Pod Save America - Is a Trump Dictatorship Inevitable?

Episode Date: December 5, 2023

Donald Trump deflects from his authoritarian impulses by accusing Joe Biden of undermining democracy, while warnings about a second Trump term grow more dire. George Santos gets the boot from Congress while Mike Johnson finds himself in a very similar position to his predecessor Kevin McCarthy. And finally, Strict Scrutiny’s Melissa Murray joins the show to talk about Trump’s flurry of bad legal news. For a closed-captioned version of this episode, click here. 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 Jon Lovett. I'm Tommy Vitor. On today's show, George Santos has left the building. Mike Johnson's finding out why Kevin McCarthy's life was so miserable. And strict scrutiny's Melissa Murray joins to talk about a flurry of bad legal news for Donald Trump. But first, the criminal defendant Republican frontrunner campaigned in Iowa over the weekend where he tested out a new response to accusations from President Biden and others that he's an authoritarian who represents a threat to American democracy.

No, you are. Let's listen. This campaign is a righteous crusade to liberate our republic from Biden and the criminals and the Biden administration. that think they can do whatever they want, break any law, tell any lie, ruin any life, trash any norm and get away with anything they want. But Joe Biden is not the defender of American democracy. Joe Biden is the destroyer of American democracy. And because Trump is an aspiring dictator who also seems to be losing a step, he then gave us this Freudian slip. But we've been waging an all out war on American democracy.

You look at what they. We have. We have. We got them. People were very excited about that. Yes. Trump campaign also made placards for the event that said Biden attacks democracy. A little long for a placard, but OK.

Yeah, that is pretty long. Is that on the podium? Also put those words. They had them up on the screen behind him, too. OK. tax democracy a little long for a placard but okay yeah that is pretty long podium also put those words they had them up on the screen behind him too okay so it was i guess i don't know if it was a step-in repeater just on a screen sure uh so it wasn't just some trump ad lib they were all in on this they gave it they were given quotes to the post in the time saying that we're turning the tables on joe biden what do you think the strategy is behind this uh this this the placards and the the message all that this is like embarrassing to

say out loud what it is well it's it's something he's being accused of and so to lessen the impact of the accusations he's accusing his opponent of of doing the same you think it's gonna work i don't know i mean he's always doing the spider-man meme right like i'm i'm not the puppet you're the puppet i'm not corrupt you're corrupt i'm not a threat democracy you are i think i mean he's always the victim in his own narrative, no matter what. That's the one consistent thing about this guy. I watched the whole Cedar Rapids event. It was 95% the same old shit. And then 5%, you know, new placards. And even the new stuff isn't really that new because if he's saying that Joe Biden stole the 2020 election, clearly he thinks he's a threat

to democracy. It's sort of like different words to say the same thing. So I think he's saying that Joe Biden stole the 2020 election, clearly he thinks he's a threat to democracy. It's sort of like different words to say the same thing. So I think he's just constantly muddying the waters. That's our whole goal. It's a Biden hates democracy topper. Yeah. He's, yeah. I mean, he started with fake news.

He started, like, he just, he's trying to drain the word of all meaning. I do think it shows that the Trump campaign knows that, or at least guesses that it may be an effective attack. Whether or not it works, who knows? But I don't know. I kind of think that if Trump wants to make the race about who's the real fascist, I don't know if that's the territory he wants to be fighting on. Yeah. Yeah. I mean, yes. Democracy has been a potent issue. It's clearly they are worried that being tagged as an anti-democratic, anti-abortion extremist is going to be very costly to him. Yeah. I was trying to think if I was the Trump campaign and I was running against Joe Biden, what would I want the message to be every day? I'd want it to be the economy sucks and Joe Biden's too old and the economy sucks and Joe Biden's too old. And that's all I would say. Right. I wouldn't be like, Joe Biden's a fascist. Yeah. Or yeah. Or immigration. I think sort of immigration and crime are the other two areas where they're really, really focused. So we have talked about some of Trump's

plans for a second term, rounding up immigrant families who've been here for decades, using the military against protesters, repealing Obamacare. Over the weekend, the New York Times and the Wall Street Journal reported on a few more proposals. An anti-woke online university. Come on. Anti-woke you. It's called the American Academy, I think.

A national teaching credential that only goes to true patriots. That one you can still get right now. Tony the Tiger gives those out. No federal funding for police departments that refuse to do stop and frisk, and no Medicaid or Medicare funding for hospitals or health providers that offer gender-affirming care for young people. Did you guys see any other noteworthy proposals in these pieces? And which of all these proposals do you find most alarming and feasible uh the one you missed that i think is worth mentioning is um he has proposed something called freedom cities where you well i could i think i'm i think i'm in on

freedom cities oh you are yeah yeah i want i want my own free i want to move to a freedom city perhaps i think if i think if like and you know you'd apply you'd have to like come up with a cool proposal for your freedom city should we tell people what freedom cities are yeah so basically it's just on federal land i guess you can it's unclaimed unclaimed federal land you can establish like beautiful like deserts forests places places that we want to preserve you know and it's a place where the internet's worst virgins will go to build a new society a bunch of blue checks a bunch of just a bunch of just angry men will go to point at each other and say you're a man and you're a man and there's only two genders except here there's just the one but that's sort of what i thought that was seafaring

wasn't that a thing for a while well yes they do the libertarian yes the libertarian floating barges is another place where these people would go. But now it'll be near Yosemite. Oh, that's nice. 10 freedom cities. 10. Did you get the name of them, I wonder? Anyway, yeah, I was more alarmed by immigration, Insurrection Act, NATO, because these are

things that presidents traditionally have a lot of power to affect yes I think I think am I worried about an online university for wackadoos not not as much but also that he's gonna I know this is a small point but he's gonna pay for by suing yes private colleges and suing their endowment we're gonna build we're gonna build an anti-woke university and Berkeley's gonna pay for it yeah that's really the gist of it. They're just having a blast at a Heritage Foundation brainstorm, right? What's the most dumb things we could put together? Yeah. Some expert that was looking at these proposals said that a lot of this is not, these are not policy proposals. They're just proof points in the culture war. I think that that's true. I think the scarier,

bigger threats are the ones you mentioned, his threats to invoke the Insurrection Act, his threats around immigration. I do think it is worth being worried about a Republican administration trying to use federal funding in this way, like requiring hospitals to do X, Y, or Z, requiring police officers to do X, Y, and Z. That is a response to a way in which Democrats have tried to wield federal power to put rules on how federal funding can be used to make sure that abortion is protected, to make sure that trans people can get healthcare, all kinds of things. And so I think that is their version of that. I think if they have the Congress, it could be scary. Yeah. And I will say that when the federal government said, we're going to cut off Medicaid or Medicare funding or we're going to cut off some health care funding for you if you don't expand Medicaid to some states, the courts ruled that the federal government couldn't do that famously and in the Affordable Care Act. So I do think that like when you get into some states, right, stuff, it's going to play out in courts and it's complicated.

It's not great. They're not great. We're being worried about. being worried about yeah yeah yeah they're not as he probably doesn't have as much power from the federal government to do stuff like that but it's not great um so the fear underlying all these proposals uh was spelled out very clearly in a washington post piece from editor-at-large robert kagan uh that's been getting quite a bit of attention uh it's from over the weekend here's the headline headline. A Trump dictatorship is increasingly inevitable. We should stop pretending. Very long piece. I think it's very much worth your time. Kagan argues, as we have, that Trump has a very good chance of becoming president again. And he also makes the case that if he does become president again, he'll likely be able to carry out

his plans to crush any political opposition. Kagan says, sure, none of this is inevitable. plans to crush any political opposition. Kagan said, sure, none of this is inevitable, but, quote, what is certain is that the odds of the United States falling into dictatorship have grown considerably because so many of the obstacles to it have been cleared and only a few are left. It's a really fun read.

Very light. Light, fun read. You want to take it in late at night. What did you guys think? Terrifying or overstated? And did you find any parts of the piece especially noteworthy? So first of all, I think the piece kind of confuses two things. One is, is it possible that Trump becomes president again?

Yes. And then what will Trump do as president? That's obviously more speculative. There's a lot of, the piece opens with a a lot of we aren't taking the threat seriously. We aren't facing the fact that he could be come president again. We aren't doing what we should do is like, what's this we stuff, man? Like there's a lot of us were saying that is saying he makes the mistake that I think he's trying to indict the media for making as well, which is like opposition only counts if it's coming from Republicans. He's clearly beseeching, I guess, Republicans and mainstream pundits and analysts to take this more seriously. And good, he should do that. Of course, he should do that. But I think in the way that he does it in this piece, it kind of dismisses dismisses a lot of opposition that already exists, sort of denies its power. And I think as a result becomes kind of resigned to the threat Trump poses in a way that I think is like almost

self-fulfilling. Like at one point in the piece, he calls Trump, he compares him to Caesar. He compares him to King Kong. Napoleon got a shout out. Yeah. Trump will not be contained by the courts or the rule of law. On the contrary, he is going to use the trials to display his power. And like,

that's what he's trying to do now. Yes, but I don't think he'll. I don't. I would argue that he probably might not succeed. Well, that's the point. I think that like there's a lot of rhetorical questions

like what if Trump does this and what if Trump does that? And I think I'm I'm at this point a little bit more interested in the answers to the rhetorical questions that are I think a little bit more nuanced and like about who's going to fight who's not going to fight who what kind of people have stood in Trump way what kind of judges have stood in Trump's way what haven't like then in this kind of like almost kind of panicked worst case scenario which by the way I just want to say here and here in 2023 who knows where we'll be in 2026 could all come to pass.

Yeah, no, I think we're everyone is slowly coming to terms with the fact that Trump seems like he's almost certainly going to be the Republican nominee. There's obviously some hope, but you know, it feels bad. And so I think the the constant hard question with Trump is how much to highlight the threat that he poses without sounding hyperbolic. I think Kagan is right in a lot of places in this piece. Like he's right that the Republican Party will rally around Trump if he's the nominee. That includes powerful people like Mitch McConnell, right? They've shown not a lot of courage so far.

He covers a lot of the same ground, the Times and the Journal pieces that we talked about earlier cover. Trump will very likely have all the personnel he wants and no people pushing back on him. I share his concerns about a vengeful Trump surrounded by cronies, the DOJ or the FBI or the IRS punishing their enemies. But I do think like there's some pieces that are like informed speculation, like you mentioned, love it. Like, like Kagan does, he argues that Trump wants to use the court hearings to display his power. That might be true. But in the past, we've also seen a lot of instances where Trump at a deposition or Trump

in a courtroom looks kind of small and he's forced to tell the truth for once and not be like the bombastic guy that does well politically. He also writes, the Democratic coalition is likely to remain fractious as the Republicans unify and Trump consolidates his hold. That may be true, but it's a guess. And, you know, so we'll see so there's a bit of this like there's a lot of this is worth reading and helpful there's a little bit of catastrophizing that might come true or not we don't know none of us can tell the future but like you know it's sobering i found it very alarming because you you love we're talking

about the opposition right and i don't think it's a given at all. Of course, hope not that the, that the left, uh, stays fractious, but everything we have seen over the last several weeks does not bode very well for where we're headed in, in 2024. And all you have to do is look, I mean, hopefully what we're seeing online and what we're seeing in comments and everything else is just a small subsample but um we have third parties everywhere third party runs everywhere and if you haven't the anti-trump majority that elected joe biden in 2020 like elected him by 40 000 votes you know and you have a couple people go to cornell west couple people rfk junior couple people stay home whatever suddenly we have a trump presidency so i think West, a couple people go to RFK Jr., a couple people stay home, whatever. Suddenly, we have a Trump presidency.

So I think, but I actually don't think that the power of the piece is in could Trump win or not. I think we all know that Trump could win. Right. The question is, there could be a lot of people in the country right now who think, you know what, I don't want Trump to win. I think that would be awful. But we survived a first Trump term. Couldn't we survive a second? And I think the chances of the country

surviving a second Trump turn are much, much less than they were in the first for a lot of the reasons that he points out. And I think on the court stuff, whatever Trump does in trial, whatever, if he is convicted and still wins, or even if he is exonerated and wins, Trump will take the message forward into the White House that courts don't really matter. Well, at the very least, it's a constitutional crisis. Will he pardon himself? Will he throw up? Like, like, but all of this, we know all this, right? It's all true. And I totally agree with you. I just, you know, it felt it was, it was a dark read. You know, I agree. But like, and let's, let's think of like the other guardrails, right? So

there's the courts, then there's what stopped Trump from doing even more damage last time? Well, Mark Milley, who he now wants to investigate, we had him as the chairman of the Joint Chiefs and the military, right? Now, imagine Mike Flynn is chairman of the Joint Chiefs. Imagine the personnel piece is the really scary part. Yeah, and we've been talking about Schedule F, and it sounds so weird to talk about it, right? Because that's like a smaller part of it, right? Like, yes, he can fire a bunch of civil servants, but the people in the top positions who have a lot of power, right? Bill Barr fucking sucks, but you know what? You could have worse than Bill Barr in there as Attorney General,

and that person could do a lot more damage. Same thing with the Defense Secretary. Same thing with the Secretary of State. Same thing with the CIA Director, right? It goes on and down the line. We're not talking like people who are conservatives who we just disagree with. We're talking about like Laura Loomer, fucking like crazy, crazy people in government. Yeah. This is why I do think part of like the kind of doom and panic in these pieces,

the Atlantic has a whole set of them that they're releasing in increments to make sure that we're sad. It's the whole issue. No, no, I know it's a whole issue, but I've only kept that are that they're they're releasing in in increments to make sure that we're no it's a whole it's the whole issue no no i know it's a whole issue but but i've only i've only kept i think they're they're going on the internet uh by the hour like um just to keep us all amps did the cafe milano bat signal go up like the publisher catastrophe piece the kagan piece plus the atlantic pieces plus and then the bulwark did a bunch of them i think every i think it i think we're off the cycle of, oh, my God, Joe Biden could lose. That started with the New York Times polls and everyone was like, oh, my God, Trump could win. Yes. But that's why I think this is all. I think that like I think all of these fears like this is I think what we talk about.

It's it's what a lot of people reading and writing these pieces talks about. But there is this there's a part in the Kagan piece that jumped out to me where he said, the Trump dictatorship will not be a communist tyranny where almost everybody feels the oppression and has their lives shaped by it. And conservative anti-liberal tyrannies, ordinary people face all kinds of limitations on their freedoms, but it is not a problem for them only to the degree that they value those freedoms. And many people do not. And like, I think that jumped out at me. I see why, I see why a neoconservative would, would frame it in those terms. But what I saw when I was, was, I think it, it points to, I think the sense of disorientation that a lot of people in this big, we, you can be a B Democrats, small L liberals, hyper engaged people, anti-Trump people,

whatever, that this disorienting experience of feeling like we collectively understand the threat, but how do we get other people to understand it? We can't seem to get it through. We can't seem to get through. And that's been, I think, really scary and hard for a lot of people, including people that have paid attention to politics for a long time and why these pieces tend to have the feeling of someone screaming in a dream, but nobody can hear. Like everyone's pressing the alarm and pressing the alarm and everybody's just going about their business. And I think my, like stepping back from this piece, my feeling in reading it is,

okay, yes, this threat is real, but I do think it is in some ways counterproductive to talk about Trump as this colossus standing astride our country. He is an asshole. He's not the emergent property of American failure. There's this one part where Kagan says something like, we will pay the price for every transgression ever committed against the laws designed to protect individual rights and freedoms. As if

it's almost like Lincoln's second inaugural, like Trump is like God's punishment for American sins. Like, hey, there's a lot of shit that's gone wrong in this country. Like the social fabric is crumbling. He is taking advantage of it. That doesn't make him magical. That doesn't make him a messiah. It makes him extremely dangerous, but also someone we can defeat.

And like getting it back into that, like coming back to earth a little bit, I think is valuable. Stipulated. Yeah. Editorial, long essay in the Washington Post. He's crossing the Delaware a bunch. Yeah, yeah.

High dungeon for sure. What I'm saying is when you have conversations with friends and or people who don't pay attention to politics and they're like trump's running again yeah trump's running again it sounds i i had a friend the other day who was like trump's probably gonna win again huh and i'm like no but i'm like it could happen like yeah well like four years and it's like no no no that's when you have to say i I get that from a political strategy. I have advocated this myself that you have to, we have to treat them like a clown too. But at some point we also have to be very clear about what could happen if Trump wins again and how it's very different than what happened over the last four years.

And I do think getting that message out is extremely important. Now, what's really important is to break beyond this fucking bubble of all of these opinion writers and the Atlantic and everyone else just talking to each other about it. Totally agree there. Yeah. And to do it in language that like people really understand. But I do think you have to communicate those stakes because otherwise I don't know how like how else do you beat them?

Completely agree. I do think it's worth questioning whether the tone of this, the length of this, the overt comparisons to Hitler is the right way to actually convince people. Because I do think like some people, your friend in that conversation might read this and be like, this is some hyperbolic shit. You know what I mean? like, you know, specific policy by policy refutation or, you know, sounding the alarm of what he might do might be more effective than all of this in its big, you know, sweepingness. Yeah. I do think that the end of that paragraph you mentioned, it said a Trump dictatorship will mean that Americans' rights will be conditional rather than guaranteed. But if most Americans can go about their daily business, they might not care just as many Russians and Hungarians do not care.

I think that's the key is into where you started. People think like a dictatorship and maybe the use of the word Hitler and stuff like that lends itself to that. You think of like some kind of tyranny where it's either like Nazi Germany or it's like Stalinist Russia. Right. But the kind of authoritarian government we're talking about is like Russia now, like Hungary, right, where freedoms just get chipped away. And suddenly people don't really want to oppose Trump like they did the first time, because if you stick your head out and oppose Trump, maybe he sends the IRS after your business, or maybe he prosecutes you and maybe the court throws out the indictment. But you still have to get a lawyer. And now you're through the mud, right? Like this, it's not going to happen all at once, right? Well, it's already, I mean, look, that like slow raising of the stakes of opposition. A few years ago, it was not wanting to get a mean tweet about you. Then you have Mitt Romney recounting how many Republicans were afraid to speak out against Trump because they were physically, they felt physically unsafe.

Political violence, yeah. Like the judge in Trump's New York civil fraud trial in trying to make sure that the appellate court upheld the gag order documented an incredible torrent of threats and abuse directed at the court and at court personnel by Trump, including a ton of anti-Semitic and just terrible violent stuff.

And it's all become just sort of, I don't know, part of the background radiation of what it's like to live with Trump as a figure in political life. Yeah. Look, I've just, when I first read the first Barton Gellman piece in The Atlantic, I remember reading them and be like, ah, this is a little much. I don't know if this is right. And look, it wasn't, it certainly wasn't a hundred percent right, but we did get January 6th. I was surprised by that. The frustration about a piece like this is the fact that it has but we did get January 6th. I was surprised by that. The frustration about a piece like this is the fact that it has to be written after January 6th.

I think the frustration comes from the fact that we would all, like Lev was saying earlier, we're all sitting here feeling like this is so obvious to half the country, and there's a whole other half that kind of doesn't give a shit. And my frustration is I take this as a worst worst case scenario that is completely plausible and not being taken seriously enough. Do not use your fear that that will take place as a reason to kind of play down the agency of the people trying to fight it. Don't, you don't need to pretend that the opposition isn't important and hasn't had big successes and can't be successful again. I'm not saying that Kagan is saying that. I think he like points at the ways in which people have opposed Trump. But like, I think people are reading this saying like,

oh my God, I got to move to Canada. Like, no, no, no. We have to, we have to fight really hard over the next year. It is not inevitable. And I also think you're right for the half the country that doesn't give a shit. This, first of all, they're never going to even know this op-ed happened, right? Whatever. But a lot of political leaders are going to read it. And I think what it tells you is this is an extraordinary moment that we're in. And like, acting like politics as usual kind of stuff. Oh, I'm pissed at this Democrat because they didn't pass this policy. And now I might stay home and blah, blah, blah. Understand, understand you're upset. But like, we're in an existential crisis here. And it doesn't seem like we are right now, because everything's like

fine. And we're a year away from the election. But this stuff could all happen, you know? Yeah. Did you see our friend Liz Cheney? Now she's got a new book out. And she was with Savannah Guthrie on Today. And Savannah asked, do you believe if Donald Trump were elected next year that he would never leave office? And like, Cheney, without like blinking an eye, just said, there's no question. Yeah, she's pretty plain spoken about this stuff. And she and then Savannah's like, you think he plain spoken about this stuff. And then Savannah's like, you think he would try to stay in power forever?

She's like, absolutely. He's already done it once. And we love her. Now, maybe he'd be tuckered out by four more years. I mean, odds are he'd die because he's old and unhealthy. He'd be 82 at the end of four years. Which I consider young. I consider famously, we consider to be quite young. Very chipper. Which I consider young. I consider famously we consider to be

quite young. Very chipper. He's a young, energetic 82. All right. Let's go from one well-functioning institution to another.

The House of Representatives. We talked last week about how Republicans are demanding that Democrats accept a tougher border policy in exchange for passing aid to Ukraine, Israel, Palestinians, and Taiwan. As of Monday, it looked like House Republicans might be asking for too much. Democratic Senator Chris Murphy said that Republicans want a bill that would, quote, essentially close the border and that there's currently, quote, no path forward on a border deal.

Mike Johnson, like his predecessor, meanwhile, is busy worrying about his MAGA hardliners, some of whom are already pissed that he relied on Democratic votes to temporarily fund the government. That may be one reason why Johnson and the House Republican leadership voted against expelling George Santos, even though 105 Republicans voted for expulsion. And it may be why Johnson has flip flopped on impeaching Joe Biden just weeks after saying he didn't see enough evidence to move forward. He announced now he's holding a vote, possibly this week, to open an official impeachment inquiry, again, based on nothing. Let's start with Santos. Were you guys surprised to see that many Republicans vote to expel? No. Not really. I thought he was just so egregious at this point.

He was sort of rubbing in all of their faces, too. Threatening them the night before. I mean... The dam kind of broke that one of those members that, I think, is it Max Miller, that went on the floor and said, he personally stole $5,000 from my mother. And I was like, they stole from Max's mother. And then he mother and then he was like he's like you're a domestic abuser that he's like he's like uh i know also i need to uh direct my comments to the chair but fuck you george and then he went back but then also by the way like the max miller stuff like that's from

stats and out santos was referring to an allegation made by stephanie grisham white trump's white house press secretary, which she made it an op-ed, didn't name him. He went after her, then withdrew it. The point being, these are all assholes. They're all terrible, yeah. They're all assholes. Let's flip it then.

Why do you guys think that the House Republican leadership all voted against expulsion? It's really strange. It felt like, because clearly they were not telling their members, like, they let it go, right? Like, this was all happening. It wasn't like they, like, they weren't whipping votes for santos yeah mike johnson said it was a um a vote a vote of conscience a vote of conscience yes and then

of course that's why mike johnson decided to vote to keep them for him a vote of conscience i don't i don't really understand it's very confusing because obviously they were fine with letting him go and that's the most important piece of it i mean they now have a three vote majority but so like maybe they were that concerned because it's the leadership and they're the ones supposed to be counting votes on other stuff and they're like that concern for the that they need him as the fourth vote but that's the only thing but it's like then then try to stop it from happening altogether once it's happening it's like almost it's like okay so you're proving that you wish it didn't happen you're on the record of saying you were against it while letting it happen it doesn't the same result they have the record of saying you were against it while letting it happen. It doesn't, the same result,

they have a smaller majority because they let this vote happen. They also, as a result, got a lot of shit from some of these House Republicans. Like some of the couple of members in the Ethics Committee were like- About to resign. Threatening to resign.

Yeah, they were around. If they didn't let the vote of conscience go forward. I mean, to their point, they're like, what's the point of having an Ethics Committee if we release this kind of report and then you won't vote to expel the person who did all these horrible things? Well, that's it for George. Oh, I don't think so.

I don't know about that. Well, coming to a cameo near you. We haven't heard the last. First of all, he's got his trial coming. 200 bucks. Only 200 bucks. Did you see that on, I don't know why I saw this, Z-Way was like, oh, I'd love to interview George Santos. And then he responded to her and he was like, anytime, let's do it.

On pay-per-view. It's going to be on pay-per-view it's fight night i wonder what the split is on that i can't i think we have to let him drift off into the into the ether feels like of all of those indictments maybe one will hit with george santos oh yeah i mean he's so it's so brazen i don't i don't think he's getting away with all this now. I mean, it's too many counts. Unless, of course, Trump wins and there's a chaos. And the first cameo out of the gate seems to have been John Fetterman getting a message from George Santos telling Bob Menendez to resign. That is so funny. A lot of trolling happening.

One of the people. So after Santos was expelled, it seems like he had a kind of Twitter Chardonnay experience. And then one of the people that went after was Bob Menendez Jr., who's a congressman from New Jersey, and Bob Menendez's son saying, well, I don't know of anything, but we should look into whether or not he had any awareness of what his father was doing. What's your take on these bipartisan border talks? Chris Murphy saying they're falling apart. Republicans are saying not so fast. What do you think? I mean, it seems like Chris Murphy is reflecting the fact that Democrats feel like they gave up a big priority in these talks already because they're reportedly not going to include any support for the dreamers to help them protect them. to be pushing harder and harder and harder for harsher policies. Democrats seem to be okay with limited changes to asylum policy and some limited changes to humanitarian parole, but it's not clear that that was enough for the Republicans. And we're just talking about the Senate side here. So if they're having this much trouble with Republicans on the Senate side, God help us with what the House will say. So Politico said Republicans have demanded Pentagon detention camps on U.S. military bases, long detentions for families with children, and unworkable

nationwide mandatory detention. So pretty draconian stuff. It's interesting, too, that Democrats are basically saying, hey, they're not giving. We have to walk away. There's nothing to be we can't find a deal if these are going to be the terms. Then you have someone like Lankford on the Republican side saying, no, no, no, no, we're still talking. Everything is still, still deals to be done.

And I was- Cinema too saying that. And I think it's, well, it speaks to like, there's a real desire on the part of a lot of Republicans to pass Ukraine funding, right? And if a deal is possible

on immigration, then a deal is possible on immigration that can be tied to Ukraine funding. But if Democrats in the Senate say, no, this is, we're not, we can't find, there's no agreement here, we can't find it, then all of a sudden, the possibility of putting these things together seems more remote. And then it becomes a question about whether or not they can pass just Ukraine funding again. Well, I think Tillis, Tom Tillis from North Carolina said, if it's just border

security funding, we're filibustering. And I wonder if it comes down to the pro-Ukraine funding Republican caucus in the Senate trying to figure out how much they want that funding for Ukraine, because they're the ones that will ultimately have to push the House Republicans who want much more extreme immigration measures to swallow some kind of a compromise that Democrats are willing to. And I don't know the answer to that. I don't know the answer either. And it would presumably be McConnell kind of fighting it out in the conference committee. I mean, that's our hero here, Mitch McConnell. I also wonder if they're going to at some point split Israel off from this package because they think that there's more support. They think that

there's more support in both think that there's more support in both houses for Israel funding, but I think the longer that goes, I don't know how the Democrats I think there will be universal Republican votes for the Israel funding. You'll get enough Democrats. You get enough Democrats. So that it makes me feel like this all makes me think that they will eventually split Israel off if it starts getting. You guys think Mike Johnson's going to get more leeway here than Kevin McCarthy from the far right? Or is this just, it seems like he's having similar problems to me. Well, I think, first of all, he's already gotten more leeway. You know, I think that like, McCarthy, like, there are times when it's like McCarthy had to represent reality. There's already

been times when Mike Johnson has to represent reality. And as like, when these guys decide that they're going to represent reality to the caucus, what does the caucus say? With McCarthy, it's like, is he telling me the truth? Is this really the best we can do? Do we really have to do this? Or is he just a lying, smarmy fucking weasel I can't trust? And the answer is usually both. but with Johnson, like he has some more credibility and that's given him, I think more space because when he says like, Hey, we got to do this. I think they're more inclined to believe him because he has actual, they, I think they see him as someone correctly that has more core principles than McCarthy does. Yeah. I mean, you know, we talked about earlier, there's just a small, not even smaller margin for error for Mike Johnson with his caucus. Now that Santos is gone for some of these members, their power, their fundraising basically comes from being perceived not to be team players. Like McCarthy, for all his smarminess and for all his faults, had figured out how to co-opt Marjorie Taylor

Greene and bring her into the tent. She is fully out of the tent. She is pissing all over the party. And she wants to impeach the Secretary yeah and you know she wants to impeach uh the secretary of homeland security she wants to impeach biden she's attacking mike johnson on the record she's you know floating sort of mystery issues with other members in the caucus that was really strange by the way she'd issue with a male member that did something like there's all these sort of things swirling out there and i think the the question for Johnson is whether he can placate the caucus with red meat like impeachment or if even that is not enough for some of these goobers. A bunch of them are griping, Chip Roy and some others, that he allowed for a temporary funding bill to pass already, another seat and continuing resolution. So they're mad at him for that.

Max Miller seems like he's mad at him for a whole bunch of shit. Max Miller's mad. Including attaching the IRS thing to the Israel funding. He's really mad about that. I did find it hilarious that the House Freedom Caucus is now, or at least some number of members in the House Freedom Caucus are now saying they're willing to do a spending deal for a full year that kevin mccarthy negotiated with joe biden which is the deal that ultimately led to his ouster which is just so kevin mccarthy must be somewhere just screaming into a paper bag and yeah and then also by the way like there was the whole thing was about like whether or not there was going to be a vote to have an impeachment inquiry remember like mccarthy said they would and that he wouldn't then he went to the podium he did it he did like a

speech and it was like when um uh michael scott dec he wouldn't. Then he went to the podium. He did a speech, and it was when Michael Scott declares bankruptcy. And he just went to the camera and goes, I declare up an impeachment inquiry. Is that good enough? Wasn't good enough. But didn't Johnson get, he got Marjorie Taylor Greene to withdraw her Mayorkas resolution briefly. I just can't believe they're moving forward on an impeachment inquiry, and're going to get every single because they'll need all but three Republicans. They'll get them all. And I think Ken Buck has said no already.

But they have all the preps with no additional evidence. Well, the point is, Jonathan Turley, their first witness being like, I don't think there's enough here. Right. Yeah. Well, I do think like that. Nothing has changed since then. Nothing has changed. Well, Mike, what Mike Johnson has been saying is something like they've been stonewalling us. They've been stonewalling us. So they've been stonewalling us. So he's, I think they're trying to say we're opening this inquiry because it's

the way we're going to get the information. And the reason that the Biden administration has been stonewalling them is because during the Trump administration, during the Ukraine impeachment, they tried to subpoena. And the Trump people said, no, do an inquiry. Hey, I just want to be clear. I'm not on Mike Johnson's mike johnson's side yeah this is my job but so you can tell the impeachment increase also it's a bone to the right like he's trying to do the balance i think it's funny that the house freedom caucus has backed off the spending demands but i think it's because they just don't care spending doesn't get these people going anymore that's not the maga kink the man is like social cultural issues. That's where they

want to make their mark. That's where they want to, they don't really care that much about spending. Right. They're onto house two, right? They're onto draconian anti-immigration policies. The other great, just, we mentioned Liz Cheney earlier. Apparently in her book, she says that Kevin McCarthy told her that he flew down to Mar-a-Lago infamously right after impeachment because some of Trump's staff called him to say, Donald's not eating. He's an emotional wreck. He just needs you by his side, which is on its face ludicrous, right? But then Trump, I think, put out a truth social today where he said, no, in fact, I was overeating.

Yeah. He said, I wasn't, he said, he said, this is the quote. I wasn't sad. I wasn't depressed. I was angry. And it wasn't that I wasn't eating enough. I was too much but that wasn't the problem so maybe he's not a liar it's so i think it's maybe he's maybe he's there's more honesty to trump than we think every once in a while he does a self-aware thing like that and that was such a good joke i was over eating well that's that's the kind of very believable that's that looks and i get and listen among us hasn't faced a setback and then found themselves eating a little too much? Imagine Kevin McCarthy saying that to Liz Cheney of all people. He was like, Liz, come on, Donald, he wasn't eating, he was sad, he was having a hard time.

She's like, they just tried to kill us. Like they're cleaning up the glass on the floor of the Capitol. He's like, ah, but he's sad. I love it. I love it. Brought him back into the fold. Mitch McConnell prevented an impeachment, and here we are. All right, before we go to break, two quick housekeeping notes.

Pod Save America is down to its last two live shows of the year. We're going to be in El Cajon this Thursday, December 7th with co-host Sam Sanders and San Jose on December 13th with co-host Adisu Demissi. Grab your tickets at cricket.com slash events, and tomorrow, December 6th,

join cricket's group thread event covering the fourth and hopefully final Republican primary debate. I noticed in the copy, it always says in hopefully final, maybe this time it'll stick. As of this recording, Chris Christie had not made it. I think he's on the cusp.

I think he's on the cusp. He's trying to convince him that his polls count. Oh, Doug Burgum dropped out. Yeah. Doug Burgum. It's tough. I thought he was going all the way. I thought we were going to leave. He was my Tim Scott. Love it. He's to to convince him that his polls count. Oh, Doug Burgum dropped out. Yeah, Doug Burgum. It's tough. I thought he was going all the way.

He was my Tim Scott. Love it. He's Dakota. Anyway, it'll be a Friends of the Pod exclusive. So to get access, visit cricket.com slash friends to learn more and sign up. That'll be Wednesday night. We'll be on the group thread for the hopefully last Republican debate. Okay.

When we come back, Love It Talks to Strict Scrutiny's Melissa Murray. Joining me now to help break down the latest developments in the various and sundry cases against Donald Trump, she's one of the hosts of Strict Scrutiny and co-author with Andrew Weissman of the new book, The Trump Indictments, the historic charging documents with commentary, which you can pre-order now. Melissa Murray, welcome back to the pod. Thanks for having me. So let's start with what many are referring to as the biggest ruling against Trump, but by no means the only ruling against Trump in the past week. Judge Chutkan ruled against Trump's attempts to claim that he has presidential immunity. It's also, I think, a ruling that the judge took great pride in writing. It had a real crossing

the Delaware vibe. What did you make of the ruling and the arguments it had? So Judge Chutkan's ruling in the D.C. District Court about the invocation of presidential immunity in this criminal suit is the first opinion of its kind to ever say that a former president cannot invoke presidential immunity as a defense to prosecution. You know, it's unprecedented for a number of reasons, not the least of which we haven't ever had another former president be indicted for crimes, much less be indicted for different times for crimes. But there was this broad question outstanding, like, is there the opportunity for someone to claim that they are immune from suit because they were a former president or whatnot. And Judge Chuck can basically said that these acts here, the election interference, were not undertaken. If they were undertaken,

these alleged acts were not undertaken as part of Donald Trump's duties as president. And that's actually consistent with extant precedent related to civil suits. So there are two Supreme Court cases, Nixon versus Fitzgerald and Clinton versus Jones, which deal with presidential immunity in the context of civil suits. And earlier last week, another court, this time the DC Circuit, heard an appeal and made a decision based on whether or not Donald Trump could be immunized from civil suits from Capitol officers who claimed that he had incited the riot on January 6th and therefore should be held liable and should pay them damages. The federal appeals court said that, you know, this didn't fall into any of the categories that would immunize him. They weren't official acts. And Judge Chuck can essentially

echoed that same kind of logic. If Donald Trump did the things that Jack Smith says that he did in that indictment, they weren't acts that were undertaken as part of the scope of his official duties as president. And in fact, on January 6th, he wasn't even the president. He was sort of the outgoing president. There was a president elect and he was essentially a candidate for reelection at that point. And, you know, riots aren't part of presidential duties. Sorry. Game over. Yeah, there's sort of like it seems like in both of these cases, Trump is kind of perverting what it means to be president. Right. It's like he's actually using the office like the whole four years, right? Yes, well, for sure. But but in this, it's like there's there's there's the argument that, you know, this is what what the out of the two cases that you mentioned that that oh, if the president is facing a bunch of different civil lawsuits all the time, the president can't do their job. That's one. The other is you can't prosecute someone for what they're doing in their

official duties. That's two. And then the third, right, is that like in some way it's really dangerous to be prosecuting senior officials in a government. That's a terrible precedent. It's a dangerous precedent. It is, right? It is actually very serious. It could be a very serious and dangerous thing to live in a country where once you leave office, your predecessor, your successor may prosecute you.

What do you make to that argument that there needs to be a special threshold or care taken when prosecuting former government officials? Well, so let me address the first couple of things that you mentioned. So with regard to civil suits, I think in any case, whether it's a civil suit or a criminal suit, where someone has invoked immunity or here a president has invoked immunity, you're dealing not only with balancing the rigors said that Bill Clinton could stand for a civil suit that Paula Jones had brought against him because deferring it until after he was no longer president made it really difficult for Paula Jones to have her day in court. Witnesses might die, evidence might evaporate, who knows? But it wasn't going to necessarily impede his work as president. There are lots of ways that the imposition on him could be minimized. They could do depositions in the White House, for example,

and they did. And they did. Some other things, but leaving that to the side, there are ways to minimize it. So, you know, those are the kinds of things that the judge is sort of thinking about here. Just this broad question of the integrity of the legal system on the one hand and the ability of the chief executive to do his or her job. Now, to your last point about whether this is unprecedented, and if it is unprecedented, should we set this precedent here or are we going to be sliding down a slippery slope where every former president is going to be indicted by his or her successor? Well, this is unprecedented for the United States. It's not actually unprecedented in other systems. Andrew and I talk about this in the Trump

indictments in other countries and other systems. It is actually something that happens not with regularity, but in cases where the misconduct or the alleged misconduct is truly egregious, then those former officials are held to account. It has happened in Italy, for example. It's happened in France. It's happened in Argentina. It's happened in South Korea. It just hasn't happened here in the United States. But some might argue that failing to hold a leader accountable for the most egregious misconduct, and I think trying to subvert an election, if that is in fact what he did and a jury believes that that's what he did, holding him to account for that, I think is

actually consistent and necessary for the rule of law. Also last week, the New York Appeals Court reinstated Trump's gag order in the civil fraud case. This was a narrow order because Trump and his lawyers had been kind of inciting a bunch of terrible comments about Judge Ngaran's law clerk. That came after it was revealed that the judge and his staff had received an unbelievable torrent of threats, just anti-Semitic threats, violent threats. unbelievable torrent of threats, just anti-Semitic threats, violent threats. Trump has faced a couple fines. They've amounted to $15,000. The judge has said that he will enforce it rigorously and vigorously, like he's in a Gilbert and Sullivan musical. What did you make of the reinstatement? What do you think happens next? Well, we know what's happened next. He's going to appeal this.

He's going to appeal this to the Intermediate Appellate Court and hopefully on to the New York Court of Appeals. Again, I don't know that he's going to get much traction here. I mean, this is sort of, again, another balancing act between Donald Trump's right to engage in political speech as a candidate for president or as someone who just has stuff to say about the civil proceedings against him and what he believes is bias in the judicial system, and the public safety and the safety of these court employees. I mean, this woman has been doxed. Her information has been disseminated online. She's received huge numbers of threats from Trump followers. And to be very clear, the Trump lawyers insist that that's a different thing. He is not threatening her and he can't help it if other people do. But we know how this is. And he sort of whips up and, you know, gets his followers into a froth and a lather. And then, you know, you have these real questions about public safety. You know, Judge Chutkan in D.C. was threatened

by a Trump supporter who said that, you know, if Donald Trump is convicted by Judge Chutkan, Judge Chutkan is going to die. I mean, like, so these are not idle threats. But again, I think it is this balancing act. And the gag order, I think, threads the needle pretty well. He can rail against the prosecution. He can rail against the attorney general. He can rail against the judge. He just can't rail against the courtroom staff. And I think that's a pretty modest ask at this point and one that seems quite reasonable. How does the standard Trump is being held to in these cases versus what any normal defendant would be expected, how any normal defendant would be expected to behave?

So he says that he's being treated terribly relative to any other normal defendant. But I'm like, if you had a black man, if this was like Donald Trump was a black man and was putting out the name and number of a judge's clerk, I imagine he would already be in the pokey, not merely the subject of a gag order. And so there are lots of ways in which he's actually being treated more favorably than many of the individuals who are currently in the criminal justice system and in the civil justice system. Well, you feel like it does seem like Trump is testing these judges. And I'm curious if there's any way in which this differs from what the gag

order in the D.C. case. But it does seem in all these cases, Trump is basically seeing how much he can get away with, how differently he can be treated, and basically betting on the fact that these judges are incredibly reluctant to hold a former president in contempt and then throw him in jail. So I think another way to think about it is Donald Trump is playing to at least two different audiences. One is a court of law. One is the court of public opinion. And he's running for president. He's trying to appeal to a base where his bravado, his bombast is really part of the equation. It's part of the appeal of him to them. And so, you know, I think it ties in with that. I also think in terms of the court of law, all of these motions, whether it's about the gag order, whether it's about presidential immunity, have the effect of applying some drag to these cases. I think that's certainly the case in the presidential immunity claims that were made before Judge Chutkan, those have been decided by Judge Chutkan, but they're going to be appealed to the D.C. Circuit. And from there, they're going to be appealed to the United States Supreme Court.

That could potentially slow this trial down so that it doesn't start on March 4th, as Jack Smith had hoped it would and indeed had planned for it to. And I think we're just going to see these kinds of motions, like he's raised immunity claims in other contexts. I think all of this is to slow everything down, play to the base, and present himself as someone who is being victimized by the current administration and a judicial system that he says is being orchestrated and operated in the name of the current administration. Last question. Last week, former Justice Sandra Day O'Connor, the first woman on the Supreme Court, passed away at 93. What do you think she would make

of today's court? Well, gosh. Justice O'Connor was appointed by Republican Ronald Reagan, and I think she was a disappointment in a lot of ways to conservatives. You know, Reagan vouched for her when she was appointed that she would be very staunch in terms of abortion, not on everything, but on a lot of the hot button issues where she really sort of, you know, using her political acumen, she'd been an Arizona legislator before being a judge. She really kind of honed in on where the public was on a lot of these hot button issues, whether it was campaign finance or affirmative action or abortion. She really tried to kind of find that middle ground, find compromises, and also to decide cases really narrowly, focusing on the four corners of the case before her. She wasn't necessarily interested in advancing some broader theory of constitutional interpretation. And I think that

makes her very, very different from the six conservatives who are currently on the Supreme Court. And regrettably, she is the architect of the dismantling of her own legacy. Her vote in 2000's Bush v. Gore gave the White House to George W. Bush. From there, she was the first justice to retire. He nominated John Roberts to take her seat, and then William Rehnquist dies. He elevates John Roberts to chief justice and appoints Samuel Alito to take her spot. And you can't imagine two more diametrically opposed individuals, both in terms of judicial philosophy and temperament. So, you know, she's seeking compromises. Like she strikes down a spousal notification provision in the Pennsylvania abortion law in Planned Parenthood versus Casey in 1992. It's the same spousal notification provision in the Pennsylvania abortion law in Planned Parenthood

versus Casey in 1992. It's the same spousal notification provision that Justice Alito, as a judge on the Third Circuit, voted to uphold. So, I mean, she couldn't be more different from him. And as we've seen, he's the one who writes the decision that overrules Planned Parenthood versus Casey. He's part of the majority that overrules her decision in McConnell, a campaign finance case that was overruled in part by Citizens United. And he's also in the majority to dismantle affirmative action, which she saved in 2003 in Grutter versus Bollinger. I don't know what she would make of this, but I think she would have to look at what has happened and recognize her own part in this. I also will always appreciate that not only was she the first woman on the Supreme Court, but she served with William Rehnquist, whose marriage proposal

she had rejected. How cool is that? I mean, that story came out later. Nobody knew about that. Nobody knew. Nobody knew. Like her biographer reveals that like not only everyone knew that they had been friends and friendly at Stanford, but not that she'd gone on a date with him, brought him home to the ranch. And basically he couldn't hack it on the ranch. And when he proposes to her, she's like, no, you can't rope a steer, get out of here. Like, and, and, and sends him packing. And then they still like become really good. She friend zoned him and then worked with him for 25 years. I love it. I love it. You think, you think, I mean, what are the, there's only nine people. There's only nine people. There's never been,

you're William Rehnquist. There's never been a woman here before. You're fine. You're safe. No exes. No. I mean, and I love that he also went to Arizona. I mean, it was almost like, like, was he stalking her? What was going on there? Like, I mean, of all the places you could have gone, he went to Arizona. That's love. That's love. I mean, unrequited for sure. Yeah, yeah, yeah. Not enough. Love it or leave it. She said leave it. She said leave it. Melissa Murray, thank you so much. The book, which she co-authored with Andrew Weissman, another friend of the show, is The Trump Indictments, the Historic Charging Documents with Commentary. The commentary is so important.

Super important. It's the big value add, like putting all of this in context so lay audiences can understand what's going on and follow along with these trials when and if they happen. When and if. Melissa, thanks. and if they happen. One and a half. Melissa, thanks. Thanks to Melissa for joining us today.

We're going to have our live show Thursday night. So that pod will drop Friday. So we'll talk to you guys then. Pod Save America is a Crooked Media production. Our producers are Olivia Martinez and David Toledo. Our associate producer is Farah Safari. Writing support from Hallie Kiefer. Reid Cherlin is our executive producer.

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