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Advisory Opinions
Did Congress Stretch the Commerce Clause Too Far? | Interview: Jonathan Karl
01:16:17
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A
You ready?
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I was born ready.
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Welcome to Advisory Opinions. I'm Sarah Isger, still suffering from a cold. And that's David French. And we've got a fun show for you today. We're gonna go back and do Lopez and the Commerce Clause because we've got two circuit cases to talk to you all about that are both Lopez hooks. And if you don't know about the 1995 case, U.S. v. Lopez, about the gun, free school zones, boy, are you in for a treat. Plus, we have special guest of the pod, Jonathan Karl from ABC News coming to talk about his new book Retribution, which has lots of legal stuff in it because frankly, the last year, year and a half of our politics has had a lot of legal stuff in it. So stay tuned for Jon Carl, home to the Rachel Maddow Show, Morning Joe, the Briefing with Jen Psaki and more voices you know and trust. Ms. NOW is your source for news, opinion and the world. Our name is new, but you'll find the same commitment to justice, progress and the truth that you've relied on for decades. We'll continue to cover the day's news, ask the tough questions and explain how it impacts you. Ms. Now. Same mission, new name. Learn more at Ms. Now.
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David before we hop into Lopez, I am watching the Ken Burns American Revolution documentary that is airing every night this week and it is incredible.
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C
Oh, I can't wait. I haven't started it yet. I cannot wait.
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Okay, the cast is amazing. These are the people who read the quotes. I mean, Tom Hanks, Meryl Streep. You have Paul Giamatti reapprising his role as John Adams. And for some reason, the whole cast of Homeland, Claire Danes, Mandy Patinkin and Damian Lewis are all there as well. Samuel L. Jackson, like there's barely a voice you're not going to recognize. Matthew Reese, the actor from the Americans is Welsh born and so he's going to play or read quotes from someone pretty important, too in his original Welsh accent. Okay. But David, here's the part that really sticks with me and feels very ao when we talk about the Civil War, I think it's almost too obvious because of the regional differences and the near total homogeneity of. Of the two regions of which side you were on. To say, if you were born In Alabama in 1840, we know what side you were gonna be on. There wasn't a whole lot of moral or character defining stuff going on there. Very few people broke with their homes. And so it's not that hard to have intellectual humility, to think, boy, based on where I was born, I might have been fighting on the wrong side of history, literally. The Revolutionary War is a little more interesting to me. First of all, yes, the majority are going to side with the patriots, but there's a healthy amount of people who side with the loyalists, the Tories. And I will just say for myself, like, what defined those people tended to be a fear of and hatred of mobs, democracy riling up Edness, if you will. And it's like, ooh, that strikes home a little bit. Now, on the one hand, I hate authority, and I hate people telling me what to do. But on the other hand, I am also not a big fan of, you know, going where the mob leads and propaganda type stuff. And I don't know. I have a friend who swears he would have been a Tory. I'm not sure he's right about that. But I really appreciate him saying that because I think it should make us all kind of think to ourselves, I wonder what would have defined me more, this part of my, you know, personality, this part of my character, and which side I would have taken up for.
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Sarah, I have thought about this question so much. So much, because, yeah, I thought, you know, if you've spent any time with history, you know, that there was a strong Tory contingent. There was a strong contingent of Americans who did not want to rebel from the Crown. And I have heard, you know, it's very hard to know with any precision, but I grew up sort of thinking it was more along the lines of one third, One third, one third. And the one third was the strong patriots from the beginning. Another third were people who were inclined towards the revolutionary movement, but very worried it was going to fail. So they were not early adapters. And then one third or so was extremely all in for the Crown. And, okay, so, Sarah, I know my disposition. I'm a patriotic person. I try to be a loyal person. And also, I really don't like bullies. Really don't like bullies. And how do you combine all of those things? And I don't like mobs.
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Yeah, but like, who's the bully in this case? Is Parliament the bully? Or are these patriots who are tarring and feathering people, which is no joke by the way. They're pouring scalding tar on you and burning all of your skin and then putting feathers on you, then whipping you sometimes, I mean, those sound like bullies for being a tax collector which was legally authorized by the Crown and by Parliament.
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This is my self justifying narrative of how I would become a patriot as opposed to a Tory. So my narrative, how I'd become a patriot is that I probably would have been extremely upset at things like the Tea Party or the tarring feathering that that would have been. I would have considered that lawless. I would have considered that unjustified. And then I would have been double, triple, quadruple upset when the troops came. And the troops, the troops start getting quartered in people's homes, the troops start sweeping through the countryside. That, you know, I've talked about and I talk about with my students at Lipscomb. I had a class on the philosophies of the founding where we really got into sort of how this thing kicked off. Because initially the response to the Crown was really, don't bully us. Not, not. It was not let us become an independent nation. And only when the bullying just wouldn't stop. I mean, the Continental Congress, from the first Continental Congress to the Second Continental Congress changed. And so I've talked about how manageable disputes can become unmanageable by excessive response. So that's how I tell myself I would end up at Patriot. But there's another narrative where I would not have ended up at Patriot, where, you know, depending on the severity of the tarring and feathering, depending on sort of the climate and location where I was, that would I have seen the intervention of redcoats as a sad necessity. I don't know. It's a very interesting question to ask yourself. And like you said, Sarah, it's a very different question from the north south, very different question. The number of people in the south who said no to the south, very small, Very small. George Thomas being the most that General Thomas from Virginia, the great Union general. The rock of Chickamauga is probably the most notable example of a Southerner who stayed with the Union army. But the Revolution, very different, Very different.
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I think if I lived in Boston, I probably would have been an early adopter, but I also think I would have been like the first Continental Congress almost certainly believed that it was Parliament's fault, not the King's. You know, the King is just getting bad advice. We really need him to intervene. You know, Parliament is full of morons who've never been to the United States. They don't know what they're doing. They're causing this rift. And my loyalty, obviously, is still with the King. I think I would have followed that if I lived in Boston pretty closely in terms of like, yep, First Continental Congress. We just want the King to intervene. Oh, then you sent troops, and we had Breed's Hill, we had Lexington, we had Concord. Like, okay, now I'm done with this nonsense. Like, regardless, we are now of such a different character as a people. Then whatever it is you think you're doing, a break must be had. But, you know, you read some of the Tory writings. They're not crazy. They're actually pretty sympathetic. And I think that Stacey Schiff's book on Samuel Adams is, like, a must read because. And I'm not sure she intended this, but Samuel Adams is not a wholly good guy. And so you can't help but read this and be like, if you knew Sam Adams and knew what kind of a manipulative bully all this stuff he was, would you have been like, I'm not following Sam Adams across the street, let alone into what amounts to a world war. Okay, well, David, interesting. Now. Now, David, I want to get to Lopez. As I said, this is a 1995 case, U.S. v. Lopez. Alfonso Lopez was a 12th grade high school student. He carried a concealed weapon into his Texas high school, San Antonio. For those who are curious, he's charged under state law with firearm possession on school premises, because obviously that's a state crime. But then the next day, the feds charge him with violating a federal criminal statute, the Gun Free School zone Act of 1990, that forbids, quote, any individual knowingly to possess a firearm at a place that is a school zone. He's found guilty in appeals. The decision from the Supreme Court is 5 4, David. And it's basically the conservatives versus the liberals. You've got Chief Justice Rehnquist, O', Connor, Scalia, Kennedy and Thomas saying, no, Congress does not have the authority to criminalize bringing a gun onto a school zone with their commerce clause power as the hook. Steven, Souter, Ginsburg, and Breyer saying, oh, yes, they do. I wanted to talk about this for a few reasons. We've got these two cases that I want to get to about it, but also because it's not obvious to me that that 1995 very clear partisan ideological split, if you will, plays out remotely the same way today. Now, maybe there's some horseshoe theory going on, some other stuff, but as you're going to see in these cases, it's not necessarily going to play out the same way. The argument from the majority goes something like this. If gun violence affects the economy and that affects education and that affects interstate commerce, and that's how Congress is gonna be able to have federal laws about guns in school zones, then the commerce clause is no limit whatsoever on Congress. Congress would then be able to federalize anything. There would be no separate police power for the states at all. So no, at the moment this happens, of course, many people think, omg, we're bringing back the limitations of the commerce clause. Maybe we're even gonna overturn Wickard v. Fil that, you know, wheat in interstate commerce clause case. It's like, aha, a conservative Supreme Court is marching toward a thing. There's one more case called Morrison on the Violence Against Women act. And that's pretty much it. And this whole thing is going to die. Except, David, we have two circuit cases this week. One is going to be about a very famous murder that we talked about extensively on this podcast, the murder of Ahmaud Arbery in Georgia many years ago when we first started. The other one is going to be about 922g, that law criminalizing someone who has been convicted of a felony from possessing a gun. I want to start with the Ahmaud Arbery case. I know you remember this really well. Do you want to tell us the facts of this case?
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Yeah, the basic facts of this case. I mean the facts of this case are awful. So there had been, the backdrop is that there's a neighborhood down in Georgia in which there had been some break ins locally. Some people, both black and white, had been filmed entering and kind of walking through an empty house that was being constructed. By the way, something I've done, I've lived in neighborhoods where they're building houses and sometimes I'm quite curious, oh, let me look at this floor plan. And I'll just kind of walk into a, you know, these houses under construction and take a look. But there were, there were video cameras and people had recorded, you know, Ahmaud Arbery in there also, I believe a white couple in there. But at one point Ahmed Arbery is jogging through the neighborhood and a father son combo see Arbery running, believe he is a person that they'd seen on the video cameras and grab guns and start, get in their truck and start going after him, chasing him through the neighborhood as vigilantes. While they're chasing him, a third person sees them chasing this individual and just as he testified, instinctively does what? Gets his gun, gets in his vehicle, and a chase ensues. And it's horrific. They keep trying to block Arbery at this point, who's Dunn? You know, they're just thinking they'd seen him walking through an empty construction site, and they're chasing him with firearms, they're blocking him on public roads. And then finally, he scored a boxed in. One of the three has a shotgun. Arbery tries to, you know, tries to lunge towards the shotgun, and he's shot and killed. They are convicted of state crimes, but then they're also convicted of federal crimes. And these federal crimes include violation of civil rights, include kidnapping. And what's important to the case is that they have to, as part of the element of the crime, they had to have used the channels of interstate commerce or the instrumentalities of interstate commerce to be looped into federal jurisdiction here. And so this is bringing Lopez back into this question.
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All right, so in the Federal Kidnapping Statute 1201 A1, you can show that it's federal kidnapping in one of three ways. First, a defendant violates the statute of his kidnapping. Victim is willfully transported in interstate or foreign commerce. That obviously does not apply here. Everything took place in Georgia. Second, a defendant violates a statute if he travels in interstate or foreign commerce during the offense. Also did not happen here. The victim nor the defendants traveled in interstate commerce. A defendant violates the statute if he uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense. The majority in this 11th Circuit opinion is gonna say automobiles like Travis's truck are per se, instrumentalities of interstate commerce. This is the categorical approach, David. It's a little bit weird because while it's very in line with the majority, like the vast majority at this point of circuits, in fact, the 3rd, 4th, 6th, 7th, 9th, and 11th all agree with this categorical approach that if you used a car in kidnapping someone in the state, that you can get charged with federal kidnapping. It's a little bit weird, David, because you can use, I mean, you probably do use a car for almost any crime you could possibly commit. So can Congress federalize every state crime if you used a car or a cell phone also something that is part of interstate and instrumentality of interstate commerce? Now, their arguments aren't crazy at all, right? That it's not instrumentality in interstate commerce. It's instrumentality of interstate commerce. And cars are that they allow you to travel interstate. Cell phones allow you to talk to someone out of state, all very easily. Boy, There is no limiting factor. And the 10th Circuit has broken from this. They've said it should be case by case. And there's a dissent here in this 11th Circuit case. It's interesting, David. This is a district judge sitting by designation. We haven't talked a lot about this. We've talked, you know, there's district judges, there's circuit judges, and there's Supreme Court justices, but actually, it's not quite as clean as that. You can have Supreme Court justices, especially senior justices, sit by designation on the circuits. You can also have district judges sit by designation on the circuits. And in this case, we have two circuit judges and one district judge. The district judge is dissenting on this part. She's a former federal public defender, which I think makes this kind of interesting. She was appointed by President Biden. And this is what I mean by that sort of 1995 ideology doesn't look the same as 2025 ideological differences, because she's the one who's gonna say this can't be the commerce clause anymore. The liberal, so to speak, on this panel. And it's the conservatives, Judge Lisa Branch and. And Judge Britt Grant, who are like, nope, categorical approach. The car instrumentality of commerce. No problem. The district judge, by the way, makes this argument about the 2006amendment to the kidnapping statute that adds this instrumentality of interstate commerce language and is basically like, that amendment can't possibly mean all cars. So sort of no matter what way you look at it, constitutionally, this would be too broad. It would not limit the commerce power at all. And then statutorily, the text doesn't really make sense because of how this amendment was added in 2006. And you've got Lopez, which is clearly meant to limit the federal government's intrusion into state police power. That's why they strike down the gun. Free school zone. And in fact, the. In Lopez, they have a three the substantial effects test, which, by the way, Justice Thomas hates. Lots of conservatives sort of hate. But whatever. The substantial effects test is that the regulated activity must be economic in nature. In Lopez, they basically say there's three categories of commerce clause regulation. One, channels of interstate commerce, highways, waterways, et cetera. Instrumentalities of interstate commerce, things that are in commerce, and activities that substantially affect interstate commerce. This, of course, has the substantial effects test that Justice Thomas and many others hate, because this gets to your like, how attenuated can it be? A little attenuated. What about a lot attenuated? That's the gun free school zone problem. When you get to that per se instrumentalities rule, there's just no limiting factor. So, David, this is my LOPEZ Case number one. The 10th Circuit already said no, can't be per se. You have to go case by case. This is a descent in the 11th Circuit. Do you think this has any legs?
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I don't think it has any legs, to be honest. The question is, will it have legs? Is different from should it have legs. And I don't think it will have legs. I think in part because if you are talking about an instrumentality of interstate commerce and you're looking at the exact facts of this case, what is as an instrumentality of interstate commerce, few things are going to be more of an instrument of interstate commerce than something with wheels that routinely drives across state lines. And so I think that from that standpoint, it's just an exercise in futility to think the Supreme Court's going to intervene here. Because we talk all the time about how facts really matter in cases that the Supreme Court's going to take. And the facts of this case involving if the very concept of an instrumentality of interstate commerce has validity at all, it would apply to automobiles or airplanes, for example. This would be the paradigmatic object that this would apply to. And I don't necessarily think this court would be willing to eliminate the instrumentality of interstate commerce concept entirely so much as they might be willing to limit its scope. And this would not be the case that would do that.
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Yeah, I mean, maybe another way to look at this is what Congress is allowed to say is that you can't use airplanes and cars to kidnap someone, even if you don't manage to get across state lines to do it, because it's clear that cars and airplanes are made for traveling federally and on those channels of interstate commerce. Yeah, I just totally disagree. To me, it seems pretty obvious that if you allow cars and cell phones to be instrumentalities of interstate commerce, the commerce clause has no limitations whatsoever.
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So you think they will potentially take this. The Supreme Court will potentially take this case. So we're in agreement.
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In other words, horrible, horrible agreement, because this is a bad vehicle to do it. They didn't challenge the constitutionality of the federal kidnapping statute. They just challenged the applicability of it to this car. I mean, if you didn't challenge the constitutionality, you don't really know what we're doing here. Also, not my Favorite vehicle to challenge the constitutionality of this. Given the crime itself, the Supreme Court doesn't have to take the case. Right. They can just wait for a different one where the facts are less egregious. But yeah, I hate it. And I think it. Bad, David. Bad, bad.
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Well, I would say this. I think that what we're dealing with, what we're still dealing with in these kinds of cases is the legacy of Jim Crow, because one of the things that led to the expansion of federal criminal law was the total failure of state criminal law during the civil, before the civil rights era. And so I think that's what we're. When you're looking at a lot of the expansive reading of some of these civil rights criminal cases, expansive readings of interstate commerce power applying to federal criminal law, what you really are dealing with is the legacy of the absolute failure of the justice system in the South. And a lot of statutes and case law generated as a result of that absolute failure is sort of a Hail Mary to try to preserve a rule of law in the United States of America. Well, now we're not in a situation as I'm not going to say that every local state jurisdiction is fair. I've spent too much time in local state jurisdictions to say that. But as a general matter, you don't have the same kind of complete collapse of criminal law and rule of law as you had 40, 50, I mean, as you had 60, 70 years ago. But we still have the, the legacy of all of that. And so that's how you have a lot of cases, Sarah, that we've seen where there's a state prosecution that's successful, they're convicted, and then we have a federal prosecution that's successful and they're convicted. And it's two separate statutes with two separate kinds of elements of the crime, but one of them rooted mainly in Congress's commerce clause power. I don't know that we'll ever unentangle those. I don't know what the long term consequence is going to be the further and further we get from that reality. But that's, that's why we have this particular system right now.
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All right, when we get back, we'll talk about my other Lopez case. This is coming out of the Fifth Circuit. Friend of the pod, Judge Willett has a concurrence on firearms possession. 922G. It's back.
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All right, David Arnett Jackson Bonner pleaded guilty to possessing a firearm after a felony conviction in violation of 18 USC 922G1. His previous felony convictions included drug trafficking and being a felon in possession. And David, he's going to challenge this as being unconstitutional under Brahimi, as David Ladd has dubbed it, the Supreme Court's Second Amendment rules. Text, history and tradition, baby. The Fifth Circuit is going to dismiss this entire idea in less than one page. However, Judge Willett, joined by Judge Duncan, has a concurring opinion. I'll just read you from the top here. Like every congressional enactment, a federal criminal statute must satisfy two constitutional demands. First, it must rest on one of Congress's few and defined powers. And second, it must respect the many constitutional provisions that secure individual rights against government intrusion. I am not certain that the statute under which Arnett Jackson Bonner was sentenced 922 meets either requirement, at least as federal courts have interpreted it. If it does not, then the offense created by it is not a crime, and a conviction under it is not merely erroneous, but it is illegal and void and cannot be a legal cause of imprisonment. Even so, while I harbor doubts that 922 is constitutional, I have no doubt about what our precedent requires. For that reason, I joined the majority opinion, which faithfully applies controlling authority, to reject each of Bonner's challenges. I write separately to highlight two ways in which our jurisprudence may have strayed from first principles and then David, he's going to go on to talk about Drumroll Lopez it is difficult to see how 922 honors the principle of enumerated powers. In U.S. v. Lopez, the Supreme Court identified three broad categories of activity that Congress may regulate under its commerce power channels of interstate commerce, the instrumentalities of interstate commerce, and those activities having a substantial relation to interstate commerce. Mere possession of a firearm fits uneasily within any of these categories. The closest candidate might be activities that substantially affect interstate commerce. After all, some have argued that widespread firearm related crime has a substantial effect on the national economy. But whatever the effect of such widespread crime, the economic consequences of Bonner's individual act of possession is hardly substantial at best. 922G1 can meet the substantial effects test only by aggregating the impact of all firearm possession by felons. Yet aggregation is ordinarily appropriate only when the underlying activity is economic. And firearm possession is not, as the Supreme Court explained in Morrison, that other case, the only other case, David, about Commerce clause from the 90s. The Constitution requires a distinction between what is truly national and what is truly local. And it is indeed hard to imagine a more local crime than this. So, David, what about this? What about the paradigmatic federal gun crime? Felon in possession 922 this isn't in possession of a gun while you're using drugs. This isn't in possession of a gun when you were convicted of tax evasion 20 years ago. This isn't possessing a gun when you were under a domestic violence restraining order that was not given criminal due process. This is the heartland of 922. It's how I don't have the numbers in front of me, but I would it's certainly the plurality of federal cases that exist that are brought by federal prosecutors is 922G. It is the whole kit and caboodle of federal crime right now.
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C
Yeah. So I think if you are in a situation where 922. Let's draw a distinction between evaluating 922G right after it's passed and evaluating 922 now. Because I do think that what you're going to be getting into in some of these arguments about originalism. Do you remember how I used the term dorm room originalism some time ago, which is sort of. And to refer to what I meant by dorm room originalism is that is essentially originalism without stare decisis? That's what dorm room originalism is. In other words, you just walk in and you say, what is the originalist position here, devoid of any and all other context? And then it's the job of the court then to implement the originalist vision devoid of any and all context in that circumstance. I don't think that 922 would have a ghost of a chance that if you were just sort of looking at it from a fresh slate, that there would be really any sense that 922 would be. But much of commerce clause jurisprudence, Sarah, is not what you would call originalist in any recognizable form. But then that gets to, okay, what about stare decisis? How much are we going to walk in and sort of unring the bell of federal regulation, unring the bell of federal criminal law? How much are we going to completely sort of disrupt the operation of federal law enforcement and federal economic regulation? That's where I think just brass tacks becomes, look, if we were writing with a blank slate, this would not have been constitutional. We're not writing with a blank slate. There are consequences to our decisions. We're not going to unwind the federal criminal legal structure. We're not going to unwind the federal economic regulatory structure. So I wonder, you know, this is again, one of these will versus should. And I don't think that they will take a second look at this. I'm not sure that they should take a second look at this because I do think that there are stare decisis elements that come into play here that I'm not sure it's the role of the court to just step in, decide sort of from the Platonic form of originalism, and then just steer all of American law into that direction.
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Interesting. Interesting to mention stare decisis because which part of the stare decisis factors are you thinking about? They're sort of like, is it wrong enough Was it based in something? You don't mean reliance interest, I assume?
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C
Well, I mean, I don't necessarily. When I think reliance interest, I think much more reliance on behalf of individuals. Not the government.
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Right. The defendant. Yeah. Yeah. The government doesn't get the benefit of reliance.
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Right, Exactly. But I think about. With story decisis, you know, I've been. We've talked a lot about stare decisis, and it's funny, I. You know, one of the great joys of having law student kids is we get to, like, talk about stare decisis. And I was having a fun conversation with Camille about stare decisis, and I said, I'm a little uncomfortable with the statement that stare decisis is about preserving wrong precedent. I think stare decisis is much more about how large of a zone are we giving to debatable precedent, which is a difference between. So I don't think of law, and I think if you've listened to this podcast, I don't think that the way you think about law should be that there's clearly. There are some decisions that are clearly wrong, and there are some that are clearly right, and there's a lot of decisions that are quite debatable and gray. And I think that for me, stare decisis is how much do you defer to the grayness of it and how much how large of a zone of gray? And so to me, stare decisis is dealing with the doubtful precedent, not the wrong, clearly wrong precedent, but the doubtful precedent. And that's when you begin to get into, okay, what are consequences? What are the practical realities and effects of overruling doubtful precedent? And so I think of it much more on a spectrum, not a black and white. When am I gonna uphold something that I believe to be wrong? Much more like, when am I gonna uphold something that I. If I was looking at it in first oppression, I would say this is wrong. But it is a doubtful. It is a tough call. It's a tough case is maybe a.
- [37:23]
A
Different way of thinking about this. Two things. One, don't revisit things that you're not sure were wrong. Like, it's a revisiting question. Maybe if you had the case in front of you and you had to go through all the things to really think about how you'd come down. Your back of the envelope calculation right now is like, I don't know, it'd be close. I think it might have been wrong, but you don't even need to revisit it. That's part of stare Decisis. And second, the difference between methodology and outcome. There's no question that the methodology used would be different now in a bunch of these Commerce Clause cases, although, funny enough, Commerce Clause is one of the areas where originalism really did flex pretty early. But as we talked about, the conservative legal movement is both the Commerce Clause, FDR side, big government, federal doing everything part, and the progressivism side, unelected bureaucrats exercising power. Those two are animating principles that the conservative legal movement pops up to fight against. So Commerce Clause is one of the animating principles, but nevertheless. So it's like the revisiting side. If you think something was egregiously wrong, then you should revisit it if you're not sure or it might have been wrong or whatever. Like, just don't even dig in. Don't open that can of worms. That's stare decisis. And the second part is just because a different methodology was used and you think it might have been wrong, and if you used a new methodology now, you would come out differently, that alone is also not a reason to revisit. Does that sound like what you're saying, David?
- [39:07]
C
That's tracking the way I'm thinking about stare decisis. And I also think it tracks. So if you're looking at, for example, Dobbs and you're looking one of the things that we have said a million times is there's just never been anything like an originalist argument that Roe was properly decided, and then the reliance interests are just completely different. And then it's one. But there's a reason why there's a reason why the Court said so very clearly, and Justice Alito said so very clearly. This case is just different. This case is different from Obergefell. This case is different from many other cases in which there had been an originalist minority that had dissented, say in Obergefell, and still they're saying this case is different. Now in that case, Obergefell, it's almost certainly because of the reliance interests. But I do think that the court looks at different. I do not think that the court looks at every single case or anywhere close to a majority of the court, a blank slate, and says what is the originalist answer here? Without regard to all that came before. And I just that's just not how they do jurisprudence.
- [40:16]
A
All right, David, when we get back, we're going to talk to John Carl from ABC News about his new book, Retribution. Buckle up, folks.
- [40:29]
D
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- [41:40]
A
This episode is brought to you by Netflix from the creator of Homeland. Claire Danes and Matthew Rhys star in the new Netflix series the Beast in Me as ruthless rivals whose shared darkness will set them on a collision course with fatal consequences. The Beast in Me is a riveting psychological cat and mouse story about guilt, justice and doubt. You will not want to miss this. The Beast in Me is now playing only on Netflix. Jonathan Karl, thank you so much for joining us.
- [42:13]
B
Hey, it's an honor. Thank you for having me on the podcast.
- [42:16]
A
Now look, this is your fourth book in kind of a series, if you will. We started with front row at the Trump show, Betrayal, then Tired of Winning, and now Retribution. You've been busy.
- [42:31]
B
Yeah, it's, you know, we're about five years, almost six years since the first book. When I set out to do the first book, it was definitely not to be the first part of a four part series. It was definitely to be a one and one only. And the second book I wrote was called the subtitle is important because it's Betrayal, the final act of the Trump Show. So anyway, yeah, it's been a process.
- [42:59]
A
Now, retribution obviously comes from Donald Trump's campaign and his presidency, but more than that, it comes from the phrase come retribution. Will you history nerd with us a little bit?
- [43:10]
B
Yeah, yeah, of course. Yeah, yeah, yeah. Come retribution. There's a book actually called Come Retribution, which is about the Confederate plot to kidnap or assassinate Abraham Lincoln. And it comes from what was the code word for the Confederate Secret Service in discussing this plot. And I didn't know any of this, by the way, even though I've spent a fair amount of time covering and reading about. I didn't cover the Civil War. That was before my time. But it was Steve Bannon who referred to that first speech where Donald Trump uses that phrase, I am your retribution. It was actually at cpac. It wasn't his Waco speech, but it was at cpac, you know, a couple of months after he announced he was running for president for the third time. And Bannon kept on referring to it as the come retribution speech. And he kept on saying it, kept on saying it. And then I found the connection, and I asked Bannon. Oh, yeah, that's what he meant. I mean, not in the case that he was like, all, you know, we're trying to assassinate Abraham Lincoln. But it was about, you know, the South's feeling that they've been aggrieved by the north and they wanted to get back at it. So, anyway. But yes, calm retribution.
- [44:30]
A
Okay, so this book is really meant to trace Trump's campaign. Well, the 2024 campaign. You have a lot of reporting on Biden and Harris as well, and the first part, the very first part of Trump's presidency. And so why are you on a legal podcast, some might wonder? Because as I read this and as we looked back on this, this was one of the most legal presidential campaigns in American history that turned on so many legal questions and decisions, and the Department of Justice obviously playing an enormous role. Donald Trump had four different criminal indictments brought against him. Two from Biden's Department of Justice, one in New York, one in Georgia, as we know. And so that's gonna be interwoven through the entire narrative, really, from start to finish. And in fact, it's where your book starts. Is Donald Trump sitting in that courtroom in New York?
- [45:30]
B
It's both where the book starts and where it ends, because it also goes into when Trump wins. I spent a great deal of time on the transition and the effort to wrap up Jack Smith's cases and those attorneys that are representing Trump during the transition who then take over the Justice Department. So we can get to that. But it starts, the first chapter is the felon and the front runner. And I spent a fair amount of time in the courtroom in New York for the one and only criminal trial. He had the four cases that led to indictments, but obviously, there was one criminal trial. And I was in that courtroom at 100 Center Street. You guys have both been there, I assume, in southern Manhattan. It's a beautiful building that is quite decrepit because it hasn't gotten a good cleaning probably since it was built in the 30s. I describe kind of walking into that place, and the first thing I noticed was a big old rat trap. You know, one of those black plastic traps right by the entrance. And then signs in the hallways that say danger because there's asbestos removal going on. The flickering fluorescent lights, the dirty marble, the elevators that only occasionally worked. Anyway, that's where Trump had to go every day for about six weeks, every, you know, four days a week. No trial on Wednesdays. And he used that, as you remember. Well, he used the hallway outside that courtroom as his campaign stage. But more importantly than that, because we saw all that play out. It's the way that experience solidified in his head what he had said months earlier about I am your retribution. He was seeing an election where, I mean, the stakes couldn't have been higher for him personally. He either faced the real possibility of prison or at least spending the rest of his life staying out of prison or getting elected and seeing that all go away and becoming, thanks to another, to a Supreme Court decision, in part, but not only becoming the most powerful president of our time.
- [47:45]
C
So a question about this. One of the things that I've long thought is that this first case against Trump set the tone for all the cases that followed in the most unfortunate way possible, in that this first case against Trump was the weakest by far. You had, for example, on this podcast, Sarah and I were completely united that this was a case that would not have been brought against anybody else. You had legal commentators across the political spectrum saying, this thing shouldn't have been done. It was weak. It was trying to bootstrap a misdemeanor into a felony. This was a bad case. How much in your reporting did this matter at all? Sort of to the narrative that flowed out from the other indictments, when you had the Jack Smith indictments, which were undoubtedly far superior legally to the original New York indictment, or did it just not matter at all? He could have been indicted. New York could have indicted him or not indicted him. Jack Smith could have been the only guy with the best possible cases, but it still wouldn't have mattered? Or did the New York case, in your view, set kind of a tone for how the public viewed, especially the GOP public, viewed all the cases that came after?
- [49:04]
B
If you really wanted to see Donald Trump held accountable for his actions, this was the worst Possible scenario, a case, as you say, of weak legal ground. Also not making much sense in terms of the public understanding of it. I mean, what is he being charged of? He like hush money to a porn star, but he's not being charged with the hush money. That's not illegal. It's how he accounted for it. And it's. I mean, what. I mean, it just, it just didn't make. It didn't make a lot of sense. So it made it very easy for Donald Trump to get up there day after day and say that he's the victim of a witch hunt. It's like, look, they're making me do this because of an accounting, because I called a legal expense an illegal expense. You know, he's not entirely wrong in that. I mean, it wasn't really a legal expense, but, I mean, that's what we're talking about. Meanwhile, you know, you had the classified documents case, which is the one that they feared the most. You know, where Trump is taking the nation's most sensitive military and most sensitive secrets, national security secrets, to his home in Palm Beach, Florida, leaving them scattered all around in ballrooms and bathrooms and storerooms, talking about sensitive matters that were clearly classified to campaign advisors, to all kinds of people. An Australian cardboard magnet magnate is hearing Trump go on about, you know, these classified information about, about nuclear submarines. And that guy then is sharing it with a whole bunch of other people, Australians and journalists and all. Anyway, this was a very damning case, and the public got to hear not one whit of it outside of, you know, the, the indictment that never went to trial. January 6, more difficult case, perhaps, but also a much more damning set of facts, never gets to go to trial.
- [51:08]
A
So this is interesting. Okay, here's the two things David and I agree on. We both agreed the New York case, the worst case, to go first, and really, to me, undermined the rule of law. This really was weaponization. They would not have brought the case but for Donald Trump running again, in my opinion, like, they really did find the man and go search for a crime in that case because they had tried so many other things they thought he might have done. Okay, David and I also both agree that the classified documents case, strongest case by far, no question. Where David and I start to diverge is on that January 6th case. And it's also where you have a lot of great reporting about what took so long as they had various leads of things that I think I would have said were then much stronger. Slam dunk case that fell apart. Will you tell us about some of that reporting.
- [52:03]
B
Yeah, I mean, look, on the January 6th case, actually, on both of those cases, but particularly the January 6th case, Merrick Garland is the one that you hear so many Democrats blame for the fact that Trump is never actually brought to trial. Merrick Garland was too slow. Merrick Garland was too plodding. It was actually, it's kind of funny because I was just talking to Bill Barr a little while ago, and Trump always said Bill Barr was too slow. Sometimes, I guess justice moves a little slower than people would like. I think there is an argument, and I present the facts on this in the book, that Garland actually is, was, was unfairly criticized on this. I mean, perhaps, I mean, perhaps you could still say he went too slow. But the, but the argument that is made is not accurate. The argument is made is that, is that Garland waited, you know, way too long before trying to investigate Donald Trump's role in the attack on the Capitol and the effort to overturn the election. You know, he spent all this time, you know, on the, on the people that were in the protest, on the people that went into the building, you know, the 1500 that ultimately get prosecuted. But he did, you know, he waited way, way, way too long to actually look at the guy that instigated the whole thing. Well, it's not true. And as you know, Sarah, somebody who has worked at the Justice Department and taken a lot of annoying questions from reporters like me, asking for information about ongoing investigations that you cannot confirm. Actually, what I learned is that very early on, Garland was investigating Trump's role and he was investigating the kind of, what would have been the real smoking gun. Did Donald Trump have any direct connection with those guys in body armor that attacked the Capitol? Did he have any direct connection with the Proud Boys and the Oath Keepers, the militia groups that really spearheaded the violence? And there was various, there were various theories and there was all this talk about the war room that was set up at the Willard Hotel and, you know, where you had folks like Bannon and Roger Stone and they actually hate each other, but they were all there. And were they coordinating with the people that were, you know, marching up on the Capitol? They spent a lot of time investigating that. And then they got a tip which had never previously been reported. They got a tip that Dan Scavino, Trump's longest serving aide in the White House, this former golf caddy, somebody'd been with Trump forever, Deputy Chief of Staff that Dan Scavino had set up a meeting in Las Vegas. It was very specific tip in Las Vegas Shortly before the election, 2020 election, between the leaders of the Proud Boys and Trump. And it was a secret meeting. So they spent a lot of time looking into this. It was bogus. No evidence whatsoever came up. Trump was in fact, in Las Vegas. That was the one thing that was true. But all his movements are accounted for. There's no evidence the Proud Boys had anything going on. There's no evidence whatsoever that such a meeting went underway. But that's what they were looking for. Was there something tying Trump to the violence? And after months and months and months and months and months of investigating it, you know, the investigation went into other areas, but that would have been the most damning evidence and the easiest case to make.
- [55:43]
A
You know, it's also interesting because Garland gets blamed for the delay on the front end, as if the thing was about to go to trial two seconds later, like as if we'd move the timeline back one year. You know, Garland cuts out a year on the front end, then Trump would have gone to trial on those federal charges. Another piece of your reporting that I thought was spot on was you have a quote from someone saying we were at least two years away still.
- [56:05]
B
Yeah, yeah, absolutely. So Garland, in other words, is not, doesn't even blame the slow moving Supreme Court. The people around Garland. I mean, this is, you know, this was going to take a long time. And given the Supreme Court decision, there were going to be at least two more cases that were going to have to go to the Supreme Court. This was the view from Garland's team, because they re indicted, they airbrushed the indictment. Whatever term you asked, they changed the indictment.
- [56:38]
A
It's the same charges, but different narrative.
- [56:42]
B
Different narrative to comply with the immunity decision. So as this went forward, there was certainly going to be a challenge to that. And that challenge, they believe, was ultimately going to go to the Supreme Court. That was going to take a long time. And there was also going to be a challenge to the appointment of Jack Smith as the special counsel in the first place. After all, Elaine Cannon, you know, had said it was an unconstitutional appointment. So that was going to be challenged. That was likely, they believed, to go to the Supreme Court. So he had two separate Supreme Court decisions that were going to have to play out. Arguments, decisions, all that stuff before this ever went to trial. That's why they say it was at least two years away.
- [57:24]
C
You know, what I think is really helpful about that reporting is that when I read the indictment, one of the first thoughts I had was all of this stuff in the indictment. Jack Smith had This, this was stuff known well before the indictment was brought, like as early as early mid-2022. As I read that indictment, about 90% of that stuff was stuff we knew in, in late 2021, early 2022. But when you talk about that there was additional leads that were needing to be chased down, that makes a lot of sense as to why something would be brought later. And one of Sara and I's theories was this case, there was no scenario in which these cases were going to be brought back to trial before the election, immunity decision or not immunity decision. There was just no scenario where these things were going to be tried before the election. But one thing that I'm very curious about is as you're moving through the election process and you're moving through the campaign and into the transition, at what point was it, did it solidify and become concrete that Trump was going to pardon everyone affiliated with January 6th? It wasn't just that we're going to see dropping of the charges against Trump, which everybody knew that was going to happen if Trump won. But when were we going to, at what point did it become very clear that all of the January 6ers were going to be pardoned, granted clemency, et cetera? When did this become clear?
- [58:51]
B
I think I can pinpoint that almost exactly. First of all, it was entirely unclear going into the election. And in the immediate aftermath of the election, in fact, you know, J.D. vance famously went on television and said that, well, you know, we're not going to pardon the guys that attacked Cat, that attacked cops, that beat up cops, or that, you know, broke into the building. We're going to, you know, we're going to pardon the people that, you know, might have walked in because they were part of the crowd or whatever. He made it clear that this was not going to be the violent offenders. That's what he said. And it was interesting. I went back to that. I mean, we all remember, I mean, you guys remember, I'm sure when he said that. And it seemed to make sense, it seemed like that was not a controversial thing. You know, I mean, we're not going to like pardon somebody that beat the crap out of a police officer, for God's sake. But Vance got pilloried, he got hammered in social media from the kind of hardcore MAGA rights. The people that had been the advocates of the so called J6 prisoners, J6 hostages, whatever, you know, how could he say this? And their part is everybody had to be pardoned because even those that beat up police officers, they were provoked to beat up police officers. So it's not their fault. We have to look at the root causes of why they beat up those police officers. I mean, it sounds nuts, but this was a real view of a lot of these people.
- [60:19]
C
They viewed it as self defense that the rioters were engaged in self defense. Yeah, I've seen all this argument.
- [60:25]
B
Yeah, yeah, they were being attacked by the police officers and they were basically fighting back. So, you know, Trump certainly sees JD's, JD Vance's, the ways get hammered. And JD Vance does this very awkward kind of, well, no, I didn't mean this and I didn't mean that. And of course. And nobody's been more active on the cause of the J6 prisoners than me. And, you know, he really tries to walk it back. And then in January, Trump has a call with. He's actually with Charlie Kirk and a couple other people at Mar A Lago, and he has them call a woman named Julie Kelly, who you guys probably know. Julie Kelly has been kind of the real activist on this issue. She wrote a book about January 6th, and she was the one that actually first recorded the very first version of the national anthem sung by the J6 prisoners. I mean, she is there. Like, this is her cause more than any single individual. So Julie Kelly. Trump has them get Julie Kelly on the phone. I think it's actually Charlie Kirk. It's in the book. Charlie Kirk is the one that arranges the call, puts her on speakerphone and, you know, asks her, you know what, who she thinks he should pardon. And actually not even Julie Kelly thinks that every single one of them should be pardoned. She thinks all the guys that beat up cops should be pardoned. Don't get me wrong. And it's not those guys, but she has this kind of formulation that those that were violating parole to be there, that there's a, it's a very esoteric subcategory that she thinks maybe you don't give a full pardon to them. But basically it's everybody. And, and Trump spends time with her and says, well, I'm going to make you, can make you very unhappy, Julie, because I'm going to put you out of work. Because her entire, like, career now has been like, the advocate of these. And he's basically saying, you're not going to have a job anymore because they're all going to be free. So it's at that point, the date is in the book. I think it's like January 10th or 11th, something like that. It's, it's right before he comes in that he basically makes the decision. We're going to go all in on this. Now, there was some suggestion that because Biden issued his very Controversial Pardons on January 20 at 11:34am you guys know, noon is roughly when we, we, we do this transition, that he's going to pardon all his family members and their spouses, all his sibling, siblings and their spouses from any crimes they may or may not have committed over the past, you know, several years. That, that made Trump angry and, you know, made him decide, well, I'm going to go all in and do. But no, but the cake was baked here before, by the way, that pardon is a very interesting one that I get into the last Biden pardons. This is after, you know, he pardons Hunter in December. He does the pardons earlier for Anthony Fauci and the January 6th Committee and Mark Milley and all of those earlier. This is right at the end. And I report that it was against the advice of his political advisers and absolutely against the advice of the White House counsel. And there was a, and the decision to do the pardon actually comes as a surprise to Biden's inner circle. He does it, and there are so few people left working in the Biden White House that there's a real question that there's a scramble to get it out. Do they still have access to their computers? Because everything starts to get shut off. And it was a real kind of a white knuckled scramble for the last. There were two people left in the White House press office, for instance, how do we get the press announcement out on this and release the pardons? I mean, they obviously did. I think they had a little help from the auto pen in terms of the actual signing of the pardon, which, as you know, pardon doesn't actually need to be signed, so that doesn't really matter. But anyway, that, I mean, what, what a, what a case. We could do a whole separate book on the, on the pardons of January 2025.
- [64:42]
A
And in fact, my favorite maybe piece of the whole book is the little vignette you do of the two people who rejected their pardons from Donald Trump and the history of rejected pardons. You go back to Andrew Jackson, a man there who was sentenced to die, and Jackson pardoned him. He rejected the pardon and gets put to death by rejecting the pardon because the Supreme Court's like, yeah, sure, you can reject it. It is an act of grace that can be turned away. And John, I was really counting on you to find the reason why he rejected that pardon from Andrew Jackson.
- [65:18]
B
But no, it's entirely lost to history. I spent a great deal. But it creates a Supreme Court precedent that you can reject a pardon. Cuz it wasn't clear because this is something that has been granted and the President has an absolute power to pardon somebody. But the Supreme Court, it was, it was, it was. Justice Marshall, you can summarize the opinion better than I can, you know, says that this is actually an act of, you know, it's, it's an act of grace, an act of, you know, it's a gift that can be rejected, basically. And the, the, there's a woman in Idaho who had been nicknamed the, the, the, the Maga granny because she was a grandmother who came to the speech on the Ellipse on January 6th. A total Trump supporter. She was I think at the time, 67, 68 years old, something like that. And she follows the crowd up to the Capitol. She ends up being with the proud boys when they breach that first barricade on the west front. She goes into the Capitol, she actually livestreams it on, I think It's Facebook and YouTube. Very, very tech savvy grandma. And she, she gets, you know, she, you know, she's broken the law. She's, but, but in the course of it, she gets kind of pushed around and a Capitol police officer actually pulls her out from the crowd and she thinks that this guy has basically saved her life. So she has a very, she never, she never committed any violence and she feels that the Capitol Police that day acted as heroes and she said that she never intended to break blood. Anyway, she gets charged, she gets sentenced to four months in prison, sent to a notorious prison in California, all women's prison. It's now been closed. While in prison, Tucker Carlson takes up her cause. She hears about it a little while later when somebody visits her. She doesn't really like that. She's like, I don't really, you know, I feel like I did break the law. I'm serving. But she's, you know, she's still very much a Trump supporter, but starting to get some second thoughts by the time, you know, fast forward to the pardon happening. She full on thinks that she acted totally wrongly and that the sentence was entirely justified and that if she accepts the pardon that she is accepting the rewrite of history of January 6th and suggesting there was nothing done wrong. So, you know, she, but it takes her months, it takes her months to find out how she can reject the pardon. She asks a professor that she knows. She hears that there had been A situation where Susan B. Anthony, the Susan B. Anthony library or museum had rejected a pardon on behalf of Susan B. Anthony that actually Trump had given. And so she tries to. How could you do this? And she finds the. She gets some advice. Finally, the Republican senator, one of the Republican senators, Jim Risch, takes up her cause, presents it to the pardon attorney, and she gets her pardon nullified.
- [68:31]
A
You have this footnote also about the other guy who rejects his pardon, Jason Riddle, and in rejecting the pardon, hears his quote, just because the guy who started the riot says it's okay, it means absolutely nothing. That's a pretty. That's a neat thing to say. Okay, John. There's so much more. We could have gotten to the Jack Smith report stuff and the process by which that comes out. People are gonna have to read the book for that because I think it's really interesting about Todd Blanche and Emil Bovey, who's there. Here's the part that I think is the metaphor. It's the phone in the limo on Inauguration Day and the difference between Trump as he's inaugurated in 2017 and Trump as he's inaugurated in 2025 and what that phone means and what it has meant for the last nine months of this presidency. As you know, there's headlines in the New York Times about what's going on at the Department of Justice. And you've asked me on air many times the difference, like what's going on now versus what was going on then. And that phone, to me, it just spoke to me as this was the metaphor.
- [69:43]
B
I mean, first of all, this is the limousine ride, the White House, the beast, where the two incoming and outgoing presidents take that ride from the White House up to the Capitol for the inauguration. So Trump and Biden in the limo for that 2.1 mile ride. I knew when I was going to be writing this book that I would want to find out everything I could find about what was going on in that limo. It was not easy, and I did. What really triggered my interest just, I mean, obviously, just the fact that two of them are together in a closed car is wild. But if you remember when they came out of the White House, because there's a reception in the White House that Biden has invited Trump to. They come out of the White House, all the cameras are rolling. Every camera, every network is carrying it live. Biden gets in the right side passenger seat. Trump walks around to the left side and then gets in. And as he's closing the door, you can kind of. You see there's a Tinted window, but you could see a little bit. It looks like he's picking up something and going through it, and it looks like it's his phone and maybe he's texting somebody or what is he doing. So I just wanted to know what the hell was going on. And what I found out is that when Biden got into the car, he noticed on the armrest there was a phone in his limousine. Now, that may not sound crazy, but this is the most secure vehicle on the planet because it's about to hold two presidents. And also, there's a context here. The Israelis have used pagers, exploding pagers, to take out the Hezbollah leadership. I mean, is this a bomb or is it actually a phone? What is it? How did it get there? Biden's been president for four years. He's never once seen something in his limousine that he didn't put there himself or that he knew that his staff had put there. This was neither of those. So what I learned is Trump gets in, he sees Biden, and Biden starts asking this, what is this? Excuse me, guys, what is this? And Trump gets in, he picks up the phone, says, oh, it's mine. And I'm just looking. I just wanted to see what they're all saying about you. They're talking about what a great job you've done. Look, they're all saying such nice things about you, which, by the way, is weird too. But it turns out that Trump had somehow gotten his phone pre positioned in Joe Biden's limo. This is clearly because his staff knows the Secret Service. They've served with them before. They know how things work. They were able to do this. I mean, a total violation of all protocol, but they knew how to do it and they did it. And it's a metaphor for. They know the system now. And also they're not going to abide by the basic rules.
- [72:39]
A
Jon. Carl, the book is Retribution. It's a ride, man. I mean, it's a little ptsd, but it's a ride. And there's so much new reporting in it. It was a fun read. Thanks for coming. Oh, man. David, I felt like there was so much we didn't get to.
- [72:54]
C
Oh, I know, I know. There's. I mean, just the run up to the transition, the transition period, the immediate aftermath of the transition. There's so much there. There's a really big New York Times report that came out right, you know, the day we recorded this, about 60 attorneys, six, zero attorneys from the DOJ, former attorneys from the DOJ, talking about this, you know, these last 10, 11 months. And it's a really shocking and alarming read. If you haven't been following close, paying close attention. If you're an advisory opinions listener, you're going to read all those, the testimony of the 60 attorneys and go, oh, okay, this checks out. I knew about all this because I, I'm a faithful listener of advisory opinions. But when you gather it all together, it's pretty remarkable. But I will tell you, Sarah, my takeaway that's most interesting to me honestly is his reporting about that Garland was not exactly afflicted with a case of the slows, which is what Lincoln said of General McClellan in the, in the Civil War, that they were pursuing legitimate leads and that just takes time. I think that was an, that's very.
- [74:04]
A
Very interesting reporting also mirrors exactly what happened with the Mueller investigation as well. They were pursuing leads that didn't pan out. Garland was pursuing leads that ended up not panning out. And then you're never gonna really hear what those were unless John Carl's doing the reporting, of course. But you know, David, I was really left with a question that I keep coming back to. You know, in the multiverse, what if Rob her had been the special counsel on Trump and Jack Smith had been the special counsel on Biden?
- [74:36]
C
Interesting, interesting. That's a very good question because there's.
- [74:41]
A
Moments in John Carl's book as well that we, that I mentioned that we didn't get to about that report that's going to get released at the end that Jack Smith sort of insists on writing fulsomely, if you will, and the tension that really caused between Trump's team and the Department of Justice and sort of this sense that they were going to try to get him even though they couldn't get to trial in time type thing. And as I said, like obviously I'm friends with Rob Herr and so one wonders how much this all could have gone quite differently.
- [75:17]
C
You know, I'm also just struck again and this is sort of moving from the non legal world into just the political world, which is, look, if you're going to make a character argument against Trump, which is a key argument against Trump, this idea that you're going to be making that argument while you're in the process of this comprehensive deception around the physical condition and mental condition of the President of the United States, you're ripping the heart out of your character argument. And you're doing it in a way that's very vivid for people because unlike a lot of the Trump scandals, Where people don't know how election, how, you know, how are, how are votes counted? What's the system for election, what's the system for classified documents, all of these things. Can a president declassify them just sort of by force of will? All of this stuff is pretty opaque to people. Your average person just doesn't know how this works. They rely on other people's reporting and commentary. But you know what every single human being in the world knows time is undefeated and that when you get above a certain age, you can fall off a cliff. Right. And so in a way, the way in which Biden was pushing through that issue, I think experientially for people, for your average voter, felt more brazen than some of the stuff that Trump does. And to this day, I don't think the Democrats have really, that has sunk in with them to this day. I think they think of that as a mistake and not as a, as a character issue, not as a deception campaign. And those are two different things.
- [77:00]
A
Yeah, they think it was a political, a strategic mistake, right?
- [77:04]
C
Yeah, they think of it as well, you know, it's like the coach and the offensive coordinator weren't on the same page. And the 15 plays, we dropped the ball. We should have game plan better. No, no, no, no. This administration to the very highest levels was engaged in a cover up and badly doing it. Very badly, very badly. When you look back on it, it really is a symbol of Trump has never been able to really establish himself as a majority figure in any way, shape or form. And the fact that the Democrats came as close as they did to winning in 2024 with the economic headwinds that they faced and with a president essentially vacant from the bully pulpit, a press secretary who set new records for incompetence, like who was, who was giving the Democrats message here. I mean, this is, it's really remarkable stuff.
- [77:58]
A
All right, next time on Advisory Opinions, we've got a cert grant to talk about and who knows what else.
- [78:04]
D
David.
- [78:05]
A
So stay tuned. We'll be back later this week with more advisory opinions.
- [78:09]
D
Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO. You'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at Advisory opinions the dispatch.com we read everything, even the ones that say David's right.
- [79:07]
A
And do you have thoughts about the podcasts we're making at the Dispatch? Now's your chance to tell us. We're running a listener survey, which you can find@thedispatch.Typeform.com podcast. We'll put a link to that in the show notes and look forward to getting your feedback.
- [79:33]
B
Sat.