The Daily Beast Podcast - The Bad Part of Being a Lawyer in Trump World

Episode Date: September 16, 2022

As his legal woes pile up, it’s no secret that former President Donald Trump has employed more than a handful of lawyers in his time. David Enrich, a business investigations editor at The New York Times and author of the new book, Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice, tells hosts Molly Jong-Fast and Andy Levy on this episode of The New Abnormal that it’s certainly a pattern. Also on the podcast, G. Elliot Morris, data-driven journalist and author of the book, Strength in Numbers: How Polls Work and Why We Need Them, describes the “pretty complex” world of polling and sampling. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Molly Zhang Fast, no relationship to Kim Jong-un. I'm a left-wing pundant and a writer at the Atlantic Info. And I'm Andy Levy, former Fox News and CNN HLN guy and current cable news conscientious objective. And I'm producer Jesse Cannon, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with the wisest and funniest and funniest people in science and media and politics that help make what's happening today clearer. Our world has been turned upside down, and on the new abnormal, we'll talk about the people who got us into this mess and how we'll hopefully get ourselves out of it. What a great show we have today. First, we're going to talk to David Enrick, who's, of course, a business investigator at the New York Times, who's the author of the new book, Servants of the Damned, Giant Law Firm's Donald Trump and the corruption of justice. He's going to talk to us all about his new book.

Then we're going to talk to G. Eliot Morris, who's a data journalist and U.S. correspondent at The Economist and author of Strengthened Numbers, how polls work and why we need them. all about the weird discussion of polls that's happening around the midterms. But first, let's have some fun. Molly Johnfest. We talk a lot about Trump being the head of the Republican Party, but I have a new theory that maybe Tucker Carlson is actually the head of the Republican Party. Oh. And I will back this up, but Tucker Carlson says that on July 26th,

which you'll remember is like two months ago, I'm saying that for myself as much as for anyone. else because I looked at this and I was like, July, it's not July anymore. No, no. Martha's Vineyard is begging for more diversity. Why not send migrants there in huge numbers? Since he is the head of the Republican Party, that is exactly what Mr. Ron DeSantis did last night, sending 50 migrants to Martha's Vineyard on a plane in the hopes of winning the Republican presidential primary discuss. Oh, first of all, I sort of like your theory. I think you can sort of split it. I think you could say that Tucker Carlson is maybe the head of the Republican Party for policy.

Yes. And Trump is the head of the Republican Party for sort of the heartbeat of the party. Right. For crimeing. For crime. Right. And it sort of makes sense because DeSantis sort of wants to, he sort of the fusion candidate here.

Right. It's true. And, you know, he likes to present as smarter than Trump and a saner alternative to Trump, which he's not, but I'm talking about how he likes to present it. So yeah, I kind of like your theory if we split it that way. I remember we talked about, you know, the fact that they were talking about busing the immigrants to northern cities and stuff like that. And we sort of joked about it. We were like, oh, the immigrants should probably be happy about it, and which is probably true, but it's also not funny. I mean, I'm hard-pressed. I'm not a lawyer, but this feels like kidnapping

to me. I don't work, you know, and trafficking. And there are children involved in this. Right. And they're not feeding them. I mean. No, it's just gross is what it is. And we've now got, it feels like we've got DeSantis in Florida and Abbott in Texas sort of competing to see who can be the biggest asshole. And it sort of feels like that's part of what this is about is that DeSantis did this as sort of a, you know, feeding off of Greg Abbott and wanting to make it clear that he's got the smallest dick in town.

It's gross on every level except for the. response by the people in Martha's Vineyard after these people who, by the way, were, as far as I can tell, are asylum seekers? Yeah. It's actually not illegal to seek asylum. No, not at all. Like, they were doing what conservatives say they want done, which is you follow the rules. So they were following the rules.

And, you know, the conservative retort to that is that the rules suck and Joe Biden and blah, blah, blah, whatever. But regardless, they were following the rules. and their reward for that was getting thrown on a plane in Texas that then stopped in Florida and then stopped in South Carolina and then ended up in Martha's Vineyard. And again, it sounds like kidnapping to me. They were not told where they were going. I don't even think they knew where they were when they landed. No, they were told they were going to Boston.

State Senator Julian Sear said the planes originated in San Antonio, Texas and appeared to be part of a larger campaign to divert margins from border states. He said just like the reverse freedom rides in the 1960s, this endeavor is a cruel ruse that is manipulating families who are seeking a better life. No one should capitalize in the difficult circumstances that these families are in and contorting that for the purpose of a gotcha moment. I mean, it is like, you know, what I think is so moving about this is people were served breakfast this morning by the parish and served lunch by the school system. We are a community that helps one another and you can see it here. You know, I mean, the thing that got me so upset today when I was reading it, I actually read it last night, was that my great grandparents came to this country. Like, that's how it works. Right.

And these are our people, just like the rest of us. I mean, they didn't eat all day. They got there. They were told they were going to have, you know, they came. And their people are taking care of them. And I feel like it's just such a good example of like, you know, this is what we're supposed to be doing. I'm sorry. I'm welling up.

No, you're absolutely right. And that's what I was going to talk about before. I got, when I started to say, this is so gross, except for, and then I just got sidetracked by how gross part it is. But I was going to say, except for the response of the people in Martha's Vineyard, who just amazing and fantastic. And just what a stark contrast to the DeSantis's of the world. And look, I have no idea what the party affiliation is of these people in Martha's Vineyard. Martha's Vineyard tends to be liberal, which is why DeSantis sent them there. Right. I just don't want to assume, and I don't want to assume.

and I don't want to say, look at these Democrats, I do think it's safe to assume that the people helping the immigrants are not part of the Trump wing of the Republican Party. Right. No, I think that's fair. No, and it really is a stark contrast. And sort of like if you want, there may not be a better example of the differences of the sort of two Americas, the Trump-Dissantis, Abbott America, and the America of the actual people who are caring and empathetic and don't, you know, don't hate people because of their skin color or because of how they arrived in this country. It's a beautiful example of that, I think, and one that I don't think it would be bad for the

Democrats to use between now and November and between now in 2024 and between now and eternity, because that's how long I feel like the Trump wing of the Republican Party is going to be in control of that party. Yeah. Well, we don't know because it's possible that this Trump party, that there's a civil war in the Republican party. And, you know, if Trump keeps losing, eventually Republican donors won't want to fund it anymore. And that's, I think, what needs to happen in order to get normal democracy back. That's my hope anyway. Yeah, no, that's my hope, too. I just worry that it's not. I did see,

I saw a funny joke. I wish I could remember who said it, but it was basically that these migrants were more welcome in Martha's Vineyard than Alan Dershowitz. Yes. Well, and also, nice. sir and they didn't do any crimes. So they should be. Well, there is that, yes. But I think it's important. So we're going from this unforced error of Veronica Santis, highlighting the people of Martha's Vineyards,

humanity and ability to take care of others, to another incredible unforced error from one senator from South Carolina, Lindsey Beauregard. No, his middle name is not Beauregard, but it should be. Lindsay Beauregard Grant. It should be borrowed on it. It should be Grant, too. Lindsay Graham, South Carolina,

I talked to a friend of mine who's a straight news reporter, and I said, what the fuck is Lindsay Graham thinking? They don't control the Senate. They don't control the House. He's putting up this bill. There's no chance of them winning. And abortion is polling very badly for Republicans, and you have people like Blake Masters scrubbing it from their website.

What the fuck is he thinking? And my friend said he has all these anti-choice supporters who want more from him. and he's terrified of a primary challenge. And again, that is the only way this makes sense. Because otherwise he's just working for Biden. That sounds like good analysis. Also, I think you can expand it and just say that Lindsay Graham seems to spend his political life terrified.

Yes. You know, he's terrified of Trump. He's terrified of voters not thinking he's MAGA enough. So between that and sort of having, you know, no soul to speak of, he just goes with whatever he thinks is right at the moment. But as you pointed out, the interesting thing is that, or the important thing here is that he's wrong. And we've seen this because Republicans are pissed at him. Right. And won't support it.

There, of course, for the most part, with some rare exceptions who are actually like, hey, we said we wanted abortion to go back to the states. So that's where it should be. And at least those few people are honest. What you have from a bunch of other Republicans is they're not. mad about the abortion ban. That's what they want. They're mad about the timing. Right. Right, right, right. No, and you have Mike Pence still saying that they want to do a federal abortion ban if ever they can win the presidency back. I just, since we're talking about Lindsay Beauregard Graham, Peter Baker and Susan Glasser have a new book out called The Divider.

It had a lot of pretty interesting stuff in it. One of the one of my favorite parts of it is that Lindsey Graham called Donald Trump a lying motherfucker, but also a lot of fun to hang out with. That's what you wanted a president. I mean, he's a fun guy, but also he's a lying motherfucker. It's a funny quote and whatever, but it also gets to sort of, like every Republican knows this, they all know he's a lying motherfucker. Yeah. And just as they all know that, you know, Ted Cruz knows the election wasn't stolen.

Marco Rubio knows the election wasn't. They all know. Except Louis Gomer. Louis Gomert does not know, but he doesn't know. He's not sure where he is. Louis Gomert doesn't know is an evergreen headline. So the Louis Gomerts and the Marjorie Taylor Greens, they're in a separate class. But I'm talking about the Kevin McCarthy's and the Ted Cruz's and whatever.

They all know. And they choose to go along with this. And they choose to sort of shrug their shoulders and be like, what are you going to do? It's just crimes. Yeah. They're all enablers of these, even if they're not themselves. complicit in all of the crimes, they're enablers of the crimes. And again, that's why we say,

you know, that Donald Trump is the heartbeat of the Republican Party because all of these people are too cowardly to do anything about it. And so they just shrug their shoulders and say, well, he's a really fun guy. Yeah, he lies all the time and he commits crimes, but really fun guy. They're fun crimes. Yeah, exactly. Right. He's a fun loving criminal. Festive. You know, look. He loves to golf. My favorite 90s band. Yes.

He loves to golf. He gets married a lot. Yeah. The other thing that he said in the book was he said things that were very disparaging about Nancy Pelosi's looks and other women's looks, which again leads me to this idea that these people really are. Like, I mean, you have an implanted wig. Like, you're really going to go down this road of, like, going. after people for their looks. Are we talking about Trump or Graham here?

I was thinking of Trump. And also, you do see that Nancy Pelosi knows she has a winning issue on her hands, right? She mocked Republicans for their stances on abortion saying there are those in the party who think life begins at the candlelight dinner the night before. We're in yet another situation where the base, to keep the base, the party has to move so far to the right that they alienate the people that they need to vote for them. And it's working, and we're seeing it because the Republicans are getting annoyed. And I saw Marco Rubio, you know, he was asked about a complete abortion ban.

And he was like, the Democrats are the extreme ones on abortion. Talk about them. Talk about how they want abortions to be up until the moment of birth. And blah, blah, blah. And it's like they are so defensive on this issue. Because they need to be. Because they know they're screwed. No, they absolutely need to be because they are not, you know,

regardless of how you even feel about abortion, if you're anti-choice or pro-choice, they are out of step with the country on this one. So just as a pure naked political thing, they are on the defensive right now in a really, really bad way. And they're running scared. I don't like saying that what the court did is good for Democrats. I just, I hate that sort of. No, it's bad for everyone.

And you don't keep for women having to go home to wait to see if their baby is going to die and when they're going to die so they can have it. You know, I mean, this is a completely crazy situation and it's terrible. And people don't like it. More importantly, I do want to say, I think that Marco Rubio is the world's most miserable senator. Like, he's so fucking miserable. Like, you've never seen anyone who is more just like, like, I mean, honestly, who cares

because he sucks. But, like, I mean, you just every time they talk to him, every time he tweets, You know, you could just see, like, this is a person for whom Trump won, crushed him and now continues to ruin his life. Yeah, no, I think that's right. I mean, you know, Ted Cruz has just, who also knows that everything he, that comes out of his own mouth is absolute garbage. But he seems to have embraced that. And that's, you know. But look, he comes from the podcast world and that's what we do.

Exactly. So you can't blame him for that. But, no, I do agree with you with Rubio because. he does seem deep down, he still knows that everything he's saying is not true and that everything he's doing is bad. And I probably deep down, he's not that person, which again, I don't feel sorry for him because he's chosen to... He did this to himself. He's chosen to act like that person, and that's all that matters. So I'm not defending him or excusing him in the least. If you had to choose between like a Rubio and a cruise, the one who is lifting his head up from the sink and

staring in the mirror going, who am I? Yeah. Is Rubio? It's not Cruz. Cruz is like, you're a good-looking bastard. Cruz just looks to the mirror and starts doing like a Joker laugh or something. Right. Cruz is like hot Wolverine. Right.

Whereas Marcos like, oh my God. Yeah. Do you really want to be on record calling him hot Wolverine? I'm not calling him hot Wolverine. He's calling himself hot Wolverine. You know, I mean, this is an important clarification, speaking of, don't call me out of context. Thank you. By the way, I don't know if that Wolverine was like a comic's reference or the animal reference.

It's a comic with the hair, the weird, he's got that crazy looking mutton chops. You can just say Wolverine. You don't have to say hot Wolverine. Well, he says to himself that he's hot. You know what, forget it. We should go on about this. Yeah, we should continue. David Enrick is a business investigator at the New York Times, as well as the author of the new book.

Servants of the Damned, Giant Law Firm's Donald Trump, and the Corruption of Justice. Welcome to the new abnormal, David. Thanks for having me. So talk to me about how you decided to even write this book because you kind of come from finance, right? Yeah, I've been writing about business and finance for 20 years, which is terrifying. No, don't say 20 years because that makes us all seem old, okay? Well, I feel old. You're one year younger than Jesse and I.

So you're not allowed to feel old. I'm sorry. I feel young as can be. Exactly. Young. So I've been covering this stuff for a long time or a medium amount of time, depending on your perspective. Basically for every big business scandal that I've written about over the years,

there's been one or more giant corporate law firms lurking in the background. And I've always been fascinated by the roles that they play in helping companies kind of shield themselves from the fallout from these scandals. And also the way that the, these law firms kind of massage the media, including at times me, to really plant stories and spin things behind the scenes. And it occurred to me at one point that, you know, I had never written an investigation about a big law firm. I'd written lots of stories about the clients the law firms represented, but I'd never really dug into how these law firms actually operate or the

power that they wield. No, it's kind of itching to do that. And so I'd been looking for a vehicle, basically a big law firm to focus on that would have an interesting narrative arc for a book treatment. And then in 2020, I began to realize that one law firm, Jones Day, was deeply enmeshed with Trump World. And so it was kind of a nexus of those two interests of mine. Off I went. It's just super interesting. I always want to know when people write nonfiction books like this, what changed? From your sort of you knew stuff superficially and then you got into it, what did?

what did you find psychologically in your understanding of the law firm or of just lawyers in general? I was feeling when you write a book, you have a sort of sea change. So I'm curious what sort of sea changes you had from getting all this information. I mean, there were a bunch. I grew up in a family. My dad was a lawyer and kind of from a very early age instilled in me this view of the law and the legal practice as this majestic thing, for which he had a lot of reverence. And that had kind of, I'd grown jaded as reporters tend to become as they cover the stuff,

but I still really didn't have any clear conception of what actually went on inside these law firms. I kind of had an inkling that there was some dirty tactics that were used, some aggressive tactics that were used. But I really had lacked a clear into how the firms operated and kind of how the legal industry had gone from becoming something. There was this reverential profession that lawyers viewed themselves as office. just the court into this enormous and multi-billion dollar industry that was, I thought, focusing on money above all else. So I learned a lot about just the inner workings of these firms and was really surprised in part to see how not only are they often really aggressive working on behalf of clients and sometimes pushing the envelope in ways that struck me as really

inappropriate, but also they act that way with their employees too at times. And I came across a number of instances. This is just focused on Jones Day, but I'm sure that there are many other similar instances at other big law firms where they were deploying the same kind of smash now as hardball tactics that usually were reserved when they were going up against plaintiffs. They were doing that with their employees too. And people who had labor disputes with the firm, people who were uncomfortable with some of the things the firm was doing in different parts of the world. And the lawyers at Jones Day, the top of the senior partners would come down like a ton of bricks on these lawyers in a way that. I talked to a bunch of them.

and they felt steamrolled. And it was kind of an interesting parallel, I thought, with the way that many people that go up against law firms like Jones Day end up feeling afterwards. So what you're saying is the Pelican Brief is real. Every John Grisham treatment. I'm not going to get out. Thanks.

John Grisham is definitely a, has a pretty good sense of how things work. And there's, and frankly, I was inspired. by... Wait, well, really? Tell me, can say more? I mean, not, I mean, not really. It's not like their murders behind the scenes and people doing things like that. It wasn't that long ago that the legal profession would have, in general, many lawyers and it would have really had a fierce, visceral negative reaction to me or anyone else referring to the legal industry. They didn't regard themselves as being part of an industry. And that started to change in a very abrupt manner

40 or 50 years ago, which led to these law firms that grew bigger and bigger and more and more cutthroat in their pursuit of profits. And it's not like they're running, it's not truly out of a John Grisham book or movie, and there aren't people running around killing each other. But there are the notion that lawyers should be public-spirited and doing everything kind of as officers of the court, I think has in many senses vanished. And you see this with the way that they treat witnesses sometimes, opposing parties that they're going up against, federal judges sometimes, and their own employees a lot of the time, I think. And it's really, it was a really, it was really sobering for me to get such a, an upclos and personal view of what was happening. Yeah. I mean, it's just so

interesting. How did these people get involved in Trump world? Because I feel like one of the things I saw was that I was sort of surprised that people I considered to think of themselves as an enormous snobs kind of did end up in Trump world. Yeah, absolutely. I mean, Jones Day's history just very briefly is that it was founded in Cleveland in the 1890s. And for, you know, most of its existence, it was a law for representing big companies, including many in the Midwest, but really all over the country. And it began, I think, changing as it took on more.

and more aggressive clients. So one of their biggest clients over the years had been RJR, the tobacco company. And Jones Day deployed these extraordinarily aggressive tactics to protect the client and to fend off lawsuits from people who had been harmed by cigarettes. And in some cases, that meant really the firm and its lawyers became kind of official industry spokesmen and were helping spread the same disinformation about the dangers of nicotine and tobacco that the tobacco industry itself was doing. And so this is, so Jolte was a big corporate law firm. And in about 10 years ago or so, it started developing a bit more of a taste for politics. And the people at the top of the firm were by and large pretty far right conservatives. And so in 2014, they decided they would

actually start a new practice within the firm that was focused on helping Republicans win elections. That was not something they'd previously been doing. And so they hired this team of hot shot Republican lawyers, including Don McGahn. And one of the first clients that Don McGahn brought on when he arrived at Jones Day in early 2015 was the Trump presidential campaign, which at the time no one was taking seriously. But McGahn, I think, saw Trump, who really was not burdened with strong views on the major issues of the day. I think McGahn saw Trump as a bit of an empty vessel that if he could gain traction in the Republican primaries, then McGahn could use him as a vehicle to achieve some of his long-sought ambitions.

Interesting. And that he was not the only person to see Trump that way. A lot of smart people hoped that they could sort of use him as a figurehead for their own agenda. Yeah, that's right. It was a kind of a daring bet because for, you know, more than a year, it looked like Trump was not going to really gain traction. I mean, he was the frontrunner, but then it wasn't until he started winning a bunch of primaries that people began really taking him seriously. At that point, McGahn and Jones Day overall, kind of doubled down on him. And they started using the law firm and the law firm's headquarters and the law firm's lawyers to help Trump build up support and credibility among the conservative establishment.

It was at Jones Day's offices that Don McGahn and Leonard Leo of the Federalist Society cooked up the idea of Trump publicly announcing a list of potential Supreme Court judges that he would choose from. And it basically went like that. And with McGahn and Jones Day vetting those potential nominees, and then Trump wins, of course, and McGahn gets the nod to be White House, and he brings with him into the White House and into the Trump administration dozens of his colleagues from Jones Day, who are, you know, not only are in the White House, but they're the top of the Justice Department, their Commerce Department, their energy regulatory agency, the Consumer Products Agency. And Jones Day, it's not like it takes over the federal government at all, but it's, it had more of its once-in-future lawyers in positions of great power inside the Trump administration than I think any law firm in any administration has ever had before.

Wow. So at some point, McGahn figured out that Trump was too stupid to influence? Well, I think, I mean, the first thing would happen is that McGahn started getting very, nervous about McGahn's personal legal exposure. And that's, you know, a pattern that we've seen. The bad part of being a lawyer in Trump world. It's a pattern, right? This is something that was happening for decades before Trump ever started flirting with the White House. And it's happening to this day that lawyers who cast their lock with Donald Trump often find themselves in legal peril themselves, which is the last place a lawyer ever wants to be. And so the McGahn's response to that

concern was kind of interesting, which is that he called up the guy who runs Jones Day, Steve Brogan, and urged him, Brogan, to pitch his services to Trump so that Trump's personal legal problems can be dumped on Jones Day so in McGahn could stay in the White House, focusing on what he really cared about, which was remaking the federal judiciary and kind of neutering the federal government and its regulatory powers. And Brogan went into the White House to the Oval Office a couple times and actually had met with Trump trying to pitch his services. And Trump ultimately went for John Dowd, who is a bit more in the traditional style of a Trump lawyer. But McGahn, nonetheless, managed to have enough time and energy to focus on picking judges and dismantling what he likes

to call the administrative state. That, I mean, those are probably two of, if not need, two most lasting legacies of the Trump administration. And those are things that are going to be felt for years, maybe decades to come. Yeah, for sure. One of the things George Conway has always told me is that the White House Council were like the biggest fans of his. I'm not sure I'm supposed to say that. But anyway, when I just realized.

He would say that the White House Council was the biggest fans of whom. When George was writing all those pieces, that he had a lot of fans in the White House Council. Oh, that's so interesting. I had not heard that. Oops. The interesting thing, though, about that, that's really telling.

Yeah. It's really telling, right? A lot of these guys, and I think including McGahn, you know, they liked the fact that they had what they regard as a pliable president. I don't think they,

and McGahn famously battled with Trump and had these screaming matches with them. And I don't think personally they got along all that well. But it was an opera, it was worth the distastefulness, I think, they had this really once in a generation opportunity to, in particular, to remake the federal judiciary. And McGahn had essentially unfettered authority to be the one person who was coming up with judicial nominees,

not just for the Supreme Court, but also for the appellate courts and district courts. A quarter of the appellate bench turned over in the Trump administration was replaced with people who not entirely, but mostly, had the unqualified backing of the Federalist Society. And McGahn likes to tell this story about how, you know, he hates it when people come up to him and say, you outsource the job of judgment to the federalist society. McGahn says, his response to that is we didn't outsource it. We insourced it. And it's true. Every person he had in the White House office was a member of the Federalist Society. And they were extremely efficient and effective and strategic about how they were going to execute on this plan. And it worked. I'm just, I'm staring at my computer in horror thinking about this. I mean, I know it's true, but it's still so grim. The other thing that happened is that a number of lawyers from Jones Day were among those that got picked to be on the federal courts.

I mean, Greg Katzis, who was a longtime Jones Day partner and who had been, who McGahn had brought into the White House Counsel's office was one of the first people. He was put on the D.C. Appeals Court, which is behind the Supreme Court, probably the most powerful judicial body in the United States. And there were a bunch of others as well. We've got lifetime appointments who'd gone from Jones Day into the Trump administration with McGahn and then get very quickly turned around to his lifetime appointments. So it was a really symbiotic relationship, I think, between the Trump administration, the Jones Day kind of diaspora, and now the federal courts. And as I said, that is going to be with us for a very long time.

Yeah. Do they consider that Supreme Court to be their greatest accomplishment? Oh, absolutely. Absolutely. And, you know, those are people who, Gorsuch, Kavanaugh, and Barrett are people who are all, you know, they differ in some regards. And I don't even mean this necessarily as a criticism, right? But they are very uniform in many of their core beliefs.

And that's not an accident. It's because Don McGahn, even before he got into the White House, that McGahn and other colleagues at Jones Day and people of the Federalist Society were planning very carefully on exactly how they were going to roll this out. And McGahn picked Gorsuch and Kavanaugh. and he, well, Barrett wasn't nominated to the court until after McGahn had left the White House, but it was while McGahn was in the White House Counsel's office, that Barrett was plucked from academic obscurity and put on an appeals court, which with more or less, I think, the express understanding that should another vacancy open up during the Trump administration, she would be a prime candidate for that. So, and the interesting thing about this is that not only do these people have very similar legal philosophies and I think ideologies, but they all, hang out together. And there was an amazing anecdote I heard involved the day after Roe v. Wade was overturned

in June. Justice Barrett came up to New York for a birthday party that was hosted at the home of one of Jones Day's senior most lawyers. And while there, she was hanging out with a bunch of Jones Day partners, including Noel Francisco, who had been the Trump administration Solicitor General, and now runs a Don't stay practice where many of his lawyers have cases before the Supreme Court. And at that very moment, in fact, had a case, an open case before the Supreme Court. The days later, the court with Barrett and the majority would rule in favor of Jones Day's client. And so it's not to say there's any cause and effect there that's improper for them to be seeing each other, but I think it really clearly reflects how intermingled these worlds are through professional, social, and kind of

ideology links. It's absolutely crazy. It's interesting now that I'm spilling the and saying things I'm not supposed to be saying, which is basically all the time, that I had a friend who was like a very Trumpy insider who told me they were saving Amy for when RBG died. Yeah, that's really interesting. And I think that you look at McGahn has been fairly public about every time he spoke, not every time he spoke, but often when he is speaking publicly and kind of touting his accomplishments in the White House, he especially if he's speaking to an audience, like a federalist society group, which he often does. He's a little bit smug, or he strikes to me as a little bit smug anyway as he talks about the strategy with Barrett. And of course, they didn't know, nobody knew exactly when Ginsburg or if Ginsburg would die. But I think the writing had been kind of on the wall. And I think it is hard to imagine that inside the White House and inside probably Don the man's personal office at Jones Day at that point, there wasn't

quite a bit of excitement about the opportunity to elevate someone like, bear it. And it was their plan and their hope and they achieved it. I remember seeing that text and thinking like just getting this like chill that they had like lined up someone if RBG died. I mean, it just like it just was so craven. I mean, I guess Democrats also are capable of that kind of cravenness, but it just struck me as I mean, we know Democrats are capable of that too, but it just struck me as shocking. Yeah, but the conservative movement has developed an extremely effective and ruthlessly efficient way of focusing on the things that matter most of them. And the federal court system is maybe the best example of that. And I think that one of the things that Jones Day, and at least its top lawyers did and continue to do to a certain extent, and they have in some ways professionalized a lot of those operations that have been taking place primarily within the confines of the federalists. society. And Jones Day and a number of its lawyers really, I mean, they brought order to the chaos of the Trump campaign. They brought order to the chaos of the Trump administration. And they brought order to what could have been the chaotic process of a dysfunctional white. I was trying to pick judicial nominees and that power was vested in McGahn. And he was attacked it with almost single-minded devotion. And look, it continued. This is now, all these guys are back in private practice at Jones Day. And they continue to take advantage of it in some ways. And

not an improperly, but it's just kind of a natural way. And they have cases before various federal courts. And they've now, their former colleagues on federal courts, and a lot of those judges and a lot of those cases are focused on the same kind of set of issues. And it's actually not even social issues. It's primarily now the things that are most focused on are cases that attack the power of the federal government to regulate big industries or to protect consumers and things like that. I mean, they played, Jones, they played a key role in,

the big EPA case that was decided back in June where the curb the EPA's power to regulate carbon emissions. Jones Day was the one that brought the case that ended up invalidating the Biden administration's moratorium on evictions during the pandemic. It was a very young Jones Day lawyer who was then appointed to the federal bench, who was the one who struck down the Biden administration's mask mandate. And all of these cases have this common thread, which is that they are, they represent an interpretation of the law that really, really narrows and dilutes the power of the federal government to regulate big business and to intervene in the affairs of private companies. So interesting. Thank you so much for joining us. Thank you so much. G. Eliot Morris is a data journalist and

U.S. correspondent at The Economist and author of Strengthen Numbers, How Polls Work and Why We Need Them. Welcome to the new abnormal, Elliot. Yeah, thanks for having me on. Let's talk about polls. because we are in this 50-something days to the midterm. And, you know, I don't know about, I mean, I know you don't have a partisan bent. But for me, I saw a poll that had Ron Anon, otherwise known as Ron Johnson, up by eight points this month from last month. And I nearly, I mean, I know that he has this crazy come up from behind thing that he did last time, too. But just explain to me, what are we?

And Amy Walters said this similar thing. What are we getting wrong in the pundit world that we don't understand about polling? Oh, wow. Well, we can go on for hours. But in the narrow context of your question. Yeah, I think we can take the Ron Johnson polling as an example here. So when you have a pollster that comes out a month ago and says he's up, you know, X percent or whatever. And then this month, it's like an eight percentage point change from last month.

The statistics here, and I'm going to try not to make all the listeners' eyes glaze over, say that that eight percentage point difference might not be real. That's sort of the most basic way to explain it. It does not reflect eight percentage point of the population actually changing their minds about the election. Part of that eight percentage point change could be due to the pollster sampling more partisan groups over that time period. So say they get more Republicans now than they got last time around. that would make the poll look like it had an 8 percentage point change in vote intention. But it might just be that they're asking more Republicans questions now.

So that could be a source of hope for some Democrats, but the opposite could be true. It could be that last time around they were asking too many Democrats how they were going to vote in their poll. And this is the big strategic weakness of the polls right now. We just really don't know how many Democrats and Republicans there are in Wisconsin. You can get a pretty good guess by making sure you have enough, you know, high socioeconomic status. whites and low socioeconomic status whites and, you know, other demographic groups, education groups, and incomes, right? But at the end of the day, if you're talking to too many Democratic or Republican people within the sort of, right, using the coveted non-college white voter as the example,

then the poll can't adjust for that. And so, I mean, that's the big thing in the book. That's the big thing I think this election cycle. We don't know if attitudes are Republican plus eight or if sampling has caused a phantom Republican plus eight. And really, like, statisticians don't have an answer for this. So it's up to pollsters, up to reporters to just, you kind of have to throw your hands up a little and say, well, this is what it looks like. We can't trust the sampling. Is that what you're saying? Yeah, you can't trust the sampling to provide you a 100% accurate portrait or you cannot trust the sampling to deliver the percentage of Republicans in the electorate today that there will be in November.

And that could be because you get too many Republicans. now and then, like people change in their minds, or those Republicans are just not answering the phones, which is pretty much what happened in 2020. If that's happening this year again, then the polls are going to be biased in pretty much the same exact way. But I guess, you know, that is a big if. We do not know. So, I mean, basically, these are all still home phones or their cell phone. Talk to me about, like, the methodology here. Oh, yeah. So the mechanics of a modern poll are probably not, well, it's not your daddy's poll, right? Your granddaddy's poll. It's online. polls. So people go to say ugov.com and they put their email address and their demographic information

into the platform. And then you gov will select them and give them a poll. That's a pretty complex online poll. Or you could have a mix of live interviewed calls to a cell phone and a landline, you know, blended together, the pollsters do the math to figure out how many in each bucket they need. You can also do a poll over SMS text. So you'd send people links to fill out. a poll online. There's a number of other methods, too. The pollsters are now doing polls over mail again, which they sort of abandoned because it wasn't representative, but recent innovations have made it representative again. And so that is sort of source for hope fixing these sampling issues. But yeah, so this is pretty complex, right? You have all these different streams of information. You don't know if you're

getting accurate portraits of Americans based on their partisan identity, even if you have an accurate demographic portrait of them. You know, there's just this extra layer of guesswork that people have to do when they're consuming polls, or, you know, hopefully reporters do the guesswork for them and report on it accurately. But, you know, that doesn't always, that doesn't always happen. Is it that journalists and pundits are putting too much emphasis on these numbers and not taking them as a sort of trend? The sort of pushback I got from the idea of changing the way we poll was that it's actually

the way the polls are interpreted that's wrong. Is that right or now? No, that's not right. It's a mix of two. And this is the introduction to my book basically, saying, look, there's this problem

in the media where people over-interpret polls. They expect too much accuracy from them. And so when they're wrong by a percentage point or two, just by virtue of them not understanding the uncertainty

and, you know, the sampling error or non-sampling error or whatever. people are going to overreact to those misses and they shouldn't. But the second issue is that, you know, that's kind of letting the pollsters off the hook. They were at the end of the day wrong about the percentage of Trump voters and the electorate in 2020 and in 2016. And they missed some key races in governor and Senate races in 2018. Oh, yeah.

And 2020. Right. Yeah. And maybe this year. And in 2021, you had plenty of biased polls in the New Jersey governor's race also. God, that New Jersey governor's race, I mean, that was completely crazy. I mean, he barely won and the polling was way up. So, I mean, do you think that ultimately what's happening is, I have read about this before,

this sort of mega phenomenon of not wanting to tell people how you're going to vote? Well, pollsters don't find evidence of people lying to them about who they're going to vote for. Now, I'm going to caveat that finding with the fact that they're not really able to talk to the people who would be lying about them taking a poll because the way they talk to them is to take a poll. So, you know, you kind of have to take that with a grain of salt. Maybe there is some smaller faction of liars out there.

But the bigger issue is just that there's differences in the likelihood of a Republican picking up a phone than a Democrat, at least, you know, in the recent history of polling. That's not a guarantee of what's going to happen in the future. Honestly, that's a much easier problem to solve than people lying to you. It's not an easy problem to solve,

but it is a method, you know, there are methodological solutions to that, where there's no methodological solution to people lying to you. That could be, I think, used as a cop-out, where in this case, you know, there's just deep methodological problems with the polls. You have a lot of money in politics, right? I mean, we saw some of these Senate candidates raising multiple tens of millions of dollars. Why is there no interest in, like, trying different new ways of polling? Well, the campaigns do seem to innovate a little more than the public pollsters. I think that that's because they have a profit incentive to do so.

Right. You know, they're not going to make money if they're wrong, whereas a public pollster can kind of just shrug it off and keep going if they're doing something in the broader public interest or what have you. Right. But, you know, there's not a huge difference in the methods that these crowds are using. You can't really trust the polling that comes from inside a campaign, though, right? Well, right. And the problem there is that the, you know, the numbers that they're going to release publicly, they're probably using to, like, juice fundraising dollars or, you know, find emails for their campaign lists or what have you. So, yeah, we can't trust the public numbers that we get from private pollsters, but their private estimates tend to be pretty good. So that's not really helping us, but it is helping us assess the sort of quality of the polling industry writ large. But, you know, they don't have a magic wand either. The Biden campaign polls were.

only slightly less biased than the public polls in 2020, you know, by admission of the Biden campaign pollsters. And they're doing some fancy stuff too. So, you know, if you have a group of people who don't want to answer your calls, and let's say that's any group of people, doesn't have to be Republicans, that is inherently going to make your polls more uncertain. And it's a hard problem to solve unless you know exactly, I mean, like to the decimal point, what percentage of the electorate that group is going to represent. And we never know that in election polling because we don't know who's going to turn out until election day. It's so interesting. I've seen some reporting on this. I'm not, I don't know how accurate it is, but it does seem like these ballot initiatives do really, really well.

And one could even say, like from this, that liberal ballot initiatives, not even liberal ones, but ones that are, for example, the choice one in Kansas, they tend to outperform liberal candidates. Do you have any thoughts on why that is? I think the Kansas example is a bit of an outlier here. Okay. But I mean, you saw that reporting about how Republicans want to change it. So ballot initiatives need to get 60% instead of 50% because they're doing so well. Well, right.

I think that represents some deep sort of like counter-majoritarian or minority tendencies on the Republican Party, which are obviously bad, you know, blah, blah, blah. But in the case of the Kansas, Kansas referendum. I think what's happening there is you have a lot of people who vote for Republicans because their identities tell them to because they align with Republicans on tax and spending or racial issues or whatever. And a lot of those people who vote, typically vote for Republicans in a state like Kansas making it look really red also want to have access to abortion or rather to use the wording of the referendum don't want the state government to be able to completely ban it. And so that outperforming. of the ballot initiative, I think is a bit sort of dependent on the context. The larger research here says if you have a ballot initiative polling at 60, 70%, whether it's a Democratic or a Republican, or I'll say liberal or conservative ballot initiative, typically it's going to get around 55, so that the ballot initiatives are almost always overstating support for change and

underestimating the status quo, regardless of what side it's on. And that, I mean, that is, not necessarily a partisan finding. It just so happens that most ballot initiatives move in the liberal direction, because making policy tends to be liberal. Still interesting, though, right? There's a lot that matters that we don't really pull enough on. We should have polling averages for ballot initiatives, just like we have them for elections. We should have 10 or 20 polls of the Canvas abortion referendum instead of two or three. And that would give us a better sort of shape of the contours of public opinion on these topics. And that's what really matters at the end of the day. The book I wrote has a lot of history about how presidents and people in Washington use the polls to both advance their policy agendas, but also to react to what the public wants.

And you can't do that if you are obsessed with horse race polling. And then at the end of an election, when they're so-called wrong, obsessed with denigrating them. And that's harmful to, I mean, sort of democracy writ large. So interesting. Thank you so much for joining us. Yeah. It was thrilling. Thanks.

Andy Levy. Molly Jongfest. Who is your fuck that guy? My fuck that guy is a couple of people, one of whom is a Hall of Fame football player who was much beloved when he played by the name of Brett Farb, who also, despite being much beloved, did things like send unsolicited dickpicks to women and other kind of gross things that everyone has just decided we're going to sweep under the table and let him keep. doing all his commercials and everything like that because he's a likable guy and he played the game the right way. Yikes. And look, I was a fan of him when he played before all this stuff came out. He was fun to watch. I'm proud to say I was never a fan of any sport. Yes, you are proud to say that. Yes, continue. But what's this thing happening down in Mississippi, Mississippi is just having a couple

weeks between the unforgivable issues with the water in Jackson and this. And basically, what's going on here is that all this money, that millions and millions of dollars that was supposed to go to, I think like welfare, basically, poverty fighting initiatives. Of which there is a lot of poverty in Mississippi. Yes, in Mississippi, yes. He found a way, along with the now former governor of Mississippi, Phil Bryant. They found a way to divert this money to build a volleyball center at the University of Southern in Mississippi where coincidentally Brett Favre's daughter goes and plays.

Shocking. Look, this is all just alleged right now. But of course, because it's 2022, there are texts and there are emails. And yes, they're just allegations right now and nothing's been proven and innocent until proven guilty. But man, these emails and texts are bad. And it's hard to come to any conclusion other than, you know, yes, this is what happened when you see texts from Favre saying things like,

if you were to pay me, is there any way the media can find out where it came from and how much? I mean, that is not the kind of thing that makes you feel confident in someone's innocence. Again, it's something that it can be laughed at because it's about a volleyball center, but we're talking about taking millions of dollars from initiatives to help deal with poverty. Which is a real problem. Which is a real problem for a lot of people. It is a life or death thing for a lot of people. And diverting it for a fucking volleyball center

so that Brett Farve's daughter can have a nice surrounding to play her game. Yeah, so Brett Farv is my main fuck that guy here, but also Phil Bryant and the, I'm sure, many other people in the Mississippi government that helped let this happen. I'm sure the story will be a story. story that will not go away for them. Yep. And well deserved.

Would you like to hear who my fuck that guy is? I believe I would. It's rare that I get to like pick a fuck that guy who's like an internet person and not like a real person. I was thinking of myself as an internet person and not like a real person. So I appreciate when I can go back into really what is my milieu. I'm sure I mispronounce that. Anyway.

No, that's good. Oddly you didn't. It's all happening. today. This is a person called John Cardillo, who none of you have ever heard of, but I'm going to explain a little bit about who he is. He's a sort of right-wing pundit. He's sort of the poor man's pizza gate jack, Pesobiac. Is that fair? Yeah. Why not? He was a cop. He lives in Florida. He has one of these sort of, I mean, Will Somer, who's a wonderful writer at the Daily Beast, describes him as pugnacious.

His Twitter is pubnacious. And he once dubbed Joe Biden's relationship with his son, Hunter, creepy. And he used to host a show for Newsmax. You'll have heard of Newsmax. It's like the lesser Fox News. Fair? Fair.

Fox News, but without the even appearance of trying to pretend that everything they're saying isn't lies. So John Cardillo had a second job, besides being on Twitter. And that second job was arm stealer. I'm sorry, but there are a lot of people on Twitter who might not be great, but how many of them are dealing arms? Look, we're in a gig economy.

As someone with 15 jobs, like, I appreciate that we're in a gig economy, and yet, arms stealing has not been offered to me. I mean, I'm not saying I would do it, but like, how does that even happen? I don't know, but I would do it. Well, he also is, there's a, he's not only as he, was he an arms dealer, but he was an arms dealer who didn't always deliver. And he stiffed the Ukrainians out of $200,000 in body armor. What? I mean, okay.

So he gets a hardy, fuck you. But he also gets a sort of puzzled, like, how do you even become an arms dealer? and so he is my fuck that guy. It is amazing because, again, all these people, like Trump famously stiffs his employees, his lawyers and people like that. You know, Will Summers' piece on Cordillo, it's the same thing. He has multiple accusations of he wouldn't pay his own lawyer in a case. His partner in a ad that they took out against Quentin Tarantino says he never paid

the partner back for like half the ad? What? Yeah, I mean, read Will Summers' piece in The Daily Beast. It's really good people out there. Back in 2015, Cardillo was mad at Quentin Tarantino for saying bad stuff about the police. And Cordillo, at another former ex-NYPD, agreed to split the cost of a tabloid ad. And the partner says that Cardillo stiffed him on his share of the bill and successfully sued him for 10 grand. So it's just like all these people are exactly the same.

It's just a question of degree for them. Like Trump is just on another level for them, which is why they idolize him because that's what they want. Right. You know, he is the ultimate grifter to them, and that's what they aspire to. Exactly. On that note, we'll wrap this episode of the new abnormal from The Daily Beast.

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