The Daily Beast Podcast - Trump Wants to Jail His Opponents and Nobody Seems to Care

Episode Date: April 5, 2024

On this week's episode, hosts Danielle Moodie and Andy Levy don’t see any major publications or politicians taking Trump’s threats of retaliation seriously. Then, Mark Joseph Stern, a senior writer at Slate Magazine, joins the program to discuss an upcoming abortion ballot referendum in Florida—and the “giant threat” lurking behind it. Plus! A conversation with Brian Beutler, the author of the Substack “Off Message,” on Democrats’ messaging issues as the 2024 race inches closer to the finish line. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy and current Campbell News conscientious objector. I'm a former libertarian who now sits comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Kedden, 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 some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. What an excellent show we have today.

Slate Magazine's Mark Joseph Stern is here to talk about the Florida Supreme Court's recent decision on a 15-week abortion ban and what that could mean for Florida's reproductive health come November. Then off-message newsletter author Brian Boytler joins us to talk about his recent piece. Are Democrats getting better at moving public opinion? but first, let's have some fun. So, Danielle, the January 6th committee spent a lot of time telling us about the danger Donald Trump posed to America. And now, I think we're all realizing that some of that danger is to those committee members themselves.

He has talked about how he's going to jail his opponents. He has said that the committee members themselves should be jailed. And the committee members are now coming out and saying, yeah, you know, we're making plans in case he tries to do this if he wins in November. Zoe Lofgren says if he intends to eliminate our constitutional system and start arresting his political enemies, I guess I would be on that list. Adam Schiff says he's been having conversations with his staff about this. This is all according to reporting from the Los Angeles Times. Other committee members are doing the same. They know. And as Zoe Lofgren says, you know, she said one thing that

she learned on the committee is listen to what Trump says because he means it. And if he means it and he gets elected in November, he has said that he is going to send them to jail. I mean, the fact that this conversation is not on the front of every paper, the lead-in for every cable news story, I just don't understand. I don't know how many times that, again, Maya Angelou, somebody has to show you who they are before you believe them. When Donald Trump said, I'm going to throw immigrants in jails. He did that. When he said that he was going to bar Muslims from entering into the country, he did that. You know, he was going to pick the most anti-abortion judges. He did that. And now we lost Roe because of it. I'm just confused about what people think he's kidding about. And when you

have our political leaders in America saying that they are making preparations for what would happen if Donald Trump became president and threw them in jail, how does this not showcase that America is a fucking banana republic right now, like to the rest of the world. Like when you are having Adam Schiff say, yeah, he said, quote, I'm fearful that the Supreme Court is deliberately slow walking this, meaning whether or not Donald Trump is immune from prosecution and could essentially, as his lawyer said, hire a seal team six to assassinate his political opponents. And well, if he wasn't impeached, then no big deal there. Do people understand where the fuck we are right now, that these conversations that seven years ago, eight years ago would have

been fucking absurd are now part of like our normal political discourse. And we want to think that like, oh, because Donald Trump isn't president, that there hasn't been any major shifts to our government, to our media, to our lives. It's wild to me. Yeah. And you know, you mentioned the possibility that the Supreme Court is slow walking stuff. I just always want to give a special shout out to the loser of the slow walkers race, which is the goal of the slow walkers race you want to come in last. Merrick Garland, who has basically, you know, in no small measure put us in this position by taking so damn long to get charges filed against Donald Trump and to allow some of these trials to, at best, butt up against the election and at worst not even start or be finished before the election.

So he always gets a special shout out for that. But going back to these januels, January 6th committee thing, Pete Aguilar, who was on the committee, he told reporter Sarah Wire at the L.A. Times, he said, yes, he is preparing for the possibility of Trump following through with his threats to jail them. And this is the money quote. He said, all of us have to be prepared for what Donald Trump could do if he ever gets a hold of power again. And that's exactly right. And the fact that so many people want to sort of shrug this off or point to Biden's faults, which are, I don't know if numerous is the right word, but it might not be the right. wrong word, but there's simply no comparison between the two. What a Trump presidency would mean for

this country compared to what a Biden presidency would mean for this country, you can't even talk about them in the same breadth, and you can't put them in the same category. And we've had elections in the past where you could maybe make the argument that the parties are really similar. And yeah, there's some differences, but ultimately we'll survive. The nation will survive for four years. I don't think you can even say that these days. And the idea that people who are were or still are sitting members of Congress who carried out their constitutional duty and their duty to this country and now risk being the very real possibility of being jailed over it is just, like you said, it's like something we probably wouldn't have even conceived of back in, I don't

know, 2015, 2014. And it really is just something that's out there now. And we have to keep talking about it. It is beyond me that there are any comparables. And I think, that, you know, for whatever it is that people think about Hillary Clinton, who is, you know, on late night TV the other night. And the question was asked like, well, you got these two candidates and they're both old and blah, and she said, uh-huh. One is old and like cares about the country and the Constitution and the other one is old with four indictments and 91 charges. I'm not really sure what the choices that you all are trying to create here. And to your point, yeah, could Biden be better in some areas? Absolutely. But you know what he's not? A fucking criminal. Do you know what he's not

a wannabe dictator and authoritarian? Do you know what he's not? A person that says that he's going to jail his appellantence and continues to dehumanize people who are not white, cis, pseudo-Christian, and the like. Like, there is no comparison here. And I'm just confused about this horse race that the media pretends and everyone continues to fall for. It just is mind-boggling. Yeah. And let's just look at what we saw this last week. I have various tabs open and they're all labeled Trump lies about the economy, Trump lies about crime, Trump lies about Ruby Garcia. And this is just what he's doing. You know, he'll sit there in a speech and he'll say that U.S. crime stats are going up. What he said was that they're only going up when the fact of the matter is most crime statistics

were way down in 2023 and most of them continue to fall in 2024. And this is what we're used to now. I know you want to talk about this CNBC headline about that has to do with Trump lying about the economy, although you wouldn't know it from the headline. I mean, like, again, you know, you shouldn't need a degree in journalism and media or in politics to like have to part and parcel through the bullshit that is in these headlines. So CNBC puts up this. You tell me what you think, Andy. Can you assess what is happening here? Biden says U.S. economy is world's best, period. Trump calls it assess pool, period.

Data is clear. Any guesses? Yeah. What's the data clear about? Well, there's absolutely no way to know from that. That could be a quote from Star Trek, the next generation character, for all I know. Well, let me tell you that you would have to go one, two, three, roughly, I don't know, five paragraphs down into this article to get to the point where they say that, oh, well, based on. the numbers, Biden's narrative of American economic dominance is more in line with the truth.

Why the fuck wouldn't you just say in the headline? Donald Trump continues to a lie about the economy that is currently the envy of the world. I could give you at least 10 other headlines instead of framing it as if there were two opinions that are both valid that the data supports. Oh, please, Jesus take the wheel. I don't know. At this point, the lying is just is the point because he knows that the people he's talking to in the room and the people watching Fox News and Newsmax and OAN or whatever, they're just going to go along with whatever he says. And so he's able to get up there and do like, beyond just lying, he's able to do really shitty things. He was giving a speech in Michigan and he talked about Ruby Garcia, who was a 25-year-old, who was allegedly murdered by a man who was in the country illegally. And he talked about talking to their family.

And he said, they said she just had the most contagious laughter. And when she walked into her room, she lit up that room. And I've heard that from so many people. I spoke to some of her family. Come to find out after the speech from Ruby's sister, quote, he did not speak with any of us. So it was kind of shocking seeing that he had said that he had spoke with us. So you're sitting there, you're literally lying about talking to the family of a murder victim. We're so past the, you know, have you no shame thing.

because no, he has no shame. But it's like there's no bottom. There's absolutely no bottom to how low he can go with the lies. It's just whatever benefits him in the moment is what he will say. And we know this. Yeah. I mean, we have been in the Trump lying training camp since 2015. And yet the media acts as if this is the first fucking time they've ever been introduced to this character.

And they just don't know what to do. Right. Here's an idea of what to do. Assume that every. other than his name that is coming out of his mouth is a fucking lie. And then treat your readers or your viewers with the adult handling that you would anyone. And tell them what exactly is happening. You have a man that is running for president of the United States that lies as often as he breathes. That is lying about the state of the economy, which is currently good. That is lying about

the rate of crime, which is currently down. That is lying about a bloodbath that is happening every day at the border, which isn't happening. Just tell them what is happening. You don't need to be an opinionator in order to just stick to the facts. If that was alone what it was that we wanted the media to do, don't provide any real, like, nuance, just stick to the facts. That alone would be enough. But for some reason, they can't manage it, that you can't manage to say, oh, wow, this sounds like, hmm, insightful, violent language when you are talking about immigrants as animals. This sounds like something we've heard before. If you were to call Donald Trump in the headlines, the four times indicted, twice

impeached former president of the United States, that's not slander. It's the truth. You know, I don't know how much we are expecting of the American people to part and parcel through the consistent barrage of like bullshit. but I know that I'm exhausted, Andy. So I don't know what the average person who doesn't get paid to do this on a regular basis is supposed to think and do. No, absolutely.

When there's a story like Trump saying, again, as he did at this same speech in Michigan where he lied about talking to Ruby Garcia's family, when he said, speaking of immigrants, he said, quote, the Democrats say, please don't call them animals. They're humans. They're humans. They're animals. This kind of stuff should be played over and over and over again and talked about over and over and over again. It often sounds like we're repeating ourselves because we are, but that's because he keeps doing this.

I'm not going to sit here and say, oh, you know what? He called them animals once before, so we shouldn't talk about him calling them animals again. No, we have to point it out every single fucking time because every time he does it, he dehumanizes people and others people more and more. And we just, we can't let it sit without comment and we can't let it be out there undisputed and unnoticed and unremarked upon. If he refers to immigrants as animals every day from between now and the election, then it needs to be talked about every day between now and the elections. The fact that he is doing this, the fact that he is an utterly piece of shit, reprehensible human being. And that just needs to be hammered home. I don't

want to see headlines like family disputes Trump's claim that he talked to them about Ruby Garcia thing. I want to see, you know, Trump lied about talking to Ruby Garcia's family. I wish I could pound this through the head of every editor at every major news organization, print, online, TV, whatever. I wish I could do that. If you didn't care about anything else, you don't care about your viewers, you don't care about democracy, let's just say, for shit's sake that you only care about self-preservation and your bottom line. Can somebody explain to these people what happens to free press in a dictatorship? Can somebody explain to the cable news outlets and to, you know, the New York Times and the

Washington Post like, how many versions of the press do you see in places like Russia? How many versions of the press do you see in places like Iran and in Hungary and in China? You only get one perspective. And it's the perspective that is coming directly from the state. And, going onto the airways and going on to everyone's screens. So this idea of a competitive media landscape will not fucking exist. So if nothing else matters to you, but the bottom line, maybe you want to think about self-preservation in a Trump 2025 presidency. Danielle, are you preparing to go to jail?

No, but I am preparing my passport. Okay. You're going to get out. Yeah. I mean, I know that some jails have podcasting equipment, but I'm going to say that I'm not built for that shit. I'm not even going to pretend that like, oh, yeah, you know, I'm making my arrangements and I think I'll fight the good fight from the inside. No, I just saw recently that you can go to Bali and you don't even have to have like a business setup. So, you know, I think that that sounds nice.

All right. That sounds nicer than Guantanamo. But that's just me. That's just me. Andy, you are you making your preparations with your lawyer and your family? Oh, I'm always prepared, Danielle. Oh, okay. All right.

I've been prepared. I have go bags stashed throughout the city. I have safety deposit boxes. Oh, okay. Filled with unmarked bills. I'm ready. I love the Levy-Born identity. I think that that sounds amazing.

I saw you doing something at a locker at the port of three. No, you didn't. No, you absolutely did not. You absolutely did that. I just thought you took up a side gig as an assassin or something. Go bags around the city. I love this. Maybe we should start selling them on the show.

Like, what's his face? Apparently, it goes for a lot of money. If only there were still lockers at the Port Authority. Real maidsday of my childhood. Port Authority? Oh, yeah. I would come in through the Port Authority, and when there were still lockers there,

we would put our backpacks in, go buy alcohol, get it, then we would haul like six backpacks of 40s back to New Jersey. That doesn't sound legal. You don't say. Sounds a bit shady. Earlier this week, the Florida Supreme Court ruled that a 15-week abortion ban did not violate that state's constitution, clearing the way for a six-week ban that has been signed into law by Governor

Ronda Santis to take effect. But in a separate decision, the court said that a proposal, Amendment to that Constitution that would enshrine reproductive freedom could go before voters on the November ballot. Here to talk about the ramifications of all this is Mark Joseph Stern, a senior writer covering courts on the law for Sleep Magazine, where he's written an excellent piece with the title, The Giant Threat Lurking Behind Florida's November abortion vote. Mark, thank you so much for joining us. So happy to be here. Okay, so on the surface, you look at these two decisions together, and I guess you could read them as a bunch of impartial jurists with their

lady justice blindfolds on, simply saying, hey, look, right now the right to an abortion isn't in the Florida Constitution. So bans, whether they're 15 weeks or six weeks, aren't unconstitutional. But hey, if voters want to change that by amending the Constitution, that's cool. But you say, ah, not so fast with reading it quite that way. So let's get into why. You actually say that there is no doubt that this court is supremely hostile to abortion. Yeah. And before we even get into the deeper part of their own decisions on, you know, what could happen next. I think I should note, like, Florida already went through a very public Democratic debate about abortion rights back in 1980 when there was a proposal to amend the state constitution to enact an explicit right to privacy. And during that debate,

there was a big discussion about whether this amendment would protect abortion. And the general consensus was that it was, you know, Roe v. Wade had been decided just seven years earlier. it was rooted in the idea of a right to privacy. There are all kinds of op-eds and newscasts and records from the time, which was, after all, just a couple decades ago, that showed that Floridians understood this amendment as protecting abortion rights, but the Florida Supreme Court on Monday decided to just toss out all of that precedent and sort of start from scratch. So, you know, even before we get into what ulterior motives the justices might have here,

it's worth noting that this should have been settled already. The state Supreme Court had protected abortion rights for more than 35 years. The court's decision to chuck all of that out was in many ways a rejection of the will that the people had already expressed and forcing them to go through the whole rigmarole again this coming November if they want to protect abortion. Yeah, unbelievable. One of the things you write is that in piecing together the fractured opinions, it becomes clear that six justices stand ready to institute fetal personhood under existing state law.

Walk us through how you come to that conclusion. Yeah, so the Florida Supreme Court has seven justices. Six of them are extremely conservative. Five of those six were appointed by Ron DeSantis. It's a very, very far right body. And the decision to overturn all of the precedent protecting abortion was six to one. So all of the far right justices said, nope, no more abortion rights for now. The decision to approve this ballot initiative for the voters to vote on in November, that decision was four to three, which is really, I think, a little startling because this is, It's not even on the merits of the initiative, right? This is just about whether Florida voters will be able to have their say in November. Right. And it's important to note in Florida, the benchmark is 60% for approval. So a super majority of the state will have to vote to approve this amendment in order for it to take effect. And yet three justices, ironically, I think, the three women on the Florida Supreme Court dissented.

And they said that they would have thrown out the ballot initiative, kept it from going to the people on the grounds that basically, it violates the rights of fetuses and embryos. And that in their view, fetuses and embryos today already have rights under the Florida Constitution because they are natural persons who are afforded equal protection and a right to life. And that this ballot initiative would devastatingly strip them of their right to life by allowing them to be terminated. And so for these three justices, the initiative was invalid because it didn't explain to voters that by enacting, abortion protections, they would be taking away constitutional rights from other people, specifically

people who don't exist, people who are in some kind of embryonic or fetal state, who these three justices said, surprise, they're people now. I want to be clear, this is a new, new, new thing. Like, they just came out of the gate with this idea. It's totally foreign to Florida law. Never before has any court state or federal, I should note, well, up until Alabama last month, which we can talk about, said that someone who doesn't exist yet has constitutional rights. This has always been about the rights of individuals who exist to access certain medical procedures and treatments. So these justices wanted to change the game. They did lose, but, and we can get into this, three other justices while allowing this initiative to go to the voters, made it pretty clear that if it fails, they will be on board with fetal personhood as well and stand ready to enshrine some kind of constitutional protections for fetuses and embryos.

So that's three plus three equals six. Six and seven. Yes. So I get that. Yeah, I'm a little curious because my understanding is that conservative jurists are usually originalists. And here you are claiming, Mark, that these three justices are just making up Florida law. Are you suggesting that originalism might be bullshit?

I said no such thing, sir. It's really funny, not really funny, but remote. Markable, startling, bizarre, that these justices don't even attempt to show that the original meaning of the Florida Constitution encompasses fetuses or embryos. You know, there's no effort to dig into the public debate and understanding of the Florida Constitution when it was ratified. They just declare that, hey, surprise, these, you know, non-existent people are actually full people with constitutional rights, as though it's self-evident why that should be so. Now, those are the three dissenters who wanted to block this altogether. The other three justices who I think are on board,

but will cede to the people if they pass this amendment, maybe. They're a little subtler about it. And they basically say, look, when we're talking about abortion, we're balancing the rights of fetuses versus the rights of adult women. And in that balance, we have to ultimately accept the people's judgment. And so if the people come in and say, well, the right to abortion access trumps the right of fetuses to live. We have to respect that judgment. But if the people don't say that, if the people do not enact this amendment, then we are empowered and indeed obligated to step in to protect fetuses and embryos.

And we all know what that looks like now thanks to Alabama, right? That looks like judicial restrictions on IVF, judicial restrictions on abortion. You know, the current ban is six weeks, but the court could make it zero weeks. it could say that any exceptions are unconstitutional. There's all kinds of mischief that the court could work here if this amendment fails and they decide to jump all the way on the personhood train. Yeah, up to and including, I would think, maybe even birth control. Yeah, absolutely, because it's an article of faith now that many conforms of birth control,

including IUDs, are what conservative jurist term abortifacians, which is this idea that they kill a fertilized egg, which is scientifically untrue and yet has been accepted by many courts, including the Supreme Court and the Hobby Lobby decision. You know, the court agreed that many, many contraception medications are actually just creating mini abortions all around the world every day. So, yeah, this is a huge threat to every kind of reproductive freedom, not just for people who want to terminate pregnancies that exist, whether it's for, you know, socioeconomic reasons or medical reasons or reasons of, you know, rape or incest, but also people who want to not get pregnant in the first place, people who want access to things like IUDs and Plan B and even the birth control pill and people

who want to start families like through IVF, which, you know, I think this decision from the Florida Supreme Court is only a couple steps away from what the Alabama Supreme Court did in shutting down access to IVF by giving embryos this kind of status of personhood. So big alarm bells should be sounding for the people of Florida. This amendment may be sort of their last opportunity to stop that dystopia from happening. That's absolutely unreal that this could mean the eventual end of all reproductive freedom in Florida. Talk about the Chief Justice. He concurred with the four three decision allowing the constitutional amendment to go on the ballot.

But he really thinks it's awful, doesn't he? Yeah, he thinks it's terrible. So this is Chief Justice Carlos Munoz. He is very, very conservative and in fact was the one who introduced this idea of personhood to this case. It's funny, before oral arguments, all of the briefing was about these very very, very conservative. technical issues. The opponents claimed that these words like viability and health care were too ambiguous for voters to understand, obviously frivolous claims. And the Chief Justice came in and said, but what about personhood? You know, you're talking about taking an entire class of people

outside of equal protection. Are we really going to let voters do that? And there was a prompt response by the anti-abortion advocates in this case filing all of these brief saying, oh, yes, you're absolutely right, Mr. Chief Justice. You know, you should block this on personhood grounds. This will take away rights from fetuses. The voters need to know that. He ultimately did not follow through on his own kind of suggestion here. He, as you said, allowed the initiative to go through. And he was joined by two other very conservative judges who were part of the decision to overturn the right to abortion as it existed. But said, I think in very clear terms, abortion violates my sense of moral belief. And that morality, that sort of Judeo-Christian morality is an appropriate basis for judging law.

It's really part of this kind of natural law theory that we're seeing conservative jurist devise that goes beyond the usual originalism BS to say, actually, we can infuse the law with Christian theology. And he and his two colleagues who joined him were basically saying, we think abortion is loatsome. We think it ends a life. We think fetuses are people. For the purposes of this case, we're willing to let Floridians disagree with us. but we want to be clear that we hate doing it and that if this amendment fails, again, we stand at the ready to implement our own beliefs about the moral and human status of fetuses

and embryos as the law of this state, which is quite an ominous warning that I do think the voters should pay attention to. Yeah, I mean, hopefully, I know 60% is a high bar. I haven't seen any polling yet, but God, I hope this thing passes in November. This is a very Christian court, isn't it? Absolutely. I think that, you know, religion in the judiciary, it's kind of like a third rail. It's difficult to get into because you're often accused of anti-Christian bigotry if you

mention it. But I think it's important to note that actually all seven of the justices on that court are devout Christians. I'll point out that the one kind of moderate conservative, Justice LaBarga, he is personally a big opponent of abortion. You know, he does not think abortion is moral or good or should generally be allowed. And yet, he had enough principle in this case to dissent when the majority of the court upheld the 15 and six-week bans and said, you know, in so many words, I'm not a fan of abortion,

but the law is the law. And we should not be letting our own sense of moral duty get in the way of what the law requires of us. But he was the one justice who was willing to say that. You know, the other justice is I think they really do infuse their opinions with Christian theology. Judge Renata Francis, who was maybe the most extreme on the bench, although it's quite a competition there. She wrote this really kind of no holds barred screed against abortion, saying that it was the devastating end of a life of a human being and that,

you know, not just legislators, but also judges had this obligation to stand up for the pre-born protect them from violence. That is not a legal belief, right? That is a fundamentally theological view that she is attempting to impose on the voters. And it reminds me a great deal of the Alabama Supreme Court decision I keep talking about, right? Where a majority of the court basically said, we believe that embryos are people. And the Chief Justice of that court, Chief Justice Parker, actually said, this state of Alabama implements Christian theological beliefs. We have to look to the Bible to interpret Alabama law. The Bible says that embryos are children, and thus it's our duty to protect them from harm. Yeah, it really is unreal. And I know you keep

drawing parallels between this decision and the Alabama decision. And we just saw in the past few days, I think, that an IVF clinic in a hospital in Mobile, Alabama, shut down because they're afraid that they might be breaking the law now. And I assume this is the kind of stuff that Floridians need to be taking note of. Absolutely. And Florida actually currently has a pretty progressive regulatory scheme for assisted reproductive technology, including IVF. There are, I'll tell you, a lot of wealthy Republicans in the Miami area who probably, say that they oppose abortion and also take advantage of things like ART and IVF and are not thinking through the implications of this decision and this upcoming amendment for their own

personal rights. And they will be in for a rude awakening. And this was the story in Alabama. You know, there were so many sort of well-off white Christian women who came forward after the Alabama decision saying, we never thought it would come to this. We never thought that the anti-abortion movement would have backed us in this way. And tragically, it's very similar to what we've also heard from women who are denied emergency abortions at hospitals and places like Texas, right? These are often Republican women who say that they're against abortion, but when they need one and they're denied one and they have to start, you know, going into hemorrhage and sepsis before they can terminate a failing pregnancy because of the state's ban, that opens their eyes to the horrors of this

regime, this anti-abortion regime. And so I guess I just, I hope that Floridians figure it out earlier than that. I grew up in Florida. I don't have super high hopes that they will. 60% really is a large number, but I'll guess I'll be cautiously optimistic. If the campaign for abortion access plays it just right, it can help people understand this is not just about some college girl who regrets her one-night stand, which is the kind of insulting language that's often used by anti-abortion advocates. This is really about fundamental control of reproductive freedom and bodily autonomy across the board. And you just, you can't outlaw abortion without all the other dominoes falling. Yeah, absolutely.

Particularly, I mean, once you're talking about fetal personhood, that's game over. Right. That's it. That's done. You've given the federal judiciary and the state judiciary, total control over everybody's bodies. Yeah. It's unreal. I keep going back to what you were talking about a little earlier, about how the one justice,

it was Jamie Groszance, how she sort of, I don't know any other term to use other than made up this idea that when the, the constitutional. Amendment in Florida protecting the right to privacy was passed, that the voters would not have understood it to also mean it preserved the right to have an abortion. And how that is just completely historical. And again, is there any other way to say this other than that she just made that up? I think that is the right way to phrase it. And I think it just shows the endless malleability of so-called originalism, right? That you can just cherry pick whatever spotty historical records you want to make your case. And this is what we've seen from the Supreme Court.

on issues like abortion and gun rights, right? Over and over again, the Supreme Court will just make stuff up. It'll sort of pluck little tidbits of history out of the archives and say, see, this proves that states can't regulate firearms anymore. That is what this justice was doing here and doing so in an especially shameless way because in the last year or so, as this fight has heated up, a lot of actual historians and scholars have gone to the archives and tried to find the answer here. And I think the answer is sort of undeniable.

that like in 1980, people knew what the right to privacy meant, right? Roe v. Wade had been the law for seven years. It had been extraordinarily controversial. At that point, it was one of, you know, Reagan's big issues was overturning Roe and abolishing the right to privacy. The fight over the Supreme Court was all about privacy rights. It came up in confirmation hearings. It was like the number one issue across the board if you cared about like reproductive freedom, like freedom to get an abortion was a right to privacy. I encourage people. to just look at some of the records here. They're cited in the dissenting opinion by Justice LaBarga. Like, look at the public debates, look at the op-eds, look at the telecast, look at what the

politicians were saying. Look at what the voters were saying. Everyone knew this was about abortion, at least in part. And the Florida Supreme Court just pretended that it wasn't. It's one thing to sort of pretend or however you want to put it, that you can glean something from something that was written in like, you know, 1794 or 1815. But like you keep saying, this is 1980. A lot of us were alive in 1980. You know, this is not some obscure well. The founding fathers 200 plus years ago intended this. This is something that happened 30 years ago. You can, well, I think it would be 44 years ago. 40, 40, yeah. I think that's still not too long ago. And the reality is we've still got like all of the receipts from 44 years ago. It's not like 1791 when you have to go over some like dusty book from,

you know, the Thomas Jefferson's plantation to figure out what the law was. It's all right there. And this was a moment where I guess I feel like originalism could have had a kind of shining victory as a truly neutral methodology. You know, if the Florida Supreme Court had just done what it should have and said, we don't like it, but abortion is the law of the land here and has been for decades, then, you know, I think a lot of proponents of originalism could have pointed to it and said, hey, look, they didn't like the outcome. They didn't like the result, but they acknowledged this was the original public meaning and they stood by it. So this could have been that kind of turning point for originalism. And instead, it was the opposite.

It was yet another egregious instance of a court just manipulating or ignoring history to reach the conservative Republican result that it wants. And it's like, how many more times are we going to see that happen before everybody understands like the jig is up like this whole thing? this bullshit. Yeah, it really is unreal. Mark, thank you so much for being here and explaining this to me in terms that even my smooth brain can understand. Thanks so much for having me on. Absolutely. I really appreciate it. Folks, I am very happy to welcome to the new abnormal, the founder of OffMessage, a newsletter about politics, media, and culture without the jargon or talking points, Brian Boitler, whose recent piece on Democrats, entitled are Democrats getting better at moving public opinion? Brian, welcome. Thank you. It's going to be on.

First off, I rarely ever see a positive headline about Democrats. So let's just start with the reason I clicked on it because I was like, oh, is something good happening? Isn't that nice to follow? But talk to us about your assessment as we have been following swing state special ballots and elections that have happened since the fall of Roe v. Wade that have seemingly been in seemingly red states I use with air quotes. But on the issue of abortion, when it's brought to the ballot or special election, they lose. Talk to us about, you know, your findings and what you elevate in this piece. Yeah. Okay. So like the way I would put it for your listeners, I think the best way in for them is to just assert at the top that public opinion around abortion has changed.

since Dobbs. And not just in the trauma of Dobbs making people rethink their position on abortion, but even beyond then, there was a big change in public opinion right after Dobbs, and it's continued to evolve. I mean, we know that we can see it in survey data and we can see it in special election and referendum results. So I think, you know, a big question is, why did that happen? And to what extent does it reflect good choices by Democrats? And I think it's totally reasonable to suspect that part of it is that there was just a preexisting trend towards support for abortion rights even before Dobbs. Dobbs dramatically accelerated that and then Republican actions, strict abortion bans and so on and, you know, the indications that they

will go after IDF and contraception have accelerated it even further still. But it was a bit unclear in the early days after Dobbs how Democrats were going to approach the issue. Were they going to try to seize the center as it existed in mid-2020? Were they going to try to reach some kind of grand settlement with Republicans, or at least propose a grand settlement and let Republicans rejected it? And what would it look like? Would it be a 15-week abortion ban? Well, they didn't do that.

And the reason I titled a piece, what I did is that I think that reflects savvy on the part of the party, because the idea of setting a floor of abortion rights at 15 weeks, was popular at the time that the Dobbs ruling came down. But watching how Republican states have reacted to abortion rights has moved public opinion. And I think Democrats were wise not to assume that public opinion was fixed and that they could sort of move the ball in their direction in public opinion terms such that either by winning the election and codifying row or forcing Republicans to respond to public opinion, that they'd sort of be preconceiting if they reacted to mechanically to public opinion. And I think Democrats often do react mechanically to public opinion. And this is like a good

example of how moving public opinion or at least waiting for it to move can be advantageous. And I think that that's right. I think that sometimes there is too much of a quick reaction and impulse to take what you see in polls and kind of then create campaign talking points around that. I think, too, what has been interesting is that at least for as long as I can remember, abortion has been an issue and a word that Democrats don't really like to say and like to discuss. They have for a long time been in the camp of pro-choice, bodily autonomy. Do you think also that the naming of abortion as well as the elevation that the Alabama decision did with IVF, do you think that getting specific, right, as Republicans have become specific? with their attacks is also helping.

I think I do. I mean, look, like, I don't think that anybody who has formed an opinion about abortion or seen their opinion about abortion changed since Dobbs is under any kind of illusion that abortion isn't the central issue. And even if, like, say, President Biden isn't using the word abortion a lot. The word abortion is ambient. This concept is not lost on anyone that the issue at stake is abortion. The question of, like, what is the best thing for a Democrat? candidate to say about the issue like it's hotly contested among liberals and progressives.

I think that you can you can see that like insofar as what President Biden's position is, is not okay, we lost the right to abortion. And so now we want to conciliate the right and try to get a grand settlement at 15 weeks. No, what we want to do is restore Roe v. Wade. Like perhaps that is optimal messaging insofar as it, A, people where they are and doesn't create some kind of backlash among the minority of Americans who genuinely just react horribly to the word abortion. I thought early on that there was a big risk that Democrats were going to be very lost about what direction to go in after Dobbs. You know,

there was a dust up between the White House communications director and abortion rights advocacy groups over what the correct approach was. And the White House kind of lashed out of them. I thought this could really deteriorate in a bad way. But they seemed to, have kind of found a coherent approach, which is the party saying, give us a Senate and a House majority and reelect President Biden and we'll codify Roe. And not only have they found like the public opinion sweet spot, but they've done it in a way that seems to be drawing everyone who isn't totally anti-abortion into the broad Democratic camp. I hope that makes sense is just kind of how I think about it. I know there are definitely some people who care strongly abhorstabortion.

about the right to abortion who wish Joe Biden put it that way. I think I have some sympathy with his instincts to talk about his Catholic views about abortion and to refer to Roe instead of abortion just as a means of opening the door and widening the tent. But at bottom, the core promise he's making is codify Roe. And I don't think that what that means is lost really on any part of the broad, whatever it is, 65% of the public that wants the right to abortion restored. Do you think that it's important then to, for this campaign, for the Biden campaign, to tie in very close ways this move against bodily autonomy for women and people with uteruses to Donald Trump, right? Because, you know, it's funny. Obviously, there has been a domino effect. Obviously, these red states had these trigger laws in effect that once Roe would fall, that then they would assume the most draconian policy is possible.

And I think that, you know, when interviewed and folks are saying, well, this happened under Biden, it's Biden's fault that we lost Roe v. Wade and not understanding or being woefully, you know, it's either woeful ignorance or they really just don't understand how government works and two things can be true at the same time. But do you think that it is important for the Biden campaign to either hang this solely around Donald Trump's neck or make it the outside? of the entire Republican Party so that people really understand. It doesn't matter who is at the top or who is at the bottom. It matters that this is an entire ideology that they have embraced.

I would want, and I think Democrats in the Biden campaign really are kind of doing both. In addition to what you said, there is, I think, a fairly widespread sense out there. Some of it articulated by people who are being cynical and some of it articulated by people who I think are a little naive about how policymaking works in the United States and why the Dobbs decision came down. They say, you know, Donald Trump is allowed. He's not a religious person. He doesn't personally care about abortion.

And so why should we be scared of him the way we might be scared of somebody like Speaker Mike Johnson, if Mike Johnson was running for president? Reminding people that Donald Trump is the single greatest force of the erosion of abortion rights since abortion rights came into existence is super important. want abortion rights back, don't give the presidency back to the guy who's responsible for losing it. But then you can say beyond that, that like the rest of the Republican Party has made clear that they will sacrifice whatever principles they claim to have to forge an alliance with this guy, this guy who doesn't go to church, this guy who has had three wives and who has maybe paid

for abortions, they will sacrifice their punitive principles in order to get him back because they know he will carry out their war on reproductive autonomy. So in that sense, I don't think it's one or the other. There's no tension between saying that Donald Trump bears more responsibility than anyone else in the GOP for the Dobbs decision. But Republicans aren't done now. They're not done yet. They're going to try to go further.

And they've selected Donald Trump as their guy to do it, in part because he was so effective for them at getting Roe v. And I wonder, you know, because I, for one, Brian, and I don't know about you, I'm fucking exhausted of Donald Trump. Do you know what I'm saying? Like, I'm just, I'm tired of talking about him. I'm tired of hearing about him. I'm tired of covering him.

And I know that we have a long way to go. But I wonder how exhausted the electorate is. And what do you think the message is that sells? Is it the message that we will be in damnation if Donald Trump becomes president? Democracy will be over. As we saw when Biden kicked off his campaign, it was all about democracy. And he continues to talk about that. and it was front and center at the state of the union.

Is it that, which for some they still consider a fairly abstract term? I don't think it is when you see how many rights we have lost over the last few years. Or is it the lifting up of look at all of the good things that we have done when you know that the good things are not what gets clicks. It's not what gets attention. And so I'm wondering how you think that they balance this messaging between providing a picture of hopefulness and the very real picture of despair that Donald Trump himself paints at every single rally. Yeah. So I think that the way campaigns generally do this, and I think that there's sort of no better way to do it, it's because of what you said about how do you get the media to cover something like a bridge that's going to be rebuilt in a year

when there hasn't been a groundbreaking or the fact that insulin is capped at $25 now because you kind of say, okay, well, that's done, and then you move on. So what the campaign is doing and what campaigns have done in general, is they build a lot of retail politics around the good that they've already done and the good that they want to do going forward. And I mean, President Biden had a campaign event with Bernie Sanders in the last few days, I believe, to talk about those things exactly, cheaper prescription drugs as a result of what Biden and the Democratic Congress did. I do think that there is some Trump fatigue out there. Donald Trump is, I think, going to do a pretty good job reminding people what they didn't like about him on his own, even the people that are starting to maybe retroactively

think, oh, his presidency wasn't so bad. To deal with that problem, I think the thing that I would do, I mean, I think you're starting to see it a little bit is that to the extent people are exhaustive Trump, you can point out, it's the whole Republican Party. And so they're trying to increase awareness of this Heritage Foundation plan called Project 2025. Yep. But they are basically trying to match tens of thousands of people who will staff the Trump administration

with an ideology that's horrifying. And those are the people that are going to run the second Trump administration if he wins. So that's a way for the campaign to make people home in on the stakes of the election without making them think of Donald Trump if they happen to be exhausted by him. And then there's another piece of this, which is that, you know, I think there are a lot of people who took people like us seriously in the first Trump term when we warned that his presidency was dangerous. It was hurting people. They know in some sense that COVID happened on his watch. They know that January 6th that he orchestrated that. But I do think that there's like a bit of fuzziness around how close to the mark Trump critics were in

their warnings. Like it's easy for people to think, well, you know, we got through the Trump presidency. I didn't lose my job. I didn't lose my house. And, you know, all the warnings about, you know, the doom that was certain if Donald Trump was president didn't come to pass. And so I think there should be some effort in reminding people that the first Trump presidency, we got through it, I guess, to some extent, but with hundreds of thousands of Americans unnecessarily dead, with a nearly successful effort to overturn U.S. democracy. And even though it came two years after he left office, he abolished the right to abortion. Like, that's a really huge cost to bear in one term, four years.

And so just think about how much more damage you can do in the next four years, even if, you know, time has gone on and you've stopped thinking things back then were pretty terrible. You know, Brian, you're a person in media. I'm a person in media. And I spend a lot of time talking about how. the media has learned nothing over the last seven years. And I wonder, while we have been yelling from the rooftops that democracy has barely held on since the Trump administration, and it won't survive, not with a billion-dollar backed project like Project 2025, where you can on day one

put in 20,000 plus people into the agencies to begin the gut jobs from the inside of. where you can have purity tests. You know, where is your allegiance not to the Constitution or to the flag, but to Donald Trump? And we're going to ask you, where were you on January 6th and like, do you believe that Donald Trump lost the election? These are their purity tests that they use. The media still is at a place of playing both sides. And even if you were to just use sheer facts, no opinion.

Donald Trump is a twice impeach four times indicted. former president of the United States that's facing 91 charges. He is a man that lies all the time and is caught in lies every day. But the headlines would have you believe that there are just two different opinions that are happening. And I wonder, you know, as the clock ticks down to November, do you think that the media will change their tune? Do you think that they understand the existential threat that that industry is under a Trump

administration. I think that there are some signs of hope. I don't think things are quite as appallingly even-handed in the mainstream news coverage of this election as they were in 2016. In 2016, it was, I had PTSD thinking about how the mainstream media covered that campaign and how the marquee reporters at Big Atlas were just unwilling to listen to criticism of how they were approaching it. There is a mantra that the press critic Jay Rosen has popularized, the stakes, not the odds. And I have seen this concept penetrate big news organizations to where the kinds of reporters who maybe eight years ago would have been doing pure he said, she said, or both sides of journalism are taking their responsibility to make the stakes of this election to their readers pretty

seriously. It's not perfect. There are obvious problems. And I think he did a good job spelling them out. That said, like if you're the Biden campaign, if you're the Democratic Party really at any time in the past decade, you should have learned by now that it's not a good idea the way it might have been 20 or 30 years ago to have the mainstream news media be your sole conduit to getting your message out, to making voters understand what you think is important. The campaign can kind of get around them by speaking through alternate media or speaking through their own social media. They have choices to make about who they want their surrogates to be and what they want their surrogates to be out there saying.

And I think like, you know, you could quibble. There are definitely improvements that I think they could make about, like, how they go about trying to reach voters and convince them that sort of everything is on the line here. But the Capitol police who got assaulted by Donald Trump's mob are sort of becoming those kinds of figures. And they are trying to at least create some sort of cognitive dissonance in the, in the electorate that maybe thinks Donald Trump is the quote unquote law and order candidate that no, he actually supports people who attacked cops and he calls them hostages and he plans the

part and all of them. And they can draw attention to the fact that one of the planks of Project 2025 is to assert that the Constitution actually gives Donald Trump two more terms because his terms weren't sequential. I mean, this is like nonsense, right? This is like antithetical to what the Constitution says. But they are trying to draw up ways by which Donald Trump can try to be on the ballot again in 2028 if he if he chooses to be in a sense the better job the Biden campaign does it trying to reach voters through other forms of media the more the media will have to reflect on like whether part of the reason they're losing access to democratic surrogates or the reason Democrats are going around them is that they're not being faithful to the stakes

and so it might be like this kind of positive reinforcement mechanism that makes the media do a better job Yeah, I think that that's right. Brian, thank you so much for making the time for the new abnormal. And folks, you should check out off message the newsletter for a source, a good source of information. Really appreciate you. Thank you so much. Andy Levy. Danielle Moody.

How are you closing out this good, good, fuck around week in America with your fuck that guy? I think I'm going to take a little trip down to Alabama. And I'm going to take a little trip down to Alabama. And I'm going to talk about a hospital down there. This hospital has now said that it will no longer provide in vitro fertilization services to people who want them. This is in Mobile Alabama. It is infirmary health is the hospital system. And the Center for Reproductive Medicine is the clinic there.

And they are not my fuck that guy because I don't blame them for this. But according to the New York Times, they are saying the reason they're doing this is because of, quote, pending litigation and the lack of clarity of the recently passed IVF legislation in the state of Alabama. We obviously talked about this when it happened when the Alabama Supreme Court issued its Christopher fascist. And now we're seeing the fallout. And we're seeing a hospital and a clinic that had been providing IVF services saying, we can't do this anymore because we might be breaking the law in the state here if we continue to do this. The clinic says it's going to find new space is somewhere not in that hospital, which I hope they do. But the absolute chilling effect of this

ruling that unless something is done about it is going to be felt for years and decades to come. It's already starting. And we're seeing it now. We're seeing it with a hospital. Look, it would be great if, you know, the Alabama legislature could pass legislation saying, oh, wait a minute, we're going to fully legalize IVF. But I have no faith that that would ever happen. And, you know, it feels like we're at the point. we need some kind of federal guideline here, federal law that will allow people who want to use IVF in order to have children, that it will allow them to continue to do that. And it's just, it's so utterly shameful what is going on here and what is going on in the state of Alabama with this. For that reason, I just, my, my, fuck that guy goes out to the Alabama Supreme Court and the Alabama legislature, unless they end up doing something about this, which again, I ain't hold of my breath. I wonder when they're going to bring back burning people at the stake. Do you know what I'm saying?

Yeah, sure. Because essentially, the Republicans are at war with science. They're at war with science because science tells the truth. Science is about advancement. Where can we move? Where can we go? And that is in direct conflict with their imagined version of God. And so it's like at what point, you know, do they just bring back, you know,

burning people at the stake for having and creating different techniques and the ability, and the ability for people to have children, to, you know, rebuild organs. Like, it's not going to ever stop is what I want people to just understand. Like, when you allow Christo-fascists to take over state legislatures, when you allow them to take over the federal government, everything that you believe about progress just stops. And you enter into the dark ages. And you're seeing it now in Alabama,

but for those people that think that they are comfortable and safe inside of blue states or blue cities, understand you will not be if Donald Trump becomes president again. It's a rap in all 50 states. So fuck those guys. Yep. All right, Danielle, close us out. Who is your fuck that guy to finish off this week? Well, he hasn't been on the list in a little bit.

He's always in my mind and heart, though, which as my first. ever fuck that guy since he got this job that he shouldn't have. But Mike Johnson, the current speaker-ish of the house, I don't know. So let me just, we were talking about headlines at another point in the show. Let me talk about this headline. Let me just read it for you. Mike Johnson tricked by false right-wing article accusing Joe Biden of declaring war on Easter. Now, that title would make you believe that somehow he was duped and forced to go to the Daily Caller's website in order to get falsified information because as Speaker of the House, clearly you have no access to, oh, I don't know, legitimate news outlets. And so, oh my God, this man, he was duped, you know, like a Scooby-Doo

episode. No, he purposefully saw the Daily Caller, put up a post about, the Biden administration banning religious Easter eggs from the White House art contest. Now, Jesse thought that this was an April Fool's joke. And I'm like, fascists aren't funny. So it wasn't a joke. Also, the White House Easter egg role has been prohibiting religious egg designs since 1978. This is not new shit. This is old shit because at some point in time, we all agreed that there should be a separation between church and state. So in what I think is in an amazing act, because I never would think that the Daily Caller would ever retract an article ever in their time did retract the article when it was pointed

out that it was a lie. But guess who didn't take down their posts, Mike Johnson? Words and narrative matter. Mike Johnson was not tricked. Mike Johnson is a right-wing religious zealot who would only do the Easter egg role if in fact it was only Jesus on the Easter eggs. Do you know what I'm saying? Like he wants to live inside of the Handmaid's Tale. So he wasn't duped.

This is what he wants and believes in. God, I would tell people to do better, but I know you never will. So for that reason, you are my fuck that guy. Yeah, I was confused by the word tricked in the head. headline too, which again makes it seem like he fell for a prank or something like that. But he fell for a lie, so he wasn't tricked. We need to stop using words like that in headlines. And the fact that as you pointed out that he left up his post, even after the article

was retracted, I think that pretty much says it all here. Fuck that guy. Hope you enjoy checking out this episode of the new abnormal. We're back every Tuesday, Friday, and Sunday. If you enjoyed it, please share it with a friend and keep the conversation going. This podcast is a Daily Beast production with production by Jesse Cannon and Seamus Calder. Want more great listens? Check out our comedy podcast, The Last Laugh, and our star-studded The Daily Beast podcast at the Daily Beast.com slash podcasts.

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