Pod Save America - "Tiny, decent things."

Episode Date: June 16, 2017

The aftermath of the Alexandria shooting, the investigation of the President, and the Democrats' plan to stop health care. Then, former White House lawyer Danielle Gray joins Jon, Dan, and Tommy to talk about the travel ban, and Judge Tim Black discusses his ruling in the same-sex marriage case, Obergefell v. Hodges.

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. I'm Tommy Vitor. We are coming at you live from Portland, Maine for the big wedding weekend here. Dan is actually in Logan Airport in Boston. Dan, I'm glad you landed on time. Good for United. Yeah, congrats United. You really delivered at a key moment in our lives. They actually dragged Dan off the plane to ensure he was on time. They turned that story

nice. I was going to use that joke if I was late. Okay, good. Sorry, United, you got the drag joke anyway. Today, we're welcoming back to the pod former Obama cabinet secretary, White House lawyer, and former Supreme Court clerk, Danielle Gray. Danielle will be talking to us about the emoluments cases filed against Trump and the fate of his travel ban. And in keeping with our legal theme, we'll be talking later to the federal judge who ruled in the gay marriage case that made its way to the Supreme Court, Judge Tim Black. How'd you land that guess? It was quite something.

Complicated. Housekeeping. Who do we have on Positive of the World this week? um housekeeping who do we have on positive the world this week uh well we had uh u.s senator tim kane uh he was on the show on wednesday we talked all about the legal framework for the war you know it was it's a it's an interesting interview because we never ever ever talk about uh the legal basis for these things it was also a nice reminder that like there's really good people that are elected officials and work in politics tim kane is one of them good guy And he's been working on this stuff for a long time, and he cares deeply. His son's a Marine. He's been working on this for a while.

So check it out. That's excellent. And tomorrow, Anna Marie Cox is with friends like these. She's going to be talking to Anil Dash and her dad. Cool. Keep it in the family this week. Or keep it in the family this week. So check out that episode.

Love it, I believe. Recorded Love It or Leave It last night, Wednesday night. I can't keep track of it. In Los Angeles. I have no idea when that's going to drop, but obviously pay attention to Love It or Leave It. Okay. And then next week, guys, I'm going to be gone.

I'm going to be gone next Monday, next Thursday, and the following Monday on our honeymoon, but the pod will go on. The pod goes on. With Dan and Tommy and Love It. Lots of big guests next week. We're going to tell you who they are soon. So they don't cancel on us. We have a potential very exciting Thursday guest host.

So we'll have more on that next week. Awesome. Awesome. I will be listening from my honeymoon, right? Yeah. Do not offer a location. No. Don't listen.

Okay. So let's start with the horrific shooting yesterday. So yesterday, a gunman opened fire at Republicans practicing for the congressional baseball game in Alexandria, Virginia, wounding four people, including Steve Scalise, who's the majority whip in the House. Two members of Mr. Scalise's security detail, Crystal Greiner and David Bailey, were wounded, as well as former congressional staff member Matt Mika. Representative Scalise suffered extensive injuries, including internal bleeding, and he's still in critical condition right now. He's undergoing additional surgery, so we are certainly keeping him in our thoughts

and prayers. The Capitol Police were absolutely heroic in chasing down the gunmen and preventing even more violence, so thank God for them. As for the gunman himself, he had a long history of domestic violence and violent antisocial behavior, and it appears that Trump's election put him over the edge. He apparently knocked on doors for Bernie Sanders. He posted all kinds of anti-trump shit on social media um so i was not on twitter a lot yesterday i saw the news break in the morning

and then you know we were doing wedding preparations all day and uh then sort of last night i came back to it and it's just like what yeah so like i want to talk about both the there was a set of admirable sensible sensible reactions to this horrible incident. And then we should spend a few minutes on some of the more revolting reactions. I do think as far as Democratic and Republican politicians, especially members of the House, a lot of them expressed unity. So, I guess that's good. What did you guys think? Tommy, what were your thoughts on the whole thing?

Yeah, I spent way too much time in an airplane reading about this yesterday, and it got me very frustrated. So forgive me if I go long. So obviously, it's a horrific act. There's no excuse for violence of any sort. We should condemn this as Democrats as human beings. It's a good thing that the response has been unity. Obviously, that would be good for the rhetoric on both sides to calm down a little bit. But that's not a solution to the problem of gun violence and mass shootings. A bipartisan baseball game is nice. It's nice symbolism. It'll raise money for charity, but it's not going to fix anything. We don't elect lawmakers to tell us to be nice. We elect them to make laws. And so I was talking to Cody Keenan, Obama's speechwriter after John,

about how many times Obama had to address the nation after a mass shooting. And we couldn't get an exact count. It's like 14 or 15. It's like Fort Hood, Tucson, Aurora, Wisconsin, Sandy Hook, Navy Yard, Fort Hood again, Kansas City Jewish Community Center, Charleston, Chattanooga, San Bernardino, Kalamazoo, Orlando. So my message is do your job. Do something that would prevent thousands of deaths with some gun control legislation. Because you have 12,000 homicides a year. You have 50 women shot to death by an intimate partner each month. And it's like, I don't want calls for unity that are kind of saccharine and get drowned out in a few weeks to drown out the conversation about policies that might actually save lives because calling for unity is easy. But when you start

pushing for real gun control measures, background checks, denying firearms to domestic abusers, you're accused of politicizing a tragedy. I'm so fucking sick of hearing that. I want Congress to do something that actually keeps this from happening again because we have a gun homicide rate in the United States is 25 times the average of every other developed country. And there's no rational reason for that.

There's no reason that should be. Yeah. And I mean, at the very least, the guy has a record of domestic violence. You'd think we'd be able to keep guns out. Like if you committed domestic violence, you don't get a gun. And that's one of the things

that's always tied to these mass shooters. Like domestic violence is one of the leading indicators that you might take these acts. More so than political ideology on either side. Dan, what do you think? Well, I obviously agree with all of that. I think there is something, I mean, what happened was horrendous and scary.

You know, for people who've worked in Capitol Hill or wandered around the halls there, you know, there have been a number of, there have been several incidents over the last, you know, 10, 15 years targeted at the Capitol or at members of Congress. 15 years targeted at the Capitol or at members of Congress. And there probably is something slightly more alarming to us when it's our political leaders who are targeted, if that is what this turns out to be. I don't think we know enough to know that exactly the background here, but if that's what it is, that's more alarming. But, and we can all admit political rhetoric, rhetoric gets overheated, we should all get along. We should sit next to Republicans at the State of the Union, you know, kumbaya. But, you know, I was in San Francisco yesterday.

And at the same time, almost the same time that this happened yesterday morning, someone walked into a UPS office not too far from my house or from a lot of the big tech companies that are here and shot it up and killed a number of people. And that had nothing to do with political rhetoric. It had to do with the whole list of other things. And so if we're going to talk about political rhetoric, we should talk about the other things, too. You know, first and foremost comes guns. But, you know, we're always very hard on Paul Ryan on this podcast and on Twitter and me in particular. You know, I thought he and Nancy Pelosi did a good job in calling for unity. And, you know, we have to say, I'm sure that the members of Congress are actually shook by this, both, you know, scared. And, you know, when it's someone you know, it hits home. It's just the hope would be you get a different policy outcome. But I'm not

particularly hopeful about that. Yeah, I mean, look, I thought that, like you said, Paul Ryan, Nancy Pelosi, people on both sides of the aisle said the right thing donald trump's statement was good right like thank god for that you know because that could have gone in any number of different directions um but these same people who are always fucking causing trouble in the right-wing media like alex jones and sean hannity and most of the hosts on fucking fox news yesterday when they were saying like this was like left-wing media that was radicalizing people alex jones said cnn endorsed the attack info wars it was media inspired donald trump jr was blaming it on elites and blah blah blah like it's just like look violent people and violent

rhetoric exist on the left just as it does on the right but the idea that bernie sanders or the rachel maddow show or like any of this liberal media stuff like like rhetoric gets heated but these people are not inspiring fucking violence yeah like come on like yeah it's so frustrating like alex jones today said what happens wolfitzer, when somebody pumps rounds into your little pumpkin head and says it's just political? I'm not the one that's calling for violence. You're going to get wrecked bad. There are a lot of people like Santa Claus been making a list, been checking it twice about who's been naughty and who's been nice. And if you kick off Civil War II, baby, you'll think Lexington and Concord was a cakewalk.

Sounds to me like he is looking for an excuse. That is someone with millions of listeners every week who is being interviewed by Megyn Kelly on NBC this Sunday. And by the way, he's not really like, who knows if he's a tough guy and really wants to fight. What we do know is that this is his business model. He needs a boogeyman to scare people, to anger them, to get listeners, to get them to buy his survival packs and whatever shitty hawks. So there we go. But does he sell survival packs? Oh, yeah, man. Is it just filled with Twinkies? I'm sure. You know, I'd like to say that Pod Save

America had a survival pack advertiser come to us and we said no. We said that was no, we're not. We said that was weird. Just send us more bloopers. I mean, you said no. You said no, I said yes. But that's right. Tommy's very careful with the advertisers. I mean, also, like Newt Gingrich today essentially accused the intel community of staging a coup against Donald Trump. Like, come on, guys. Newt Gingrich is the world's biggest hypocrite. He is calling Bob Mueller the tip of the deep state spear trying to tape down the Trump administration. But in the 90s, he was savaging the Clinton administration when they defended or they criticized the Ken Starr investigation.

Like, just a real quick note about the FBI. It's mostly FBI agents are mostly like white guys that are older that are into law enforcement. That is like the prototypical Republican, right? Like Bob Mueller fought in Vietnam. He was a Marine. Like these are pretty conservative individuals to say that this is some sort of liberal group out to get Donald Trump is crazy. It's so ridiculous. There's like, and the hypocrisy just knows no bounds on this. I don't know, Dan, what did you think of the right wing media reaction? Well, especially Newt, who tweeted the day Mueller was picked that he was a great pick, and then tweeted yesterday that he was leading the tip of the deep state spear,

which is a hard thing to say. I mean, the whole thing is ridiculous. I thought the two most irresponsible things that happened, beyond Alex Jones, who I just put in a separate category of irresponsibility, was Kellyanne Conway, who is not just a right-wing media person. She's a senior government official, holds the highest non-elected rank you can have in the government. And she was retweeting rumors, unconfirmed rumors about the shooting while the law enforcement was still figuring it out, which you absolutely cannot do. And doing it to

stoke partisan anger. And then Donald Trump's son, Fredo, or Donald Trump Jr., whatever you want to call him, he blamed the shooting on Kathy Griffin and the Shakespeare in the Park production that included an assassination of a character like Donald Trump. And it's like, can we just take a breath for five minutes and not be ridiculous about this and try to do the right thing? That's the thing we could have gone through yesterday in another world with everyone just stopping at the condemnation of the violence, saying that it's a good moment for everyone to tone down rhetoric and really think about what you're saying and move on from there. We could have done that, but we can't because we have a group of people in the right wing media who are intent on making sure that everyone, you know, hates the left. Yeah, I mean, we used to we used to feel like anything we said out of the White House, we had a responsibility to get right. And there was quite a cost to getting it wrong. If you look

back at Benghazi, if you look back at the early details about even the bin Laden operation, like we took a lot of shit from getting some basic facts wrong that we had to correct. There's just no cost for that anymore with Kellyanne Conway or Donald Trump Jr. has anointed himself the rapid response director at the White House. I think the thing that is different that felt different about this is in all of the other tragedies and mass shootings that we dealt with when we were in the White House. The right like the far the fringe of the right-wing media did their thing. Drudge, Alex Jones, Hannity. But most Republicans, either in the media or in Congress, did the right thing at least

in the moment. Maybe they obviously didn't do the policy outcomes we want, but they behaved like dignified, patriotic Americans. What is different now is the far right fringe is sitting in the White House, or that they have, or if people like Alec Jones have been given the imprimatur of legitimacy by the White House. And so they're now at the center of power. And that's, you can't, it's much harder to dismiss now. Like, I wouldn't have cared what Kellyanne Conway said about this, when she was just hoping Laura Ingram canceled on a fox hit so she could go

um but now that she's a senior advisor the white house it matters yep yeah or fucking ann coulter who was saying like the resistance uh starts opening fire right she was like connecting the fire to the resistance movement itself which is just okay it's just crazy it's just crazy but uh you know i i do think that like there was enough responsible politicians that didn't take it there on both sides, which was which was good to see. But, you know, like you said, Tommy, let's see what happens on guns. a conservative Republican from Pennsylvania and a guy who literally shot the Affordable Care Act in an ad couldn't get background checks

passed through the Senate, then I don't know what kind of political coalition we can get to do that. We're in Patriot's country. Bill Belichick, do your job. Do something to protect us. And if you can't cheat, is that the Bill Belichick thing? That's hurtful. Dan, you can't say that. We're in New England right now.

We will literally get sanctioned if you say that shit. You're in New England. You're in Boston. You're in Logan Airport. You're probably next to a big foam Patriots finger. Don't you dare go to Dunkin' Donuts after this. Yeah, I'm going to walk out of here and some dude in a Larry Bird jersey looks like Mark Wahlberg is going to punch me in the mouth.

Yeah. And you're going to be like, I thought it was live to tape. And that will have been my brother. I'll be like, what's up, House of Payne? So this is the second biggest story from yesterday, what I'm about to say. Washington Post last night reports that President Trump is personally under investigation by special counsel. Reported that Donald Trump is now personally under investigation by special counsel Bob Mueller for possible obstruction of justice. Also, investigators are looking for evidence of potential financial crimes among Trump associates.

Oops. So how about that? Now, Dan, you tweeted this during Comey's hearing, but Comey basically said this, confirmed this during his testimony when he said that, I'm sure, he said, quote, I'm sure the special counsel will be looking into obstruction of justice. Now we have DOJ or FBI officials, I forget who the background sources were,

confirming that this is the case. Some irony here. This is the first time anyone has read back my tweets to me that I felt good about it. But, I mean, this is obvious. And I think reporters that I've talked to have been just trying to nail this down since the since the Comey testimony, because it would be irresponsible for Mueller not to look at this because it is like the textbook definition of at least potential obstruction of justice. If you fire the person investigating, it is actual obstruction. Like it's obviously potentially obstruction.

If you fire the person who was investigating the crime that you may have committed. And, but what I think is interesting is what you point out is that they're looking at everything and they are going deep and this is going to really, this is going to be a massive energy sock. And it's a cloud over the White House because I think Donald Trump should always be referred to now as President Donald Trump who was under criminal investigation. Yeah.

X today. I mean, yeah, I'm not, I did not title this section Russia for the first time. I titled it the President is Under Investigation because that is, that is what's happening now. investigation because that is what's happening now. No, I mean, there is some irony in like one of the reasons that Trump fired Comey is because Comey wouldn't say publicly that Trump wasn't under investigation, a firing that led to Trump actually being under investigation. It's just too perfect. I mean, the irony of all this, the amazing part of all this is that if Trump had just let this investigation play out into collusion, who knows what would have happened. But the fact that he decided to question Comey, the fact that he decided to go to Dan Coats, the DNI, the head of national intelligence,

to Mike Rogers, the head of the NSA, to Richard Leggett, the deputy director, and ask them to help button up Comey, to help ask him to calm down the investigation to General Flynn, is part of the reason he's now being investigated. And apparently, the Wall Street Journal reported that the deputy director of the NSA wrote a memo documenting a phone call that Rogers had with Trump where Trump questioned the veracity of the intelligence community's judgment that Russia interfered with our election and tried to persuade Rogers to say there was no evidence collusion between his campaign and Russian officials. So he is creating every single problem with himself, both privately and publicly, by tweeting like an asshole. I mean, can we just go back and talk about what Trump could have done, right? So there is a massive amount of evidence that Russia interfered with the election, right? And so obviously the FBI opens a counterintelligence investigation

to look into Russian interference to see if there was any kind of collusion whatsoever. If you have nothing to hide, if you're Donald Trump, if you swear that you're not under investigation, you didn't do anything wrong. Maybe someone that you know did something wrong and you don't know that they did something wrong. You say, let's get a full investigation done. Let's clear this. Let's let them do. Let's let them do their jobs and see where the evidence takes us.

Right. He doesn't do that. he doesn't do that. And so not only does he not do that, but he like at every step of the way tries to like break norms, like obstruct where he can, try to lie. Like it's just, it's so,

he just like stumbled his way into possibly obstruction of justice. What's interesting about this, if you talk to reporters who cover this White House, a lot of them in their darker, more quiet moments will admit that they feel like they didn't properly help the American people understand reporters who cover this White House, a lot of them in their darker, more quiet moments will

admit that they feel like they didn't properly help the American people understand Trump, the man, and how petty and vindictive and self-absorbed and terrible he is. And like, I think he did everything he could to demonstrate that to us both publicly and all the stories that were written about him. But you're seeing it play out and how that will manifest as president United States. And like he just can't accept anyone questioning the veracity of his electoral college win. That's what it is. That petty bullshit has led to this whole. You know what?

That venture. You just hit on it. The him being upset that people are questioning the veracity of the electoral college win could be at the root of all of this. Right. I mean, who knows? There could be collusion and he could be everywhere. We don't know, right? But like, it's very likely that all of his misdeeds come right from him worrying that Russia interfering in our election means that he's not a legitimate president and he's pissed about that. And so he has just kind of been a fucking bull in the China shop.

Yeah. Dan, what did you think? The thing that's amazing here is it's not everyone always says it's it's not the crime it's the cover-up this may be a situation where trump goes down for covering up something that wasn't a crime like it's very possible there was no collusion right that is maybe even more the most likely scenario because the people involved seemed too dumb to actually execute collusion i still think there's something fucking weird with Jared Kushner. But so just out of pure narcissism and insecurity, he obstructed justice. It's just like a really fitting end to the Shakespearean tragedy that is the Trump presidency. So there was rumors floating around.

We talked about this a little bit on Monday that maybe he fires Mueller, right? Can he fire Mueller? Will he fire Mueller? What do we think about this? little bit on monday then maybe he fires muller right can he fire muller will he fire muller what do we think about this dan what's your take he i mean technically yes but he has to fire rosenstein did that right he has to fire rosenstein to do that right he cannot do it himself and so because that was part of the as i understand a part of the recusal so this will be very much like if you were to do it the um saturday mass the nicks the saturday night massacre uh with nixon where nixon just kept firing people until he found someone who would actually fire archibald cox the special prosecutor in the watergate case and so i mean who knows like maybe the person who checks ids at the front of the DOJ would be the only person who would fire Mueller. So if he does it, it'd be

quite a massacre. But politically, he cannot do it, which means he'll probably try. Well, let's say, I mean, because my first reaction when I heard the rumors that he was thinking of firing Mueller is, if he does this, the conversation has to move to impeachment. And, you know, a bunch of people on Twitter said to me, oh, that'll never happen because the Republicans will never do it. I'm like, you know, I get that, maybe. And I can never get in the minds of Republicans in Congress. Who knows what they'll do?

Who knows how far they'll let him go? But our conversation has to move to impeachment, and Democrats have to start demanding impeachment because, I mean, you were firing the guy that was investigating Russia and that led to the appointment of a special counsel who was appointed by your deputy attorney general. The reason it was appointed by your deputy attorney general is because your attorney general had to recuse himself because he had undisclosed meetings with Russians. So then the deputy attorney general

hires a special counsel former fbi director appointed by republican presidents like in vietnam war hero and now you're going to fire him too as he's investigating you for obstruction of justice no yeah i think we have to draw the line somewhere that is impeachable as we follow the bouncing ball of this of this case like yeah i'm, I'm with you. Like, I need to just sort of level set with myself every once in a while. It's like, wait, what is rational? What is in the scope of sort of like normal political actions or discourse? And absolutely, there's no question that this is the context has to turn to impeachment. I mean, do you think that would be enough, Dan, or what do you think? I think probably not. I mean, Democrats absolutely think that would be enough, Dan, or what do you think? I think probably not.

I mean, Democrats absolutely would and should do it, but I can make a couple points. First, Bob Mueller is a person beyond impeachment. He is someone who is so good at his job as FBI director that the Congress passed a law to let him serve longer than the 10-year term. Oh, yeah. That's how good he was at his job and how much people liked him. It's like, Republicans and Democrats before this cannot agree on anything. They can agree on Bob Mueller. So that's one.

Two, I can already see the path for how Paul Ryan trudges out to the microphones in the Capitol and defends Trump on this. Because the right-wing media is already doing this. Hannity is already doing this. They are trying to say that they're like pulling the FEC reports to the people who Mueller has hired. They're going to say that it's rigged, they're leakers, and they will create an alternative

reality where firing Bob Mueller makes complete sense. And if you only watch Fox News, then you will think it makes complete sense. And so Republicans in Congress only watch Fox News, so it'll make complete sense, and they will defend him on it. And it will take Democrats taking the House to change the conversation on that. Yeah, I mean, I saw AP had a poll. Six in ten people think that Trump tried to obstruct or impede the Russia investigation. Of course, he only has a 37,

8% approval rating anyway. Trump today tweeted, you are witnessing the single greatest, all caps, witch hunt in American political history, led by some very bad and conflicted people. One somewhat positive sign, and I'm sure he could walk it back later, but John Thune, Senator from South Dakota, said, Bob Mueller is a man of integrity. This is not a witch hunt. positive sign and i'm sure he could walk it back later but john thune senator from uh south dakota yeah said um bob muller is a man of integrity this is not a witch hunt um which just goes to show he like you said dan he is it's going to be very hard to impeach bob muller's character um at least if you're like a regular republican politician like sean hannity newt gingrich the rest of them they already think he's like the worst guy ever um but i i do it's going to be hard for some of these Republican politicians to get there,

but they could. I mean, also, like if you fire Bob Mueller, there's nothing stopping him from walking out the door and just roasting you on every network, doing press conferences every day. I mean, look how effective Comey has been. Yeah. Well, Comey got a special, I mean, what does, Comey got a special prosecutor. Yeah. Comey got Mueller, then Mueller leaves. What's Mueller going to get? Firing people hasn't played so well for Donnie Trump. Bad. All right.

Let's move on to the Affordable Care Act, the attempts of the repeal of the Affordable Care Act. The biggest story out there right now, this is the third biggest story, apparently, because the President of the United States is under investigation. There was a horrible shooting yesterday. And by the way, Senate Republicans are writing a bill that will affect the health care of every American with no public hearings, no public debate, and no input from a single Democrat. So talk about your bipartisan unity. Orrin Hatch, the second most powerful Republican in the Senate today, was asked about the bill and said, you know, when are we going to find out? Do you know what's in the bill? How come

no one knows what's in the bill? He well uh join the crowd i'm in the same category i don't know what's in it either hey buddy go to a meeting what are you talking about um he's not invited he was not invited i guess poor orrin hatch didn't get it didn't get the invite poor orrin well there's one note on that orrin hatch is actually in charge of the committee that writes the health care bill i was gonna say yeah that's his actual job who was like who was writing this bill then like mitch mcconnell and fucking ted cruz and uh i'm like what's happening it's mitch mcconnell and 12 other white dudes it's just a it's a pharma lobby plus ted crew or 11 other white dudes and ted cruz or something like that so on tuesday trump said uh there was a report that trump said uh House bill that Trump gave that he celebrated in the Rose Garden was, quote, mean.

And he used a vulgar phrase to describe it. We don't know what that is. Piece of shit? Shitburger? Fucked up? What do we think he said? I don't know. Interesting.

So Trump sort of throws the House bill under the bus, least in private and says oh the senate bill needs to be more generous i actually don't think everyone is like oh that's tough for the house how could he throw the house under the bus like that like it's probably good for the overall bill for them because if mitch mcconnell can say oh he was right we made this bill more generous even if it's just like cosmetically more generous and not really more generous then you know they'll get enough people saying oh they moderated it and get it through. Right. So like, I don't think that was actually a great thing that Trump said that. What do you think, Dan? Well, I think it's not good for the it creates context for a quote unquote Senate bill. But I do think that people can run

ads against these members saying even Donald trump thought this bill wasn't good enough um because even if we pass another bill you they i don't there's no reason to not um hit them on the on the original vote for uh wealth care yeah and so just keep i would hammer with that and then what are they gonna come back? No, my vote only took health care away from 13 million people. You lied. Like, that's a great debate to have. I mean, yeah. Also, so what we know about the Senate bill so far from everything we're hearing is because it's not going to be so, so different from the House bill.

It charges older people more. It charges sicker people more. Cool. It guts Medicaid. people more. It guts Medicaid. Again, Medicaid covers not just low-income people, but families, children, pregnant women, the elderly in nursing homes, people with disabilities, a lot of kids with disabilities get their coverage through Medicaid. The other thing they say that the Senate bill is going to do is it's going to allow states to eliminate essential health benefits. So, as Andy Slavitt wrote this in an op-ed today, who used to run

Medicaid and Medicare in the Obama administration, insurers couldn't deny coverage to a cancer patient, but they could deny treatment to a cancer patient. So basically, it gets around the pre-existing condition thing by saying, yeah, we technically have to offer coverage to people with pre-existing conditions, but we can not have to deal with all the sick people by just not offering the treatment that the sickest people need and call those essential health benefits. One of the things that that would do also is the Senate bill would probably lead to a return of annual and lifetime benefit limits for as many as 20 million people, including people who have coverage from their employer. So this is not just the individual market. If you have coverage from your employer, your employer could decide to say,

you know what, there's going to be a limit on the amount of healthcare coverage you get each year and for your lifetime. So if you have a serious illness that requires a lot of money and a lot of treatment, they'll cut you off at some point. Best of luck. Good luck on your own. We're just getting to a place where this is so, so cynical. Tom Price, the head of HHS, on your own. We're just getting a place where this is so, so cynical. Tom Price, the head of HHS, is tweeting, complaining that Obama, the Affordable Care Act left 28 million people still uninsured. Yes, you craven creep. That's because like a bunch of states didn't do Medicare expansion. That's because illegal and undocumented immigrants aren't covered under the plan and young people don't want it. So the thing I was hoping to ask Dan about, because Dan,

I saw you tweeted this. Ezra Levin pointed out from Indivisible that with the reconciliation process, you have the option of a procedural move called the Voterama, which means Democrats could offer unlimited amendments. So conceivably, you could say, we're introducing 40,000 amendments, it will take 10 minutes to read and vote on all of them. And you could bottle up the process through 2018 indefinitely if you wanted to. I mean, where do you draw any line after Mitch McConnell stole a Supreme Court seat from President Obama after we're running this health care bill through a process that is the most secretive in the history of the Senate, basically? What do you

think is sort of acceptable? What should Democrats do here? Look, I thought that was a very interesting thread. You know, we have talked a lot about sometimes I can't remember what we talked about on the podcast or just talk about to each other, but either on the podcast or to each other, we've talked about how, like whether what the Senate can do to actually Senate Democrats who'd actually stop this, can they bring the Senate to a halt. And it's been this very amorphous idea of, you know, demanding filibustering things demanding consent on things, and it wasn't really clear what it would do. Ezra's idea, which I sounds like it would work, or at least be an aggressive move, could delay this. Because I

think the longer we can delay this, the more chance the—the longer opportunity we have to fight for transparency, the more chance the grassroots has to express their concerns about it. And so I think it's certainly worth discussing. I'd be very interested to hear, and I have not yet heard, arguments from Senate leaders on why not to take an approach like this like what is the alternative reason like what is it like what do you lose by fighting like hell to save the affordable care act yeah so like i i want to hear the debate because it seems patently obvious to me but i suspect there's probably something uh i'm missing in this um but like feels like if we can't fight to protect healthcare and protect Barack Obama's signature achievement, and really the signature achievement of the

progressive movement of the last 40 years, then I don't know what we're fighting for. I'm with you, man. I'd love to hear Chuck Schumer out or anybody out on whether or not they think this is a good idea. But I'm starting from a place of, if they don't do everything possible to block this bill procedurally or other, I am wildly disappointed. And I think that Democrats should be pushing Republicans. If you live in a swing state with a Republican who may vote against this bill, you should call them every single day. And if you live in a state with Democratic representatives, you should let them know that they should do everything possible to gum up the works and prevent this from getting through. Get caught trying. How many times do I have to say? I mean, so everyone should follow Jeff Stein at Vox. He's been sort of covering this beat about

what Democrats are going to do in the Senate. On the withholding consent thing, right, which is Democrats can withhold consent and kind of gum up the works in the Senate. Patty Murray, Senator from Washington, told him that they could do that on other business, but that McConnell can still bring up the bill immediately and vote on it. And so she said that wouldn't work. I don't know if that, I assume that's true if she said it. But certainly the filibuster by amendment that Tommy just brought up seems like it could work. And I do think like, look, Chris Murphy has been good about this. He's been saying like, this is a huge issue. We've got to talk about this. We've got to fight with everything we have.

I saw that Ron Wyden said that every time he gets a question about Russia now, he's going to answer it with health care, which is great. But, like, I want every single Democratic senator on board with a strategy to drag this out for as long as possible. Chuck Schumer should lead it. I know that, like, Schumer was probably waiting because they wanted to get that bill passed on to make sure there was a bipartisan bill that would levy sanctions on russia right so now that's out of the way so i don't think there's there's no more excuses no um and here's the thing i get that this may not result in a victory i get that they still might pass this bill but the longer this bill is debated the more sunlight on this bill the more debate about this bill the greater the chance that we can put enough pressure on some of these Republican senators to kill the bill. And like we might as well try and fight with everything we've got.

And if we don't, then Democrats deserve a lot of activists and a lot of people on the base being very upset with them and thinking that they didn't fight hard enough. So go fight. You know, I just I feel very, very strongly about this. I do, too. This reminds me a little bit of the conversation we had around Gorsuch. We're sort of like, well, maybe it's not worth fighting because they're just going to change the rules anyway. It's like that's not actually the point here. Right. The point is to fight.

And maybe you win and maybe you lose. But you have to fight because there are people who are engaged in the political process right now. There are people that we see at some of the events we've done, that we see on Twitter, that are showing up at these marches, who are not traditional Democratic voters. They may even have set out the last election, but are very worked up about what's happening in this country. And if they don't believe that Democrats in Congress are going to fight like hell and share their view of what a dangerous situation this country is in, then they're not going to turn out. And we're just going to be

in the same place we were two years from now, four years from now. And so there is value in fighting. There's no like one loss record at the end of Congress about how many fights you won, you lost. Just strictly in the minority, the point is to fight. Right. And additionally, if you live in Nevadavada or alaska or maine or ohio or west virginia or arizona or colorado you have senators who are on the fence who may get scared into voting against this piece of garbage bill which will kick tens of millions of people off their insurance call them every single day yeah be nice be polite but call them be polite don't don't harass people but you could show up you could peaceful protests go to the district offices call the district offices again like this you know bring to bear a lot of pressure keep it polite but bring to bear a lot of pressure on this this is

very very important okay and we also have we have all kinds of information about you know numbers and everything else that we've all tweeted out and it's on our facebook page and on get crooked media.com so we'll we'll send you everything yeah you need to know because we don't have it at our fingertips right here but um but these next two weeks are critical yeah and so everyone's got to focus really really hard on this because uh the lives and look one more thing too there's a lot of you know a lot of statistics thrown around and we do that here too if you have a story about health care if you have a story about what this matters to you, why this matters to your family, tell it. Video yourself telling it. Tweet it. Put it on Facebook. I think we sometimes forget the power of individual stories to drive this debate,

because that's what this is actually about. Call your local newspaper. Call the local TV station newsroom. If you have a healthcare story about how it impacted you and you live in Ohio or Nevada or Arizona, let them know. John, as you do better than anyone else, it was the story of a woman named Natoma Canfield in Ohio who was dealing with cancer. She wrote a letter to Barack Obama. He took that letter and he used it. And she's probably the reason healthcare became law. And so these stories matter. Hugely. Okay. When we come back, we will be talking to former Obama cabinet secretary and White House lawyer, Danielle Gray. Hey, don't go anywhere. This is Pod Save America, and there's more on the way.

On the pod today, we have former Obama cabinet secretary and White House lawyer, friend of the pod, Danielle Gray. Danielle, how's it going? Good. How's it going? Good to be here. It's good to have you back. It's good to hear your voice as always, D. Gray. Thanks, man. I have a question for you. You are a legal expert, Supreme Court clerk, wicked smart in general. So now there's three cases against President Trump that allege he's violating the Constitution, violating the Emoluments Clause, which prohibits him from

taking gifts and presents from foreign leaders. The most recent was filed by nearly 200 members of Congress. A day earlier, a suit was filed by the attorneys general in Maryland and D.C., and we talked a little bit about that on Monday's pod. What do you think about these cases? Do you think there's a chance that any of them have standing, which means that they'll be able to bring the case forward? Or is he in real legal jeopardy here? Yeah. So, you know, the underlying issue in all of the cases is the same. You know, really, whether the provision in the Constitution that says, you know, that you're not entitled to as a public office holder, except gifts without the consent of Congress from foreign leaders and foreign governments

is applicable to this kind of situation. You know, I think the founders were really worried about ambassadors accepting horses and diamonds. They didn't really envision the Trump Hotel and, you know, the Chinese Christian conferences at the hotel. And so the underlying question in all of these cases is the same, and it's a really hard one. And I think what we're seeing with all of these different cases being filed is that before you even get to that very hard question, we have to determine who actually should be in court to sue about it. And the question there really comes down to who can make the best argument that they are truly injured and harmed by this. As a general matter, just because a person is unhappy with something doesn't mean they're entitled to come into court and fight about it.

And so the three suits that have been filed all have different theories for who has standing. So members of Congress have basically are making the argument that if you read the Emoluments Clause, it says that such gifts cannot be accepted, you know, without the consent of Congress. And so their argument is that they have special interests at stake in enforcing the Emoluments Clause and ensuring that that kind of inherent conflict isn't allowed. The other two kind of major suits that have been filed to date, one is with an association, you know, public interest law firm known as CREW, but they've also joined forces with an association of businesses and restaurants. And their argument is that Trump hotels are taking away businesses from them because Trump is being allowed to violate the Constitution. And then the third category of

suit that we've just seen is the suit filed by the states. And their argument is that as states, they have a sort of special standing that comes with enforcing certain sovereign prerogatives of states. And the Supreme Court has indicated that that's acceptable. And so I think the bottom line is figuring out who has standing is really much of the battle here. And at this point, you now basically have all of the major theories for standing being pressed in the courts. Do you have an opinion on who you think is most likely to have standing of all these three cases? You know, it's hard to say which is better because they all have pros and cons. You know, courts have been very skeptical that members of Congress can sue just because they're unhappy about how something is being carried out.

sue just because they're unhappy about how something is being carried out. You know, I would think that the lawsuit that has been brought by the competing businesses is attractive, although you wonder whether those are the right kinds of businesses. You know, you might want to see a lawsuit being brought by, you know, a major hotel chain to make a real, very concrete argument of harm. So I think it's hard to say. I think all three have, you know, major, major downsides. So I just want to ask you about the travel ban, which, because there's so many other stories this week was sort of under the radar. But the Ninth Circuit ruled against the administration's travel ban. Bring us up to speed on what happened with the ban this week and what

the ruling was and what the next steps are. Yeah, I mean, I think this has been a pretty significant week in travel ban litigation. And as you said, it's sort of fallen under the radar of a lot of things. And so the Ninth Circuit joined other courts in saying that the executive order was unlawful on Monday. But importantly, they didn't say that it was unconstitutional. Like the other courts have said, they didn't say that it violated the establishment clause. Instead, what it said is that, you know, the immigration statute requires the executive to proffer a justification if you're going to do something like suspend entry for 180 million people based on their nationality. And what it says is that the proffer justification wasn't sufficient under the statute.

because many people who study the Supreme Court and are looking ahead to how the Supreme Court might deal with this believe that the sort of statutory arguments against the executive order might be a more appealing ground for invalidating it than actually having to say that the president acted unconstitutionally. having to say that the president acted unconstitutionally. So that was pretty important. But, you know, I actually think a more important act actually happened yesterday, right after the president's cabinet meeting, oddly enough. And the president issued a presidential memorandum that amended the executive order and essentially called on his cabinet to begin the internal review within 72 hours of being allowed to do so by the courts, which is going to likely come as soon as next week. You know, and, you know, Tommy, I know you've talked about this

on Pod Save the World, but one of the main justifications offered by the administration, perhaps the only justification for what DOJ has been causing the temporary pause on entry, is that it was necessary so that the administration could take the time to conduct an internal review of their vetting procedures to make sure that, you know, extreme vetting, in the president's words, was in fact actually happening. And the argument was that they couldn't simultaneously review the adequacy of their procedures and also deal with large waves of entry into the United States from these particular countries at the same time. And so now the president is basically telling his cabinet, go ahead, review the procedures now. Don't worry about the fact that the courts are

not letting the travel ban take effect, and that may not come until later. And so I think that that's going to lead to some really difficult questions, especially when this gets to the Supreme Court, from the Supreme Court, about what is the rationale for this temporary pause or travel ban, as the president likes to call it, if you can actually go ahead and conduct that internal review even without the ban. ahead and conducted that internal review, even without the ban, and very well, that internal review may very well be completed even before the Supreme Court hears the case. And so that's a pretty significant development. Yes, then why do you need the ban? Exactly. You've already, you did the review and the vetting, and then you need the ban afterwards?

That doesn't... They're morons. Okay. Well, the bigger, you know, I think the long-term significance is, I mean, if you can put yourself in the position of a Department of Justice lawyer, and actions like this one, actions like the President's tweets, are really making it more and more difficult for DOJ to enjoy the kind of credibility that comes when you say, you know, I'm standing here on behalf of the United States. And that's credibility that DOJ fights pretty hard to preserve. And so I think the erosion of that kind of credibility, you know, putting DOJ in a position where they've essentially been defending a rationale that, you know, was at least significantly undermined in a, you know, presidential memorandum issued in the middle of the afternoon. You afternoon, that's a really hard blow.

Danielle, as an attorney, what is your reaction just as you watch Trump and his spokespeople constantly do things that potentially undermine the cases attorneys are trying to make at that exact moment? Yeah, I mean, it's really hard, and I find myself having a lot of empathy for his legal team, which, you know, as you know, Dan, you know, in the White House, you know, the lawyers are often having to find themselves in the position of explaining to the policy staff or communication staff or other staff, you know, why it is that DOJ wants to argue a case in a certain way or why it's important that White House officials do not make statements from the podium about cases that are being actively litigated. You know, and there are no hard and fast rules here, and there are always exceptions that are made. But that's a pretty regular dialogue. I think what's surprising here is just the – it seems that sort of time and time again, the lawyers are really losing out in that exchange,

and seemingly at great detriment to the president's agenda, which just all raises the question, at least with respect to the travel ban case, you know, does the president want to win the case or does he just, you know, really want to win the issue? He probably doesn't know the answer. He just wants everyone to be nice. Daniel, you were President Obama's cabinet secretary, you know, the short version is you manage the entire cabinet. Can you talk about the purpose of a cabinet meeting? And have you ever seen one like the cabinet meeting you mentioned earlier that President Trump held earlier this week where everyone went around a table and told

him how great he was like some sort of bizarro North Korean propaganda film? I think this is another example of how we were doing it all wrong, which is, you know, we would go around the table and talk about like problems that everyone was facing, which, you know, we probably should have talked a little bit more about the winning. But no, in all seriousness, I've never seen or imagined anything like that. Forget about on camera. seen or imagined anything like that. Forget about on camera. I've never witnessed anything like that even once the press pool was ushered out and the meeting continued. We really did spend much of our time in those meetings talking about problems and sometimes actually talking about

challenges that were of our own making. And that kind of like serious reflection was often a large focus of the cabinet meetings. Seems crazy. Seems like much easier to just, you know, praise. We should have just told Barack Obama how wonderful he was every day. The funny thing is that probably would have pissed him off. You know, he did. He would get like that in meetings, right? Relax. You know, he did. He would get he would get like that in meetings. Relax. I really felt bad for the people who were like halfway around the table because, you know, like once Wright said, you know, thank you for all of the blessings. Like, what do you say after that? Yeah, they took all the good adjectives. Daniel, last question. We'll let you go go Has Neil Gorsuch surprised you so far

Or has he been pretty much what you expected? I have not been surprised And I don't think anyone's been surprised I also don't think the docket of the Supreme Court At least this term Has enough of the kind of cases Where I think the predictions you know, predictions about how conservative or not Justice Gorsuch is have been really called to question. I think we'll probably get a much

better sense of that next term, including, you know, with the travel ban case. Cool. Well, we will be watching that. Danielle, thank you so much for joining us. And please come back again. There's a lot of legal stuff going on out there. I think we're going to need your help quite often. No, thanks for having me. And have an awesome wedding, John. Congrats to you and Emily. Thank you so much. I mean, what about Tommy and I? We're going to have some fun this weekend, too. You know, I'm pretty sure of that. But, you know, at least for John, you know, they said this day would never come. That is a good line. That's a winner.

Emily is the change we were waiting for. Episode title. Bye, Danielle. All right, guys. Thanks for having me. Bye. Bye. This is Pod Save America. Stick around. There's more great show coming your way. Stick around.

There's more great show coming your way. On the pod today, we have a very special in-studio guest, Tim Black. You are a federal judge for the Southern District of Ohio who ruled in the gay marriage case that ultimately made its way to the Supreme Court two years ago this month, Obergefell v. Hodges. Ultimately made its way to the Supreme Court two years ago this month, Obergefell v. Hodges. More importantly, you are officiating my wedding to your daughter, Emily Black. Indeed. Welcome to Pod Save America, Tim.

Well, I'm delighted to be here. It's a high honor and great privilege. I'd like to make a number of disclaimers. Number one, I don't talk politics. That's right. Number two, if we're going to talk about marriage, we're going to talk about your marriage. And the primary reason I'm here is just to make sure you're in town and are absolutely coming. No, but it's fun to talk. But it's very difficult as a judge to talk publicly about the work judges do. I've been a judge for more than 20 years, and I think I've built a reputation as being someone who is a straight shooter

respected by both sides. Yes. Brand appropriation. Glad we have one on this pod. And if Lovett's show, is he coming to the wedding? He is coming to the wedding. Oh, my goodness.

He's on his way. Well, I intend to speak with him about having taken my tagline. He'll be giving a speech tomorrow night so i think yeah be a good opportunity you can cut him off and tommy it's nice to see you great to see you too i'm glad you're here for this wedding thank you stan weddings and marriage they're highly contagious i just want to warn you of that good it's good to know his face got red it's because it's hot as hell in here. So obviously we wanted to bring you on. I wanted to bring you on for reasons of pure nepotism,

but also- So hot right now. It's the two-year anniversary of Obergefell. And I just wanted our listeners to get a sense of how a judge rules in a case that has such political implications. So take us back. The case came to you in July of 2013. Tell us a little bit about the case. Well, it was two men who were Cincinnatians who'd been in a long time, over 20 years, intimate relationship. And one of the men was diagnosed with ALS, which is progressive and fatal, and he knew he was going to die. And the last thing he wanted to do was marry his spouse. You can't do that in Ohio. So they medevaced the couple out to Maryland. They get married on the tarmac and came back to Ohio and then learned to their

disappointment that on the death certificate of John Arthur, who was dying, he would be listed as unmarried and surviving spouse would not be completed because Ohio refused to recognize same-sex marriage. But in Ohio, it's like in most states, it's the law of the location. And if you get married validly in one state and come back to another state, that second state recognizes the marriage even though they don't perform it in the state. So for example, if you're first cousins and you scoot over to Kentucky and then you come back to Ohio, although Ohio does not perform first cousin weddings, Ohio will recognize that wedding marriage. And likewise, if you're under

age and you scoot over to Kentucky and come back to Ohio with a valid Kentucky marriage, even though you're under age, Ohio will recognize it. And the only marriage that they wouldn't recognize was same-sex marriages. And so it was a question of fundamental fairness, equal protection of the law. And the Supreme Court decision speaks for itself, but it started in a courtroom in Cincinnati. Now, it must have been very difficult, right? Obviously, the voters of Ohio decided that they did not want to recognize same-sex marriage. This case comes to you. I absolutely love the opening line of your opinion that just starts, this is not a complicated case. How was it not complicated for you with all of this stuff swirling around it? Well, that was a provocative statement. I said it on purpose.

I said it on purpose. It had enormous ramifications, but it wasn't complicated. The Constitution guarantees us the equal protection of laws, and you can't single out an unpopular minority and take away their fundamental rights. And we have a fundamental right to be left alone by government unless there's a substantial public policy reason. And so I didn't struggle with it. I knew the ramifications would be significant. But I wanted to start by saying this is not complicated. This is about fundamental fairness. And wound its way through the courts. I got reversed by the Court of Appeals, and then the Supreme Court reversed the Court of Appeals. So how hard is it to tune out politics when you're deciding a case? Some people today have said,

you know, whether it's Trump's comments or other comments, news is everywhere, there's a lot of political rancor these days, and they say, oh, judges are only human. So some of these comments have an effect on them. How do you, as a judge, tune all of that out when you're sitting and trying to make a decision and trying to write an opinion? I want to be a judge, the type of judge that I would want to have on a case if I were litigating something significant. I want somebody to make an independent decision on the evidence and the law and not on their political predilections. I am, however, a human being

with values and background and training. But I've been trained to simply look at what the facts are and decide how the facts play out under the law. And I don't ask a criminal defendant, are you a Republican or a Democrat? I don't ask anyone that. I call it as I see it. I'm like, love it. We are definitely editing that part out. There's a lot of jokes we could have made here, but we're going to hold back. One thing I love, you have a mentor, Judge Arthur Spiegel, who said, gave you the advice, always make a decision without looking over your shoulder.

What does that mean? It means don't look over your shoulder worrying about who's going to react in what way. But in the spirit of full disclosure, it's a heck of a lot easier to approach life that way when you're appointed for life and not seeking to get reelected every six years. As a state court judge in Ohio, I had to get reelected. And when I made a decision that was high profile, I tried not to look over my shoulder. I try not to look over my shoulder. And my longtime mentor, when I got to the court where he was, talked to me about courage and just call it like you see it, Tim.

Don't look over your shoulder. And I try and do that. Obama used to say that he was looking for judges. He wanted to appoint judges who had a sense of empathy. Got some criticism for that. But do you think there's a role in making sure that judges have empathy? And how do you balance that out with, as you said, being a straight shooter respected on all sides? That's a hard question that's difficult to answer with a soundbite.

But yes, I think judges should have empathy and sympathy. And when I was facing confirmation after the president's nomination, we were told to be very careful with the noun empathy. But the truth of the matter, I think that's one of the most important qualities in any moment in life. And even as a judge, there are times when you can be empathetic or sympathetic without being lenient and without being wrong. And I'm getting older, but my favorite quotation in the world is from Danielle Gashuk's essay on political paralysis. And she says, when we study the biographies of our heroes, we find that most of their time was spent in quiet preparation, doing tiny decent things, until one historic moment catapults them to center stage and causes them to tilt empires. And I have tried to live my life in a way when I have the opportunity,

I do the tiny, decent things, and I've tried to teach your bride that as well. That is a very, very nice thing. My bride-to-be is actually in the room right now. Emily, you want to come say hi? Hey, pod people. This is a very moving episode for me, but I'm ready to go back to the wedding.

Let's get it done. On that note, Judge Black, Tim, thank you for joining us. And thanks for marrying us. That's for saving us some money on an officiant. I'm looking forward to it. Thank you, John. Good to see you, Tommy. Great to be here. Let's, well, I'll leave it at that. Bye. Great to be here.

Let's, well, I'll leave it at that. Bye. Okay, that's all the time we have on today's Portland Pod Save America. We will, well, I won't, but these guys will see you next week. Bye, everybody. you