Advisory Opinions - Fauci Pleads the Fifth | Interview: Elie Honig

Episode Date: August 6, 2026

Sarah Isgur and David French are joined by CNN senior legal analyst Elie Honig to discuss  Anthony Fauci’s invocation of the Fifth Amendment. Is it okay? Is it not okay? How does this relate to the pardon power? Then it’s on to a constitutional game show where  each member of this three-person team picks two constitutional amendments they would magically ratify and one amendment they would veto.  The Agenda: –Anthony Fauci can take the Fifth –Did Fauci even have such a right? –Wiping your phone is an obstruction of justice –Amending the Constitution! –Impeachment reform, resizing Congress, and emergency powers –Presidential eligibility, redefining Article II, and repealing the 17th Amendment –We will see a 28th Amendment Show Notes: –Elie Honig: When You Come at the King –How to Investigate a President (with Elie Honig) - CAFE Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we have special guest, Ellie Honig, CNN, senior legal analyst, as well as writer at New York magazine, an author of three amazing books, Hatchet Man, Untouchable, and When You Come at the King. That last one, by the way, is his most recent one.

when you come at the king inside DOJ's pursuit of the president from Nixon to Trump. And what are we doing today with Ellie? I mean, he's a former federal and state prosecutor. And so we've got to start with the thing we haven't talked about yet on AO because we've been saving it for Ellie, Anthony Fauci's invocation of the Fifth Amendment. Is it okay? Is it not okay? How does this relate to the pardon power?

And that will lead us right in to our constitutional game show. where each member of this three-person team was required to pick two amendments that they would magically ratify to the Constitution and one amendment that they would veto. There's a theme that's going to come out of this, at least for mine. States, federalism. What can we do to rebalance not just the horizontal government, Congress, the president, and the judiciary? What about vertical government? The federal government versus the states. I've got some ideas.

let's go. All right, Ellie Honig, before we launch into our constitutional amendment game show, I want to talk a little bit about the Fifth Amendment. You're a former SD&Y guy. You've talked and written quite a bit about the importance of the Fifth Amendment and that as a society,

we need to stop sort of using this partisan whackamole anytime someone on the other side invokes the Fifth Amendment as this kind of gotcha, and you did it repeatedly during the first Trump administration. You are saying it now in relation to Anthony Fauci, sing us a few bars of this before I'd bring the hammer from Michael Dwarf at Cornell Law School who disagrees with you. Oh, I can't wait to hear that. So first of all, first things first, thank you for having me. It's a thrill to be on with you.

I'm a listener. Now I can cross advisory opinions off of my bucket list. I still have to get on to Amy Poller's podcast and the fantasy footballers podcast. And then I will be, I will have hit all three that I listen to and love. Since they're much less prestigious, that should be an easy lift, I would say. Yeah, I'm going to try to use this to parlay. Exactly. You should. You should.

I recommend that. You know, I've been on advisory opinions. So, first of all, to the overarching point, I wrote a piece in August of 2022, which is when Donald Trump took the fifth under deposition questioning by Letitia James. And it was called in defense of the fifth. And basically, the premise of that piece was, I know everyone wants to point and laugh and say, well, he's admitted his guilt and all of that. But Donald Trump, A, has the right to take the fifth, as do you or I, as does anyone else. And B, it's the only reasonable, smart move for him here, especially given that Lettisha James had already announced

before she even took office as she was going to invite him for money laundering. And make sure he, you know, went to jail and sue his ass and all that. So I said, let's not be in the peace in 2022. I said, let's, you got to be careful when you're sort of ridiculing people for exercising their constitutional rights because what goes around comes around. Since then, we've seen two senior members of Jack Smith's team take the fifth when they were subpoenaed by the House Judiciary, or the House, I think it was the House Judiciary Committee. Jack Smith himself chose not to take the fifth. He testified that resulted in what I think is a bogus criminal referral for perjury, but two members of his team took the fifth. Several senior Biden White House

officials, including the Deputy White House Chief of Staff, Annie Tomasini, took the fifth when they were subpoenaed by Congress. And now, of course, Dr. Fauci takes the fifth. My assessment of whether Dr. Fauci technically can take the fifth here is that he certainly can. Because, you know, you heard Rand Paul and Josh Hawley and others say, well, but you've been pardoned Dr. Fauci, which he was, Joe Biden, shoot a blanket pardon on his last day in office, January 19th, 2025, covering any conduct from 2014 through that date through January of 2025. And it is true that any person cannot take the fifth for conduct that would fall within a party because they can't be charged and hence they can't self-incriminate. The thing with Fauci, though, is he absolutely has potential exposure

outside the boundaries of that pardon. First of all, he could face state exposure. And that's not just hypothetical. There have been over a dozen state-level AGs who have at various times since 2025 launched investigations of Fauci. Just the other day, the Florida AG said, I'm announcing an investigation of Fauci. Ron DeSantis has called for investigations of Fauci. So you could take the fifth even on hypothetical exposure. Here, he's got real exposure. And beyond that, and this is, I guess, more debatable. He could also be prosecuted for anything he does federal or state after the date of the pardon. So January 19th, up until today. So what's this guy? Who's this guy who's saying I'm wrong? What's it? What's his deal?

What's wrong with him? What is wrong with him? So this is Michael Dorf over at Cornell Law School and he basically pushed back on a few points. He's not pushing back on your overall, you know, Fifth Amendment philosophical point. He's talking about whether Anthony Fauci in this specific context can invoke the Fifth Amendment. I would say that he makes a few top tier points. One, there is no privilege with respect to anticipatory perjury. Right. So, for instance, if his reason for invoking the Fifth Amendment is that he thought Rand Paul was going to try to set a, quote, unquote, perjury trap for him in the hearing, that does not give one the ability to invoke the Fifth Amendment. You can be held in contempt for refusing to answer questions because that's not a valid invocation of the Fifth Amendment.

Right. Two, his pardon from President Biden on federal charges for the pre-2020 conduct. And three, the implausibility that anything he said would tend to incriminate him for state crimes not covered by the presidential pardon. Okay. I actually think that your point on state crimes is your strongest point. Because, like, who knows? There's a bunch of random state crimes out there. Someone could maybe find something.

Absolutely. I guess my pushback for you is. is something like, does Anthony Fauci or his attorneys have some responsibility then to articulate a credible theory for why he gets to invoke the Fifth Amendment? Or do you just get to say, I invoke the Fifth and I don't need to tell you exactly why? And it could be anticipatory perjury. It could be state crimes. I haven't looked up any. I don't know of any pending state investigations. But I definitely don't want to answer your questions because I don't, I don't know. Someone could want to indict me and that's enough. Surely you're not thinking of that. Right. So first of all,

I stand on my ground on the state crimes. And again, people have to understand the courts, including the Supreme Court, have given very broad deference to people invoking the fifth. Right. The Supreme Court has basically said, you can invoke the fifth unless it's essentially impossible for you to be charged. And so if you could even, and you're right, there are any number of state crimes that could be invoked. What are all these AGs looking at? I mean, surely they're not purely wasting their time. I don't think there's not a red, I agree there's not a readily obvious state crime, but states have false statements crimes. States have misappropriation of funds crimes. Who knows? And you don't have to say, I am worried that the state of blank will

charge me with X. You don't have to be that specific when you're invoking the Fifth Amendment. Second of all, I understand the anticipatory perjury point, but here's why his invocation still works. For example, you remember he was questioned, Fauci was questioned by Josh Hawley about this allegation that Fauci essentially misappropriated federal funds, that he used his own staffers, his own federal government employees on government time to put in for these prizes, these cash prizes, and then he pocketed the prizes. So couldn't his testimony about that go to a potential prosecution for misappropriation of federal funds, misuse of federal resources? That's separate and apart from any anticipatory perjury.

Would he ever have to, he or his lawyer, Fauci or his lawyer ever have to articulate the basis, as we have just done? The answer is not until they're made to somehow, right? You take the fifth, and if it's challenged in some way, and this may come to ahead with the contempt proceedings, then you may have to. If somebody says, and by the way, I dealt with Fifth Amendment and immunity all the time. I was a mob prosecutor. I mean, everyone takes the Fifth, and then you do the whole dance, right? And once in a while, I would challenge it. And then usually what would happen is the witness and his lawyer would meet with the judge, usually in camera.

And the judge would just come out and go, I heard enough, they're fine. I wouldn't even know what they said. So that's usually the way it works. So, yeah, it could come to a point where they're forced to articulate their basis, but I think they'd easily be able to do that in the way I just have. Well, and also, if you're talking about articulating the basis, you're getting dangerously close to compelling testimony as to what the potential crimes you might be prosecuted. That's why it's done in camera. That's why it's done with the prosecutor not listening.

Exactly. You know, I very much wanted what I wanted was to Fauci to walk in and say, come at me, bro, and answer questions. That's what I wanted for the sake of, for the sake of, you know, the public knowledge and understanding about something that is still an extraordinarily divisive time in American life, of which he was absolutely one of the key players. How he became public enemy number one, when he didn't actually have the power to close a single school or state is really interesting to me. But I wanted him to come in and answer questions. But at the same time, this idea that it was bogus for him to take the fifth, especially with so many public officials saying he should be prosecuted at volume at virtually every level of American government. It's almost like a right of passage in parts of MAGA America to say Anthony Fauci should be in jail, should be prosecuted. And so when you've got that at scale occurring, it strikes me as weird that, quite honestly, that someone would say he has no basis for invoking the fifth.

I wish he hadn't. Yep. I wish he would challenge the Trump administration and Republicans in Congress on this. but it's really hard for me to see how he doesn't have, how that was illegitimate. That's the thing about the Fifth Amendment. It's really helpful for the person invoking it and really frustrating usually for everyone else.

I mean, I would love to hear Dr. Fauci's testimony. I think he has some hard questions to answer. Yeah, I've not seen some satisfactory answers. I think he has other things he would be able to answer. I would have loved to see Donald Trump testify under oath rather than take the fifth. I would have liked to see Jack Smith's, you know, Thomas Windham, and was it J. P. Cooney or one of those guys, two of the senior people on Jack Smith's team who took

the fifth. I'd love to hear what they have to say. But that's the price, I guess, of the Fifth Amendment. And finally, to your point, David, anyone who's out there, whether it's this guy from Cornell or Josh Hawley or whoever, saying he doesn't have, Fauci does not have the right to invoke the fifth, my question for them would be, if you were a defense lawyer and you're all smart lawyers, Senator Hawley went to Yale Law School and guy from Cornell Law School, if you were the defense lawyer for Dr. Fauci, would you advise him to take the fifth or not? And if the answer is no, then you're totally incompetent and you could never serve as a defense lawyer. Totally. I mean, totally. Yeah.

I loved this last paragraph from your piece in New York Magazine. The tricky thing about constitutional principles is sometimes they protect people or causes we might not like. The Fifth Amendment could protect Trump one day, Brat and Wyndham and Tomasini the next, and Fauci after that. But if we stand for those principles only when they work in our favor, then we've got no principles at all. And boy, that doesn't just apply

to the Fifth Amendment, pretty much every piece of the Constitution. And that is why you are friend of the pod. Thank you. I want to make clear it's Jay Brat, not J. P. Cooney, who took the fifth. There was two guys, they have similar names. But yes, reading back to me from my article reminded me.

Thank you for back checking that. And yeah, thanks. Look, I mean, I'll tell you guys, candidly. I mean, you guys do a great job of sort of presenting things, I think, in a fair, objective manner and being open-minded to real discussions that are not based on who do I want to win. But, look, I've said before, I'll say publicly, I mean, a lot of legal analysis that's out there is results-oriented. It's, do I love Trump or do I hate Trump? And I'm going to tell you that the legal analysis follows accordingly. When you do that with constitutional rights and privileges,

you're headed down a dangerous path. And I think that Trump's invocation of the Fifth Amendment, that article was not popular when I wrote it. I mean, I wrote it for Cafe's audience, which is quite liberal. And I said, let's all chill a bit with the pointing and laughing and ridiculing for Trump taking the fifth.

It's the right move, and he's entitled to it, and you never know when you might need it. And now since then, you can see the table's turn. I like the Josh Hawley tweet that was basically anytime someone takes the fifth, they're a liar. They're a liar. Yeah. So what are you saying about Trump there, Senator Hawley?

Can I also make one more pitch to the world? Let's all agree to do away with the number of times a person took the fifth as some indicator of guilt, right? I mean, you've seen it both. Fauci took it 100 times. Trump took it. I forget 400. Listen, it's just the question of how long the prosecutor wants to torture you for. And I will tell, or the member of Congress.

And I will tell you that as real prosecutors, we wouldn't, if someone represented to us, through counsel, he'll be taking the fifth. We would, except for in the rarest circumstances, we would just accept that and go, fine. I'm not going to drag you in front of a grand jury to take the fifth. And if you're in front of a grand jury and someone takes the fifth, you don't go fine. Let me keep you here for the next 90 minutes.

I'm going to ask you 78 questions or 140. I got it. Are you going to take the fifth throughout this? Yes, fine, we're done. So the number of times, I know it makes a good headline. And again, for the point and laugh crowd, it's another tool in your arsenal. but the number of times is irrelevant.

Okay, this may be an unfair question to you, but going to the merits of the question over whether Anthony Fauci misappropriated funds by having staff apply for these grants for him and then him taking the money from the winnings. Yeah. Without Biden's pardon, how strong do you think that case actually was? I suspect it's the kind of common. that you could roll your eyes at and the kind of conduct that you could use to make the case that

Fauci was greedy and self-centered and not really focused on the science for the sake of the science, I'm not sure you'd get to a level of criminality because part of the story is, and Holly brought this up, Fauci went to whatever ethics or whatever approval board and asked for permission to take the money. And that's a pretty good cover either way. I don't know whether he ultimately did or did not using, I don't know that it strikes me as an absurd use of government staff to write up an application for a grant or something like that or a prize if it's related to the job. I mean, you know, we used to put in for the AG's award, you know, the DOJ awards, well, we would generally write our own. But if you had some paralegal right, you know, I'm nominating this great case that

Ellie Honig did. And there was a cash award that came with it, which there's not. But if there was, and I kept it and I got approval to keep it. I just don't see it. I'm guessing here that I have very incomplete information. It doesn't feel like a genuine crime to me. But this DOJ, I mean, look, they have a record of charging things that are not going to hold up his crimes. As you said before, there is such a passion and hunger and intensity to see Fauci indicted that no charge would surprise me, but I'm not sure he's committed a crime. I think part of the frustration is this idea that like what Joe Biden intended to pardon him for, you know, preventing political prosecutions versus maybe some of these people committed real crimes, set Fauci aside even for a second, you know, Hunter Biden or whatever

else, like using the presidential pardon in these sort of yucky ways, I think is part of the frustration too. And God knows Donald Trump has done it. But I think people's frustration is more accurately taken out on the giver of the pardon, not the acceptor of the pardon. I agree with that. I do think our last two presidents have done more damage to the public's faith in the pardon than many, many presidents combined before that. I mean, look, there's always examples, right? There's Bill Clinton and Mark Rich. There's, of course, Ford and Nixon. There's others that have been shady over the years. But I think Joe Biden pardoning his son, not just his son, but his brothers, his own, Joe Biden's own brothers and their in-laws and all that for, for we're not sure what. And then Trump, of course, is just just runaway, you know, machine gun fire with his. pardon's whoever catches his eye in a given day. Can I also add one more thing that I wish people would stop saying? It was very common, again, by liberal pundits when Trump was pardoning Manafort and Stone and those guys to say, oh, if you get pardoned, that's an acceptance, that's an admission and acknowledgement of guilt. No, it is not. They always cite this case from Supreme

Court case from 1906 or something, where it was said in dicta, you guys probably know the name of the case offhand, but it was said in passing, not that it's an acceptance of guilt, but that when someone is pardoned, there is a broad public perception that there's some guilt involved. But that's ridiculous. I mean, what about people who are wrongly prosecuted and then pardoned? Are they accepting guilt? I always joke, I'm friends with Adam Kinsinger. He got pardoned. He didn't want it. But is that an exception and admission of guilt by Adam Kinsinger? Because Biden pardoned him? That is a nonsense talking point that I think got over with certain liberal crowds. Oh, Paul Manafort accepted a pardon. That's an admission of guilt. No, it's not. It's not the way

this works. It's a misreading of that case from years ago. The preemptive pardon is a terrible idea. We said it at the time. Preemptive pardons of your own family for crying out loud. I mean, and if you're sitting there thinking, well, you know, Biden had to do it. I mean, they were talking about the Biden crime family and all of that. Just get ready, guys. Wait until you see the Trump preemptive pardons. Wait until you see the Trump preemptive. Holy mackerel. Do you guys think, do you two think that there's some basis for the argument that preemptive pardons are not allowed, I mean, we've seen the ones we just, the recent ones, of course, Ford and Nixon was preemptive. You know, look, you don't have to wait until there's a conviction in a sentence.

But is there, I don't know, is there a constitutional argument that the pardon power does not include preemptive pardons? I mean, I don't think so. I mean, Sarah, I'd love to see if you disagree with this. But if you're just going with the textual analysis here, it's an unqualified pardon power. It is, and then also if you're looking at the historical analysis, this is really sort of one of the last vestiges of monarch. And if there was an unchecked power to monarchy, it was the freaking pardon power, right? And so you're talking about importing hundreds and hundreds of years of essentially royal authority that's being poured into a president textually. Now, under our new text history and yada yada, could you come up with a historical argument using some sources somewhere and maybe somebody in the 18th century Kentucky legislature?

said something interesting? Maybe, I don't know, but it's a pretty unqualified pardon power that stands in the lineage of how pardons were used for centuries. And so I've never been that persuaded by people who argue that the president's part, like that he can't pardon himself, for example. Where's that in the text, you know? And this might be our segue to our amendment conversation, But there's one other thing that I wanted to raise about this misappropriation of funds. So let me ask you this. So I was a JAG officer in the Army. And when I was in Iraq, one of the things that I did was I would help our soldiers, including officers,

including some officers who were higher ranked than me, with things like converting an award citation into a college admissions essay, like helping them with that, or assisting in. sort of purely civilian matters that arise at home. Now, I could justify helping the civilian matters at home because people need to be focused on their job downrange, you know, so I could easily justify that. But under that reasoning, if I'm helping somebody parlay their combat experience into admission at Brown University or whatever, is that a misappropriation of funds? It strikes me is that would be farcically no, but also completely misunderstanding how salaried employees work. Right. And the whole concept of, you know, you're not an, you're not quote,

ever quote unquote, on the clock or off the clock. You have a job. Yeah. And you have responsibilities. And are you doing them or not? I think that's exactly the slippery slope. I mean, look, if the deal was, I'm going to put in for this award and I'm going to get it from the AG's office, from the Office of Justice programs. And it's supposed to be used by my local DA's office for anti-crime efforts and I pocket it, that's going to be a crime. Okay? Yeah, but yeah. But if you're getting permission or you're using things that you gain through your job within the parameters of what they're intended for, or you're using other aspects of your job for your personal use, but it doesn't obviously violate the law. Yeah, I think that's exactly part of the problem here. And again, especially if Fauci went to

whatever ethics board, and there was some mention of this and got sign off, you can't charge it with a crime for that. Yeah. And again, if you're using your own people, to put in for some award that's related to the job, that's a real stretch to call that a crime. I think that the, you know, on the advice of the ethics folks, on the advice of counsel or whatever, is the get out of jail free here point.

I actually think without that, this becomes a much closer call because, you know, using your staff to fill out an application for an award, and then your, you know, office gets to say they won the award, something like that, okay, maybe.

But the actual money, I don't know how you're going to distinguish pocketing the money from having your staff go get your dry cleaning, which we do think would be a misappropriation of government funds. Again, unless that office said it was okay, which I don't know why they said that was okay. Like, why should you get to pocket the money? I'm curious, too. I would like to see the reasoning for that. And it's a lot of money.

I think they said it was $900,000. This is for a government contractor who, or, you know, employee who presumably makes, I don't know, two, 250, something. Who knows what government, you know, what he made. But, yeah, it's a lot of money. So, that would be wild if he was allowed to pocket it. Yeah, I wonder. I wonder, was it.

He was. Yeah, I don't know. Wait, David, he was. He pocketed $900,000. Yeah, that's wild. If you go to a government watchdog and they say, yes, you can pocket the prize money you get from your public employment. Then you had staff fill out the up.

That's what we're talking about. That's what makes this sort of nuts. I misunderstood, Ellie. I thought it was... I thought it was ambiguous whether he kept the money or not. I misunderstood Ellie on that. So, yeah.

But he kept it. That's wild. That's wild. Yeah, so I'd like to see the reasoning on why he could keep it. I just wanted to read the text of Article 2, Section 2 with this pardon language. He shall have power to grant reprieves

and pardons for offenses against the United States, except in cases of impeachment. So, Ellie, your whole conversation about whether there's any limiting, you know, preemptiveness here, all would turn on the word offenses. Does offense require an indictment? Or is the offense when you do the thing? I think the better reading is offense is when you do the thing. Yeah.

And therefore, it can be preemptive because it doesn't matter whether you've been charged because you did the thing already. But I don't think it's, you know, it's like a 70-30 argument. I think you could make the 30 argument that offense means that you've actually, someone has designated an offense, you know, either through an indictment or some sort of write-up of that offense, not just that you did the act disreous. Right. I think that's right. I think there's an argument both ways. I think the better, more sensible argument is the offense is when the offense is committed. Let me ask you one other thing on the pardon power. Do you agree that there is no ability to issue future pardons? And if so,

where does that come from from the Fifth Amendment? I mean, I think we all agree. No one's ever done that. Let's say that today Donald Trump issued a pardon saying, I hear by pardon, so and so, for any crimes they've committed dating back to 2000 and going through the year 2100, right? I think we all agree you can't issue a future pardon, but where does that limitation come from other than just common sense? So, reading again, he shall have power to grant, reprieve, and pardons for offenses against the United States, except in cases of impeachment. You're right.

There is nothing tense-wise in that statement. But I think, again, the, now I'm more in like an 80, 20, maybe a 90-10 reading of that. The offense, like the definition of an offense, is something that already occurred. Like, there is a thing that happened, and that's the offense. Otherwise, you haven't offended, and therefore it doesn't occur,

yet, but again, you can say, like, nope, he shall have power to grant pardon for offenses against the United States that may occur in the future. Yeah, 10. I'll give that a 10-90 argument. Yeah, I would say the word offenses implies the existence of something, the existence of something. But this would be one of those areas where to the extent there's even any hinting lingering ambiguity that you might look back at the historical record. And if you had one where George III had pardoned Cornwallis in advance for anything he was going to do to the colonists, you know, then you might have some sort of, you know, because of the direct historical legacy of royal prerogative, et cetera, et cetera.

But yeah, that's, I'm going to go 982. Okay, here's my, here's adding to the 98. If a president granted a pardon for future conduct, I would argue that that's not a pardon for an offense because you can't offend what you were given permission to do. Oh, wow. Oh, now it's 991, Sarah. You just brought it. You just brought it. Yeah.

Because then it's not right. You're not, you're not pardoning. Yeah. It hasn't happened yet. you can't pardon someone for a thing they haven't done, and it's not a pardon if you gave them permission. Yeah, that's right. And it doesn't say you can license.

All right. Before we go to our constitutional segments, there is this one case that I wanted to ask you about as a prosecutor, Ellie. Yes. So the New York Times had a story about a man being charged with a felony. I might get the detail slightly wrong here,

but here's the gist. You know, FBI shows up at his house, They take him into the station. They're like, give us your phone. He hands over his phone. It's password protected. They're like, hey, put in the password for this phone. He puts in a password.

That password is the duress password that automatically wipes his entire phone. Jeez. He is charged with a felony for that. And I guess this is the first time that charge has been made where someone actually used the duress password to wipe their phone. to me, this sounds no different than like the FBI comes to your house. It's obstruction. And is like hand over the briefcase and you throw your lighter into the briefcase.

I have a specific example for you. That has to be obstruction. We did a case, a bomb case against the Gambino family, where we executed a bunch of search and arrest warrants simultaneously. You know, we do these big takedowns. You know how much feds love takedowns. One of our guys, one of our lead defendants, he was a capo in the Gambino family.

The feds went into his house. He wouldn't answer the door for, you know, he stalled for a minute or two. And right before they took it off its hinges, someone answered, they go in. And one of the agents, God bless the FBI, you don't see this in the FBI TV shows, noticed that the toilet was running and saw that there was ripped up scraps of paper, reached into the toilet, grabbed out the scraps of paper, whatever she could. It was a female agent. I still remember I know who was.

And, you know, she dried him out. And they were like gambling slips. Like it wasn't the crime of the century, but he was ripping up evidence. of crimes and flushing him down the toilet. So why is wiping your phone? I mean, he had the, this guy in the New York Times story had the gall to do it right in front of the cops. But I don't, I think it's just a higher tech version of flushing your gambling slips down

the toilet. It's obstruction and destruction of evidence. I think that's exactly right. And it just reminds me of something Sarah, we talk about all the time. There's this weird thing that happens. If something is involving a smartphone or the internet, it's almost like people go, we've never confronted this before. And you're like, no, there's almost always direct real world analogies, just like Ellie said. It's like, oh, police broke in and he wiped all the evidence.

Okay. Obstruction. But he did it on his smartphone. Oh, heavens to Betsy, we've never encountered this before. You know, it's, you just constantly have this in the online world. Yeah, I think that's right. It reminds me of when I was in law school in the late 90s, class of 2000s, I had a class of Larry Lessig. I'm sure you guys know, we probably had him on the podcast at some point. Oh, yeah. But he was the internet guy. So it would be like, ask Lessig.

It's like, you don't need to ask Lessig. You can just ask any criminal law. So, for example, I brutally murder someone and, you know, it's violent. There's blood everywhere. But I do a really great job of disposing of the body, all of the evidence. that I actually committed the crime, you can't prove a thing. But you can prove that I cleaned up all the blood. You can charge me with obstruction.

I destroyed evidence, right? That was evidence of a crime. I knew it was evidence of a crime, and I cleaned it up. I just feel like sometimes people overthink these things. I remember as a kid, I asked my dad about, you know, someone leaves their keys in the car, and then, like, I take the car. And he's like, that's car theft. And I was like, but why?

They left the keys in the car. And he's like, oh my God, what? What age was this for you? Are you four here in this scenario? I'm picturing? No, I was not four. Yeah, I was, I don't think I was 16. I don't think I was driving yet because I will tell you when I was 16,

I got one of those little magnets that went behind the license plate, the back plate, and kept my keys there all the time. I never took my car keys with me because it was school and, like, they wouldn't cool in my pocket. Yeah, yeah, yeah. Under your, under your logic, then someone could have found your key and taken your car. And that would not, that would have been perfectly legal. And it wouldn't have been theft. Yeah. So that's why I don't think I was 16, because I think like I hadn't thought this through. As one of two parents in a two prosecutor, two federal prosecutor household, we would like have these discussions with our kids all the time. They would want to be told bedtime stories.

My daughter used to say when she was, I don't know, five, six, seven, it was our old house. So five, six, seven years old, she would say, can you tell me a story of a case for my bedtime, story. And I would go, there was a butcher. And every Friday, these mean guys would come around and tell him he had to pay $500 and they'd break his knees. So it sounds like you may have had a similar upbringing. Oh, yes. A lot of law and order. My dad went to law school when I was 10, though. So, you know, a lot of it came from being in law school and him telling me like law school, you know, issue spotters. All right. When we get back, we've got our constitutional game show. everyone has been required to pick their proposed amendments.

We have stipulated one of the amendments, and one of your amendments has to be vetoing someone else's popular amendment. It doesn't have to be one of the three of us, but some amendment that other people are into, and you get a veto card, we'll be right back. All right, guys. All right. We have stipulated that all of us believe that we should amend the Constitution

to make amending the Constitution easy. steer stipulated, right? No one gets to throw that one out there because we all agree that's number one for everyone. It's so important we need to have more frequent amendments, not a ton of amendments. Like the Texas Constitution has like a thousand plus amendments. That's maybe a bad idea. But more than 27, a little, you know, what's funny about it is if you were doing this from a sort of behind the veil and I told you that a constitution was about 230, years old and there's this amendment process. Do you think you would need increasing or decreasing rate of amendments as you got further from the ratification of the Constitution? I think everyone

behind the veil would say it should increase as you get further away in time. You would expect technological changes and societal changes to cause a further distance and therefore need more tweaking. But of course, that is the opposite of what has happened in the United States. our amendment process has actually been getting, the rate has been getting slower and slower. That cannot be good. That's not a reflection, I think, of the Constitution doing so well. It is a reflection either of a sclerotic amendment process

or and that the judiciary has been filling in by amending the Constitution through Supreme Court decisions, which of course then killed off the amendment process, all of which sort of robs Americans of one of the, their rights and duties as citizens of the United States. So that was our stipulated one. If anyone has other thoughts on why we stipulated that one. Quick question for you, too.

The last time it was amended, 27th Amendment was 1992, I believe. Do you think any of us will live to see the 28th Amendment? Yes. Oh, I'm a know. I think I know what it's going to be. Oh, tell me. I'm interested. I think after the pardon paloosa that we're about to experience,

you're going to see the pardon power amended. Now, not right away necessarily. I think you'll see the process launch, but I think the pardon power is going to be amended. Because after the Biden partons, after the Trump partons, you're going to have lots of buy-in on amending the pardon power.

So this is interesting because the 22nd amendment was in response to FDR, you know, running for that third term and then fourth term, that amendment was ratified in 1951. So FDR broke that tradition, you know, more than 10 years before then we ratified an amendment about it. So, David, if we take, you know, sort of the end of Donald Trump's second term, yeah, so like 10 years from now, roughly, you would be expecting a ratified amendment.

What do you think about my idea, David, about making the pardon power, you still have it, but it just, has to be advice and consent of the Senate, same as any appointment? A hundred percent with that. Like, I think that is the... Because you guys don't want to get rid of the pardon power, right? No, no, no. Advice and consent, I am 100% behind that concept. And I might even make it super majority.

So that... Because what I think the purpose... When you're talking about what is the purpose of the pardon power, it's really to correct injustice. It is not to grant political favors. And so you have a pardon process that's rigorous where you say, you know, there's any number of circumstances where the legal system, and, you know,

governors have been traditionally pretty good at this with their pardoned clemency powers, where the legal system, there are extraneous factors that the legal system, as much as we love it, does not take into account all elements of the justice of the situation. and to have a person of last resort to appeal to who's looking not just at the letter of the law, but at the larger enterprise of the law in the Constitution.

I very much support that. But at the same time, we also know, and we have seen, how a Congress can become completely prostrate before the president. And so to have to have some buy-in, some buy-in, bipartisan buy-on to the pardon is. after what we've seen. Nope. David's totally wrong about this and I'll tell you why. I just like your idea too much. I just like your idea too much. That's what it is.

It's totally wrong. You cannot handle violent agreement. Totally wrong because what we're trying to do is also prevent presidents from pardoning on the way out the door where there can be no political accountability. Any, you know, majority of the Senate provides that political accountability. You can hold them accountable and therefore it should affect their willingness to sign. on to the most corrupt pardons. Ellie, I'm curious what you think of the pardon power in general.

You're a prosecutor. You don't want people pardoning your criminals. I didn't like it as a prosecutor, but I also accepted it. I had one case in particular, a state case when I was with the state that was pardoned by then-governor Chris Christie on his way out the door that I found very frustrated. I like Chris Christie. I know him personally. But I also don't think it's the job of the prosecutor, given our current constitutional structure,

to pardon proof their cases. So again, one of the things. things that I was critical of in the Trump prosecutions is the piling on effect that Fon Willis in Fulton County charged essentially the same exact conduct that Jack Smith had charged in a state way rather than a federal way. And I was critical. I said, that's a pile on. That is against prosecutorial policy that you don't recharge something that's already been charged in another jurisdiction. And people said the most common response to that was, yeah, but this part improves it because Trump can or, or,

any president can pardon Trump from the federal case, but not the state case. And my response to that response is that's not the prosecutor's job. It's your job to prosecute your cases, to pursue a conviction, and not to try to make it harder for the president. I'm sorry, you're given plenty of power as a prosecutor. One of the powers you're not given is the pardon power. It's not up to you. It's up to the chief executive president or governor. All right, Ellie, we're starting with you. What is your first constitutional amendment with your magic wand that you are, sticking on to this document. Okay. So I'm going to look at impeachment. I'm proud of this one. I want to make it,

and it's a three-pronged change to the impeachment clause. I want to make it harder to impeach and easier to convict and more clear what you can and cannot impeach for. So currently, of course, you need a majority of the House to impeach. I don't like that because we're so polarized now that someone's always going to have a majority. You don't want it to just be, whichever party has a majority can impeach based on their own. That's it, 50.1%. I would raise it from a majority to 60%. At the same time, I would lower the conviction from two-thirds of the Senate, which is 67, down to 60. So now it's 60-60. And because I think it's become all but impossible to convict someone. And if you're worried that that's going to lead to just excessive convictions

on impeachment, even Donald Trump's second impeachment, the one after January 6th, there was 57 votes to convict. So he still wouldn't have been convicted under that. So I want to make it, again, I want to make it harder to impeach, raise it from majority to 60%, easier to convict, lower it from two-thirds down to 60 percent. And I want to get rid of treason, bribery, or other high crimes and misdemeanors, and replace it with something like outrageous abuse of power or outrageous misconduct or abuse of power. Because we all know that impeachment is in the eye of the impeachers, but also that phrase has been used in the recent. in impeachments, including, I guess, the Clinton one, and certainly the two Trump ones,

to argue it has to be a crime. It doesn't have to be a crime. For example, to go back to the pardon power, what if the president said, I'm hereby pardoning every single federal inmate in the entire Bureau of Prisons? Not a crime, but you should be able to impeach him for that. What if a president said, I'm just not going to do the job, just not up to it. I'm just going to play video games in the White House and not feeling it. Sorry, guys, but not a crime, right? But you sure as heck would need to impeach that person. So let's get rid of high crimes and misdemeanors and treason and bribery and make it outrageous misconduct or abuse of power.

That is my first proposal. I sign on to that 100%. And I challenge one thing you said, which is there were 57 votes to convict Donald Trump and you were like, therefore there wouldn't have been enough. If it had been 60, I wonder whether you would have three more people who were close enough because, I mean, I've said this so many times, right? the fifth vote in the Supreme Court is not the same as the fourth vote or the sixth vote. And so it changes people's behavior if they could be the fifth vote in either direction.

Sometimes it makes them more likely or sometimes it makes them less likely to sign on. So if you're only three votes away, that's very different than being 10 votes away. I had the same thought, Sarah, except the cynical side. Well, I don't like to be cynical. The skeptical side of me arose up and thought that Senate was full of a lot of people in the 60 vote world that would have been a solid 50-second vote to impeach or a solid 70th vote to impeach, depending on the circumstances, right?

And so... Hey, David, it doesn't make it skeptical versus cynical if you just change the term. But cynical implies bitterness. It implies, yeah, skeptical... I'm just saying it either is or is not cynical. The term... How about realist?

The term is descriptive, not... Yeah, okay. Okay. I just don't want to imply bitterness, you know, realist. Ellie, yours is awesome. I sign on 100%. I almost think I would, so far we have three amending the Constitution, the pardon power, and your impeachment one.

I, boy, I am, I think yours, I might put that at number one right now for me. Okay. David, you're up. So I, I'm going to do something different. I taught a class on five constitutional amendments to save America. I'm not going to go with any one of those five because I've talked about them already on this podcast. But this is one that is part of what I've talked about this podcast and not.

And it's the numbers amendment. We're going to fix the Supreme Court at nine, now and forever. And we're going to expand the house on a permanent basis at the same ratio of population as the last expansion in 1912. So the house, that number of the house will be set every 10 years. by the census at a ratio equal to the representation of the House at the last expansion in 1912. What would that give us now, just out of curiosity? Yeah.

Did you work out the math? Like 1,400 House members or something? It would be a lot more. So in 1912, the population of the United States was, and I have it right here, 95 million. Oh, my God. So it would be about three and a half times, what it is? is now. Yeah. Yeah. So a pretty good guess. Yeah. 150,000, some, holy cry. Okay. Yep. So so many, so many benefits of this. So many benefits of this. And it's funny when we've

talked about and hinted at, and we've discussed explaining the house before, it's really interesting that the listener response is sort of skepticism, curiosity, and then, oh, tell me more kind of curiosity. But I actually think the more important one of those is the nine. Okay, so the text of the Constitution still has not been amended. And it says this was the only thing George Washington cared about, by the way, as far as we know. It's the only thing he actually spoke for in the debates over the Constitution that he presided over. The number of representatives shall not exceed one for every 30,000, but each state shall have at least one representative. We just ignore that now.

We didn't amend it. We didn't change it. We ignored it. And to answer Ellie's question, how many would that mean in the House of Representatives today? That would be 11,667 members of the House, roughly speaking. So like they could meet at Madison Square Garden, basically. It would be rowdy. Yeah.

And the committee chairs get the skyboxes. Right. Yeah. Courtside. They're a court side. Seriously, this bothers me. It's in the Constitution. We just ignore it.

And nobody has sued over the fact that they're representative. Like right now represents closer to 800,000 people. And this says that they are guaranteed, you know, shall not exceed one for every 30,000. What's going on? Let's do it. Let's sue. Guys, bull crap. We have the power.

And we'd have George. Washington. What better person could you have on your side than George Washington? There's a whole song about it. Yeah. Washington on your side? I never heard of that. You've never seen the musical Hamilton? No. Sorry. Oh my God. David just recoiled in horror. Wow. It's almost like saying I haven't seen Star Wars. Wait, do you even know what David's hat is? You tilt your head down. The Houston Astros all hat.

No, George Washington's battle flag. in the American Revolution. It was a six-pointed star, a white six-pointed star in a blue field. And I lost one of these is one of my prize possessions. I lost it in the green room at MSNBC. And then Sarah was at Mount Vernon, and she found me another one.

And that's the kind of friend she is. That is a cool hat. I'm doing an actual, in November, I'm doing an event at Mount Vernon about the 250th anniversary. So. I'll be there with you. Oh, I'll see you there. Awesome.

It's going to be amazing. Yeah. I can't wait. Sarah, you got to come down. out for that. Wait, what event is this? What, went month? It's like a two or three day symposium in November at Mount Vernon, various speakers and panels about the Constitution, well, all minds about the Constitution, but yeah, yours, yeah. I'm speaking there in September. She's going to be a citizen of the Republic of Texas. She's going to be in a different country

then. All right. It's my turn. Okay, so we said we could pick one that we had talked about before and then you have to pick one that you hadn't. I'm going to start with my one that I've talked about before and this is the emergency powers amendment. No emergency powers granted by Congress can last for more than 30 days because I feel like we are headed into a bad emergency powers place and even the president's thinking, believing, knowing that they have secret emergency powers, I think distorts the non-legislative process that we have today. And related to that, I think, is the Vacancies Reform Act problem where you have temporary people in these otherwise would require Senate confirmation spots. So same thing would apply to them. There is no such thing as a temp. I think I have it at 180 days,

but maybe it should be, Ellie, to your very brilliant point about the impeachment thing being 60 and each, maybe we can compromise. An emergency power lasts for 60 days and your temp AG can last for 60 days. And then after that, you got to go to Congress. You've got to get them to do something. and that may mean compromising with people you don't like who are out to get you politically. But you know what? Everyone can be brought to the table by something. So that's mine.

All right, we're going back around the horn. Ellie, you're next. The one that you and I have chatted about before is the requirements to be president. So you actually convinced me to make an amendment to my amendment. So you have to be a natural born citizen under Article 2, Section 1, Clause 5.

I would get rid of the natural born part. I think that if you are, you should just have to be a citizen for sure, but not natural born. And there have been a lot of very good people who have been excluded. I mean, I would never, I'm not in New York City resident.

I would not have voted for Zornamamani for mayor. I certainly would not vote for him for president, but he should be eligible. He's a citizen. He's been here most of his life. Other people, you know, I'm friends with Pete Barrara, not born here.

If he ever wanted to run for president, I think he'd be great. My wife, others, you know, so, let's get rid of the natural born part. You still have to be a citizen. Now, I originally said we should also reduce the 14-year residency in the U.S. with an eye towards let's make it more accessible.

But Sarah convinced me that, no, if you're going to eliminate the natural born part, you have to actually raise the residency requirement because we don't want a mole. We don't want some British mole coming here and trying to win back what they lost in the 1770s and live here for five years and become our president. And then I will say, I think the age max, I think the founders nailed it. I think 35. I know 35 was older then than it is now, relatively speaking.

You know, the founders themselves were, a lot of them were in their 20s when they wrote this stuff. But I think 35 is exactly right. I don't think I'd want a president younger than that. I don't think I would lower it. I also don't think I would raise it. So kudos to the founders. I think you nailed the age max or age minimum. By the way, footnote, because this always bothers me when someone talks about life expectancy at the founding.

It actually wasn't... It wasn't that different than now if you take the people who were five years old. If you lived to five, even if you lived to one, it would massively change the average life expectancy. Now, yes, life expectancy has increased, but we're talking like 10 years, not 30 years. If you take out infant mortality, very good.

David, what's your next one? So my next one, and this is in the category talked about before, is first sentence article two. And this is something I've talked about and written about, which is rather than the vague declaration that a president has the executive power, which is not defined in the constitution, well, first sentence of article two. And by the way, this was highlighted as a problem by the anti-federalist, Cato, Cato, the first sentence or the first paragraph of article two is vague and inexplicit. An old wig had beef with it. Like, there's been historical beef here. They were

Took him 250 years for a president who knew not George Washington or his example to really show what's wrong with the first sentence of Article 2. So rather than saying the executive power rests with the President of the United States, the President of the United States shall have the power to execute the laws. In other words, there is not a freestanding executive power. The power of the president is execute. Now, I would not touch the commander-in-chief power, etc., that's still there. but the president's at you all live in has said it very well.

And I can't remember if this is an Ezra Klein podcast. The original vision of the president is the president was a steward of the laws passed by Congress. Let's make that explicit. Okay, guys, I had a lot of trouble with picking my second one, my new one, because I've got 10 in the back of my book. You got a lot. Right. I had to go to number 11. And so gerrymandering, right, we could have an amendment.

to ban partisan gerrymandering, but frankly, I think we should just do it by statute. So, like, I don't need that one. Balance budget with a two-thirds requirement if you want to spend money that is not balanced. So there's an out for it. But again, we could do that by statute, I think, at least to start. So then I was down to these two. 17th Amendment repealing it so that states, once again, have representation in Congress as states.

I think this would do a lot, right? The 17th Amendment changed it to the direct election of senators by voters in their state. Lots of people thought this like really screwed up the whole country. And then I went back and was like, yeah, but like these people weren't stupid. Why did they do it? It turned out that the state legislative races just became proxies for the Senate vote. And it kind of destroyed the functionality of state legislative races. I get that.

But if everything's a tradeoff, I think I'm kind of more willing to have that. back and increase people's affinity for their states, paying attention to what's happening in their states, thinking of themselves at least a little bit more as citizens of their states. We probably had that balance, not probably. We did have that balance wrong before the Civil War. People were too much citizens of their states and not citizens of the United States. I think we've screwed it up the other way now. People think too much of the federal government and the presidency in particular and not

enough of themselves as citizens of their state, except if you're a citizen of the state of Texas. We are showing the way of how to be patriotic for one state. Highly recommend people come down for Go Texan Day in March. It is both the kickoff to the rodeo and the day that Texas won its independence and everyone dresses like a Texan. And if you land at Hobby Airport and you've never been to the state of Texas, you are genuinely confused that you didn't know people actually dress like this. But don't worry, it's just one day. But I think it would be great to bring back this idea that, like, nope, we have laboratories of democracy.

Your state is actually the primary mover for all the things. You know, criminal law, spending, everything that you really deal with day to day. The vast majority is about your state. And I think having states elect their senators would be really helpful. And yes, it would mean state legislative races would matter a lot because that's who's going to elect your senator. Can I just amplify that for a second? It is funny because now senators are sort of like their own institutions, their own celebrity. Like I had a moment the other day where Bernie Sanders was on TV and it had under him, you know, technically independent, right?

I, perens, Vermont. And I was like, oh, yeah, isn't that weird? Like Bernie Sanders represents Vermont? Like, what does he ever do that's Vermonty? That's not even necessarily a knock, right? I mean, Corey Booker's, my senator, he's actually pretty Jerseyish. But a lot of these senators, you go, all right, but they're just focused on being sort of almost like mini presidents or something, thinking about their own status and nationwide, federal, whatever, rather than I represent the state of whatever. Yeah.

Sarah, I go back and forth on this, but your explanation is the most persuasive that I've heard on the 17th Amendment. And I very much like the idea of people paying more attention to these local races because one of our problems is that the local races often have. the least participation, whenever you have the least participation, it's often the segment of the community who's maybe the most politics obsessed and present company accepted. I don't know if the class and category of politically obsessed people right now is like bringing our best to the public square, not necessarily. So I like it. I like it. But I just, it's a big change. You know, when I hear all this Texas stuff, you know, I'm just glad that Tennessee's baby has grown up to be so big and so proud.

But it should never forget who its parent is. Boldest and grandest, withstanding every test. Oh, empire-wide and glorious, you stand supremely blessed. Texas are Texas. Ellie is like, what is this? This is the state anthem of Texas, Ellie. We sing it. I figured the context clues.

Yep, I got it. All the time. Okay. When we get back, we each veto and amendment. We'll be right back. All right, Ellie, we're ready for you to veto an amendment you've heard other people talk about and you're just like, nope, you guys are wrong. Okay, I'm going to sort of veto. I'm going to have a little bit of a play on this. So I think we all agree, Sarah, you and I've discussed before, like, ideally there should be some, well, I believe there should be a limit on the terms that judges serve, federal judges and injustices, right? I would like, there's been plenty of momentum out there in favor of an 18 year cap or whatever. But I'm going to veto the notion that you can do that through legislation.

I believe, and I've seen more and more of this, people saying, we can do it. It's easy. Congress just has a pest law. No, you don't. You have to pass an amendment if you want to do that. I like it. I'm with you. I want to cap judicial service.

I know there's arguments for and against. I'm on the foreside. I want to cap it at 18 years. I think that would be great. But I, you know, I'm preparing, I'm doing a one-on-one in a, in a, in a, September with Akil-A-Mar, Professor Akil-A-Mar at Rutgers University, sign up, September 15th. And he wrote a great piece about 18 reasons we should have 18, you know, an 18-year cap. And then he sort of like skirts the issue, not skirts issue, he takes it on in an unconvincing

way. He says, well, it could be a statute and it would be more like a suggestion than a requirement, because I think in arguing it that way, it would be implicitly acknowledges, or maybe more than implicitly acknowledges, that you do have to amend the constitution. Some guy wrote a piece for the Washington Post, Jesse Wegman, I want to say, maybe, who are also sort of glibly argued, no, we could just, no, you can't. It's got to be an amendment. A legislation won't cut it. Okay. Yeah. I mean, you know, I think my take on this, my nuanced version of that is I'm against term limits, but I'm so in favor of the American people exercising their amendment muscles that I would feel really good about having an amendment that I

disagree with just to have a 28th Amendment and people be like, oh, we can do this again. You're amendment desperate. I am. I'm amendment thirsty, as the kids would say. David? Oh, this one's easy, Sarah. This one is easy. So I didn't want a straw man anything.

So I went to the National Constitution Center. Remember I had the Constitution drafting project and had a team progressive, a team conservative, a team libertarian. So I went to the team progressive because I knew they were going to do this. I knew they were going to try to, by constitutional amendment, reverse Citizens United. And I was not disappointed, Sarah. I was not disappointed. But what was the actual language? Yeah, okay.

Yeah, it says after a very long paragraph about freedom of religion that is frankly quite weird, and I would veto that also. But I have fixated on the free speech clause. So here's what it says. Nor shall the United States or any state make or enforce any law bridging the freedom of the speech or of the press or of the right of the people feasibly to assemble to associate with others and petition the government or their employees, employers for redress of grievances. Congress and the legislature of any state, however, shall have the power to establish by law or regulations of the financing of campaigns for elected office provided that such regulations are reasonably aimed at ensuring that all citizens are. able to participate in elections meaningfully and on equal terms.

Oh, no. Oh, no, Sarah. Veto, veto. I mean, number one, as we've said a million times, Citizens United might be one of the most misunderstood cases, most falsely described cases in recent Supreme Court history. But my gosh, as we've said many times, if the First Amendment means anything,

It means you have the right to participate and speak politically to then go and say that First Amendment is broadly protective, except in politics. Yikes. Okay. That's my veto. David, that wording is really scary because it seems to me that it also allows the government to restrict speech, that it doesn't like whatever it comes to campaigning. And that, of course, will be all about incumbent protection.

Because guess what? the government doesn't like speech that is going to undermine the ability of those currently in government from maintaining their power. So even if I accepted overturning Citizens United in the specifics, that wording goes way, way, way beyond overturning Citizens United. Like if you want to have an amendment that says corporations can't spend money on advocating the election or defeat of candidates within 90 days of a primary or general election, I don't like that amendment. I think it's really weird to say

the government can ban books or movies within 90 days of an election if it mentions a political party or a candidate. But I'd be way more in favor of that amendment, then the government shall decide what makes for equal elections. Oh, no. I mean, and it's reasonably aimed at.

It's not reasonably effectuates. It's like, Well, you know, we know this is an absolute dumpster fire, but they were, they had a reasonable goal here. So, yeah, man, whoa. Okay. And that is not straw man. That is reading it. Can I say one thing that this is a little more politics, but it's up to the moment.

I do for people who are worried about the proliferation of money in politics, which I think everyone is, right? And the donations are so unbounded now. We just had a new opinion about coordinated expenditures with the party campaigns. On the flip side, just as a practical matter, it seems like donations and expenditures and just campaign spending in general may be getting less relevant. I mean, we just are getting the results of the Michigan primary where you have Abdul al-Sayed gets outspent by vast amounts and wins. So maybe that's sort of pulling in the other direction just as a policy matter, not a constitutional matter. Money is no longer, not only, it used to be the best predictor of outcomes in statewide races.

it is now almost a reverse factor. The money is the opposite of a predictor. Now, in local races, when you're still dealing with name ID issues, you're not raising enough money. It's like a necessary but not sufficient thing. So they haven't reached that threshold in many of the congressional races, but they will, I predict. Okay, I'm last.

The one I want to veto. But you know what? I'm going to sort of try to be nice about this. I want a veto getting rid of the electoral college. but I am willing to compromise with those who want to get rid of the electoral college. I will have an amendment that requires states to follow the Maine and Nebraska plan, where it is proportional for the congressional seats, congressional allocation, and then winner take all for the Senate allocation.

So every state has winner take all for two of its electoral college votes and proportional for the remaining number of electoral college votes designated by their number of representatives. I like that. It's a pretty good compromise, right? I think Democrats would take that over the status quo, right? Oh, yeah, for sure. Yeah. You have a theme here that I very much appreciate and something that we've been talking about on AO,

which is for much of American history, the federal government was the guarantor of liberty and the states were the threat to liberty. and it's flipped, it has flipped. So doing things that can modestly but materially increase the actual relevance of diving into, because on the one hand, you think, well, does that decrease states? But on the other hand, no, actually, it means you're going to, you could do some maximizing of getting another congressional district in California, getting a congressional district in Virginia, you know, all of these things would become attainable goals.

And all of a sudden, people are going to find their votes fought over in a lot more states. Like it. Well, Ellie Honig, we are so pumped that you joined us for our constitutional game show. And frankly, taught us a whole lot about prosecuting the Genevese crime family. So thanks. Thank you very much. It's great to, this was a blast. And I love speaking with you.

Can I just say, I'll say this. I loved your book. You know that, Sarah. I can't stop raving about your book. But the biggest compliment of all is I gave it to my son who's in college and he loved it. He was excited that I was coming on your podcast today. And he now casually drops phrases like, well, that's just a courtesy fourth. Like this kid suddenly thinks he knows everything about the Supreme Court because he read your book. But it's fantastic. Yes. Making college students more obnoxious is my main goal. So dorm room originalism, all of it. Yes.

I've noticed he's 8% sassier since he finished your book. Perfect. No, the highest compliments come from the younger cohort that like the book. That brings me way more joy than old people like you liking it. So thank you. Amen. Well, I just want to super thank Ellie Honig. Again, you can see him on CNN.

You can read his stuff at New York Magazine. or you can go check out his latest book when you come at the king inside DOJ's pursuit of the president from Nixon to Trump, all from a former SD&Y guy, brilliant, definite friend of the pod. Thanks, Ellie.