The Ricochet Podcast - Star Power

Episode Date: June 1, 2018

This week, we take a bit of break from the politics of the day to delve into the culture a bit with our guest Richard Rushfield, Editor-in-Chief of the indispensable Ankler show business newsletter. We talk Roseanne, Samantha Bee, the Disney/Comcast merger, and yes, even some Solo. Then, our good friend and McRib connoisseur John Yoo stops by to a talk about pardons, special counsels... Source

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We have people that are stupid. Do something about your dad's immigration practices, you feckless c**t. He'll... Mr. Gorbachev, tear down this wall. It's the Ricochet Podcast with Rob Long and Peter Robinson. I'm James Lally. Today we talk to Richard Rushfield from The Anchor about Roseanne and television. And we talk to John Yoo about, well, John Yoo type things.

Let's have ourselves a podcast. Bye-bye. Welcome, everybody, to the Ricochet Podcast, number 403. Hope you're having a good summer. You can have a better one if you patronize the fine people who sponsor this podcast. And that includes Man Crates. Man Crates. Buying a gift for your dad should not be that hard, really. But most people spend way too much time and energy shopping for something he already has or he doesn't want.

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Listen, I said last week that we really need you to join. It was Memorial Day weekend. I'm going to say it again. People listen to this podcast. A lot of you are members of Ricochet. We really appreciate it. Some of you are not and are meaning to. And for those of you who not and are meaning to.

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Put it that way. It's less than peanuts. But it means a great deal to us. We have a lot of listeners. We have a lot of downloads. We're trying to build something big here, and really the only way to do it right now is to ask you to join and be a member. You will love being a member. We are the most civil place on the web, and this week is a week when civility seems to be in desperately short supply across the world on in all in all media. But you will find it in abundance at Ricochet.

So if you care about that stuff and you want to vote with a small amount of your loose change, two dollars, 50 cents a month, please go to Ricochet.com and strike a blow for civility. Civility is for suckers. you bleepity bleep. No, we have a code of conduct which keeps people from going at each other's throats, which is great. And we're going to talk about the decline of the American conversation in just a bit, but we want to bring in Peter Robinson to show the antithesis of the decline of American conversation. Mr. Civility himself, you're like a bath bomb of civility. I'm getting sick of all this civility garbage really all right well then unload on this you can't even pull off the bad boy yeah that was the worst i know that was the worst like

tough guy bad boy thing i've ever oh i'm sorry sorry be as gosh darn angry as you possibly can peter about tariffs or about uh the fact that quarter million jobs were added in may uh the latter will irritate people because it's not trump's doing at all it's all obama's economy i'm sure they're saying and the tariffs make them angry because well where do you do you stand? Tariffs should tariffs. There is an argument. It's a tenuous argument. I'm not sure whether it's right or not. Different people of intelligence and knowledge will tell you different things.

There's an argument for tariffs on China. There's an argument that we have to be very careful about China. We can't permit them to put our steel and blah, blah, blah, blah. We get two percent of our steel max from China. There is no argument whatsoever for tariffs on Canada or Mexico. It's just nuts. It's so dumb. It's so dumb. How dumb is it? Well, the idea is that we are going to be in a trade conflict with China.

That is something everyone's known. That's not something Donald Trump invented. That's something that everybody knows, and every honest person from the Obama administration will tell you that, that we all know. We know we're heading to this moment. So the first thing you do when you're going to head into battle is not shoot your allies. Line up your allies.

That's right. you line them up behind you you don't shoot them you don't start fights with them and that's what we've done we're going to need canada we're going to need europe we're even going to need mexico as to pressure china so let's we should be lining them up instead of doing these sort of crazy steel tariffs. Just dumb. Just really dumb. And this, incidentally, the tariff thing on steel is just not about jobs. Steel production in this country is extremely efficient. If we add more steel mills, we won't add that many more jobs.

This is not protecting American workers. It is protecting the people who own the steel factories. It's protecting American capitalists, the big guys. As Bill Buckley once said, the trouble with socialism is socialism. The trouble with capitalism is capitalists. And we see it again now. I'm waiting for Rob. No, I'm agreeing with you.

I think that it's also a problem when – I mean one of the reasons we all favor – a lot of us favor a small footprint on our government is because it inevitably gets taken over by monopolistic or monopsonistic, whatever that is, the interests. And the idea is to create – we should be forcing our industries to compete. When our industries compete, they actually win on a level playing field. So when the playing field is not level, we have mechanisms to enforce that. But steel is just the wrong fight, the wrong time, the wrong enemy. It's just wrong. Correct, correct. James, I also – I did want to say this – the jobs, this is very reminiscent to me.

And now I'm going to do – I failed at the grouchy man stuff. I'll do the old man stuff at which I'm getting alarmingly good. But this notion that the US added a huge number of jobs in the previous month and unemployment has dropped to a new low, 18-year low. This is what it felt like, boys, in the Reagan White House in 85 and 86 when the economy was really taking off, month after month after month, we'd add a huge new number of jobs and the unemployment rate would drop another notch or two. This is what happens after a tax cut. You're absolutely right. I remember that and that's exactly what it feels like. However, the narrative has now been rewritten. The 80s were a very dark time.

And really the thing to concentrate is not on how the economy was doing better and people had more money, but how the United States was oppressing Latin America, engaging in shady deals behind our back, and essentially spending too much on the military in order to make the Soviet Union fall apart and take away health care from everybody in Russia. That's the narrative now. Right. The only good economies that happened happened basically under FDR and Clinton. I think everybody else is just sort of shuffled under the rug. But you're right. I do remember that. And there was a vitality in the rude animal spirits and all the rest of it. Yes. It felt great, especially coming from under a long, grim recession.

And even when things had improved in the late 70s, and there were periods where the economy would tick up, it just never felt like the economy had an American figure to it. It just felt like this went. That's very nicely put. I agree with that, yes. And that's how it felt during the Obama years. And we were supposed to. Right. This that's how it felt during the Obama years. And we were supposed to,

this is what we were supposed to get used to. Right. But I think that to be, to be, I mean, just to be sort of devil's eye for a minute, um, the Obama,

I shouldn't say the Obama economy. I hate it when people do that. It's not true. What, what the economy under president Obama was not nearly as bad as some people like to think. It was actually getting better. Slowly, slowly. Slowly, slowly.

It needed a turbocharge, and it got one. But the reality is that we didn't really enter this great recession we talked about. It was a recession brought upon by a financial crisis. It wasn't a recession brought upon by sense that the system wasn't going to hold. When Reagan came in, it was a sense that the entire American economy was doomed and that America itself was doomed. And say what you like about Obama. He wasn't even that – he was not that effective at creating doom or gloom. It's like even Obama couldn't – and he tried hard as we now know. Even he couldn't take the shine off of sort of the American entrepreneurial energy that had been really a part of – in many ways, under two kinds of administrations,

under Reagan, Bush, Clinton, and then George W. Bush. And under all sorts of conditions, he couldn't destroy that. Nor could he destroy your choice in ringtones, so we're going to leave that at that. We're going to get to this in just a second. That's my ringtone, yeah. We're going to get to our guest, but I want to tell you first of all about man crates because Father's Day is coming up. And here's the problem with Father's Day, right? Dad – wait a minute.

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Our special to Mancrates. We're sponsoring this, the Ricochet podcast. Hooah! Our first guest, Richard Rushfield. He's the editor-in-chief of The Anchor, which is just a great read. Hollywood's daily newsletter feared by millions. You can subscribe, by the way, at TheAnchor.com, and you can follow him at Twitter, at Richard Rushfield. We welcome him to the podcast.

How are you doing? I'm great. Thanks so much for having me. Fantastic. Hey, Richard, it's Rob Long. I know we're going to get to, and we want to get to Roseanne Barr. We want to get to Samantha Bee. We want to get to Joy Reid. We want to get to all that stuff. But I first want to get to

a bone I got to pick with you and your fantastic newsletter, The Ankler. I think you are being too tough on Disney and on the most recent Star Wars release, Solo. I think you're jumping on the bandwagon about what a giant disaster it is, and I think that's a mistake. Can you tell me why it's such a big disaster? You know, you have a giant ship there that needs to – it needs a very strong breeze. There's so much riding on Star Wars and on the Star Wars universe and Lucasfilm and all that, that this can't just be a middling performer to pay the rent there.

This needs to be a – Why does it need to be? They're going to make a bunch of them. What's the deal here? If you queue up all the Star Wars movies they've made, they're making billions and billions of dollars. I don't think alone that Solo underperforming or if solo does half of what rogue one did it will it would still be a successful movie by by uh by hollywood standards but if if it becomes a precedent that every movie comes in at that at that level right that then you start to have problems and you already saw uh something i've actually been bringing on since the last star wars, since the last movie, there's been a dramatic fall-off, much more important than box office, in toy sales.

The sales for Star Wars toys since The Last Jedi has fallen off dramatically since the last one, which I feel was sort of a, a, a leading indicator of, of enthusiasm. Can, can, can we just talk for a minute since we're on the subject of AF Disney, which includes ABC, just to get a very bad week, solo. I will admit to you that solo open to disappointing numbers.

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and see how we can support your business. FBD Insurance. Support. It's what we do. FBD Insurance Group Limited. Trading as FBD Insurance is regulated by the Central Bank of Ireland. Faster at ABC, loss of a gigantic asset. The stock went down that day two and a half percent, which is a lot, especially when Bob Iger is trying to use that stock as currency to buy 20th. I know Peter wants to jump in. I just want to ask you one question about the toys and the performance. Do you see that there's any correlation between the broadening of the – the attempt to broaden the appeal of Star Wars in the sense that – euphemistically I'm trying to say what I'm really trying to say is they got rid of all the boy heroes, girl heroes now, and they launched Solo without a star in sight.

There's no stars in that movie. Is that the problem? I mean, if you were sitting in the Bob Iger chair, would you say, bring back the dudes and put in some stars, and you'll start moving the toys again, and the boys will come back to the theater? Am I just guessing here, or is that something? that's within range. I think the appeal of Star Wars is you had three characters. You had Luke, Han, and Leia. And they had this triangle of friendship and affection. And they had a happy

ending at the end of the last time we saw them before the reboot. This series came and threw that happy ending away, threw away the characters, essentially, and introduced a new gang of characters that, as you say, tried to broaden who they were. It weren't just this young swashbuckler type. And those characters have not caught on.

They just are not flying off the toy shelves. And they've tried desperately to make these characters be the new Luke and the new Han and the new Leia, and it's just not clicking. Well, it's clicking in some ways. I mean it's making billions and billions of dollars. You're saying – you're suggesting that in two, three, four years it won't click at all. I think that you're still seeing a residual affection for the – that this is a – the Star Wars universe is basically a fanboy – has basically been a fanboy tribute to the original Star Wars – to the original Star Wars, the original Star Wars, basically two films that were great and beloved, and that attempts to move it forward to something new,

whether it's in these prequels or in the new characters they've introduced. I'm not an expert in Star Wars fandom, but I just don't see that Rey has become the new Luke Skywalker. Well, the problem is,

this is James Lelix here in Minneapolis, I saw the first Star Wars when it first came out and saw it ten times in the course of the summer, so I've been there since day one. Jedi was the first movie that I didn't go to see right away when it came out, and Solo was probably the first one I'll see when it comes out on DVD.

The reason isn't necessarily because they've swapped out the characters for female models that aren't as great. You get that sense. I know people are complaining about Soy Lo and Soy Wars. It's something that you mentioned in the Anchler in your discussion of what's going on at Disney. Point six, Jedi's on the head of a pin.

You note they're retreading references and reverential reruns of the original story over and over and over. With a galaxy this big, why can't Disney come up with the imagination to tell stories from this world that don't have to do with the same bloody families we've been following for 25, 30, 40 years? Yeah, and who is actually a Skywalker and who isn't? Who cares? I think you have a generation of people, the producer Kathleen Kennedy, J.J. Abrams, Who cares? for the original series just keeps him in thrall of rehashing this same family line and these same fanboy questions of where did Chewie get his nickname over to death here. And supposedly Rian Johnson is working on a new trilogy,

a new standalone trilogy that has nothing to do with these characters or just somewhere just happens to be in the same galaxy. And we'll see what that is. Richard, Peter Robinson here. Actually, that's an interesting question. Marvel Comics managed the switch across, what, three generations now. And Star Wars is having trouble managing the switch from generation one to generation two.

But enough of that. I have a business question for you. Yes. 21st Century Fox Entertainment assets up for sale. Disney's offer, $52 billion in stock. Comcast's offer, reported offer that they're putting together now, $60 billion in cash. You're a major shareholder of 21st Century Fox.

Which suitor do you prefer? Which deal do you hope gets done? Well, I mean, if you go with Disney, you're betting on, we're betting as the suitors enter this new world where revenues are largely going to be driven by these giant streaming services that Disney is going to be able to hold their own there. And that's a reasonable bet to make. I took my kids to Disneyland a few weeks ago. And it's just like the number of characters and the number of stories that they have that that it's amazing.

Real meaning. And I mean, we go from the Muppets to to to Frozen to Alice in Wonderland and Snow White. It's it's not to mention Star Wars. It's they just have so many assets to bring to the table. And I think there's no other entertainment company that's that sort of sitting on that giant barrel of affection to turn it in to something new to compete in this world. on on them and um they disney still hasn't presented a coherent strategy for what they're uh for for how they're going to take them on and what their what their service is is going to be and it's starting to become they they they started late now they're distracted by the the fox uh deal and uh that has to be has to be worrisome about where they're headed. Got it. Got it. Hey.

Okay, Peter, sorry. No, no, go ahead. Well, I was just – so you go ahead. You know more about this business. Your questions are better. I'm shutting up. Go ahead. Hold on. Answer your question, Bernie.

I think I would still take Disney. You'd still take it. Okay. You would take a share of Disney, which has now a CEO chairman at the helm in his 70s, no second in command in sight, and you would take that this new world of streaming services, it looks like from a distance, it looks like Netflix just has this insurmountable world and Netflix will become television. Can I push back on that for a minute? Yeah. I mean – and I know we want to get to Roseanne and we want to get to Samantha Bee. We want to get to all this stuff.

Before we do, 10 years ago, there was no Netflix. Not like this. The Netflix explosion is – what was it? Happened five years? So this advantage that Netflix has in creating a business, which essentially has no barrier to entry if you have the IP, if you have the intellectual property, and you have the content. It seems to me that the lesson of Netflix isn't it's hard to do. The lesson of Netflix is that it's easy to do. If you have the resources, you can do it.

And in a promotional arm, you can do it. The barrier to entry now is nothing. There's no capital expense here. Netflix is desperately trying to create enough content so that they don't have to license any more movies from Hollywood Studios because they're not going to be allowed to license them anyway. So I don't know. It seems to me that almost any rich person could start a streaming service and make a go of it. Well, Netflix had this head start because all the studios licensed their content to them very cheaply. So they were able to build a service that out of the gate had all this stuff you can come watch, and they were able to do that very, very cheaply. So they were able to build a service that out of the gate had all this stuff you can come watch

and they were able to do that very cheaply. No one's going to be able to do that again. So it gave them a head start. But as you say, Netflix, the Netflix proposition was very much up in the air until they had done a couple shows. They had done Hemlock Grove and they had done

Lillehammer. Lillehammer, right. Not saying the word on fire. And then they do one show, House of Cards, which God knows how many people watched it but got a lot of chatter. And then they become Netflix. Richard, Peter Robinson, one more time. I'm sorry. This fascinates me, and it's a question that Rob won't ask.

You'll find out why in a moment. Here's the question. So Netflix – there's more and more money gushing into Hollywood. The question is how fixed are the creative assets? So you have on the one hand when the voices of The Simpsons went on strike some number of years ago and Fox was giving them a lot of trouble and leaking that they could replace this person or that. Everybody knew, no, you can't replace Harry Shearer. There's only one man who can do those voices. You're taking a big risk there. It's a fixed pool of talent. On the other hand, good Lord, we live in a country of 330 million people. If money is being dropped in Hollywood, writers will show up. Kids will learn the skills.

So really the question comes down to this. How replaceable, how easy is it? If you're a rich person, you want to have a go of an entirely new service. How easy is it to find Rob Long's? Shut up, Peter. It's hard. There's only one Rob Long. You're sure of that, are you?

Even I'm not sure of that, but go ahead. People should pay whatever they need to pay to get that one. How elastic is the talent pool? It's very... To make a movie or a TV show right now,

all you have to do is take your phone and point it at something. To make a good one is extremely hard it's uh you know i when i started out uh just one of my first jobs was a script reader for uh for miramax at the time and i i i read i did you know they call coverage on the scripts i these these studios get submitted hundreds and hundreds of scripts a year. So I read two scripts a night and would write synopses of them and, and, and give the recommendations,

whether the, the actual executive should waste his time reading this, the script. And I think in two years of reading two scripts a night, I give a, I gave a should consider to maybe three scripts. So there's a world full of talent and a world full of people that

to get the skills to do that well is very, very hard. And even if you look at Netflix, there's a million shows on that service that you've never even heard of because they're just not great. So it is hard to do and it is expensive to do. And if you are ABC and Carsey Warner, you were spending around $3 million an episode to do Roseanne.

Roseanne was a huge hit for them. I mean it softened a little bit as the run went on, but it still was a very, very powerful half-hour comedy and was in many ways a keystone of their fall schedule. So Roseanne at 2 in the morning starts tweeting stuff, some of it's crazy conspiracy theories mean, I don't know how, I'm not trying to say this in any way other than condemnatory, but old school racism, racism from like, you know, the old days. And they fire her and they cancel the show. Would you have done that? I think that if you had, what she said was so bad, there was no explaining it away or walking around it.

I think the advertisers would have abandoned her. The other members of the crew would have – it would have been a story every day for the next two years about who's standing by everyone involved in the show. Every, every advertiser, every executive would have been forced to take a stand on condemning, uh, right.

I mean, it would have been a, just a quagmire that, that, that never, ever ended. And, uh,

here's the, here's the rumor I heard. And I don't know if it's true. You're the reporter. You should find out. That going into Upfronts and putting it on the schedule and even having this person as the front, as the face of this popular show, Disney, ABC was aware that it was trouble for advertisers. Advertisers are now not looking for trouble.

They don't want anything. Why look for more difficulties than you're going to get anyway randomly? Why put yourself in a position that all advertisers have made their peace over the past 10 years with the fact that there aren't any big TV hits anyway. You have to buy across the schedule. And they were already on notice. So this was the last straw, but it was invisible. All the straws up to this moment were sort of invisible to us.

Have you heard anything like that, or has it just been they woke up one day and thought, nope, that there's no lead into this? I mean, I've heard murmurs that it might not have been the giant moneymaker that you might have thought it was, and all that you say could be true, but I just think there was no... I don't see how they could have done anything else than what they did in today's environment. It would have consumed the entire company, and they would have ended up not being able

to make money off it uh in the end so i i the the ground may have been softened but uh but for a show that big you cannot be cannot be the star of a show that big and be right things like that um and i mean the the thing i've talked to a lot of producers and executives about is so you're setting up a movie now or you're setting up a TV show. So for the next three years until the movie comes out or 10 years until the until the show ends its run, you've got to go to bed every night. You've placed the future of your company in the hands of actors and their Twitter accounts. How do you go to sleep at night? You've worked with some actors. You know that they can be interesting personalities.

That they go out with some friends. They tie a few on. They make a joke, everyone laughs their head off and decide to share it with the world, and your company comes to an end. How can you sleep at night knowing your future is in those hands? And I haven't gotten a good answer to that yet. No, I guess you take Ambien, which is what Roseanne blames the whole thing on to begin with.

Well, here's the last question then. You're absolutely right. You've got Twitter and you've got stars who are loose cannons. It's like waking up every day to 12 Roger Mitchum reefer busts. In the old days, you had this system, the studio and publicists that would shield actors from the consequences of their own idiocy. But now, with this flamboyant, outrageous, promiscuous broadcasting of every thought that comes into their head, here's the thing. Is there this great desire for a standard again? Because you have Roseanne saying one thing, which panics everybody and throws everybody in the unemployment line.

You have Samantha Bee saying something else that causes a couple of advertisers to suspend, but nevertheless has to be picked over and figured out whether or not it's worse or better than what Roseanne said. It seems that there's a – is there a desire for some sort of standard to which people will be held in all accounts so everybody knows what the lines are? Nobody knows what the line is anymore. Well, that's the irony of this whole situation. It's in the context of a larger culture that celebrates profanity, celebrates people being as reckless and unhinged as they can and that, you know, uh, you know, practically calling on its stars to,

to be screaming and throwing feces, uh, around their cages, uh, every morning. And it's, uh, it's, it's this sort of barrel that the media has got, got themselves there that, that, that, uh, that studios have gotten themselves into is that to get attention in this, in attention in this environment, in this day and age, you have to be sort of unhinged and profane and bombastic. And the sort of polished, smooth personalities get run over and ignored, but we're also in a situation where there's no tolerance for saying anything marginally

irksome to anyone on the other side. I think the Roseanne experience is destined to be repeated as more and more loopy personalities are raised up and then, uh, brought down for exactly what they, they were raised up for. Marjorie Erickson is going to be the next name of my,

uh, my Twitter account. It's your punk band. Exactly. The phrase I liked there was smooth and polished personalities get run over story of my life Richard hey thanks for being with us in the podcast today everybody ankle your way over to the ankler and read some of the funniest most insightful and uh just darn gosh good reading

about Hollywood and if you don't care about Hollywood you should because it's American culture at large and small thank you Richard, Richard Rushfield, for joining us today. Thanks so much for having me. Thank you, Richard. I can't say enough about The Anchor. It really is great. It really is great. I don't even care about show business, but if you like good journalism, you'll love Richard.

To paraphrase Trotsky, you may not be interested in Hollywood, but Hollywood is interested in you. I think when finally somebody uses that quote on Trotsky himself, it will have reached its end. You know, but he's absolutely, I mean, imagine being a Hollywood executive going to sleep at night as he noticed and knowing that these people are out there just saying what they say and what you're going to wake up, it would be enough to make somebody tear their hair out.

Right, Rob? Oh, yes, boy. I was racing to that and you beat me. Yeah, I had to cut you tear their hair out. Right, Rob? Oh, yes, boy. I was racing to that, and you beat me. Yeah, I had to cut you off at the pass. That's because hair is not something you want to turn away from, tear out, if you're sort of one of those guys who's got less of it than you used to. There's nothing wrong with that. It happens to a lot of people. I started losing my hair when I was in high school, for God's sake.

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And it's a free month of treatment at Keeps.com slash Ricochet. Keeps. Hair today. Hair tomorrow. And our thanks, of course, to Keeps for sponsoring this, the Ricochet podcast. And now we welcome to the podcast John Yu. You know him, the Emanuel S. Heller Professor of Law at the University of California, Berkeley, co-host of Ricochet's Law Talk podcast, player of squash, consumer, and gourmet at McDonald's, finest casino gambling. John, you know, here's the thing. We brought you on because previously presidential

pardons have been a thing of just absolute purity, with no ego or politics involved, and now they're being weaponized. It's more a sign of the fascist authoritarianism that is creeping across the land. Creeping, dare I say, crushing the individual spirit. How are you dealing with this pardon situation as it's rolling out this week? Oh, I just got back from Hawaii. I'm still thinking about spam sushi. Yeah. Which is a more, you know, McRibs, which I love, are just a glorified version of.

I just realized the connection. I had no idea. But pardons, the thing about pardons is, one, it's one of the most unlimited presidential powers. There's only two restrictions on it, which are in the text of the Constitution. One is that you can't pardon someone for impeachment, and two, you can't pardon someone for state crimes because that's a different legal system. Other than that, there are no limits on the pardon power. The president can pardon anyone for any reason.

He doesn't have to give a reason. And presidents – because of that, presidents have traditionally been pretty cautious about it. Usually you see a rush of pardons more at the end of a presidential term rather than in the beginning. Second point is – I don't know. I know Dinesh D'Souza. I've talked with him off and on over the beginning. Second point is, I don't know, I know Dinesh D'Souza. I've talked with him off and on over the years. I think he had a pretty good case for what we call selective prosecution, which is almost impossible to prove. And the idea of that is, you know, we generally give prosecutors a lot of discretion to pick the cases they need to to make sure the limited resources we have in law enforcement have the biggest bang for the buck but i i i mean i think de souza was singled out because he was

one of the most trenchant critics of president obama i mean basically what he did is he encouraged two employees to give money to the candidate of another friend of mine wendy long who had no chance in hell i mean she did she even get 20 points i mean she was running in this would have been worth your life to try to tell that to her at the time though john oh really is that right oh believe me i mean go ahead running as a republican for new york senate never had a race before never ran before for anything major. And, you know, she's like, Wendy's kind of like another

version of Laura Ingraham. Exactly, right. So Dinesh didn't do anything wrong? They singled him out? What he did was common? He violated federal law by getting people to give too much to Long's campaign and promising to reimburse them.

That is a violation of the campaign laws, but usually most cases like that are handled by the Federal Elections Commission and are not done by the criminal process. Usually you pay a fine. Look, if people went to jail for campaign contributions, a lot of people in the Hillary and Trump campaigns would all be in jail right now. So to go with the heavy hammer of criminal prosecution for a few thousand dollars over the campaign to a loser candidate who had no chance, to me, I was like – but it's almost impossible. It is basically impossible to prove selective prosecution. So the only real solution to it is presidential pardon. So I feel I have much more sympathy to the pardon here than others. The third point I make is I do think Trump is kind of wasting the pardoning power because he seems to be really attracted to pardoning celebrities.

People have been on celebrity apprentice uh people have like very high profiles even though you know like just so sheriff joe even though i don't think there's his if anyone should be upset it's over the parting of sheriff joe or under obama the parting of chelsea manning those are much more important cases get worked up about than dinesh de souza or uh you know what's herher-face, sort of the... Martha Stewart! I was going to say the funny homemaker who made a fortune by baking cookies on TV. That's a highly, highly reductive way to look at Martha Stewart's business empire,

John. But in a case of selective prosecution, it wasn't selective, but it does seem to me that Martha Stewart was investigated for insider trading. They could get her for that. So did seem to me – it does seem to me like there should be no law that says you can't lie to anybody you want unless you're under oath. Yeah, I don't see that any of this sort of – so if you look at what the framer said about why to have the pardon power, there's two reasons. I don't think any of them apply to her. One is because the punishment is so outrageous. The law just sometimes – believe it or not, the legal system does produce absurd results. And so you want to have a system where even though the jury followed the law, judges followed the law, just this is such an extreme – like the person who steals a piece of pizza for a third's felony and gets sentenced to life, a lot of people might have a problem with that. That's a good use for the pardon power. The other time you use it is – this is interesting. It doesn't get used very often is after riots, after civil war, and you want to offer pardons in order to restore what the framers called sort of the public tranquility.

I don't see either of those at issue with Martha Stewart. I agree with you. Martha Stewart did lie to investigators, and I don't think she did anything. I don't see either of those at issue with Martha Stewart. I agree with you. Martha Stewart did lie to investigators. I don't know, John. If you listen to Rob, he sounds pretty worked up to me. He needs more TV shows to work on after his successful run with Roseanne Barr. Spam sushi with John Yoo. I don't see a bunch of people lining up.

John, how do you make sense? I mean, just to twitch gears for a minute. How do you make sense of the two competing narratives about the FBI investigation that intersected with the Trump campaign? So I'm going to give them the benefit of the doubt and say that's what happened. On the one hand, we hear that they were investigating something. It went into the Trump campaign, so they followed it within the Trump campaign. They were not spying. They were conducting surveillance or undercover investigation of people, not of a campaign.

The Trump campaign says, no, this was spying. You were as politically motivated. The FBI responds, how could we, we couldn't possibly win. Whatever we did, we were going to fail. How do you, in your experience with the Department of Justice and with some of those people, how do you think they got to the decision? How do you think they got there, got here into this hot water? What were the steps that they, that as a bureaucracy and as decision makers they took that got them to this place where

it seems like no matter what happens, there's going to be a permanent smear on the DOJ and the FBI? Yeah, that's a good question. And I have a lot of respect having worked with them for the FBI, the sort of ground-level FBI agent or the people who are working the CIA and the NSA. I think these are actually – if Trump should train his fire on anyone in the state, the career bureaucrats there who are working hard to protect our security. It's actually – if you look at the facts of all these cases, I think it's the political appointees, the people who were elected or put into position by President Obama who are like this thin sliver of political appointees at the top of these bureaucracies. They're the ones who actually are abusing the powers, not the permanent people as far as I can tell. Second thing is if you – whether you call it spying or not, the government does try to conduct surveillance to try to prevent foreign governments from carrying out espionage and foreign influence in our politics and our government to steal national security secrets. So you're right, Rob. You're going to have to make a decision once you start learning information that the Russians or whoever might or might not be trying to infiltrate the Trump campaign. But third, I think there should be a probe of how these decisions were made because I can't believe the FBI went out on such a limb to use these extraordinary, really extraordinary powers to conduct surveillance in the US on such thin evidence. I mean I've met Carter Page.

He's a weird guy. He's like – he is at the very periphery of the campaign. Like you wouldn't – it's like with you, Rob. It's like if the guy who's like – I don't even know what a gopher does or all these weird names at the end of the credits of shows. But like whatever, the intern who gets coffee for the big press, Rob Long. And so because that guy took a trip to Moscow, they started putting secret wiretaps on every phone number everybody on your production team used. That's sort of what happened here that i think that what you would normally do what investigators would normally do is they would go

to the they would go to the high level trump people and say do you know well what's who is this carter page guy what is he doing do you know he's been talking hey you know this guy car page or papadopoulos they could just be big mouths making stuff up. And you use that to justify a FISA warrant, which is the most powerful form of surveillance that our government can use. So I think that suggests something was wrong. Not that there was a lead and not that you'd followed up, but that you use this cannon to respond to this little pipsqueak guy. Okay. to respond to this little pipsqueak guy. Okay, so what you're doing here, John, is confirming that Devin Nunes has had reasonable instincts here.

He thinks he has grasped a thread. It's a suspicious thread, and now he's trying to follow it all the way back. And here's my question. How is it – I mean Congress is established in the for what is the first article of the constitution congress comes before the executive branch devin nunes is it was just alphabetical order i think are you serious no i'm just kidding see you know my reverend third great mind of john you is such i don't say anything you've said john and it's pronounced congress speak congress yeah so here's the deal how is it how is it that the

justice that rod rosenstein gets to say to devin noon is nope you're just not seeing this and then he gets to say look if you release that you're going to be putting people's lives in danger. It's high-grade intelligence. And then when it's released, it's clearly not high-grade intelligence. They've clearly been lying to Devin Nunes and his committee and to Senator Grassley and his Senate committee. How does – what are the rights of the DOJ and the FBI in withholding? Clearly, Congress leaks like a sieve. That's the other side of it.

They must have some rights to use prudence in releasing information. But on the other hand, it just seems to me absolutely astounding that the Department of Justice gets to stonewall oversight committees in Congress month after month after month. Explain. And also the real solution is President Trump, ironically. Oversight committees in Congress month after month after month explain. law school, he's the head of the FBI, he's not covering anything up. And I think Nunes is, as Congress does, has this legitimate power of oversight. If you think about it, that's the fundamental power necessary to make legislation sensible, because you've got to know how the government's working, what it's doing, in order to give it money or not, to pass new laws or not. You can't do that unless you know how the government's working today. And so the Supreme Court has actually said one of the most important powers is for Congress to conduct these kinds of hearings and investigations to evaluate whether its money's being well spent.

So Congress has this right wholly within to say, I think the Justice Department abuses these broad powers we trust them with, and I want to find out how they use them. The other side, I think the Justice Department abuses these broad powers we trust them with, and I want to find out how they use them. The other side I think actually reasonably is saying, look, if we have to provide to the Congress all our files, all our confidential informants, every time we do a case, one, no one is ever going to cooperate with us because you never know when we're – some crazy congressman is going to blow it open in public. And two, a lot of people may never want to work for the Justice Department because they don't want to have every single decision they make picked over and attacked by these elected politicians. You've got to have some kind of – and Spooncourt said this. It said in the United States v. Nixon, the Watergate tapes case actually. The court said, when it comes to law enforcement, diplomatic, and military secrets, we give the executive branch privilege to protect the information. Now, here's the thing.

Usually, I've worked on both of these kinds of cases on both the Congress side when I worked in Congress and the executive branch. They often go to the courts. The courts always try to avoid deciding them. They encourage the branches to cooperate. But here's the interesting thing. In this case, the weird thing is the president and the Congress are on the same side. President Trump is actually encouraging new news. He's tweeting, he's giving speeches in favor of Congress's. So the president actually – all this stuff, classification, secrets, those are all subject to the president's discretion. So the president actually can and has in the past say, I order the declassification, and I order all the people involved to cooperate with Congress and to go up to the Hill and talk to them. He can snap his fingers, make the whole conflict go away. Why isn't he? Well, one, I think he, it's really weird. I actually, in a weird way, I kind of think he likes the story to go on about how there's this conflict

between the two branches. He kind of likes this deep state story. Although, you know, as someone who's worked in the executive branch, the part of the government that responds instantly and quickly to the president is the deep state part he's complaining about. Yeah, you could try – you want to get the EPA to change mile per gallon requirements for cars by one mile per gallon. That's going to take years, right? But you want something changed in the national security bureaucracy. That happens. They have this line in the military where they say when the president gives an order, it drops like a stone to the privates who carry it out. So it means like it instantly falls all the way from the top down as fast as possible. So if the president wants to end all this stuff, he could order it, and it would happen right within a week.

But I think he kind of likes this idea that he and the congressional Republicans have this fight with this permanent state, and here's a great example of it. I think you're absolutely right. As long as something is going on on the opposing side, why not just have this to toy with and play with and provide a competing narrative? That's the weird thing about this. In Iran-Contra and Watergate and the rest of them, there was at least one narrative. Did this happen, and was it bad? Now we have these two completely views, different views of this, and they're never going to be reconciled, no matter what happens.

There's no closure to come out of the end of this. There's just an attenuation of the deep state against him or, as the left sees it, the evil Russia-comprised Trump fascist against the good guys in the government. So, yeah, we'll be talking about this in a year or so. And we'll have you then, John, unless, of course, you've blocked all of us on Twitter, which is illegal. We just want you to know against our First Amendment. So don't be blocking and do be coming back to us as quickly as you can.

So thanks, John. And everybody listen to the Law Talk podcast, of course. Thanks, John. Thanks, guys. Great to be with you. Thank you, John. I just remember, why do I remember how many years ago, talking about the Russian servers that were pinging the

computers in Trump Tower. Remember that? Oh, yeah. Remember that? Yeah, I remember how many years ago talking about the Russian servers that were pinging the computers in Trump Tower? Remember that? Oh, yeah. Remember that? Yeah, I remember that. Yeah. And that led to stories in The New York Times. And that led to Trump saying that he was being wiretapped and all the rest.

All of that stuff. I mean, we have gotten so far away from where this began. And when I was talking about the competing narratives, it's entirely possible that there was a desire to, quote, collude, end quote. I mean we have Trump Jr. going up to meet the Magnitsky lawyer, right? That whole thing that was set up because we got some stuff on Hillary's email. Oh, great. I love it. And then it turns out to be about sanctions and the rest of it. I mean that shows them kind of leaning into it. But that's not the whole – that doesn't mean necessarily that there was some Trump-level coordination to hack the DNC, which wasn't really hacked.

There's no clarity to this anymore. It's such a wet plate of spaghetti, and we're trying to use boxing gloves to figure out where the strands end. And there's never going to be any closure. That's the thing, and it won't matter if the economy is good pretty much. Yeah, I mean I was just going to say about that is that there is an explanation, which isn't an explanation that I think satisfies anybody. But one of the explanations is that these are amateurs. The Trump kids are kind of dumb, and they kind of do whatever they want to do, and they don't realize that there are consequences,

and that they're just not normal. This is new to them. Maybe they're not dumb, but they're certainly dumb in this world. And they just said, yeah, I'll have a meeting with you. I don't care. That's the sense I got from that.

It was dumb. In the same way that trump tweeting this morning during his executive time hey guess you're going to be really excited to see the the jobless numbers today later today uh you know it's driving everybody crazy because well that's potentially it gives rise to insider trading did anybody else know that all that stuff is like no he's just sitting in his underwear yeah and he's got a piece of good news and the guy is as we are now after all yeah he's well i mean it's later for we're up for where we are peter um but you know he's just he's just an incontinent person in the full sense of that phrase he just can't keep anything in

incontinent in his underwear i really wish you hadn't put it quite that way. That's an image that's going to keep me up tonight or would, except that I have the best bed you can possibly sleep in. There we go! That was great! He saved it! I just wanted to get away as quickly as possible from that and tell you

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promo code ricochet for fifty50 off select mattresses. Terms and conditions apply, of course. And we thank Casper for sponsoring this, the Ricochet podcast. Well, before we go, a little bit of popular culture here, I suppose. Apparently, I'm the one guy in the world who didn't watch the Americans, but then apparently, like the numbers were, 900,000 for the series finale. Is this another Mad Men incidence where you have this cultural thing that possesses the chattering elites on the coast, but actually the rest of the country just shrugs their shoulders because they're watching Fox or CNN? I'm happy to go on this one.

I have not watched the finale yet. My wife and I have started the last season. Each of the first three shows has been so excruciatingly slow that it's turned into homework. I don't know whether we'll ever get to the finale. The problem that I had with a show about commie agents is I wanted them to be captured and killed in the second episode. I mean, basically, that's it. Find them, put them in the chair. They're rats. I really didn't feel like getting particularly involved in this.

It was like there was some other series about a brilliant yet schizophrenic CIA agent. Mandy Patinkin was in it, and he's always great. But she's up against this guy who may or may not be a sleeper cell agent, but he probably is. And I watched the first episode, and I said, I just want to cut to the point where he's caught and captured, and that's the end of it. I don't want to spend an awful lot of time worrying about the moral intricacies of this. I just don't have the time or the patience for that, especially the idea of a schizophrenic. But brilliant CIA agent. Rob?

Right. Well, I mean, I think that your first question is probably yes, that it is one of those niche shows that no one else sees, but it seems to be a lot of people in the media want to talk about. I mean, it was very well reviewed. It's been on for a long time.

A lot of these shows that are high quality, you know, they really don't hit their... In a weird way, they don't really have their big moment until they're over. And so this was one of those things that – this is kind of something that the TV business has to get more used to is the idea that you put a lot of money into this jukebox. You hope it pays off. This show may or may not pay off. It may or may not be financially viable. Could this be the case?

Could this be the case that going into the last season, the writers said, oh, Lord, we're tired of these characters. We know how this ends. We know how to give them a big final episode. But, man, we really don't have that much material to get to the first through ten hours to get to the big finale. Could that be possible? That is definitely possible. Got it. That's highly likely.

I'll share a very quick story about a show that was on HBO. It was called Big Little Lies. I wasn't part of the production, but I was familiar with people doing it. I was doing a project with them at the same time, so I was hearing about it. They sold 11 episodes, or something like 10 or 11 episodes, maybe even 12 episodes to HBO.

David Kelly is a brilliant writer. He's one of the great, great writers. He did L.A. Law, a bunch of things. He's a wonderful, wonderful writer. He was the writer, and he's a big deal. He's got a lot of clout. And he went in with two movie stars, and he still had a lot of clout. He went in with Reese Witherspoon and Nicole Kidman.

And they got this project going, and he's writing it, and he calls them up and says, you know what? It's actually eight episodes. It's not 11. And everybody hits the roof. Like, what are you talking about? It's 11. We sold 11. It's got to be 11.

And he said, no, it doesn't. It's got to be eight. I'm telling you. I'm telling the story. The story is going to be done at eight. And I'm sure they went back and forth. Well, can't you stretch just a little bit? You know what? It's just three hours. We'll do some slow pans across the Monterey Bay.

Right. And he said, no, it's eight. It's eight episodes. That's what it is. And because he's David Kelly and because he's smart and because he basically he doesn't have anything to prove except he's just really good at what he does. They made it an eight. And an eight was – and the irony is that the eight that they made were so good, so good that HBO wanted more and they figured out how to do a new version of it, a second part to it that David Kelly is writing with Nicole Kidman and Reese Witherspoon. And the first eight were so good, they convinced Meryl Streep to be in it.

So Meryl Streep is going to do television for the first time, and she's not going to do TV for the first time because it was 11 episodes and three of them were boring. She's going to do television for the first time because they were only eight episodes and they were terrific. So there's almost never an argument to stretch. I feel that way about the Twin Peaks Returns, which originally I think they said we're going to do at nine and then they decided to do it at 18 because David Lynch realized

he had the power to shoot a three-minute sequence of a man just sweeping peanuts off the floor while Green Onions plays, which he did. And while that show is taxing at times i think it's so utterly brilliant that it it it works well but um oh by the way james i yes this keeps occurring to me to send you an email but here we are folks you're allowed to listen in on this um thank you for occupied oh good that has gotten me across the country and back on airplanes you made you do the explaining on that one well you explained the norwegian show james

with jasper berg yeah jasper berg is this is is a norwegian green and he has his first act as the green prime premier he gets rid of the oil production and says, we're going to use thorium energy now. And the EU is so peeved by the decreased production that they give Russia a wink-wink, you can sort of help the Norwegians get their oil production back. And it leads to a complete soft takeover and corruption of the collaboration of the Norwegian culture and economy by Russians. It's fascinating. They did two seasons of it, and they don't need to do any more. And this goes back to what Rob was saying before.

A good artist, a good team, knows that there's a finite level to these stories. I mean, House of Cards was fun when it first came out because Kevin Spacey was winking and talking to us and the rest of it. And it turned into this preposterous nonsense because they just simply had to keep going on. nonsense because they just simply had to keep going on british shows like broad church or or norwegian shows like occupied have a finite scale to them that lets you say i'm satisfied with this being done i don't need to see anymore it is one one final word on occupied is a it is absolutely psychologically it is absolutely fascinating because you see Norwegian, ordinary Norwegians,

some of them feel the impulse to collaborate because the Russians are spending fresh money in Norway. Others feel the impulse to resist. And you can sort of see the way Eastern Europe worked for four, must've worked for 40 years under Russian occupation, A. And B, Rob is in the craziest business in the world. Because in Hollywood now, you're competing. You could suddenly find yourself competing for Mindshare with some little Norwegian production company. Anything can happen online.

Most expensive show that they ever did in Norway, actually. It wasn't little. They sunk a lot of resources into it. And the Russians were not happy about that at all. But he's right. I mean, Rob, you've seen perhaps Babylon Berlin. Have you? No, but I'm familiar with it. Right. It's extraordinary, and Rob is probably just rolling his eyes as Peter and I are talking about television. But I mean, it's amateur hour right now, Rob.

No, no, it's interesting but he's i mean i know what rob is thinking in the back of his head we love these shows and they're watched by but you know just a infinite number of people compared to the big stuff right to the nets right right right yeah i mean obviously there's a huge difference between why people on broadcast television get paid so much money and why those are so much more expensive is because the dollar is so high but look everything's going niche like this or a lot of things are going niche like this and that's good and it's bad it's good because you can find something that you really like it's also bad because you know it's kind of nice when everybody coalesces around a big um one big show and can

talk about it and and and that was the one really one of the benefits of Roseanne, which is sort of now lost, was the idea that there was a show in which a family in America was talking about stuff that's actually happening in America and doing, I think, justice to both sides. I mean it got a little – Roseanne started off very strong on the right and then kind of got a little woke. I mean the truth is that all these people cheering on the left that Roseanne's going probably hadn't watched it because all of the episodes I saw were very, very – Roseanne Lawrence had an important lesson about Muslims. They were very, very special episodes but still funny and still – there's a place for that and I wish it was on TV more. So yeah, there's an economic disparity. It will all – look, the goal of everybody in Hollywood is to find somebody with a lot of money and no particular sense.

And so what you usually do is you usually find a rich guy comes to Hollywood. You try to sell him something, and then all the expenses go way up. You're just outrunning the sheriff. You're trying to spend tomorrow's money today and run away. The people who usually get left holding the bag are the shareholders. The ROI, return on investment of a Hollywood

product is quite low. You'd probably do better investing in almost any other sector. But people love Hollywood. So as long as they love Hollywood, we want to be part of the movie business. Rupert Murdoch always complained about the movie business, but it took him an awfully long time to get out of it. And I saw plenty of pictures of Rupert Murdoch who hates Hollywood in a black tie swanning around. And I do mean swanning around, Oscar parties and Golden Globe parties.

So it's a very seductive place. We're always glad that there's a stream of emotionally broken people who offer themselves in the altar of Hollywood to be exploited by the people whose souls themselves are dead but want only avarice and attention. Between the symbiotic function between those two, we have a marvelous entertainment industry. But when you mentioned the whole idea of it's nice when we have a show around which we can all bond, that's true. But I remember the days of three networks, and it was sort of the water cooler was, did you see Mary Tyler Moore last night? Yeah, that was funny. And that was about it. And now we have this culture of endless recap an examination where you can really dive into shows

that are worthy of it so that's cool and maybe the water cooler thing now is the latest tweet maybe that's what the nation bonds around instead of the show that we saw last night right of the the tweet that makes everybody angry and it makes everybody go back to their corners and i hear rob saying right in a way that just – Yeah, I agree with you. That, in fact, was the early Twitter mission statement, which was to be the nation's water cooler. Well, and drink deeply. This is the water and this is the well.

Listen, folks, we want to say a few things. Hold on. We have a special Rob Long announcement coming up, so you have to listen to me saying all of these credit things. This podcast was brought to you by Keeps, Casper, and Mancrates. Support them for supporting us and you'll find special codes, of course, on the page where you found this podcast at Ricochet.com.

And by the way, go to Ricochet.com and sign up and join it because for just a few dollars, you'll be a member of one of the most fascinating... There was a post this week that because for just a few dollars, you'll be a member of one of the most fascinating – there was a post this week that I just loved because it was about dam failure. It was by Tiger Lily, and it was a really fascinating account of this dam disaster in 1928 that brings to mind the era of great engineering projects, the rise of L.A., Mulholland.

It's just fascinating, and it's one of those things that isn't political, but Ricochet members do so very well. And also go to iTunes, leave a review. Good reviews help more people find us. More people finding us keeps the show going. And, Rob, I understand you are – are you leaving again? Are you going off somewhere? No. No, not me. I think Peter.

Oh, Peter, where are you going? I'm going to Spain on Tuesday. I am married to a Cuban who spent summers in Spain when she was a girl, who has family and cousins in Madrid and Barcelona, and I have never been. And my wife just announced – there have been very, very few non-negotiables in our marriage. But my wife announced a couple of weeks ago the euro is dropping. There were some specials on airfare, and she just said, we're going. We are just going. So next week, I'll be in Spain.

Oh, the one – I negotiated really hard. And I am – the one thing I am guaranteed, I got this in return. I'm being dragged across the world to go to Spain. There is going to be a bullfight in it somewhere. I don't know whether this will be a horrible thing. I'll be revolted. I'll turn against blood sports forever. But since I was a little kid and read Ferdinand or had Ferdinand read to me,

I just wanted to see this thing, this weird, wild tradition. I'll miss you next week, boys. It's not the running of the bulls, is it? Because I just have a vision of Peter hightailing it with a sweater. Or using a sweater as kind of a don't wear a red sweater. And it's red. No wonder he's fall.

See? Smooth, polished personalities getting run over. Story of my life. why i sorry i premised this with a rob announcement but that's what happened you have one eye on slack well i'm taking both eyes off slack now and turning them to you the listener to say thank you everybody peter rob we won't see peter next week rob uh you'll have to tell us what peter's doing in spain since you know spain so well and me, a Spanish ignorant, an ignoramus Espanol, will be here with you as well.

We'll see everybody in the conference at Ricochet 3.0. Bye, guys. Hola. Hola. If you look closer, you'll recognize I'm not that special, I'm broken tight Crashing slowly, the bugs are in me Dirty computer breaking down Picking my face up

Off the ground I'll love you in this space and time Cause baby all I'll ever be Is your dirty computer. Dirty computer. Searching for someone to fix my life. Text message got up in the sky Oh, if you love me, won't you please reply Oh, can't you see that it's only me

Your dirty computer Dirty computer You dirty computer Dirty computer I love you in the space and time I'll love you in the space and time Ricochet! Join the conversation.