Pod Save America - "Capitol-storming police-haters."

Episode Date: May 20, 2021

Republican leaders reject a bipartisan commission created to investigate their own attempted murder on 1/6, Democrats finish a new analysis of why they nearly lost the House in 2020, and NYU Law Professor Melissa Murray talks to Jon Favreau about the news that New York State has launched a criminal investigation into the Trump organization, as well as what’s ahead for the Supreme Court.For a closed-captioned version of this episode, please visit crooked.com/podsaveamerica. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On today's pod, Republican leaders reject a bipartisan commission created to investigate their own attempted murder on January 6th. Democrats finish a new analysis of why they nearly lost the House in 2020. And NYU law professor Melissa Murray is here to talk about the big news that New York State has launched a criminal investigation into the Trump organization, as well as what's ahead for the Supreme Court and more. But first, Sanjay Gupta is on America Dissected this week to talk with fellow Dr. Abdul El-Sayed about the changing state of medical journalism and a few stories he wishes were getting more attention. Check it out. All right, let's get to the news. The House voted on Wednesday to create

an independent bipartisan commission to investigate the January 6th attack on the U.S. Capitol. create an independent, bipartisan commission to investigate the January 6th attack on the U.S. Capitol. And since one Republican congressman recently compared the attack to a, quote, normal tourist visit, and another referred to the rioters as, quote, peaceful patriots, here's a quick reminder of us out there. And we are listening to Trump. You're the boss. Treason! Treason! Treason! Let's get the traitor! Traitor pet! Traitor pet! Traitor pet! Defend your liberty!

Defend your Constitution! Break it down! Break it down! Break it down! Break it down! Break it down! Break it down! Break it down! Break it down! Fight for Trump! Fight for Trump! Fight for Trump!

Just a couple of peaceful patriots on a normal tourist visit, Dan. I would say that chanting treason while committing treason is pretty amazing. Yeah, that's really just hanging a lantern on your problems. Okay, so there are still a lot of questions that haven't been answered about a day that left five dead and 140 police officers injured. How organized was the attack? How did the rioters breach what should be one of the most secure buildings in the world? Why did it take the federal government so long to send help? How much responsibility does Donald Trump bear? What was he doing and saying while the attack went on? Who else was

involved? After President Kennedy was assassinated, Congress set up the Warren Commission to investigate. They did the same thing after 9-11 with a commission made up of 10 members, five appointed by Democrats, five appointed by Republicans. That was the model for the 1-6 commission proposed by Democrat Benny Thompson and Republican John Katko that passed the House on Wednesday. Except this time, only 35 other Republicans voted for the commission. 175 voted against it, including House Minority Leader Kevin McCarthy. And now it heads to the Senate, where Minority Leader Mitch McConnell has already said he opposes the commission. Why, Dan? Why are so many Republicans against a bipartisan commission charged with investigating their own attempted assassination?

Three reasons, I think. One, this is what Donald Trump wants. And they have latched themselves to Donald Trump no matter where that ship is going. What he says goes. Donald Trump says jump. Mitch McConnell and Kevin McCarthy say how high. Second reason. He released a statement yesterday calling it a Democrat trap and telling everyone to vote against it. Or two days ago, I think. Right before. Who knows when his statements come out, when they arrive to us by raving.

We don't really know anymore. Is he talking about the one six commission? Is he talking about Kirstie Alley? We don't know. It could be anything. That's a real thing that happened last night. People don't know. He put out a is he talking about Kirstie Alley we don't know it could be anything that's a real thing that happened last night people don't know he put out a statement

in defense of Kirstie Alley after Kirstie Alley was on believe it or not Tucker Carlson's streaming show on Fox Nation which is also a thing that exists

oh I didn't know the context thank you for providing I watched the clip and it's basically the Tucker Carlson show but he does it in street clothes as opposed to it's highly right.

I don't recommend you watch it. So like his bow tie is a little loose? No, no, no, no. He's got on like – he looks like he robbed a Brooks Brothers for casual wear. So anywho, the second reason, which is even more important than that, which is the idea that the election was stolen, the idea that we're going to have to keep up the big lie is a critical predicate for the voter suppression laws they're trying to pass around the country. If you allow a bipartisan commission to look in and say, this was a legitimate election, this was a big lie, that undercuts your ability to steal future elections. And then I think related to that, and the third reason I think is the most scary, is sticking to the big

lie is a key ingredient to being able to do what is very clearly their plan, which is to put themselves in position to try to steal the 2024 presidential election, even if Joe Biden or the Democratic nominee wins the popular vote and the Electoral College. And so to admit that this was based on a lie, that the election was legitimate, is to undercut all of those things. So therefore, they do not want a commission, independent, bipartisan, with credibility to undercut that very important part of their plan going forward. I agree with all that. I will say that I don't think that they started in a place where they were 100 percent against this

commission. So like I'm very interested in Kevin McCarthy throwing John Kako under the bus. So John Kako is a Republican who negotiated this deal on the commission with the Democrats. He is a Republican. He's the ranking member of the Homeland Security Committee. He's more of a moderate Republican from New York. But McCarthy basically deputizes him to negotiate a deal with the Democrats about this commission. Kako basically extracts all the concessions that McCarthy and the Republicans asked for from the Democrats. The way this commission is set up is just like the 9-11 commission, Republican members and Democratic members each appoint five members. The Democrats appoint the chair. The Republicans appoint the vice chair. But even though this committee has subpoena power, they can't even issue subpoenas unless the chair and the vice

chair both agree. So the Republican appointed member and the Democratic appointed member or a majority of members all agree, which means you need some Republican appointed members. So like Republicans got basically everything they asked for in this commission. And then McCarthy just decides to throw Kako under the bus, which Kako brought up during one of their private caucus meetings, apparently. Like what what what change do you think? It's always important to remember the Occam's razor of analyzing McCarthy's actions is he is weak and stupid. Yeah. So it could have been both.

Probably a combination of both. This is – let's not forget. McCarthy gave a big defense of Liz Cheney remaining in the leadership and helped ensure she remained in leadership two months before he tossed her overboard. They're operating on sort of shifting sands here in the Republican Party. And so I think McCarthy obviously does not really see around corners, but put Katko in this position to do it, thought a commission was okay. It would be independent. They'd have some control.

They'd get some concessions. And then it became very clear that that would be unacceptable in Magaland, and he reversed and sort of cut the limb off behind Katko. I will say, you know, you mentioned that they're afraid of Trump. They're also afraid of right-wing media. Our pal Tucker Carlson, who you were just talking about, said that Republican voters should know the name of every Republican congressman who voted for what he called a poisonous hoax. There's also something else here, I think, that's going on. You get people like Pat Toomey and Susan Collins and Mitt Romney, all of whom voted to impeach Trump. And now they're saying that they're still undecided

on this commission, even though they voted to impeach Trump. And John Thune in the Senate, Senator from South Dakota, sort of gave away the game the other day when he was asked about the commission. And he said, anything that gets us rehashing the 2020 election, I think, is a day lost on being able to draw contrast between us and the Democrats' very radical left-wing agenda. is going to hurt their chances in the 2022 midterms because they have this theory. And this is the theory across the Republican caucus that I think unites the crazier Trumpers with some of the more reasonable Republicans can't even use that word anymore. But the Susan Collins and Mitt Romney's of the world, which is that they all believe and Republican strategists are all telling them that if they if they appear divided, it will hurt their chances of winning the midterm and so that they can't talk about one six.

They can't talk about 2020. They don't want to talk about Trump. They don't want to talk about Liz Cheney. Republicans are trying to avoid talking about all of this stuff because Republican division does not help them narrative wise heading into 2022. What I agree with all of that. But one difference I want to make clear is I don't think the Republicans are scared of Trump. I think that gives them way too much credit. They think that it is in their political interest to abide by his lies. And it doesn't mean – like he can't tweet anymore. Like no one even knows about his statements.

Like I had to dig deep to find the Christy Alley statement. What, what matters still is they think that they need his turnout. They need him. And so they have two choices. They could either take the time and energy and the, have the strength to try to talk the base off the ledge, or they could follow more of the ledge and always path of least resistance for these guys.

And so that's what happened. I think the other thing around toomey and Romney and Collins is it's always important to remember that the Senate is basically high school for old rich people. They have to go to lunch together once a week and sit around tables. And there's only so many times that these folks will do something to anger all of their peers. And this is what – and so they voted for impeachment. They have said other things. They defended Liz Cheney. And they're like, here's one where it just feels like easier to go along with the group and to create some sort of permission structure for yourself to not have to get into an argument with John Cornyn or something while you're trying to get applesauce in the lunch line or something.

God forbid. I mean, I also think they are they are betting on the fact that they kill this thing now that also like no one's going to be talking about it come the midterms. And if this thing goes forward, then potentially we will still be talking about it around the midterms. And they just don't want that. I mean, the other thing is McCarthy specifically is concerned that he will have to testify with this commission about his phone call with Trump, where remember, the former president reportedly said to McCarthy, well, Kevin, I guess these people are more upset

about the election than you are, as rioters are storming the Capitol where Kevin McCarthy is sitting. And Trump said that to him. And I'm sure McCarthy doesn't want to testify about that. Yeah. I mean, I love that. There's a lot of great things around this. Congressman Greg Pence voted against the commission. Greg Pence, Greg Pence voted against the commission greg pence greg pence voted against the commission to investigate the people who wanted to hang his brother the former vice president what a shitty brother maybe maybe they don't like each other everyone else's brother is automatically better than greg pence i just it's unbelievable so uh and then the one other so there's a couple republican complaints about the commission they they say it's partisan We've just talked about why it's absolutely not partisan. First of all, it's passed by 35 Republicans. Second of all, the commission requires bipartisan consent in order to even move forward at all. I can't do anything with just Democratic appointed members or Democratic appointed staffers. It needs cooperation. So it's a lie that it's partisan. They are saying that it's duplicative. John Katko himself, the Republican that negotiated the bill, made an impassioned floor speech where he talked about how it's not

duplicative. In fact, he knocked down every single Republican concern. He mentioned that like the commission couldn't interfere with ongoing criminal investigations that are already taking place, which is what Mitch McConnell complained about. He also pointed out that the current criminal investigations aren't sufficient because they won't tell us how to protect ourselves from such an attack in the future. He even said that the commission could look into other instances of political violence. One of the crazy complaints from Republicans like Kevin McCarthy and others is that the commission is not going to look into political violence committed by the left. And in fact, here's what Marjorie Taylor Greene said about the commission on the floor the other day. While it's catch and release for domestic

terrorist Antifa BLM, the people who breached the Capitol on January 6th are being abused. The people who breached the Capitol are being abused. And what really should happen is that Black Lives Matter protesters should be investigated. That is the fringe Republican position, I suppose. You know that relatively unfunny meme that's like, I made a bot watch 10,000 hours of Friends and wrote a script? Marjorie Taylor Greene is basically a bot who watched 10,000 hours of Fox. It's just like, catch and release, BLM, Patriots, blah. Antifa, terrorists, AOC.

Yeah, that's it. Just wind her up and watch her go. All right, so what happens now? What options do Democrats have? Presuming that the Republicans will filibuster this in the Senate and therefore prove to maybe Joe Manchin and Kyrsten Sinema that the filibuster is not a tool to facilitate bipartisanship. The option for the Democrats is to impanel their own commission, a special committee, much like the Republicans did

on Benghazi that would have subpoena power and let them go investigate this as it should be investigated. What do you think the benefits and drawbacks of that are? The benefit is you would actually investigate it. You would have subpoena power. You would not be captive to Republicans. I have read some speculation that a congressional committee would struggle to get to subpoena a member of Congress who testified before it. An independent commission would have more legal standing to do that. So that is one potential drawback. I think in the ideal view of Pelosi and Benny Thompson and the people who had this original plan was that this really would be like

the 9-11 Commission, which was a very serious endeavor. It had buy-in from the Bush administration. Bush and Cheney testified before it, or they gave depositions for it. It released its findings in the summer of the year Bush was up for re-election. It was all serious people. But that was a different era and a different thing. 9-11 happened nine months after Bush took office. The commission was looking at everything, including all the things that happened in the years before we had a Democratic administration. Obviously, the bulk of the responsibility for what happened fell on Bush's side of the ledger, but it was a global look and you had buy-in from lots of people involved. There was a whole lot of things to look at. Here we have one lie pushed by one party,

pushed by one president from that party, it does not need that sort of bipartisanship. The other thing that I think might be a miscalculation from the Democrats is you heard some people and some members say in some of these stories, if it's not bipartisan, you're not going to be able to convince the Trump base, Republican voters about the truth of the big lie and what really happened. But I think that is a naive conception. I think that ship has sailed, my friend. Right. Well, I mean, it's just politics.

Horse is out of the barn. Politics has changed a lot since then. Let's say Mitch McConnell and Kevin McCarthy got on board with this. So you have, it is a joint report signed by the minority leader, Republican minority leader, Republican minority leader in the House, and you put it out. Those people have one iota of the credibility of Tucker Carlson, Sean Hannity, Dan Bongino with the base of the party. It is spitting in the wind compared to what Fox News would do about this. So what we ultimately want to do is

get to the bottom of what happened. Because like the 9-11 Commission, the 9-11 Commission was what happened, and how do we prevent it from happening again? There is a very real risk that just a few years from now, we could be in the very same situation. There will be another big lie push, another close election, another situation where you could see the very same thing. So how do you stop that from happening again? Both how do you how do you push back against the spread of the big lie? And then how do you actually strengthen the Capitol and put in place this the the systems you need to ensure that a group of people can't storm the Capitol on a day like that? Yeah, I think it's a very important point that this isn't backward looking, that this is very forward looking, the need for this commission, because you know that the Republicans are already saying like, oh, we don't want to

relitigate the 2020 election, right? We don't want to look back. But this is, of course, about the future. I think the other big difference between a select committee set up by Pelosi and a committee set up by this commission, the 1-6 commission that's being debated right now, is the commission would have members appointed by democratic and republican members of congress but it couldn't include current democratic or republican members of congress or any current elected official if pelosi creates a special committee it's going to be all all yahoos from congress now you know democratic democratic yahoos too we like them um but and look they could look, you could set it up so you have a majority,

a Democratic majority on the committee, and that the Democrats and the chair of that committee have subpoena power. But again, you're going to have a bunch of Republicans on that committee, or at least some Republicans on that committee who will turn it into a complete circus, much like they did during impeachment. But again, I think you have to figure out

what is the ultimate goal here, right? Like, I don't, I actually don't think that we should have a political goal in mind here. Not because I am like above that, but because I just, I don't think you're going to change that many minds on this at this point. But I do think there is another goal of, like you said, just finding out what happened and getting answers to these questions, which I do think is incredibly important. Norm Ornstein talked to Greg Sargent at the Washington Post about some other options aside from Pelosi creating a special committee. He also said that Biden could create a commission. That makes it a little too close to Biden if he does that. And then DOJ, like under Merrick Garland, could maybe create a commission as well. And then Merrick Garland could sort of step away from it as attorney general and just let this independent commission, you know, operate on its own and maybe have a little more authority to subpoena people than your typical congressional committee.

So he said that that was another option too. But it does seem like, and Pelosi was kind of talking about this yesterday when reporters asked her about it, that she is at least thinking in the back of her mind that if this thing goes down, that she could create a special committee. There is this legend that sort of, whenever anyone's been talking about this, and the Benghazi committee has been the analogy that every reporter uses, we should note that it is a very imperfect one because Benghazi had already been investigated by several committees chaired by Republicans who had declared that while there were mistakes made in terms of embassy security, there was no cover-up. It sort of debunked all the Republican conspiracy theories.

John Boehner created a special committee so they could keep doing that to appease the folks on the right. And then there's this view that it was this massively damaging political winner for them. And that's not as true as people think. The reason why it is seen is because that is where the existence of Hillary Clinton's personal email use came out. But that's a different, it's a very different situation here. It was not that they talked about Benghazi for years, that actually was a huge, I think, negative for them. If you remember the hearing that Hillary Clinton testified, and sort of made all of them look like fools. I think to your, the thing that we should be, I think, realistic about is it is May of 2021.

The idea that this is going to drive conversation for the next 15 or 16 months after the election is just belied by everything. We should always remember Donald Trump was impeached. We just had two impeachment hearings. We had two impeachment hearings. Yeah. No, I completely agree. I mean, what this is is a very disturbing sign about democracy, the state of the Republican Party, the absolutely absurd position we find ourselves in. But it is not the thing that is going to win the election.

But we should get answers to protect people's lives because people's lives were lost on that day. I will say, to go back to a point you made earlier, it is also a another test of sort of the mansion cinema theory of the fucking filibuster and protecting the Senate as an institution. You know, this thing isn't dead yet. In fact, just before we started recording today, Manchin told reporters he thinks there's still a quote, very, very good chance of passing the commission. OK, so you got McConnell against it in the Senate. You had seven, you need 10 Republicans to pass this thing. You had seven Republicans who voted to impeach Donald Trump. You don't even have them on board yet for this commission. Where the hell are you going to find

10 Republicans to support this commission unless, unless Manchin and Sinema decide that the filibuster is not more important than a bipartisan commission to investigate an attack on the very institution that they think they are trying to save by protecting the fucking filibuster. It like my head is going to explode thinking about. Well, think about remember the video of Mitt Romney barely running into that crowd that was in the impeachment hearing that feels like a hundred years ago, but it was like three months ago. And Mitt Romney, he was almost assaulted by that crowd. It was by the bravery of one officer who saved him is against it. I was trying to interpret what Manchin said. I think he is probably thinks there's some chance that there could be some

additional concessions made to get a bill that would have bipartisan support in the Senate. What else could they give at this point? Do they want Trump on the commission? Is that what they want? I mean, someone pointed out, I think, I can't remember where I read this today, but you- Oh, it was in Max- Do you have a non-shaman? Does he have to be on the commission? The five Republican members of the commission are the cast members of the five.

Vice Chair Gutfeld. I do think, though, I think this is a good test if there's a lot of important things at stake here, but around the filibuster and what Manchin and Sinema do on this, especially because they talk so much about bipartisanship. Well, here you have a bipartisan commission. What are you going to do about it? All right, enough about Republicans. Let's talk

about what Democrats are up to these days. The party seems hellbent on trying to win the next election the old-fashioned way, by figuring out how to get more votes. This week, Congressman Sean Maloney, the chair of the Democratic Congressional Campaign Committee, the DCCC, presented a 52-page PowerPoint deep dive to House Democrats that analyzed over 600 polls, voter files, and state and local data in an effort to explain why Democrats lost 11 House seats in an election year where Joe Biden won by more than 7 million votes and the party gained three seats in the Senate. So according to Paul Kane of the Washington Post who reported out the story, Maloney basically lands on two reasons that the Democrats didn't do as well in House races.

One, Republican turnout, which just about every poll missed. And two, Republican attacks, especially on socialism and defunding the police. Still, the congressman said that while, quote, the lies and distortions about defund and socialism carried a punch, the Republicans think it got them over a 10-foot wall when Trump's turnout gave them a seven-foot ladder. So Maloney was joined on the call by the co-chairs of this report, Representatives Jim Himes, Katie Porter, and Nakima Williams, who was just elected to fill John Lewis's seat. What's your reaction to this? Anything else interesting about this autopsy that I missed? Well, first, I think we should just give

kudos to the House Democrats for doing this. Oftentimes, parties do not want to face the uncomfortable questions about how they lost. And so this was a very, very good thing they did this. And I think the House Democrats have actually been very good about this. In 2000 and after the 2016 election, they actually did two autopsies. The DCCC did theirs. And then the members assigned Congressman Maloney, who was not yet the DCCC chair, to do an independent investigation. So you sort of were doing a belt and suspenders approach to see, because he would not have an interest as the DCCC member there, to sort of paper over some of the mistakes. And I went back and read the reports about his 2017 autopsy. And he was very, went back and read the reports about his 2017 autopsy. He was very, what he was hypothesizing then based on the information he had has turned out to be quite true about shifts in electoral coalitions, about the democratic challenges in rural areas, about some of our challenges with Black and Latino voters. And it actually played a real role in the success we had in 2018. The other point I would say that Maloney brought up in his call, according to this report from Paul Kane, is that there was a over-indexing of old media. That they struggled really to reach black and brown voters and voters in rural areas because they were using too much, relying too much on linear, on television advertising as opposed to digital.

Singing your song, Dan. I know. Obviously, I honed in on the exact part that makes me seem right. I was going to bring this up later, but you were just jumping right on it. I appreciate that. I think, to be fair, in recent years, DCCC has been a little bit behind others in terms of moving away from television and to digital. But one of the challenges here, and we've talked about this in other contexts, is so much of the money came in late. And when the money comes in late, one of the only things you can do is just go buy up the remaining television inventory, especially because Facebook turned off their ads at the end. And so really your only option was TV. But there is a broader philosophical shift in the party about how we allocate resources. And it's not just pay to digital. It's also what goes to organizing, what is spent early on deep canvassing and organizing. But the model did not work. And there's some other reasons there, which I think

we should talk about. But the allocation of resources is a very important one that needs to be applied going forward. Yeah, I thought it was interesting. Maloney at one point said, I'd rather invest in the next Stacey Abrams, who's going to build a ground organization, than spend more money on television, which obviously, that's a popular thing to say, I'm sure. That's why if I were to get into stocks, I want to invest in the next Netflix, right? The next Apple, that would be cool. Yeah, you got to go through a lot of pets.com

to get to that, Juiceros. All right, so what the hell did the Democrats do about the fact that our polling keeps missing surges in Republican turnout? Maloney said, quote, The Republican Party is betting the ranch that they can do Trump's toxicity without Trump's turnout. And I think that may end up being a terrible mistake. So there's I guess there's two different things at play here. One is like, what do we do about the fact that our polling keeps missing the surge in Republican turnout?

And then the second is, what do we do about the fact that there keeps being a surge in Republican turnout? I think it's, we'll just back up one step to talk about why the polling miss actually matters and why it particularly matters for the DCCC. You know, because if the media polling being wrong ultimately does not matter at all,

it affects our expectations. That's just for us. That's just for our own. All it means is that we either get our hopes crushed or we're pleasantly surprised. No one's making decisions based on, although I will say some like donor, like grassroots donors are like, they thought a whole bunch of Senate races were winnable because the poll said

they were, and they clearly were not. But what really matters is campaign polling. And the DCCC in particular, said they were, and they clearly were not. But what really matters is campaign polling. And the DCCC in particular, in addition to recruiting candidates and training candidates, what they do is they raise a bunch of money, and then they go spend it on the incumbents they think are most likely to lose, and then the Republican seats they think are most likely to be flipped. And if you have the wrong view of the map, you're going to spend money in the wrong way. And it was devastating in 2020 because we had six of the 2018 freshmen who were running in tough districts lose by a point and a half.

Because according to a world in which you had lower Trump turnout, those races seem safe. And then you poured a bunch of money into some seats we ended up losing by five, six, seven, eight points because you were just looking at a fun house mirror version of it. And so it's absolutely devastating in a world of limited resources being spread out. There's never enough money to spend on every house race. So you have to make some real decisions. If you don't have good polling, that's a problem. Like every other polling report that has come out since the election, no one has a good answer for solving that problem. I'll give you an example of this. I ended up doing like speaking at a good answer for solving that problem. I will tell, I'll give you an example of this.

I ended up doing like speaking at a fundraiser for Abby Finkenauer, like the week before the election. And I remember thinking, and Pelosi, it was a Zoom fundraiser and Pelosi spoke at it too. And I'm like, I was happy to do it because I love Abby, but I was like, why are we doing a fundraiser for Abby Finkenauer right now? Like, first of all, she's up by a lot. Why is Pelosi here like this? And it turns out, you know, talk to her afterwards after the election, like there was a late surge from her Republican candidate that they had completely missed. And the Finkenhauer campaign was sort of begging for more resources from the DCCC and from the Democratic Party that they weren't getting because the polling had led them astray for so long and sort of missed this last minute surge, even though they felt on the

ground that they were in a bit of trouble, which is just a real world example of how polling can actually not just like throw political consumers off, but like actual people who are running political campaigns. Yeah, it's not great. Not great. No, as they say. So I guess so that that's the polling. I mean, the other big question here is like what Democrats do about Republicans calling us left wing socialists who want to defund the police. Since, you know, this report shows, like many others, that that clearly had some kind of effect, though we don't exactly know what and where and with who. Dave Weigel and Griff Witt had a story in the Washington Post last week about how rising crime rates in cities are posing a political challenge for

Democrats with Democrats who have progressive criminal justice reform agendas. So then on Tuesday, two of those Democrats won some pretty big political victories in Pennsylvania. Philadelphia District Attorney Larry Krasner, who's focused on reforming cash bail, reversing wrongful convictions, ending prosecution for low-level crimes, won a primary election over his police union-backed challenger, Carlos Vega, by 65 to 34 percent. Landslide. And then in Pittsburgh, Mayor Bill Peduto lost his primary to progressive state representative Ed Gainey, who campaigned on equity in housing and policing and will likely become the city's first black mayor. So what did you think of Tuesday's results in Pennsylvania in light of the findings of the DCCC report?

I think that they are almost wholly disconnected. I think it would have sent a very disturbing message to the party if Larry Krasner had lost. Because he was sort of the – I mean, there's a documentary about him. He's sort of the poster child of a progressive prosecutor who comes in running on a criminal justice reform platform and then puts in place real change really quickly. And if he had lost a Democratic primary, that would have sent a message that I think would have sort of paused or slowed or even stopped the momentum among Democratic politicians for this very important criminal justice reform agenda. But what is happening in Democratic primaries or overwhelmingly Democratic cities

doesn't tell us very much about what happens in purple districts, how it's being seen by independent voters or the voter or the gap between people in these House districts who voted for Biden and the ones who voted for House Democrats. Because the House Democrats underperformed Biden in most places by a couple of points. In many cases, that was the difference. And so how do they view these things? And so I think it's a very positive – for the actual and incredibly important goal of putting in place criminal justice reform legislation at the state and local level, those victories are very important. And I think it sort of will pause a growing narrative that will be completely upended depending on what happens in in the New York mayoral primary in June, if Eric Adams, who is the most conservative on these criminal justice reform issues, if he were to win that primary, that would, I think, sort of bring

us right back to where we were before Tuesday. But I don't think it should give us a lot of indication of how these messages will play in November in Virginia or November 2022. play in November in Virginia or November 2022? Yeah, I mean, to me, the Tuesday results sort of speak to the ongoing march of polarization in politics, like just as, you know, Republicans in red areas are getting more conservative, Democrats in big blue cities are getting more liberal. And so when there is a primary in a big city, then there's a really good chance that the more progressive candidate can win that primary for the same polarization reasons that we're seeing, you know, Republicans in red areas vote for more Trumpy candidates. Now, so before we move on from the DCCC report, like, what do you take away from it in terms of, like, what the party should do? Both in terms of, like,

we got this polling challenge, we got this Republican turnout challenge, and we got this challenge of Republicans, you know, using sort of defund attacks,

socialism attacks, and often lying about those attacks as well. Before we do that, I just want to make one point just so people understand the tremendous

structural disadvantage that Democrats have. We're having – like there's an autopsy and we're talking about it and we lost 11 seats. House Democratic candidates won 4.7 million more votes than Republican House candidates. Yeah. They won the House popular vote by 3.1 points and we lost 11 seats. and we lost 11 seats. That is a, just as Joe Biden won seven million, the popular by seven million votes and barely won a small handful of seats that gave him a sizable electoral college margin. Like that, Democrats are operating at such a structural disadvantage. That structural disadvantage is likely to get worse with the post-census maps being redrawn and new seats in

from the democracy haters in the Texas legislature and Florida and elsewhere. So just we should just recognize the Democrats keep winning more votes and keep losing. And that is a problem that we have to address. Well, but how do we address that problem? We have to win elections in this fucked up system. Yes. Yes. I just think we can never we can never lose. No, I know. I just almost it's like how many times can we complain about the fucked up system. Yes. Yes. I just want to, I just think we can't, we can never lose, we can never lose sight. No, I know. I just almost, it's like how many times

can we complain about the fucked up system in which we operate, in which we are a structural disadvantage as a party because the only way out of it is to

win an election. Or, yes, we have to win elections. It also would help if we would pass the incredibly important political reform bill which would ban

partisan gerrymandering at least level of playing field. So that would help. That would mention Kirsten cinema, whoever else. The thing that I, you know, I think back to doing campaign experts react to the YouTube series I did during the 2020 election,

looking at all the campaign ads, smash hit. Well, smash hit. Talk to Elijah. Canceled. That's cancel culture i can't believe you've been canceled yeah no like we'll never know what happened at the end i don't

it's like it's a series that ended before its time um he's giving a giving a show to tucker jesse waters or something that's right i'm negotiating with the fox nation streaming service right now. But one of the things that was interesting was we would look at all these ads from Trump. And they were all over the map about Biden. Like he's in the pocket of China. And he has cognitive decline and corrupt and Hunter and all of this. And then that was how it was sort of all summer. And then it sort of that was how it was sort of all summer. And then it sort

of stabilized at the end. And then when you look at the Trump ads and the ads about Senate Democrats and house Democrats, they were pretty much the same radical socialist police haters. That's it. There was a, there was a, for, you know, for totally fucked up party run by a moron, run by a campaign staffed by grifting morons, there was incredible unanimity in the Republican message about Democrats. It failed against Biden because he was so well-known that message did not stick to him as it did to others. But for these relatively unknown House and Senate candidates, it mattered a lot. Democrats, in part because of poor polling, were running ads about tying candidates to Trump, who turned out to be a lot more popular in your district than they thought, or were running ads about COVID, which we thought was everyone's number one issue

by far, when it turns out it wasn't for a segment of the population. And so there are two things we have to do here. One is we need our version for Republicans of radical socialist police defunders. What is our brand that we are going to use that is going to be in every ad, in every tweet? It's what the, you know, we will say Republicans, what people, what our listeners will use on social media. Like, what is that? I don't know. Maybe maybe radical capital storming police haters. Well, I think there is a there is a debate in the party.

That's not it. That's not it. But yeah. But there is a debate in the party about this, whether it is you're tying them to Marjorie Taylor Greene and sort of Trump in extremism. Or tax cuts for the rich and all the rest. Yes. A lot more research has been done on this. I led myself to the latter because I think we have room for growth with working class Trump voters who disagree with basically everything that the Republican Party is for these days. But that is what we – you have to figure it out and then everyone has got to say it. And it's got to be – it's got to be in our paid advertising. It's got to be in our earned media. It's got to be in our social.

And that – I think that is the A number one priority. It's got to be in our social. And I think that is the A number one priority. We have to also think through what our better responses are to defund the police. I think a lot of people thought that they were missing the conversation by focusing on those issues. And I think in hindsight, they were much more powerful. Now, I want to sort of separate ourselves from the great New York Times debate of December 2020, when everyone would just call Astad Herden and tell him their points of like Conor Lamb, AOC and all of that. But it is always, always, always have your debates in the in the pages of the New York Times.

They're always more productive that way. They always. Yeah, it's easier just to do that than text each other. But defund police attacks and social attacks are not the only reason we lost. But they were clearly, and I think this is the point Congressman Maloney was making, is they are more effective than I think we thought at the time. So we have to go back and think about how we're going to deal with them going forward because they're not going to stop.

Well, you made an interesting point is that they didn't stick to Biden because he's well known. You know, a lot of people have pointed out that one of the things that that helped Biden with his sort of moderate image is he's a he's an older white guy, right, running who's had a long moderate record. But, you know, we should point out that there was a lot of moderate white guys running in these House races who didn't win and who these attacks did stick to. And I do think like, you know, investing more and making in a lot of bio spots for some of these candidates and making sure they're more well known, right? Like if we had known that there would be a more, you know, Republican surge in turnout, perhaps some resources would be dedicated more to sort of propping up some of these members and

making sure that people know who they are, what their stances are, where they come from, what their values are, than just sort of attacking your opponent. Because I do think that people knowing Joe Biden and knowing who he is and what he stands for really did help him weather some of the horrible attacks that were leveled against him in the 2020 race. And for some of these House members, either they were freshmen or they were challengers, and people in their districts just didn't know them and weren't familiar with them. So that when you attack them and you spread a bunch of lies and conspiracies about them and you distort their record, it's easier to stick. Our friend J.D. Scholten, who ran against Steve King, his political organization just did a poll of rural voters, and they found

nearly half of rural Democrats don't know they're getting stimulus checks. They don't know about the American Rescue Plan. And that speaks to the information gap, particularly in rural areas where you're getting – in more Republican areas where there's more Fox News on the air, there's more conservative local media. it's maybe a place where there's Sinclair. And what that says is that there is a huge flaw in a communication strategy that lies on the mainstream media to get your message out. It can't be we're going to put out press releases and do press conferences from the day we're sworn in until Labor Day of the election year. Most of these candidates, in my view, should be up with digital stuff now, sharing what you've accomplished, who you are with voters at a low frequency.

Obviously, you'd be able to raise money for this, but do that nonstop because you have to define yourselves before you get defined, and you cannot rely on the mainstream media to do it. And you should not be you should not underestimate the power of the right wing ecosystem to define you negatively just because you're a Democrat. Yeah, it was even worse than you mentioned. So it's like it's this poll of like 2000 or something rural voters across all the swing states. And the good news is 68% of them support the stimulus checks, but only 50% of them associate those checks with the Democratic Party. 32% thought that they came from the Republican Party and 11% didn't associate them with either party. That's where we're at. And that raises an important question, I think, because we have talked about how the Democrats' midterm strategy has been to just deliver benefits to voters that will improve their lives. Like we got your shots. We sent

you checks. We built your roads. We created a bunch of jobs. Please remember us on election day. Like, what if that doesn't work? That's not going to work. What if that's not? I think I think there is a very important conversation to have about whether simply doing popular things is enough to win in an era of negative polarization. But do you think that the answer is do the popular things and then make sure people know that you're the one who did the popular things? Or do you think it even goes beyond that? The first, you know, to use Congressman Maloney's ladder analogy, there is no ladder without Joe Biden and the

Democrats controlling the pandemic and fixing the economy. That is, we are doomed. That's table stakes. Yes. So you got to have your table stakes. And I think you want people to know you did those things, but we have to run an aggressive, strategic, relentless, ruthless campaign defining who the Republicans are. It never stops.

It drives a wedge right through their coalition. People need to understand the stakes of this election. And the stakes of this election are not just are you going to get more stimulus checks? Because one of – we talk about all the hurdles we have, but one hurdle we have is a lot of people in this country naturally default to divided government. They think that that is better in part just because they're skeptical politicians and it's a check on the system. But we have to make sure that people understand that the Republican Party cannot have power again, that they are deeply dangerous. And we have to do that in a way that works. And I think that is going to end up being like everything that Joe Biden is doing and staying popular and helping the economy. That's going to get us to the point where we can see over that

wall. I'm going to just kill this latter analogy. I love it. But if we're going to get over that and upend the historical and structural challenges we have going into this midterm, it is going to have to be because we came up with the absolute best message against the Republicans and we hammered them over the head with it for two years. Yes, totally agree. All right, when we come back, I'll talk to law professor Melissa Murray

about the new criminal investigation of Donald Trump and what's ahead for the Supreme Court? Welcome back. So late Tuesday night, the office of New York Attorney General Letitia James released a statement that read, we have informed the Trump organization that our investigation into the organization is no longer purely civil in nature. We are now actively investigating the Trump organization in a criminal capacity, along with the Manhattan DA. We have no additional comment. Joining us to hopefully provide some additional comment on this and other legal issues in the news, NYU professor of law and co-host of the excellent Strict Scrutiny podcast, Melissa

Murray. Melissa, welcome to Pod Save America. Thanks for having me. It's great to be here. So as soon as that statement was released, I think most people without a legal degree had the same question. How screwed is Donald Trump? What do you think? Well, my first take on it was, wow, Tish James woke up this morning and chose violence. You do not want to fuck with Tish James. You don't. I think this is a pretty significant development. You know, obviously, we're dealing with someone

who I think, like Mercury, manages to slip through most of the crevices of accountability that we've established in our system for wrongdoing. So this is not a slam dunk, certainly, but the fact that this has shifted from a civil investigation to something where there's likely to be criminal charges, or certainly it's shifted to a criminal investigation, means that in the course of that investigation into whether or not the Trump organization had improperly valued assets for purposes of loans

and taxes, suggests that maybe they found something even bigger, whether it's criminal fraud or in terms of valuing those assets, but something that goes beyond what would be obviously civil liability to something that is more damning and indeed would require criminal intervention. And it brings to bear the offices of the state attorney general to the investigation that the Manhattan DA's office has already been undertaking. And so, you know, there is a kind of efficiency, economies of scale, if you will, of having these two very powerful state level offices join forces in this investigation. Is that common that the two offices would work together

in an investigation like that? I think it happens occasionally. I mean, again, this is a rather high-profile situation. But again, often the city, the Manhattan DA's office will be investigating violations of state law, which obviously concerns the attorney general. So it's not uncommon. But again, I think you typically don't see it with someone of this high profile. But I think it's

also quite unorthodox to have a former president be in the crosshairs of a DA or a state attorney general. So there you are. What do we know about the potential crimes they're investigating? You mentioned that the Trump organization may have both overvalued assets and then tried to undervalue them at tax time. I saw Andrew Weissman, one of the Mueller investigation prosecutors, tweeting about the Martin Act. What do we know about all this? So we actually don't know a lot about what the scope of the investigation is or what potential violations of law they've identified. They've been pretty close-lipped other than saying that they've shifted from a civil posture to a criminal posture. So Andrew, who is my terrific colleague at NYU, was speculating given the work that he

has done with the Mueller investigation and what he knows of the Trump organization. But the truth of the matter is we don't really have a lot of information. And I think we are unlikely to have a lot of information until this becomes more fully developed. So not to get ahead of ourselves here, but Politico reported the other week that if Trump is indicted while at Mar-a-Lago, that Governor Ron DeSantis might be able to step in and prevent him from being extradited to New York. Is that true?

So Florida's extradition statute provides for the governor to intervene to limit the scope of an extradition. And, you know, perhaps there is speculation that Ron DeSantis might be exercised to do so for President Trump. And I don't know that that's really the big issue. I mean, President Trump has said that he's planning to move on from Mar-a-Lago as one does when one is finished with the summer and moves to one's other estates. So it's likely that he will be going to Bedminster in New Jersey. And I think, you know, New Jersey doesn't have the same

provision in its extradition statute. And I think it's unlikely that New Jersey Governor Phil Murphy would be willing to provide the same kind of shelter. So I just don't think that that's really an issue going forward. And certainly it would yield, I think, a lot of outcry from individuals if Ron DeSantis was seen to be sheltering someone from the rule of law. But, you know, again, this is where we are. Florida becomes a safe haven for criminals everywhere. Before we move on to more consequential topics, I got to ask what you think about the investigations into two of Trump's pals, Matt Gaetz and Rudy Giuliani. We got a guilty plea and a promise of full cooperation from Gaetz's buddy, Joel Greenbergberg this week. And we saw the feds raid Giuliani's apartment and office a few weeks ago. I mean, I've said this before, but, you know, maybe MAGA isn't making America great again, but making attorneys get attorneys. I don't know what

else to say. To be very clear for your listeners, Representative Gates and former Mayor Giuliani have not been charged with anything. And if they are charged criminally going forward, they are innocent until proven guilty. Of course. Just to get those caveats out of the way. Certainly the Greenberg investigation and the change of plea and Joel Greenberg's decision to plead guilty to six charges when there were probably around 33 charges at issue suggests that there's going to be some serious, serious cooperation. And maybe the focus of that cooperation is Representative Gates. It could be a number of other people. But the fact that we've gone from 30 odd charges to six suggests that he's telling the government a lot and telling prosecutors a lot. And to be clear,

if any of these charges, if anyone else were to be charged and it were to go to trial, Joel Greenberg is not a great witness for the state. His credulity could certainly, his credibility could certainly be impeached at any time because of the nature of the charges against him and his own background. So I think what's really important here is the information that he gives up to prosecutors, if it can be corroborated with receipts of all types, whether it's Venmo or bank statements or other people who can corroborate the things that he's telling the prosecutors, that will certainly be significant. But again, it cannot have been a good day in Matt Gaetz's household on Monday when Joel Greenberg pled guilty. Yeah, that sounds about right. Let's talk Supreme Court. Very

worrying development this week when the court announced that it will hear Dobbs v. Jackson Women's Health Organization, which is about the Mississippi law that bans abortion after 15 weeks of pregnancy. This is seen as a case that could give the court's conservative majority its first big chance to go after Roe, in which the court ruled that the Constitution protects the right to an abortion before viability. Can you walk us through why they might rule differently here and what their reasoning could be? Sure. So I think all of the individuals who have been up in arms about this and saying, you know, this is the end of Roe, like they're not being hyperbolic. I mean, this certainly could be the case that results in the overruling of Roe versus Wade. Certainly

the way the question presented when the court decided to grant cert in this case makes clear that they are broadly looking at the full scope of their extant abortion jurisprudence, not some sort of very minor tinkering question. The question is whether all restrictions on pre-viability abortions are unconstitutional, and that certainly puts Roe squarely in the crosshairs. The reason this case is at the Supreme Court now is because of the changing composition of the court. So when Brett Kavanaugh was nominated and confirmed to the Supreme Court in 2018, you begin to see all of these states putting out more and more aggressive restrictions on abortion.

And again, it's sort of to push the envelope. They understand that the reception at the court is perhaps more hospitable than it's ever been to the prospect of overruling Roe. And so you saw a huge spate of very restrictive abortion laws being passed. When Justice Ginsburg passed away in September 2020 and Amy Coney Barrett was very quickly slotted into her seat, again, more and more appetite for this fomenting because the court has gone from a five to four conservative majority to what is actually a six to three conservative super majority. And with that conservative super majority, what you also have is a diminution of the chief justice's authority to limit what the court can do and what that

conservative majority can do. So last term in June medical services, the chief justice who was no fan of abortion and made that very clear in 2016 and whole women's health, um, where the court struck down a Louisiana or excuse me, Texas admitting privileges law, he was in the descent. Um, but in last terms, June medical services, which took up an identical Louisiana admitting privileges law, the chief justice joined the liberal wing of the court to form a majority of five. And then he sort of broke away and wrote his own opinion that raised, I think, a lot of questions about the scope of protections for abortion, but nominally upheld the abortion

right. Now the chief justice is no longer the swing vote. The liberals cannot use him to form a majority. They only have four with him. And the conservatives don't need him to form a majority. They're fine as long as they have the whole rest of the conservative wing of the court on board. And so his real authority right now is to join the conservatives to form a six majority and to have the authority as chief justice to assign the writing of the opinion. And if he joins the conservatives and he has the prerogative of assigning the opinion, I think what we might see if he is worried about what this looks like to the public outside of the court, we might see him join the rest of the conservative wing, assign the opinion to himself for the purpose of limiting it and making it a more

narrow ruling. And I think that's likely because this is a case that is going to be heard on the eve of a midterm election. And John Roberts, above all, is an institutionalist about the court. He's a movement conservative. He's a movement conservative. He's a Republican. He cares about the Republican Party, I think. And I don't think he wants this smoke as people start going to the ballot box, and certainly not women. There is support for the idea of a right to abortion, even if individuals may disagree

on what the scope of that right is. There is broad public support for reproductive rights and the right of women to terminate a pregnancy. And I don't think he wants this to be the position with which the GOP is associated when people go to the ballot box in 2022. Depending on John Roberts to protect access to abortion doesn't feel like a great place to be in, but you do make a persuasive case that he could decide to, you know, use this case to write an opinion that potentially limits the scope of what the conservative justices do. So let me be clear. Even if this opinion is narrow, it's a problem. You know, like you can do what's been done over the last 20 years to just continue to constrain and constrict

abortion access through more and more restrictive laws to the point where the right is really just what's been done over the last 20 years to just continue to constrain and constrict abortion access through more and more restrictive laws to the point where the right is really just a right in name only and women aren't able to access it. And I think that would certainly be the case. And a narrower opinion that perhaps upholds the Mississippi law just sends the lower federal courts into disarray trying to determine whether bans on abortion at six weeks or 10 weeks or 12 weeks are constitutional. So it's just a mess going forward. And more importantly, there are other abortion cases coming down the pike. Just a couple of weeks ago, the Sixth Circuit upheld

an Ohio law that prohibits abortion when it is done for purposes of race selection, sex selection, or because of the diagnosis of some sort of disability or fetal anomaly. And that actually created a circuit split. This Mississippi case, there was no circuit split. So the conditions under which the court might have taken it were perhaps a little more shaky. But with a circuit split on this trait selection abortion law, I think what you might have is the chief justice limiting this particular case before the midterm elections. And then after the midterm elections, then you have one of these trait selection challenges, perhaps, that really does allow the court another opportunity to finally

deliver the death blow to Roe. So yesterday, President Biden's Supreme Court Reform Commission met. We both know some of the fantastic legal minds working on that. Not everyone is hopeful about the outcome. Brian Fallon of Demand Justice said the other day that it's doomed from the start. Do you agree? And what's an ideal outcome in your mind? that it's doomed from the start because a commission of 30-odd people, it's hard to get a consensus on anything. And I think that's probably right. It's a rather large and unwieldy body for coming up with sort of concrete solutions. What would be a wind in my mind? I've said this before. I think I've said it again. But I think most Americans, certainly progressive Americans, may not really have an inclination or an inkling about how important the work of the Supreme Court is in cementing an administration's domestic agenda. Like, you know, you can get things passed through Congress. You know, you can have the Senate and get your domestic agenda put forth. But the Supreme Court is where a lot of those legislative

wins, executive orders go to die. And I think we have to do a better job as progressives of really making clear what the stakes are at the court and how the court, even though it is not a political body per se, how it interacts with politics, whether it's through the Senate, where they are charged with confirming judges to the court and the lower federal courts, or just in terms of the domestic legislative agenda that often is appealed to the court and the courts. And so I hope, if nothing else, the fact that this has been surfaced and elevated to the point of a presidential commission gives individuals a sense of how high the stakes are for access to the courts and indeed the composition of the courts. Any thoughts on whether Breyer retire billboards are the most effective

way to get the court's oldest justice to step down? Yeah, I mean, probably not. He's been very clear. I saw him speak on this a couple of years ago. And one, it's very clear he loves his job. He's certainly spry and fit and more than up to the task. It really is just a question of like, do you want to wait until you're in a situation where you are ready, but perhaps the political circumstances aren't ideal and optimal for you to step down? And again, I think it's a very personal decision. No one wants to be told when to leave a job that they love and that they're good at. And, you know, I don't think billboards are going to do it. I don't know what will do it. Maybe he's waiting for even more optimal circumstances. Maybe he's optimistic about the midterm elections and thinks that will be a brighter moment. I don't know. But I'm not sure bullying him into it is the way to go. Yeah, I don't think so either.

Last question on a law that South Carolina Republican Governor Henry McMaster signed into law this week that will force people on death row to choose between the electric chair or a firing squad. Horrific. Do you think a law like that holds up in court? And what are your broader thoughts on the current state of the legal challenges to the death penalty that are popping up all over the country? Well, so it's interesting how the death penalty often intersects with the discussion of abortion. I think, you know, for a long time, those who have been pro-choice have noted the incongruity of being both pro-life and also pro-death penalty. But I actually think now it's really beginning to get a little bit of traction.

And maybe part of that is COVID, where you saw a lot of these states that passed restrictive abortion laws because of COVID, arguing that they were pro-life, but then refusing to lock down or refusing to be more forthright about mask mandates. So I actually think there's this really interesting moment where people are really pressing this idea, like, you know, if you's this really interesting, um, moment where people are really pressing this idea. Like, you know, if you say you are pro-life, are you pro-life for the whole life? Or is this pro-life ethos more itinerant and selective and focus solely on what happens

in utero? Um, you know, the South Carolina law is, you know, to my mind, wild. South Carolina will be one of three states, or I think just there are only three other states that actually permit death by firing squad. And I think there have only been a handful of executions in the last century in the United States by firing squad, and they've all been in Utah. So, you know, I think the sort of idiosyncratic nature of a firing squad execution may be, you know, evidence or corroboration for a challenge going to the Supreme Court that, you know, this is not a safe or effective type of method to be used for execution. And the fact that so many other states have switched to other forms of execution, whether it's lethal injection, which is believed to be more humane, may make this stand out as an outlier that perhaps supports a challenge at the court. Again, the composition of this Supreme Court may not necessarily be amenable to taking up

a challenge like that. But I mean, the fact that we're going to firing squads feels a little regressive in 2021, regardless of how you feel about the death penalty. Yeah, just a bit. Professor Melissa Murray, thank you so much for joining us. Everyone check out Strict Scrutiny, fantastic podcast with you and Kate Shaw and Leah Lippman. Thank you so much and come back anytime. Thanks for having me. Thanks to Professor Murray for joining us today. Appreciate it.

And everyone have a great weekend and we'll talk to you next week. Bye, everyone. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our senior producer is Flavia Casas. Our associate producers are Jazzy Marine and Olivia Martinez. It's mixed and edited by Andrew Chadwick. Kyle Seglin is our sound engineer.

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