S9: Exactly. I mean it’s it’s it’s your typical political ad which isn’t to say that it’s true but it. And then it has a line in which it says he’s no Mr. Nice Guy. But sometimes it takes a Donald Trump to change Washington and also obviously has the al-Baghdadi news in it which is of the moment and this is aimed right at those you know suburban voters. And basically saying trying to put in a category all of his downsides into the basket of oh well he’s no Mr. Nice Guy but he gets the job done that will be the bigger or more effective saying then then then the kinds of ads that are being taken off Twitter I would guess I feel I can feel myself getting out on the end of a letter on air but who knows.

S6: But I mean I think what I think the kind of the most powerful.

S17: Right. Like that’s his pitch for him. That’s Trump’s life. Like people should hear it and decide what they think about.

S16: But but I think that the more the thing about these Facebook and social media ads and we’ve heard this about Facebook. Don’t not enough of a Facebook customer to know this. Is that what you have is this tiny micro ecosystems each of which is getting its own targeted Facebook ad aimed at the susceptibilities of the people who happen to be interested in those subjects and those may be suppressing the vote and some of those may be incredibly effective but it’s almost that there are too many of them for us to know whether they’re what’s happening what’s going on.

S22: Do you think Emily just switching also sorry can I say one more thing about this. And also to piggyback onto that there’s the problem of how watching the political ads paid for reach could affect your personal algorithm. So then other garbage comes in that’s not paid for because of your interest in the political ads or just the fact they clicked on them.

S18: Emily actually while we’re here around Facebook let’s just talk about their contrasting approach and there is a very interesting story this week Facebook had said Mark Zuckerberg had said in response to questioning from Alexandria how’s your Cortez effectively. Yes you a political candidate can lie in an ad. We’re not going to stop them but that is we are they are have essentially unlimited speech rights to say whatever they want in an ad that they’re paying for on our platform. And so we now have this episode where a man in California named Adriel Hampton set out to create a bunch of dishonest ads attacking certain Republican candidates.

S16: Facebook dinged him saying he wasn’t a candidate himself so he couldn’t. Those ads were not allowed to go through. Then he made himself a candidate. He put himself on the ballot to run for governor in California to create dishonest ads. And Facebook is stopping him from creating line ads essentially saying well he announced that he’s going to lie so we can stop those ads. So you’re only allowed to create lie in ads if you don’t say that you’re lying about them.

S5: Do you think that the Facebook position which is that all ads can all candidates can say whatever the hell they want regardless of truth value is going to hold no for precisely the reasons you were just laying out.

S11: I mean look the fundamental problem here is that we are relying on a company to regulate our speech. And like this is not going to work. Like where is the FCC in all of this setting rules. We have some constitutional law. It’s sort of dimming but it still remains that commercial speech. In other words paid for speech has less value than other kinds of speech. There is a way in which the government could be setting some limits on whether political advertising can be utterly false but leaving it up to a corporation means that you’re having these judgment calls that immediately kind of eat away at the edges of the rules. Well that you just sat and then the rule becomes sort of permeable and isn’t right. Part of Zuckerberg justification is we don’t want to be in the business of telling you what you can see and what you want who can influence you. But like guess they are setting limits.

S6: Can I just go back to one thing which we’ve talked about before but which Emily when you were talking about the you know the conditions the laboratory conditions in which we would best hope to allow voters a chance to apply their reason towards the facts of the case and therefore pick the best candidates. I mean influenced by the enigma of reason the recent book that basically argues that that we we misunderstand reason that basically what reason is for is to justify ourselves and then and then explain our justifications to other people that basically where we’re all just huge post hoc rationalizes and that we do what we do and we’ve we are attracted to what we attracted to and then we use our reason to claim to to construct something that makes us basically be able to look at ourselves in the mirror or go to sleep at night. And if that’s the way we use reason then we’re trying to create a laboratory here in which none of us really want to go in not because what’s in the laboratory isn’t pristine and perfect but it’s because we’re just not interested in that game that game being the application of reason towards facts to make a decision. That’s the best for mankind. So if that’s true then though then that again sort of blinds us from understanding how these social media networks work and how traditional advertising works and how political speech works.

S22: But if that’s true then don’t you want checks and balances and yet to be reined in right.

S17: I mean that’s an argument basically like the human ID is destructive and we have lots of rules in society that try to prevent the human ID in its completely fully realized form from running every. Yes yes. So this is just one more.

S9: Yeah yeah. I didn’t mean I didn’t mean to suggest throw our hands up what can you do. Your narrative is your narrative my narrative is my narrative I guess what I meant was is there a smarter way if you recognize the fact that reason is about post hoc rationalizations then how do you attack that problem. Where do you attack that problem. And it’s just I guess my point well that question and therefore then how does this move get at that problem which it seems to me is the much bigger problem in a in a society that tries to take collective action to meet the challenges of the day.

S22: Yeah. I mean it’s a great question and it reminds we should bring we should say it’s always important to say that whatever is happening on social media relates to and is less important than what’s happening on television still. Like that’s how so many voters taken their information. It’s wrong. It’s just a mistake to leave that out of the conversation and television has its own ways of manipulating emotions et cetera. And then we get into this question of like how do you inoculate people against false messages. There’s some research that suggests that if you tell them beforehand like hey someone’s going to tell you climate change is a hoax and they’re telling you that because they have their own agenda that can be helpful.

S6: Final point is the problem. You’re exactly right about television in the region. And one of the other problems of classification here is we tend to see the world through Twitter. But man it’s amazing how much social media affects the decision made in what goes on and how it is how debates are framed in television.

S11: Yeah yeah. That’s part of what I mean is they’re related to each other.

S16: Slate Plus members you get bonus segments on the Gabfest and other Slate podcasts today. You have a special Slate Plus segment coming because Jon and Emily were having a extremely boisterous just extremely smart conversation before we started the show. And and they just because they are true public intellectuals they’re also private intellectuals and they were engaged with each other around a really interesting topic involving separation of powers. I think I was I was doing other things. I was just doing clerical work. And so we decided because the tape was running we’re going to do that is our Slate Plus conversation it’s going to be a super treat so go to say dot com slash the efforts plus to get unadulterated. DICKERSON

S23: Beth on Katie Hill freshman Democratic member of Congress in California resigned from the House this week after a strange and sad scandal involving workplace sexual misbehavior on her campaign possibly in her congressional office and then a revenge porn incident may have been orchestrated by her estranged husband or by a former girlfriend of hers. Emily do you wanna walk us through the basics of this where how we got where we are.

S14: Katie Hill Yeah this is kind of sad saga right. So it seems like confirmed that Katie Hill and her husband were having a relationship with a 22 year old campaign staffer which is not technically against the congressional rules but seems to fall into the realm of like very questionable judgment especially because there are attacks suggesting that the staffer felt abused by this three summer relationship and there were some you know unpleasant parts of it that made her feel exploited. OK. So that happened you can think about that then there is this problem that Hill’s ex-husband or her husband who she’s planning to divorce at least according to Hill let out into the world a whole bunch of sexualized pictures of Hill which are out there you know without her consent. And that’s very troubling because they’ve been used to humiliate her. And and that’s I mean in my mind they clearly really bad. And that would not be a reason to suggest that someone should resign from Congress. Then there’s a third issue which is that Hill’s soon to be ex-husband has accused her of having an affair with a staffer on the Hill separate person. And if that was true that would violate congressional rules you’re not allowed to as a member of Congress have a sexual relationship with someone on your staff. But we don’t know whether that’s true. And Hill has denied it. So it’s tricky because if the third box if you could check it like yes we knew that that affair had happened. That’s clearly against the rules. There are all kinds of good reasons to have those rules doesn’t matter. In my mind one wit that. Hill is a woman and the staffer as a man instead of the usual scenario of the other way around. If we knew that to be true then it would be really clear that Hill should resign but we don’t. And so then that leads me back to the initial set of accusations about this relationship with this 22 year old female campaign staffer. And really the question is whether that in my mind. The question is is that poor enough judgment on its own. Does it smack of you know Bill Clinton and Monica Lewinsky in a way that’s just like not OK. And so that’s grounds for a hill to resign without the other parts of the story.

S18: And I actually can I add a fourth element which just came to light in the last couple of days which is that it also appears that this is fundamentally a oppo research scandal in the sense that the person who wrote the story for red state the journalist who broke the story was an adviser to consultant for Hills Republican opponents not to say that that the facts in this are necessarily an accurate. It does have an element of political hit job to it as well and to use it repurposing media for political purposes.

S10: One quick definitional thing. Emily the I was confused by so 2018 following the meeting room in the House of Representatives decides they’re going to they’re going to new rules that prohibit sexual relationships between members and their aides.

S6: That’s clean. OK. So but we’re talking here about a campaign aide. But the Post reported that the ethics committee had concluded that that it did have jurisdiction over campaign stuff. Now successful campaign in a successful successful campaign. Right. OK. Right. Because for the same reason the ethics committee has no sway over somebody who resigns after they resign it has no sway over defeated campaigns because they’re not a member of Congress.

S9: But here’s the question I understand about the post is does. Does the fact that the Ethics Committee looks into campaign behavior of successful candidates you could imagine. So that’s fine. Let’s imagine it’s staffed or something. Does that carry over to the coercive nature of a relationship. In other words is this claim that a course of relationship with a working staffer in the Congress is the same as a course of relationship in the campaign.

S6: I think we don’t know the answer to that but I. There seems some lack of clarity there. Setting aside the point you made which is that if she was having this affair that’s been alleged that she denies what somebody is existing on her staff that is clearly a problem.

S14: Yeah. I mean I think the answer to that is that Congress hasn’t decided yet. Like this is a new rule and so they probably don’t have a lot of examples yet to make that decision. Whether their jurisdiction and also their standards are just co extensive in the campaign scenario.

S21: I mean I think they should be right. Well I’m sorry I lost the predicate they should be the same.

S11: I don’t really see why you would have liked the reason that you don’t want a member of Congress to have an affair with a staff member as the power imbalance there. And the same if not more applies in the setting of a campaign where you have often a lot of really young people you have like a much more tumultuous it kind of UN tethered set of working relationships like people are working all the time there in all kinds of informal situations with each other.

S22: That would seem it seems to me that if the rules committee is going to say we have jurisdiction over campaigns then you just want to have the same clean rule and well I’m a little nervous about that right.

S24: Right. You’d say wait a minute what are you. Why.

S18: I mean I think the behavior is just as bad and possibly worse. But but she doesn’t have the job yet. It’s not how should Congress have jurisdiction over something that happened before this person is actually a member of Congress.

S9: Well they’ve claimed jurisdiction over campaigns in other areas. So why would this be keeping Emily’s good good frame in mind is the question of jurisdiction and question of standards. If they’ve already said the jurisdiction relates to campaigns then why should the standard be different.

S18: I mean I think that there could there could be crimped. I mean as an EEOC complaint or criminal if someone steals from a campaign there should be criminal prosecution of that. But I don’t know that that Congress. Is Congress entitled to police its members for things that they do before. Before they’re members of the house I guess. Maybe they are. Well I think they do out of the house I guess maybe.

S21: I mean it’s basically sexual harassment right. And I guess. What’s the what.

S17: So here’s the the upside of extending jurisdiction and having the same standard as that you’re creating an incentive for someone running for Congress to behave with care like what do we lose from that we’re at. This is you know again like Katie Hill she’s not going to jail she is going to be fine but she’s about to lose her job like that is not a happy event. But we she was given this position of high honor and trust by the voter. So should someone aspiring to that job start inculcating a personals high standard of conduct before they get.

S18: I guess she’s being punished by the public. She resigned before there was any official investigation and so so what. Why would I certainly agree that if she did these acts there is some punishment due to her and some public suffering due to her as a member of Congress and she abused a public trust money for campaign. I guess what. All I’m talking about is it is the right punishment mechanism the House Ethics Committee sanctioning her or expelling her for Congress for something that she did before. It seems to me like. No there’s a there’s been there’s good public punishment that’s happening. She’s been disgraced and she has chosen to resign rather than face something more official.

S4: Well presumably I’d rather have her go through this due process than have Nancy Pelosi just pull the plug on her which seems to be what happened. Sorry John.

S6: Well also the House could take the public shame into account when it made its ultimate recommendation about whatever it evaluated her her behavior to have been the the and they could say she’s suffered enough and she can stay on and that’s fine. But that’s a determination for them to make because imagine there was no public opprobrium. So with that then mean the House does nothing. I think the standard question goes this way I think and it’s a version of what people hauled out when they were talking about the Russia matter with President Trump was I think it was Hamilton who said basically how you come to office if you do that in a corrupt way and infects the office that you hold and therefore any standard. So if that’s the standard then the House can say well what you have done after we’ve sifted through all the facts does or doesn’t in fact the office or you’ve infected a little bit and so you’ve been censured and now you can continue being in the office. But we’ve cleansed it and we’ve made this determination on behalf of the body relative to the way you got into the office. I guess that’s the way you would kind of work through how to apply a standard to something you were doing before you had the job.

S21: That makes sense I mean the other thing is that the resigning before there’s any point in procedure right.

S8: I just said fruit of the poison tree or the poisoned trees just to give just to make count.

S19: That’s from the fourth and then that you’re dragging it into a different context entirely.

S21: I guess the reason I wish that instead of just these abrupt resignations and I’m thinking now of Al Franken situation I would like to have some procedure for the sake of the due process rights of the member.

S11: Yes but also because especially if this well actually in both situations I would like it to be clear what the actual problem is right you have a swirl of accusations and improper I do not want Katie Hill to be punished start to have to resign because of these photos. And so if she’s done something wrong let’s like isolate it make it clear what it is and not have someone feel like she’s being punished for something that is like a terrible blow to inflict on her and deeply unfair.

S18: Yeah I mean it is interesting we’re human beings nothing should be interesting. It shouldn’t it shouldn’t be what relevant whether it’s magnetic to you or I and you should. I mean I have not looked at these photos I haven’t read the texts I haven’t I haven’t done any of the kind of due diligence about this because I feel like it’s whatever I wouldn’t if I were in the they on the other end of this I wouldn’t want people to do it to me and I think it just is not it is not.

S4: Well I read it’s not because I wanted to understand whether the relationship with the 22 year old staffer seemed abusive or not and it seemed like the only way to figure that out was to like read the evidence. I don’t think although the photos was necessary for that and they don’t want to look at anything that smacks of revenge porn. So I didn’t do that.

S6: But the the text seemed like part of the case although yeah although the reason you have a case and the reason you adjudicate this in a search in a place where you can kind of keep some of this at bay is that what people write the dishing people do through texts to each other and the claims they make about who’s abusing whom and for what can be you know highly misleading. Yeah right. Because they they are it’s in their interest to define the other person in as horrible a terms as possible and so you would hope to kind of contextualize that in an informal 100 percent.

S18: Good point. That’s a really good point actually I think. I actually think John makes a very good point there. There’s some people used text is much more like the kind of casual speech than it is like a formal document.

S20: And it would be terrible to be held to account for all the things all like the kind of half thrown out half tossed out remarks that one is made in life.

S13: And I agree. I mean. Yeah.

S18: And so to to excavate to to do a huge dig through no doubt thousands and thousands and thousands of texts that someone has done and pick out and cherry pick the times when they’ve said things which were unfortunate or abusive or like you know reveal something is it’s kind of gross and maybe we should maybe we should declare those to be almost off limits and the way that that I think you would declare you would hope that that these photos are off limits or there’s other forms of what are basically private casual communication should be you should look at them only in the most rarefied circumstances with a lot of guardrails around it.

S17: To me what you’re talking about is what makes sense to me is that trial by media is a big problem. This is another thing with having no process like if Congress was looking through the tax and then deciding in context viewed as a whole whether there were abusive elements that were dispositive.

S25: That would be a lot better than like whatever happens to rain down on us from what Katie hills allegedly abusive soon to be ex-husband is leaking.

S26: Let’s go to cocktail chatter when your I don’t know what you’re doing when you’re when you’re not looking at revenge porn not reading other people’s texts just having a contemplative contemplative cocktail.

S23: John Dickerson this weekend we’re gonna be chattering about.

S10: Well you know we often lament the things that aren’t being covered as much while the madness of our age is has its all in its grip. This week the National Assessment of Educational Progress the nation’s report card the NABE scores came out and they and Emily will put this in context. If I’ve freaked out about this too much but two out of three children in American are not. These are fourth graders and eighth graders are not proficient in reading the numbers which is you know awful. The numbers for certain cities since 1990 have actually improved a little but at about 2009 these basically they plateau in the cities Washington D.C. Actually the twenty seven cities to participate is actually doing saw improvement in eighth grade reading but basically the the situation is getting worse since 2009. And there there are a number of troubling lines in this Times piece that where I learned all of this. But perhaps the most troubling line was there is no consensus among experts as to why and so we see obviously two different kinds of responses from the Department education which is to push charter schools and then you’ve got the the some of the discussion on the presidential campaign trail with Democrats. But it seems like that is a huge alarm bell.

S23: Emily what is your chatter.

S14: Mean having a kind of Handmaid’s Tale gloom and doom moment here reading about how Missouri is tracking the natural periods of women who visited an abortion clinic in Missouri the state claims to be doing this to figure out how many abortions quote failed as a way of regulating this clinic.

S11: This is all supposed to be in the name of protecting women’s health and making sure that abortion clinics are safe places. But in reality abortion is a much much safer procedure than many other procedures. The state is not anything like this invasive about end. I mean I just the idea of being a patient at a clinic and giving up this private medical information and then having it turn into some spreadsheet that state officials are picking their way through is just like utterly horrifying to me. And I just do not understand how this is where we’ve arrived.

S23: It’s grotesque. I have two quick chatters. I was just going to one that I remembered the second one first is we didn’t talk about the death of ISIS lady ISIS leader Abu Bakr al-Baghdadi but there is a very interesting detail everyone is talking about these dogs and there is a really interesting detail that didn’t know about dogs which is that the dogs outrank their handlers. According to Army regulations the dogs are given mean dogs don’t have a rank. But but in Army parlance an Army tradition and Army custom the dogs are one rank higher than whoever handles them. And the idea is to prevent mistreatment. The idea is that the dog is sort of the superior officer and so that whoever is training them will treat them well. I doubt they mistreat their dogs anyway. But it’s a it’s a kind of interesting odd tradition. So my other chatter is I’ve saw a very interesting exhibit at the Kennedy Center this week in the Kennedy Center has a new in Washington D.C. has a new arm it’s built an extension called the reach and it has exhibition space and performance space and classroom space and the inaugural exhibition is portraits by President George W. Bush of wounded warriors. It’s called Portraits of courage a commander in chief’s tribute to America’s warriors. It’s about 100 portraits that Bush has made over the years of mostly men and a few women who were wounded in action mostly in wars that the president himself started in Iraq and Afghanistan. It’s plain it’s it’s up at the reach until November 15th and it’s pretty good. It’s actually pretty good. His portraits are they look like real people they feel like real faces you feel like you’re seeing something in them. They’re not the greatest portraits you’ve ever seen but he has a real style and there’s a real emotion to them and it’s good. It’s like a it’s you will get more out of it than you might get out of some other random exhibit. And there’s also a kind of charming interview with Bush at the start of it where he’s quite funny. So if you are in Washington in the next couple of weeks I kind of recommend this yeah.

S4: All right so. Well it certainly was surprising.

S23: You know I kind of went on a lark. It was I wanted to see the reach and it was what was plain. But it was it’s for real. It’s for real. And it’s a it’s a genuinely interesting project that he’s undertaken. He’s done it well he’s acquitted himself well and it says something about these people and about America and about him and it’s it’s there’s nothing nothing but admiration for me. Their listeners. You continue to send us great chatters you tweet to us at at Slate gabfest that which you were discussing at your cocktail parties and this week we have from Chris Anderson at at Chris and HAMP a very funny listener chatter which is a kind of a version of I think we actually did an earlier version of something similar to this but it’s about some eagles that we’re being tracked by Russia migrating eagles and these migrating Eagles were flying all around Russia and the steps and then they went south into Iran and they had these tracking devices on them. And what happened is when they went to Iran these tracking devices suddenly racked up enormous roaming bills. So this this reach these researchers said they didn’t expect their eagles to go that far. And so they didn’t anticipate that and pay whatever you need to pay to get on the Iranian the Iranian cell network. And so they end up with these gigantic bills from these eagles that were constantly sending signals back about where they were in Iran. And it was about how they had to scramble to to pay off the bill and how they had to ask the mobile carrier to cut them a break. It’s very charming little story so check it out on Engadget about migrating Eagles.

S27: That is our show for today the Gabfest is produced by Justin Frank. Melissa Kaplan engineered here in D.C. and she’s in an absolutely spectacular Halloween outfit. Is. She’s Gentleman Jack. And it’s just it’s just such a treat to see her our researchers Bridget Dunlap. I have no idea. Bridget is in costume. She’s in costume as a brilliant researcher but that’s not a costume that’s her real life outfit. Gabriel Roth is editorial director June. Thomas is managing producer of Slate podcasts. Ryan McAvoy engineered Emily in New Haven. I don’t know if Ryan’s in costume. You should follow us on Twitter at at Slate gabfest. We chat to us. Tweet conundrums to us with hashtag conundrum and come to our conundrum show on December 18th in Oakland at the Fox Theater. Go to Slate dot com slash life for tickets for Emily Bazelon for John Dickerson and David Plotz.

S28: Thank you for listening. I’ll talk to you next week.

S16: Hello Slate Plus unusual Slate Plus segment today we had a whole segment planned but then as we were getting ready to start the show Jon and Emily fell into conversation. And while I was doing some other random thing and their conversation was incredibly interesting. So at the end of it we just said why don’t we make this our Slate Plus segment. So here you have unadulterated Dickerson Babylon brainpower.

S19: I have this piece that’s closing tomorrow that has these various separation of powers framers thing in it and the one thing I will say to you which is so obvious but I’d never thought about is this great quote where the Supreme Court says if they’d want if the framers had wanted to prevent friction between the branches they could have created three airtight departments and they didn’t.

S4: And I just never really thought about that. I mean it’s super obvious but they overlap in all these ways right. Yeah. So and there’s a quote there is like quotes from Madison about how we are saying that they’re in each other’s way. That’s not right. But I can find the globe. I mean I haven’t.

S11: You mean separate No apart from Amber ambition versus ambition or Yeah there’s one where he just says it’s the separation of powers does not mean quote that these departments meaning the branches ought to have no partial agency in or no control over the acts of each other. That’s from the Federalist Papers.

S29: Yeah. And who is that because by design or just post hoc rationalization for bad.

S4: I mean you have to go look but it is by design like in the sense that when you think about I mean there are all these examples once you start thinking about it right. Impeachment is an example selecting you know advice and consent as an example right. There are all these ways.

S6: Yeah. Well because they wanted. They wanted everybody to constrain everybody else by giving them a little bit of a foot hold in the other’s power. They thought that would be a check on the power precisely.

S21: Part of checks and balances. Yeah exactly. I just hadn’t really thought of it in those terms. Somehow I guess.

S4: And then then I was also I know that there’s another thing that I didn’t end up writing about but the whole battle we’ve had since Watergate over how to investigate the president is about this can you have the first the Independent Counsel Act puts part of the responsibility for choosing a special prosecutor with the judiciary then we decide the country. They both parties decide like the special counsels are going too far we don’t want that anymore and now it’s back in the executive branch fully. And then that has problems too right.

S29: So what I’m. Yeah. I mean the whole reason I’m going back to the founders is is basically saying you know they thought long and hard about how much would be done by the system and how much would be governed by the virtue of the person in the office. Yeah the difference between the people who make the moralist case and those who make the institutionalist case and both are you can’t. You have to have a mix of both and the problem is we’ve had maximalist presidents like our current one who I went to talked to a bunch of senators about this yesterday and they’re like we never thought they would. I mean the founders never thought that a president with jam his foot on the accelerator like this the whole point of hiring somebody with a sufficient amount of virtue is that they would know when to pull back. There’s this great section in the debate over at the Constitutional Convention where they basically say you know the president doesn’t need a veto power because if he realized Congress really really really wants something he’ll stand back and recognize that like if they wanted that much they must be right to veto it I’d have done right.

S4: But Brian I wonder that and you must be grappling with this is that because the framers also weren’t thinking about parties and so they say yes to that dynamic. Yes you even. All of these things just are different. Because of that everything is different.

S29: Exactly. So they they were like talking about the quaint rules of monogamy and turns out it was Babylon within basically one administration. Yeah. No it’s it’s crazy they when you think about originalism and whatever that actually means they not only obviously work but they not only were awful with respect to the rights of humans with respect to slavery right but they completely missed and they were obsessed with ambition and power and and designing knaves obsessed right. They were freaking out about it. And yet they missed that parties would be upon them within like five minutes. Yeah right. That’s crazy when you see it when you look at how completely obsessed they were about the absolute original sin of man and how that had to be guarded against in government or else. Yes it’s crazy that they missed that I I kind of run by that quickly. But but it’s actually true. Yeah. Now it. Now I want to send you all the hold of the founders.

S4: We’ll tell do whatever you would like. I didn’t know anything about the history of congressional investigations. I don’t know if this interests you and maybe you already know all about it but they turn out to be super I mean this is again odious and yet you can’t. Rely on the third branch to check the presidency. You have to have Congress. And the truth is when you look back at that first of all Congress has been investigating the presidency since George Washington. Like the very beginning of end there were all these questions that actually were sort of unsettled but assumed like the whole notion does Congress have subpoena power. Can it hold witnesses in contempt.

S13: They just did it for a century it wasn’t until 1927 that the Supreme Court said Yeah go ahead. But they just had always done it. And and I guess the other thing that struck me is that there is no implied enumerated issue. Yeah yeah yeah yeah exactly. And also this this. Another obvious but important idea that a crisis especially a corruption crisis becomes if you actually address. If Congress digs into it it becomes an opportunity.

S19: And then the you know so the big examples in my piece are Teapot Dome and Watergate where yes you investigate and you topple high officials but then afterward Congress takes a minute and is like OK well how do we make sure this doesn’t happen again. And so I didn’t. Again you may know this but the reason that the House Ways and Means Committee can now demand Top Trumps tax returns is that during the Teapot Dome scandal only President Coolidge had the power to take to it to request tax records from the IRS. The president already explicitly had that authority and it makes sense that you would confine that authority right because you worry about like people going on privacy violating which is cool. So there are these top of you know the attorney general the secretary of the interior and a couple of oil magnates are all implicated in Teapot Dome. And Congress says to Coolidge which isn’t even the Teapot Dome president right.

S30: He sure right. His heart. Yes from Harding right.

S4: Right. But so Congress has to Coolidge we want their tax returns can you go get that. And Coolidge at first says no. And so then when you read the correspondence among his top aides including Andrew Mellon who’s the charges they’re like we’re nervous about this like looks to us like privacy violations and you know we don’t want to ask for this just to satisfy Congress’s curiosity. And then they work it out. Congress says like well how about if we just inspect the records as opposed to obtaining them. And then Coolidge ends up backing down. But then after the whole thing’s over Congress is like you know what. We want to have a peep. A few people in Congress who can ask for this. And so you have to be the chair of House Ways and Means or the chair of the Senate Judiciary Committee or the two of you together asking for the tax returns. But it was a way of Congress empowering itself so it didn’t have to go to it like that makes total sense in context.

S29: Right. And those moments of self empowerment are you know rare. Yeah but.

S30: But as you point out super necessary. So what I’m writing about at the moment one of my arguments about just trying to draw a sketch out the conversation of the balanced powers is when you see how obsessed they were with distributing power equally every time in the conversation that they would make some determination like how many represent how many people in the population live in a congressional district which was a proxy for how close or distant the member of Congress was from the will of the people. So if it’s a small number of people in the district then you have more representatives therefore you have greater representation of the will of the people. Now that’s great except for those people who are worried about mob rule you don’t want so much that the mob ends up determining what Congress does every time they did something they decide to add the veto power to the presidency. Now we’ve got to counterbalance that by giving Congress more power because we’ve now given too much power to the president when you see them go on and on and on editing this thing until the very last minute. The thing I just mentioned about representation in Congress was actually one of the few things George Washington said over the whole four month period was on the last day. They’re literally about to sign it and he’s like you know what. You’ve got to lower the threshold for representation to have more. So my point is they’re obsessed with each little grain of power to each little branch. If you take that obsession and carry it forward what you talked about after Pete Teapot Dome and when Watergate is essentially an echo of that which is that as the power has shifted and evolved in the American system we would expect and in fact hope that the various institutions would grant and you know this is asking too much but cede power in order to keep that equipoise. And of course they don’t and haven’t. But what you’re talking about is an instance in which they carried on the tradition in the room in Independence Hall which was paid a lot of this power has shifted in this one way. We need to bring it back to two because we’re key we’re keeping the faith of that obsession with power distribution from the original creation and I like that idea of keeping faith with the spirit of the debate rather than the very very specific words because even they recognized that the words were needed. You know sort of constant modification.

S19: Right. It’s the principle is what’s important. And like we may screw up on the details were weird. Just get this is like our first try at the details but we need the spirit to carry forward.

S14: I mean you know in line with that I guess one thing I feel now that I more strongly than I did is that when you look at the aftermath of Watergate and all the really important government reforms of the 70s.

S4: So the Ethics in Government Act but also FOI and the War Powers act like all of the Ford and Carter signed all that stuff and it was not in the interest of the presidency. It was in the interests of the country and really in the interest of Congress. And Congress had just taken down Nixon. So if you’re just thinking about your own institution which is now you know all we have from the Trump administration. It’s it was totally shooting themselves in the foot. But it’s crucial to American democracy that they were well and obviously like they thought the politics pushed in that direction and that’s another part of this is that well and Mike I mean obviously you had the drama of Watergate adding propulsive force to those who wanted record wanted to change the laws to give Congress more power.

S6: So in that sense you had the drama of the front pages helping them but nobody’s able to.

S30: I mean you read the founders and you think man the minute the system gets out of bounds it gets out of alignment. They would have been at emergency panic stations now if you make a structural argument. Basically Rand Paul is the only one on the Republican side now who makes this they talk about the Constitution a lot but they don’t actually do stuff that makes life uncomfortable. Rand Paul whatever you may think of him actually does stuff to make life uncomfortable in the furtherance of you know staying faithful to quotes from Montesquieu. So I don’t know where I don’t know where that where I was headed with that except that well that the politics are swamping the institutional.

S25: Yeah. Exactly. By Slate Plus.