Pod Save America - “Trump’s Train Blame Game.”

Episode Date: February 23, 2023

Donald Trump and his MAGA friends use a toxic train crash in Ohio to pick a fight with the White House. Joe Biden surprises the world with a secret trip to Ukraine. The Republican primary is already a race to see who can out-Trump each other. And Leah Litman from Strict Scrutiny talks about the two big tech cases at the Supreme Court and Trump’s Fulton County investigation. For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast. 

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On today's show, Donald Trump and his MAGA friends use a toxic train crash in Ohio to pick a political fight with the White House. Joe Biden surprises the world with a secret trip to Ukraine. And the Republican primary is already a race to see who can out-Trump each other. Then, Leah Lippman from Crooked's Strict Scrutiny talks to Dan about the two big tech cases that the Supreme Court heard this week. But first, check out the brand new merch that just dropped for all you Marvel and X-Ray Vision fans out there.

We have an X-Ray Vision was right t-shirt inspired by the iconic Magneto was right shirts. Don't know what any of that means. And by the fact that all of Jason and Rosie's predictions are correct, obviously. I do know what that means. Head to crooked.com slash store to get your shirt now also dan we had some special elections this week exciting really exciting which i i didn't i knew about the wisconsin race i didn't

really know the other ones were happening you're okay they happen you're slipping but democrats kind of crushed them. The party overperformed in three races, won by a New Hampshire statehouse candidate, a Kentucky state Senate candidate, and Virginia's Jennifer McClellan, who will become the first black congresswoman to be elected in the history of the Commonwealth. They didn't know that race was happening. We also had the first round of voting in the Wisconsin state Supreme Court race. We also had the first round of voting in the Wisconsin state Supreme Court race. The general election on April 4th will be the most important election of 2023. Why? Because the winner will tip the balance of the court, which will decide whether the state's abortion ban and severely gerrymandered maps are legal. Basically, it's about whether or not the state of Wisconsin will still be a democracy.

So here's what we got from the first round of voting. The conservative candidate will be Dan Kelly. He is an anti-choice, ultra-MAGA activist who was involved in the efforts to overthrow the 2020 election. involved in the efforts to overthrow the 2020 election apparently he was he was like their their uh their chief counsel all the people who were trying to figure out the fake elector scheme that's who this guy is he's the rudy giuliani of wisconsin he uh he also he lost his last election in 2020 by 10 points, but he is extremely well-funded. So that's the conservative candidate. The liberal candidate is Janet Protasewicz, a pro-choice, anti-gerrymandering judge from Milwaukee. She needs to win and she needs our help, which is why we are officially kicking off our No Off Years program for 2023 now. We will be focused on all the ways you can get involved in this Wisconsin race,

no matter where you live. You can donate to support voter education and mobilization efforts in Wisconsin. So this is going to be the most expensive judicial race in any state ever in history. And a lot of conservative donors are prepared to spend millions and millions to win they got a bunch of right-wing billionaires up there in wisconsin i don't know if you knew that they are ready to dump a whole bunch of money into this race the u-lines the cokes like to play around in wisconsin yeah they're all going to be there because they hate democracy and they hate freedom. So, yeah, basically, it's the conservative candidate that Democrats wanted to face because he's more extreme and he lost his last race by 10 points. But the stakes are super high. And again, if Janet wins, that is it's a good chance that abortion will be legal in Wisconsin and that we will have new maps, which means that when a majority of Wisconsinites vote for Democrats, you will see Democratic representation in the state legislature and then hopefully in Congress as well.

So that's it's pretty huge. Yeah, I mean, it's it's hard. We talked about this a few weeks ago, but you really cannot overstate just how important this is. Yeah. So you can also sign up to be part of the VSA volunteer community. We'll show you how you can help whether you're in Wisconsin, whether you're not in Wisconsin, wherever you are. Just head to VoteSaveAmerica.com today to get started and help out. All right. Let's get to the news. All right, let's get to the news.

Donald Trump ventured out of his beach club this week to visit East Palestine, Ohio, where a 150-car train carrying toxic chemicals derailed a few weeks ago and spilled toxic chemicals into the air and water of a town that's home to about 5,000 people. Trump went there to blame Joe Biden for the crash, even though the former president is responsible for repealing regulations that had to do with both railroad safety and toxic chemicals. Transportation Secretary Pete Buttigieg, who's been getting hit from the right and the left over the administration's response, is in East Palestine today. Here's some of what both men said during their visits. To the people of East Palestine and to the nearby communities in Ohio and Pennsylvania, we have told you loud and clear you are not forgotten.

I sincerely hope that when your representatives and all of the politicians get here, including Biden, they get back from touring Ukraine, that he's got some money left over. What do you make of Biden, or rather Buttigieg's criticism of you pulling back rail regulations? Do you think it would have made a difference? No, it had nothing to do with it. It had nothing to do with it. Are you shocked he hasn't come here yet? He should have been here a long time ago. Buttigieg. You know what you call him? Buttigieg. I heard him say he had nothing to do with it, even though it was in his administration. So if he had nothing to do with it, even though it was in his administration. So if he had nothing to do with it and they did it in his administration against his will,

maybe he could come out and say that he supports us moving in a different direction. We're not afraid to own our policies when it comes to raising the bar on regulation. It is 2023, right? Because it feels really feeling like it's 2020. Yeah, we only have one entire calendar year until the first votes in the Republican primary are cast. So long. Okay, before we get into the politics, which we will do, what do we know so far about why the train derailed and how safe it is in East Palestine right now? The National Transportation Safety Board is still investigating the specific cause of this crash, but they believe, based on some statements, that it involved an overheated ball bearing that forced the derailment.

That's the specifics of this one. derailment. That's the specifics of this one. The broader reason why this train derailed and there are a thousand derailments a year is the rail industry is lightly regulated, frequently puts profit over safety, and very specifically has been trying to save money by making trains longer, i.e. putting more cars in the train, which means they can transport more cargo, more dangerous chemicals in this case, with using fewer people. The longer you make the train, the more likely there is to be a derailment. And so that is the broader issue here that is really at the crux of what Pete Buttigieg is saying, is that we need more regulation to enforce more safety because the rail industry will not do it on the road. That is very clear. In terms of how safe it is there, the EPA, state officials have said the air and water

are safe and the people aren't at risk. But every reporter who's been there, if you look at social media, there are a lot of reports about people with headaches and rashes and sick farm animals and pets and dead fish. And so we don't know that. But the residents are obviously quite concerned. And that's why Biden's EPA administrator was there last week. And so, you know, we don't know the answer to that. But it is the people there's a real level of concern about the safety, given the large amounts of dangerous chemicals that were released from this train as a way to

prevent a massive explosion that could have cost a lot of lives. Yeah. And officials continue to say that the air and water are currently safe. But if you're someone who was evacuated from your home, you come back, you've seen like black clouds in the sky, you're seeing dead animals all over the place. You're seeing pictures of water with what looks like chemicals in it you have a rash your kids have a rash you are coughing all the time yeah you're going to be pretty fucking concerned and apparently like the epa uh the tools that the epa was using to to measure contaminants in the air and the water are not calibrated to the, to like, they're calibrated to like figure out whether it's like an epic disaster basically, and not to weather like some of the lower levels of contaminants in the air, they might not pick up.

Which is again, you know, we've had EPA cuts now for about 10 years, uh, continue to cut down, uh, make cuts to the environmental protection agency. And so, um, now there's going to be officials on the ground. And I think one thing we learned, for example, after 9-11 with first responders is like you've really got to track this kind of thing over time when it comes to the health of the community and the safety of the community and the environment and see what happens. And so a lot of questions still to be answered there. So this has, of course, become a huge political issue. There's lots of blame being directed at lots of people from lots of different places. Let's start with the criticism that Biden and Buttigieg have received from the left,

which I think falls into two categories. One, they didn't speak up or show up fast enough. And two, they haven't done enough to regulate the railroad industry, specifically that they hadn't yet revived an Obama-era safety rule that Trump repealed, which would have required better braking technology. What do you think of those criticisms? I think it is fair to say that while the Biden administration has been exponentially better than the Trump administration in terms of regulation, generally holding corporations accountable, there's a lot more work that can and should be done on the rail industry. I think that is a fair statement. That is fair criticism. I think in the Biden administration, Secretary Buttigieg would say

their hands are tied in some ways. Congress has passed some laws that limit what they can do. As we know, and this gets like way in the weeds of federal regulation, there are cost-benefit analyses. And when one, if a Democratic administration puts in place a regulation, a Republican administration takes it away with a new cost-benefit analysis, it complicates the next administration we're putting back in. So that is ways. But I think it's fair to say, need to move faster and more aggressively, and frankly, need to move more faster and more aggressively than Obama did too. Like when you look at the rule that we'll get to in a second, could be much stronger and should be much stronger. So that's there. You cannot have

that conversation without talking about just how far Trump and the Republicans in Congress went to side with rail lobbyists to make rail travel in this country more dangerous, to make disaster this more likely, to make pollution harder to clean up, to make companies less accountable for their misdeeds in this case. There is some confusion as it relates to this one specific rule that Obama put in place in 2014 after a bunch of train derailments. Obama put in place in 2014 after a bunch of train derailments. And that law would require pneumatic brakes, electric brakes essentially, the more sophisticated, more expensive brakes than the ones on most trains, on trains carrying a certain amount of toxic chemicals.

And when you have those brakes, derailments are less likely because all the brakes will kick in at the same time. So the train cars don't run into each other and then become derailed. And so the fact that Biden has not put in that place has become a huge point of criticism. And that criticism is probably fair. But that rule, were it in place, would not have applied to this train. This train had a lot of chemicals, but not enough cars to meet the threshold of the Obama rule. So I think there's a fair point that that law, that regulation be back in place. I imagine

it's very quickly going to be in that process because of this, but that would not have prevented this specific disaster, which is something I think has gotten very lost in the big debate over this. Yeah, I think the real question is, if we know that these electronic brakes, which would update brakes that currently are like Civil War era brakes on a lot of these trains, if we know they would prevent derailments, why just say that they should apply to what's known as high hazard flammable trains, right? The ones that are carrying so much toxic. Why not? This, you know, this train was classified as a mixed freight train instead of a high hazard flammable train. Why not just make sure that all of the trains have these brakes?

You know what I'm saying? Like, how about that? Now, that would have been, and I think during, when the Obama administration originally proposed the regulation, some experts were saying, well, try to broaden this regulation

so that it includes more trains, so that it applies to more kinds of trains, more categories. And for whatever reason, they didn't think they could do that. The railroad industry fought back. They said that this was like beyond the scope of this regulation. Again, don't know. But like now, hopefully they do that. And again, like you said, it's not just now up to the administration, because then in 2015, Republicans in Congress slipped into a bill that, oh, by the way, like you need to do all this cost benefit analysis before you have any kind of railroad regulation or transportation regulation. And so now hands are tied. And so now Congress probably needs to intervene to really expand a lot of these rules. This becomes, this is not a defense of what happened in our

administration, what's happening here. The challenge in all of these regulations is because the laws as written over the many years of the regulatory state are largely pro-corporation. And so you have to demonstrate to have a regulation to be able to stand in effect, to pass scrutiny from Congress and the courts. the benefits of that regulation have to outweigh the costs to the people on whom the regulation is implemented. And that can become challenging when trying to stop things like derailments that happen a lot, but they happen on only a small fraction of the number of trains that go. So if you say every train has to have these brakes that cost X amount of money. And you look at the number. So how many accidents that prevent a thousand,

a thousand accidents costs X, but the cost of all these brakes having to go in is larger than X, then you can't do that regulation. Which is just a very, I know it sounds like mathematically wise and efficient, but it's like, Oh, guess what?

It costs the railroad x billions of dollars and it only costs the community that got devastated by a derailment uh you know x million dollars well you know what when it's like 5 000 people who can't return to their houses and then have long-term health problems yeah maybe the dollar amount on that cost is not as much as what it costs the fucking railroad that's making record profits. But maybe it's still a good idea to do for public health. Yeah. And we don't apply that sort of logic across the federal government. As an example, most Americans still have to take their shoes off when they get on a plane because 20 years ago,

someone tried to put a bomb in their shoe as an example of that. Like there is the point here is everyone should do more and do better. We also need better laws that are more pro-consumer and and more and more aggressive on corporations. That is the foundation that even that limits the ceiling of what even the most aggressive administration can do on these matters. Yeah. But you mentioned the Trump administration and their record. Here's some of the things that the Trump administration did when Trump was in office. They dropped a ban on shipping liquefied natural gas by rail tank car. And that ban was so that they said that the expansion of U.S. natural gas production necessitated the rollback. The ban had been a response to concerns about possible explosions. Trump administration says we didn't care. We got to ship more natural gas. Trump's federal railroad

administration stopped conducting regular rail safety audits of railroads, which the Biden administration did reinstitute once they took office. Trump rolled back almost every regulation on toxic chemicals imaginable and put a chemical industry executive in charge of the EPA's chemical division. And lest you think this is all just Trump-era bureaucrats doing all this work and Trump didn't know what the fuck was happening, Trump bragged about some of this. He literally quote-tweeted a headline that said,

Trump rolls back train-breaking rule meant to keep oil tankers from exploding near communities and he wrote effect will be great exclamation point on his tweet of that headline i mean just because in case you didn't you couldn't understand all the other policy weeds regulation bullshit we were talking about that's what he did that's that's what trump did when there was a uh that's that's his record he celebrated on social media a rule that would have made what happened in communities like east palestine less likely as a victory for himself in the rail industry that is the smoking gun like that like that it is could not be more obvious yeah whether a regulation would have like prevented this

specific crash or whatever this is what he this is what he was celebrating when he was president. So here's what Pete Buttigieg has now proposed. He said that the Department of Transportation will pursue some regulations on their own on high hazard flammable trains and electronic brakes. But, you know, you could tell from the language in there that it's basically like whatever the law will allow them to do and that they are constrained. The Department of Transportation is constrained by certain laws that are on the books. So he also called on Congress to act for some of the bigger stuff. So bigger fines for railroads, more of these electronic braking regulations and regulation of hazardous materials. So all these Republicans who are complaining now about Pete and about the Biden administration, I'm sure as soon as some Democrat introduces legislation to expand the regulations on electronic

brakes and hazardous materials and fines for railroads, I'm sure all of these Republicans will be on board. This legislation will have all these co-sponsors, right? Yeah, they have. They have seen the light. They now, Because of this disaster, they now recognize the dangers of siding with real lobbyists. They now care passionately about pollution and risk and safety. So done. Should be a huge bipartisan victory on this one, right? Absolutely. Biden, get your pen ready. You've got bills to sign. Yeah. OK. All right. So the criticism from the right, of course, has been predictably nastier

and more absurd. Republican politicians have been attacking Biden for visiting Ukraine before Ohio. You heard Trump do that. Marjorie Taylor Greene even said that Biden should be impeached over it. They've been calling on Pete to resign. And then we're hearing this kind of shit from people like J.D. Vance and Tucker Carlson. East Palestine is overwhelmingly white and it's politically conservative. More than 70 percent of the voters in the surrounding counties supported Donald Trump in the last election. That shouldn't be relevant, but as you're about to hear, it very much is. If this affected the rich or the favored poor, it would be the lead of every news channel in the world. But it happened to the poor benighted town of East Palestine, Ohio, whose people are forgotten and in the view

of the people who lead this country, forgettable. So why do you think Mago World is so intensely focused on East Palestine, aside from the fact that, you know, they've always been champions for health and safety regulations. Tucker Carlson pretty much said it. And if you want to understand modern Republican politics, compare the Republican response to the crisis in Flint, Michigan, a largely black community, and the response here in East Palestine, a largely white community. The message here, and Tucker Carlson says he, like he is the urtext of Republican philosophy and messaging. He just says it. It's not subtle. The point here is they want to demonstrate to their base that it is, that Joe Biden, Democrats, liberals do not care about a certain segment of the population, that we would prefer to do this to help other people, help people abroad, as we'll talk about, and not help people.

It is pure racial demagoguery. Yeah. I mean, it is. The reason that they're all intensely focused on this is that this hits at the core of their message. It touches on all the erogenous zones for MAGA politicians, right? Democrats only care about people who are not white, not American, and not from small town red America. And that message happens to intersect with how a lot of working and middle class Americans of all parties and races feel

about government and most institutions, which is no one cares about me, no one listens to me, no one sees me. So they know that this is fertile ground, not just for the MAGA base, but for a lot of people who just feel left behind by government because they are in communities that have been hollowed out in a post-industrial world, not just rural white communities, but inner city black communities, rural black communities, Latino communities all across the country. And so this is what they do. Now, what do you think of the best democratic response to this bullshit? So there's two ways to look at it. The first is like, what's your specific

response to what happened here in this community and with the rail disasters in general. And I think you, the riff you had a few minutes ago in this podcast about everything Trump did to side with corporations, side with lobbyists, put a chemical industry lobbyist in charge of these things, that is the right approach here. And that is, Pete Buttigieg did a little bit of this in a subtle, Hatch Act-friendly way as a pushback to Trump. So I think that is the way to do that here. More broadly speaking, there is a battle here for, as you put, people who feel left behind. And that is not, as you say, not just white-roll, blue-collar voters. It is people in inner cities. It is people who are left behind in various communities, rural, suburban been fair to them. And Republican response to that

is to say the reason you are left behind is because Democrats care about people poorer than you, people who live in different country. You sort of said this. So how do we respond to that? Part of that is to explain Republicans are the ones who have left them behind because they care so much about rich people and corporations, that they want to help their wealthy, rich, politically connected friends and not these people. And so we have to go on offense against Republicans as people who could actually represent and fight for people who feel left behind in all parts of the country, of all races, of all life stories. Yeah, I was going to say, I think there's something even bigger here that Biden does quite well. I think he did in the State of the Union quite well, too. You know,

it was very telling to me when there's an Axios piece where they got on the phone with J.D. Vance, Senator from Ohio, you know, Peter Thiel puppet, the guy who ran away, left Ohio so he could go to Silicon Valley and then get funded by Peter Thiel, billionaire. So he tells Axios, you know, because they asked him like, well, why are you all caring about this so much? And he said, because, you know, Trump and Tucker Carlson and I, we realized these are our voters. These are our voters. And then you have, you know, Marjorie Taylor Greene this week saying, you know, we need a national divorce and people from blue states who moved to red states shouldn't be able to vote for five years, right? you know, and sort of engage in this economic populism, but really like go bigger. And it is like, we, we believe that everyone, everyone deserves to live in a safe, healthy, prosperous

community, no matter where you live, what you look like or who you voted for. Right. Like you think those, these people are your voters. I don't care if they're our voters or not. They're, they're Americans and we care about them. And the problem with that party is they only want to help the people who believe what they believe and who support them. And Joe Biden and the Democratic Party want to help everyone, even if you're not for us, even if you didn't vote for us. rich people who run the railroad spent a lot of money lobbying politicians to get their way. And now those rich people and those politicians are trying to get us to blame each other for this or to blame someone else, to blame black construction workers, right? That was part of the Tucker Carlson thing that he said, oh, Pete talked about there's too many white construction workers. Well, what Pete said was in inner city communities, they're importing white construction workers to do projects when there's a lot of unemployment and you could

have more black construction workers work on those projects. So of course, Tucker Carlson turns that around to say no more white construction workers from, you know, that's what Pete Buttigieg says. So they want you to blame black construction workers or Ukrainians who are fighting for their lives against a dictator or unions and government officials who have been fighting for better regulations and better working conditions. Blame anyone but the rich assholes who run the railroads who spent a bunch of money to lobby politicians successfully. We're like in century two of rich railroad barons fucking Americans. It's unbelievable. I think,

and you say like, it's really incumbent upon Democrats to not just say like, no, they're hypocrites. They've done this. We're on the side of working people. It's not just that they're hypocrites. It is,

it is a game that they're playing. They don't want you to point the finger. They want you to point your finger at everyone else, except the people responsible who are the rich assholes who line their pockets. What we are sort of like dancing around here is this much bigger quasi-false choice debate happening within the corridors of the Democratic Party, which is there's a report out this week from American Family Voices, a very smart political organization, looking at the Democratic brand

among blue-collar working class voters. And, spoiler alert, it's not great. And so the question, and like, we obviously know that. We've seen that as we, as Democratic share of the working-class vote and the non-college-educated vote has gone down in recent elections. And so the question is, what do you do about it? And the debate sort of centers around two ideas, and they're not mutually exclusive, but in a world of limited resources, they kind of are. One is improve the Democratic brand. The other is damage the Republican brand with these voters. And that is sort of where you're trying, where sort of the polls around which this debate

operates is what is the more likely path to success, short term and long term, right? Because we're on a ticking clock here if we want to solve some of these problems by 2024, particularly if we're running against a Republican who's not Donald Trump. And so I'm sure we'll talk about this a thousand times between now and the election, but that is a big question for Democrats is how we address some of our challenges. Other Republicans don't have just as many challenges. It's just they just happen to have an electoral college that structurally favors them in a pretty massive way. Yeah. And as we talked about, I think just a few weeks ago here, and for a long time, the problem with Democrats and working class voters was with

working class white voters. Now, increasingly, it's becoming a problem with working class black and Latino voters, especially male voters as well. So it's a big challenge. All right. We should talk a little bit more about Biden's secret trip to Kiev this week. Kiev, Kiev. Look, I listened to Prod Save the World this week and Tommy and Ben still haven't landed on how to pronounce it, so.

Let me guess, does Ben say Kiev and Tommy says Kiev? No, I forget what Tommy was saying, but Ben was criticizing him for not being able to have the correct Slavic intonation there. Oh, of course. Well, I worked in the White House when Russia invaded Crimea and we had a lot, we got corrected a lot on the Kiev thing by people who worked with Ben. I'll tell you that.

Biden went to the capital of Ukraine. We should say that. So Tommy and Ben also covered all the background and secret planning involved in a presidential trip to a war zone on this week's Pod Save the World. So you should definitely go check that out. It's a great episode that leaves us free to break down the politics like the hacks that we are just know thyself right know thyself all right so a few republicans uh like lindsey graham praised biden's visit but most of the mega establishment uh has used the uh why ukraine not oh Ohio talking points, or they said something similar like this. I think I and many Americans are thinking to ourselves, OK, he's very concerned

about those borders halfway around the world. He's not done anything to secure our own border here at home. We've had millions and millions of people pour in, tens of thousands of Americans dead because of fentanyl and then of course we just suffered a national humiliation of having china fly a spy balloon clear across the continental united states that annoying voice you heard was of course uh ron desantis you'll be hearing a lot more of that annoying voice over the next year of course who can forget how embarrassed we were by the balloon? Before we get to him, what did you think of Biden's trip to Ukraine and his speech in Poland afterwards?

I thought the speech was incredibly powerful. The visuals were important. The message was important. It was strong. I think it went a long way to not just helping build support and unifying the country around the sacrifices that we are going to make on behalf of the Ukrainians, but this upcoming battle in Congress over funding for Ukraine. And so I thought it was from a pure like nerdy logistics perspective. I went on two trips with Obama to Afghanistan and the how you pull that off is was always stunning. But this is 10x more complicated than that. We were landing it where the US has a military presence where we had bases, they'd done it several presidents, two presidents had done it, there was a pattern to it, this is

something totally new and involves like 18 hours on a train. I mean, just truly a very brave and bold decision. I think no one would have really criticized Biden for not going. I mean, just truly a very brave and bold decision. I think no one would have really criticized Biden for not going. I mean, it's incredibly dangerous. The Trump never went. I think maybe he went once to a war zone. But just I thought a very, very impressive from the White House and from the president. I mean, it's a ballsy thing for anyone to do flying in the middle of the night on a smaller Air Force plane and then taking the very long train ride

into the middle of a war zone where there's no U.S. military protection, let alone an 80-year-old president. So I also think it's hard to argue the guy's not up for the job when he's doing shit like this. Yeah, exactly. Let's see some of these other assholes do that.

It was very impressive. Which I'm sure was part of the thinking that went into this. Sure is part of it. And yeah, it looked it looked really great. And then you have like, I think you pointed this out in the message box. And you've got, you know, that jack off Ron DeSantis on television looking like a goon. trade into a war zone to meet with an incredibly brave leader fighting the Russians. And Ron DeSantis is doing an interview on President's Day with Pete Doocy. And look, I think to the speech, you know, every time that Biden gets to hammer home his message about democracy versus autocracy, freedom versus tyranny, which happens now to be both a national and an international message. What a world. Just find and replace Putin with DeSantis and you got the same speech.

Right. Well, but it's like, you know, it's Biden has a consistent message and he has since, you know, basically the 2020 campaign about this. And so it was it was a good, you know he i think he did it really powerfully you know he made the argument that the appetites of an autocrat cannot be appeased they must be opposed which again something we're doing abroad and at home so i thought that was great so uh twitter's favorite nate uh dropped this take in response to desantis's comments quote granted voters don't care about foreign policy that much but the emerging gop stance on russia ukraine is likely to be unpopular with swing

voters and is giving democrats a free wedge issue where they'll be on the right side of public opinion in 2024 tough shot at the world i was there huh yes seriously that's why that's why they hate nate so much we're talking about n Silver, right? That's the Nate we're referring to? That is Twitter's favorite Nate. Yeah, I think that's sarcastic. We're really Nate Cone guys around here, but yeah, I get your point. Yeah, I'm a Nate Cone guy living in a Nate Silver world. Anyway, I'm not.

What a fucking nerdy thing for you to say and then meet on a half-ass. Just like a Twitter joke from five years ago. All right, what do you think of Nate's overall take about the politics of this? I think he is technically correct if you look at the polls right now. There is majority support for what President Biden is doing in terms of sending weapons, in terms of economic aid and financial support, in terms of not sending U.S. troops.

Like people support the U.S. troops. People support the U.S. policy and what is happening there. I think it is fair to say that there is polling that shows that patience is not infinite. There was a Chicago Council on Global Affairs poll from a couple months ago that has been tracking the question of, are you in favor of US support for as long as it takes? Last summer, that number was 58%. This most recent poll, it's 48%. So there is some erosion there. People think we should do this forever. But Biden is clearly on the political high side of the issue. Now, the question is, when people actually vote, is 100 miles from now, 100 years from now, when people actually vote is 100 miles from now, 100 years from now, a lot can change on issues of U.S. involvement abroad quickly, both if things change on the ground in Ukraine, but also if they

change on the ground here. If we were to face a recession, people's support for sending money to Ukraine could change pretty quickly. The other more important question I think is, it is if DeSantis or Trump or anyone else who has this position as a Republican nominee and the vast majority of people disagree with it, are they going to disagree with it but care about it enough that it influences their actual decision? There are things you support and oppose and there are things that influence your vote. And I am skeptical that this would influence people's vote. vote. And I am skeptical that this would influence people's vote. Yeah. But again, I agree with what you say. It's totally dependent on what the situation on the ground is over the next year or

so, right? Both like, is there a recession here? What happens if Putin starts winning? What happens if Putin escalates the war to other countries and the US and NATO feel like we have to escalate our support for Ukraine as well? Like these are all wild cards. And I think, you know, you talked about who the Republican nominee is. I think where Trump and now DeSantis and likely the rest of the field are on Ukraine and they're there because the MAGA base is there, that's going to ensure that we will have a year of a heavily covered Republican primary where all the candidates are going to be ginning up nativism and isolationism and spreading disinformation about the war. And, you know, you wonder what kind of effect that will have on public opinion, along with

the possibility that conditions here or abroad could change. And I do think like the easiest, cheapest politics in the world is to say, let's stop spending, let's stop sending money to foreigners and help our people instead. You know, that's like a tried and true, easy political gimmick. And so I would not want to underestimate it.

How many speeches did you write for John Kerry about building firehouses here and not in Baghdad? I can't, it's just so many times he said that. And it was the highest testing line of anything he said in his speech. It speaks to the limits of that, right? Because that was an election in which foreign policy was the number one issue for most voters. And even then, not that the election turns to that kind of phrase, just to put some perspective on why DeSantis took this position. So CBS and YouGov do this

really interesting thing in their polling where they isolate Republicans who self-identify with the MAGA movement and then compare what MAGA Republicans think with regular Republicans. And so in January, they asked in their poll, do you want your representative to support funding for Ukraine? Yes or no? All Republicans, 48 percent. MAGA Republicans, 38 percent. Right. So and what is it? And if lest you think that I can't believe I said lest you think in the same podcast, but you earlier said lest you think. But the MAGA Republicans are not a faction of the Republican Party. Consistently over the year in which CBS has been doing this, self-identified MAGA Republicans make up half of Republicans. So this is not, so you have two-thirds, to sort of reverse the math here, two-thirds of one-half of Republicans do not want their member of Congress to send money to Ukraine. And those are the people Ron DeSantis is probably correctly betting are more likely to vote in primaries, more likely to donate to primary candidates, more likely to attend rallies. So that's where the energy is.

So that's where he is appealing. the same to says any like hard, well thought out views on Ukraine. He's just going where he sees the political winds blowing, which is his one skill that he appears to be better at than most Republicans is figuring out where the energy in the party is going to be five minutes from now and getting there in four minutes. Yeah. And I mean, I think all the other candidates will probably do the same thing too. I'm sure, I'm sure Nikki Haley has a whole bunch of statements where she's a Russia hawk and supportive of Ukraine, but I'm sure she'll fold just like DeSantis. Not Nikki.

No, come on. Not Nikki. Unfair. That's an unfair hit. Pompeo will be there. Pence, they'll all be there. They'll all be there. Which brings us to the next topic.

One important dynamic here is that what's happening in the Republican primary on Ukraine is happening on most issues, which is that everyone's trying to out Trump Trump. This is especially true on issues of race, gender and sexual orientation. Nikki Haley, billing herself as the future of the Republican Party, just said this about Ron DeSantis' don't say gay bill, which bans teachers from giving classroom instruction on sexual orientation or gender identity through the third grade. Quote, I'm sorry, I don't think that goes far enough. When I was in school, you didn't have sex ed until seventh grade. Mike Pence is in court trying to force Iowa schools to out transgender students. Glenn Youngkin is calling for a review of Virginia's AP African American Studies curriculum, taking a page out of the DeSantis playbook. And Trump himself is going further than he ever did in 2016 or 2020 and proposing a nationwide ban on gender affirming care to minors and a federal law recognizing only two genders. Cool party, all about limited

government and personal freedom. So to me, this seems like a path that will make them all less electable in a general election, but far more dangerous if they still manage to win. What do you think? I think it makes them far more dangerous even if they don't win. And I think it is important to at least acknowledge that we are about to head down a at least year long bidding war of bigotry and raising the level of rhetoric. And that is going to have consequences. It's deeply dangerous for LGBTQ plus community, for trans people in particular. We've already seen both in 2016 and 2020, where the rhetoric

coming out of Republican politicians has translated into real world violence. And that, it is a dangerous dynamic that is happening. And even if a candidate who is mildly less dangerous and the most dangerous of these dangerous people gets elected, they're probably going to put in place the dangerous policies, just as Glenn Youngkin is doing, right? Donald Trump, who even tried to portray himself kind of as less of a culture warrior on some of these issues, then went in place and did all the terrible things when he got there, right? It is dangerous. Now, the question is, is it going to make them unelectable? We have no idea. Will it potentially make them less electable? Will it give Democrats not an opportunity, but sort of an imperative to reuse the MAGA extremism messaging from 2022 that was so effective? Absolutely. Like it is. But if we don't, aren't the, this primary will take place in large place inside a hermetically sealed right-wing news bubble and people who don't pay attention to politics full-time who are going to pay no attention to Republican primary,

who will decide the 2024 election will only know about these things if we tell them. Yeah. And look, we're talking about the Republican primary right now, but there's hundreds and hundreds of bills that have been introduced and laws that have been passed in mostly red states or purple states throughout the country that have targeted LGBTQ kids, trans kids, trying to, you know, ban certain books, try to prevent kids from learning about history, the history of race in this country. So it's already happening. And I think the question is, you're right, like it's Democrats. We have to figure out a way to respond to this. We shouldn't avoid the argument. We have to figure out a way to win the argument.

I think it's true that some of the polling on these issues, especially gender identity, is not where a lot of us would like it to be. But again, the way to deal with that is not to avoid the argument, it's to win it. I think Trump and DeSantis and a lot of these MAGA media assholes, they want to get in a fight over cherry-picked examples of this one book or this one athlete or this one teacher. And I think Democrats shouldn't take the bait. I think we should approach the issue like we did abortion in 2022 and, you know, point out that MAGA politicians do not get to make decisions about what our children learn, who they love, who they become and what kind of health care they need. They don't get to tell our kids that they're not as worthy of love or respect or protection under the law as other kids just because who they are makes some other people angry or uncomfortable. And that's it. That's just like period, end of story. And that I think you carry that message everywhere. And then you don't get down into the weeds with them about all the individual fights they want to pick in this school

district or that one. And I think that's a powerful enough message that it will marginalize the Republican extremism and make Democrats the party that are sort of willing to listen to parents and kids. I've seen a lot of polling on these issues, including the issues around gender identity. And there are some polls that look really hard for Democrats or others that look terrible for Republicans. And it is over framing how those issues are discussed. And that is why the framing is so important. And that's why we have to engage and engage aggressively, because if we do not, we are going to, this will be debated on the cherry picked examples they have on the distortions, on the

lies, on the conspiracy theories. And this is something we said way back in the Trump era, which is we do not get in a world in which the right-wing megaphone exists where you have social media companies like Facebook that push these cultural issues to the forefront, we don't get to decide which fights to – we don't get to decide which fights happen. We just have to figure out how to win those fights. And this is one of those cases. It's not just a political imperative. It's a moral imperative in this case, too, because if we don't fight back, no one's going to fight back. And that is, I think, a message for everyone from top to bottom. You're going to hear a bunch of pollsters and consultants

say, well, people care about inflation and the economy. And that's all true. And you're going to have to put this in context. And there are versions of the race class narrative messaging that we've talked about many, many times over the last many years on this that apply here too, which is Republicans are lying. They're trying to scare people. They are dividing people. They are picking on kids and they're doing it for a reason. And what is that reason and who benefits? And that's the sort of messaging narrative that we need. We just talked about it around the railroad issue. You know, if it works in both cases, this is what, know and that's a not chancro soros been on here a lot heather mcgee um they have done a lot of research into

this and it happens to be the morally correct thing to do but it also happens to be the most politically effective thing to do is to call out the bullshit mallory mcmorrow state senator for michigan was on this podcast last week she was doing a version of it too. That's why her speech went viral a ways back, right? We should not feel defensive about this. There is a way to talk about this that is aligned with our values and also is going to appeal to the broadest possible audience of people. And what it does is it marginalizes the extremists and all the folks on our side and folks in the middle, you know, will agree with the, uh, with this framing. So, um, another Republican who may be joining the field is South Carolina Senator Tim Scott.

He's in Iowa this week. And according to Politico quote, has a belief that perhaps other Americans are similarly disgusted with the tenor of today's politics and want a candidate who will restore civility. Red Hen. Civility alert. Red Hen. Civility alert. Paging Chuck Todd. Paging Chuck Todd.

Tip O'Neill. Ronald Reagan. You're needed with a bourbon in the West Wing. Red Hen. Red Hen. the West Wing. Red Hen. Red Hen. I'm sorry. Red Hen. I didn't need to do that, but.

I mean, one of my favorite things. The word civility was right there. Yeah. One of the things that I really enjoyed in the last week or so was when before, as part of the ruse to go on this secret trip to the capital of Ukraine, Biden attended a restaurant, a dinner at a restaurant named Red Hen, which is an excellent restaurant in D.C., which caused Tommy, whose voice you hear there, to speak up. Little did Tommy know, the Red Hen incident of 2000 and whatever year that was, was at a different Red Hen. It really ruined Tommy's day. Pointing that out to him on text. Well, it was so nice. He did it privately on text,

like from friend to friend. I didn't just like actually him on Twitter. No, he actually himself on Twitter. That's the kind of guy Tommy is. That's the sort of accountability he brings as a pundit. Enough about Tommy's right-hand obsession. Is there room for a candidate

in this Republican primary who wants to focus on civility instead of fighting the culture wars? Maybe. Is that not the answer you're expecting, is it? No. I'm going to say a big no on this one. is. And it is true, as Nate Cohn, our favorite Nate, pointed out in his New York Times newsletter the other day, candidates who start with above 20% in early polls are the ones who almost always win. Right? So the fact that, as you look at that, it means that the overwhelming likelihood is either Ron DeSantis or Donald Trump will be the Republican nominee. But I want to bring a tiny modicum of humility to this because the way the Republican primary works does allow a possibility for someone to sneak up the middle and get momentum very quickly because unlike the Democratic contests, Republican contests are winner take all. So there is a

situation where you could win in a multi-candidate field where they pretty, it could be the overwhelming majority of Republicans do not want civility, but the pro-asshole people are divided amongst the nine assholes and the very small sliver of civility people align behind the one civility candidate and that person could win primaries and take all the delegates. Is that likely to happen? Absolutely not likely. Is it probable? No. Could it happen?

Fuck, I don't know. Do I make predictions? Absolutely not. Yeah. I think that to the polling you cited about Ukraine, like the MAGA base in the Republican Party is either behind Trump or is Ron curious. And then I think and I think those are largely non-college educated voters. Those are those that's that's the base of the Republican Party right now. That's Trump's base.

Then I think there's a set of college educated Republicans who are a smaller portion of the party and they are mostly done with trump it's probably still vote for him if he's the nominee yeah absolutely 100 yes 100 and are looking at desantis maybe looking at hayley looking at scott maybe looking at some of these other maybe looking at a sununu if he gets in and the that group of people that they're going to split their vote between all those candidates but that's a small segment of the republican party and i just don't know how tim scott sort of or anyone else besides de santis breaks into the much larger segment of the republican party which is the base, especially if your brand is like sunny Republican optimist. I just don't, I don't know. Maybe, maybe I could be wrong.

Just as a teaser here, I recorded an episode of Political Experts React earlier this week with Cornell Belcher looking at- Tim Scott? Yes, with Tim Scott. And boy, he was impressive, I have to tell you. No, with Cornell Belcher, who was a Democratic pollster, was one of Obama's pollsters, incredibly smart guy. And we looked at DeSantis, Haley, and Tim Scott's sort of early forays into presidential command. And he had some really interesting thoughts about how Scott could possibly give himself a chance. So that'll be out next week.

You should definitely watch that as opposed to tommy's thing that he does that is trying to usurp liberal tears whatever don't say the name i was when i was recording we have not been invited on yet tommy tommy's done two already no one's invited us yeah you know why because he wants fucking views and you know you get views you invite brian dollar cohen on you do your video with you as a star but i when i when i sat down to record it uh ben and elijah just wanted to make sure that i knew that tommy name checked me in the recording of liberal tears which i have not seen because i will not give him that free free view because we're in a competition but anyway so what did cornell have to say about these you know do we get a preview of what you know what you do i'll

tell you you get a preview you have to watch you go to the positive american youtube channel you subscribe if you haven't and then you watch the video and you'll be smarter don't give it away for free here before before this just becomes an incompletely internal crooked conversation here a couple more points about tim scott one i do think that uh i want to go on record as saying i do think he has a better chance than nicky haley i think he I think that like, look, I think of that mess of a Republican convention in 2020. He gave the best speech of all of them. It's funny. A couple of people tweeted at us after we talked about Nikki Haley. Like, I don't know. I saw her announcement. I'd sort of be scared of her in a general election. It's like, oh, yeah, that's not the point. If Nikki Haley was the Republican nominee, if Tim Scott, even more so than Nikki Haley, was a Republican nominee, I would be much more nervous about running against them. I think they'd be a much...

I just don't see how they get through the primary in this party. That's my biggest issue with them. But again, and also Tim Scott was on Hannity, as one does when one is testing the waters. As one does when they believe in civility. Right, yeah. And well, so Hannity asked him, as he did with Nikki Haley, when one is testing the waters as one does when they believe in civility right yeah and well so hannity asked him as he did with nikki haley what are your policy differences with trump and tim

scott said probably not very many at all i am so thankful that we had president trump in office so you can see it like where mr mr civility it's gonna be it's gonna be a little tough yeah like oh you agree you is that it was that uh you agreed with child separation did you uh were you thankful that he was in office when he um tried to incite a riot to overturn the election is that something you were grateful for like i you know i don't know this is going to really hold up yeah it's a it's it's a tricky wicked as they say it's a tree it's a it's a bit of a tricky way okay when we come back strict scrutinies

Leah Lippman will join to talk to Dan about the big tech cases in front of the Supreme Court this term this week the Supreme Court heard oral arguments in two cases

that could change the rules for online speech joining us to break it all down is Leah Lippman from Crooked's legal podcast This week, the Supreme Court heard oral arguments in two cases that could change the rules for online speech. Joining us to break it all down is Leah Littman from Crooked's legal podcast, Strict Scrutiny. Leah, welcome back to the pod. Thanks for having me. Well, thanks for doing this in the middle of an ice storm. That is a very generous way to spend your time during a climate change, natural disaster that you may be dealing with. I'm happy to come into work as long as the internet is allowed to continue to exist. So there we go. That's true. So I wanted to have you on today for two reasons. First, everyone loves a strict scrutiny of Positive America crossover episode,

so we've got to give the people what they want. Two, these cases before the Supreme Court both obviously have very high stakes, but they're also, I think, a good gateway to help people understand the contours of the big tech policy discussions that are happening, sort of fear mongering from the right about shadow banning and censorship and legitimate concerns, not just from the left, but for everyone about the role social media plays in the spreading of disinformation, election suppression, hate speech, incitement of violence, of all of that. And so if we could possibly start with helping people understand what is at stake, perhaps in this, the Gonzalez case might be the one to start with. What's at stake there, what that case is about, and how it impacts this thing called Section 230 we hear about all the time? Yeah, absolutely. So Gonzalez is the case about Section 230, which is the big

provision in a law known as the Communications Decency Act of 1996. And basically, that law limits your ability to sue interactive computer service providers that host other content like Twitter, Facebook, Google, YouTube, all of that stuff. It limits your ability to sue those things for content provided by other people. That is, it limits your ability to sue those things for content provided by other people. That is, it limits your ability to sue Google when some idiot like Ted Cruz puts something up on Google. And so the question in the case is basically, well, under what circumstances, if any, can you sue Google and these other companies for some of the content that's put up by third parties if Google and these other

companies are maybe doing some things with that content, like recommending it to you. After you finish watching one cat video, YouTube queues up another and they're making a recommendation to you. And so you're no longer, the plaintiffs say, suing the companies just because of the cat videos. You're suing the companies because they're recommending those cat videos to you. You know, they've come up with these algorithms that the plaintiffs say, you know, are the company's own content. And so that's why the plaintiffs say, you know, they're able to sue the companies here. And the case is really about like the future of the internet, because of course, now the

internet works based on these algorithms. You know, how is TikTok supposed to work unless it knows what videos to recommend to you next? Or how are search engines supposed to work unless those search engines can return search results that are, you know, queued up for you based on the algorithm's recommendations about which search results you're supposed to like? And so these cases are really about, you know, when, if ever, can these companies can be liable and what limitations, you know, can these companies can be liable and what limitations they will place on companies' ability to kind of curate the content that's on

their sites. I think the most important part of your explanation right there about Section 230 is the use of the term 1996 to describe when that law was written. We're obviously talking about a very different internet, the most basic internet in the world, where what I think, if I understand correctly, and by understand, I mean having listened to the most recent episode of Strict Scrutiny, that what they were really trying to do with that law, the internet they were thinking about was when AOL or Prodigy was providing people access to the internet and then people were either creating a nascent website or posting on message boards. So if you posted on a message board something libelous about me, I could sue you, but I could not sue

AOL or Prodigy or whoever else. Is that correct? Yeah, that's exactly right. And what the law was trying to do was say, well, if those companies take down some of the defamatory content but leave up others, we're still not going to treat the companies as the publisher or speaker of the content that they missed and just left up. But now what's different is it's not just that the platforms are no longer passive, right? They are actually specifically showing people content based on the data that they have accumulated in highly targeted ways for the purpose of profit, right? So now they are active. And so what is that? What do you, based on the briefs in this case, the hearings from the last couple of days, where do you think this is going? Is there, hearings from the last couple of days. Where do you think this is going? Are we just in a binary situation where it's either status quo or the internet ends tomorrow? Or is there something

in the middle that could be resolved here? Or are they going to kick this to Congress? I think there's definitely some things in the middle where they could leave some possibility for suing the social media companies under some circumstances, although I don't think they're going to say you can sue them here just based on the recommendation of a next video based on an algorithm that picks up certain information about you or certain behavior that you've engaged in on the internet. I don't think they're going to say that's enough to allow you to pierce these companies' immunity. But I think you heard some real hesitation on the part of the justices about their ability to figure out when you could sue these companies. You had Justice Kagan saying, it's not like we're the nine greatest experts on the internet here. So

maybe we should allow someone else to try and pick and choose what cases you can sue these social media companies and which cases you can't. But I also think you're right that this law that the court is trying to parse and figure out when it allows you to sue companies and when it doesn't, it was written in 1996 before these algorithms were so endemic to the way these companies did business, before they were actively pulling information about people, using that as proprietary information to generate algorithms, to recommend additional content, and then sell information about you to other companies. And that wasn't the backdrop against which this law was written. And I think in an ideal world, the justices would like Congress to write a new law that tried to sort

between different algorithms and different conduct that these companies engage in. Do you think that there, I know that with this Supreme Court, we rarely, it rarely makes sense to contemplate quote unquote ideal outcomes, but do you think, is there an ideal outcome that you would like to see from these cases? I think an ideal outcome would be the smallest decision possible that just says as little as the court can. So they just say, you know, based on these allegations, which are basically like you can see a thumbnail for the next video that YouTube queues up for you. That's not enough to say that YouTube is recommending content and generating all of these algorithms that are recommending ISIS content to people based on, you know, behavioral analogs that the company

should be responsible for. But maybe in another case where you obtain other information about how the algorithm works, or the company is taking more active steps, or you say they're taking more active steps to recommend this content, then maybe you can sue them there. And I think that that would probably be the best outcome for the court to say as little as possible, partially because it's clear they don't actually understand how any of this technology works. I mean, in the second case, Justice Thomas brought up pagers and I do like pagers have not been here for a while. I mean, between if you ever watch a Senate hearing on issues like this, you come away with the conclusion that we really don't want that. We don't really want Congress involved to solve these problems. They don't understand it. Then you listen to a Supreme

Court hearing and you're like, we really don't want the Supreme – we're running out of branches pretty fast to deal with this. Just to put a finer point just sort of on this, how strong is the Section 230 liability shield? Could someone theoretically under the current law, at least heading into these cases, like if you were to find out that a platform knowingly allowed misinformation or libelous information or dangerous information to circulate or be promoted, could they be sued civilly? Are they as protected as the gun manufacturers? It feels like to a lot of people, both on the left and the right, these companies just operate without any fear of any legal repercussion. And so just trying to understand exactly how much protection they have and what Congress potentially do to change that. They have a ton of protection right now based on how courts have interpreted the law. And basically, courts have said, if you are suing these companies based on anything on

their websites, Section 230 bars that claim. And I think the plaintiffs are right that that goes too far. And you heard some real skepticism by a pretty wide array of justices. So Justice Kagan, Justice Jackson, also Justice Thomas and the Chief Justice were all pretty astonished about the prospect that you couldn't sue a company if a company, let's say, intentionally wrote an algorithm that would recommend discriminatory content or that would discriminate against certain people. The justices didn't seem to think that Section 230, properly interpreted, would bar that lawsuit. But they have no idea where exactly to draw the line between when you can sue a company and when you can't. But it's absolutely the case that this immunity is extremely far-reaching today,

probably too much so, but also that courts don't know exactly how to cut back on it. The state of Texas passed a law recently that would have real liability for this company under the idea that they're operating in the, quote-unquote, the state of Texas in terms of censorship, shadow bait. It's a huge hodgepodge of right-wing mad libs. But that court, that case is also theoretically widening its way eventually to the Supreme Court. Is that correct? Yes. So that's a net choice case coming out of the Fifth Circuit, the Texas law. There's also a similar case arising from a Florida law. That's another kind of mad libs of conservative grievance. But the Supreme Court wouldn't hear those cases until next term. And I actually think it's too bad that the court is potentially hearing those two cases in different terms, because at their core, they're kind of about whether under the law, you know, government entities or private entities can treat these social media companies as responsible for, you know, the content on your website and therefore like you can't moderate any of it.

Whereas the federal law, Section 230 says, no, you can moderate it and still not be treated, you know, as the publisher or speaker of the remaining content on your website. Switching gears here. We have all been talking and waiting to hear what was going to come out of the special grand jury in Fulton County. We even slowed down the Podcast of America podcast last week just so we could hear what was going to come out in the report. The report basically told us nothing. That then changed over the last 48 hours or so when the forewoman of that special grand jury began doing a media tour. And there has been a political playbook this morning that says, did this person just help Trump get off? There's word that the Trump side is going to try to use this as a way to get out of any indictment that may come. This fourth person has not told us that Trump was going to be indicted, but has implied that that recommendation came forward. Help us understand what rules are apply here. Did this woman break the rules? If

she did break the rules, does that mean Trump's going to get out of jail again? What is going on here? So she definitely broke norms around confidentiality of these indictments. Norms are so 2015. Yes, yes, norms. Tell me about rules. Sometimes norms become rules and norms are treated as the law. And here I can imagine, you know, the Trump administration, not Trump administration, gosh, speaking about the way things used to be, you know, the Trump camp saying, well, look, by basically insinuating before the allegations became public that there was going to be an indictment against Trump, she's kind of poisoned the well and interfered with the possibility of a fair jury trial under the Sixth Amendment and other potential constitutional

guarantees like general principles of fairness under the Due Process Clause, again, because you're kind of polluting the well before the facts actually are coming out. Now, do I think that's necessarily a winning claim? No. But I think it's actually pretty bad to have, you know, people who served on the grand jury, you know, steadily leaking information about what was going on in the grand jury before any of that becomes a formal legal process. I mean, you can imagine a different situation where, for example, a grand jury recommended an indictment for someone and maybe their deliberations were influenced by invidious forms of discrimination, you know, on the basis of race or sex. And a prosecutor said, you know what, I'm actually not going to

go forward with the indictment because I concluded that the grand jury proceedings were so flawed. But before they make that decision, you have people on the grand jury leaking that, oh, we chose to indict that person. That could be really bad. And I wish this wouldn't have happened. I don't think it would make any resulting indictments invalid. But I don't love to see it. Does it matter that this is not the great, she is not the foreperson of the grand jury that it would actually deliver the indictments, that this was a special grand jury that was making recommendations to the prosecutors. And then as I understand it,

the Fulton County DA will then try to seek an indictment from a separately impaneled regular grand jury. Is that correct? So it could affect the analysis of any legal claim that Trump made in that it seems to further remove, you know, any possible influence this person had over whether an indictment was ultimately issued and whether an indictment was ultimately sought. But I don't think it affects the substance of their claim that this person has kind of poisoned the well and influenced the proceedings in a way that should give us pause, you know, if it happened in other cases.

you know, if it happened in other cases. And could the woman herself face any sort of legal consequences for having done this? Are there criminal penalties for this? So I am not familiar with all of the criminal laws in the state of Georgia. It turns out criminal law is actually pretty vast. I think it's also, you know, a little unfortunate that too often, you know, the criminal penalties end up being faced by people who try to challenge those in power and try to impose criminal consequences on the more powerful. So I wouldn't be shocked if we start to see suggestions that this person could face, you know, certain forms of civil or criminal liability for breaching, you knowaching rules of confidentiality around the grand jury proceedings. But I haven't yet seen any exact claims about the sort of liability she might be facing. Leah Lippman, thank you so much for joining us. It's always great to talk to you. And hopefully you have power and the internet still exists in some more accountable form the next time we speak. We'll see what Sam Alito has in store. We'll see what Sam Alito has in store.

Thanks to Leah Lipman for joining us today. Everyone have a fantastic weekend, and we will see you next week. Bye, everyone. Pod Save America is a Crooked Media production. The executive producer is Michael Martinez. Our senior producer is Andy Gardner-Bernstein. Our producers are Haley Muse and Olivia Martinez. It's mixed and edited by Andrew Chadwick. Kyle Seglin and Charlotte Landis sound engineered the show.

Thanks to Hallie Kiefer, Ari Schwartz, Sandy Gerard, Andy Taft, 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 pod save America.