The Dispatch Podcast - Norms!

Episode Date: December 9, 2020

The Supreme Court denied injunctive relief on Tuesday to Pennsylvania Rep. Mike Kelly in a one-sentence order that unceremoniously ended the Republican lawmaker’s bid to overturn his state’s election results. “What distinguished this case was it actually had an interesting question of law in it,” David argues on today’s show, in reference to the Pennsylvania state legislature’s alleged violation of the state’s constitution in 2019. That Rep. Kelly brought this lawsuit after the presidential election was another question entirely, David concedes, as was Kelly’s requested remedy. On the menu for the rest of today’s episode: Texas Attorney General Ken Paxton’s new Supreme Court election lawsuit, Biden’s latest Cabinet picks, and the origins of “believe-Trump-no-matter-what” syndrome among once-respected GOP figures. Show Notes: -Supreme Court’s one-sentence order denying injunctive relief to Rep. Mike Kelly. -Texas Attorney General Ken Paxton’s new lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin. -University of California-Irvine law professor Richard Hasen’s December 8 blog post on the Paxton lawsuit’s legal shortcomings. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Dispatch podcast. I am your host, Sarah Isgert, joined by Steve Hayes, Jonah Goldberg, and David French, of course. This week we have so much to discuss. We actually know what we're already talking about next week. So we are hitting up the Supreme Court rejecting the Pennsylvania lawsuit that sought to overturn the Pennsylvania election. Then we're going to talk about the Texas lawsuit filed against Pennsylvania, Michigan, Wisconsin, and Georgia that also seeks to overturn. the election with the Supreme Court. We'll talk a little Biden cabinet picks with his defense secretary announced. And then we'll end with Jonah

and why people, be cray. Let's dive right in. David, coming to you first because we had a big, Day for the courts yesterday. Why don't you start us off with the Supreme Court at circa 4.30 p.m. Yes, indeed. So what we had going on this afternoon or yesterday afternoon was a lot of Trump supporters had hopes that a lawsuit filed by Congressman Mike Kelly and others, including Sean Parnell, would perhaps invalidate the Pennsylvania election. Now, there wasn't really much hope here, but what distinguished this case from a lot of the other cases like the Sydney Powell Cracken case, which is the big vote fraud, dominion vote system, hacking, whatever cases that she's filed in multiple states, what distinguished this case is it actually had an interesting question of law in it. There was an actual interesting legal issue here, something that perhaps should be adjudicated at some point. And the interesting legal issue was that in 2019, that's a key date, I think 2019, the Pennsylvania legislature changed Pennsylvania's voting and election laws to expand access to mail-in balloting.

And the claim was that this change in Pennsylvania election laws violated the Pennsylvania Constitution. Now, fast forward to 2020, and Congressman Kelly brings this after the election. And then the remedy that he seeks is the invalidation of the election. Okay. So you take an interesting legal question, one that would have residents for a future election because you brought it after, and you seek to use that to invalidate the whole thing. Now, that was never, ever, ever, ever going to happen. But an awful lot of people got their hopes up, led by Mark Levin, Ted Cruz, not to name names,

but and stoked by the president of the United States. And so what happened is the Pennsylvania Supreme Court, which is the final arbiter on matters of state law, had already tossed this case on the basis of latches. And for the non-lawyers in the group, latches essentially is a doctrine, an equitable doctrine in court that says, you can lose if you delay your claim out of bad faith.

And the court was essentially saying, look, Congressman Kelly, if you wanted to challenge this structure, you could have done it a year ago, a year ago before the election. You waited to see who won and then you mounted your challenge. Latches, you're out.

Quick question on Latches? Because I've heard you guys talk about Latches a couple times now. You don't use it in a sentence ever. Is it a verb? Is it a noun? Is it like, this defies Latches doctrine? Or you have a Latches problem? Yes.

Yes. Okay. Maybe. Yeah. Latches is just latches. I've never, I don't know. I've never actually heard it in a sentence other than the doctrine of latches. Like, we're going to apply the doctrine of latches. Or the rule, the latches rule. Yeah. Okay. So it's a noun kind of thing. You've got a latches problem. Latches applies. Okay. Why do we lose? Latches. So laymen like me need to ask these questions because you guys, you speak this, you know, vernacular of the cognizanti. And it's it's kind of Gnosticism that we need to pick a hole in. Is the door shut? Yes, I shut all the latches. Different latches.

Oh, that's different. Maybe I should just say bad faith delay instead of latches. No, well, latches is fine. I like learning new words. I just didn't know how to use it, you know. What is the German word for latches? Okay, well, I'll say that. So anyway, the Supreme Court of Pennsylvania says bad faith delay.

And so case is out. They appeal to the Supreme Court of the United States, which of course they were going to do, but they didn't really have grounds for appealing to the Supreme Court of the United States. This was a state constitutional state law question. The Supreme Court of the U.S. does not decide is not the final arbiter of Pennsylvania law. It's an arbiter of constitutional law. And so everybody knew, everybody knew the Supreme Court was going to reject this case. They just, you know, that was known.

But a lot of folks who knew better hyped it and kept hyping it right up until about 4.30 p.m. Eastern time yesterday when guess what happened? The Supreme Court rejected the case with no dissents. It was a one sentence. This, you know, case taken, appealed to Justice Alito, was referred to the entire court. and relief denied. So injunction denied. So it was over.

It's over. The Pennsylvania election contest from this particular case is completely over. And that's a big deal because it was one of the cases that the Trump camp unreasonably put a lot of hope in. I am relieved because, you know, their hook on why they could appeal this from the state Supreme Court to the U.S. Supreme Court was kind of an open question is an open question of law based on this concurrence in Bush v. Gore from 20 years ago. And I was concerned not that the Supreme Court would take the case. There was always a zero point zero's forever chance that they would take the case. But I was concerned that there could be a concurrence from one of the justices that says

something like, but we do have this unresolved piece of law. This isn't the case to do it on. But maybe in the future, I don't know, or, you know, something, like some little side nugget that people wouldn't understand and would grasp onto, or even worse, that that statement could be phrased as a dissent from denial to hear the case. And I was just so pleased. And for once, all nine justices were like Roberts as institutionalists that, like, understood the position, the political position that they had been put in, did not like it. And whatever thoughts they may have about

whether the U.S. Supreme Court has a role in state election matters, they were like, nah, dog, next up. Who were you afraid was going to do that? Who do you think was going to be the most likely? And which justice said, nah, dog? Justice Alito definitely said,

nah, dog. Yeah, no question. I was concerned that Justice Thomas who often brings up in the dissents from denial like hey we still have this unresolved thing or hey we have this longstanding doctrine

that maybe isn't quite right not because he even really wants them to take this case but more of like raising an interesting point at a cocktail party and I thought that's kind of like the Sarah Isger of the court

is what you're saying how deeply flattering and maybe insulting at the same time. Take it as you will. So as non-lawyers, I'm curious with Jonah and Steve, like whether they also at 4.30 Eastern yesterday,

like jumped up out of their chairs. I'll go first. I was on a business call with Steve at 4.30 yesterday. So I didn't find out about it until a little later. And like you, I was relieved, probably largely for the same reasons.

I've reached the point where I'm a little dead inside about this whole thing in that I have such contempt for not for the average person who doesn't know about this stuff but and is just relying on Mark Levin being a straight shooter that's fine but like I'm the people who are going through the motions of pretending like even in your worst case scenario and correct me if I'm wrong, your worst case scenario was Supreme Court still says hell no

but it does it with a lot of words that give people false hope and hey look at this thing over here and this thing has two flashing lights on it and it keeps the argument going even though there's no substance to really argue about. With that in mind and taking you guys at your word

and also other legal type persons who I've talked to about all this kind of stuff I'd just take it on good faith that there, and on my own reading of it, there was nothing there. I mean, not, there's no way the Supreme Court was going to overturn the votes of seven million Pennsylvanians or, or void

the electoral college, or declare Trump, you know, emperor Trump, the first of his name or anything like that. And so my view is, is, there's a little bit of Schadenfreude in it. Like, ha ha, eat that, people who thought

this was real. But there's also just like, I'm so disgusted by the desire to turn this into a drama where there isn't one, that I'm kind of, I kind of feel a little bit like one of those cynical old Russians stubbing out unfiltered cigarettes in Siberia, just waiting to die when it comes to a lot of this debate at this point. Yeah, I'm in the same place, and I guess I had sort of questions that flowed from that reasoning. One of the questions I have as I look at what's happened over the past month, including this, although this, it sounds like, as David noted, there was a sort of serious legal question there, just the timing made that question moot. As we look back on the survey,

take a survey of the lawsuits that have been brought and dismissed and mocked sometimes by Trump appointed judges. Are there any sanctions for the lawyers who bring this stuff? I mean, I'm just reading through analyses of what's in the lawsuits and sort of the glaring mistakes, the failure to sort of follow the basic rules here, the total inventions. I mean, it seems to me that these would be kind of the definition in late terms of frivolous law. many of them. Is there, are there punishments for people like Sidney Powell and Lynn Wood for bringing this stuff or others who have done this pretty demonstrably in bad faith? No.

I mean, there are, you know, there are, so that federal is a civil procedure contain a rule called Rule 11, which is essentially a good faith requirement that you're, every time, when you're signing a pleading, you're signing that this is a good faith effort to apply, extend, reverse, et cetera, existing law. It's a good faith. And once in a blue moon, a opposing counsel will file a motion for sanctions under Rule 11. Once in a bluer moon, a judge will sanction a counsel on his, sort of on his own, her own motion. That's That's really, it's hard to emphasize how rare that is. It really is rare. And bar complaints for filing bad cases don't go anywhere. So there is a real problem in the bar of vexatious litigation.

And we've never really figured out how to deal with it. In my entire career, I litigated from 94 to 2015 before I hung up my litigation spurs. So 21 years of litigation, I saw one sanction, one court implement sanctions on opposing counsel, one. And that was in a case that was more egregious than Sidney Powell, if you can imagine that. So it's very, it's very rare. So it's theoretically possible. It's just rare. And certainly in this Pennsylvania case, that wasn't even close to a frivolous lawsuit. The remedy was frivolous, but even there, you're not going to get tagged for having a frivolous remedy. You're going to get tagged for being basically a vexatious litigant. And in this case, their question over whether Act 77 was appropriately processed into the Pennsylvania

constitutional amendment, that, you know, to the extent they're even wrong, like, that's a question. Yeah, but I always, and I know I'm a babe in the woods, but I always thought that, like, good lawyers did some due diligence to make sure that the affidavits they supplied as evidence for their case weren't full of crap. And, like, some of the stuff that you just see, you know, like the screenshots of affidavits that. you know, just no way can possibly be true. And there can certainly be no way that even if there is this one and a billion shot that they're true, that the lawyers did the work to feel confident that they were true. Remember that video that we talked about a couple weeks ago from the Arizona judge who was talking to these lawyers saying, okay, so wait, let me get this straight.

The ones you could prove or false, you didn't include. Right. But the ones you couldn't prove or false are included. in here as if they are true. Don't you see we have a problem here? And the Trump lawyer was like, what problem? That sounds right to me, you know? Like, if you put in fake affidavit,

or like, you know, I think I asked you about this before, like one of the Citi Powell's affidavits, part of the evidence was that the, there was an unsigned election certification or something like that, some official document. And all they really did was, crop out the date on the document. Are you allowed to just file bovine excrement to the court and let the court decide whether

it's true or not? I don't know. It just seems like I had a higher view of you people. So you people. So the real, the penalty for filing crap as you lose, that's the typical, that's the typical penalty is opposing counsel eviscerate your filing, describes to the court how pathetic you are. and then the court rules against you and the penalty really

there's sort of an informal penalty that locks in that judges begin to get a person gets a reputation oh here comes Sidney Powell again and so Sidney Powell ends up not doing any favors for her future clients because judges look at everything that she's going to file with

you know extreme skepticism so there's sort of this informal network and it's one of the reasons frankly why you have not seen the high sort of the heavy hitters of the conservative legal movement because there's hundreds

of dedicated conservative private practice lawyers who are elite level lawyers just elite and you do not see them on these pleadings. You do not. Because they know...

And that, that David, is such a good segue to this next lawsuit. Oh, isn't it? Yes. Yeah, we're doing two lawsuits today, folks.

Sorry to tell you. next up is the Texas lawsuit that was also filed yesterday. Like I said, yesterday was a big day for David and I, really, just David and I. So the Texas Attorney General, Ken Paxton, and we'll discuss more about him in a moment, filed a lawsuit against the states of Michigan, Wisconsin, Pennsylvania, and Georgia. This is unusual for several. reasons. But the most important one is that if two states sue each other, that is in Article 3 as original jurisdiction of the U.S. Supreme Court. And what that means is that you can sue directly

to the Supreme Court. You don't have to go to district court and a circuit court. You skip go. You collect your $200 and you go directly to the Supreme Court. Now, there is a catch, if you will with that little thing, which is that the Supreme Court, it's not automatic. Justice Thomas, in a little, one of those little side opinions that I mentioned last term actually said that he thinks that maybe it isn't discretionary. Maybe you should, the Supreme Court has to automatically hear a case between two states, for instance. But the cheese stood alone on that one, and all we know is that Justice Thomas thinks that otherwise the Supreme Court has actually said their original is both discretionary and to be used, quote, sparingly.

Does it go to a lower court in that case, or does it just nothing happens? Correct. They would send it, they would refer it down to a lower court to provide them guidance on how they should rule, basically. And then you just wind your way through the process. Otherwise, it looks pretty similar to the normal federal court process. Okay, so Texas files this lawsuit asking permission to be heard. for original jurisdiction. And the lawsuit basically just takes all of the other lawsuits allegations in Pennsylvania, Wisconsin, Michigan, and Georgia, and puts them all into one lawsuit. But then, like, has this collateral concept whereby Texas was harmed by their states

not counting ballots correctly and following their own state law. and that's the theory of injury. Okay, it doesn't really even matter because there's some other things going on here. One, President Trump has already tweeted today that the Pennsylvania case from yesterday, the Supreme Court declined to take, he has Heismaned that.

New phone, who dis, that case? Instead, he has. He said that has nothing to do with me, fake news, yada, yada. Instead, he has said that, This is the case that everything hinges on that he, as a candidate, plans to intervene in that case, which means that he would also become a plaintiff in that case. And he has tweeted some other things today, like, for instance,

no candidate has ever won both Florida and Ohio and lost. I won them both by a lot. Hashtag Supreme Court. David, you're a big fan of saying that there are a number of things that don't factor in as Supreme Court arguments, one of which is a press release from a senator saying he'll argue the case. Correct. But another one might be a hashtag. Presidential hashtags of the Supreme Court are not court filings. Interesting.

Yeah, that might be a surprise to some people, maybe to the president. Fun piece of trivia, do you all know the last president to have lost both Florida and Ohio and become president? it is John F. Kennedy in 1960. Interesting. But he actually stole the election, so there you go. I do think that might be the theory. Why isn't that in the lawsuit? All right.

So some other side notes about this. Basically every lawyer who has looked at this case thinks that first, Texas's theory of why they get to bring this case. is non-starter. And David, I'm curious about your thoughts on that. Two, that the allegations made in the case, either are rehashes that have already been rejected by the state Supreme Courts in question. And as David just said,

the U.S. Supreme Court defers to a state Supreme Court on interpreting its own law. So all they can do is, you know, some federal law that might have to do with a state law or, you know, you have federal jurisdiction because I sue Jonah and he lives in a different state. But if I sue him about a Virginia law, I can go into federal court on that, but they're still going to defer to what the Virginia Supreme Court says about Virginia law. So that's a big problem for their case. But then there are a couple new arguments that I think David can

summarize best using math. And David, I hate when math is abused. I love math. Math is important to me. It is a passion of mine, and they abuse math. Oh, my gosh. This is criminal math abuse. This is an actual paragraph in the complaint. The probability of former Vice President Biden winning the popular vote in the four defendant states, Georgia, Michigan, Pennsylvania, and Wisconsin, independently given Trump's early lead in those states as of 3 a.m. on November 4th, 2020 is less than one in a quadrillion. And then they go, through the, they take the time to actually type out a quadrillion, which for those wondering at home, it's a one with a grand total of 15 zeros behind it. And they actually

attach like an affidavit or an analysis that is just, it's not, you don't want to call it techno babble because it's not really tech. It's more like statistics babble. It reminds you, and this is something about some of the affidavits and the Cracken lawsuits, it reminds you of, you know, when you're watching Star Trek and they would face this challenge and they didn't know how to get around it and then all of a sudden you would hear

but Scotty, use the dilithium crystals to and it made no sense at all, but it just sort of it made sense in context, but it was nonsense. And that's what... David, my understanding of this math and I haven't worked it out the formula yet, but basically what I think they've done is treat votes like coin flips.

There's two options, Biden and Trump, and the probability that basically of the mail-in ballots that were counted post-election night, what is the probability of that percentage basically flipping the coin to Biden, which would be very low if they were coin flips, but they're not. It's so dumb. It's so dumb.

I mean, we know why these, he lost the lead. He lost the lead because large, heavily Democratic precincts were slower to count their votes and didn't report their totals until later. And we also know one of the reasons why they were slow is that many, in some of those cases, Republican legislatures prevented them from starting counting before election day. And so this was not a mystery in any way, shape, or form. But as for the rest of the case, it's hard to improve on what Professor Richard Hassan said. And this is just a very brief dismissal. Texas doesn't have standing to raise these claims. It could raise these issues in other cases.

It does not need to go straight to the Supreme Court. It waited too late to sue. The remedy of disenfranching tens of millions of voters is unconstitutional. There's no reason to believe the vote. voting conducted any of the states was unconstitutional, and it's too late for the Supreme Court to grant a remedy. Other than that, the case is golden, Sarah. Other than being flawed at every level, the case is golden. And there is precisely zero chance. Zero chance the Supreme Court will grant the relief that Texas seeks. What will be interesting, by the way, is if Justice Thomas

then does feel like he needs, like presuming that they don't even grant. permission to take the case through original jurisdiction, will Justice Lido, who said that he doesn't think it's discretionary, have to say something, or will he just let this this pitch fly by the plate?

So I kind of, it makes me a little sad that this could be a wonderful teaching moment, this entire thing. I mean, it could teach us a lot about a lot of things, but one narrow slice of the pie is I think one of the things a lot

of people don't understand is that when we elect a president, there's nothing in the Constitution that talks about voting. There's nothing in the Constitution that talks about, you know, one man, one vote, all that kind of stuff. I mean, it's, it's, it's, it's in there from interpretation of the Civil War amendments, blah, blah, blah, blah. But look, it's just the president is elected by the states. And I think it was until the 1820s, 1830s that South Carolina didn't have any voting. There's just the state legislature, legislature cast their votes, right? That's the whole thing about the electoral college thing. And it's like a really important part of federalism that people have kind of forgotten. It's sort of like saying the

Senate majority leader, who's a leader of the Senate, is elected by the representatives of a bunch of states. But no one in around the country votes for the Senate majority leader. Similarly, the way the Constitution was really originally conceived was the states would figure out how they would decide this on their own with some mixture of suffrage or whatever, but certainly not universal suffrage. And the states, as a sort of confederation, voted to elect a president who was the, as my friend Steve Hayward likes to say, the proper way to pronounce president is president to give an understanding of their actual role.

They were supposed to preside over government. And I think it's really kind of a shame that conservatives who claim to love the electoral College have gotten themselves into this weird place where they're muddying all of the water in ways that make it make the electoral college seem like an even dumber institution and a more anachronistic institution by just saying it's our we're we're a minority coalition in this country so we're going to use this archaic thing we're going to say some abercadabra words about founding fathers around it, and then we're going to cravenly use it

for cynical purposes in order to obtain power. And I think the real damage being done to the doctoral college these days isn't from progressives. The real damage to federalism as a concept isn't from progressives. It's from conservatives who are using it like, you know,

an old mule that they can just ride for whatever purpose that they want. Anyway, I've just... Steve, when does this end? What are we done with this? I mean, it sounds like we're likely to see the end of these fights in very short order within the next week, maybe, and the elector is on December 14th. And I believe that you'll see more of the reluctant Republicans who have not yet spoken out about this, find that. their voices over the coming week, pointing to these decisions, other court decisions,

and the certification by states, and ultimately the electors to sort of bring an end rhetorically to this, even though it sounds like President Trump will continue to lash those who speak out. In terms of when this really ends, I suppose it depends a little bit on what you mean by this, but I'm very concerned about the long-term effects of this. You had another very good statement I thought from Senator Mitt Romney yesterday, I believe, chastising those who would try to force this into state legislatures, state legislatures and saying in effect, look, the president had every right to his process and, you know, that process is something he's entitled to pursue and they're pursuing it

and, you know, now we move on to the next phase of this. And even that statement, I worry, gives, sort of normalizes what we've come to think of as, quote unquote, the process. because basically, as we've been discussing for a while, it was a series of nonsense lawsuits. It was the ultimate throw it against the wall effort. And I hope we don't get to the point in this country where now after the election, it's just part of the process to file all sorts of these kinds of suits. I'd like to think that Donald Trump is unique in his stubborn.

miss on something like this and his ability to make arguments so detached from reality that he sort of has no shame about them. But I worry that that's not the case, that this process becomes really part of the process well beyond this election. David, are we setting any legal precedents here? Is the Supreme Court pinning themselves in one way or another or hurting their institution, helping their institution? I think overall helping the institution. I think the Supreme Court would hurt. Well, let me put it this way. If the Supreme Court had ruled otherwise in Pennsylvania, it would be such a dramatic departure from precedent and practice. It would be judicial malpractice on a staggering scale. So I think, you know, this is, this is in many ways.

In an interesting way, this is a gift for the Trump-appointed justices, Gorsuch, Kavanaugh, Barrett. It's a layup for them. And this is what I want to emphasize to the listeners as much as I possibly can. These lawsuits that are filed are, they're not even in the realm of serious. With the exception of the substantive underlying claim brought by Kelly, which it was not even in the realm of Sirius to bring it after the case or to seek the relief that he sought. So ruling against these lawsuits is a layup. And what it does is it gives Gorsuch, Kavanaugh, Barrett, an opportunity, an easy opportunity, one where there's no real legal

issue argument dictating otherwise to say, hey, we're our own people. We're part of an independent, a separate branch of government. We will do what we're going to do. And in that way, it's kind of a gift for them. It's kind of a way for them to say, look, we're not, you know, we're not, we should not be known as Trump judges. We should be known as Justice's Kavanaugh, Gorsuch, and Barrett with our own judicial philosophies and our own will. And I think that this is actually, in many ways, it's a gift for the Supreme Court. Is that true? I'm sorry, I just quick, quick legal question short. Is that true about this Georgia lawsuit that was brought yesterday? I saw a lot of chatter about how it was like the first

serious one that had been brought and Eric Erickson was saying how it was a real thing and I haven't looked at it but um is that a nonsense one too I just I factual question I've read that lawsuit and the problem is that the supporting so it purports to this other Georgia lawsuit purports to identify tens of thousands of people who voted who shouldn't have voted um from what I've heard the Georgia contests that the underlying evidence in support of that contention and I haven't seen it. I mean, it's a long complaint that says, say,

60,000 underage people voted or 15,000 dead people voted or, and there's the underlying evidence so far that I have seen is not in the public square. I would be very, very surprised if you had the voting of like 16-year-olds at that scale or dead people of that scale.

There's also, on the one hand, on that topic, the Georgia Attorney General is investigating Stacey Abrams' organization for attempting to encourage college students living in New York to register as Georgia voters

to vote in the special election, for instance. So I do think that's some of where this like theory perhaps came from. On the other hand, this is where Safe Harbor Day, which we celebrated yesterday around the country, becomes really relevant because what, you know,

that is why Safe Harbor Day exists in some sense is that you have to stop filing new elections because they aren't going to change the outcome anymore because Georgia's certified pre-Safe Harbor Day a single slate. And what Safe Harbor Day means is that even if you file another slate post-Safe Harbor Day, Congress, by its own laws at least,

is required to accept the slate that was filed pre-Safe Harbor Day. So there's them apples. So, Jonah, last question to you on this topic. The president has said now that this Texas case is the case that is going to overturn the election. It's the one he's going to intervene in. Like, he's putting all of his eggs in the basket of this case. He tweeted, we will soon be learning about the word courage and saving our country. I received hundreds of thousands of legal votes more in all of the swing states, then did my opponent. All data taken after the vote says that it was impossible for me to lose unless fixed. There's also been reporting that they're about to wrap up

and drop all of their challenges to this. So this last Supreme Court fling, if you will, could be the end. David and I are saying there's no chance the Supreme Court does anything on this case. How does the president react? How do his supporters react? Assuming this is coming pretty quickly, what is endgame about to look like? Yeah. So, I don't think there's any endgame. I think that this is, not to sound like Bill Murray when he's really depressed in Groundhog Day,

talking about how this is going to be a long winter that goes on forever. But this is going to have a half-life to it. And we talked about this a little bit on the Remnant yesterday, which I did with Sarah, which was fun and exciting for everybody, where...

You know, I think Trump likes to keep a lot of options open. I've written about this a bunch. And one of the options he tried to keep open as long as possible was to literally steal the election by lying about how the Democrats were trying to steal the election. And it's outrageous and we shouldn't lose side of the outrage just because it's becoming a boring topic. That said, other options of the TV network, all those kind of things, I think one of the things that he wants to do is be able to set up an alternative reality in his bubble where he lives. that says he didn't lose the election, that he can walk through the Mar-a-Lago lobby

without being embarrassed, that all of the sycophants now have a script to say to him about how he really won, that gives him this connection with his base that he can at least string them along whether or not he runs for president again in 2024. It kind of reminds me Leon Weaseltyer, who was a very mixed bag as a journalist and literary figure,

but very smart, interesting, rye guy. he once said that it was always important in Washington cocktail parties to say you were working on a project just so you sounded like you were gainfully employed or had something interesting going on

and so he would often tell people that he was working on a book about sighing and I think similarly Donald Trump just simply wants talking points at this point. He wants a campaign style talking point to say that he didn't lose and he's getting that out of this. And so the Supreme Court's going to throw this out of court.

He's going to say he was robbed. He's going to talk about how no one else was willing to fight. No one has the kind of courage that he has to, you know, fight for the little guy and all that. And he's going to hold on to that. And whether that's simply a script for a really awful media platform that's all about Trump all the time or whether that is a fundamental plank for running for president 2024, you know, I don't know. I um but that's what he wants he just he you know and also as we talked about yesterday i've been convinced about this for a little while now i think what he would really dearly love is just to have

the number 306 reduced to something so that he could claim he scored better in the electoral college than joe biden did and that's why he'd like at least georgia removed from uh the tally so i I think at this point, all he's looking for is ammo for trash talking for the next four years, and it'll be a real test about who in the Trump cult echoes the trash talk for the next four years. The election was stolen, Dominion, Chuds, whatever.

It's going to be very depressing, but it's not going to go completely away. All right. A footnote on this topic. Ken Paxton, the Attorney General of Texas, is also under federal investigation, his top eight deputies all resigned and turned state's evidence, if you will. Is that unusual?

It's highly unusual claiming that their boss had committed bribery and abusive office. So, Ken Paxton might be in the market for a federal pardon. Yes, it wouldn't pardon him from state crimes,

but hey, knocking out Half of that in the current ongoing investigation would certainly be worth filing a lawsuit of original jurisdiction in the Supreme Court that doesn't go anywhere just to say you tried. And one super quick point on that, to close the loop on a point I made earlier about it's very noticeable who is not participating

in these lawsuits. Who is not on the lawsuit is the Texas solicitor, Kyle Hawkins. That's right. Who has an excellent reputation, former Alito clerk, as as somebody said to me yesterday, that speaks volumes. Yes, Kyle Hawkins, former deputy to another Texas Solicitor General who lives in my house.

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that Joe Biden is president-elect and is proceeding with his transition. You know, I think what we've seen from the Biden transition and Biden's cabinet nominees and other administration leadership thus far until this week has been sort of what we would have expected kind of traditional establishment democratic types. I think progressives who had hopes that Joe Biden would be this Trojan horse for progressives are disappointed. pointed that he didn't pick Elizabeth Warren for Treasury or some of the other folks that were Bernie Sanders for labor was talked about. But none of the progressives while the streams came true. And of course, the inverse of that is that all of the predictions by, not all of the

predictions, many of the predictions by Donald Trump and his team that Joe Biden was a closet socialist who immediately would come in and impose socialism on the country also seem not to and true. And therefore, we've had a pretty smooth transition. One of the announced nominees, Nere Tandon to be director of Office of Management and Budget, raised some hackles among conservatives because she's been such a hard partisan warrior on social media and elsewhere, sort of an uncompromising attack dog lefty going after Republicans. But until this week, it didn't seem like there was likely to be a major fight over somebody pretty significant. And you didn't hear much grumbling to the extent that Democrats and progressives were upset with

what they were seeing. He didn't see much or read much about it. Well, that changed this week in a couple of different ways. I'd say first and foremost was the nomination of or the announcement of the coming nomination of General Lloyd Austin to be Joe Biden's Secretary of Defense. Austin has been retired from active duty for four years. There's a law that requires you be retired for seven years in order to take that position. Twice in the past, Congress has granted waivers for active duty military retired active duty military folks to assume the duties of Secretary of Defense before they reached the end of that seven-year window. and each time warned about the deterioration of civil military relations if they did it again.

And they did it most recently in 2017 when Donald Trump nominated James Mattis to be Secretary of Defense. You had 17 Democrats who voted then against granting that waiver. Some of those Democrats have begun speaking out against granting a similar waiver to Lloyd Austin, which means you have effective opposition, even if they praise Austin and they say they like him and they like, I think, like the idea that he would be the first African American to lead the Defense Department, first black secretary of defense. They nonetheless are concerned enough either about being hypocrites because of what they did in 2017 or substantive concerns about civilian control of the military that they have raised objections. Elizabeth Warren,

John Tester and Richard Blumenthal of Connecticut have all spoken out and suggested that they wouldn't support such a waiver. I think when you look at that combined with skepticism from some Republicans on policy grounds in addition to these waivers, you have a nominee who may be in some trouble. I don't know that we're seeing enough of an opposition to suggest that he'll be defeated, but it certainly sounds like it'll be a fight. So let me. you go to David, the question I have for you is, why are people so concerned about the possibility of a general serving as secretary of defense? I think for most people, that would seem almost reasonable. Like, well, he's got a lot of experience. He knows he's come up through the ranks.

That would seem to make a lot of sense. Why is it so problematic? And why is their bipartisan opposition to these kinds of exceptions? Just for a factual thing, real quick. I think people need to know he's not a general. He's a retired general. He's been retired for four years. The law says you have to be retired for seven, right? Which is arbitrary, isn't it? Like what? I mean, I understand that maybe they want more time, but it's not like seven is a magical number. They picked seven sort of, you know, out of a hat. They wanted some amount of time, but it could be six. It could have been eight that they picked. It could have been four. Well, it had been 10. In the original drafting of the law, and the original law as it was

passed, it was 10, and they changed it in the late aughts to seven. So it is somewhat arbitrary, but they've shrunk the window. Because scientists determined in the 11th month after the sixth year, the stink of the Pentagon finally is shed from your pores and you're a truly independent thinker. I mean, I find this argument, and there are people who disagree with me whom I respect, just to be not that interesting. I think the core argument is that individuals who step directly out of uniform into a civilian suit, but then stay in the Pentagon, have not had an opportunity to achieve the kind of separation, both cultural, relational, etc., that allows them to put on the civilian

control of the military hat. But it's still, these are still people who are directly in a chain of command. And so it's essentially a promotion to be in the chain of command above the uniformed officers, but you're still executing while you're a civilian, you're executing a fundamentally military functioning, your military function, you're commanding, you're leading the military as a civilian leader. I mean, I think it's one of these sort of good government reforms that is, I just don't have a, I don't really care about it. If I were a senator, that would not be my concern about General Austin. My concern about General Austin would have been, how is it that he came to sort of deliver this now legendary and legendary, legendarily flawed assessment to President Obama about ISIS?

that i don't blame him for executing for example the president's flawed order to withdraw from iraq it's a difficult logistical thing to pull troops out of a out of theater and he apparently did it very well but i think that was a terrible decision to leave iraq as events later proved and why did why was his position why was his assessment of isis so flawed i would really be much more interested in that but then again to his credit he turned around and sort of fashioned the main strategy that was then used to go back in and defeat ISIS. So, and I know of folks in the Pentagon who are happy with this pick, who are happy, I believe he's just a really sharp, honorable guy.

So in my view, I mean, if I was a senator, that's what I would want to know. I'd want to know about the ISIS assessment. And if he can answer that satisfactorily, I'd vote to confirm. He's not the, he's not the cabinet pick that I have the real objection to. That's a good cliffhanger. That's a tease, and we will return to you for that. Jonah, the arguments, among the many arguments for the, for this, the need for this waiver is that you have people coming out of active duty. If they haven't waited a long time, they have close relationships with the active duty uniformed officers who,

are running combatant commands, who are on the joint chiefs, who are, and that those relationships might compromise their ability to carry out their, you know, big picture strategic duties in service to the president. Do you find that logic compelling or no? Yeah, I have two things to say about this. I do find that logic compelling in principle, right? The Secretary of Defense is supposed to be the president's person representing the president's agenda at this massive important bureaucracy at the Pentagon, not the person representing the interest of the bureaucracy at the White House. And if you get someone too quickly out of the uniformed ranks, there is a danger of that. What I completely agree with Sarah, four versus seven versus

10, these are arbitrary numbers that you create arbitrary rules to sort of factor out questions about individual character and just have, you want simple rules for a complex question and say here's the cutoff and all that. I tend to agree with David of all the things to get worked up about. I cannot get too ideologically wild-eyed about this particular instance. But what I do think is sort of interesting as an illustration is, and this is something I've been banging my spoon on my high chair about for a very long time, is the, we've heard for four years now, how about the president violates, you know, democratic norms or constitutional norms or whatever norms, right? And he does. And I think anybody who denies that is not paying attention

or is just in the tank. But what happens is that people in response to his violating norms violate norms themselves. And it's sort of a broken windows theory of governance where if that side isn't going to play, if the president's not going to play by the rules, then we're not going to play by the rules either. We're going to leak the contents of his conversations with foreign leaders in the New York Times, which would be unheard of in previous administrations. We're going to write anonymous op-eds in the New York Times. We're going to do all these kinds of things. And it seems to me that this is a perfect example of the analytic, sort of dialectic effect of when one major player in the game refuses to play

by the established rules of the game, that gives permission for the other players in the game to violate them too. And so the reason why we had the waiver for Mattis with Trump is that Democrats and Republicans alike did not trust Donald Trump, but they trusted General Mattis. They're like, okay, this is a case where it's worth violating the norms, to put this guy in as a kind of circuit breaker against the president who we don't trust. And then, what you happen now is now you have a precedent where this is going on. And it becomes, this is how norms go away, is that when one side justifies getting rid of them for one reason, then the other side says, okay, well, then, you know, it's an open question now about whether these norms are active or not.

And pretty soon it falls apart. And again, I think the stakes with this case are very, very, very, very low. But I think it's a good, useful illustration about how some of the damage that Trump has done to the way the system works plays itself out in all sorts of ways. And we're going to see a lot of this over the next four years. We're going to people see saying, you thought it was okay when Trump did X? Why can't Biden do Y? And that is the pattern that we're going to see in a lot of this. it seems to me if we're anticipating that we're likely to see a lot of this over the next four years

we ought to we ought to craft some kind of an audio drop that uh makes a cheers like reference every time jonas says norms so that we hear norms um Sarah you guys three of you can just say norms every time every time um Sarah one of the arguments you heard from Republicans throughout the Trump administration, many of whom were grateful that Jim Mattis decided to take the job and, you know, in effect, tried to strengthen the guardrails as it were on national security policymaking when Donald Trump would propose something internally or sometimes tweet something that went well beyond these norms. They were grateful for Mattis and his efforts to kind of rein that in or at least give the president advice, if not outright, defy the president.

But one of the critiques you heard, usually not in public, but talking with these same people, was that Mattis acted like a combatant commander in the Secretary of Defense role, and that that had real limitations to sort of his ability to see beyond what was in front of him at the Pentagon. A, did you hear any of those complaints and B, do they have any merit? And if they do, is that something we ought to be worried about with Austin? So I don't want to minimize the importance of the Pentagon versus other cabinet positions. But at the same time, he is a minister of the president, the same as other cabinet positions. And every cabinet officer can be drawn from the rank. In fact, it is usually considered a good thing, for instance, if the attorney general has worked in the Department of Justice at some point as a federal prosecutor or as a political appointee, because then they are more likely to understand how the building functions, how the bureaucracy works and can get things done. And so, and more importantly, the president is saying who he believes he can rely on to counsel him. And so I find it. to be bizarre that basically a whole bunch of other folks are second guessing,

frankly, whether Mattis acted like a combatant commander, if the president wanted someone who leaned a little more combatant commander, then that's the advice the president wanted. And he understood what he was doing when he picked General Mattis. And you have to at least assume that. And certainly, I think you can assume that with Joe Biden. Why are all of these senators, Republican or Democrat or anyone else, in the position to second guess

whether Joe Biden really wants the advice of General Austin. And that's where I find the law sort of odd. I think that if Congress wants to say, look, me, an individual senator, I just cannot provide my advice and consent on a nominee that was too recently a general because I think that that, in particular, I have concerns about the sort of military-industrial complex aspect

of it, okay, so be it. To say, though, that you don't believe that the president knows what he's doing and shouldn't be getting advice from this person because they were too recently a general, I think is not actually the advice and consent role, and I think it's bizarre, and I do think it's arbitrary. I would feel differently, by the way, if he were a current general, probably. I might feel differently if he were six months out. But surely we can all be big boys and girls and not have an arbitrary date, but rather a prudential feeling about whether he's been out long enough.

And to me, four years is probably long enough without knowing the man. So that's sort of my take on it. I also did not hear a whole lot of people complain about General Mattis, because in general, the people I talked to were just so thrilled to have an adult advising the president from the Pentagon

and there were all these, you know, flaming rumors out there, that the president wanted to go to war with Iran or the president wanted to do, you know, nuke someone, anyone. I don't think those rumors were actually true by and large, but I think then people thought, you know, Mattis is standing a thwart

and they wanted him standing athwart. So I haven't really heard a lot of complaints. Again, I think it would be different if they were a currently uniformed officer. But if we have attorneys general coming from federal prosecutors and we don't ask how long they've been out of that role and we have

secretaries of state or treasury who have worked in those departments. I'm not sure why, as long as you are not currently in uniform, these senators can't use their mind grapes and decide whether the person's been out long enough. I got the record.

So David, you have a problem with one of the other announced nominees. Who is it and what's the problem? Indeed, I shall now air my grievances. The nominee is for HHS and this is the California Attorney General Javier Bissera. And he, my issue with him is he is quite the culture warrior on the left. And, you know, look, part of it is, to be fair, part of it is his efforts to defend California. California laws that he did not pass that were extremely problematic constitutionally.

For example, he defended a law that required pro-life pregnancy centers to help California advertise for free or low-cost abortions. This was a law that the Supreme Court struck down in 2018. Now, he was attorney general. He didn't pass that. Okay. He's defending that law. okay. But one thing that he did, and Sarah's quite familiar with this incident, he filed a,

and the pro-life activist who surreptitiously recorded Planned Parenthood and recorded a lot of evidence that Planned Parenthood was doing some really shady things with human body parts. His name was, and helped me with the pronunciation, David Dalladden. Is that right, Sarah? I thought it was Delanian, but I don't know. Okay. David Deladian? Anyway, he has hammered him with a prosecution, 15 felony counts based on these undercover videos. Fifteen felony counts.

Now, this is something that was way out of the norm, way out of the norm, for individuals who come forward with undercover videos. You know, for example, in 2014, there was a group called Mercy for Animals that released an undercover video showing alleged animal abuse and cruelty at a duck farm. Authorities responded to that video by investigating the farm. In 2015, another group released an undercover video, that same group exposing apparent mistreatment of chickens. Once again, authorities responded by investigating the farm. here we're talking about the fate of babies in the womb and the authorities respond by trying to throw Delaide and Delaide in jail for a really long time and there was a lot of reasons why the prosecution legal reasons why the prosecution should never have been brought so I think that

that was an extraordinarily punitive act completely unnecessary and then I think also you know one of the things that you need to know given his law he has a very long long record of very aggressive sort of far-left cultural war ideology. And here's a question for him, are you going to finally leave the nuns alone? Are we going to have to go once again have more litigation around the little sisters of the poor, which, you know, if you had to pick sort of one kind of case that for an awful a lot of people said, this is unnecessarily punitive to accomplish in general in the United States of America what you want to accomplish is this persistent effort to get Christian ministries

to cover more and more and more contraceptives for their employees, and among those Christian ministries or little sisters of the poor. And this is something that, why, why? You're talking about a very small number of employees who voluntarily belong to these Christian ministries, often out of a sense of mission and call, and the vast majority of other employers, secular employers, they're still covering all of this stuff under the Affordable Care Act. Why must you extend this into Christian ministries that have objections? And are we going to with a new administration going to go right back in and have yet more another, you know, five, six years of litigation around the Little Sisters of the Poor,

his past record would indicate that, yep, here we go again. It'll be like little, are going to be at Little Sisters 3 or Little Sisters 4, Sarah? Little Sisters, the poorest. Yeah, Little Sisters, the poorest, or Little Sisters, the sistering. I mean, this is a, you know, multiple sequels here to this same case. And so what you have is, you know, really somebody, I think the reason in, If Biden folks were on this podcast, they might say, well, our real interest in him is he's a very capable defender of the Affordable Care Act. And what we want is somebody's going to be able to defend the Affordable Care Act and extend it in particular ways.

But for a lot of conservatives, what you have as a guy who's very zealous, very zealous in not just defending California's unconstitutional laws, but in pursuing punitive actions against pro-life activists. And that is, you know, I think that's strongly objectionable. And unlike with General Austin, if I were a senator in, if I were a senator, I would say no to Becerra. And let's take a break to hear from Gabby Insurance. You know you're probably overpaying on car and home insurance. Sure, you'd love to save money, but is spending hours on your own, shopping for a lower rate to maybe save a few bucks worth it? Probably not. Instead, use Gabby.

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So no annoying spam or robocalls. You're probably overpaying on car and home insurance. See how much Gabby can save you. It's totally free to check and there's no obligation. Go to gabby.com slash dispatch. That's gabby.com slash dispatch.gabby.com slash dispatch. Last topic to Jonah. Yeah. So we're running along, and this is also something that we'll have plenty of time to talk about in the future again. But in lieu of our previous conversations, and also in lieu of our or regarding our conversation last night on the Wonderful Dispatch Live, this is something a lot of people in my world have been wondering about for a while. Put aside the mercenary people or the people seeking a pardon, as you suggest maybe the Attorney General of Texas. is doing. Put aside people who are in it for fame and glory. We all know people. We don't have to name names who very clearly, I'll name a couple names, have lost their freaking minds, right? Who are not just simply doing this for bucks or books or pardons, but actually believe the words that are emanating from their face holes. And a great example of this would be General

Mike Flynn, who by all accounts was once a really serious, honorable, you know, military guy and is now calling for martial law. So the question I've got, and you can go wherever you want with it, and I'll go to Sarah first, is have these people as a rule been crazy all along, but the constraints of Western civilization and institutional norms, norms, kept them on the straight and narrow, or has something happened to make them crazy? discuss, Sarah. So I'm going to take the DOJ alum, Rudy Giuliani,

who I think believes everything that he's saying. And I don't think you can make the argument for Rudy that he's been crazy all along and but for the Lilliputian's ties he would have broken free and stormed about the island. I think Rudy Giuliani was a very different person, 2008, 2001, and when he served in the Department of Justice.

So I don't have a great explanation for what has changed. I know a lot of people are just like, well, he's gotten old. But, I mean, that's not satisfying to me, at least. I'm sure it is to some people. But I know plenty of people, Rudy Giuliani's age, who don't believe all of this. So clearly, age alone is not the factor. But the guy who ran for president in 2008,

you know, for those who don't remember, Rudy Giuliani ran as the uber moderate, like the nearly Democratic candidate in the Republican primary, and his strategy was to skip all of the early states because they were considered

two sort of grassroots Republican conservative, and that he would bet it all on Florida, which was the first not early state in 2008. And so he would wait it out, let the crazy conservatives battle amongst themselves, and then Florida would be the sane state that could really

vote for a deeply moderate Rudy Giuliani coming down from New York, New York City. That strategy, of course, failed miserably because the election was all but decided by the end of the early states. And he had tanked then in Florida because nobody remembered he was still running by that point. But the, I mean, the guy he ran as, and yes, I think McCain ran as a different person in 2008 than he had in 2001. So presidential candidates certainly. change their outward messaging. But McCain's outward messaging change is within, you know, a difference in degree. Rudy Giuliani is between 2008 and now is a difference in kind.

Yeah. Okay. So you have no causality theory to this. You just... I don't. Okay. Fair enough. I'm just noting that it's not, it to me, was not just some slow progression that we

could have seen and that people, you know, who, who are paying. attention would have said, no, the seeds were always there. I don't think so. Yeah. So, I mean, like, David, we talked last night on Dispatch Live about Eric Metaxus. I think he is someone, I'm going to give him the benefit of the doubt and say that he is sincerely losing his mind rather than doing this under some pretext, right? Which is a, I know it sounds like a weird defense of somebody to say, no, no, no, their dementia is authentic and sincere. But I think that's a defense of Metaxus in a certain way. Where do you come down on this? A metaxis or somebody else.

Have they been crazy all along and they were constrained? Or has there just, is there something about the loss of the constraints that not just brings out crazy people, that actually makes people crazy? I'm going to go back to a saying that I first heard from my son's high school basketball coach describing his own press, which is pressure burst pipes. And that is, I think what. has ended up happening is a lot of people have been put under a lot of pressure. And so and what happens when people are put under pressure is not all of them respond well. Some of them it reveals the weaknesses in the joints. And once the weaknesses are exposed, boom. And so I think what's happened is you have people who have, you know, under your invasion of the body snatchers

theory that you wrote about all the way back, was that 2015 even or was that early 2016? No, March of 20, maybe it was 26. I can't remember now. We'll look it up. Yeah. So basically, under the invasion of the body snatchers, gradually you begin to bend. Gradually you begin to compromise and accept a lot of things that were previously unacceptable for the greater good or for the greater cause. But then the way that Trump is always pushing further and further and further, that sort of half compromise doesn't, it's not tenable anymore.

At some point, you just, you either have to stop and cut it off and, you know, pop smoke and leave, or you're in and you're in. And the deeper you get in and the deeper you get in, I think it puts immense pressure on a person on every level, on every level. And, you know, once you get that sunk costs in and you're defending wilder and wilder and wilder things, I just think the way the human mind works, the human heart works, and I've seen this in litigation, where I've seen people lie long enough to where they finally believe the lies, or lawyers argue for a plainly flawed client for so long

that they believe the client is good. I think a lot of this is happening. This time has put people under a lot of pressure, and I write this all the time. I don't think people, you really know who you are until you're under pressure. And so a lot of the previous assessments of individuals were like, I couldn't have seen this company, but we'd never knew we'd never seen the person under their pressure like this. And so that's where I put a lot of this, is that people have been put under intense strain.

It has really helped define who they are. And some people have come through well, and some people have not. And some people, the strain has been so much, it's just kind of broken them. Steve? Yeah. Well, it won't surprise you to think, to hear me say that I think it's a combination of those things, which I don't mean as a Dodge.

I just, that's just the way I see it. I mean, I think when you're talking about Republican elected officials, it's, and this has been sort of something I've learned or I guess appreciated on a deeper level over the past five years, it's almost impossible to overstate how much they care, retaining them. about retaining power, about keeping their seats. So if you're a senator or if you're a member of the House, most of them will do almost anything to keep that spot. And we've seen them do almost anything to keep that spot. I think the conventional wisdom early picking up on what David said was that if you defy the president, if you challenge him in certain things, especially if you do so publicly, he's likely to come for you. If he comes for you, that's likely to occasion a primary challenge and you may well lose your seat. We had, you know, the examples are Jeff Flake and Bob Corker

and Mark Sanford, people who I think thought that they were going to be going to lose their position and, you know, made decisions to leave. Mark Sanford, I guess, actually had a challenge. that was those were were important lessons i think early for elected republicans and so you saw many elected republicans i mean you know and we've talked about this on on this podcast i've had conversations with elected republicans who including people who went on to work very closely with with donald trump in the administration who who said you know i can't stand the guy i think he's wrong about everything i think he's a problem for our politics i think he's demeaning uh conservatism but 85% of my constituents approve the guy strongly and I'm in a really red district and

if I any time I raise even the slightest objection to what he's doing they come down on me so I think you have the sort of self-preservation instinct that explains a lot of the behavior of elected Republicans and and for others I mean I think David is right this some people and again this is something we've touched on here they will you will have a a conversation with them before you go on air or, you know, in a context that's not public facing and they will walk you, they will sound like never Trumpers. In fact, some of them, certainly before the 2016 elections, were never Trumpers and share all the concerns of people who call themselves never Trumpers. Then they go on air and make literally the opposite arguments

of the ones that you're accustomed to hearing from them in private. And it's just hard to square, but to think of anything other than sort of either a sort of distorted sense of team play or hyper ambition looking to get ahead. It must be said, too, that there is this incredibly, and both Jonah, you and David have written about this in so clear and compelling ways, the pulls of partisanship and sort of the psychological effects of belonging to a team are real. that's pretty significant. And you've seen this go the other way, right, where you have people who were, you know, in some cases, some of the hardest of hardcore team players, the ideological or partisan enforcers on the right flip and just become the inverse of that. And I'm thinking of Jennifer Rubin at the Washington Post, for instance. I mean, she used to write critically of Republicans who got out of line. I remember when she was a strong Romney supporter. And anybody, who even breathe the criticism of Romney was likely to find themselves on the receiving end of

criticism from Jennifer Rubin. Well, she's just flipped. I mean, she just basically does the opposite now for Democrats. And she's no doubt part of that resistance culture on the left that I think provides a sense of belonging, provides a team. And you sort of fit in a way that a lot of people who haven't made those choices are kind of left out in the cold. Yeah. Let me let, I'm sorry, go ahead there. I was just going to say that I think for some folks, you know, it's very popular on the right to really pile on to some of the folks who've moved from the right essentially

to saying, look, this whole thing, like Stuart Stevens, for example, was like what was this is book called it was all a lie. Max Boot wrote a book talking about how he's completely and fundamentally changed. I have sympathy for that position given what kind of depravity we have been witnessing. I don't think it is a sort of a thing where you would say when you look at a lot of the depravity we have seen on the right and the cowardice. it's a reasonable position, in my view, to look at that and say, what was really there? Like, what was really there? What was the real heart of all of this? I think that's a legitimate

question to ask. Now, I come from a different tradition. I come from the conservative legal movement. I come from American evangelicalism and from way outside of Washington. And so to me, I feel like there are these very specific core ideas that I think are still valuable, valid, real and true and better for the country and better for human beings that are part of my core conservative makeup that are valid, even if nobody else is agreeing with them. You're going to sit there and say,

no, I think this is right, and I'm going to keep making this argument because I believe it's right. But I think it's very defensible to look at what we have seen in the last four years and for people to say what was I even a part of?

I have a sympathy for that. Yeah, so I spent a lot of time cogitating on this. And, you know, one thing that you and Sarah might want to talk about is on the next AO is, you know, Steve Tell us has this theory about why the conservative legal movement was so adept at and having a transactional relationship with Trump.

And part of it has to do with the fact that lawyers, by, as a profession, are used to having clients that are bad people and are used to negotiating with other players in a spirit of compromise and transaction that gives you a kind of critical distance from the grubby world of everyday life. And I'm kind of glad that that exists because, I mean, it's also why, to your point about why the conservative legal movement is just like, okay, we got what we wanted out of this, we're done with this guy, we're not getting on board for these lawsuits and whatnot. But more broadly, I think, I mean, part of Steve's answer was about people who are doing this

for mercenary reasons. And that's a perfectly legitimate answer. And I think that's the bulk of a lot of people is mercenary or commercial or financial or self-interested or cynical and blah, blah, blah, blah, blah. But they haven't lost their minds. They've, they're just saying, They're just being dishonest, which is a different thing. And they're making moral compromises and whatnot. But then there are other people who, and I kind of think, this is something I've been really wrestling with as a matter of intellectual history, is there is a tendency to think that people,

to treat ideological positions as a form of identity politics. And so, like, if you're a conservative, it's sort of like being black. You can't shed that. there is no internal agency. It's just this is you're part of this group. And the reality is everybody you've known, everybody we've known, has changed their views to one extent or another over the years. That's how human beings are.

When we're young, we're much more idealistic, when we're older and more jaded. And I look back at the tea parties. And even though I wasn't paying enough attention to some of the grifters who were involved in all of that, my experience was that a lot of them were really worse sincere. They thought they believed that stuff about limited government and the constitution and getting back to basics and all of that. And the way I handled this in part of my book

was to say that a lot of them had sort of a psychic break, which was that they, you know, the two most popular leaders of the Tea Party movement were Ben Carson and Herman Kane. And I don't think that was a coincidence. I think it was because they really hated being called racists. And there was this idea that if, you know, we can prove to you we're not racist, here are these people who agree with us who happened to be black and, and whatnot. And then I think part of the problem was they were still called racist for simply opposing Barack Obama. And I think for a lot of them, what this gave them, this gave them the permission to basically become Olenskyites and say, well, they're going to lie about us. We now, you know, we now see what they are

operating bad faith. They don't play by the rules. Why should we play by the rules? And you add into that, this apocalyptic thing, which is a long strain in American culture, the Flight 93 stuff. And if you've already set up the psychological permission to say everything I want to do to win is permitted. And then you add in this notion that if we lose, literally it's the end of America then you've taken all the guardrails off and you can do whatever the hell you want and you think you're being courageous by doing it

particularly when the president of the United States is echoing and encouraging you to do it and I think that has a lot to do with it but I agree with Steve it is a big mix of different motives and it's different for individual people and we should you know we should make very clear I assume that I'm speaking for

all of us here. What we're talking about are sort of intellectual leaders, conservative movement leaders, elected Republicans, you know, that group more than, at least in my case, much more than I'm talking about rank and file Republican voters. Yeah. You know, I know so many Republican voters who say, look, you know, I was facing the possibility of voting for Joe Biden. He would raise my taxes. I think his regulations would strangle by business. I mean, there are all sorts of reasons that I think average voters would make the decision to support Donald Trump as a, you know, by no means am I saying that you've lost your mind if you're supporting Trump or anything. I would have to excommunicate a bunch of friends and family if I believe that. That's not my point whatsoever.

Yeah. It's the leadership. Yeah. We know people personally who believe stuff about conspiracies, about the deep state, about Ogo Javas, helping to steal the election from the grave, that the person we knew five years ago would laugh at you if you suggested they would ever believe that stuff. Those are the kinds of people I'm talking about. I'm not talking about the average person in middle America or on these ghosts who thinks there were peculiarities

with the election, maybe even thinks they were stolen, thinks Donald Trump did a pretty good job, tunes out politics. I'm not saying those people are crazy at all. I'm talking about people who we know, know better. but given by the standard that they demonstrated when we've, you know, five years ago. And I think it's a fascinating, weird thing. Well, and I think that that do you know better is the key. That's the, that's the key.

What is your information set? Because this is something I've told a lot of my friends on the left. How could these, you know, rank and file Trump voters vote for Trump? And I said, I, if you had their news diet for the last decade and you live where they lived, and had the families they had, and many of the passionate interests that they have, you'd vote for Trump too. I mean, this is not hard to figure out.

What's harder to figure out is the person who's in the position to know who Trump is, the person who's sort of taken a position of intellectual or moral leadership, whether it's, you know, in the church or in the conservative movement, possessing all of the knowledge about who Trump is, and possessing a,

record, a record of saying things like, for example, character is important. Competence matters. And then, boom, not just sort of saying, okay, well, hey, I was maybe wrong in my assessment of the importance of character, but like outright denying it that it matters. But, you know, there's one thing that I think is very important that happened culturally that really helped Trump. You know, you know how on the left. Like, if you're branded as a racist, that is the mark of shame.

Like, that's, you know, so many professors, reasonably moderate left-wing professors, you know, on college campuses. They live in fear of that branding of racist, sexist, transphobic, you know, those kinds of allegations. They don't, those don't sting as much on the right as the claim of weakness or cowardice. That is, that is the racism, sexism, transphobia, homophobia on the right. You're a coward. You are weak. And what is the wildest thing to me is that a draft-dodging narcissist

who doesn't so much fight as pitch temper tantrums became the sort of the iconic example of the new conservative man. And that then either the way he acts, which for, you know, in the entire conservative movement, before Trump would have been viewed as repugnant, not as strength, but as sort of fit pitching. And his biography, which before him would have been seen as sort of the ultimate like

prima donna draft dodger, suddenly became the archetype of how you fight and what it is to be strong. And that, to me, is one of the biggest cons that has been put over onto the conservative public. And it's also a club that is wielded against critics. You're just, just weak. You don't know how to fight. What are you talking about? Well, this is how you fight looking to Trump. And it has really, I think, culturally distorted the movement. And it's something we're going to be dealing with for a while. All right. And let's leave it there. Man, I feel like, and now we just have lots to talk about next week. And of course, thank you to all of you for joining us on Dispatch Live for our members last night. We had a great time. We will do it again soon.

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