Pod Save America - “Kyle Rittenhouse, Right-Wing Hero.”

Episode Date: November 23, 2021

The White House notches some wins while Democrats debate the party’s challenges, Professor Melissa Murray joins to talk about the verdict in the Kyle Rittenhouse case and how the Ahmaud Arbery case may differ, and Kamala Harris’s 85 minute-presidency spawns enough takes to fill two terms.For a closed-captioned version of this episode, please visit crooked.com/podsaveamerica. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

The Supreme Court has had a busy summer loosening gun restrictions in states, overturning Roe versus Wade, and severely threatening our Miranda rights. I'm Leah Lippman, and each week on Strict Scrutiny, I'm joined by my co-hosts and fellow law professors, Melissa Murray and Kate Shaw, to break down the latest headlines and the biggest legal questions facing our country. It's more important than ever to understand the repercussions of these Supreme Court decisions and what we can do to fight back in the upcoming midterm elections. Listen to new episodes of Strict Scrutiny every Monday, wherever you get your podcasts. Welcome to Pod Save America. I'm Jon Favreau.

I'm Jon Levitt. Tommy Vitor. On today's pod, the White House notches some wins while Democrats debate the party's challenges. Professor Melissa Murray joins to talk about the verdict in the Kyle Rittenhouse case. And Kamala Harris's 85-minute presidency spawned enough takes to fill two terms. But first, some fun news. On Tuesday, December 7th, Crooked will be looking back on 2021 with a special live stream event we're calling What a Year. What a Year. It will include your favorite Crooked hosts, special guests, and more to help you process all the joys, follies, and complete and total meltdowns of this past year. We'll be right back. RSVP, head to crooked.com slash what a year. All right, let's get to the news.

As we head into Thanksgiving, there are new reasons for Democrats to be optimistic and reasons for Democrats to keep being ourselves. Last week began with President Biden signing a bipartisan jobs and infrastructure bill and ended with House Democrats passing the rest of his economic plan, which would use higher taxes

on the rich and big corporations to fight climate change and lower the cost of health care, child care and education. The administration has also now authorized booster shots for everyone and has purchased 10 million doses of the new covid antiviral pill for when that gets authorized. And there are headlines everywhere that global supply chain issues are starting to improve. On the other hand, prices are still high. COVID cases are rising again. Joe Manchin and Kyrsten Sinema get a final say on Build Back Better. And there's a new round of Democratic infighting over the party's current political predicament. But let's start with the case for optimism. Tommy, how are you

feeling about all the good news from last week? How am I feeling about all the good news from last week how am i feeling about all the good news um i would say medium to not good medium to not is that okay is that enough are we allowed to be honest of course this is pod safe america we never tell a lie you want me to start over and be performatively happy this is all we're cutting we're cutting through the bs here coming to this like okay pelosi and biden deserve a ton of credit for getting the economic bill passed in the House. If it becomes law, it will invest in clean energy and universal pre-K and cheaper prescription drugs. There's a lot of massive important things in there. I'm just worried about when this bill gets into the Senate and the performatively moderate hands of Kyrsten Sinema and Joe Manchin, as you mentioned. Like God knows what pound of flesh they will want. But the coven news is good yeah i'm glad everyone can

get boosted i'm glad that there are now pills you can take if you don't want to get a booster uh i still worry that the problem is people won't get vaccinated and i'm not entirely sure what we do about that so supply chain good john right i saw a headline that said easing of supply chain good, John, right? I saw a headline that said easing of supply chain choke points was part of a Wall Street Journal headline. That's a good thing, I guess. I don't know. Remember when the supply chain was just funny because that fucking barge was in the Suez Canal? Yeah. Not anymore.

Remember those good old days? Yeah. I forgot about the barge. Going down to the L.A. port and hauling boxes himself. I don't know. I think the best news of all of that is the boosters boosters and the covid pill here's the thing all right joe biden was fucking right in september dr anthony fauci was fucking right in september yeah and these i went on this rant thursday i know it was gonna go on today and i knew you did and i wanted

to go further these fucking pointyy headed public health fucking dipshits have everybody lining up right before Thanksgiving to get a booster they should have been allowed to get in fucking September. They are despicable. Despicable.

I can listen to Steve Bannon's podcast all the time. Look, I'm just here living in the fucking light that science has shown on us unbelievable despicable behavior it's unfortunate it's unfortunate it's unfortunate that that happened and many public health experts and scientists were on the side of the biden administration you bet they were we should add you bet they are in fact in fact i think most of them were but again the vocal minority is what we heard about in the press sorry i just wanted to anyway i don't want to do this again i don't do

this again but i i still and look goolsbee said this to to to to tommy and i last week like most of the economic problems we're facing most of the sour national mood is being caused by the pandemic still and we get through this winter and you know we're seeing a rise in cases unfortunately it's the winter this thing is seasonal we know that now um but with boosters getting rolled out to everyone with vaccines going to kids between 5 and 11 hopefully uh the vaccines are approved for kids six months to uh five next uh early 2022 i think fauci said recently once we get all that done and we hopefully get through this winter surge, like that's getting us closer to the day where we can actually start treating COVID like the flu.

Like that's where we'll hopefully be in early 22 with all of these new tools in the toolbox. Yeah, plus the antiviral pill and expanding the vaccinations to kids. Yeah, although I'll just tell you guys, I went to a football game last night. I saw the Steelers play the Chargers at SoFi Stadium with about 65,000 of my closest friends

all in one arena that is enclosed. So I think a lot of people are already treating COVID like it's not a thing at all. Yeah, that is part of the problem. That is very much true. But here we are. That is very much true. But yet the supply chain problems

and all that kind of stuff, it's tough. We're still climbing out of it. The Washington Post reported that a bunch of outside advisors are pitching the Biden team on reframing inflation as being about greedy corporations, which I think was Dan's pitch last week. So that's smart. It's accurate. And hopefully that will work too. Yeah, they started it with the oil companies. Yeah, the oil companies are going on. I mean, let's you mentioned this, Tommy, let's talk about the build back better heads to the Senate. Mansion and cinema have been fairly quiet so far. I don't know. Love it. How are you? How confident are you feeling about this? You know, it was interesting what Elizabeth Warren said to you, because it's actually a reversal of where we were a few months ago. A few months ago,

it was, hey, mansions at the table, but we have no idea what Kyrsten Sinema wants. And it sounds like that's changed a bit. Yeah. Now she just has him like wandering around, kind of lost in the grocery store. It was a very funny analogy. Well, it's that she's at least specific. Like she might be annoying in what she wants,

but she's being specific privately about what she wants, even though she's not doing it publicly. While Manchin is just like, every time you get him, he's like, oh, I'm worried about inflation. I don't know. Right, right. Although I guess for a long time when we were yelling at Manchin for not being specific, Chuck Schumer was sitting on a detailed memo outlining all of his concerns in detail that had just been hidden from us. So thanks for the heads up, Chuck. Oops. Yeah, look, I mean, I'm hopeful that, and again, what can you do but be hopeful that the congressional budget office score outside economists all saying it's not going to add to the deficit or inflation. Maybe that will help Joe Manchin a little bit.

Every moderate in the in the House, every centrist in the House supported this bill, except for Jared Golden. And for Jared Golden, it was mainly about the SALT provisions and not and not about the other provisions. Look, I think we should all be prepared for Joe Manchin to, you know, try again to take out paid family leave, which was put back in the House version. I think we should be prepared for the parliamentarian to once again rule out some of these immigration proposals, which is going to be a huge disappointment and then mansion had some specific concerns he was yelling about like there's extra money for electric vehicles that are um constructed in union uh union why would he be opposed like he's like he's like every every electric vehicle should get the same credit not you should it's ridiculous of course but like i think there's going to probably be little things that he and cinema still kind of pick apart yeah they're gonna pound flesh but the big question is like do you wake up one day and see a Joe Manchin press conference

where he's like, I've just thought about it a lot and I'm still too afraid of inflation. I can't vote for this bill. And that's it. Like, that's that's the real fear. But the White House seems confident that, you know, the Democrats in the Senate seem confident. So who knows? Yeah.

And Sinema and Sinema basically kind of in pouring cold water on what the House passed used the kind of Biden framework as what she was working off of as something that she was more likely to support. So, I mean, the reason for hope there that it is sort of moving towards some kind of final resolution. One person who seems concerned is AOC, who gave an interview to The New York Times over the weekend where she said, I think that if we pass the Build Back Better Act as the House passed it, that we have a shot to go back to our communities and say we delivered. But that's not to say that this process has not been demoralizing for a lot of folks because there were enormous promises made.

And this is where I have sounded the alarm, because what really dampens turnout is when Democrats make promises that they don't keep. Tommy, what do you think about that argument? I mean, I share her broader anxiety that progressives may have given up their last really strong piece of leverage by voting for the infrastructure bill without an immediate vote on Build Back Better. That's a fair point. And if the Build Back Better bill doesn't pass, it would be politically disastrous. She's right that the final version of the infrastructure bill was trimmed a bunch and the messaging didn't always get adjusted accordingly. So, for example, she pointed to the fact that the original infrastructure bill had

$45 billion to replace lead pipes that got whittled down to 15 billion, but they were still saying, oh, we're going to replace every pipe in the country. We're not going to with that much money. It's a big shortfall as we saw in Flint, lead exposure is disastrous and can permanently damage kids. But if both the bills pass and there's still a sense of letdown among the base, I think maybe that's partly substantive, but it's also a bit of an expectations management problem. And I think the entire Democratic Party owns that, including AOC, including progressives in the House, including most of all Chuck Schumer for sitting on the aforementioned memo from Joe Manchin. And so I'm not saying that they're wrong

to fight for more or to say that they want more, but I think we're all operating under political constraints here. And what I hope everyone will do if both of these bills pass is go to their constituencies, go to their districts and say, we got 15 billion to replace these lead pipes, elect more Democrats and we'll get 45. You know what I mean? We got four weeks of paid family leave yeah hopefully let's like we're democrats and we'll fight for 12 like i know it's exhausting and the work feels fucking endless but politics is endless exhausting work she seemed to make the argument that if you pass build back better than you it will be all lead pipes that it's just that the infrastructure

bill specifically is deficient from 45 to 15 right but no that she but she was specifically kind of blasting away at some of biden's that suggested that money would pay for that. I'm just saying we should all hope for Build Back Better because I think you get the rest of the lead. I actually don't know. Yeah, I mean, it seems it does seem like what she was voicing was general frustration with the process that led to this point. Not a not a sense that have Build Back Better. If a compromised version of Build Back Better passes, it is some new kind of failure to her mind. It is more that I think it was it felt to me like just someone lamenting the same thing we have been lamenting for like the past couple of months, like,

Jesus Christ, why are we whittling this thing down so much when we when when the politics are behind it, the polls are behind it? Like, why are we putting ourselves in this kind of less popular position, which I think is completely right. I mean, you know, are there people who think it's the entire Democratic Party's fault that Joe Biden and the Democratic majority couldn't pass everything they ran on? Yes, of course. But like the question is, what can you do about that if you're an elected Democrat or the rest of us? All you can do is fight for the best bills possible. Go back to your voters and your constituents and tell them that Joe Manchin and Kyrsten

Sinema blocked a bigger bill, a better bill. Tell people exactly what's in the bill you passed and specifically how it's going to change their lives. And then tell them what's going to happen if the Republicans take power like that. That's really all you can do in this situation. I don't know. There's no other option. Like I know that people are frustrated that it that it seems like the Democrats have fucked this up. But again, it's these two people in the Senate that fucked it up. And all we can do is tell people that that's the truth. Yeah. Your options aren't the Biden

agenda or the Bernie agenda. It's the Biden agenda or the Trump agenda, unfortunately. The other more specific point she makes is that there are executive actions Biden could take that he hasn't yet taken specifically on student debt. And I've always assumed that's all fair. He was waiting on that because he Biden probably doesn't want Joe Manchin and these guys to tally up the cost of student debt relief and apply it towards, you know, the tab in terms of the things they might do legislatively. I think he probably wants to sequence it differently, like get these bills passed, then do student debt relief, at least I hope. And if he doesn't do that, then then certainly deserves to be criticized. I think that's a really good point that, look, the Biden White House has in many ways been held

hostage by Manchin and Sinema on a whole host of things while they're trying to pass these two very big pieces of legislation. And if you're in the White House, you have to say, okay, what's the most important thing in the world right now? The most important thing in the world right now is to get Build Back Better passed. That's the entire agenda. And if I have to not emphasize other issues to not piss off Joe Manchin, then that's what I'm going to do. And for the price of delay, you can get both. Yes. But again, if he doesn't do it after that, then yeah, people deserve to be pissed. There's also been quite a bit of debate over a New York magazine piece where Jonathan Chait argues that, quote, Biden's presidency began to disintegrate because he found himself trapped between a well-funded left wing that has poisoned the party's image with many of its former supporters and centrists unable to conceive of their job in any terms, save as valets for the business elite.

unable to conceive of their job in any terms, save as valets for the business elite. So basically, he says that progressive activists online and in think tanks have pushed policies like defund the police and decriminalizing all border crossings that pushed away not only non college educated white voters, but non college educated black and Latino voters as well. And while those voters might respond to more economically populist policies from the Democratic Party, centrists in Congress have fucked that up by doing the bidding of the Chamber of Commerce and the pharmaceutical industry on Build Back Better. What did you guys think of the piece? Love it.

What'd you think? I think it's very long. I think it's really smart. I think it is. We love to talk about the length of pieces that we analyze. So long. I did this with the CNN Kamala Harris story, too. I was like, my first take is that it's long. Yes, we are not think of that lazy. I think it I think it makes a very smart point. I think it actually kind of has a little bit of

a false equivalence between who he's criticizing on the left and who he's criticizing from the center. On the center, he's talking about policymakers who are actually limiting the scope of democratic ambition in a really harmful, substantive way. And on the left, he is sort of I think he makes reference to it, but he kind of elides the fact that the reason to fund the police, abolish ICE, some other issues have become so associated with all Democrats is not because of the success of activism, but because of a right wing misinformation campaign to paint all Democrats as having that position. So I think that is, I think, a little bit. But a bunch of activists have that position. Of course. Of course. Absolutely. The Democrats have. Absolutely. I'm just saying that's I thought

it was a very smart piece. I do think that is a distinction worth making. Right. Like the the the centrist critique that is, I think, fanciful and politically stupid and toxic has actually had a really negative impact on the governing of this country right now, actively right now, and may hurt our chances to keep the House and keep the Senate. I think the problem from the left is more about the impact of both. Yes, it's absolutely true that these are the positions activists and some members of Congress have taken. But the reason Abigail Spanberger does a conference call where she criticizes AOC or Conor Lamb criticizes the squad is not just because there is a left wing position that they find harmful. It is that they are being tarred with it by Fox News and the Republicans who follow that lead. Yeah, I think

where he lost me was all the power that was being ascribed to big think tank. Like, who has ever like, I barely know what liberal think tanks are up to on a daily basis. I don't think like liberal donors are necessarily pushing them. Maybe I just have a more fundamental skepticism of that community because I don't live in Washington. But I think people started talking about police brutality and defund the police because George Floyd was murdered, not because of a white paper from like Demos or whatever. I do think like the similar weakness in some of the arguments. So I think it was a an overly Washington focused argument for why Joe Biden's approval rating is down. I think the approval rating went down because of Afghanistan and then the Delta variant and

gas prices are up and inflation. I think that's driving voter sentiment more than the Washington fighting. There's also this massive ongoing propaganda campaign to say that the current president is illegitimate and then he's in cognitive decline. And that's, I think, doing real damage. So obviously, the legislative process has not helped. I was really glad. The really strong part of Chait's piece was when he called out Senators Heidi Heitkamp, Blanche Lincoln, and Max Baucus, and even apparently Al Sharpton for lobbying to keep tax breaks for the richest people on the planet. That's awful. I think akin to that is the way the state and local tax deduction is currently structured because it's criminally stupid and gives rich people a huge tax cut

that they don't need. Part of the argument is basically like, look, the political incentives and primaries push people to extremes, to positions that would be unpopular in a general election, but that's been true for eternity. And it's true for both sides. So I like, I didn't buy the idea that like Elizabeth Warren's campaign was undone by the progressive foundation complex. I remember her having a one bad debate and then a bunch of people in Iowa decided she was unelectable because I don't know, probably reasons that were gendered and, um, you know, more about like trying to divine the intention of an Ohio swing voter than something that a think tank did i mean i think it's it is true that progressive activists and probably donors and

some politicians embraced a set of policies around defund the police decriminalizing border crossings abolish ice completely replacing private insurance with government insurance that a significant majority of voters did not like do not like currently and that's primarily voters without white voters without a college degree but also increasingly black and latino voters without a college degree as well and one of those voters with joe biden but it was that was my next one. I'm like, it is also true that Joe Biden and the majority of Democratic politicians specifically opposed those policies, won their races and were popular for the first six months of 2021. Right. So while, by the way, the right wing was attacking those policies and making a big deal and all that kind of stuff. And yet still,

Joe Biden was sitting at 57% approval in May. Democrats were leading the generic ballot for Congress at that point. And now when you ask people why they don't approve of Joe Biden and why they don't approve of Democrats in Congress, they overwhelmingly say it's because they haven't focused enough on fixing the economy and rising costs. That's what they say. So again, it's like there's parts of Chait's argument about the left that are true. But I just I agree with you, Tommy, that I just don't think that's what has affected his approval rating or his presidency or Democrats approval rating as well. There's a lot of like thoughtful analysis and interesting points. And then I thought in the totality was sort of like, and it's the fault of people who annoy me on Twitter. Well, right.

Yeah, there's always the, yeah, I mean, that's part of that. But I do think is, look, to Levitt's point, what the centrist did to build back better didn't just hurt the bill substantively, as you pointed out, but it was politically dumb. Yeah, absolutely. They changed the policies that were actually most popular with large majorities of voters across the country, across parties, across races. change the policies that were actually most popular with large majorities of voters across the country, across parties, across races, policies like, you know, taxing the rich and expanding Medicare, right? Super popular. The worst things that happened to that bill were because of those senators I mentioned who are lobbying against the tax provision.

And it's also worth pointing out, too, that, you know, too, that, you know, corporate centrism is unpopular. Some left-wing policies that Chait describes are, broadly speaking, unpopular. From the left, there is an effort to kind of move the Overton window to imagine a more humane and just society and trying to figure out a way to make a broader imaginative case that cuts through. From the right, you have people who are doing the bidding of donors or who are enamored of like 90s political conventional wisdom, who are cutting down things that will help people in a real way for cynical reasons that aren't even good politics. So I do think that there's a real false equivalence there. But fundamentally, you know, it doesn't ultimately end up being that complicated. We'll probably do better politically if our policies are popular and we pass them.

Yeah, just to be I think I've been overly critical of the piece. I think he's right that it is infuriating when you read articles that treat groups like the Chamber of Commerce like there's some sort of like good government group just sort of lobby in good faith. You know, like that that is a fair point. It's sort of this fetishization of moderation in the mainstream press. He's also right that I think the the arguments that the way to win is purely through a hypercharged base turnout model of politics is not really convincing, at least not on a presidential level. And a winning candidate is going to have to turn out the base and convince some swing voters. And we all should just get used to that and try to like move forward accordingly and stop debating this because I just, everyone just misreading the

Obama 2008 and 2012 results that we have to stop. Well, and I would say too, for progressives who, who deeply believe in those policies like defund or, or, or abolishing ice or whatever, you know, the answer doesn't have to be to give up the beliefs on those policies, but you do have to realize that there's a lot more work to be done to persuade enough people that those are good policies and not tell yourself that, that a majority of people just don't support these policies because they've been brainwashed like you got fucking work to do to persuade people and even if they have been brainwashed even if it's there is the media sucks and the right-wing propaganda machine is real but that is the reality we live in and the only way

around it is to go out there and persuade people that your ideas are good some of that requires maybe changing messaging. Some of it requires compromising on the actual policy. But it does require some work, you know. Okay, when we come back, we will talk to Professor Melissa Murray of the Strict Scrutiny Podcast about the Kyle Rittenhouse verdict. On Friday, 17-year-old Kyle Rittenhouse was acquitted on each of the five charges against him, including homicide. Back in August of 2020, Rittenhouse showed up in Kenosha, Wisconsin, with an AR-15-style rifle during protests that followed the shooting of Jacob Blake. Rittenhouse claimed he was trying to keep the streets safe and that he shot three people in self-defense. Right-wing pundits and politicians are now treating him as a hero. A lot of other people are worried that his acquittal will encourage more vigilante violence. And President

Biden said that while the verdict, quote, will leave many Americans feeling angry and concerned, myself included, we must acknowledge that the jury has spoken. So we wanted to get into how the jury came to this decision and where we go from here, which is why we're joined again by Melissa Murray from the Strict Scrutiny Podcast. Melissa, welcome back. Thanks for having me. So from everything I've read, it seems as if the prosecution had a difficult job, both because of the way the law was written and the evidence presented in this particular case. What do you think? I think that's right.

I think usually the prosecution is always arguing uphill in most of these cases because the prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt, and that's an incredibly high standard. So any kind of sliver of doubt would arguably work against the prosecution. And here, that was compounded by the fact that Kyle Rittenhouse was acting or said he was acting in self-defense. And that, too, presents the prosecution with an added burden. In order to defeat a self-defense defense, the prosecution would have to disprove that Kyle Rittenhouse was acting reasonably and would have

to make that burden of proof beyond a reasonable doubt as well. So not only did they have to prove his guilt when he presented that affirmative defense of self-defense, they had to disprove that beyond a reasonable doubt. Could you make a legal case for why Rittenhouse should have been convicted either of homicide or perhaps one of the lesser charges? So I think that is really the question that I think a lot of lawyers have after watching this. So it is true that there's an uphill climb for the prosecution to make out one of those homicide charges, especially the murder in the first degree charge that was first offered. But the fact that the judge allowed the jury to be instructed on lesser included offenses, including offenses that included homicides that did not require intent, but rather required an entirely different state of mind like recklessness, which is simply, you know, you know that there is danger and you do it anyway.

You're not meaning to hurt anyone, but you're just acting recklessly. And the jury didn't go for that either. I think many people felt that the inclusion of those lesser included offenses, including recklessly, recklessly endangering those around you, would have allowed the jury some kind of out to provide some kind of conviction, but not necessarily a conviction on one of the more serious charges. hook, line, and sinker for this idea that Kyle Rittenhouse was there in Kenosha brandishing an AR-15, and he was doing it in a way that was simply responding to these perceived threats by these other individuals, two of whom he managed to kill. You think that's the fault of the prosecutors for not zeroing in on those lesser charges, or is that just they tried and the jury just decided not to go there? Well, I mean, they did get those included in the jury instructions. I mean, I think it's always a really difficult decision for prosecutors to decide what to charge. And, you know, this is all Monday morning quarterbacking to some extent. And, you know, if you just recall

those moments in the aftermath of Kyle Rittenhouse's killing of those two men and the Jacob Blake shooting in Kenosha at the time, the feeling was so pitched and charged at that point. But I think it would have been very difficult for a prosecutor to walk away from a first-degree murder charge in that environment and to choose something less. I mean, you know, we're thinking about this and it's almost, you know, a year later, but in that moment, it was really this sort of deep fever pitch of anxiety and real, a real desire to see justice served. And I think that's why they pursued that difficult felony charge. But again, the fact that those lesser included offenses were in there could have given the jury that was inclined to convict an option to do so without really having to convict on the most serious charge. Love it. We've seen a lot of Republicans

celebrate Rittenhouse as some kind of a hero. He's been offered internships by Matt Gaetz, Madison Cawthorn, Paul Gosar. What a crew. Fox News Hugh Hewitt show contributor Kurt Schlichter tweeted the following in response to those who are upset with the verdict, quote, Your pain delights me. Kyle Rittenhouse killed two leftist cat spas and bisected the bicep of another, and there's nothing you can do about it. What do you make of these very normal reactions? Charming. Yeah, really charming. Yeah. I mean, look, why do people say these things? Why does a kid believe he ought to guard a fucking car dealership in Kenosha, even though he makes the situation more dangerous by his presence? It's because of the media he

consumes. These people are part of that media. He was deputized by Tucker Carlson. And we get into these debates over symbolic examples. But these are real people that died. And right-wing media figures and politicians, they don't care that people died. They don't even care that they drove this kid into a situation in which he killed people. A living vigilante is useful to them. A dead vigilante is useful to them, right? Kyle Rittenhouse gets to be a hero. Like Ashley Babbitt gets to be a martyr.

And the fact that real people will be hurt, that real people will be impacted doesn't really matter. Look, it's the same logic. Every night on Fox News, a vaccinated workforce led by vaccinated anchors spreads vaccine misinformation. Like, of course, they don't care if people live or die. They feed their biggest fans, their bodies of their biggest fans into the like mill, the gristmill of their content factory for for for outrage, for grievance. They do not care. So of course, they'll celebrate this guy as a hero. They do not care if this leads to more people taking it upon themselves to go out there and be vigilantes to make dangerous situations worse. Because that's it. That's all I have to say. I mean, I think it's a lot to say. I mean,

this really, I think, suggests not just the spate of disinformation and misinformation that has been consumed, but just the coarsening of our discourse. I mean, you're exactly right. Like two people died. Their families are mourning. Their families are mourning this verdict, which to them does not feel like justice. And you're literally dancing on their graves. And, you know, I remember the right after the verdict was read, you know, Fox News got an interview with Kyle Rittenhouse, highly unorthodox for a defendant just beating a serious rap to then talk to the media in the way that he did. And again, this is about self-defense and the Second Amendment. This is actually about what happened, and it was a tragedy, as you say, on all sides. It's also worth noting, John, you mentioned that he is a kid who has consumed a steady diet, perhaps, of right-wing

propaganda. I also think that worked in his favor here, the idea that he was painted as, whether it was by right-wing media or whoever else, as a child, as someone who could go into a situation as volatile as this one sort of unwittingly and, you know, be provocative and not even understand how provocative he was being and then have all of this happening. And then I think his testimony on the stand where he, you know, sort of blubbered incoherently for several minutes, I think fed into this idea that this is someone who is acting reasonably for a teenager who is without the sort of broader maturity and capacity to really understand how unusual and provocative what he did actually was in that moment. And I think all of that played on the jury. And I think for those of us who are watching this, mothers of

African-American boys, I think you can't help but notice like not every child in this country gets the benefit of being a 17-year-old who does dumb stuff. And I think that was to me at least the most salient lesson of this trial, like who gets to be a child in this country and who is constantly treated as an adult. Yeah. I mean, I think, look, this is a complicated case and there were a lot of complicated details that sort of came out through the course of the trial and through some of the reporting. But I think it's very easy for those on the right to have said, yeah, this was decided correctly on the merits legally, but it's a tragedy. And let's all move on from this tragedy. That's not what they did. The jury has spoken and they spoke to something that from this tragedy. That's not what they did. The jury has spoken

and they spoke to something that is a tragedy for everyone involved. And but I mean, again, the coarsening of our discourse. And the reason they don't view it as a tragedy is because they this is the society they are quite comfortable building. Right. Like if if what we have here is a situation in which because the guns themselves are illegal, that you can have a circumstance in which people descend on a place, bring incredibly dangerous weapons to that place. Anyone with a weapon is a threat. Anyone with a weapon can feel threatened. Three people can be shot. Two people can be dead. And no crime was committed. two people can be dead and no crime was committed, that is a lawless place. That's not Kenosha anymore. That's Squid Game, right? That's what we're heading towards. And I do think that sometimes

in our kind of political conversation, a lot of legal experts on television will be very descriptive about the law, right? About what the law says, what the law doesn't say. But you step back and it's like, well, this is not the society that we want. This is not the kind of world we want to live in. But that's the irony. It's the resort to law for the promotion of justifying what is essentially lawless behavior, right? Say what you will about the prosecution and the uphill battle.

I mean, this was a situation where the defense attorneys knew exactly what they had to do to open the door for doubt, to open the door for reasonable doubt, to make an affirmative defense of self-defense. And, you know, and I think the circumstances are really complicated. Like, you know, there were the victims on the one hand sort of wrestling with the gun. That could be taken as a provocative position. And apparently that was actually something the they were trying to wrestle with. But again, you have the laws like the law of self-defense working in favor of a situation that was ultimately unbound by law in this really profound way. So we're still waiting for a verdict in another case involving vigilante violence, where three Georgia men are accused of murdering Ahmaud Arbery, a 25-year-old unarmed black man who they claim they chased and killed because they thought he committed burglaries. Melissa, how are the facts of that case different? And do you expect a different verdict? So I do think they are a little different. One, because Ahmaud Arbery, the individual

who was killed, was unarmed. He was jogging through a neighborhood. It is true he stopped to look at an unoccupied house that was in the process of being built in Georgia. One does not necessarily have to take anything from a home in order for it to be a burglary. It's simply the entrance into a dwelling place of another. But again, the facts seem a little broader as to whether or not there was a felony in progress that these individuals emboldened by a citizen's arrest statute that was on the books at the time has been subsequently repealed by the Georgia legislature would have been obliged to address. They never actually declared to him that he was that they were conducting a citizen's arrest and that he was under a citizen's arrest. So, you know, it could be the case that the jury actually views this as kind of a makeshift excuse that was made up after the fact that this isn't exactly what they were doing. In either way, the idea that you have these three guys rolling around in a pickup truck

chasing a black man in the streets of Georgia trying to execute a citizen's arrest may strike some as different, perhaps more extreme than the circumstances of Kyle Rittenhouse, the armed teenager who's there to defend a car dealership in Kenosha, Wisconsin. Again, I think you may get a quite different outcome here. I think the prosecutor in this case has been absolutely phenomenal. I mean, she's really repeatedly laid it on about how absolutely unusual this was, that if they were convinced that a felony was in progress, that's likely about assumptions they are making about Ahmaud Arbery. And what are those assumptions grounded in? And I think it's a very smart tactic, emphasizing over and over again, like that the citizen's arrest defense won't work if there is actually no felony here and

probably doesn't work because they're not telling him that that's what they're doing there. Instead, this is really about a modern day lynching. And that is the picture I think she is weaving for the jury. So I think there might be a quite different response here, but that may have as much to do with the places in which these two things unfolded, a place where racial violence has a storied history, which is not to say that Kenosha doesn't have a history of racialized violence, but I think it is thicker and more available and accessible to the jury in Georgia as part of their very recent past. I mean, from a legal standpoint, I'm wondering what can be done to prevent vigilante violence here, because it does seem, as Lovett was pointing out, that you

have this intersection of all of these open carry laws in all of these states with the self-defense laws, which basically say it's OK to shoot if you feel threatened somehow. So you have all these people walking around with guns, brandishing weapons in crowds, shooting people saying, oh, well, I thought that it was, I felt threatened somehow. No, I mean, I think that's exactly right. I mean, it is a toxic brew of a proliferation of open carry laws. And I think that is worth discussing. 10, 20 years ago, we did not have as many jurisdictions that had open carry laws as we do now. So that is something that has proliferated over the course of the last 20 years, in large part due to the advocacy of the National Rifle Association. And we have them jutting up against the existing self-defense laws, as well as the self-defense add-ons that

the National Rifle Association has advocated quite successfully and lobbied for. And so these are the stand-your-ground add-ons that basically say you don't have a duty to retreat, you don't have a duty to back away. If you're being provoked in some way, then that's all you need. And again, the instructions in the Kyle Rittenhouse case were really instructive, if you will. I mean, they had to look at this through the lens of 17-year-old Kyle Rittenhouse. What would he have believed to be reasonable under the circumstances? So, I mean, put yourself in the position of this person. And when you do that, I think almost anyone could say like, you know, I don't know how I would respond there, but maybe it's reasonable that, you know, this person thought that deadly force was necessary

in these circumstances. So it is both the fact of the existing self-defense laws coupled with the expansiveness of open carry laws, the add-ons to the existing self-defense statute. And then you layer on the citizen's arrest statute in Georgia, and some of these still exist on the books. And yes, of course you have a vigilante culture. And worth noting, the proliferation of open carry laws is only likely to get worse. The Supreme Court is currently considering a case right now. It's called NYSERPA versus Bruin, and it's about New York's law that gives the state the discretion to deny or to grant certain individuals the opportunity to have a concealed

carry permit. It's very much like the concealed carry laws in many jurisdictions. And based on oral arguments just last month, it seems like the court is amenable to striking down New York's law and emboldening those to create more laws that basically enfranchise Second Amendment rights to the nth degree. And there we are. It's also, you know, so much of this is about like when like a fantasy or a myth that leads to these laws meeting reality. That's what happens when Rittenhouse ends up in this circumstance. That's what happens when these self-defense laws meet a real complicated situation like this one, because it is a circumstance in which you could just as easily argue that if they had gotten the gun away from Kyle Rittenhouse and shot Kyle Rittenhouse, they would have been acting under self-defense too. So they have, we have built a, a framework in which people can shoot each other dead in the

streets and there is no crime committed. Like that is, that is an incredible danger that is going to continue to be with us for a very long time. Well, I mean, later on, not just that danger, but like that all of this is happening in this sort of toxic stew of racial division and just injustice in this country. I mean, yes, Kyle Rittenhouse killed two white men, but it's hard to sort of divorce what happened from the broader racial unrest that was unfolding in Kenosha that night. Ahmaud Arbery. I mean, once you see someone as the other, once you see someone as a threat and you are emboldened and you have these laws that allow you to be emboldened to carry a weapon, I mean, that to me is a really toxic, toxic mix.

I mean, I think it is the, absolutely, it's the backdrop is of the racial violence and broader political violence that we've seen over the last several years as well. I think you can draw a straight line from January 6th to what's going on here. I mean, love it. Recent polls show only a third of Republicans think that bringing a gun to a protest is very inappropriate. A third of Republicans in a recent poll also said that, quote, violence might be justified to save our country. It feels to me like the kind of violence we're talking about here is ultimately more of a political challenge than a legal one. Yeah, I mean, of course. I mean, it's more than even a political challenge. It is a cultural challenge, right? These are not,

these are political views. These are also cultural views. These are the views of the kind of society we want to live in. It is now a mainstream Republican view, right? Like this is not fringe. It's the mainstream Republican view that Kyle Rittenhouse ought to be allowed to carry a weapon like this one, the one he carried through city streets. And at the same time that police ought to be militarized and brutal in dealing with protests because this sort of growing authoritarian impulse basically is fully co-opted the Republican Party. And it doesn't accept the authority of the state except when it's being used by right wing agents against people it views as their opponents in some way. And that it can never be used. It can never be fairly used against against the right. That's why you see that. That's why you see these sort of the claim that every kind of rule against

covid, any kind of covid safety is some kind of a kind of tyranny. That's why every kind of climate rule or any kind of poverty ameliation is is socialism. That's why every kind of climate rule or any kind of poverty humiliation is socialism. That is why they don't accept the results of elections. It is about power. And yeah, that is more than a legal question. Kyle Rittenhouse is convicted. He's no longer just a kind of victorious hero. He's a martyr to the cause. The same trend will continue. The same effort to kind of feed more people into this sort. The same trend will continue. The same effort to kind of feed more people into this sort of vigilante process will continue. So, yes, it is a broad political problem of a kind of fascistic right wing movement of this country that has taken hold of one of our

two political parties. That's where we're at. Is this the end of democracy? I mean, that's sort of what I was getting at in this final question here, because just on the most basic level, it is what some of these right-wing pundits and some of these politicians are saying is, like, it's okay to hurt people that you don't like now. It's okay to hurt your political enemies, right? That they're not just wrong, but that they're dangerous and that they're a threat and that they're such a threat that it's okay to cause them physical harm. Like that, that's, that's what we're talking beyond, beyond all the legal specifics of the case. That is what the, the post-verdict celebration of Kyle Rittenhouse is, is, is really about because you hear a lot of Republicans be like, oh, these liberals had all the details of the case wrong and this and the loss of this. And it's like, yeah, yeah, but that's not what you're all doing.

You're all wanting to give him internships. And you're saying it's great that he killed some leftists. And I keep thinking about that Turning Point USA conference where the kid stands up at the end and he says, yeah, but when do we get to use the guns? And there's this moment where Charlie Kirk is like, oh, well, don't say that. But it wasn't because like, don't say that because it's wrong to say. Don't say that because the camera is the cameras on. Yeah, because we're

going to get in trouble. And like, you're right. Like, I don't think I mean, I don't know whether it's the end of democracy or not. But I think that what those of us who want to defend democracy have to do is to call it out and talk about it for the emergency that it is. I totally agree with, I mean, I teach constitutional law and, you know, at the beginning of the year, the first thing that had happened was the January 6th insurrection. And I was like, this is a constitutional crisis. Like, no, that did not stop the election. It did not, it did not stop the peaceful transfer of power. But the fact that this could happen, like, you know, my parents are immigrants. This is stuff that did not happen in the United States. This is stuff that they left other countries for.

And, you know, it's happening here in the United States. And the idea of citizens arming themselves to supplement the police when the police are being too casual with protesters, when the police aren't being fascist enough. I mean, that's not anything I thought I would see in my lifetime in this country. It feels like a really dark place. It feels like a really, really dark moment. There's this, there's a scene in the movie Alien Resurrection. This is the fourth film in the series. This is when Sigourney Weaver has come back from the dead to fight the aliens once again. Hence Resurrection.

Hence Resurrection. And she's walking down a spaceship's hallway with Ron Perlman. And he goes, hey, Ripley, I heard you ran into these things before. And she's like, yeah, yeah, I did. And then Ron Perlman says, wow, man, so what did you do? And she says, I died. I was really hoping that you were, that we were getting to an anecdote that I could be like, well,

I'm glad that we can leave it on that high note. Thanks for joining us, but no, no, I know. Ron Perlman is always a high note. I say, I mean, he's highly underrated as an actor, sons of anarchy, the beast. Like he's he's highly underrated as an actor, Sons of Anarchy, The Beast. He's amazing. He's amazing. He's so good. I think what we are dealing with, right, is a right-wing movement that will use institutions when it is useful. They will discard them when it is useful. And we have to find a way to fight that kind of politics.

Obviously, we're never going to burn the Capitol down. We're not going to attack institutions in the same way. But I think it argues for having kind of a normal politics strategy and one that is honest about how this is a process taking place outside the bounds of our democracy and enemy from without. And I think one aspect of it that we have to stop doing is I think we have to stop begging kind of corporate interest and mainstream media that have such a personal financial cultural stake in not being honest about this problem. We have to stop begging them to let the world radicalize them. We have to stop begging them and beseeching them to see it the same way. And we need to come up with strategies ourself from outside of these institutions to attack the propaganda apparatus, to attack the way in which Facebook and Fox News kind of work in concert to radicalize people on

a grand scale. And we have to start being honest about just how big a threat it is. And I think right now the truth is we aren't, right? We just aren't. But yeah, no, I agree with that. But I think that fundamentally, the only option here is to persuade a majority of our fellow citizens to defeat this kind of politics at the ballot box. That's it. That really is. And I know that can be like, that's really frustrating to hear because everyone's like, well, I just voted and then I voted and this happened. But it's like you can protest also is incredibly important protest voting. But like when you talk about strategy, what other strategy is there besides like we can yell, but we have to

persuade these corporations not to do that. We have to persuade these people not to do this. Like that's sort of that's what it comes down to if we want to live in a democracy. So another thing I think is worth talking about, I mean, we sort of touched on it, but like so much of this grievance politics is at its root, I think, about racial grievance, like I'm losing my country, like, you know, like redistribution, I'm losing my country. And some of the folks who are most aggrieved and sort of signing on to this, you know, Republican conservative agenda do so, I guess what looks like intra-racial solidarity, but it is a kind of solidarity that comes at the expense of socioeconomic solidarity because what they're

doing doesn't actually benefit those who are socioeconomically hurting, the people who actually have real economic grievance. And my former Berkeley colleague, Ian Haney-Lopez, has written this terrific book, Dog Whistle Politics, where it's fantastic. And I think it really lays this out. Like, I mean, this is the racial dog whistling is what is dividing the sort of class solidarity that could actually create a more progressive coalition. And it is being divided because of this kind of racialized grievance that they are capitalizing on. And, you know, And again, I think it is the sort of opportunistic co-opting of certain constituencies that John was talking about.

Well, and as Ian points out too, and the only way out of that is to call out the dog whistling. Yeah, to say it over and over. To call out the strategy of those who are trying to divide people by race and class. Well, I mean, and that goes, you know, why was Kyle Rittenhouse in Kenosha not to defend, you know, that car dealership, but because the idea that there were minorities in Kenosha who were acting out and were going to loot and going to riot and there's going to be property destruction. That's why he was there. Why was Ahmaud Arbery stopped? Why was this quote unquote citizen's arrest undertaken? Because he was a black man who Ahmaud Arbery stopped? Why was this quote unquote citizens arrest undertaken?

Because he was a black man who looked like he wasn't supposed to be where he was. Yeah, that's right. Well, we have a lot of work to do. We'll end on that note. Melissa Murray, I'm sorry my alien resurrection story didn't land in a hopeful, more hopeful place. I'm just so glad you said it. I'm just so glad you said it. I hang out with Kate Shaw, who doesn't watch any television, so I'm just so excited to talk movies with you all. This is great. Thanks, Melissa. Thanks for having us, as always. Come back again soon. All right. Before we go, we should note that one other much talked about event took place on Friday. President Joe Biden temporarily transferred power to Vice President Kamala Harris for 85 minutes

while he was under anesthesia for a routine colonoscopy. Or as the Gawker headline read, first woman president. Nation celebrates President Kamala Harris as Joe Biden gets ass probes. And of course, here's how Fox News handled it. For 85 minutes today, while doctors examined the Biden pipeline, Kamala Harris officially became the first female president of the United States. And over at CNN, it was like an 85-minute thrill up their leg. For one hour and 25 minutes today, Kamala Harris became the first woman with presidential power. She is the first woman to receive the presidential power. So a history-making day

also here at the White House. As a woman, do you feel any sort of pride at all about this glass ceiling being shattered, even though it was shattered because the president was having his colon checked? I like that that was a clip within a clip. First of all, Tommy, how unusual is this transfer of power? It's not that unusual. It's happened a couple of times. George Bush went under for colonoscopies. They were, you know, it's part of the power under Section 3 of the 25th Amendment. You can send a letter to the Speaker and the Senate pro tem, temporarily transfer power.

Whenever the procedure is done, send another letter, transfer it back. Did you guys know that Trump reportedly lied about getting a colonoscopy and refused to transfer power to Pence? Remember that secret trip to Walter Reed that everyone's freaking out about? His old press secretary secretary says it was a colonoscopy but he didn't want to get made fun of on tv so he didn't tell anybody which is just something we should always keep in mind perfect is occam's razor for trump is like he just doesn't want to get mocked right like he's not sometimes it's just the stupidest fucking explanation yeah there was so many conspiracies twitter thought he was burning the the last copy of the pee tape

or something like that. Yeah, exactly. It turned out he just was getting a colonoscopy and then wanted to lie about it because he didn't want to be embarrassed, which is like the most

because he's a fucking thin-skinned man. When Trump had his colonoscopy, they found two polyps and Secretary of State Mike Pompeo. I have one more. You know who's laughing out loud

listening to that joke on his podcast, right? Who? Ben Rhodes. Ben Rhodes is loving that joke right now. I have one more. You know who's laughing out loud listening to that joke on his podcast right now? Who? Ben Rhodes. Ben Rhodes is loving that joke right now. I have one more. Are you ready?

Here's my other joke. Joe Biden loves Amtrak so much he even lets his doctors run train. Oh, boy. Oh, wow. Oh, wow. A lot of head palms,

face palms in the studio here. I'm so sorry. Did you know that Grover Cleveland got surgery in 1893 to remove a tumor and he did it secretly on a friend's yacht and kept it from the press no what a time didn't know wait so a bunch of people on twitter were saying what are you talking about what about edith wilson which we should know because we have co-produced a podcast a series called edith yes edith wilson

edith wilson usurped the powers of the presidency but she was never legally the legal way yeah the legal way which is what something that's why that's why we're celebrating yeah i mean i just think that so far it was like what a historic moment i'm like i think that kamala harris So if I was like, what a historic moment. I'm like, I think that Kamala Harris wants a historic moment. That's a bit different than the 85 minutes that she wants to become. Yeah. As she should. Yeah.

You try having a finger in your butt without ceding some authority. You know what I mean? It's not possible. Oh, my God. What? The lesson. Yeah. I think a couple lessons here.

One, people on TV always want to make the moment they're experiencing on TV seem more important than it was. Two, Trump's candidacy revealed a lot of holes in our system. And one is how little we demand from them in terms of transparency around their health, right? I mean, remember Dr. Bornstein, the Trump doctor who wrote the letter saying he was the healthiest individual ever elected? These are just some of the holes we need to shine a light down, all right, to expose what's going on. Tommy, you did it. I did. Also, clean bill of health for Biden, which is something that seems important.

I have to say, actually, the doctor's report answered a question I had, which is why he's constantly clearing his throat. And as someone who struggles with this as well, I learned something. He apparently has acid reflux, which means he's like constantly coughing. But it's a pretty innocent explanation. Well, there you go. Get some Pepsod. Tommy's knocking down

conspiracies left and right. Left and right over here with my man Grover Cleveland. Lovett's just making jokes. Making jokes. Immature. Making jokes about butts. It's about his butt stuff.

It's butt stuff. Well, that's all the time we have for today because this is a podcast and there's no time limit, but I'm stopping it here. Good. Thank you to Melissa Murray for joining us. And Dan and I will be out Thursday for a Thanksgiving mailbag.

It's because Secretary of State Mike Pompeo was just like up his ass. So send us your questions. You can send it to us on Twitter, on Instagram. Yeah, send us some questions. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our senior producer is Andy Gardner-Bernstein. Our producer is Haley Muse, and Olivia Martinez is our associate producer.

It's mixed and edited by Andrew Chadwick. Kyle Seglin is our sound engineer. Thanks to Tanya Somanator, Sandy Gerrard, Hallie Kiefer, Madison Holman, and Justine Howe for production support. And to our digital team, Elijah Cohn, Phoebe Bradford, Milo Kim, and Amelia Montu. Our episodes

are uploaded as videos at youtube.com slash crookedmedia.