The Comedy Cellar: Live from the Table - Dahlia Lithwick, Mateo Lane, and Kristen Houser

Episode Date: November 27, 2018

Dahlia Lithwick is a Canadian-American writer and journalist. Lithwick is currently a contributing editor at Newsweek and senior editor at Slate. She primarily writes about law and politics in the United States.   Matteo Lane is a New York City-based standup comedian and regular performer at the Comedy Cellar.    Kristen Houser is a leading expert on sexual violence with decades of experience in the field. Houser is currently a lead spokesperson for RALIANCE, a national partnership working to end sexual violence in one generation. She provides expert opinion, context, and facts about sexual assault to media covering high-profile cases, including those of Bill Cosby and Jerry Sandusky. 

You're listening to The Comedy Cellar, live from the table, on the Riotcast Network, riotcast.com. Good evening, everybody. Welcome to The Comedy Cellar show here on Sirius XM, Channel 99. We're here, as always, with the handsome Mr. Dan Natterman. Thank you. And we have, actually, this is your second time on the show. Kristen and I met because she was basically one of the very first people

who wrote me hate mail. I didn't write you hate mail. I wrote me critical mail when Louis C.K. took the stage. But then we kind of became friends. Kristen Hauser

is a leading expert on sexual violence with decades of experience in the field. Hauser is currently elite spokesman for Reliance. Oh, I lead spokesman for Reliance. It's like an acronym. It's R-A-L-I-N-C.

A national partnership working to end sexual violence in one generation. She provides expert opinion, context, and facts about sexual assault to medias covering high-profile cases, including those of Bill Cosby and Jerry Sandusky. Welcome, Kristen.

Dahlia Lithwick is a Canadian. I didn't know you were Canadian. I am Canadian. Daniel's Canadian as well. No, he is not. I was born in the United States. My parents, however, are Canadian. Okay.

And you were born, actually, in Canada. Yes. Canadian-American writer and journalist. She is currently contributing editor at Newsweek and senior editor at Slate. She primarily writes about law and politics in the United States. So you went to law school in Canada?

No, Stanford, California, yeah. I know, I know. Stanford. And then Mateo Lane. And Mateo Lane is a New York City-based stand-up comedian and a regular former at the Comedy Store. So welcome, everybody. Thank you.

Mariah Carey's album, Caution, is out. Everyone should get it. Spotify, iTunes. All right, so Dahlia, you're not allowed to talk. So welcome, everybody. Thank you. Mariah Carey's album, Caution, is out. Everyone should get it. Spotify, iTunes. So, Dahlia, you're not allowed to talk. Talk for a second. Let me just... Talk, talk, talk. Yep. Not loud enough. Okay, now it's good. Okay. So, Daniel, what did you...

Well, I wanted to discuss, before we get into some of the more weighty matters, to discuss what's going on with the Comedy Cellar show on Comedy Central. As our listeners may know and probably do know, it's now going into its fourth episode. Fifth. Fifth.

Four have aired. Four have aired. The fifth will air, I suppose, next Friday, a week from Friday. Anyway, what's the latest know-em in terms of those numbers? We've got to get those numbers up after all. What's up about the ratings? I'm talking about the ratings. The ratings went up and then back down. So we are in a fifth.

The fourth. So the second show had X ratings. And then the third show had X plus something. And then the fourth show went back down to X. Okay. Well, that's disappointing. But in any case. You might want to check with me before you ask these questions on the air,

but ratings are down, Dan. Well, you could have lied at number one. No, you don't have to do that. Number two, I was so certain that the ratings would go up because the trend was up and because... Two data points do not make a trend. Well, they do when you're desperately clinging to any hope. Well, this got dark quick.

No, not at all. It's the reality. Yeah, let's get to the sexual... No, see, that's what I'm saying. No one wants to rush out of this topic as quickly as possible. Well, the ratings are down. But this is the meat of the show. We're the Comedy Cellar Show.

Okay. We have a show on TV called This Week at the Comedy Cellar. One would think that talking about it would be a somewhat important priority on the podcast. And Matteo is a... Now, Matteo, by the way, is on it more than I am, so if there's anyone to blame about the ratings dip, it certainly isn't me, who is very... Actually, is very, very...

Not on it very often. Seldom featured. Seldom featured. I don't agree. It's Matteo that's been on, and prominently so, I believe, every week. Yes, it's called Mateo Lane, live at the Comedy Cellar on Comedy Central. It's not. All right, listen, the show is what it is, and we have four more episodes,

and then we'll see whether it's picked up or not. I have a modest proposal that you probably would agree with. Go ahead. Less gay. If you haven't seen the show, I have no problem with the diversity, both ethnic and sexual orientation-wise on the show. I'm gay and part Mexican, so I fit that.

Well, you don't present Mexican. Why, because I'm not wearing a sombrero? Gay shrouds all other... Go ahead. That is true. In the mustache, it's a debate whether it's the gay or Mexican part of it. Have either of you two seen the show, by the way, Dahlia and Kristen? No.

Okay. Well, if you don't know, it's a series of... The comedians talk about the week's events in stand-up form, and then interspersed with that are comedians at the table here at the Comedy Cellar at the Olive Tree. I usually have my donkey with me and make tortilla with my tia, but tonight was like, you know, I didn't feel like carrying it around. Those numbers are trending up, though. They were trending up.

I've just been alerted that there has been a downtrend, hopefully temporary. By the way, Mateo, some Mexicans are white European. Yes, I understand. We're indigenous. Dan, you know we have guests who came all the way to Mateo, some Mexicans are white European. Yes, I understand. We're indigenous. Dan, you know we have guests who came all the way to be on this show. I understand. This is why I said we should talk about this at the end. All right, all right.

I'll stop talking. Because when you talk about comedy seller-related business at the beginning, Noam rushes you out of it. Because what is there to talk about? The ratings are down. There's a talk about how to get those ratings back up. Oh, I don't know. I'll strip. Noam, for my next performance, I'll get naked. There's a talk about how to get those ratings back up. Oh, I don't know. I'll strip.

And I had. No, for my next performance, I'll get naked. There's a lot to talk about. There's talk about the fact that they didn't want to use my joke until you went to bat for me and basically had to twist their arm. Dan, can I tell you something? Yeah, go ahead. And this is not part of the show. Don't you think maybe you should consider things you're not supposed to say on the radio that might alienate the network?

My first priority is this podcast, followed by family and friends, followed by stand-up, followed by my Screen Actors Guild Association, followed by my membership in the American Bar Association, followed by the Comedy Cellar Show on Comedy Central. You put me in the most awkward position. Well, I think that, because I think this is, well, you may be right about that,

but I do think that this is, I think it's interesting that they don't want to, that Noam has to fight, every time I get on the show it's because Noam fights for me, and I do want to thank him. By the way, the Comedy Cellar show is not the only time I have to fight for you, Dan.

I have to fight for you wherever we go. But I fight for you because I believe in you. Can I move on? I just want to add one thing to that, and I do have other things to say about it, but we will move on. Noam fights for me not because we're friends, because he thinks I'm funny, or at least at times he thinks I'm funny. That's absolutely correct. Noam could

give a fuck about being friends with people in terms of business. He doesn't mix the two. He keeps them very, very separate. Just like the Godfather. Okay, so he could hate you personally and think you're funny and put you on that stage. And conversely, he could love you. You could have saved his life in Vietnam. If you're not funny, you're not getting on that stage. And conversely, he could love you. You could have saved his life in Vietnam.

If you're not funny, you're not getting on that stage. Is that fair to say? That's fair to say. And we will end that discussion there. Good Lord. I'm exhausted. Okay, so listen. But I do think that a comedy seller podcast

should talk about comedy seller business. And then, of course, we will get to... If the show gets canceled, we will talk about it. Okay? Okie dokie. What if the show becomes a huge success? So I know that for you, that means you hope the show now gets canceled. And I know that's just human nature.

Don't even try to deny it because that's the way it is. Like people who were against the Gulf War, they want to see us lose the Gulf War. That's just the way people are. So it's okay, Dan. You can root against the show. No, I'm not rooting against the show. Ultimately, if it succeeds, we'll get better guests.

We'll get Jackie Chan, maybe. Okay, can we start with Ms. Lithwick? Can I call you Dahlia? Please. Okay. So there's a lot of legal issues that have been, I don't know, dredged up by the Trump administration over the time. And some of them, I have to tell you, I've read your columns at times,

and some of them I just totally disagreed with you. But I don't remember them now. I can remember a couple of them. But in general, what I felt I saw happening was people hated Trump so much that I

felt that they were kind of working backwards towards disagreeing with him or working backwards towards proving that legally he was not on firm ground, where they wouldn't have otherwise if it had come from another president. And listen, I believe that bias is a hugely human problem. And I'll ask you a question just to start before we get to it. If Bush versus Gore was 5-4 along party lines, if the facts had been... My impression of Eichmann at the trial in Jerusalem.

If the facts had been exactly the opposite, meaning that Bush had been in Gore's shoes and Gore had been in Bush's shoes, do you think it would have been nine to nothing in favor of Bush? Meaning, or don't you think both sides would have flipped? I think that it's a good question. And I think that Bush v. Gore is a bad example for what you're trying to argue

because Bush v. Gore, the problem wasn't that it was five, four conservatives, liberals. It was that the five justices in the majority used a rationale to stop the vote count in Florida that they'd never used before and have never used again.

So it was that the analysis was crap. Not that the... In other words, I think that a 5-4 lineup with a defensible legal argument, we could have this conversation. But a five, four, like purely pretextual. That's why I chose it. But that's why I chose it because to me, it's the ultimate example that they didn't split on conservative liberal lines. They split on

partisan lines on an issue that has no reverberation within parties. So it's kind of exposes purely that it was biased. Yet, I'm sure if you ask any of these justices, hook up to a polygraph, was this your bias? No, I really believe I really believe I got it right. And I think it would have been exact. I'm saying and I don't want to let either side off the hook because I really feel that it would have been exactly the opposite if the fact patterns had been the opposite. Maybe. Again, I just think if you were going to look at the equal protection doctrine and the ways they were looking at the vote and the ways they were looking at what triggered the recount, it's just so hinky that the conservatives sort of appropriated analysis that the liberals would have gone the other way for sure, for sure.

And so I think it's just— So you think those liberal justices, if they'd been the opposite, they would have voted to have Bush become president based on that fact pattern? If there were an argument that had been advanced that was defensible, I think that it could have been other than 5-4.

No, no, no, no, no. The argument that they actually used in the holding of Bush v. Gore that said this is a one-time only, never again can you use this argument because it's so bad that if you invoke it again and nobody invokes it anymore, that's not, I think, where you want to plant your flag for like this was a good argument. Okay, I don't want to get bogged down on it because maybe I'm not making myself clear or maybe I'm wrong or whatever. But I see it as like the perfect example to show bias. But just what I remember from Bush v. Gore was

that each, this is where I thought, this is where I think Bush went wrong, I thought so at the time, is that, I mean, where Gore went wrong is that they wanted a recount, but only in certain precincts. What do you call them? In certain districts. And he cherry-picked the districts he wanted the recount in, which is

I thought rightfully triggered an equal protection issue, which is one of the, but anyway, so anyway,, which is, I thought, rightfully triggered an equal protection issue, which is one of the, hold on a second. So, but anyway, but I do, so anyway, so this is, so again, using that as just an example, I think everybody's biased. Let me just take you a couple of the interesting Trump cases we talked about. The first one that came to mind was when he met, when it turned out that Donald Jr. met with Valerie Velazquez in Russia. And immediately everybody was saying that that's it. The law was broken. The Logan Act.

Blah, blah, blah. I think you wrote a poem. In Russia or in Trump Tower? In Trump Tower. Trump Tower. And I remember thinking at the time, how could that be illegal? Any journalist could have taken the same meeting. Well, you have to remember, though, which time.

Because he lied five times before we got the truth. They're talking about the meeting. When we found out, not about the lying, the lying, he might very, Junior might actually be in big trouble for that. That's not what I'm talking about. I'm saying the actual meeting, if the Trump campaign gets a call, hey, we have

some official documents that show criminality by Hillary Clinton. And he says, if it's what you say, I love it. And they set up a meeting. And people were saying that was illegal. And I was like, how could that be illegal? Any journalist could have taken the same meeting. Any citizen had a right to take that meeting.

But wasn't he working for the Trump campaign? Yeah, it's a campaign finance problem. It's not a, like, this is not a collusion Russia thing. I think when people were going crazy, I think what they were saying is this violates, technically violates campaign finance law. They were saying the Logan Act. And I said, well, that's nuts.

I think that the problem was it looked like a quid pro quo, and it looked as though, and I just want to. There was no quid pro quo. Well, it looked as though they were having a meeting in order to get information, that the campaign was going to solicit information. Well, it doesn't look like it. That was specified in the email. Yes, yes.

There's nothing illegal about that. Well, I think that there are these questions of if you are a foreign entity and you're interfering in an election by donating something of value to a campaign, then I think there are real legal questions. And if it was a jury. Hold on a minute, hold on. So, yes, we've heard how they stretch this campaign finance to try to contemplate things

that have never been contemplated before. But just from a First Amendment point of view, anybody has the right to talk to anybody they want when somebody says, hey, I have some information. And you get into this ridiculous kind of scenario where if they had actually produced a signed document by Hillary Clinton doing something horribly illegal, we could say, no, no, no, you didn't have a right to receive that document. The meeting was illegal. The meeting can't be illegal. Something could happen at the meeting, which might be illegal, but we don't know what happened at the meeting.

But the meeting, everybody has a right to talk to anybody they want. But let's be super clear. The First Amendment doesn't protect all conversations about anything, right? Because you can have a RICO violation. If, in fact, it turns out that there is an obstruction charge, that's going to have a lot to do with meetings and things that were said in meetings. So it's not the case that anything that is said in meetings is protected under the First Amendment. A ton of criminal law invokes things that people say to make agreements to do illegal acts. But we had no evidence of anything like that. All we had evidence was, we have some evidence that Hillary broke the law,

and he says, great, I'd love to hear it. Yeah, all I'm saying is... Is that promiscuous of any crime? I think that the argument at the time was, and we're going to have to find out, that if you have an agreement to accept something of value as a campaign from a foreign entity, that can violate campaign finance laws. So whether or not, you know, we can have a conversation about whether that thing of value is this information, but I just want to be careful about saying any conversation is somehow protected under the First Amendment. All of these RICO violations, all of these conspiracy violations, are going to have to do with people talking about agreements to commit criminal acts. I think any conversation is protected by the First Amendment.

I think you can't commit crimes in that conversation. Well, the question is, is this a crime? Right. Okay, but as we both know, it's pretty tenuous. And I guess if we can find out that there was something said there, which was like, but the idea to me, the idea that receiving information, documents, not even receiving a document.

You know what? Hillary ordered somebody killed in Moscow. We have the documents. The idea that it might be somehow illegal for someone to give those over is just, I can't believe the First Amendment would tolerate that. I just can't believe. Matteo has a question. I want to go to the next subject, but go ahead.

Well, my question is... And by the way, nobody's really much talking about it being illegal anymore. Go ahead. Right. Well, I mean, no one talks about anything for more than three hours because the news is constantly... One thing is, I think what we could also look at, too, is what is he trying to hide? In other words, they had this meeting. They haven't discussed what happens. He lied,

lied, lied, and lied again about the meeting. So my question is, if someone's lying over and over and over again about something that they claim, number one, claiming people weren't there, number two, claiming that a situation didn't happen and nothing illegal was happening, what are they trying to protect themselves from, from people finding out? Yeah, yeah. I agree with you. It doesn't smell. But that's not a legal argument. But the answer would be, he could be lying to protect something that he did that was illegal. He's like his father.

Or could be lying to protect himself. Well, for the reason that 99.9% of politician lies are given, which is to protect something which is politically inconvenient or embarrassing. We don't know. I doubt. I'm going to go on record as saying there was no crime in that meeting. I'm not going to say there was any crime in that meeting. Whether it was something that was huge or that would change how we look at the Trump

administration with the collusion with Russia or it was something small, regardless if a crime is a crime. I'm saying, you think that Sidney Blumenthal wouldn't have taken those documents from afar? This is the double... It's like, we know politicians are sleazy. There is no presidential campaign who finds out that there might be some documents out

there proving that the opposition did something illegal, who is not going to find a way to receive that information. Now, Trump does it with a very ham-handed, very blunt, vulgar way, you know, that he doesn't know what he's doing. But Hillary would have done the exact same thing. She would have done it with some plausible doubt. And I think it's actually fine. I think it's naive to think that they won't do it.

I think, too, even if Hillary did do it, it doesn't take away from Trump doing it, too. So regardless of other politicians are doing it. I think it's fine that they both do it. And it's exactly the same point about the emails, right? I mean, you know, for years, Trump was leading this, you know, lock her up. Now we find out he actually ordered his own White House counsel to prosecute Hillary Clinton for the emails, right?

That's disgusting. No, it's disgusting, but the point is that Ivanka does it and says, oh, I didn't, what? That was against the law. So the point is... But the only thing prosecutable was if there's classified information. I don't know if Ivanka had classified information. The point is, I think that when you have to be consistent, at least, and I think what you're saying... It know if Ivanka had classified information. The point is, I think that you have to be consistent at least. It is consistent unless

Ivanka had classified information. It is consistent. No, she's not supposed to be using her home server and she's certainly not supposed to be using her home account to talk to all sorts of people within the administration. And she's been tuned up about that. They had told her don't do this and she continued to do it.

Respectfully, the only crime that Comey talked about whether or not Hillary had broken the law about was the law about classified information. He said she didn't have intent and actually it was grossly negligent versus extremely careless or whatever it is. That was the law about the transfer of classified information. But this involves the Presidential Records Act. This involves other... It's not just whether she committed a crime. The question is, was this improper? It was totally improper.

Maybe it's improper, but not the... It only rises to lock them up, hypocrisy level, if it was classified information. As far as I recall, the case against Hillary... Clinton. No, yeah, was that Comey was concerned with whether or not... Because there was classified information, and it did wind up at an unsecure

place, but he felt that she was naive enough about technology and didn't know that no reasonable prosecutor would ever bring that case. But the Records Act, nobody was going to lock her up for that. The only thing I'm pushing back on isn't the particular of any one crime. It's that the argument, this sort of

nihilist argument that like, everybody does it and the lines are fuzzy, is kind of the way we got into this problem in the first place, right? And I think the idea that, you know, you evade taxes, that's okay, everybody does it. You know, you perjure yourself, you fire your attorney general, you fire your FBI director, everybody does it. I think that leads you to this slippery slope of like, eh, nothing is understandable. I don't

know who killed Khashoggi. Facts. What facts? And it's just a scary nihilist worldview, and I think as a lawyer, at the very least, it makes my hair on the back of my neck be like, ah, we can't be nihilist about everything. It's not all nothing. I don't totally disagree with you,

but did you see this documentary, Three Identical Strangers? Yeah. So it's a great documentary about these three identical triplets. Identical triplets. I guess all triplets are. No, they're not. Three identical triplets separated at birth.

And there's some real spoilers in it, so I don't want to give them away. But one interesting thing that comes out in a documentary is that if you look for the similarities in them, you can find the stunning similarities. And that's what happens in this documentary until at the end, somebody realizes, actually, we didn't pay attention to the differences. And yes, this is email and this is somebody in the government and this was the guy saying, lock her up. So there's this total temptation for hypocrisy. I don't know that there aren't also some huge differences between the Secretary of State channeling the nation's secrets through a server

somewhere, unsecure in a closet somewhere, and whatever Ivanka's emails were on her Gmail account. I don't know. They could be, but they also might be like night and day. I really don't know. Because it's just so satisfying to catch them on the same thing.

But what Hillary did, even though I don't think she should get locked up and I thought it was disgusting and low class and all that stuff, what she did was pretty serious, so much so that if the current Secretary of State did exactly the same thing, I think they would have to lock

the current Secretary of State up because now the Secretary of State is exactly the same thing, I think they would have to lock the current Secretary of State up because now the Secretary of State is clearly on notice, whereas Hillary could kind of say she wasn't, that this is not okay. Comey let her off on the ground as well. She was extremely careless. She didn't really know. But you can't use that excuse twice. The next guy can't say, I had no idea this was a problem. Well, but Comey completely exculpates her for legal purposes. And then for two years, I think you're making the same point, Noam. For two years, he's like, lock her up, lock her up. And then he's saying, like at rallies a month ago, lock her up, lock her up.

And he's perpetuating this idea that she's committed a criminal act. Yeah, yeah. So I don't know if they're the same. So the next thing that we came to, and then we'll get on to the, we'll skip ahead to Acosta, was the travel ban. Now, I always thought the travel ban was a bad idea. I never thought it was good. I never. But I never could understand how anybody could think it wasn't legal. was the classified information that the national security team looks at and has the expertise to understand is not available to a judge.

Nor could a judge, nor does a judge have the expertise in how to analyze it. So if they think that this is important for national security, that's just the way it goes. And you can complain about it. You can think it's racist. You can think whatever it is. But you cannot have unelected judges making national security decisions, period. And imagine if they struck down the travel ban and then from one of these countries, another 9-11 happened. Who would you even vote out of office? So you would take away the whole political process. You elect the president because this is going to sound ridiculous because we think he's the wisest person in the country to handle our defense.

Now, she's nodding her head. No and this is exactly why I think we have it. People who hate Trump, they just can't accept that, so they feel it's okay to have a district court judge deciding it's okay, but, you know, you can't call in CIA operatives under oath to tell the judge why they recommended these

countries. You can't. Do you want to go? No. I would just say this goes to Mateo's point from before about context, which is if this had been appropriately done and had been supported by tremendous amounts of national security

agreement and vetting, we could have this conversation. The way it happened was that Donald Trump campaigned openly. It was on his website. An all-out ban on Muslims, he said. For a short time, yeah, he did. Well, he did. It didn't actually come off his website

until it was being argued at the Fourth Circuit. I'm not disputing what you're saying. I'm just filling in the details, yes. Because that's what he would say. I'm not taking his side. It's just my nature. Go ahead. No, I just think you can't strip away the fact that he would say over and over and over again there's going to be a Muslim ban just think you can't strip away the fact that he would say over and over and over again

there's going to be a Muslim ban. Yes. And we can't strip away the fact that the First Amendment prevents us from having bans based on religion. Well, not, not, not, not, not, not, not. Hold on, man. The First Amendment doesn't necessarily say that. One could interpret it that way. We certainly can't have religious animus

as the basis for making a differentiation. But could you... Not even under a rational basis. Well, but here's the thing. Is a religion not a ideology? In other words, if we said communism, we don't want communists in America, would that, whether you agree to disagree,

pass constitutional muster? That's a different problem than saying we don't want Muslims in America. Okay, but would that pass constitutional muster? That's a different problem than saying we don't want Muslims in America. Okay, but would that pass constitutional muster? I think that that was a fight that we've had in the courts, and I think that there is some wiggle room there, but there is no wiggle room. Well, what if the Communist Party all of a sudden said, well, we're communists

because God told us that communism is appropriate. I thought they're godless communists. But I'm proposing a hypothetical situation where the communists. But I'm proposing a hypothetical situation where the... I'm saying that one could theoretically say my religion says that I eat babies. Okay? The Jews, of course,

were accused of that in the Middle Ages. But one could base a religion on that. Never exonerated, by the way. But, you know, just because it's a religion doesn't mean it has to be completely immune to critique or to suspicion. And I think it's tricky because I don't believe that Islam is a threat in general, though there are elements of it that are dangerous,

but I don't think one can say, well, just because it's a religion means we can't be prudent about allowing that religion into this country as a general matter. What do you think of that supposition? I mean, I just think that it's... What if there were a religion... It's okay.

What if there were a religion, and there is, I think, devil worship. Like law school. And that's a religion. Our devil is our god, and he tells us to do terrible things. But that's our religion. The courts have taken the position, right or wrong, that even the pasta worshippers

and the Satan worshippers are all religions. We don't get into the business under the First Amendment of parsing which religions are good and bad. We don't do it the business under the First Amendment of parsing which religions are good and bad. We don't do it. But what case said that we cannot... It's one thing to persecute religion of people that are already here,

but to not let them into the country, I think, is a different matter. Is there a court case that says that any religion has to be allowed into America without restriction or suspicion. I just don't think there's the opposite court case that says that you could ever, ever ban an entire faith based on their faith. I don't think there's any... I've been wanting to interrupt you guys because this is an interesting question, but the fact is that that was not what the travel ban was. The travel ban was 12 countries, which I think had been identified as dangerous countries

by the Obama administration previously. There's, you know, Indonesia. I mean, the largest Muslim countries in the world were unaffected by this. Was Saudi Arabia not included in the travel ban? It was not included. Saudi Arabia's not included. The ones that sponsored far more terror, not on the list.

Right, right. Listen, these are, I said, you can make good arguments against a travel ban. What I don't think you can do is make good arguments as to why an unelected judge has the right to decide this. That's political. This guy, he says, these countries are dangerous. We know they're spending, I don't know, what's the number? $300 billion a year worldwide to fight radical Islamic terrorism.

It's not like there isn't a real problem out there that they are trying to fight. Obama identified these countries. It's very, see, the problem is that even a racist president may be right. He's his own version. In other words, just because he doesn't like Muslims doesn't make him analytically wrong that these countries are dangerous. Maybe he hates Muslims because those countries are dangerous. But the point is that the information which any reasonable person would need to decide that,

do we really need to do this or not, is not available to anybody but the president and those experts who are allowed to see classified information and understand it. A judge simply is flying blind. And those are all the arguments that were made in Korematsu when they said a racist president can be right and we're going to do this Japanese internment and trust us, we're not going to tell you why, but national security demands it.

And now we look back at that case and say that was— No, no, no. But, Cormac, first of all, that's not a counterargument to what I— Well, the point is that the president can be racist and also unconstitutional. But the point— Okay, Mateo. Hold on, Mateo. Hold on.

You're next, I promise. I have to say two things. No, in the end, if the facts that one would need to know before they could decide this in a way to protect the country are not available to the judges, then that's it. Then they can't decide it and they can't be accountable. Now, Korematsu was different, tremendously different, because these were Americans. These were not people outside the country who have no rights at all. These were American people that we were rounding up.

So, of course, then there's a whole bunch of other competing issues which come online, in my opinion. Go ahead. I'm just trying to remember, wasn't the problem that he made an executive order and didn't go through Congress in order to implement the laws so that they could rule whether this was or wasn't constitutional? And because it was an executive order, there was a lot of things he wasn't following legally. And so that's what the problem, what part of the problem was, too? I think the problem wasn't that he did it as an executive order. I think the problem was that it was an executive order that embodied blatantly unconstitutional promise. Because that I agree with, too.

But I'm saying what wasn't one of the arguments, I guess, is that you're supposed to there's supposed to be a process. Right. And that he skipped the process with executive order and then it was it was unconstitutional. And then so judges were going back and saying, well, whatever, regardless of the information you have, whatever you've presented is unconstitutional. It doesn't matter the information we do or don't have. What you presented to me doesn't follow the judicial system. Yeah, but, you know, these are the same judges who found Obama's executive orders on, until the Supreme Court changed it, executive orders on immigration. Stuff that Obama had said he wasn't even allowed to do that he eventually did.

But just in this case, I think. Listen, they, you know, who said it? They say bad case... Bad facts make bad cases. Bad facts make, yeah, bad cases. No, bad cases make bad law. Something like that. And, you know, when you have a...

Probably a Latin phrase for that. When you have a... Ego sum gattna. When you have a president who is over the line of anything we ever conceived of in terms of recklessness in a way he does his job sometimes, you know, we might overreact

and start setting some precedents that we really will not be happy about in the future. So can I say one thing and then I want Christian to talk for the whole rest of the time. But I think that... Oh, hey girl, what's going on? I just think thing and then I want Kristen to talk for the whole rest of the time. But I think that. Oh, hey, girl.

What's going on? I just think that that because I think that the sort of overarching point you're making is really right, which is, is this just like Trump derangement syndrome? And because we hate him so much, everything he poops out is unconstitutional. And that has to be wrong. Right. That's your predicate point. And I think that the answer is part of the problem is everything he does, he does so recklessly without the proper vetting, without consultation, you know, the DACA repeal. He was just like, oh, let's repeal DACA.

Sanctuary cities, no process. The thing that just got overturned this week, right, the asylum at the border case, the judge was like, there was no process here, you can't just do this. And so I think part of the problem is then it gets really hard to pull apart the part that is hating Trump and the part that is if he tweets after the first travel ban is struck down, okay we're changing it, wink, We won't call it a Muslim ban. Wink, wink. We'll add a couple of countries that aren't Muslim.

I was throwing Venezuela in there. Then you have, and Korea. Yeah, North Korea. Then you really have this problem of he is totally conflated with these acts. And that's the problem is that then it really does look like dude take the time do the process do the vetting regular order and then we can have a conversation about what's legal but if you're just going to wake up one night and say trans ban in the military and i'm tweeting it without checking with my generals you're going to get overruled yeah i don't i don't i don't disagree

with most of what you said and i don't although I don't know anything about the law about this asylum case. I tend to think that the court was right about that because it seems to me that if we want to allow people to come here to get asylum, it doesn't make any sense to be so technical. I mean, obviously, they're in distress and somebody in distress may not be able to get to the point where we tell them they have to be. Somebody in distress may just show up anywhere on our border. And why would the law that was designed to help them be so technical? Doesn't make any sense to me. This is us agreeing. Yeah.

I like it. Yeah. And I don't, you know, and common sense actually, you know, one of the things the law school that is denied is, I mean, actually, common sense is 95% of the law, I think. And, anyway, can we get to the Jim Acosta thing? Well, I believe Dahlia wanted to have Kristen speak the rest of the show. No, but Chris, I want

to get to the stuff that Kristen wants to talk about. Oh, is Acosta what Kristen wants to talk about? No, but let's get, that's the last one I said. I would just, I would urge you to make it fast. That's all. All right. So, Jim Acosta. What did you think about Jim Acosta, Kristen, getting banned from the...

What did you think about what he did, first of all? Do you know... For our listeners, that's... Because not all our listeners are up on the latest... You know, our listeners, let's face it. They are who they are. They're meat and potatoes. What?

Damn. What's wrong with that, Matteo? And I consider myself among them. You're not a meat and potatoes kind of guy. But I'm not a political junkie that no one is. Acosta was the gentleman that went to the Trump press conference and refused to cede the mic, and then when asked to cede the mic, refused to do so,

and then when the intern or whatever she was tried to take the mic, he touched her. It wasn't aggressive, but he basically- No, it was incidental contact. He didn't touch her. But the point is, hey, it's not your mic. The woman's asking you to give her the mic. Give her the mic. Are we going to be there all night?

Are we going to be here until 3 in the morning? All right. be here until three in the morning. So that's my unbiased resumption, resume, summary of what happened. Now, Kristen. You say what? I have never wanted to talk about sexual assault

so badly as I do right now. Go ahead. I just think I don't want to get into like the ins and outs of what happened in that room right there. But I think that freedom of the press is number one. It's a founding tenet of the country. I do think that there have been really. Yeah, but he can't be there all night long asking questions. Are you going to argue with her?

He was there. He was there all night long. Well, he was. You got a certain amount of questions. Time to pass the mic. We're waiting to hear what she has to say. You ask your follow-up. Yeah, I'll do that.

No, I just think that emotion also gets in the way sometimes of procedure. If you're taking that mic for an extra minute, it's not the end of the world. Freedom of the press is there for institutional accountability. And that is the role of the press. And I think, frankly, right now, with what's been going on since this administration came into office,

it's more important now than ever to protect those rights. But freedom of the press, I don't believe, means freedom to go to the White House and ask questions all day long. He's free to write whatever he wants House and ask questions all day long. He's free to write whatever he wants. He wasn't filibustering. He didn't have that mic and start reading the phone book. But I don't know that freedom of the press covers what she's discussing. This is the question I would ask, and I think this really is the, depending on how you answer this, if you answer it in good faith,

I think it really decides how you come out on this case. Do you think he would have made exactly the same decision in pulling the press pass if that had been a journalist from Fox who had been friendly to him for the last two years? Probably not. Probably not. That's the end of the case. They've had a public feud. That really decides it, even though they didn't

decide it on First Amendment grounds. That really decides it. Now, having said that, again, bad facts make, or hard facts make bad law, whatever. He was acting horribly, Acosta. And, you know,

you do ask, it is, you do ask yourself, okay, well then, what, what are the limits now? And I remember,

I don't know if this is interesting, my father, I grew up in a home that hated Richard Nixon. Like, he was the enemy. Yet, there was this famous

incident, I remember as a child, where Dan Rather, and, Like, he was the enemy. Yet, there was this famous incident. I remember as a child, where Dan Rather. Dan Rather, yeah. And Nixon said to someone like Dan Rather, are you running for president? Dan Rather said, no, Mr. President, are you? Which now seems like nothing, right? Right.

And my father was incensed with Dan Rather for having the, showing that kind of disrespect to the President of the United States, whom he hated, who he thought was a crook. And I'm torn by that. Who do you think behaved worse at that before Acosta talked to Trump? Trump or Acosta? Acosta.

I thought Acosta behaved terribly. Trump's been worse many times, but in that case, no, Acosta. Do you think that it was a buildup from how Trump and Sarah Huckabee have been treating the press, or the White House will say has been treating the press? That's what I was just going to say. You can't parse out that incident like it stands in Iowa by itself. Because I don't think it was a singular incident. I think this is a layered incident.

Not to mention... It doesn't matter. Well, I mean, I think in the same way that you bring up past things with other people, I think it does matter in some sense. I think we have the leader of the nation displaying rude, inappropriate... Racist comments. Behavior, like, on a regular basis. And our whole nation is following suit. I mean, I think civil discourse is really taking a hit during this.

But to see how you're all making my point. And one other thing, I think it's really important that the question that Acosta was asking was not some, you know, flippant question. He was saying, you said this migrant caravan was full of terrorists. There's no terrorists. Do you stand by that? It was a

material fact. He should have asked that first, not as his fourth question. I mean, there's, I think that the first He could have asked 10 more material questions. I mean, nobody said it was immaterial. But the fact that Trump turns that into you're rude, you're an enemy of the people, like answer the question. And then we don't have this. It's Acosta's job to ask questions. of the people who used to be really kind of the same way in the press room filed an amicus brief

supporting Acosta this time because this is how reporters do well I just I just told you that I think that it was the right decision and I think that it's clear that Trump did did uh discriminate based on point of view which which is would be the standard in the first amendment case. Nevertheless, I think it's unfortunate because Acosta did put him in the situation where, well, okay, who's in charge here? I mean, you asked two questions, you asked a third. I don't need, you know, now I'm going to somebody else and you're waving the mic away from the intern.

I've never seen anything like that before. I felt bad for the intern because she was like, oh God, what am I doing? What am I supposed to do? Like, I think it was unfair for Trump to try and force her to grab a mic from his hand and put her in that situation. I've never seen a reporter behave like that.

In the end, Trump did the right thing by walking away from the podium, which was the smartest thing to do. And then he got, he's vindictive, so he wants to pull his press pass. But now, what are they going to do? They're going to have to have procedures. They're going to have to have rules. They announced them. They announced these rules. No follow-up questions. Or some follow-up.

It's amazing. And it's like, you know, and I blame Acosta for that because the press is... Do you blame Trump for anything in that situation at the press conference? Because his behavior was erratic and inappropriate for a president.

I don't know the answer to that because I didn't see the press conference. I've seen Trump really bad in press conferences. I think that was, in particular, the worst he's ever been. I don't know. What did he do? Maybe I'm just not remembering. He just was refusing to answer the question. I think that he

attacked Acosta for asking the question and refused to answer it and attacked him sort of personally and sort of miserably. For the first two questions, he was okay. As I recall, I could show the tape and I'd find that I'm totally wrong. My recollection was that he answered the first question and the follow-up, and then Acosta kept going. He says, no more.

He kept going. And I believe, call me old-fashioned, at the point where you've had your question and your follow-up and the president says no more, it should be no more. It kept going. And I believe, call me old fashioned, at the point where you've had your question and your follow up and the president says no more, it should be no more. But at that point, otherwise, then you have to tell me what the rules are. Who is the African American reporter who asked the question? April Ryan. Yeah, April Ryan

asked him a question about him calling himself a nationalist. And she says, does that bother you because white nationalists are taking that as you saying, which is a legit question because white nationalists are saying, hey, blah, blah. I don't believe any white nationalists heard him say the word national. I think that's all fabricated. But go ahead.

But anyway, so she asked a question, which I feel was a legitimate question based off the rhetoric he's been spewing for the past years, two years. Even Max Boot said the word nationalist is not inherently. But his response to her was, you're a racist. So he told a black woman who was asking him a question about white nationalism, he goes, you're a racist, you're a racist, how dare you ask me that racist question. I have to look that up. I feel like you're

not verbatim here. I'm almost verbatim, actually. That's how Cuckoo, it was like a Lindsay Lohan Instagram. I mean, it was Cuckoo bananas. Look at his tweets. I know Instagram. I mean, it was Cuckoo bananas. Look at his tweets. I know. I mean, I'm not here to defend him.

How great was Michelle Wolfe today, by the way? Oh, my gosh. How great was Michelle Wolfe today? I texted her immediately. I'm like, you're a gay legend. Yeah. Somebody want to say on the case anybody didn't hear? I wasn't aware of what transpired with Michelle Wolfe.

So he tweeted. Oh, he said something about she bombed so bad at the... Yeah. At the... Correspondence Center. That they're hiring a writer instead of a comic. And basically said, I might go this year or whatever.

But Michelle Wolf bombed so bad. So she wrote, I bet you'd like me if I kill... I bet you'd like me better if I kill the reporter. You'd be on my side if I killed a journalist. Yeah, that was it. They killed a journalist. I mean, a journalist.

That was it. Yeah, yeah, yeah. I mean, it was like... Oh, good for Michelle. It was such a journalist. That was a, yeah, yeah, yeah. I mean, it was, it was like. Oh, good for Michelle. It was such a fastball over the plate, right? I mean, it, I was like, you cannot come for someone like Donald Trump. Like, you can argue many people. Do not come for Michelle Wolfe because she is, whatever you say, she will spin it.

She is too smart. Too quick, too smart. So now, this will help you, Dan. So now, speaking of Michelle Wolfe, we were in Vanity Fair. Vanity Fair. Bravo. What is Megyn Kelly doing at the Comedy Cellar

and why is she speaking to Michelle Wolfe? Did you hear about that? Right, I saw that. Yeah, yeah. When did she talk to Michelle? For a second. For a second.

I am dying to know who dropped that to page six. I can't figure out who it is. I actually watched it because we were all at the table together, and it was literally a shake of a hand. And then when we were sitting over there, she came over, and for one more five-second thing,

essentially said goodnight or something like that. But we can answer the question that Vanity Fair posed. Why was Megyn Kelly at the Comedy Cellar? She loves great comedy. There's no mystery there. And she enjoys our desserts as well. Wasn't Vanity Fair a not-a-gossip National Enquirer type outfit? Like, why is Megyn Kelly going to the Comedy Cellar?

I don't know. Why is she going to a restaurant? Why is she going to the Great Adventure? I mean, she went out for her birthday. She went to the Comedy Cellar. I know. This is the national story? She left the house?

Well, this place is a very famous place, and so when famous people come here, it sparks people. They want to know. And she was probably lovely, by the way, when she was here. It's come to the point where anything, if somebody sneezes at the Comedy Cellar,

it becomes news. I mean, it's almost got to, except for me. I've done all my sets naked and not one single article. So let's get to sexual. What is the term? You can say the wrong thing in so many ways today.

I'm actually afraid. We're not really there. We've actually done some research on what term resonates because our own language in the sexual assault field kind of gets in the way. In the mic if you would. So you got it. So if you just want to say, like we sort of have a trilogy, sexual harassment, misconduct, and assault, then you're covering all got it. So if you just want to say, like we sort of have a trilogy, sexual harassment, misconduct, and assault,

then you're covering all of it. H-C-A. H-S, okay, whatever. Sexual conduct, harassment, assault. It's long. I thought it was sexual misconduct. Sexual violence, sexual misconduct. That's fine.

Mateo, where are you going? This topic makes him uncomfortable. I am. It makes everybody uncomfortable. So you contacted us. So the end of the story is that you said, why don't we do a fundraiser for sexual conduct assault? You had wanted to have a conversation back in September, I think,

about the Me Too movement and some of the heat you were taking about your Louis C.K. decision. Yeah. And through a conversation with Stephen when we were talking, he said that, and I heard it also on the show that Judy Gold was on it, that somebody had suggested that you donate money. Oh, that's right.

And you took heat because... Was that the show that I blew a gasket? Yes. Because, okay, just to be clear. That was the show that you blew a gasket, yes. And I believe justifiably, go ahead. Just like Acosta. Well, regardless, we are actually in the process of running a little campaign to try to get Reliance,

which is a, it's not an organization, but it's a partnership between three agencies that are working together towards a common goal. So we had this give a buck campaign, which we're about to kick off. And of course it's an irreverent name because most people don't give a fuck about sexual violence, which is why our country's having the conversations that it is. So it was just a good opportunity to mention it to Stephen, and he said it to you. And so I came up and had a really good conversation with you about all the things that you've been thinking about. So we're doing something on December 6th. You are? Fourth.

December 4th. Yep. And Michelle Wolf is headlining. Is Michelle Wolf headlining? Yes, she is. 4th. December 4th. And Michelle Wolfe is headlining. Is Michelle Wolfe headlining? Yes, she is. I didn't even know that. That's fantastic. Is that listed on the website or is that a surprise guest? No, no, no. That's no longer a surprise guest. Oh, that's wonderful.

I'm through the roof. You did not ask me to perform at this show. I was just... Liz was in charge of all that. You can take it up with Liz. Oh, so it's only women performers? Unless there's

a special guest. Not by request. Liz put it together. And I love the lineup. It's only for woke individuals. So we're doing the sexual misconduct fundraiser. Yep.

And we're splitting the proceeds how? So our organization... The proceeds are going to... No, no. But we're sharing them because we like to partner with people. So we're splitting the proceeds how? So our organization... I'm kidding. The proceeds are going to... We're sharing them because we like to partner with people. So we're partnering with no more. You're not. You guys are being very generous on this one. But you're taking the drinks,

I assume. No, we're donating everything. That's great. That is great. I didn't know that. And by the way, no half measures around here. No one preferred to keep this relatively quiet because he did not want to be accused of trying to whitewash. There might be a more specific word for this. We don't say whitewash anymore, do we?

It's not an apology event. It's multicultural wash. Anybody who's been listening to the show, you may not agree with the decision that you made. That's fine. I know a lot of people don't. But this is an issue that our nation really misunderstands greatly and has really ridiculous expectations about what they think a particular system response

is going to be, whether that's the criminal courts, the civil courts, whatever. People are very, very misinformed and delusional, really, about the effectiveness of those systems. So I think where we sit is you've actually been having multiple conversations over an extended period of time, really grappling with these issues.

And people may not all agree with the decision that you made or maybe some of your thinking about it. But nonetheless, you're spearheading some really important discussions that I think a lot of people around the country are thinking about. And there's not a single answer. That's why it's been so difficult. There's not a single answer. What does your organization hope or trying to do with the money that you're raising at this show? Where can we expect that money to go for what kinds of things? Right.

So we're splitting it with two between Reliance, which is this national partnership, and we're really focused on prevention efforts. So we give grants to people. We do open call for letters and give out grant awards to support programming, particularly in underserved areas. So those might be underserved communities, marginalized communities, and also to treat offender behavior, particularly for young offenders, because we know early intervention is important and really trying to raise the profile that prevention is possible. So that's what Reliance does. And then the No More campaign, which is who we're partnering with in this event,

they do a lot of broad, community-wide public service announcements and awareness raising. So you may have seen them during the Super Bowl. They've had commercials on there. I'm not a sports fan, but in any case. I have a question. So this is a question for the ladies. And I don't know how you identify.

But so we had a staff meeting a couple days ago. And we're trying to put together a sexual harassment policy for the place. And I said to the staff the following. We're going to promulgate this written policy. It's going to be based on what's out there in the world of how lawyers and stuff tell us to do it. But what all this last few years has taught me is that none of this really works. You're right. And what I said to the waitresses, I said, listen, in the end, I feel like you should be able to come forward to me or to anyone in a

management position here that you're comfortable with in any way that you want. I'm going to suggest to you some ways in this procedure that I'm going to hand down. But if that doesn't work for you, then however, I said, even if you want to send an anonymous email to me, I said, and make sure I reply that I got it. So you know that I got it. I said, that's, or to any manager here, that's fine too, because it seems like nothing, nothing works to make people comfortable coming forward. There's a couple of things that we know this, and you are right. I think what we've done from the 80s on around sexual harassment is we've had a lot of attorneys talking

about what the legal standards are, and then assuming that if you tell people where the line is about when they're going to get in trouble, that they're going to behave appropriately. It doesn't work. That's why we're still locking up people for criminal behavior. Knowing that there's a line to cross does not deter people.

We've got ample evidence. Right. But what we do know is that whether or not people are willing to come forward is based on whether or not they feel like something good will come of that, that they'll be responded to. How do we know that? Actually, we have evidence from the military efforts that when you see, we've got a couple campuses where you've had a contained Penn State's one of them. When you have an environment that suddenly starts investing time, money, and energy into talking about the issue, making resources available, reiterating in multiple ways what the expectations for behavior are, what the expectations are for other people to respond, what are your policies, where are the procedures, where do you go, what's the process. What you end up seeing is that your rates of reporting increase.

And that is a good thing because these are issues that are vastly underreported. So when you see a spike in reporting, that's your first indicator that you're doing something right. So what we know now is that when we're working with organizations, yes, you absolutely need a policy. You've got to have some things on paper for people to follow. But what's more important is what you're doing with your staff to talk about how do you intervene on low-level stuff. Do you give them an opportunity to practice it? You know, because it feels uncomfortable. We've all been in that.

This is what I do for a living, and I've been in a position where I've seen something going down in public, and I feel like I know I need to intervene. And you do all those things. You start to second guess. Oh, is she crying or is she actually laughing? I can't really tell. You know in your gut that person's crying. They need help.

So you need some practice and to give people a couple tools that they feel like they're capable of carrying out so that you want to be able to intervene on low-level stuff like inappropriate comments or what should I do for an inappropriate comment I actually have something on my radar right now concerning an inappropriate comment it happened months ago and I just I just heard about it today yeah I think you go to the person and you say, this comment was made. You don't even need to say, and now we're going to investigate about whether or not you did or didn't.

I'm sure they did. They're not going to do that. What you need to say is, that type of stuff is not welcome here. And then you figure out what's the appropriate level. Do you put them on a verbal warning? Do you say I'm right and you're up? Do you say if it happens again, you're out? You give a warning. You hit it hard. What if the individual is famous? Same thing. Why does that matter? It shouldn't. It shouldn't. It shouldn't. Right. That's all I'm going to say

is it shouldn't. And it wouldn't matter to me. But no. I mean, how famous? So that actually leads us to, listen, it's really hard because, you know, then the person still works here. And then the person who made the comment eventually has to run up against each other. And just that fact may be enough to get the person not to come forward. Yeah. But I know that it's just a comment. You can do things on both sides, though. You can do things on both sides, though. You can definitely... When I say just a comment, I mean you don't know whether you want to just permanently sever for somebody forever over a comment.

A comment is serious. And that's your call. You do have the right to make that call. But if you're going to say, listen, I'm going to put you on notice if it happens again, then we're severing permanently. That's a totally appropriate thing to do. And to let everybody else know about it. Listen, I put them on notice and they've been told if it happens again. Now they know you've got their back.

And for the person that was the subject of it, if you want to say, listen, next time they're in, if that's a shift you're assigned to work, let's talk about it. You don't need to be here in the middle of that. So I'm willing to work with you to make an accommodation. Oh, I always do that. That's our policy, even without that. Our policy has always been here to any female employee that you don't have to wait on anybody you don't want to, period. Right, nice.

We don't even say, and they never do it, but I never second guess it. Did you want to? No, I think I just wanted to say, because I've been reporting these Me Too stories for two years, and I think one of the things, just to amplify something that Kristen said that's really true, and that you said, I think the systems don't work. If the systems worked, we wouldn't have journalism doing this work. And I think that it's really, you know, the systems don't work either because, you know, there's an NDA or there's a, you know, some kind of agreement of silence or some kind of power differential. I think that it doesn't mean

the fact that journalism is doing this now doesn't mean the systems can't be fixed. It means that there seems to be no other sort of outlet for this. Well, the bottom line is the systems are a reflection of our larger culture. You know, and so I do this all the time when we get into, like, well, why don't victims report? You can pull apart the criminal courts or the civil courts and look at, like, where does it all go wrong? And there's 100 different points, but it all comes back to what's acceptable in that community so if you have a district attorney who's willing to say listen i'm i'm not going to take a non-stranger uh assault that involved drugs and alcohol because i know that i'm not i'm not going to get a jury in this in this community that's going to convict on that because everybody holds

a lot of bias and they don't understand the crime and i'm not willing to pay for an expert witness to come in and and talk about it then they don't prosecute. It goes nowhere. And now you've got a victim who's told her friends and family, yeah, I reported. Yeah, I got a rape kit. Yeah, I did all the right things I was supposed to do and nothing happened. At least people feel helpless. Should Noam have a meeting? You had a meeting with your staff. Should Noam have a meeting with the comedians? And if so, what should he tell us? Should he tell us some ground rules about behavior? Although I think we basically know what appropriate behavior

is, but do you recommend Noam having a meeting with the comedians? Or sending an email? I think that there's nothing wrong with that to state what the expectation of behavior is. And it doesn't have to be a mean thing. This is a good thing. We want to have a workplace where everybody's comfortable. People are going to enjoy your art if they're feeling comfortable here.

So when you do these kind of inappropriate things, that changes the tone. This is a club where we're not going to tolerate that. We're not going to turn a blind eye to that. How would you feel about behavior that takes place outside of the work environment? Say a comedian. Does it impact the work environment when everybody comes in here? Well, I imagine it might. Then you address it. Okay.

So let's have this lead us to what's in the news now, this Title IX thing. What are you talking about Title IX? I get nervous now. I'm getting nervous because it sounds like it's very... Anyway, go ahead. Which Title IX? It's the... The Dartmouth thing? No, the Obama administration

had promulgated certain rules about burdens of proof in campus accusations of sexual misconduct. And then... They're the same as the civil courts, preponderance of the evidence. And Betsy DeVos...

Well, but there was no cross-examination allowed and no access to evidence, no right to exculpatory evidence. They're pretty astounding regulations, in my opinion. And now Betsy DeVos has issued some new ones which allow cross-examination, allow a clear and convincing evidence standard, if that's a standard used in other disciplinary actions within the thing. All, to me, seems like the basic requirements of a fair process,

but the ACLU is pushing back on this. So I don't know. Dahlia, do you have a—you both get to speak on it, just because it's legally related. Unfortunately, I know you didn't ask me, but unfortunately you lost me. I don't know what you're talking about. Basically that they've promulgated rules that put a thumb on the scale for the accused, whereas the Obama administration had a thumb on the scale for the accuser.

Is that a fair summary? I think that's fair, yeah. And to be clear, these are not legal proceedings. These are disciplinary proceedings at a college. So if a student is brought before the disciplinary board for violating the code of conduct of behavior at the institution, and maybe that violation was sexual in nature, but it's just violating the code. The worst outcome possible is that that student can't finish their education at the school of their first choice. No, no. The first choice, they go on a list, and then no school will take the school of their first choice. No, no. The first choice, they go on a list,

and then no school will take them. There's no list. Yeah, there is a list, and every... Well, I heard there was a list, but even without a list, every application is going to ask, have you been dismissed for anything? And then, listen, I believe we can agree or disagree with this,

but let's not sugarcoat it to be not a huge thing to get expelled from a university for something that you didn't do. It's also acoat it to be not a huge thing to get expelled from a university. It's also a huge thing to be sexually assaulted and not be able to complete your education. Right. But I'm not comparing them, but I'm saying that what I think you're backing into is saying, listen, it's okay for the procedure to be kind of, you know, not fair because it's not such a big deal to get expelled anyway.

No, no, no. I'm not, I mean, no way of saying it's not fair. I actually do think that the rules previously were fair in terms of, like, everybody's allowed to have representation. Why would you need cross-examination for a non-legal, I mean, there's no criminal outcomes. Let me tell you why. Okay. When I have a dispute among two waitresses in the Olive Tree, there is no way I can get to the bottom of it

unless I have them at the same table with me. There is no way. And believe me, there has never been a time when I did have them both together where stories didn't change in some way.

Now, sometimes it didn't mean change who I thought was right and who was wrong, but nobody in my experience has ever come to me and on their own free will told me a story free of spin on any incident that ever happened in the workplace. Ever. Not once. It's not in human nature. Now, when you, let me, my thinking about it is this. Do we believe that women are capable of murdering somebody?

Yeah. my thinking about it is this. Do we believe that women are capable of murdering somebody? Do we believe that women are capable if they could do something ruining somebody, if they're angry at them? What I'm saying is that if you knew that all you have to do is claim something... No, no, no. I can't even go there because what we

know to be true... And that no one could ever question you. No, you can be questioned, but I think trying to start this discussion at like a 50-50 standpoint is wrong because it's not a 50-50 life experience in terms of who perpetrates and who's

victimized and what real life experiences are and who reports. Exactly. But if it was physical assault or murder, we would... Because those are crimes in which there are injuries or some kind of incontrovertible evidence left over. Sexual assault is a crime. So you think the right to cross-examination is going too far?

I think for a disciplinary hearing, yes. To lose, to be expelled from your university and maybe not be accepted. It basically changed the course of your life. The Obama administration promulgated these rules after doing unbelievably extensive study. They didn't just invent rules to screw over men. They did extensive study about what it looked like

on the ground. And they came away with the, I think, not improbable proposition that for a woman to be in a room cross-examining the person that she has accused is unbelievably chilling. We might not like that as a process matter, but that is something... Maybe we should do away with it in criminal courts, too.

Well, I think that these are not like robberies. I just think it's not fair to compare the crime itself. And I think that what they were trying to do, and you can say, you know, maybe they overshot, maybe they undershot. I think they were trying very, very hard to calibrate the interest that Kristen's trying to make. I'm not doubting their good intentions. I'm not doubting anybody's good intentions.

But the guidance letter that they published in 2011, which is what everybody points to and acts like it's new guidance, is not new guidance. It was guidance that was published in the 80 guidance. It was guidance that was published in the 80s. It was guidance that was published prior to 2011 again. But because this issue was not on our national radar, we didn't pay attention to that stuff.

But we've had prominent cases where it was made up. We've had that. Let's not pretend we haven't. I'm not pretending we haven't. And these kids, And these kids... What has happened more often, though, is real sexual assaults where nothing happens. We're changing our fundamental

idea of American ethic, which is that... If we were arguing what's happened in the criminal courts, I would be with you, but we're not. When OJ got off, we saw all the videos of black Americans were cheering. They were cheering for the same logic you're giving me. They were cheering because, yeah, he might not have done it.

I mean, he might have been guilty. But so many other people who weren't guilty got in trouble. So we're cheering for our team. So you have these people at Duke or UVA. And if something had not been able to come out, if they had just taken the female student's word for it, these guys forever would have been rapists. That's where you're misinformed, though. They don't just take a report from a student and then go have a hearing and say, listen, you're done.

There is an investigation. Both people are interviewed. No, that's where you're—there was one story I read about where actually the girl went home and told her roommate about something in the middle of lovemaking where there was no con. I remember. I remember these. You can look at it. And then the roommate went and told the administration and the girl. She said, no, no, I wasn't raped.

She's no, no. But you're describing me as rape. And the kid was expelled. But you just finished. Even though she claimed she wasn't a victim. You just finished saying that we can't make like massive rules and kind of forget about the fact that this is an individual. But you're trying to argue from the pathology, right? Like from the handful of cases.

I'm just responding to what she said. No, but what I'm saying is that you have to look at the massive, massive quantum of evidence that shows that if one in four, one in five, whatever the number is, women on campus are being assaulted and they're not reporting. We have to start from the predicate that that is the problem. We can't start from the predicate that every single case we look at and absent all of these factors that go into it, whether it's alcohol or fraternities or whatever it is. Do you think... Wait, wait, wait, wait. So you're saying that you think it's

okay in this one instance to... If I can't do it... Maybe that school didn't follow the right procedure. No, no. I mean, it's one type of crime. Meaning like if I came in and said that you stole my money,

could the school dismiss you for that? Because I said so? But nobody's dismissing you. What Christian, I think, is saying is if that happened, that's a pathology. That was a failure of the system. If what you're describing, broken condom, one report, roommate says it, the guy's out of school, that's crazy. That's not the system working.

What we're saying is analytically. The system shouldn't allow for that. Systems allow for horrible pathologies all the time. I don't know if you really even disagree with me. The idea that somebody can make an accusation and shall not be asked any questions

about that accusation by somebody who has an interest in being skeptical. And someone who has an interest in not having students protesting outside their office in the morning or maybe getting fired because they decided

that the evidence wasn't strong enough. That that should be the way does not create a tremendous incentive for things that we don't believe in. I don't know what the answer is, but I just can't believe that people really

think that just because somebody says it now, other people are going to be punished by it. And you don't even have a right to say, listen, I wasn't there. I want to ask her where were you? This is what anybody demands. Let the record show

that Dahlia's nodding her head on the microphone, not acknowledging it. I think the bottom line is it's something. Nodding yes, saying no. It's hard to get in. You've got to get that right wave. I think the bottom line is, and we've discussed it in numerous contexts, whether it be Woody Allen, whether it be Louis C.K., et cetera, et cetera. I think the relevant question is, what should the standard of proof be in this setting? Would you accept a preponderance of the innocent until proven guilty is what we insist upon before sending someone to jail or executing them in the case of capital murder?

What do you think, Noam, the standard should be on a college campus. I'll tell you. I could be persuaded that preponderance of the evidence is okay, so long as there is all the fact-finding procedures are allowed that I know personally from my experience and I believe from common sense are necessary to feel that you have a preponderance of the evidence. To say there's a preponderance of the evidence, but we've made no real inquiry into the evidence and you can't cross-examine, that is not a preponderance of the evidence standard. But rest assured, a preponderance of the evidence, but we've made no real inquiry into the evidence and you can't cross-examine, that is not a preponderance of the evidence standard. But rest assured, a preponderance of the evidence standard will lead to, at times, somebody that didn't do anything being tossed out of school.

And I think we have to stop saying with no investigation, because that's not what happens. No, listen, the whole basis, I mean, maybe the most remarkable achievement of our whole culture is the adversarial system of justice. This is what we've learned. That this is what we're most proud of, is that in an adversarial procedure, that's when the truth comes out. And to throw that all out

is just astounding to me. Now, in a criminal court, yeah, you want to have beyond a reasonable doubt. I will accept the ponderance of the evidence, but there has to be an adversarial system. Now, to bring it back to the comedy seller, if I might, what about a charge of sexual assault against a comedian

that you had no definitive proof of, but yet you suspect it was probably true? Now, what might you do under that? We're speaking in the hypothetical here. What's the question? if a comedian was accused by a member of the wait staff or by another comedian for that matter of a sexual

assault and they couldn't be proven with any certitude but it was you would have to give me a lot of details it's very very difficult I want to really make something clear here too that something that's really unique in some ways to the crime of sexual assault this is a crime

that by design happens on purpose without witnesses. Right? You're right. Well, that's very true. I understand that totally. I really do understand it. I'm glad that you do, but I think there's

a lot of people in America that don't. That they want eyewitnesses or they want a videotape or they want some kind of injury. And those things by design don't happen because you have somebody who is strategically making decisions to orchestrate doing this. They are the person. Look at Swetnick. Who? Swetnick. Julie Swetnick.

One of the Kevin. Thank you. This is a perfect example. She goes on NBC and immediately her story falls apart. But can I just... That's cross-examination. I think that part of the problem is that we have this super binary construct. By the way, Matteo left just so people...

I just want to be... Okay. So the audience knows that why am I not hearing Matteo? Jesus Christ, Dan. Go ahead. We have this very binary worldview where we either want to say believe all women or all women are liars, right? And both of those are wrong. That's a cartoonish way of looking at it.

That's right. And so I think that you have to start from the proposition that you either believe that most women who claim, if they are claiming that one in four women on campuses are being assaulted, we either believe they're all liars or mostly liars, or we try to construct a system that allows them to come forward. And Title IX erred in places but tried to be a system that did that. Yeah. And my answer to you would be that overwhelmingly, obviously, they're all telling the truth.

Right. As are accusers in criminal cases. Right. Yet, I mean, but we can't tell the jurors, by the way, you know that 999 out of a thousand victims are telling the truth. So that's evidence that this victim is telling the truth. You can't do that. No, you can't. And, and that's kind of, you know, so it's, it's, that's bootstrapping the, the logic of it. Yes, I believe they're all telling the truth, but I know as a guy who has to, who has to litigate things all the time, just to see the two people talking to each other,

you learn something you can't learn otherwise. That's probably true, but for a workplace situation like this, or even an educational setting... Listen, we had false... I've dealt with... I'm sure you have. It happens all the time. I am not sitting here saying false accusations don't happen. When somebody's out to get somebody, they just put it out there and

don't get me wrong, it's one out of a thousand times. I believe, I'm not some kind of barbarian. I'm not saying women are going around creating stuff. I'm just not. But if anybody I cared about was accused of something and they said, listen, I didn't do

that or that's not, I did something that's not quite the way it happened or she said she was into it and then she changed it, whatever it is and they said, well, no didn't do that. Or that's not, I did something that's not quite the way it happened. Or she said she was into it and then she changed it. Whatever it is. And they said, well, no, you can't ask her any questions. I mean, no, this is bullshit. I can't, she could say, I can't ask any questions and I'm going to be punished. That doesn't sound right to, I think, to most people. And I also think when I talk to young women who've gone through these adjudication processes

on campus, that is not their experience. They have been questioned up one side, down the other. That's good. I mean, it is, they walk away, and this really is true, most people walk away from those kinds of systems, whether it's educational disciplinary hearing, civil court or criminal court saying, like, that was the worst thing, that was worse than the assault itself. It like half empty half full because look look at the duke case in the virginia case we wouldn't know about those cases if they hadn't been in the press there's gotta be many cases like that with where kids i'm not gonna get into the duke case but the

virginia case i i am gonna get into i think what was really clear was not necessary that nothing happened but the account that was reported did happen or did not happen. That's right. But it doesn't mean that some of it didn't happen. Maybe, maybe. And a lot of the cultural stuff they reported on did happen. That was all real. But the kids who were expelled did not deserve to be expelled or about to be expelled. I don't think they actually were expelled. And my point is that we found out about those cases because they made the national news. But we also have to presume that they represent a bunch of other cases. And look, what does a preponderance of evidence standard mean?

It means that out of 100 of these cases, 51 times they get the guy who deserved it. And 49 times they expound innocent. That's not what preponderance means. Yes, it is. Preponderance doesn't... It's not a mathematical quantum whereby... No, it's not the number of times you get the guy.

It's how much evidence you have to show. You need 51%. Yeah, but that doesn't mean 51% of the men who... It could mean that most of the time

it's like 85% jury. 99% jury. You could have 90% of the men convicted with 51% of the evidence. Okay, fair enough. For the cases which are only decided on the preponderance, in other words, the cases that would not have met the standard of clear and convincing evidence

or beyond a reasonable doubt. For those cases, the cases that fall between clear and convincing evidence and preponderance of evidence, which is one of the things they're arguing about. In those cases, out of 100 of those cases, if we're to believe those percentage numbers that are the standard, that means a tremendous number of false positives. Tremendous number, and we have to be ready to look at that. I don't think that at all. If you're ready to say 51% is the burden of proof, what you're ready to say is that 49 times I'm okay

with an innocent person being convicted. That's what 51% means. It doesn't mean that 60% doesn't count or 77% or 89%. It just means it's not the same legal standard as criminal court case.

It means there'll be some false positives. That we can all agree on. It means that it will be some people that didn't do it will suffer consequences. We've got to wrap it up. Let me ask you this way. Out of 100 cases, if the standard were beyond a reasonable doubt, clear and convincing evidence, or preponderance of the evidence,

how many... I mean, you're just going to guess. I guess it's not a fair question. I mean, it sounds like... Are you asking of 100 random cases? Or 100 like serious cases that have been investigated? And it's not that 51% of those men get bounced from school. The 51% is the quantum of evidence needed to show that he gets bounced. You can take any subset.

I'm saying when you allow, when we are ready to meet out consequences based on a standard of 51%, to me, I always thought that by definition meant we're ready to live with 49% coming out wrong in a civil case. I don't know. In a civil case, when the standard is preponderance of the evidence,

we know that overwhelming the civil case, it might be unfair. I want to take this mathematical quandary, though, and shift it real quick. Mathematically valid or not, but, but real quick. We have to wrap it up. Whether that's mathematically valid or not, I don't know, but there are some cases that will be wrongly decided that we can all agree on.

But, Noam, just a few minutes ago, you said you might be willing to accept that as a standard for procedure. I am ready to accept it. It's really important that we shift this. There's an investigative series that just came out last week looking at how, even in the criminal cases, how police departments make it look like they've cleared cases and they haven't. We've had massive investigations into the state of Minnesota that were published over this past summer in July. We've had DOJ investigate policing in Baltimore, in Missoula, Montana, in a variety of other places. Yeah.

And what they find is not just like racial bias, but it's racial and gender bias. And the gender bias comes out that they're not pursuing rape cases. We would not have rape kit backlog in this country if this was something that we cared about. But you know I'm not disagreeing with anything you're saying. No, I do know that. But I think, though, in our country, we spend all this time talking about what if we get that one guy who didn't deserve it, and I'm not saying it's not important.

I'm just saying, why isn't our country talking about why are we letting all these other guys go, and why are we not caring for all these women who did try to do the right thing, who did make a report? Well, you said yourself that it's very hard to prove because it typically takes place in private without evidence. They're not miscoding them because it's hard to prove, it typically takes place in private without evidence.

They're not miscoding them because it's hard to prove, and they're not putting rape kits in drawers because it's hard to prove. They're just not following the evidence that they've been given. Well, why would you suspect that? There is no question that women and the things that have been happening to them have not been taken seriously as they should have been

by whole parts of society. Absolutely. There's no questioning about that. I don't want to get out of the rabbit hole of the other stuff. But what's galling to me, actually, as a pretty conservative guy, is the way that people are pretending that, well, we didn't really realize this 10 years ago. Like 10 years ago or 15 years ago

when people were making accusations about Ray, like Bill Clinton, well, we just didn't understand back then. We always knew. It's all been there. We knew. Maybe I think what's different this time, because I was in the room when Brett Kavanaugh was testifying.

You were? Yeah, I was. I wish I'd known. I would have asked you about that. It was something. But I kept thinking, how is this different from Anita Hill in 1991? I actually think the difference is what we're seeing right here,

which is being vulnerable to, like, I actually don't know the answer to this. That's such a profound shift to be able to say, I don't freaking know what to tell my staff. I'm trying to craft lines. I don't know what they are. I don't think we knew that 10 years ago, or at least I don't think we were able to say, I don't think I know this. And that's a big shift. I'm reluctant to make it partisan, but

I'll take the risk anyway. Is there anybody who heard Juanita Broderick 15 years ago in that interview who didn't know it was true? Anybody? I don't know that it's true. Oh my God, I just listened to that late podcast and ruined my dog

walk that morning listening to it. It was like sitting in the courtroom. This is Slober and this is Leanne. It's so clear. She told multiple friends at the time.

Yep, yep. She broke down in tears. Like this, and we talk about Dr. Ford. I mean, this was, I mean, I remember watching like, what's going on here? Like, how, again, bias.

Like, but people would see it. They didn't think, yeah, I know it's true, but it's okay with me. They're like, no, no, I think she's some whore. She's some trailer trash. Good people were saying that. Feminists. We have a very hard time accepting that our heroes are often imperfect and that they fall from grace.

And we fight that. And you know what's even harder than that? Accepting that the people you hate might not be always wrong. And on that note. No, I mean that. But Kristen, I mean, you talk about prevention. You talk about programs. What do you mean by that?

I mean, other than. I'll say it real quick. People who perpetrate these things are testing boundaries all the time, what can I get away with how far can I push it, or what are people going to call me, and we know from talking to people who've been arrested, convicted and are in treatment, and they say like I did in these

four places but not that fifth one and when you say why, they say I knew I couldn't get away from it, so in a nutshell prevention is about helping people create environments that are hostile to bad behavior and nipping in the bud so you don't have a slippery slope. What advice would you give Noam? Well, the podcast can go as long as we please. But what advice would you give Noam Dorman then to create that kind of environment right here at the Olive Tree Cafe slash Comedy Center?

Yeah, I was going to say, I think NOMA's done a lot of that. I think when it comes back to the whole Louis C.K. thing that you're hung up on the meat hook for, the only other thing... You hung up!

You want me on that wall! I actually don't. I really don't. I think that your vulnerability in talking about this stuff has done more for the national conversation than anybody who's saying

it's all this or that. Has it really? I hope so. I hope people are listening. And I've definitely, the podcast that you did a few weeks ago with Lana, the protester, it was a great conversation.

I'm going to tell you something off the air about that, but go ahead. Okay. Okay. Regardless though, I think that the only thing that's missing is whether or not it's fine to have compassion for Louie. I think you both have demonstrated in terms of his career and his art.

I want to hear somebody say, and I said to him, Louis, this stuff, I don't know how much is totally true, how much is not totally true. If any of it's true, it's pretty fucked up stuff. And I sure hope you've got some help for that. That is stuff that you need to get help for. And because I care about you and because I think you're a brilliant artist and I want you to be successful and I'm willing to give you a place to work, I hope you're getting help for it. You don't even have to follow up.

It's just like with addiction. I can guarantee you a gnome is not going to say that. Well, you can say to somebody who's an addict or anything else and you can expect them to lie back to you because of the shame and all the other things that get in the way of it, but they are still hearing you say, I care and it matters. And I think that our nation does not do that.

We've turned any kind of sexual crime into the Scarlet A. We're misinformed. We think people are going to get locked up forever and we don't ever have to deal with it, and that's not true. This happens all the time. Podcast at ComedySeller.com is our email

address. If you want to donate or come to get in touch with Chris's organization, tell them the website. It's Reliance.org. It's R-A-L-I-A-N-C-E dot org. And your website has a beautiful featured...

Does it good? It's a featured event. Is it sold out yet? It will be. It will be. I have a featured event. Is it sold out yet? Not yet. It will be. It will be. I have the best staff. How much are the tickets? $45. Oh, it's nothing.

It's going to sell. No, it's nothing. It's great. And we're going to send it to him. And Dahlia Lithwick at Slate Magazine, who's been, Slate's been very, very unfair to me, by the way. But that's another story. Anyway, but okay.

Good night, everybody. Good night.