Pod Save America - “Impeaching the Big Lie.”

Episode Date: February 8, 2021

The second impeachment of Donald Trump begins, President Biden reins in ICE as part of an immigration overhaul, and Fox News is hit with a $2.3 billion defamation lawsuit for spreading election conspiracies.For a closed-captioned version of this episode, please visit crooked.com/podsaveamerica. For a transcript of this episode, please email [e-mail].

Welcome to Pod Save America. I'm Jon Favreau. I'm Jon Lovett. I'm Tommy Vitor. On today's show, the second impeachment of Donald Trump begins, President Biden begins a major reversal of his predecessor's immigration policies, and Fox News is hit with a multi-billion dollar lawsuit for spreading disinformation. We were also supposed to have a conversation with Dr. Marcella Nunez-Smith, who runs the White House's COVID-19 Equity Task Force, but she unfortunately had something come up last minute, so we are working to get her on again soon.

Looking forward to that when it happens. But first, Love It. How was the show this weekend? Great Love It or Leave It. One day I'll say we didn't have a great one, but not today. It was terrible. Langston Kerman was hilarious.

Erin, Ira, Travis all joined to do rants on the rant wheel. We quizzed listeners on their failed pandemic hobbies including one listener who learned to play guitar uh uh for a boyfriend who is no longer their boyfriend so you know tough rough it's a lifelong skill well tune in thoughts to you eric you know use it to get the next one it's a great cast of characters on the rant wheel this weekend. I enjoyed it. Also, if you are not already listening to Pod Save the People,

tune in to hear DeRay McKesson discuss news, culture, race, social justice, and politics with Sam Sinyangwe, Kaya Henderson, and Diara Ballinger each week. They're a fantastic group with unique perspectives on activism, organizing, and stories that don't always appear in the headlines. So check that out. All right, let's get to the news. The former host of The Apprentice is back in the spotlight as Trump's second impeachment trial kicks off on Tuesday. A new ABC poll shows 56 percent of Americans believe the 45th president should be convicted of inciting a violent insurrection against the government he once led. That's up from the 47 percent who believes he should have been impeached the first

time. That first impeachment way back in the day. Generous to say he led a government. Supposedly. Donald Trump is refusing a request from Congress that he testify, so he will be a no-show. Another no-show will be Chief Justice John Roberts, who has declined to preside over the trial. So the most senior member of the Senate, Vermont's Pat Leahy, will take his place. And most outlets are now reporting that neither side is likely to call any witnesses, that that is not a sure bet just yet. So no Trump, no Roberts, maybe no witnesses, almost no chance of conviction since you'd need 17 Republican senators. And all but five of them have said that the trial itself is unconstitutional. With all that in mind, what are the Democratic House managers who will act as prosecutors trying to achieve?

Is this just about going through the motions because it's the right thing to do, or is there a potential political benefit here, Tommy? I mean, look, there's always a chance, right, that they will get the numbers they need and we can impeach and remove. And so I don't want to rule that out. I do think there's a very important and high level noble goal, which is to say we can't move past what happened on January 6th. There was a mob of fascists were incited by the president of the United States and many others to attack the Capitol in an effort to overturn the election. And people died, including Capitol police. Others were injured. Many were terrified. And we can't just yada, yada, yada that. We can't allow this revisionist history to cloud the record of what happened, Trump's complicity in it, and the real

danger and risk that there was that day. Because I think failing to stand up to and correct Trump's lies over over the last four or five years has been one of the great failures of the Trump era that has been enabled by the Republican Party. So sounds like they want to nail down that case through all this video evidence. They want to make a broader political argument that the members of Congress who went along with that big lie about the election, about it being stolen from him, are also complicit in it. I don't know whether there will be a broader political benefit to the Democratic Party from any of this. I do think it's interesting that support for removing Trump has increased in that ABC poll without any actual messaging or evidence presented. That seems to be a good sign, but I think that's what they're hoping for. Yeah, I mean, it seems, Lovett, that it's quite important to connect the dots between

how disinformation and propaganda can lead to political violence, especially today. The Democrats are faced with some choices here. So the Times reports that the impeachment managers might not want to implicate Republican politicians themselves, just Trump. They want to make it clear that Trump is on trial, not his party, which is an interesting decision. And then there's some news this morning that House impeachment managers may have wanted to call witnesses, but they've been encouraged not to by Pelosi, Schumer and the White House because they sort of want a speedy trial. What's your take on some of the decisions by House managers and what kind of a case they should be trying to make here? So, first of all, I just I do think that they're in a very difficult position, in part because so much of the coverage has revolved around the fact that this is a foregone conclusion.

This is a foregone conclusion. I think to Tommy's point, we shouldn't accept that and they should proceed as if Republican senators are persuadable and through them, the American people by making the best argument they can for why Donald Trump should be barred from holding future office. I think one of the big challenges and even before you get to witnesses, you have to get to the kind of case you would make. to witnesses, you have to get to the kind of case you would make. And there's the important substance of what Trump did, not just in inciting the insurrection, but in undermining the election for weeks and some of the connected crimes of what he was trying to do in Georgia and across the country. But a lot of these Republican senators have hinged their

no votes on the fact that they have embraced a completely manufactured argument that impeachment after the president leaves office or conviction after the president leaves office is not constitutional. And so what I don't know how you do is make an argument in which your goal is to try to get some of these Republicans on the record, on the substance of what Donald Trump did without being kind of sucked into a process debate that's ultimately just about giving these people a pass to reject Donald Trump's conviction without ever having to take a position on the insurrection itself. Trump's conviction without ever having to take a position on the insurrection itself. Yeah, I mean, I think to Tommy's point, like the fact that you are very unlikely to get 17 Republican senators to convict in a way almost liberates you to just make the most compelling case to the public possible. And part of that case is witnesses. Part of that case is, by the way, implicating Republican politicians in helping Donald Trump spread these conspiracies that led to political violence, particularly because they're still around and we have to deal with them. They're still running for office.

They're still holding office. They're still spreading these lies and conspiracies. There is still plenty of danger out there. For these impeachment managers to be concerned that somehow implicating the entire party, Republican Party, is going to like prevent Republican senators from voting to convict Trump. Like they're not going to. You know, we're not going to get 17. So you might as well make the most compelling public case that you can with all the tools that you have available, I think. What do you think? What you monsters won't acknowledge

is that unity and civility itself is on trial here. And that's gotta be, I think there's sort of like an inside and an outside game here. Like the sort of outside public messaging component of this might lead you to ask a Capitol police officer to testify, someone who fought back against this mob, who could talk about how horrifying it was

in their experience to sort of make, bring forward the emotional stakes. The other kind of witness that I would be very interested to hear from is someone who worked in the White House, who observed Trump during this time. There were all these background quotes in newspapers about how he was enjoying watching the mob attack the Capitol. If there was someone who could come forward and say like this was his state of mind when he gave that speech, he really did want them to attack. He did want them, the mob, to force Congress to stop counting the electoral votes. I think that could be compelling for your inside case. It's frustrating that we haven't seen that kind of witness come forward yet publicly on the record, despite there being some of this reporting. So, you know, I think those

are like the things I would be balancing if I were the managers. I will say, too, just to the argument that some Democratic leaders and certainly the White House is worried that the trial will take too long. Like, I don't think that the covid relief bill should be delayed because of the trial at all. And, you know, I don't think that in the House and Senate shouldn't like pull people off negotiations on that bill because of the trial. Like that has to be the first priority. That said, I haven't heard a good reason why you can't do both at the same time.

Like there's plenty of behind the scenes work to be done on COVID that involves drafting legislation and negotiations. And I do think if you're going to hold the trial, you got to just like do your best. And, you know, you can't, if you rush the trial, it'll certainly be worthless, right? Like, yeah, it's right. Like a one week trial with no witnesses. You have an incredibly compelling case by the Democratic managers as to Donald Trump's

being complicit in what happened and the damage it caused and the damage it could have caused. We're really lucky it didn't cause. Right? We can imagine what that looks like, followed by endless bad faith arguments by Trump's lawyers that, look, what Democrats have said in the past, this is a slippery slope. First Amendment can't try a president once they leave office. And then there's a vote, there's an acquittal, and we move on. I don't know what the value of that is to history. I don't know what that contributes. So I suppose if it has any value at all, it has to be to cast aside the Republican arguments altogether and make a case for posterity about how dangerous and bad this was. Because one argument that I found pretty persuasive is that you can't just wait for

history to vindicate you, that actually how you respond in the moment affects how historians look at what happened. You can look at the difference to how Watergate is handled versus how, say, Iran-Contra is handled by the consequences that were extracted in real time. Also, the House Democratic impeachment managers aren't going to make a case in a vacuum. Trump's lawyers are going to make a case as well. Lovett, you previewed the fact that they're going to talk about process and why it's unconstitutional. They're also arguing in a rebuttal that they've already filed that their client, quote, exercised his First Amendment right under the Constitution to express his belief that the election results were suspect. Trump lawyer Bruce Castor also then said on Laura Ingraham's show that they plan to make the case that what Trump did is OK

because supposedly Democrats incite violence, too. Here's a clip. Well, you have dueling video if they if they're going to do that. So are you then? And I know President Trump loves video clips and video montages. Will you then respond with the Maxine Waters, with a number of other Democrat officials not speaking out against the Antifa and other extremist rallies over last summer? I think you can count on that. If my eyes look a little red to the viewers, it's because I've been looking at a lot of video the last several days. They do look a little red. They do look a little red. Yeah. If my eyes look a little red, it's because I'm a deeply addled, low rent lawyer and the only person they could find to do this.

I mean, you know that Mr. Trump loves a good video compilation. Listen, who doesn't love a good montage, right? I mean, when does that come love it? Like, is it sort of like early act two, you get a great like training montage or something? But yeah, look, according to the structure that we're all stuck with,

I suppose it'd be sometime, you know, it's the fun and games, as they say, you know? Who doesn't love the fun and games? Collage. It's very funny. I can't believe we're talking process when these guys literally watched a mob of fascists storm their office and saw cops get killed. I mean, there are conservative legal scholars who argue that this Republican argument, the Trump defense argument that you can't impeach a former president is wrong. Like Matt Geitz, the biggest Trump lackey on the planet, has previously tweeted that you can impeach a former president.

I think that there's a different but maybe more dangerous slippery slope argument here, which is if you say you can't impeach a former president, then our already very long, very dangerous lame duck period becomes even riskier because presidents can do whatever the hell they want. They can't be prosecuted and they can't be impeached. So I like I don't know, total impunity for the president, United States maybe seems like a bad idea that people would want to consider. I also think that the specifically what that clip was about, which is like the what about is ridiculous, false equivalence between Democrats. Like that, they're going to, they're going to go there. We're going to hear all week, all these comments from Democrats, like that are, you know, nothing

compared to what fucking Trump and the Republicans have done. Like get up in people's faces, which is not like go storm the seat of government while they're trying to certify the election. Yeah. I mean, look, so first of all, I do think that as a country, we need to grapple with the law school brain disease that has captured many people in which you debate like rock to the head, undebatable things like, can the president self pardon? Can the president be convicted after he or she leaves office? Like to Tommy, what Tommy

just said is right. These things leave you open to ridiculous scenarios in which the president is above the law and in which nobody would have ever intended. And they become debatable because hacks have wanted to give conservatives an argument that they could make to get out of telling the truth about what happened. I do think that one of the challenges, I think, is like, how much do you talk about what Trump said specifically about January 6th versus the ways in which he was undermining the democracy and denying the legitimacy of our elections and lying and spreading false information and propaganda before the election, after the election, in the run up to January 6th, because altogether to me, that ultimately is the high crime, right? The crime was in undermining and rejecting

American democracy. I've seen people like John Cornyn and others making these ridiculous First Amendment arguments. First of all, like, there are all kinds of things that the president should be impeached for saying that a citizen could say at any time. All kinds of things. This job sucks. I hate America. And I think Canada should take over. And Canada, if you're listening, invade at any time. We can all say that. We're free to say that. But if the president said you have to remove them because impeachment is not just a legal question, it's a political question. Right. The First Amendment doesn't protect you from political consequences. Very famously, saying stupid things often has political consequences.

What are they talking about? You know, the president in an open bathrobe coming into the into the press briefing room saying, what do you fuckers want? I hate this country. You know, that goes on long enough. You got to remove them. Yeah, maybe it to be a problem. To the question you raised, they have to start before January 6th.

They have to make the whole case because that is what the case is about. It is about the fact that Trump waged an entire disinformation campaign to tell his supporters that a presidential election was fraudulent and stolen by evil people who were trying to commit a coup. That's the case. The case is not slicing and dicing a specific speech and words. And it's like that's going to lead you down to a path where they're going to do whataboutism to death, right? You can't find any examples of people saying they committed a violent insurrection against the government because a Democrat told them to. On the other hand, House managers are going to have plenty examples of rioters saying that they stormed the Capitol because of Trump's lies and encouragement. That is the case. So Joe Biden was

asked over the weekend by Nora O'Donnell during a CBS interview how he'd vote on impeachment. He declined to answer, said it was up to the Senate. But then he made some news when Nora followed up by asking if Trump should receive the intelligence briefings that ex-presidents typically receive. Here's a clip. Well, let me ask you then something that you do have oversight of as president. Should former President Trump still receive intelligence briefings? I think not. Why not? Because of his erratic behavior

unrelated to the insurrection. I mean, you've called him an existential threat. You've called him dangerous. You've called him reckless. Yeah, I have, And I believe it. What's your worst fear if he continues to get these intelligence briefings? I'd rather not speculate out loud. I just think that there is no need for him to have that intelligence briefing. What value is giving him an intelligence briefing? What impact does he have

at all other than the fact he might slip and say something? Tommy, what did you think of Biden's answer there? The White House issued a statement afterwards saying that it would be Biden's intelligence team, not Biden himself, who would make the final decision on this. Yeah, look, I think this sort of this debate, this conversation is extremely overblown. If you're really worried about Trump disclosing something sensitive or highly classified, the risk exists whether or not he gets another briefing ever again. And like all the most sensitive horses out of the barn. But even if it was like much further than that, like all the sensitive stuff, like the closely held covert action programs, like the answers to how we get information, i.e. some senior official in a foreign country is actually a CIA asset, like that stuff has

already been briefed to him if it was ever going to be. The good news is that Trump quite famously never read or attended his PDB and any post-presidency briefings would not go into nearly as much depth or sensitive detail as what he's already gotten. I'm not sure how often presidents actually get these briefings. Like maybe if you're going on a trip overseas, you request one. So I'm not sure how often presidents actually get these briefings. Like maybe if you're going on a trip overseas, you request one. So I'm not that worried about it. Like, do I think Trump needs these briefings? No. Would I deny him?

I'm not sure. It was notable that Sue Gordon, the former principal deputy director of national intelligence during the Trump administration, is worried about it and wrote an op ed saying he shouldn't get them. But I think what Biden could say here, his team could say is like, let him make requests for briefings on a case by case basis. And then we'll decide based on those individual requests. Can you, that's so funny. Can you imagine Donald Trump making a specific request for, for a briefing on an, on an individual issue? I mean, it's worth, it's like, it's all of it. It's so like, there was this, somebody like, well, what kind of precedent would it set of if Joe Biden denies Donald Trump

intelligence review like president like this is all predicated on the idea that Donald Trump is an interested party who cared about national security, had a few issues of focus on which he became quite expert, would like to keep up with those in perhaps hopes of, say, traveling abroad as a representative of the United States or advising Joe Biden in his capacity as an ex-president with a lot of information and helpful experience that he could impart. I don't think anybody thinks that that's a possibility. So it's all it's all quite silly. Hey, I'm heading to the Horn of Africa. I was looking for a security briefing. Could you just give me some knowledge there? It's just sort of like, yeah, it's like the damage is done.

He was a security threat every day he was in the White House. Nobody's calling him for advice. Let's talk about immigration, because the Washington Post reported that this week the Biden administration will direct Immigrations and Customs Enforcement, or ICE, to implement a, quote, major shift in enforcement that could sharply curb deportations of undocumented immigrants, focusing instead on people who are, quote, national security threats, recent border crossers, and people with aggravated felony convictions. recent border crossers, and people with aggravated felony convictions. Under the new guidelines, ICE agents would have to get approval from the agency's director to make arrests. One very sad ICE official told the Post, quote, they've abolished ICE without abolishing ICE. Cool. So we can talk about Biden's legislative strategy around immigration in a second, but we did learn in the Trump years that this is a policy area where the president wields a lot of power. Tommy, how much can Biden do here without Congress and what are his constraints? So a lot of what he has done so far was about

rolling back specific Trump era policies. Basically, Trump, Stephen Miller did everything by executive order and nothing by legislation. So the good news is you can fix a lot of that. So that includes getting rid of the Muslim ban, which is a big deal in terms of the message sense of the world. But in practice, right, there's like COVID related travel bans in place. So it's like it'll take a while for this to really show up in terms of numbers. Biden will at least temporarily restore protections for young undocumented migrants through the Deferred Action for Childhood Arrivals program or DACA. He can stop construction of the border wall. They can rescind Trump's attempt to exclude undocumented immigrants from the census count. They can get rid of the remain in Mexico policy,

which totally screwed up the asylum process. They can get rid of basically a wealth test that discriminated against poor people trying to immigrate to the U.S. So there's a lot they can just unwind by EO and he's done very quickly. But, you know, the legislative piece of this is a lot more complicated, as I assume we'll soon discuss. Yeah, so love it. Obviously, legislation is one of the big constraints. What are some of the other constraints on Biden's executive power for what he can do here? Like what are some of the he can't sort of turn this all around on a dime right now, whether it's enforcement, whether it's the crisis at the border, like what are some of the issues that he's going to face here? Well, so one of them is

the efforts of Trump officials who burrowed into the administration to try to kind of codify Trump era rules to make it difficult to say rain in ice. There's some question as to whether or not the Biden administration will be able to quickly unwind an agreement that the Trump administration put in place with the union to make it really unbelievable agreement, really difficult to make changes. I'm not sure what the status of that is or what the hope is of being able to quickly undo that, for example. Ken Cuccinelli, Trump DHS official, yeah, famous anti-immigrant crusader, decided to strike a deal with the ICE union saying that forbidding the federal government from making any modifications whatsoever concerning the policies and functions of the agents. Okay.

Now, I assume the Biden administration can just challenge that at the Federal Labor Relations Board. I know they're trying to purge some of the Trump officials from that board as well. And then look, and then the other constraint is, of course, the courts and a lot of Trump judges. There was a Trump judge in Texas that basically, you know, Biden tried to suspend all deportations for 100 days. Federal judge in Texas that basically, you know, Biden tried to suspend all deportations for 100 days. Federal judge in Texas tried to strike that down. So, you know, Biden's going to learn, as Obama learned, too, that it is you both are facing the courts and the bureaucracy, even in your power as president, to try to undo some of this. But like, again, you know,

some of the lessons we learned in the Obama administration, Obama tried to sort of change the enforcement priorities of ICE in the first term. And we failed, basically. We didn't really undo as much of the Bush administration's enforcement priorities as the president wanted to. Basically, we didn't get there until the second term, which is why Obama had so many deportations in the first term, because ICE dragged its feet. It's sort of like a rogue agency, you know, and the question will be if Biden can get it under control. You see that in the response from unnamed people within ICE. And then also in the way this is written, I think some of the rules around needing approvals are trying to make sure that there's no

end run around these rules at the local level, that it's clear that the rules are set in such a way as to try to shift ICE's behavior, even if agents don't want to. Yeah. Tommy, for the longer term changes, obviously you need legislation. How likely is it that Biden gets his immigration bill passed in Congress? He's already sent it to Congress, which is pretty fast. Yeah. I mean, what I think was interesting about the bill was it wasn't really written in a way that was designed to pass. He didn't negotiate against himself before introducing the bill. It wasn't a pathway to citizenship for undocumented people, plus a ton of draconian immigration enforcement measures. It was a pathway to citizenship. It was more refugees and then some technology at the border.

There wasn't like, you know, a ton of money for wall construction like we've seen previously. So in twenty eight thirteen, when the so-called Gang of Eight introduced a bill that started with the pathway to citizenship, that also included forty six billion dollars for border enforcement and had the E-Verify system and made that mandatory for employers to try to deal with that side of the immigration problem. So, you know, that was designed to be a more moderate approach that might bring along Republicans. I don't think a lot of people think that Biden's opening salvo is going to get close to 60 votes, but you're already hearing the Biden team say they're willing to break up the bill into smaller pieces and try to

pass components of it that way. And I think that's what you'll see from Congress. Yeah. I mean, talk about problems with the filibuster. I think like, you know, some parts of immigration reform can be done through budget reconciliation process, namely anything that impacts the budget. But to get people a pathway to citizenship, clearly you need legislation. And it's either 60 votes or Joe Manchin and Kyrsten Sinema deciding to get rid of the filibuster for immigration reform, which seems even less likely than them wanting to get rid of the filibuster for almost anything else because Joe Manchin is not necessarily the most progressive senator on immigration. So you have a real problem trying to get 60 votes on immigration.

Yeah, I mean, look, 2013, it's not that long ago, you got 68 votes in the Senate, which included 14 Republicans. In the years since, a lot of those Republicans have left office, either by their own choice or God's in some cases. And then, I don't know why I said that, or the voters. And, you know, Graham and Rubio, who were two of the kind of lead advocates for immigration reform, sponsors of it, part of the gang, decided that immigration was the path forward for the Republican Party. And then they enter the Republican primary and Trump gives them a policy swirly in the toilet. And now Rubio says the thing that he was for and that he was going to make the hallmark of his legislative agenda is now a nonstarter.

So on the one hand, like the bill is actually the pathway to citizenship itself. I think it's remarkable how the Democratic policies have shifted and that like, you know, you know, Bernie Sanders got a lot of criticism for talking about guest workers program. He compared it to slavery and, you know, but the criticism of a guest worker program that it basically solidified the ways in which our system was unjust. Like now you have the United Farm Workers basically praising this and saying, you know, this is a remarkable thing that will give people dignity. So the pathway to

citizenship itself has gotten more progressive, even as the hopes of passing something, I think, have gone down. So, you know, Republicans are obviously jumping all over Biden's executive actions on immigration already. Lindsey Graham said the caravans are going to start to flow again. Ron Johnson was on TV. He tried to one up him by saying predicting a caravan a day. So obviously, like Republicans are going to say these things no matter what Biden does. But Tommy, like how can how can President Biden institute a more humane immigration policy while still avoiding the kind of humanitarian crisis at the border that both Trump and Obama faced? We've talked about ICE and internal enforcement once immigrants are already here. But

of course, you know, there were reports over the weekend that, you know, because Joe Biden is president, you know, a lot of migrants and asylum seekers feel like they're going to be more welcomed. And so they have been coming to the border again. And we know that the problems that can create. Yeah. I mean, look, one major thing that I forgot to mention was he's going to create a task force to reunify families that were separated on purpose by the Trump administration's policies. And that's like a huge, hugely important moral step to take. It's something we should mention. And in part, that means helping some of these northern tribal countries in Central America with aid and other support so that, you know, people who live in El Salvador don't feel like it is so unsafe to remain in that country that they're going to travel north to the U.S. border to try to to get into the U.S. or seek asylum because, you know, remaining is a death sentence, right? So that's a big piece of Biden's plan. He also wants to get rid of this policy called Remain in Mexico that

requires non-Mexican migrants coming up from Latin America in most cases to remain in Mexico until they have an immigration court case. That has created these camps along the border with absolutely horrific conditions, and that was the case before COVID. So those are some of the things that he can start adjusting and dealing with on his own. Well, to help out the Northern Tribal countries, they'll have to eventually get some money out of Congress. But there are some steps he can take to just make the process better, even if that doesn't address the most important thing, which is this pathway to citizenship provision for the, you know, 11 to 13 million undocumented migrants in the U.S. Yeah, I mean, it's the biggest problems are clearly this backlog of asylum cases. You need more asylum. Judges need to be able to process these claims.

And that's been a problem for a long time as a problem through the Obama administration, through the Trump administration. Trump, of course, handled it like an inhumane fucking monster. But the problem still exists no matter what, no matter who's the president. And I do think like working with some of these Central American countries to address the root causes of migration is probably the only way, because otherwise you're going to constantly have migrants and asylum seekers come to the border. And you do need some kind of system. You can't just have people crossing the border illegally when there are people who are trying to claim asylum through the official channels and trying to immigrate through the official

channels, right? Like you have to have an actual system in place, which is tough. And it's going to take a while to unwind, I think, what Trump did. I mean, there's no, like we've been, you know, over 30 years into this, since the last immigration law was passed, there's no, like we've been, no, over 30 years into this, since the last immigration law was passed, there is no way to resolve the crisis without passing an immigration law. And there's no way to pass an immigration law unless Republicans are willing to join. And, you know, they passed the bill through the Senate and then it died in John Boehner's house.

Now we could pass a bill through a Democratic House. And it looks like with people like Graham and Rubio saying it's a nonstarter, that it would die in a Senate. And none of this will ultimately change or resolve until you pass that law. All right, let's end on a high note. Fox News is being sued for $2.7 billion. This is a defamation lawsuit brought by Smartmatic, an election technology company, which claims it lost business

because Fox spread election fraud conspiracies and disinformation about the company. The suit also targets Fox anchors Maria Bartiromo, Janine Pirro, and Lou Dobbs, whose top-rated show on Fox Business was canceled on Friday, despite the fact that he is still under contract. Smartmatic is suing Rudy Giuliani and Sidney Powell as well. What a cast of all-stars, who are also the target of another billion-dollar lawsuit

from Dominion Voting Systems for defamation about their voting technology. Lovett, what do you think about the use of defamation lawsuits as a way to fight disinformation? How effective have they been so far? So I think those are two different questions. In terms of how it's been effective, it's certainly been more effective than liberals haranguing these places on Twitter. You know, liberals, we have not been able to... You don't think the tweets are going to do it? on Twitter. You know, liberals, we have not been able to... You don't think the tweets are going to do it? You know, it has been quite satisfying to see places, some of the most heinous news outlets in the country have to kind of come on the air and say, we obviously never meant to imply,

et cetera, et cetera. We regret, et cetera, et cetera. The disclaimer that OAN had to put on before they aired the pillow man's nonsense was satisfying. Some of these apologies, these extremely invasive step by step apologies have been great to see. That said, this is an extraordinary example, right? Because there was a concerted effort across multiple networks to spread misinformation and propaganda and lies information they knew to be false in order to help Donald Trump spread a kind of anti-democratic narrative. And if there is a reason to have defamation, it is for this moment. That said, like, you know, a lot of people cheered on defamation lawsuits in the past. A lot of people cheered

on lawsuits against places like Gawker. I was not one of them. Ronan has been threatened with frivolous lawsuits around defamation. And so I do think like tempered enthusiasm is where I'm at. Tommy, what do you think? I mean, I think they've been highly effective so far. And I understand the concerns about freedom of speech. You know, like we work at a media company. We started one. But the thing people need to understand is that the stuff that Rudy Giuliani and Sidney

Powell and these folks are pushing is literally made up. Right. They're saying Smartmatic software was used to flip votes in key swing states. But that software wasn't used literally in any of those states. Right. And for Smartmatic and some of these companies like this is existential. Who would ever buy voting machines or software from a company that has this reputational damage? And, you know, it is also poisoned the brains of all kinds of Trump voters. So, yes, I would not be comfortable with, you know, MSNBC getting sued for reporting

on Trump collusion or what. Like, but I also think that, you know, that's kind of the rejoinder you're hearing from a lot of conservatives. But like, but I also think that, you know, that's kind of the rejoinder you're hearing from a lot of conservatives. I don't really think that they're analogous cases like Smartmatic software was only used in L.A. County. But Sidney Powell is on TV saying a secret cabal controlled by Venezuela and Iran and China and all these countries use that software to flip votes in Georgia, Arizona and

Pennsylvania. So I do think like when you're dealing with a claim like that, that will run a company out of business that is enormously damaging and literally made up out of whole cloth, I fully support going to the courts for a situation like this. Yeah, I don't think it has to be a slippery slope here. There are situations where there are gray areas, and then there are situations where it's pretty black and white. And I think the black and white areas are the places for the defamation lawsuits. Right. Like you make a pretty clear argument that by knowingly spreading spreading lies and conspiracies, Fox News and others caused harm to these companies.

Right. Like like like Tommy was saying. And I think if you can draw that direct connection and you can prove that they were knowingly spreading these false conspiracies, that's a lot different than journalists being concerned that if they happen to say something that isn't true, that they could suddenly be held liable just because we're holding a bunch of propagandists liable who are like knowingly spreading conspiracies. I agree. I'm not. I do

think it's like, you know, there are other aspects of it. Right. So if you host a show and you interview a guest and that guest spreads knowingly misinformation and falsehoods, when do you become responsible for what that person says on your air? Like there are questions like that. I mean, it's a good question. Like if someone did that on Positive America, what would we do? We would probably go back, cut the segment, issue an apology, right? Like, we would take a number of steps to try to rectify that. Yeah, no, of course. I'm just, like, I am for this. I just, I have, if defamation laws should exist, it exists for a moment like this. But the challenge is, you know, even if you are a journalist and you are sued for defamation and you are vindicated, it still can ruin you. It still can bankrupt you. It still can destroy

your life. And these frivolous things are popping up more and more. So I am all for this. I guess it's just sort of like, there is no larger lesson to be drawn. These companies have every right to sue these companies for billions of dollars for the damage they've done. I just think the larger conversation around defamation and how it's been used, I think, is worrying. That's all. Yeah. Well, it's also a question of like, what are stepping back? What are some of the other ways post Trump, postuary 6th of fighting disinformation and conspiracies, which now we have seen can lead to political violence? What are some of the other effective ways aside from defamation lawsuits that we've seen out there?

I mean, the single most effective thing we've seen recently has been going after their money, right? Going after their advertisers, going after corporate backers for politicians, basically the customers drawing a line and saying, reaching Tucker Carlson's audience is not worth the damage to your brand by being associated with Tucker Carlson. And I think that that's incredibly valid and a really important tool. Places like Sleeping Giants, Judd Legum at The Information, a number of other outlets have been great on this. And that, to me, I think is incredibly effective and good. Tell me, what do you think? You know, one of the problems there is, yes, like Tucker has fewer

advertisers than he ever has before, and yet the show's still on. Yeah, I mean, look, remember Bill O'Reilly was this sort of nightly cancer, you know, being horrible misogynist talking about, you know, all kinds of conservative lies. And he was booted off the network and then we got Tucker. Right. So it can get worse. I think that we are in a misinformation crisis. The most effective way to manage it that we've seen in the last couple of years has been kicking Donald Trump off Twitter. That brings with it a whole set of its own complexities. But, you know, just going back to the immigration conversation we were just having, right? I mean, nativist lies peddled by Fox News about, you know, caravans coming to the border. They're going to kill your family, right? It's like scary ISIS members are among them, right?

Like those things have prevented reasonable immigration policies from getting put in place. And I'm not in any way suggesting that there's a defamation suit to be had against Fox News for the caravan storyline or anything else. I'm just saying that I do think like the damage of misinformation has been so large and so clear over many years that i guess i i've started to become less and less concerned about some of the slippery slope arguments against shutting down the loudest most dishonest voices that are out there like at some point we need to course correct back in the in the in the direction of truth at some point we need to course correct back in the, in

the, in the direction of truth. At some point, I don't pretend to have all the answers here, but like doing what we're doing right now has, has gotten us to Donald Trump being president and a fascist mob attack on the Capitol. And I think we can't go back to that status quo ante and leave the structural problems unchanged. Yeah. It's, it's very hard to draw these lines, but we have to start drawing them, I think, somewhere. And look, another thing to do is, you know, for media companies have an obligation to maybe like stop putting conspiracy theorists

and propagandists on their shows. And I'm not just talking about like, Fox is obviously not going to do that, but I think Sunday shows, cable shows have to start thinking twice about like having Republican politicians as guests who are just going to like spout a bunch of false conspiracies

and spread disinformation. And what are you going to do? You're going to like fact check them once or twice, but then the viewers have already just heard a bunch of lies. Like what is the, if they start asking yourself, like, what is the use of that? What is the use of that? And then also, you know, when do you decide that a controversy is over? Right. Like a bunch of Republican senators, a bunch of, you know,

140 somewhat Republican house members tried to under, tried to overturn the election. They did it after a mob attack, Capitol. And then they go on these shows and they talk about unity and they talk about the importance of coming together. When do you stop asking them about the coup? What is the newness matter? Like when do they get away with it without having had to apologize or acknowledge it? When does it stop becoming an embarrassment or what should be a source of shame. And I think the challenge is, none of those Republicans are going to want to go on your TV show if every time they come on, you say, and I just want to reiterate, you've never publicly acknowledged your complicity in what took place

at the Capitol. Is that right? Nobody, no Republican's going to subject themselves to that over and over again. It's embarrassing because they're an embarrassment. And so to your point, John, it's like, they, are you, it's not just asking them about what they're it's not just about fact checking their lies in real time. It's are you willing to ignore their their already extant lies and misinformation and smears in order to have them on your show? What is the value of that? Yeah, I was going to say, and if they say, well, no, we don't want to come on the shows because we don't want to be embarrassed. Like, OK, your loss. Not America. America's game that you don't come on these shows. I don't know.

Is it better to just keep them off the show? I just think, look, you could. There's a lot of senators and members of Congress to choose from. I don't get why Meet the Press and all these shows have Ron Johnson on all the time. He is like, I'm not sure he's all there, right? He peddles conspiracy theories about all kinds of things. He's a shameless liar. He's a shameless Trump defender. And the efforts that have been made by a lot of those hosts to fact check him have been terrible, terrible, terrible. And in the net effect is he spreads misinformation routinely on major network shows.

And like, look, I'm not a big Sunday show fan. I'm not sure they're like driving the news anymore. But still, it is pretty glaring. I mean, you could just go out to somebody else that's not going to peddle conspiracy theories that just led to an attack on the Capitol. That would be my, you know, low, low bar. It's partly a format issue, too, even if you have the best interviewer around, right? Like if Ron Johnson goes on for a 10 minute segment and spouts 15 different conspiracy theories, and Chuck Todd only has time to correct two of them, then a whole bunch of others got through

because you have a quick cable news segment. It's the whole problem with this, right? It's why all those Trump interviews always seemed like shitty unless it was like an hour sit down with Chris Wallace or Savannah Guthrie or Jake Tapper or somewhere where like someone could really drive at Trump over and over again to call out all his conspiracies. Like it takes a certain format and a certain amount of time to get that done. It takes a certain format and a certain amount of time to get that done. And if you can't do that, then it's really not worth having the person on in the first place because you're still letting a bunch of misinformation get through. I mean, I assume the reason Ron Johnson is on all these shows all the time is because he says yes. Yeah. And he's one of, yeah, it's true.

He's one of the only ones that does. And, you know, like, it really did stick with me. You know, Jamie Raskin's one of the house managers, it's something I've, I've thought about ever since he wrote it, he wrote a very moving tribute to his son, uh, who died, uh, over the holidays. And one, one reference in that piece was about his son trying to live as though the truth were true. And I think about it all the time because I think about what he went through in the Capitol and now he's a house manager. Um, and then I think about like who in our politics is acting as if the truth is true? Like who is, who is being honest about Donald Trump and misinformation and propaganda and what

it actually means? It seems to me it's the people who voted to impeach Donald Trump. And it's the people on the cat and it's the, it's the insurrectionists who believed what Donald Trump said. They agreed with Donald Trump's view of democracy and the impeachment yes votes recognized what Donald Trump said about democracy. And I think some, there's been a real shift in the way a lot of even, you know, cable news, newspapers everywhere. It's not a medium thing. There's been a shift in how they respond to misinformation and propaganda for the better, but there are still places where in order to get guests, in order to respect the prestige of public office that senators should have, that House members should have, that Kevin McCarthy should have as the leader of the Republican caucus, that that prestige is a defense against being honest

about what they say and what they do. And that to me, it's a tough challenge, right? What do you do when one of the two political parties becomes anti-democratic, is radicalized against the truth and against democracy? What do you do when you're trying to have a debate between those two parties? It's a really hard question, but I think it starts by being honest about what they say and treating them as though they mean it. Yeah, it is a very hard question. And I will say, I think there has been a lot of progress over the last four years among many media outlets in handling this. Not all. We've complained about a lot of them, but I think there has been progress.

For sure. All right. That's our show for today. Enjoy your impeachment trial this week. We will talk to you on Thursday. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our associate producer is Jordan Waller. It's mixed and edited by Andrew Chadwick.

Kyle Seglin is our sound engineer. Thanks to Tanya Sominator, Katie Long, Roman Papadimitriou, Caroline Rustin, and Justine Howe for production support. And to our digital team, Elijah Cohn, Nar Melkonian, Yale Freed, and Milo Kim, who film and upload these episodes as videos every week.