No Lie with Brian Tyler Cohen - Biden FINALLY gets the polling news he's waited for

Episode Date: May 12, 2024

Biden gets good polling news ahead of November. Brian interviews the host of Strict Scrutiny, Leah Litman, about all of the cases that Trump is contending with right now – from NY to Georgia to Florida – as well as the Supreme Court looking into the question of presidential immunity. Pre-order Shameless: briantylercohen.com/bookShop merch: https://briantylercohen.com/shopYouTube: https://www.youtube.com/user/briantylercohenTwitter: https://twitter.com/briantylercohenFacebook: https://www.facebook.com/briantylercohenInstagram: https://www.instagram.com/briantylercohenPatreon: https://www.patreon.com/briantylercohenNewsletter: https://www.briantylercohen.com/sign-upWritten by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CASee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about some good polling news for Biden ahead of November, and I interview the host of strict scrutiny, Leah Lippman, about all of the cases Trump is contending with right now, from New York to Georgia to Florida, as well as the Supreme Court looking into the question of presidential immunity. I'm Brian Tyler Cohen, and you're listening to No Lie. Okay, first off, before we get into it, just a quick announcement, I'm writing a book. It's called Shameless. It's available right now for pre-order. If you want to pre-order it, just go to Brian Tyler Cohen.com slash book. or check the show notes of this episode.

It features interviews with Pete Buttigieg, Jen Saki, Al Franken, Mark Elias, Dan Pfeiffer, Medi Hassan, Heather Cox Richardson, and the foreword is written by Jamie Raskin. I'm really proud of how it turned out. I'd love for you all to read it. So again, if you want to pre-order, just go to Brian Tyler Cohen.com slash book. Okay, let's jump in here. So for the first time in the better part of a year, Decision Descq's polling average, they're a great polling firm, has Biden narrowly leading Trump,

45% to 44.9%. So certainly not some runaway margin for Joe here, to be clear. But if we're looking at momentum less than six months out from Election Day, that is clearly in Biden's favor. Granted, I do have to note that in the same polling average, Trump is leading narrowly in Arizona, Michigan, Wisconsin, and Pennsylvania. So it's an uphill climb for sure. But again, if we're looking at momentum and the way it's going, in that case, I'd rather be Biden than Trump. But here's why I think the momentum is going to continue to go in Biden's direction. So first of all, the economy remains strong and it takes time for people to feel its effects. The stock market just hit record highs. People are going to look at their 401ks and see that. The economy

added over 15 million jobs since the beginning of his term. Unemployments been below 4% the longest stretch in half a century. We continue to outperform the rest of the countries economically in the G7. Inflation is a bit sticky, but remains low. Wages are rising. This isn't the economy from two years ago or last year, and American sentiments on the economy are going to catch up with it. It'll take some time, but it'll catch up. There's also the fact that Biden's opponent, Donald Trump, isn't doing himself any favors. First off, he's in the middle of his criminal trial in New York right now. The country is being reminded about what a piece of shitty is on the daily basis. Stormy Daniels, for example, gave a detailed account of their affair and how

he didn't care if Melania found out. Meanwhile, Trump, who refuses to take the stand, just denies that they had an affair at all. So I wonder who the jury is going to believe here. So a criminal conviction may certainly be on the horizon, and polling from the latest Reuters Ipsos poll found that when registered voters were asked if they would vote for Trump if he was convicted of a felony, only 24% said yes, while 60% said no. Even among just Republicans, 24% said they wouldn't vote for a convicted felon. So that would obviously be a massive defection.

But like, even if that number ends up only being 5%, it would still be enough to, tank him in November. At the same time, he keeps, you know, flirting with this idea of getting thrown into jail for violating his gag order, which I mentioned last week. I really don't think he wants to do. But if he did, then one of the last images that voters would get before they head into a voting booth would be the Republican nominee literally sitting in a jail cell. And like, I'm not here to give campaign advice to Donald Trump, but I can't see how that's going to expand his tent. And then, of course, there's the issue of abortion. And for some reason, unbeknownst to me, they keep digging themselves deeper and deeper into this

hole. Republican Senator from Alabama and woman who may or may not have bodies in her basement, Katie Britt, is pushing a bill to launch a federal database to track pregnancies. Like, holy shit. Trump, meanwhile, got on stage at his latest rally and said this. So I want to just thank the six Supreme Court justices, Clarence Thomas, Samuel Alito, John Roberts, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett, for the wisdom and the courage they showed on this long-term, very contentious issue.

Literally thanked the six conservative justices for overturning Roe at his rally. So no, he's not going to escape this issue that's dogged Republicans, mostly because he himself refuses to stop congratulating himself. Like, dude has such an insatiable ego that even though the issue of abortion is crushing Republicans across the country, from states like Ohio to Alabama to Kentucky to Virginia, Donald Trump is so desperate for the validation from his far right base at his rallies that he'll keep reminding the rest of the country what he was responsible for. Now, granted, it's not, you know, totally smooth sailing for Biden.

There's still the issue of Israel that's hurting him with young voters and progressive voters. Inflation, as I mentioned before, is being stubborn, and companies that are raking in record profits don't seem to want to relinquish any of the money that they're pulling in. But he has a little bit of time to get that stuff sorted, and in that time, Trump, for his part, is certain to continue mismanaging his legal issues and ramping up his threats against democracy and digging in his heels on brutally unpopular issues like abortion. With that said, none of this is to make you complacent or make you feel like we've got this in the bag because we don't. As I mentioned at the top, we're still trailing in a bunch of must-win states. This is all to let you know that we're at an all-hands-on-deck moment right now. So what I would ask is this, six months out, this is always my advice.

Find one or two people who wouldn't normally vote and make them your responsibility. Like here's my favorite stat. In Wisconsin in 2020, the difference between a Biden and a Trump win was two votes per precinct. That's all. That's all that separated a Biden win from a Trump win in the tipping point state. So if everybody does their small part, I promise it'll have an impact. And I know that you've got someone in your life who doesn't pay attention to politics because my own sister recently asked what a governor was.

So if my sister is that blissfully unaware, then I know that we've all got people we can work on. Less than six months out here, let's make sure we can all look back at this moment and know that when democracy was on the line, we all did everything that we could do to protect it. Next up is my interview with Leah Lippman. Today I'm joined by Leah Lippman,

the host of the strict scrutiny podcast. Thank you so much for taking the time. Thanks for having me. So there is too much to discuss right now on the court front, but let's do our best here. So first off, do we have any indication as to when the Supreme Court may rule regarding this absurd question of presidential immunity? Because we've already passed some opinion days and we haven't heard anything. So my worry here is that they don't issue an opinion until the last possible moment by design. And of course, the longer we wait, the more of a delay that we have in the D.C. prosecution.

There's no indication about when they might rule. and you should believe anyone who tells you that an opinion is coming or is going to come on a particular date. Of course, there are some mile markers that we have in mind for the date by which they should probably issue an opinion if there is any hope of a pre-election trial. But other than that, we have no idea about when they might release an opinion. Other than that, by custom, they release opinion in argued cases by the end of June. Even if we do get a decision at the end of the term, would there still be time then for Judge Chutkin, who's presiding over the DC trial, to schedule that trial before the 12th? 2014 election? I think if they wait until the end of June to release an opinion, that would be really difficult to get a trial scheduled before the election, because Judge Chukkin had indicated she needed

80 some days of pre-trial proceedings. Right, exactly. And so if it's end of June, then 88 kind of pushes it until well into the election and possibly after, whereas if they released it at the end of May, then I think there is some possibility depending on how they write the opinion of a pre-election trial. Well, as if we needed the added anxiety here, isn't it also possible that the Supreme Court could withhold the decision on this case until even the next term, meaning we wouldn't even have a decision by the end of June, which would be the last possible moment in this term? That's possible, but extremely unlikely. It's very, very, very rare for the court to put off a decision in a case until the following term. Again, by custom, they release all the opinion

in argued cases and, you know, by the end of the term, which is, you know, end of June. Now, they've done that in a small handful of cases, but usually under the auspices of requesting additional briefing or adding additional questions from the case, and it was clear from the argument in this case, they were just fine injecting the additional questions right into the case as it was. And so I guess I am not personally expecting them to delay it until the following term. Okay. I mean, couldn't the argument be made that most of this is not being, this is not what we expected anyway? I mean, for them to take up this question of presidential immunity for someone who's sitting in the Oval Office and committing criminal. acts, that also seems unexpected in terms of them taking up in the first place when there was a perfectly reasonable, airtight justification with the lower courts. I think, of course, this case is unprecedented and unusual in a lot of ways.

You know, having a former president accused of multiple crimes, including the very serious crime of refusing to leave office and interfering with the peaceful transition of power is unusual and unprecedented. That being said, I think the Supreme Court taking an important case that presents a novel unprecedented question about the scope of former president's immunities from crimes after they leave office is not unusual. I think what is very concerning is that they waited to take this case until the last possible moment rather than taking up special counsel Jack Smith's invitation to do so much earlier like in December before the D.C. Circuit had ruled. But again, I don't know

that that signals that they would put off the decision until the following term, rather than just delaying, delaying, delay in until the end of this term. So moving over to Florida. We have Judge Cannon, who had already interfered on Trump's behalf, which led to her being rebuked by the 11th Circuit that was in the early days of this trial. She then had this insane idea that she would take seriously Donald Trump's Presidential Records Act claims, which were completely baseless. And now she's indefinitely delayed the trial, even though Donald Trump's own team had requested an August trial date. How does Jack Smith not have a predicate to seek her removal from this case? I think the reality is that seeking a judge's removal is an exceptionally

high bar. And it's an exceptionally high bar in general. And when you're dealing with matters like scheduling, that is an area where court of appeals give trial judges a pretty maximum amount of deference just because they are balancing between different cases. And so it's difficult to assess a judge's treatment of one case given the rest of their docket. And so special counsel Jack Smith, like, asking her to be removed on the basis of a scheduling decision is just so difficult that I don't see him doing that, even though I think her conduct has just been appalling. Is there any worry that, take the Presidential Records Act thing, but for example, where she would have been able to instruct the jury based on something that doesn't have any basis in reality,

I mean, her allowing for that in the first place, is that unto itself, like allowing jeopardy to attach and then giving the jury these instructions that would have allowed them to kind of throw away this entire case. Is that alone not enough of a predicate for Jack Smith to seek a removal? You know, usually a judge making a bad legal ruling is not by itself sufficient to ask for a judge's removal. You know, it's not uncommon for judges to be reversed. And even if they are reversed multiple times, that is not a sufficient basis for a judge's removal. And I think what people see in this case is a judge making absolutely outlandish legal rulings and then making the very reasonable inference that the judge is doing so in order to benefit, you know, one of the parties in the

case, you know, for political partisan reasons. And the unfortunate reality is that other judges are extremely, extremely hesitant to basically conclude that another judge is acting in bad faith. And so special counsel Jack Smith has, right, very reasonable inferences, but without something explicit in the record, he risks, again, losing his own credibility by making that allegation. And I think he's just in a really difficult position, particularly while this appeal is pending in the Supreme Court. And he might be banking on, again, asking the district court to make a quick ruling to allow an actual pre-election trial to happen. And so it's really tough. Taking a step back, like 30,000 foot view here, is there recourse in

the legal system for a judge, like, for example, Aileen Cannon, who so egregiously flouts her duties, or is it just like lifetime position and that's that? I mean, there are political checks in the system. Those political checks are supposed to be impeachment or short of impeachment, Congress doing things to actually control court's docket. Like, for example, confirming judges to the district where Judge Cannon sits so that a lot of cases are not assigned to her. But those political checks are failing, in part because Republican senators are obstructing Joe Biden's ability to confirm nominees to states that have two Republican senators. And in part because, you know, Congress is hamstrung by the filibuster and is unwilling to do things like expanding the number of

judges in a particular district or court of appeals or shrinking the court's docket when judges behave in these outlandish ways. Can you expand on that just a little bit more about this whole idea of blue slips in a state like Florida, for example, that has two Republican senators? Yes, exactly. So by convention, there is a blue slip tradition by which presidents wait for the home state senators to return what are called blue slips on the judges who are nominated to district courts in that state. And Joe Biden has said he will adhere to that tradition, even though it seems very clearly like Republican senators are abusing it and essentially withholding consent to any plausible district court nominees in their home states and thereby holding open vacancies to, allow Republican presidents to fill them to stack the courts in red states with extreme Republican nominees who will sign off on outlandish extreme Republican policies. And that makes it difficult to bring cases in jurisdictions like Florida. Do you think that that's kind of an instance of naivety for Democrats to continue to adhere to these traditions that are clearly not being

adhered to by Republicans? I mean, I don't think Donald Trump was a big stickler for making sure that we adhere to blue-slip traditions? Well, Democratic senators weren't abusing the blue-slip tradition. They were returning blue slips on district court nominees in Donald Trump. I mean, you had multiple Democratic senators voting to confirm Eileen Cannon in a lame duck session. So, yes, Democrats are being naive, particularly in continuing to adhere to the blue-slip tradition when their Republican counterparts are not returning the favor and acting in similarly good faith in being willing to confirm nominees of, you know, the other presidential administration. Moving over to Fulton County, Georgia, we have some unwelcome news there. The Georgia Court of

Appeals has agreed to review Judge McAfee's decision to allow Fawney Willis to remain on that Fulton County case. If Judge McAfee's decision here was not only proper, but actually he took extra steps to protect this case, he had Nathan Wade, who Fawney Willis had an affair with, he had him leave the case, where he gave them the option of one or the other. to leave the case, Nathan Wade left, then why would the Georgia Court of Appeals even take this issue up? You know, again, I think the reality is in these very high profile, extremely salient cases, appellate courts, whether it's the Georgia Court of Appeals or the U.S. Supreme Court feel the need to intervene to make sure, right, that they have the final say on all of the legal

issues that are arising in the context of the cases. You know, prosecutors are held to high standards. They should be held to high standards. But the reality is the legal system is not set up for this kind of quick process. And that is gumming up the works and making it quite difficult to hold a former president accountable for, again, attempted election interference while they are attempting to, you know, run for that same office again. Right. It's kind of counterintuitive because this is the, this is the system working as it should with all of the checks in place to make sure that we have like airtight decisions. But at the same time, it pretty much hands Donald Trump the delay that he's seeking just by virtue of going through that process. Exactly. And it's a

very frustrating system where you see someone like Donald Trump who has zero respect for the rule of law and legal processes being able to, I think in some instances abuse that system, like filing all the motions before Eileen Cannon, many of which were frivolous and silly, but then allowing that to delay the process. And then in other instances, again, courts feeling the need to, you know, I think Fani Willis and Nathan Wade made a poor judgment call. I don't think that required Fannie Willis's disqualification, but giving right some basis for litigants and courts to say, we need to review this to make sure all of the eyes are dotted and the T's are crossed. Like that was a bad judgment call and we are unfortunately bearing the costs and consequences of that. Finally moving over to the New York

criminal trial, maybe maybe an inkling of a bright light here. How do you feel about the progress of this case so far? I have to say Stormy Daniel's testimony was way more damning for the defense, the defendant, than I at least personally had been anticipating. I think she testified about a few things that are really important to the ultimate determination about whether Donald Trump is guilty of the crimes he is charged, but also expand upon the narrative about what exactly was going on. So on specific details, you know, she gave several instances where it was clear he didn't care that his, you know, sexual relationship with her got out, you know, before he was running for office, thereby suggesting that, in fact, they were, you know,

concealing the relationship once he became a candidate in order to have to avoid disclosing it for political reasons. And that's part of the basis for the felony charges here. And then second, you know, hearing her describe the personal context and situation she found herself in where she was so uncomfortable and did not feel like she could say no and just, went along with this guy, and this guy is the person who directly facilitated women losing their reproductive freedom and bodily autonomy. And this was, again, the possibility that that would be disclosed in the midst of the Access Hollywood tape when people were raising alarm bells that Donald Trump would be the person who would appoint justice to overrule Roe and

again, strip women of their bodily autonomy when he is talking about women this way and making women feel this way. And forcing, it's, it's, anyways, I found it very powerful and really strengthened the prosecution's case. Well, you know, all the while Trump's whole defense in this is that he never even had any, any encounter with Stormy Daniels. And so wouldn't that suggest then that Stormy Daniels is just taking the stand on a daily basis and just perjuring herself over and over and over? So the jury could either believe that Donald Trump is telling the truth. And Stormy Daniels is just continuing to perjure herself, which unto itself is a felony, Or the guy who won't even take the stand himself is the person who's in fact lying.

Yes, of course, right. The willingness of someone to take the stand and testify to this and be able to provide details about the instances, about the events that they are testifying to, all of that. You're right. Again, vastly undermines, you know, the supposed defense that we may never hear about because, you know, unclear whether he's going to take the stand and what we will hear about. But at the same time, the fact that he isn't taking the stand, isn't it true that the jury can't infer a negative inference from that? And so you can't even look at the fact that he's not taking the stand and draw anything from that. They cannot infer from a defendant's failure to testify that the defendant is guilty. But what the jury can do is weigh the evidence.

And if the only evidence they have is Stormy Daniels saying this happened and the defense side not really undermining her credibility but in many respects bolstering it, then, you know, that's all the jury has to go off of. Yeah. Yeah. Well, in this case, the New York Times actually put together a really helpful list of where all the jurors got their news. And it's juror number two who gets their news exclusively, this is based on the questioning, gets their news exclusively from true social and from X. So not an ideal media diet if you're looking for someone to give an objective sense of what's happening in the world. But are you worried about a sleeper Trump fan on the jury? Of course, right? Of course we should always be worried about people who are fed misinformation and live off of information and refuse to process facts in this day and age because we have seen evidence of that. Now, I will hold out the possibility that people will listen to charges that they receive and when faced with actual evidence can acknowledge the facts before them and come to a reasonable conclusion. But of course, we can't rule out that possibility. Why do you think that the prosecutors would allow a juror like that to, to to remain on this case. Like, why not, why not just cross all your T's and doubt all your eyes and just not even allow for the possibility that, okay, okay, like maybe this person answered questions appropriately enough to stay on the jury, but why not just make sure that we didn't

fall into this position anyway? Right. So I think you're referring to the prospect that both the prosecution and the defense had the opportunity to strike jurors for any reason whatsoever as long as they are not removing them, right, as long as they're not removing them for illegal reasons, like on the basis of race or sex or things like that. So I don't know, like, which possible jurors, the prosecution exercised their strikes on or what, you know, other jurors they were looking at. And so it's a little bit difficult for me to assess, like, whether they should have struck that person in particular. But I do agree that it is a real risk based on those answers. Okay. So this is, this, you know, we've just spoken about all of the, all of the Trump, all the prosecutions that Trump is contending with right now. A lot of it is giving, giving a lot of people around the country, a lot of worry because we see judges like, of course, Alito and Thomas on the,

the Supreme Court, Judge Cannon in D.C., how do you retain faith more broadly in a judicial system that more and more is exposing itself, not as this high-minded branch of government that rests above the fray of politics, but rather is little more than, you know, just the Marjorie Taylor Greens of the world in a robe? I mean, I guess I don't think the solution is just to retain faith in a system and indulge in a fantasy. I think the solution is to fight for the system that you want. And we are being reminded every day of the stakes of Donald Trump's judicial appointments. You know, the behavior of Eileen Cannon, of Sam Alito, of Clarence Thomas, and so many others, you know, should remind us the stakes of every single election, you know,

at the state, local, and federal level. And we should fight and vote for the justice system that we want and we deserve. Right. That's a great point. In fact, all of the, all of the cases that are giving everybody so much anxiety right now are actually the direct. result of him based on the people who he's appointed. I mean, you look at Roe, that wouldn't have happened without those three justices that Trump himself appointed. You look at Judge Cannon, Donald Trump appointed her. You look at, you know, the fact that there's a six three conservative court is why this question of presidential immunity was taken up in the first place. So we have a direct link right back to the person who right now is running. I mean, we have the, I mean,

I wouldn't call it a privilege of being able to vote, but like the privilege of being able to vote against him in this election and seeing the consequences of what his first election wrought onto this country. Yes, exactly. That's what I tell myself and what I try to talk to people about. Now, are there any other court cases other than these Trump trials

that you're watching particularly closely right now? There are many. I would just mention one, which is the case about emergency medical care for women who go to hospitals with pregnancy complications, and doctors and hospitals believe that if they are denied an abortion,

they stand the chance of losing a bodily organ or a major bodily function and potentially their life. And the Supreme Court is deciding a case about whether states can prohibit hospitals from denying women pregnant people abortions under those circumstances. The Biden administration is arguing that an important federal law, the Emergency Medical Treatment and Active Labor Act, prohibits hospitals and prohibits states from prohibiting hospitals from denying women life-saving and health-saving abortions. And the Supreme Court is going to decide that question. So basically two years in the wake of Dobbs, we are faced with this question about whether states can essentially force women to lose organs. if that is the cost of denying them abortions.

And will that be decided in this term? So before the end of June? Yep, it will be. Okay. Leah, where can we hear more from you? Tune in to strict scrutiny. New episodes drop every Monday. And we will be dropping additional bonus episodes

whenever the Supreme Court issues a particularly bad decision. Which seems to be the majority of the decisions. Exactly. So tune in. There may be a lot of them. Yeah. All right. Well, I'll put the link right here in the post description of this video on YouTube

and in the show notes on the podcast. as well. Leah, thank you so much for taking the time. Thanks as always for having me. Thanks again to Leah. That's it for this episode. Talk to you next week. You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellsey, and interviews edited for YouTube by Nicholas Nicotera. If you want to support the show, please subscribe on your preferred podcast app and leave a five-star rating and a review. And as always, you can find me at Brian Tyler Cohen on all of my other channels, or you can go to Brian Tyler Cohen.com to learn more.