The Comedy Cellar: Live from the Table - Benjamin Wittes

Episode Date: October 28, 2022

Benjamin Wittes is an American legal journalist and Senior Fellow in Governance Studies at the Brookings Institution, where he is the Research Director in Public Law, and Co-Director of the Harvard Law School–Brookings Project on Law and Security. 

this is live from the table a comedy seller affiliated podcast coming at you on sirius xm 99 raw dog and on the laugh button podcast network dan natterman here along with noam dorman the owner proprietor if you will, of the Comedy Cellar. And Perel Ashenbrand is with us. She is our producer. We also have behind the scenes unsung hero, though I sing her praises often enough. The Duchess of Decibels. The what else do I say about her?

The Fraulein of Faders. The Wizard Fraule line of faders. The frow line of faders. Okay. Nicole Lyons from the great city of Binghamton, New York, now living here in New York City. Thank you, Nicole, for doing your part. I guess we have a guest coming up in a little bit, but when's he coming?

545. So we have this new system, but I just want to say Nicole is really like this and then watch. It's like an answer. See that? It's quite a delay. That sounds great. Anyway, I'm just saying it's weird. It doesn't matter. Don't look at the screen.

It looks good. It's still a huge improvement. It's called latency. We have a latency issue. If anybody. It's called latency. We have a latency issue. Go ahead. Does anybody have any particular things to address? I do have something that I find of interest if nobody else has. Is it?

Well, go ahead. Is it about comedy or about the news or your personal life? It's about something I saw on Netflix that I found pretty fascinating. Okay, go ahead. The Thai cave rescue. That's what they call it. They really put no effort into... It's called Thai Cave Rescue. That's the name of the

limited series. Like Thailand? Yeah, Thai Cave Rescue. They put no effort at all into the title of the series, but it's about... Believe it or not, it was four years ago. It's hard to believe. Remember those kids that were stuck in the cave in Thailand? No. What do you mean you don't? I don't remember that. You really not remember that? No, I really don't. It was a big news story. It was like everybody was

Nicole, did you recall that? Yes. Everybody was like riveted to the TV set. How are they going to get these kids out of that cave? I remember some guys underground in a tunnel. Some workers. No. Well, that happens every now and again. There's like mine workers that get stuck. But these were kids that went cave exploring and then the water started coming in and they were in there for 17 days. And the first eight days they

were there by themselves. Literally, they didn't even know if anybody was looking for them. How old were these kids? I think they were like 13, 14. And then their coach was like probably 20-ish or so. I don't know. I'm just judging by... Oh, the coach. Yeah, that sounds familiar. And so they had like... were all over the world. People were coming in like they needed specialized cave dive.

Or Elon Musk was going to help save them. Well, Elon Musk, as he always does, came up with some harebrained scheme to try to save them. But Musk, I mean, he makes a good car and I guess he does some other things well, but he's also complete, you know, P.T. Barnum type and most of what he comes up with seems to be insane but um but they didn't use his advice but no they they ultimately um well i didn't know this um i guess it's not really a spoiler alert because it was in the news they drug these kids in order to bring them out of the cave why because they couldn't teach these kids how to cave dive you know that these people had 10 20 years experience in cave dive 30 years even you couldn't

teach these kids how to cave dive but if you try so you basically they drugged them knocked them out with ketamine and just dragged them through the cave like they were like they were equipment because the kids would have freaked out if they weren't unconscious they just threw water or and just drag them through the cave like they were equipment. Because the kids would have freaked out if they weren't unconscious. Through water or something? Through water. The cave was flooded with water. And so they put masks on the kids, and they had an oxygen tank,

and they knocked them out with ketamine, and they had the professional divers drag them as if these kids were just equipment. That's fantastic. It's amazing it's like in craziest scheme and you know and and and and they didn't think it was they didn't think they were going to save they thought they'd lose some of these kids but they all made it out 17 kids or 17 days sorry 17 days the first eight days they were in the cave with they didn't even know anybody's drink no there's no food until after eight days they were found by a dive

a diver who went in there something like i think from england they had to find people from all over the world that were good enough to cave dive and they found these kids and then they brought them food they brought other cave divers came in with food and stuff but they had no food for eight days the miners were from chile right chile uh there were there was a chilean minor thing yeah but that was i think like 10 20 years mean, that was a long time. Anyway, I guess you don't need to see it anymore because I just talked about it. But I just I cave divers on Netflix. I'm having I recommend I'm having such a hard time understanding how these kids got into this.

They walked into the cave and then it started right. You know, in Thailand, these parts of the world, they got these monsoon rain. Yeah, yeah, yeah. And and the and the and the rain floods the ground and the water kind of rises up from the ground and floods the cave. But where how did they not drown for 80? Because the water didn't go all the way in. They had to run. They had to go deeper and deeper into the cave because the water was coming. I mean, can you imagine the horror of these? I mean, probably elevation, probably the. Yeah, I guess the cave went up or whatever. And so the whole cave was not flooded,

but the part that they were in was not flooded. But they were worried that it might be, so they had to get these kids out. They couldn't just like wait for the water to recede because, I mean, it's just insane. It is pretty amazing. Can you imagine if your kid was in there? You'd never be able to function.

I think about these parents. Sometimes their kid gets kidnapped or something or disappears and they never find them again. Yeah. I'm like, I just don't know how they go on. But how do they live their lives? Well, remember the story about Lauren Spearer in Indiana, in Bloomington, Indiana, that like 20 year old girl. I think she was from Westchester, actually. A different one.

No, there was one where like recently where the the fiance killed her. Yeah, they were trying to find the fiance and he ended up dead. He killed himself, I guess. Well, he killed her, too. But no, but this girl was like, I really do think they were from Westchester. I don't know. Possible. The X-Men are from Westchester. The who?

X-Men. Oh my God. And this girl went, I mean, she could, you know, be any of our, she could have been any of our kids and she. I mean, I don't have to. Well, not you, but here. I don't know how this was like really a huge, huge

story. I'm not going to read it now. Well, OK, but I thought maybe it was the miners are from Chile. Chile. Chile. Yeah, that's a Chile. Chile. Chile. Yeah. All right. Well, you should read up on this because it's it's unbelievable. They still haven't found who killed her. With a lot of people have been killed.

They haven't found who killed them. I also on a related note, I also watched the Ted Bundy movie with Zac Efron, who looks a lot like Ted Bundy. Really? How was it? I enjoyed it. Will you watch the Jeffrey Dahmer one and report back? I'm not that interested in Jeffrey Dahmer. Really? For some reason, he doesn't.

First of all, it's a series. Series is a big investment. Now, I invest even with the tie cave thing. I fast forwarded here and there. But the the Dahmer just doesn't interest. He's the guy that ate the dudes. He was like a cannibal. It doesn't interest me.

For some reason, I had sex. We all have our interests and that's not an interest. OK, so talk to us about Ted Bundy. I happen to know a lot about this stuff, so I'm very interested. Well, number one, Zac Efron talk to us about Ted Bundy. I happen to know a lot about this stuff, so I'm very interested. Well, number one, Zac Efron looks a lot like Ted Bundy. Mm hmm. And number two, never trust men, I guess, is that that is correct. Straight, especially straight white men in particular.

Well, but you don't necessarily know they're straight. Bundy, he put on like a cast, a fake cast. And he had women. He said, oh, could you help me? And he was a decent looking guy. He's a good guy. Quote, unquote. And he had this cast on.

He would tell women, can you help me load my something into my car or whatever? And they would come, oh, sure. And then he would club them. It's so lucky for you that straight white men happen to be the worst people. What if it was actually gay black men were the worst people and then you had to hold your tongue all the time you wouldn't be able to say never trust men especially gay black men you just never be able to say that i think it really worked out conveniently for you that the worst people actually the one people who you could say these things about right she's half right i wouldn't

say the worst people are gay are straight white men but she's half right. I wouldn't say the worst people are gay or straight white men, but she's half right. The worst people are men. The serial killers, by and large, are straight white men. I'm not sure about the white part or the straight part necessarily. No, I'm telling you, I've read a lot about. We know what your reading comprehension skills are. Really? Do we?

What? It does seem like, you know, it may be, by the way, it does seem like these things are mostly straight white men. But, you know, white people are I mean, for instance, African-Americans are 14 percent of the population. So, you know, you wouldn't if everything just broke down according to race, would still be you know okay let's not turn this small number but but it does it does feel that way like it's mostly white people do this stuff and you know what there's something cold about um certain white cultural things certain certain white families, certain white culture. Which wouldn't shock me if that had a relationship to this kind of stuff a lot like in my experience, like with, you know, people are going to complain if I say this, but I'm speaking honestly, heartfelt that black culture, Hispanic culture just seems to be warmer on average. Just warmer.

I think that's true. And you somehow think that warmness would reduce the number of like weird, like serial killer types like weird people. Yeah. A lot of these people have had really fucked up childhood. And you can tell what I mean, There's the psychopathic triad. You can tell from. We'll have to do research for next time,

because I don't think we know statistically if we can say that proportionally there's more white. Get us a serial killer guest. Oh, my God. I would love that. And as far as straight is concerned, I don't know about that either.

But we can all agree that men are dangerous. And also Ted Bundy was a lawyer, right? Ted Bundy was a law student. I don't know if he finished or not. He also volunteered in a rape crisis hotline center. I'm sure he was a very, in many ways, fun guy to hang out with. He was a lot. A lot of well, a lot of the serial killers profiles is that they're very charming. That's how they lure their victim. Hitler was the life of the party,

was he? I don't know. Yeah, yeah. He wore the lampshade. No, no, he wasn't. Is that a reference to the. No, it wasn't a reference. But that's as far as my net, my Netflix viewing, that's that's my Netflix weekly summary. I kind of like this is a new segment. Now, before before Benjamin Wittes is on, what do you think about this explosion of the Nord Uno and Dos pipelines in Ukraine? Did you see that story? Oh, I don't I don't know. I don't see what's going on with that. Do you know about that, Peril?

Is that the Ukrainians blew him up? No, the story is, and I have trouble understanding it, the story is, as of today, that the Russians blew up their own pipeline. Why? Of course, Tucker Carlson says America blew up the pipeline, which is, I think, ridiculous also. I don't know if it's

ridiculous that the Russians blew it up. It just seems really weird to me that the Russians would blow up their own pipeline. I thought Dan might have some thoughts on that, but he didn't. No, I don't have any thoughts about that. I wasn't. No, but I did hear about didn't NASA try to divert an asteroid? I think they successfully did. And did they? OK. Yeah. Yeah. We're all over the place that. Yes, that is true.

And my reading comprehension is fucking high. My math comprehension might not be that high. What was your verbal SAT? And before you do it, I'll take 15% off and I'll, and I'll. Well, it was near perfect. No, it was not. You know what? I probably have it.

And I'll show my math was abysmal. Your verbal SAT was not near perfect. Okay. I not near perfect. I'm going to tell you why. Because the verbal SAT is not about words. It's about analogies. It's a logic test. There's three. I don't know if it's changed, but there was the reading comprehension part was one part. That's right. And then the analogy part. And then I think straight up a mat. Oh, yeah. I had very, very high in the verbal and very, very low in the math. Why do they

test vocabulary if the SAT is about intelligence? Isn't vocabulary completely learned knowledge? Well, two things. I know it kills you. Do you have your SAT scores? Probably somewhere. Could we do a show about it? Can I make a guess?

Dan make a guess and you actually bring it in? And then I'll answer you about the... But I have to find it first. Go ahead. Yeah, well that was my question. Why would they test vocabulary? First predict her score. No, don't predict it now. Let me find it first. No, I want you to commit to bringing it in no matter what it is. I've committed to bringing it in.

I remember the 800 system. Yeah, that's what it is. I've committed to bringing it in. I don't know if – I remember the 800 system. Yeah, that's what it was. It was out of 1,600. Okay, so now – so that's a good question. I think that, first of all, the SAT is not supposed to be an intelligence test. It's supposed to be a test which predicts your ability to do well in college. The LSAT is more supposed to be like an intelligence test. So for instance instance math also

i mean unless you unless you learn the math you don't know how to do it right right so once learned math then becomes about intelligence yes are you good at math yeah so the sat um uh is obviously if you don't have a decent vocabulary you can't be expected necessarily to understand college level texts and blah, blah, blah. So that would be that. But, but I would go further and say that intelligent people pick up vocabulary. I'm pretty sure it's Carly's. It's not just learned because I see it in, I see my own three children exposed to the same number of words.

And there's a clear difference in how they pick, how pick, pick it up. three children exposed to the same number of words. And there's a clear difference in how they pick it up. So my son, Manny, nine-year-old, says to me yesterday or on what day was Rosh Hashanah? Sunday. On Sunday, he says, no, no, no, you're turning the house into chaos and disarray. I said, did you say chaos and disarray? He said, yeah, chaos and disarray. And I'm like, well, that's that's like no nine year old says chaos and disarray. I think chaos might be a nine year old might know chaos, but disarray is probably unusual for a nine year old. But a nine year old might know chaos. But to use it in his working vocabulary is like this is chaos and disarray.

It just it just flowed out of him. Now, I don't think I would have said that at nine years old. I know my daughter Mila wouldn't have said that at nine years old. My other one is younger than nine. I don't think he will either. So did he learn that? I mean, yes, he did learn it, but it's also I think a sign, obviously a sign of his verbal

intelligence. And then it's not a coincidence he's been speaking since he was a year and a half. He's just always been good at speaking. So I think it's difficult to disentangle, disentwine. Although I do remember we did learn vocabulary in high school. They gave us lists.

But some kids do bad on them. Some kids maybe can't memorize it. Well, memorization isn't an indication necessarily of intelligence. That's the signal from my, that's my cue to do what I do best, which is introduce people.

Say hello first. Bingo. Benjamin Wittes is with us. Benjamin Wittes is with us. Oh, look at that. There he is. Hello. Wittes is with us. can i i've never heard that before yeah well he probably has not he probably has benjamin wittis by the way is an american legal

journalist and senior fellow in government governance studies at the brookings institution where he's the research director in public law and co-director of the harvard law brookings project on law and security thank you for coming ben Benjamin Wittes. And I apologize again for that introduction that you've probably heard many times before. It's good to be here. Benjamin Wittes is Wittes, that is. Look at that. And that's an awesome, is that a hammock you're sitting in? I am sitting in a hammock. That's awesome. I had a hammock similar to that when I was in school, but yours is nicer, way nicer. I decided at the beginning of the pandemic, if I was going to spend a year or two in this room, I was going to do it in a hammock. That's amazing. By the way, before we

get into the law stuff, and you may not have any desire to comment on this, but I'm just curious because it's on my mind. Do you have any thoughts on whether or not and why Russia blew up the Nord Stream pipeline? It's such an interesting story to me. Are you following that at all? I do. And I actually follow matters related to the Ukraine war very carefully. So, first of all, I do think it was very likely a Russian operation. And the answer to the question of why, first of all, there aren't that many options available to the Russians to escalate this that aren't nuclear, right? And

they don't have a lot more weaponry to throw at the problem. They're trying to throw bodies at the problem. But they're trying to emphasize to the Western Europeans, particularly to the Germans, that their energy security is dependent on Russia. And one way to do that is to have a disruption in the natural gas supply. And so you do this in a fashion that is deniable, that you can blame on the West, maybe the United States, that your fingerprints aren't directly on, but that everybody knows that you did. So let me ask you, first of all, just to be clear. So Tucker Carlson was out there saying that America did this. I think that's just absolutely ridiculous. So I don't want you to

yeah, just just absurd. So I don't want you to think that any of these questions are have I don't have that in the back of my mind. I don't I understand very well why there's it would be just unthinkable for America to do such a thing. I'm trying to understand why Russia would do it. Obviously, and this is just what I'm wondering about. So obviously, the pipelines were already off. Yes, but they were full of gas. Right. And there was protests in Germany and somewhere else in Europe about high energy prices. So this having them off, but intact was putting pressure on European governments. And who knows what the winter would bring in terms of that pressure, even escalating. And maybe the governments would respond to the pressure from their citizens. So destroying them,

you know, is, it seems like a little counterproductive. Number one, number two, it's, it's a weird thing to have anything happen in a war where the one side does what the other side could only hope for. I mean, if the Ukrainians could have pushed a button and blown up the pipelines, they would have loved to push that button, right? Because that to them, now Europe is not going to be vulnerable to this pressure anymore. And the Russians did it for them. Like both sides want the same thing. It's just a strange dynamic. So first of all, there are other routes for Russian natural gas to get to Western Europe, including, by the way, overland pipelines through Ukraine. And so this does not and remember, Nord Stream 2 had never been turned on at all. It was a project that was finished, but it wasn't operating. And so really, this is destroying one pipeline or damaging. It's nothing that can't be

fixed. But it's damaging one pipeline that the Germans have said they won't authorize to turn on now. And the other one, which was a major pipeline operation, which was turned off anyway. So look, I mean, I think it's a look how much we can make you hurt gesture from the Russians. sign of how little leverage they really have with Western Europe. They don't have a lot more cards to play. And so, you know, destroying one of the means by which they export gas because it allows them to damage the German ability to receive gas is a card they have to play in a bad hand. Blowing it up more so than just turning it off. But let me answer one more question. Why is it that nobody suspects that Ukraine did this? So first of all, this is a naval operation. It was probably a mine placed there by, you know, a ship. Ukraine is not a significant naval power. And secondly, a Ukrainian attack on German infrastructure would be just devastating to the coalition that the Ukrainians

and the United States have built with the Western Europeans. And, you know, it would just destroy everything. And so for the Ukrainians to do something like this would be insane, even though I agree with you that they benefit from it. It's German infrastructure. I didn't even realize that. Nord Stream 2, Nord Stream is a German, it's actually owned by a Swiss company, I believe, but it's Swiss subsidiary of Gazprom, right, which is owned by the Russian. Right. But it, but it, but it runs a, but it runs gas to Germany, right? And so you'd be,

this would be Ukraine attacking Germany and Western Europe's ability to get gas. That would be crazy. So I did some reading about it. So in the Telegram, there was an article that said that it could have been dropped by a Russian oligarch's yacht,

which I thought was ridiculous, the bomb. But it implied to me that this could have been a lower tech operation than we thought. And then I read somewhere else that the UK had actually sold six underwater drones to Ukraine at one time recently. I just began to piece together in a very like a naive way of a guy who doesn't know anything about what he's looking at that. Like, is this kind of seems like this could have been done in a low tech way using. This is two simultaneous explosions,

both quite precise. They destroy underwater infrastructure in water. That's a couple hundred feet deep. They, they go off essentially simultaneously just outside of Danish territorial waters. So it's not an attack on Danish sovereign territory. By the way, these are they both go off without a hitch in a fashion that causes the release of a lot of gas. It's a precision operation. It really is. If they did it and I I don't have any reason not to take your word for everything you're saying. It really seems like an act of desperation, right?

I mean, it's really something to imagine they would do that. Look, the Russian army in either its current form or its Red Army form has not had a defeat of this magnitude since the early days of World War II, right? Like since the German army was rolling over actually this same area in 1941 and into 42. This is a defeat of historic proportions for the Russians. They are, we never inflicted anything like this on them. And they are desperately trying to scrounge up people to throw in the way of Ukrainian artillery anywhere they can get them. It's a humiliating situation, and they don't have a lot of cards to play in response. And the one that they actually do have, which is, to use a technical term, the nuclear option is, is regime ending from, from their point of view.

And they know that. So their, their options are very limited. What an inspiring story. It's like one of these stories from history that they make movies out of that, you know, and you wonder, do these things really happen? And here it is happening, unfolding before our very eyes. I mean, it's just amazing.

So what's going to happen? I have no idea. You certainly have more if you had to guess. Well, why isn't somebody assassinating Putin at this point? Because they can't get close to him. So let's take three discrete elements of the what's going to happen question.

OK. Start on the ground in Ukraine. The area to watch is the south, the area around Kherson City, where the Ukrainians do appear to be making some progress around Lyman. continued. And I don't, you know, the pace of the Ukrainian offensive a few weeks ago was so startlingly fast that I don't know how to assess what pace this is happening at. But the Ukrainians are clearly making progress on the ground. So, you know, I think watch the lines, particularly in the South. What are the chances that this ends with the death of Vladimir Putin? I don't know how to assess that. I really don't. The answer is 50 percent.

The answer is, you know, this is at this point a regime survival issue for Putin and regime survival and personal survival are not unconnected. And he's, you know, he's clearly lost control of the situation on the ground in Russia. He's not, you know, he called for this partial mobilization and failed to get it in an orderly way. There's hundreds of thousands of Russians now, Russian men leaving the country. which is actually different from the Soviet regime. If you think about the last time a leader was ousted in the Soviet Union, it was Khrushchev. And that was the Politburo that essentially had organized his removal. We don't know who in the Russian Federation has the ability to organize Putin's removal. And so there's a, you know, there's a coup question, I suppose. There's also a revolutionary street violence question, I suppose, although it's, you know, not since 1917 and or 1989, 90,

has that really like produced an overthrow of a Russian regime. But I do think you're talking about a, like, the mechanism by which Putin is removed is very unclear. And we do not have, at least outside the intelligence community, we don't have the kind of visibility into the way that regime works to know who the group is that could actually do this and what they are thinking. Think about the worst mistake you've ever made in your life that really made you look like a jackass in front of your wife or something, where you really undercut your own authority in the household. And just imagine the stress like that. This guy is under, he just taught, I mean, he, he brought his country into a total ruin over nothing.

And now he's got to justify it to all his cronies and everybody, everybody has to know every last person has to know that he's totally screwed this up. And feel good because think about the worst mistake, not just that you've ever made in your life, but that you will ever make in your life. It is not one hundredth of a thousandth of 1% of this. And I mean, there just aren't that many screw ups

in the last few hundred years that measure up to this point. But just be happy you're not married to Putin. Okay, honey. All right. Let's talk about, let's talk about other, other stuff. I'm very, very happy to finally meet you. I think your, your Lawfare blog is terrific. Lawfare is an online legal blog that kind of always has posts about whatever the legal issues of the day are. It doesn't come from only one side. There's another guy. What's his name? Jack Goldsmith.

Is that his name? My co-founder. One of my two co-founders. Yeah, he comes from further from the right than you do. Would you say that's a fair? counterterrorism, you know, sort of in the 2010 era, to deal with a set of counterterrorism issues from a non-political perspective. The goal was to be useful to mostly government lawyers, actually, who were thinking about hard issues like, you know, who can you and can't you kill in a drone strike, right? Who can you detain at Guantanamo Bay and who can't you? How do you try a terrorist in federal court, right?

These are the questions we found at the site to think about. And as the national security legal conversation got increasingly overtaken by Trump issues. Because remember, the Russia investigation was a counterintelligence investigation, right, which is very much in the orbit of things that Lawfare thinks about. We came to cover a lot of the issues, not all of them, but a lot of the issues that people associate with the Trump scandals. Yeah, I actually, I actually didn't agree with you on most of the stuff about Trump and the Mueller report and all that stuff. And almost anything that anything that touched on Comey, and maybe I'm not gonna talk about it today, maybe Sunday, if I ever meet you in person,

I'd love the opportunity to go over that stuff with you. Anything that touched on Comey, I kind of didn't agree with you on, but I, but that's, doesn't, you know, that's neither here nor there. I just, but I always very much enjoyed reading, reading you because I felt it was very good faith. But what about the, okay, so what about the latest stuff? And then maybe we can touch on a little bit of the old stuff. This whole thing is Trump going to get indicted? Where are you on that? I do think he is likely to get indicted. I don't know whether he will get indicted for January 6th

related stuff, although I think it's very possible. I do think, I'm not sure I see how the Mar-a-Lago story ends with anything other than a federal criminal indictment of Donald Trump. So let me ask you a question. By the way, we had a guy on two weeks ago, Judge Sugarman, who had written an article in Persuasion about the case for prosecuting Trump for January 6th stuff. And I pushed back on him, and I wonder if you'd listen to the podcast on it. But I think that I think I had the better of him in that argument. I don't think he's going to get indicted for that.

But I do think you're probably right about all this latest stuff with the documents. I have another question, though. We heard for years that the Mueller report laid out a roadmap to indict Trump for obstruction of justice. And there was tremendous anger at the fact that Barr rejected this and just tremendous anger that Trump was somehow guilty of obstruction of justice and he was not being pursued. And then Biden became president. And lo and behold,

Merrick Garland seems to agree that Trump is not guilty of obstruction of justice. He didn't do anything about indicting him. And the same legal experts who were furious barely have laid a finger on Garland for not indicting Trump for this very serious crime of obstruction of justice. And I'll let you answer, but to me, this exposes a kind of serious bias in the legal expert community, the Larry tribes and all of them.

I'm not including you in that, which really disturbs me. You know, it's like, where were you? Where are you now that they actually could indict him? How come nobody is calling Garland all the names that they were calling Barr? Did you even mean it or was it just partisan politics all along? So what's going on with that? Okay. So I, first of all, would not ever suggest that partisan politics plays no role in the legal expert community. Like all communities that comment on things, people's biases and priors are a piece of the conversation. And so I don't want to defend the community on a mass basis.

I will say, I think this is a bad example of your point. Okay. And the reason is that, so there is a very long standing Justice Department tradition that when an investigation is closed, you don't reopen it, except in the situation, a truly extraordinary circumstance generally involving new evidence. So I think the best way to understand Merrick Garland's posture is not that he decided he agreed with Bill Barr.

I don't think we have any evidence of that. What we have evidence of is that Bill Barr closed an investigation and Garland respected the closure of that investigation. different questions, whether you would close it yourself, whether you agree with the decision to close it, and whether you would reopen it merely because you disagree. I think a lot of people, and I have mixed feelings about that decision, which we can go into if you want. But I do think it's a perfectly consistent position for somebody who was very critical of Barr for closing that case in 48 hours without really taking Mueller's evidence all that seriously to then say, but whether you would reopen it merely because the administration has changed,

that's a different question. And I think you can hold those two ideas in your mind at the same time. Well, let me give you a few things that come to my mind as you're saying that and you tell me if any of them matter. First of all, Trump was a sitting president. So it's a different chapter altogether.

It's not- But be careful. That was Mueller's point. Mueller's point was, hey, he's the sitting president. We can't indict him. So here's the evidence. Somebody else make the call later, right? Barr says, no, it's your job to make the call.

You didn't make it, so I'm making it for you. We're declining this. We're closing it. That's a closure of the matter. Garland's posture is, it seems to be, as best as I can tell, it's closed. It's merely respecting the fact that it's closed.

It's a closure of a matter, But something drastic has changed since that closure. And, you know, there's opinions about whether or not Trump could even be indicted, although Barr, I think, said that wasn't the reason he didn't. Barr actually thought on the merits there was no case. But here's but here's but here's my point. And my initial point was not so much about Garland, but was about the legal, you know, intelligentsia. The commentariat. Yeah, the commentariat, which is that they accused Barr of making a corrupt finding. There's no, they didn't, very, very few people credited Barr with a good faith determination.

They felt he was doing Trump's dirty work. And you don't respect that precedent if you believe it was reached corruptly. And you don't let Garland, there's no rule he has to not reopen an investigation. And there's quite a compelling reason that you would absolutely reopen a closed investigation if you believe that investigation was closed corruptly. As a matter of fact, you don't want to set the precedent of allowing a corrupt closure to stand. So I don't see why that would be a reason to let Garland off the hook. So you have just stated my view.

Oh, okay. Which is, I think Barr's decision was, I'm not sure I would use the word corrupt, but I would use, I the way, is a friend and somebody who I think the world of, I would have hoped that there would have been an independent evaluation of that. And I think if he made the decision to not look again at this, I disagree with that. And I think that it warranted a second look. I fear he disagrees with me about that. And to the extent that he does and just let Barr's decision stand, I have a bit of a problem with that. What's the first thing that comes to your mind as the best example of why Trump should have been charged with obstruction of justice? Of those 10 things or whatever it was, which one is the worst to you?

So the worst to me, there's two that are really bad. One is the instruction to Don McGahn to falsify a document. And the second is the dangling of pardons to people who had business before the Mueller investigation, particularly Paul Manafort and Roger Stone, and who he eventually delivered the pardon to and to Michael Cohen. So I think those are the really where the rubber hits the road. I would love to say that the firing of Jim Comey was an act of obstruction. I don't think it was. Oh, good for you. I don't think it was either. I don't think any of these things would be provable enough beyond a reasonable doubt, beyond a reasonable doubt that it would warrant the upheaval to the country of attempting it and the risk of Trump being able to pound himself on the chest and saying, you see,

you see, they couldn't get me. So I have no problem with that judgment. But I do want the Justice Department post-Bill Barr to make it independently of him. And so my problem is not that Trump was not ultimately indicted for obstruction of justice. My problem exists if and only if somebody at Merrick Garland's instruction did not independently examine that record. All right. And so and so what do we do about the legal commentary? Like like, you know, the conservatives are criticized when they don't drum out the the crazies out of their ranks, the anti-Semites, or even just the crazy people or the Tucker Carlsons. You know, you have somebody like Larry Tribe going on TV and saying that Trump is guilty of attempted murder. And I can name any number of crazy things that are said. And, you know, and there's still experts in good standing. Like, you know, what do you think of all that? It upsets me enormously. is heavily conditioned by having been on contract for a couple of years to MSNBC and being a don't tend to call you on it four months later when you're shown to have made a jackass of yourself. And I don't know what you do about that as a general matter. A lot of stupid things get said on television from the left, from the right,

from the center. One of the reasons I started doing television when Jim was fired was that there just weren't, like people were saying all kinds of shit and nobody knew what they were talking about. And I thought it was important to be somebody who said things that I knew to be true and did analysis that I could say, hey, this is my analysis, and also could say I have no freaking idea what the answer to that question is, you know.

And I do think people are not responsible about doing that. And by the way, cable television does not reward it because it's not an environment where if you say, I have no idea what the answer to that question and neither does anybody else. And anybody who gets on here right now and speculates that is talking out of their ass. That is not a provocative, it's not the kind of thing that makes people want to watch CNN rather than MSNBC or MSNBC rather than CNN. And so I think it's a real problem. I don't think it's a problem in any way limited to left of center legal commentators. Let me ask you one more question. I don't want to, you know, the listeners and even my co-hosts don't want to hear about the Trump obstruction stuff and the documents and all that stuff and the dangling of pardons, which I could talk. I would love to talk about for hours, but I do have like just for fun.

Let's just think of a counterfactual situation where Hillary won. Hillary won the 2016 campaign and she won because of an october surprise which was the mother jones article which spilled the beans basically on the russia investigation and uh that trump was considered uh likely to be compromised and, you know, compromised by the Russians Carter Page had been cooperating, that the FISA documents had been – everything that Horowitz came out with about the FISA documents being improper, all of it. I mean, we don't even know what's true anymore, but that the Steele dossier purported to speak to high level Kremlin operatives. So they were speaking to Russians, getting inside information from Russians. Money changed hands. What would we be saying now about the Hillary victory vis-a-vis Russia? OK, so I want to challenge the premise of the question.

It's a thought. It's a thought experiment. Not because I think the question is unreasonable, but because everybody expected Hillary to win. And so if Hillary had won, nobody would have said, well, she only won because of that Mother Jones article. Hillary winning was the default position. That's a very good answer, but you still know what I'm asking. Yeah. Right. So I want to,

but I do want to, I do want to say as a preliminary matter that I don't think if Hillary had won, we would have attributed any of it. Look. Well, the people who watch Fox News would have reported it. Fox News would have reported it the way I just presented it to you. OK, so let me answer the question.

Yeah. And I say this as somebody who's I unlike a lot of people who bullshit about this. I am actually pretty sophisticated about the way the FBI works. OK, the FBI takes information from people like Christopher Steele all the time. And information goes into the FBI and some of it is shit. And that is, that is the simple truth. And their job is to filter out the shit. And sometimes they don't do that as effectively as we would like them to. In this case, they did it ultimately quite effectively in the sense that nobody got prosecuted, nobody got, you know, no one was held to account by Christopher Steele's information, except in the limited sense

that there was material submitted that was false to the FISC, the FISA court, and there was a surveillance order obtained on Carter Page. And so I guess what I would say is the right answer to your question would be, hey, the FBI got some information, investigated it, and it turned out not to be true. And that's the right answer if Trump won. And that's the right answer if Hillary won. And yeah, but but Trump, I think you even wrote about this one time, but Trump was considered horrible, for lack of a better word, lack of a smarter word, for the fact that he was open to getting information from the Russians about Hillary's emails or blah, blah, blah, whatever. He wanted to get whatever he could get from anybody Russian, regardless of how he got it. But Hillary, of course, hired, I don't know to what she knew, what she didn't know.

Hillary's campaign hired. There's no evidence of her involvement in this whatsoever, by the way. Yeah. So Hillary's campaign hired somebody who actually was speaking to high placed Russians trying to get dirt from Russia. It's kind of the exact same thing. I mean, I think it's the same thing. No, it's not. Why not? Okay. So first of all, the hiring opposition researchers and not knowing where they're getting their shit is what campaigns do.

And one of the reasons you hire opposition research firms is so that there's a bit of distance between you and whatever stuff has to be done. I don't like it. I don't think they should be doing it. No, no, no. If the reason you don't know is because you know, if you know you're going to get in trouble for knowing,

that's just plausible deniability. If you disqualified or, you know you're going to get in trouble for knowing that's that's just no no no if you disqualified if you disqualified or or you know every candidate whose company whose campaign hired a law firm whose law firm hired a private investigation firm whose private investigation firm hired a subcontractor who did something you didn't like, you would be disqualifying a huge number of people. The Trump stuff was different. Trump was out there himself saying, Russia, if you're listening, can you please, you know, hack her email? No, that's not true. Her email, her server was way offline by then. This is long after. Can you please find the 40,000 emails that are floating around?

His son, son-in-law and campaign manager met with somebody who represented herself as a Russian agent peddling dirt on Hillary Clinton. There's an immediacy and directness to it that is just completely unlike anything that went on on the other side. I'm surprised that you say that. I take it because it comes from you. But to me, I feel like when somebody gets hired that has extensive ties to Russia, it's certainly known that they're going to be using those extensive ties to Russia in the furtherance of what you hired them to do. There was a dossier. It talked about getting information from high level Kremlin officials. Then it winds up in the press. Like I say, I don't know what Hillary knows or doesn't know. But, you know, I think that's been her her modus operandi for years with the Sid Blumenthal types or whatever it is.

It don't tell me what you got to do. It's pretty. I'm not. Yeah, I'm not going to tell you that this is good, that it's that it's OK, that I like by the way, continued into his presidency. He stood on a stage with Vladimir Putin in Helsinki and sided with Vladimir Putin over the U.S. intelligence community. But there's other differences. You're right about that, for sure. We agree 100% on that. That's just like a different order of magnitude than you're talking about with Hillary Clinton. That's that's not corruption that's trump's i mean i 100 agree with you about the last example i don't think that belongs in this universe but the other differences in the opposite direction are that uh whichever trump donald trump jr gets a cold call from somebody doesn't even know saying listen i listen, I have a bunch of dirt on Hillary.

I'd like to meet with you. He says, oh, if it's what you say, I love it. And they meet. And that's not what the email said. What the email said is the crown prosecutor of Russia has decided to that we side with Hillary Clinton and we side with Donald Trump and want to give you this dirt to support the campaign. Right. I didn't mean to. I wasn't trying to misstate it. I was emphasizing the fact that this came to him out of nowhere and he agreed to the meeting as opposed to him hiring somebody who then went to Russia looking for this information. I would say the hiring is a proactive act. Hiring people with ties to Russia, go see what you can dig up, is morally different than getting a call saying, hey, somebody from inside Russia has some dirt on Hillary.

Oh, yeah, I'll listen to it. You know, so you can play the distinction game in both directions. They're not exactly the same, but they are the same in one sense that either side was perfectly happy to get dirt on the other side, regardless of its source. win and and if they could get their hands on true information no matter how they it got to them they were prepared to use it and i think nine out of ten political campaigns are have that same ethic unfortunately but that's the real life so i i agree with part of that and i disagree with part of it the part of it i agree with is um politics is hardball and people do what they think will work. Right. And the part of it I disagree with is if you're looking at it from the vantage point of the U.S. intelligence committee community. So if you're looking at it from the vantage point of the U.S. intelligence community and you say, oh, one side hired a private investigator firm to see what dirt they could dig.

And that included talking to a guy named Igor Danchenko who purported to have Kremlin-y contacts. The other side has all kinds of direct contacts and meetings and business deals with Russia and seems obsessed with Vladimir Putin and getting his approval.

One of those situations is a counterintelligence concern. The other is kind of normal business. And I think that explains the difference between the way the FBI thought about one versus another. I think there was a lot of confirmation bias that went into it. If you were to change the country and make it Israel, I bet you I could come up with 50 facts

of Trump's, you know, dealings with Israelis and blah, blah, blah. You know, it's whatever. I don't know. I think once historians get a little bit more distance from all this, maybe we'll get more perspective on it all. I'm certainly not here to defend Trump. That's not my purpose. My thing is always just how the holier-than-thou attitude on one side. And I just know that if the shoe were on your other foot, they'd be seen. Like, for instance, when Bill Clinton met with, what was the name, the Attorney General on the tarmac? Loretta Lynch.

Loretta Lynch. You know, whatever, I was right there criticizing him. Yeah. Whatever that was, if that had been Trump, you know, we would it would be it would be huge. Right. But you know what? It should have been huge. It was a problem. It was very inappropriate of her. It was very inappropriate of him and it had big consequences and she's never gotten enough criticism for it. Yeah. But nor is he, you know. No, no. I mean, look, she was the office holder at that point. Yeah. And she was responsible. She should not have let him on her plane.

It's hard, you know, as somebody who. Sorry, she's the attorney general of the United States. Not a close call. He's the husband of a subject of an active investigation. He doesn't come near your plane. I know. Of course, you're 100000 percent right. But there's a human I I'm sure she kicked herself the next day because there's a human dynamic. He's Bill Clinton. He's extremely charismatic.

He's the former president. It's very difficult to be rude to somebody like that. And she, you know, she, I can, I could just see how it happened. You know, I, I don't think she meant it to happen the way it happened, but he meant exactly what happened. So that's why I really blame her. He took advantage of her is what it is. Yeah, she should have had more backbone.

If it happens to her again, she'll know better. If we have a pandemic again, we'll know better, right? But once bitten, twice shy, you know, it just came out of nowhere for her. I always felt bad for her about that. Anyway, anything else hot on your radar about today's issues? Dan, you have any questions? You went to law school, Dan. That's true. Dan went to law school, but he has almost no interest in legal matters. No, that's not true. There's nothing like law school to cure you of. No, I didn't go to law school, right? I didn't. No, I have interest

when we're talking about gun control. We're talking about abortion laws, immigration, certain topics I have a great interest in from the legal side, but but not everything. Well, what about what? Ask him a question about Dobbs. Which one was Dobbs again? The abortion. That's the abortion decision. OK, well, then we can go. Do you feel that that was rightly decided from a constitutional standpoint?

I do not. I think the beginning and end of that is honestly the reliance interest that tens of millions of Americans have on the Supreme Court statement of what their rights are. I don't think Roe v. Wade was rightly decided as an original matter, but 50 years of announcing what people's constitutional rights are has to matter for something. And I think the Supreme Court woefully underestimated uh the consequences of of a sort of now you have it now you don't approach to fundamental right this is one thing that does interest me is what the standard is for overturning a previous decision and I don't think there is one. No, it's really so stare decisis is the most under theorized idea in American law. It basically amounts to don't overturn a precedent except when it's really important to do so. And with no definition of what it's really important to do so means. And so if you have six social conservative justices,

that means something very different than if you have, you know, six socially liberal justices. And it's a, I mean, I think the only thing you can say in defense of Dobbs, at least that I can say in defense of Dobbs, is that it has the virtue of making a large number of politicians accountable for the first time for the positions that they've taken very blithely and without a sense of consequence. Let me tell you why I think you're 100% wrong. You ready? I think you're wrong because one of the checklists of things that you go through for star decisis is reliance. So for instance, I'm speaking to the audience now. So for instance, if you relied on this

and you bought property and you built a business and you planned your life and you bought property and you built a business and you, this, or you, and you, you, you planned your life and you're pregnant. Yeah. Yeah. Well, so, so that's not so that's reliance. There's, there is no reliance on the abortion decision. Maybe except for the very subgroup of people who happen to be pregnant right in that period of time when it happens, But there's no long-term reliance. People's lives do not have to unravel.

It's just a different law now. Nobody has built their lives in reliance on Roe versus Wade, number one. Number two, and I'm pro-choice, but if I put myself in the mindset of someone who believes that abortion is a horrible moral event, even if you don't want to call it murder, whatever they think it is, just on a level of slavery, let's say, that would have to override what you're talking about. I think even for you, it would override it if you believe that. I think I think your your opinion is based on the fact that you just don't think the way that people who oppose abortion do think. So you can say what you're saying, but a big number of people don't see it that way. So they cannot possibly accept the reliance argument, especially adding in the reasons I'm saying there is no actual reliance. I don't think I don't think that that's true. I think that as speaking as somebody who can get pregnant, I think that we and I think that I speak for millions and millions of women. I think that we do rely upon the fact that we know that if we get pregnant by accident, which could happen at any

moment that you can get an abortion. Right. But that's not reliance in the sense of the term that we're using the term reliance, meaning that things you've done previously, which now you'd have to undo all these things that you've done in order to to get yourself into compliance with this new law. And that would be as a practical matter for society, just impossibly burdensome. You just can't unwind all these things. Yeah. But I think, I think you're, you're, you're focusing on, and granted we are talking about law here, but I, you're talking about, you're talking in a very hyper-technical way about what a reliance interest is and isn't. And I'm saying people have designed their lives around a certain expectation of sexual autonomy and medical autonomy. And the idea that, well, I mean, you know, the sexual revolution

is a much less viable proposition if you can, from a female perspective, if you can get pregnant and be forced to carry a child to term. And we have two whole generations of women who have grown up with a certain sense of sexual autonomy. And, you know, that is much deeper than a technical reliance interest. And so, look, I'm not saying you cannot make a case that Roe v. Wade was wrongly decided. I actually think Roe v. Wade was a bad decision. I do think when the Supreme Court gives with one hand fundamental rights and takes away with another hand those same fundamental rights, because for no reason other than that the composition of the court has changed, it courts exactly what has happened, which is the perception that the court is entirely political and nothing more than political. And

that's exactly what's happened. Let me ask you this way. Let's say Roe versus Wade had come out the opposite way and Roe versus Wade had actually allowed abortion. I mean, had forbidden, allowed states to prohibit abortion. And that was the 50 year regime we lived in. Yeah. And then the court changed and the Dobbs case for basically for the same reasoning went the other way and now allowed abortion. Would anybody be making the reliance case? They'd say this was this was a badly decided decision in 73.

It should have been a right all along and now we're god bless the court for finally allowing this right to well i think i cannot tell you what other i cannot tell you what others would say i can tell you what i said in the case that most resembles the hypothetical sorry Sorry, my dogs are barking. That's okay. I can tell you what I said in the cases that most resembled that, which was the gay marriage case, or Berger fell. And I, look, I support gay marriage. I have always supported gay marriage, and I didn't think it should be judicially imposed. And I took a lot of criticism for that. But I don't think these decisions should, as a general matter, be made by courts.

And I thought the experience of Roe should teach us that judicializing these things is generally a bad idea. And I was willing to go slower than I would like on same-sex marriage in order to be consistent about that. I lost that debate. And actually, gay marriage has not proven to be as controversial, though judicially imposed, in the way that Roe was. So maybe I was wrong about that. But I can tell you that my view on this is relatively consistent. I don't think that contested social issues should generally be decided by courts. And I do think, by the way, that once the court decides something like that, it's got to be very careful about undeciding it. Yeah. So two things. If Roe had made abortion or allowed abortion to be illegal or if Roe had made abortion illegal, let's say, Roe, the case against Roe made by the left would be precisely the same rationale as Dobbs, that it should be a state issue. You know, that that rationale is really just used by whoever it's convenient for at the time.

But I'm happy you brought up the gay marriage because that would be a very good example of reliance. So if they were to if somebody wanted to overturn the gay marriage decision, then the argument, listen, generations of people have relied on this decision. People are married. They have lives together. They have children. They have property. They have, you know, everything that comes with marriage. That's the kind of reliance I think which would be very compelling. You can't just unmarry all these people. You can't disintegrate all these families. You can't undo all the wills, the contracts, everything that goes on the property. I mean, you just can't undo it once it happens. That's that's the difference between reliance that I think needs to be respected and the reliance that what would be your argument from purely from what you had just said when it's appropriate to overturn a previous decision?

What would be your argument in favor of Brown versus Board of Education? Originally, the Supreme Court said separate but equal is OK. And then the Supreme Court said no, separate is inherently unequal. So based on what you just said, how can you justify Brown versus Board of Ed? So first of all, in a very material sense, Plessy, the regime under Plessy, was denying to millions of people fundamental rights. And so if you believe that the notion of equal protection in the 14th Amendment has any meaning at all, there is an ongoing 50-year constitutional deprivation. There's no analog to that here, by the way, unless you believe in fetal personhood, which, granted, I take it a lot of people do. But under the Constitution, the 14th Amendment is actually pretty clear

that people who are born or naturalized are citizens of the United States. So the Constitution actually has something to say about that question. But, you know, I do think the reason that Brown is different here is that there is an ongoing facial deprivation of constitutional rights to millions of black schoolchildren all over the country because to get rid of Plessy. And there's just no analog to that here. Now, I do concede that this puts pro-life people in an impossible situation. The Supreme Court takes away their franchise in 1973 on this issue. And then people like me come along and say, well, you know, I think it was really wrong to do that,

but it's irremediable at this point. And that's where, look, I just disagree with, I mean, I understand that there's a problem with my point of view on that. I will say in response that, look, I think that there are two potential answers to that question, neither of them perfect. One is what happened, which is, okay, let's get rid of the goddamn thing. And, but if you take that view, you have to be willing to take the political blowback for that.

And I, I actually think that a lot of pro-life Republicans are not willing to take the political blowback. And like, my point is, okay, if you if that's what you want, you got to be willing to deal with the political repercussions of actually getting what you want. The second possibility, which is what I think the right answer would have been, is the constitutional amendment process. And the fact that that couldn't have been done is a reflection of the fact that the majority of Americans don't favor getting rid of abortion. Well, I think we said on another show, I think that the court, but I don't know if this argument was ever made to them. I think the court could have found that in the first two and a half months or whatever it is before the markers of

brain activity and heartbeat and feeling of pain, that prior to that marker, that this is fundamentally a religious point of view and banning abortion is an establishment of religion. I would be convinced by that. But I don't think that argument was ever made in that way. The arguments are more maximalist than that. But having said that, I'm optimistic it's going to work out OK for the reason that you said. They talked a good game. The pro-life Republicans talked a good game. But that they actually uh have what they wanted you should always be careful what you wish for i think the democratic process is going to work out much better than people feared there's going to be a lot of bad things that happen to and heartbreaking stories for some period of time and but i think it will settle into a better thing all around and the,

and the issue hopefully will be put to bed finally, because this issue was never going to go away. This was going to Royal our politics forever, forever. As long as people feel that this is a moral abomination and science actually is not on the side of the pro-choice movement. Every new scientific disclosure makes it harder and harder to see any bright line between a fetus and a baby, especially as the weeks go by. So I think, I don't know, maybe I'm just being... Well, will there be states that continue to ban like i think there will be some but i think that uh between travel and delivery of drugs in the mail and uh things like that i i feel like the hardship

five years from now will be very minor to to uh to people that's what i think we'll see you you have any comment than that or you just want to leave it there? Well, I don't know. I mean, I would frame it differently, but I, you know, I think the real question here is, what do you think the horizon is? What's the time horizon? I do think eventually democratic choice will resolve this in one way or another, and that that would be relatively acceptable. I do think a lot of pain is going to happen in those years. It's a disaster already. Doctors and OBGYNs are beside themselves all over the country to say nothing of all of the women who I mean, people think of abortion. It's like, oh, I got pregnant when I

didn't want to. So I'm going to go, you know, have an abortion. That's not actually accurate. A lot of times you need to have an abortion because you're there's something wrong with you that doctors are actually now not allowed to perform i think your dogs are in agreement to hear to hear them um to hear them barking along with with all right so but you know your dog's better than me i don't know if that's a bark of agreement or i think they are uh excited by by the by the conversation. I think I think we got to go. It's such a fascinating issue. Right. It's just like you. There's just part of me that says that the issue of when life begins, since it's unknowable and certainly the opinion of legal scholars is not that important to that, that that's what democracy is for. Like who's going to choose that? But the people, you know, but I said I have a 10 year old

daughter and the story about this 10 year old girl who was pregnant. I mean, this, of course, I can't even imagine. Oh, I mean, listen, I have means. I didn't have to worry about it. I could just go somewhere and get it taken care of. But if I didn't have money, I mean, it's just, it's horrible to think of. That's at risk also. They're starting to say that that might not actually be possible. Well, I'm telling you.

I don't, Mr. Wittes, I don't know, Wittes, right? I don't know what you think about that. It seems to be more like a scaremongering thing. I don't think they could ever stop people from traveling. I do not believe they could constitutionally stop people from traveling. I do believe they could try and make people's lives very difficult in the period it would take to sort out. And look, I think we're going to have a period of a lot of chaos. as a constitutional matter of constitutional law.

I do think the disruption is to people's lives is excessive relative to the Democratic benefit at this point. You know, it's an interesting thing, because I mean, most lawyers, especially the smarter set of lawyers, basically the idea that Roe was wrongly decided. Everybody knew that. Everybody's known that since, you know, I went to law school in the 80s. Everybody knew that Roe was was badly decided. And to use your construction, but because of the composition of the court. It it's it it stayed on. And that's, I mean, in 1980, only seven years after it was decided, that wouldn't be long enough, but that somehow, as long as they dig in and hold up this wrongly decided decision long enough, at some point, magically, it transforms into a fundamental

right decision that's outrageous to overturn. That's a tough thing to swallow. It just is. You know, but it's not alone in that regard. It's alone in that regard in the sense that there's an innocent victim maybe being in the minds of some people. But think about it. You know, the right to have children, the right to, you know, parental rights are as completely made up as abortion rights. And yet we take them pretty seriously. No, because parental rights are actually a case where you can go back to the traditional rights that people have always had. It's kind of the logic that Roe tried to use and say parents, families have always had these rights. Always, always, always.

You know, the dormant commerce clause is entirely made up. Yes. It's really old. And so we all accept it. What is a lot of the idea that states can't regulate interstate commerce because the federal government can. Really old idea. It's very venerable. It's very important to lots of restrictions

on state power. It's complete bullshit. I am sure you could come up with an example. I don't expect you to do it off the top of your head that I'd say, oh yeah, that is kind of the same thing. But I don't think any of them could pack the wallop. Well, that's that's where you got me. The concern.

People don't feel that strongly about the dormant commerce. We got that. Speak for yourself. And the consequences, to be fair to the other side, this is this is, after all, unknowable. And the consequences of getting this wrong from a metaphysical point of view are just quite different than anything that you could compare it to. It's not like before we wrap. Let me ask you guys a question. This is a comedy podcast. Not today, it wasn't. Well, you bring up a good point.

This is a comedy seller podcast, affiliated podcast. It so happens that the owner of the comedy seller, Mr. Noam Dorman, who you've been talking to for an hour, has very little interest in comedy, but a great deal of interest in political matters and law. I see, because we just had a great conversation,

but it, it wasn't funny. Our next episode. Well, you might've missed my comment when I asked you, we were talking about the Swiss company and I said, are they affiliated with, are they a subsidiary of Godiva chocolate? But yeah, I noticed that. Yeah. I tried to squeeze that in. It got kind of buried and maybe it wasn't that funny anyway. Let me ask you a question, though, to end with. How would you rate Noam Dorman's intellect? And is he. That would be funny.

Is he suited to. Does he have anything. Does some of the great minds and public intellectuals have anything on Noam Dorman? Don't get this one wrong. Do you think Noam has a place in public intellectuals? Shut up, Dan. I can save myself

from the possibility of getting this question wrong by saying I have no fucking idea what you're talking about. Therefore, I'm just going to pass on this, not because I'm dodging the question, but because I don't know. Well, let me simplify it for you.

Do you feel Noam Dorman is a formidable intellect? He just wants to know if you feel like I was a smart guy to talk to. That's all he's asking you. Oh, I didn't know. Sorry, I didn't know your name. Oh, that's okay. No, like, you know, I think you should, I think you should, you know, have a contrarian column in one of the finest newspapers in the country. And here's also what I what I what I think you should not just get obsessed with the Steele dossier for the rest of your life.

It's not that interesting. It's not that important. But yeah, you definitely should have a column that pisses off all right-thinking people all the time. Well, thank you. Are you ever going to come to the Comedy Cellar? Because I do have so much, like, even more

detailed stuff I'd love to talk to you about. Next time I'm in New York. I've been wanting to meet you for years. Well, why didn't you send me an email? I did. I send you so many emails. You finally got back to me. Really? Yeah. Well, you get lots of contacts, I'm sure. I mean, I generally ignore my email.

Right, I know. I can attest to that. Disingenuous of me to say that. Where do you live? Do you live in Boston? I teach in Boston sometimes. So where do you live, though? I live in D.C. Oh, in D.C. Well, if you come to the Comedy Cellar,

half off on all items, excluding the steak. All right. You have whatever you want at the Comedy Cellar. Do you like comedy? I do. Certainly you do come to New York from time to time, right? I do. And next time I will come

and I will send you an email. Oh, that would be great. And I'll do my reading in advance. Because, you know, no, I'm asking Alan Dershowitz the same question. And boy, did he was he uncommittal. So I asked Dershowitz if he'd come at his 120th birthday. Yeah. And even then he said, well, we'll see. Well, he was a

little bit of, I mean, he's upset because no one will have him over in Martha's Vineyard. He's quite upset about that. Do you know him at all? We've met. I don't know him personally. Whatever you want to say

about the guy, just I feel the same way about Fauci and Mick Jagger. Some of these guys in their 80s who really have not seemed to lose a beat, who are quick, remember the names and new information, whatever it is. I just hope I can be like that. I think we get too hung up on like what he believes, who doesn't believe. I just really hope in my 80s I can be as in the game as he is. It's amazing. Can you think imagine a Mick Jagger is the same age as Joe Biden?

It's interesting. It's amazing, right? His dancing is better. It's and I and I and I'm by the way, don't take it the wrong way. I think Joe Biden is an absolutely normal 78 year old. I hate it when they call him senile and all this stuff and they're mean. It makes me sick. But he's a regular, he's a normal 78 year old, like my grandparents were at 78. But some of these guys, it's like they're in their 50s. Fauci? Fauci's like 83, right? Well, and Biden was a logger reel at 53 too. I mean, he's got a, you know, he was never able to answer a question briefly in his mind.

You know, he always kind of wandered. He would go off on stuff. But he's clearly, again, he's just clearly like an old, I doubt if I showed Joe Biden a new technology, new software program, he would pick it up quickly. Do you think Mick Jagger would? I don't know Mick Jagger would. I think Fauci would have no problem. It just seems like, and Dershowitz too, like he'll integrate a whole new fact pattern

with the names, with the dates, with the things, all that stuff. And he'll have it at the tip of his brain in a way that's just, I don't think I can do that. It's just, I just find it amazing. Anyway, Mr. Wittes, thank you very, very much. Thanks for having me. It was a pleasure.

I'm happy you could be so comfortable in that hammock the entire time. And yeah, well, we look forward to seeing you in New York. Indeed. Look forward to it. Take care. Thank you. Okay. Thank you, everybody.

Podcast at ComedySeller.com for comments, questions, and suggestions. Bye-bye.