A (3:07)

Oh, from the city schools.

B (3:09)

Yeah. Or they had gone to boarding schools, to prep schools, and that was like. I mean, that was mind blowing.

A (3:16)

And where are they now, Jodi, in the world of journalism compared to you?

B (3:19)

I don't know. I confess that I don't spend my time checking.

A (3:23)

You don't spend all your time checking, or you spend no time checking?

B (3:26)

I think I spend close to no time checking.

A (3:30)

Although the answer is not zero.

B (3:32)

We're here to discuss serious things, but one of the pieces of fun that comes with a big story or a book coming out is that you do hear from these people earlier in your life. I mean, in the last week, I've gotten notes, especially because my book is about how to start. And as you know, I tell some, like, pretty mortifying stories of my early career. Thank you very much. Hearing from people in that era, in my life is actually really special.

A (3:59)

I want to talk about that, but first we got to talk about some other things, matters of consequence, as they're referred to in the Little Prince Supreme Court. So we don't have to get into your dropping out of Harvard Law School because you want to be a journalist, but I respect that a great deal. But now you're sort of coming full circle a little bit, and you're covering the Supreme Court. Let me ask you a couple of preliminary questions before we talk about the secrecy issue that listeners of the podcast will be familiar with, because we've had Steve Vladek on. We have talked about his book, the Shadow docket. So why, of all the things in the world to cover, given what you've covered before, we'll Talk about the MeToo movement and your role in that Supreme Court. Important why?

B (4:42)

In journalism, scrutinizing the powerful is job one, as you know. And a couple of years ago, about four years ago, I got a tip about the court, and I was not in the market to cover it whatsoever. But this tip was about a secret influence campaign that had been carried out inside the court. As you know, the very idea of that is outrageous, that anybody could be trying to infiltrate the court to influence the justices. And sometimes as a reporter, there are things you know, but when you do the story, you come to really know them and feel them. And I saw in the course of that reporting and in the course of working with my colleague Adam Liptak, that we don't know the answers to some really basic questions about the Supreme Court. The place is a locked box. Other than oral arguments and opinions, how partisan are the justices really? How much work are they doing, and how much work are the clerks doing? What is it like to age in those jobs? What is it like to hold power for 20 or 30 years at a time? How are they really responding to the Trump moment? Those are, like, pretty obvious, big basic questions like, I'm a law school dropout.

A (6:04)

They're fundamental.

B (6:05)

Yeah, I'm a law school dropout, not a fancy legal scholar. And yet, you know, I can pose them. And so what I wanted to see is if the tools of investigative journalism could work to help us learn more about the Supreme Court. And it turns out they really can. We now have a five person team at the New York Times, including our editor. We have Adam Lipchak, Roz Helderman, the editor, Anne Marimau, covering cases and decisions. Abby Van Sickle, who does a little bit of everything, and me. And the New York Times has a new institutional commitment to understanding the Supreme Court better. And there are a lot of things we've been able to bring to light. Preet, you know, I broke the story about the two provocative flags associated with January 6th outside the Alito's homes. Adam and I have now done behind the scenes stories about three cases. We did Dobbs, we did the immunity decision, and now this shadow papers story tells the story of the origins of the shadow docket. So the point here is that on your show everywhere, there's tons of debate about the Supreme Court, but it's hard to have a really great debate about a place that's so secretive. So what I want to do is put information on the table that helps us have a, a richer, more penetrating, more accurate debate.

A (7:30)

Let's talk about a couple of premises here. When we say, I don't know if you mean to say this, and maybe you do, that the Supreme Court is secretive, and I hear senators say the same thing. Sounds pejorative. Would you concede that there is some legitimate reason why Supreme Court justices should maintain a certain level of privacy, that they shouldn't be going on Stephen Colbert every night and going on podcasts every week, keeping their thoughts to themselves because they could prejudice some debates that they enter into and keep their private lives secret. Is some of that valid or not?

B (8:09)

So I would make a distinction between telling them what to do versus deciding what I as a reporter should do. Listen, I think if you're a really principled journalist. You're not telling public figures or officials who hold high office what to do. You're seeking information. And I know the information I'm seeking. And in that, in my own work, I do make that distinction. Because, Preet, you don't see us in the pages of the New York Times, for instance, getting ahead or trying to get ahead of the court's decisions. Like when Politico published the Dobbs leak. Of course they were right to do that. That was newsworthy information. But getting that kind of thing is not the goal of my reporting for two reasons. One, it's going to come out anyway, right? It's going to come out in two weeks, in three weeks. So with the limited bandwidth, investigative journalism is really hard, and you have to decide where to aim your capital. That's not my goal. And also, another principle of journalism is that you do try to observe and not get in the way. And to get to opinions early does create the issue of, like, you're kind of becoming an actor in the deliberative process, which I don't particularly want to do. The other distinction I should make is that you used two words that for me are very different. You used secrecy and privacy. And throughout your career, you learn things, right? And you come up with independent principles of your own to add to the craft that you're learning. And one of the things I learned in the course of breaking the Harvey Weinstein story with my partner Megan Tuohy, is that there's a difference between privacy and secrecy. Did those women who were abused, did they deserve privacy? Of course. Of course. Right. I mean, these were intimate crimes. These were humiliating violations. This was traumatic. Was the system benefiting from wholesale secrecy in which secret settlements and dodgy legal agreements were used to erase what happened? No, that was enabling of abuse. So I feel like a lot of my work, you know, like, I've met with students who say, like, Jodi, we want you to cover the Supreme Court the way we cover Congress or the way we cover the executive branch. Like, we want, you know, immediate gratification and constant stories, and we want the horse race. And I push back at them. And I say, like, not only would my sources not tolerate that and support that, but I don't think that's right. I think form wants to meet content. And I think what we want to do here is create a system of covering the Supreme Court, the federal courts, that actually matches what really feels right and what judges really do. So, like, for example, the shadow paper scoop, which I'm so delighted to talk to you about today. Adam and I were reporting on a case that this was in 2016. This is old. And so that's the idea that I want to challenge that 10 years later for something so momentous that allows us to observe the creation of the shadow docket. We're not allowed to really know about or understand that, even though the Court didn't explain its decision at the time and hasn't fully explained its thinking since.

A (11:42)

Yeah. So I want to talk about the origin story in a moment. But just reorienting the question about the privacy of the. Of the justices, my view is that as an absolute minimum, the work they do, the actual work they do, should be public. There shouldn't be a shadow docket. There should be cameras in the courtroom. People should understand what the Supreme Court does that's different from some of the ways we cover members of Congress unless there's a direct conflict of interest. So what someone does with their private time, what TV shows John Roberts likes to watch, I'm not sure if that's relevant or not. Maybe when TMZ begins to cover the Court, we'll learn some of those things. But it can become relevant if Clarence Thomas associates with certain people and gets benefits from them or they try to impose their views on him, or there's a spouse of a Supreme Court justice who creates a conflict for the justice. So I guess it's complicated back and forth. But would you prefer as a citizen, that the justices got out and about more and explained themselves more outside of the four corners of their opinions? Does that benefit democracy or not?

B (12:51)

So I wanna somehow answer your excellent question in a way that complies with my own rule of truly not telling the justices what to do. I will tell you what I have witnessed in almost four years of this preet. I have seen nine people who are treated in such a weird way. Because what I mean is.

A (13:16)

What do you mean?

B (13:17)

The obsequiousness that surrounds any Supreme Court justice is profound.

A (13:25)

Have you seen a Cabinet meeting? The obsequiousness towards Donald Trump is also a thing to be beheld.

B (13:32)

I'm sure you're right. But as you know, in legal circles there is like a special. Yeah, like, at its best, it's genuine respect for the office. And at its worst, it's like a kind of blatant sucking up. Okay, so like, let's say that like some huge percentage of what they face is sucking up. Then you have another category, which is attack and threat. Right. You've got some crazy person Making a real threat on Justice Kavanaugh's life. You've got Justice Amy Coney Barrett, whose sister, who has nothing to do with her job, getting a pipe bomb threat in her mailbox. And so what we're talking about here is a really extreme way of treating justices. Right. And what I am interested in contributing to, because some of this exists, but I want to see more of it. I want to see a rigorous, fair examination of the justices that doesn't fall into the camp of either obsequiousness or attack. Right. Like, both of those things are pretty negative. We want honest, sophisticated, credible, enthralling coverage of the court. It was the same when I covered President Obama. There was like this hagiography industry, like, devoted to, like, the glorification of the Obamas that I was not interested in being part of. He was the president. Like, we, we probe him, we probe power. But then there was also like, you know, these birther attacks saying he wasn't born in the United States. So the job of a journalist is like, to create a totally different space.

A (15:17)

So let's go back to what you began to speak about, the origin of the shadow. You don't call it the shadow docket, you call it the shadow papers. So what, what should we, what should we call it for this interview?

B (15:27)

Okay. So as you know, there is a ton of discussion about what to call this form of dealing with cases. I think in this discussion, we should call that the shadow docket, because that's the name that people know. The shadow papers is the scoop that Adam and I published, which I'm happy to explain if anybody missed it.

A (15:46)

Why don't you do that? And then I have a couple of questions about why the Supreme Court interacts with the way that they do, because I think it's very unusual.

B (15:56)

Okay, great. So anybody who listens to the show knows what the shadow docket is, right? Like, let's just say it in case there are newcomers. But it's a secretive fast track in which the court bypasses some of the time tested tools of judicial evaluation and decision making, and they make temporary but very consequential decisions that very fast and often there's essentially no explanation there. They issue these short orders sometimes that have like the legal boilerplate and vague instructions for what should happen, but have no reasoning. And reasoning, as we know, is the bedrock of the law. It's what an opinion is. It's how judges and justices hold themselves accountable. So this has existed for a long, long, long time. It's been used more Typically over the decades, for true emergencies like death penalty cases or election cases, about 10 years ago, the court starts to use it in a new way, especially when it comes to presidential power. And of course your audience knows that the shadow docket is really how the court has, for the most part, granted President Trump a ton of power. In the last year and a half, there have been over 20 decisions, big victories for President Trump. They came on the shadow docket and some of them were totally unexplained.

A (17:26)

So the question is, so why? Yeah. So why in 2016 was that shift?

B (17:31)

That's what Adam and I asked. In 2016, there's this case. Obama, in his last days in office is trying to pass a new energy policy, like climate change is happening in a big way. He hasn't done anything really big to address it. He's trying. He's got this regulation called the Clean Power Plan that is aiming to transform the fossil fuel industry. And opponents of this plan, states who fear it's going to be expensive and power companies challenge it and they take it all the way up to the Supreme Court. And the Supreme Court does a very surprising thing at the time, which is that Even though the D.C. circuit is going to hear this and has said arguments, the Supreme Court intervenes and they halt Obama's plan. And they do it not with a full opinion that explains why they're, they had never before interceded at this stage of a case. Instead of issuing a real opinion that explains why they've done this very surprising thing. It's the short order. It's 142 words that says nothing. And in retrospect we see that this case, the shadow docket, was born slowly and over years. But this is a signal point. This is a pivot point. This case marks a shift. So Adam and I are essentially asking the question, what happened? How was the shadow docket as we know it born? And I'm proud to tell you, Preet, we got a real answer because we were able to publish 16 pages of the Justices private deliberations. This wasn't like the Dobbs Leak, an opinion that was meant to become public. This was correspondence between the Justices that allows us to eavesdrop on them during this five day sprint when they are making their decision. And in part because they never released any public reasoning. It is very interesting and telling to see their reasoning in private.

A (19:39)

So let me ask a methodological question before we get to more of the substance. So you look at these memos and you see the people on the court going Back and forth. Why don't they have a meeting? Why don't they get a cup of coffee and sit around in a wood paneled conference room and hash it out? Why these formal memos that are always subject to be leaked?

B (20:02)

Well, I thought you were going to somewhere different with the question.

A (20:06)

Go wherever it was better for me to go.

B (20:08)

Let's concentrate on the first half of your question, which I think is really important. The Justices do have a really special room with really special chairs and a really special table, as you know, where they make their decisions. This is their private conference room. It's like the holy of holies inside the Supreme Court. And for most cases, for merit's cases, they do meet in person to vote. And like, I think sometimes the votes are, you know, just going around the table saying which way you're going to vote. But often very robust discussions about the issues at hand. But with shadow docket cases, for the most part, they don't meet in person. These memos were circulated. They were circulated, I think, both over hard copy and email. But the Justices were away. It was during a mid February break. They're all over the place. Their clerks are in the building sharing these memos. And if there was any justice to justice communication during this five day period, we don't know about it. So they communicate in writing. And one of the concerns about the shadow docket is essentially people saying, will you please sit down and have a real discussion. You're going too fast.

A (21:29)

So now let's go to the $64,000 question. Why was this day different from all other days? Jodi? Why did they decide to do something? I mean, there must have been other occasions in the history of the Court when one or more Justices thought, well, time is of the essence, we should intercede in a proceeding, whether it's the D.C. circuit or some other circuit. But they didn't. Why here?

B (21:53)

I would take you to the Chief Justice's memos. Out of this entire stack of memos, he is the author who just leaps out of these pages because we see a different Chief justice than the one we have seen in public. The one we've seen in public, as you know, speaks in kind of magisterial tones. He is of course very conservative, but comes across as very even handed, very concerned with process and the stability of the Court. Here he is moving so much quickly. You know, he writes the first Memo because the D.C. circuit is his responsibility and he comes out of the gate really strong. We have to halt this plan. We have to do it for these Reasons the Democratic appointees on the court raise really serious procedural objections there. You know, their memos essentially say, this is unprecedented. This is weird. We've never done it this way before. Why are we doing this? I have very serious concerns. And he is dismissive in response. He says we have to do this because this is the most expensive energy regulation ever imposed and it's going to cause irreparable harm to the coal companies and to the states if we do this. And by the way, for fairness, Preet, we have to say there was a real legal issue here. It is not clear if the Clean Air act really authorized this legislation. So it's not that there wasn't a real discussion to be had here. It's the way the Court handled it.

A (23:39)

So the listener might be thinking to oneself, that sounds an awful lot like policy, not law, though. Is that a fair observation of the way you presented the question?

B (23:51)

For Adam and I, it's really important to put the information out there in public and to let legal experts like you and legal scholars draw those conclusions. But yes, many people who have looked at these papers, not everybody, because there's been debate about how to interpret them, many people thought that the Chief justice was relying on too heavily on what we would call extrajudicial factors. Like, essentially, he was using math that should not necessarily be part of, like, the strict math of how a judge makes a decision. And in particular, what you can see in the papers is that the Chief justice was in a power struggle with the Obama administration and the EPA in particular. He felt that the EPA had bypassed an earlier decision and he did not want the court to be sidelined in again.

A (24:49)

That doesn't necessarily explain why they persisted in this practice. Do they get sort of high on the sauce, to the extent you can, of the shadow document? That was a nifty trick. Let's do that again and. Or look, there wasn't a lot of pushback that came much later. And it's a very esoteric issue that laypeople don't necessarily understand or care about or vote on. Combination of those things, something different.

B (25:21)

The best thing I can do, Preet, is to amplify your question and say, you know, and say, as a reporter, like, if the justices are going to do really big things like make decisions over the last year or so about who can be deported and with what process, why not provide more reasoning to the public, especially given that trust in this court is languishing at historically low levels and given that we know that courts get and preserve their authority from writing opinions.

A (26:01)

I mean, that's where they get the legitimacy from.

B (26:04)

Exactly. And it's such a powerful, beautiful thing. It's like there may be listeners out there who have had a judge decide something against them in such a painful way. Right. A judge could put your brother in jail for life after a crime, or a judge could make a decision that shuts down your business. And so writing an opinion is an act of respect and credibility that says, I know that a lot of you are gonna disagree with this, but I want you to know that I was sincere and I was diligent and I'm reaching a purely legal conclusion. And so that distinction is really important for me to make in this work because I know there are critics of our reporting who think that we're just trying to undermine these decisions. If anything, the opposite. We're saying, please, can we understand the court's logic better?

A (27:03)

No, absolutely, 100%. There's a scholar at NYU Law School, Jeremy Waldron, who writes about thoughtfulness in the law, and he makes this point that you've made very eloquently that people don't often think about. And that is you want to see the reasoning for decisions to understand whether or not the decision was made correctly. And so other courts, if it's not the Supreme Court, higher level courts, can make determinations. There's a record, People can debate them. People can understand legitimacy. But there's this other thing that you just mentioned, which is the affording of the dignity to the parties who aren't left to wonder, well, did they even deliberate at all? Did they even think about it at all?

B (27:45)

Correct. Or are left to their worst assumptions? Right. Like the kinds, if we care about stability in the courts, we're suffering a loss of faith in the law in so many ways. Right. In so many different sectors of society. And there are people who find it hard to trust a court that won't explain itself. And also, like, obviously there are lower court judges who are saying, it's just really like, they're saying, I can't do my job without more explanation because you need guidance. Exactly.

A (28:24)

And it's a conferral of dignity upon the parties. And so let me ask you this question from a journalistic perspective. Do you think that this issue, based on your reporting and scholars talking about it, and very, very, very influential podcasts such as this one, raising the issue, that there is a bit of not just defensiveness on the part of the justices who engage in this practice, but a little bit of a rethinking about it?

B (28:51)

Or yes and no. So a couple things. There have been a couple of recent shadow docket opinions where they have provided a little more explanation, and the common interpretation of that has been to say, okay, they get it, like they understand the concern. They're trying to do a little more. But also this has become a public debate among the justices, most notably with Justices Ketanji, Brown, Jackson and Justice Sonia Sotomayor being vocal critics of the shadow docket. This is just in the last couple of weeks, you know, they've made statements saying that they're very concerned about this. And interestingly, Justice Brett Kavanaugh has been a very public defender of this practice and he's essentially, you know, his attitude has been the court has to take these cases and can't abdicate its role. Also, Justice Amy Coney Barrett said something very interesting in the book she published last fall about this. She said, sometimes when we don't explain ourselves in these opinions, it's because we're not ready and we don't want to lock ourselves in. The answer to which, like the rejoinder to which I should say the criticism of what she said is that some of these decisions are so enormously consequential. You know, if you're talking about a reordering of the shape of the federal government or firing tons of people, like by the time the court gets around to the Merits case, the that case may have become a kind of ghost ship of a case that is irrelevant at that point.

A (30:38)

I'll be right back with Jodi Kanter after this. Support for the show comes from Thrive Market. So many of us experience decision fatigue while grocery shopping. Keeping track of ingredients, brands, prices. It's a lot. What if you could go to a grocery store that only stocked items specifically to your tastes and preferences? That's basically Thrive Market. Thrive Market is a membership based online grocery store. For just $5 a month, you get access to a curated selection of organic and non GMO brands that you can easily filter by diet. You also get access to weekly sales, free gifts, and peace of mind knowing the the foods and ingredients you're getting are right for you. I recently tried Thrive Market and I was surprised by how simple it was. I could quickly find healthy options that fit my preferences and have everything shipped straight to my door. One membership covers the whole family, even when everyone eats differently. No more decision fatigue. Your filtered results only show what fits your household. Ready to do your own Spring reset? Join Thrive Market with the Link thrive market for $20 off your first three orders plus you'll get a free $60 gift.

B (31:52)

I'm Maria Sharapova and I'm hosting a new podcast called Pretty Tough. Every week I'm sitting down with trailblazing women at the top of their game to discuss ambition, work ethic, and the ups and downs that come on the path to achieving greatness. We'll dive into their stories and get get valuable insights from top executives, actors, entrepreneurs, and other individuals who have inspired me so much in my own journey. Follow Pretty Tough wherever you get your podcasts. I'm Mitch, first two time NWSL Champion, Championship MVP and forward for the US Women's National Team. Before I went pro, I graduated from Harvard with a degree in psychology, which comes in handy more than you think. Any athlete pursuing greatness knows there's a certain mentality you have to have. What people don't know is what that costs. In my podcast, Confessions of an Elite Athlete, I sit down with the best athletes in the world and explore the psychology, mindset, and unseen battles on the path to greatness. So take a seat and learn from the Confessions of an elite athlete on YouTube or wherever you get your podcasts.

A (33:10)

You mentioned John Roberts a few times. He is the chief. It is the role of the chief in some ways to steer the court and to figure out who writes the opinions. But you wrote a piece not that long ago about the immunity decision. And what's super. I mean, many interesting things about it is the the lack of awareness on the part of the chief justice, it appears about how his opinion would be received, which raises a number of questions, including is that an important consideration? Is that a valid consideration? If you're just calling balls and strikes, the umpire should not be concerned about the booing of the crowd. If he or she calls a strike and the crowd wanted it to be a ball or thought it was a ball, does he care about that? And why did he get it so wrong?

B (34:02)

There are two big criticisms of the immunity decision, and it's worth mentioning them both because I think they fall into different categories in terms of your question. One criticism, of course, is the obvious one we've heard a million times, which is that the court gave President Trump too much immunity. Many scholars, many thinkers have said that. They've said, well, why did they award him even more immunity than his lawyers actually asked for? This opens the door for things like bribery, et cetera, et cetera. So there is disagreement with the actual upshot of the decision. And as you know, the traditional thinking is that judges and justices need to be very careful about the way they think about and respond to that stuff because we don't want our jurists to be overly sensitive to public opinion. How sensitive they should be, I think, is a matter of great debate, including on this court. Like, I don't think all of the current justices have the same views about the tension between, like, on the one hand, true independence, which is so important, and then on the other hand, like knowing what time it is and being in touch with public sentiment. But then there's another issue with this immunity decision, Preet, which is whether it works as a piece of legal logic, whether it holds together. And that was a second criticism even among conservative scholars. They said this chief justice is like a very experienced and distinguished judicial craftsman. Why does this opinion appear so disjointed? Why does it raise as many questions as it answers? Why do there appear to be holes in it? And that, I don't think was a partisan question. That was a very basic question about whether this thing works or not at a critical time as to why it ended up that way. I mean, I can tell you from our reporting that we got some insight into the conservative supermajority. Right. It's easier to it's easy to look at these six Republican appointed justices as one thing and one body. They're not. It's like a very complicated ecosystem of six people who have different views. We know from bits of memo that we published from Justices Kavanaugh and Gorsuch that they were really egging the chief justice on, that they were telling him that, you know, this was a genius opinion. There's been some commentary. I think an excellent question that I don't fully know the answer to, but that's worth mentioning is were the justices, remember, this opinion came out during the Biden administration. Right. Were they also trying to send a message and protect President Biden from political prosecution after he left office? So anyway, there's, you know, Adam and I. I'm happy to say that Adam and I reported as much behind the scenes as we could, but there are many questions left to answer.

A (37:12)

I just want to read a paragraph from the piece so people understand exactly what we're talking about. And also because it gets at what must have been a view of the chief justice that Donald Trump and at that point he was not in office, is sort of a passing phenomenon and can't do too much damage and get over it kind of thinking. And you wrote, you and Adam wrote this quote in his writings on the immunity case. The chief justice seemed confident that his arguments would soar above politics, persuade the public and stand the test of time. His opinion cited enduring principles, quoted Alexander Hamilton's endorsement of a vigorous presidency and asserted it would be a mistake to dwell too much on Mr. Trump's actions. And, and he wrote in the opinion, our perspective must be more farsighted. Anything else you want to say about what that reveals in your mind about the perspective both backward looking and forward looking on the part of Justice Roberts?

B (38:14)

Well, I think it speaks to one of the most important questions we have, which is what is the attitude of the center of this court, which is a very conservative center, of course, towards President Trump? Because if we look at we've got essentially three swing justices, right? We've got the chief justice, we've got Justice Kavanaugh and we've got Justice Amy Coney Barrett, and they have all experienced President Trump in like a very intense way, right. Whether it's through these emergency applications or some of them go to State of the Union, some of them don't, as you know. Well, I think those three have mostly attended the chief justice. And Justice Barrett went. I think Justice Kavanaugh went as well, if memory is serving correctly. I don't have it in front of me. Anyway, two of them were appointed by President Trump and spent time with him during that process, et cetera, et cetera. So they are like they're not strangers to the figure of President Trump. So what do they really think of him? I think what we see is that the Democratic appointed justices really see President Trump as a threat to the constitutional order. They have written that again and again and again. The center of the court is the big question. And in the immunity decision, they did not seem like they wanted to countenance or grapple with what happened on January 6, what message the court was going to send about it. You know, like this was a politically complicated case wrapped up in a presidential election. And so you see in that opinion and in those words that Adam and I wrote, the chief justice making an attempt to kind of like soar above it all and say we're not really going to address the urgent and complicated questions of the current moment.

A (40:21)

It doesn't always work. Since I have you and since you are an intrepid reporter who hails from Monmouth county, which is terrific background, I'm going to ask you this question. I'm going to hold you to the answer. Is Justice Alito retiring this year or not?

B (40:39)

Oh, I don't know.

A (40:40)

Oh, come on, you know. I bet you know.

B (40:43)

Not only do I not know, but I will tell you the second As a reporter, you make a prediction, you are cursed. Okay, how about this on that topic

A (40:54)

and show your reason. Show your what? What are some of the factors that suggest he, he will retire and the ones that suggest he won't?

B (41:01)

Okay, that's totally easy. Okay, so there's been like a ton of speculation about the publication date of his book. He's got a book coming out in Oct. It coincides with the start of the term. Some people have reasoned, oh, well, he wants to go on a book tour. He's not going to be like showing up at the court during that time. Other people have said no. He is riding high judicially. This is the moment he has been waiting for all of these years and he is not going anywhere. There is. I've heard both sets of logic and I, I truly don't think we know. Because on the one hand, he's got a powerful incentive, obviously to be replaced by President Trump. But on the other hand, Preet, we have learned observing powerful figure in hot powers. And whether it's on the left or the right, people seem to have a lot of trouble of letting go of power when they get older.

A (42:00)

That's why they're gonna have to pry this microphone for my, what is the phrase?

B (42:06)

My cold, dead hands with powerful consequences for the Republic. Preet.

A (42:12)

Yes, we'll reverberate through all time. Look, it's also possible he doesn't know, of course. Right. Part of the reason maybe we don't know is because he doesn't know. Maybe he's thinking about it, maybe he's contemplating it, but he's not sure. I don't know the answer to the following question, and I think I should. Is it known to someone or some people who the leaker of the Dobbs decision was?

B (42:37)

I don't know. We don't know if the political reporters know who leaked it.

A (42:42)

Okay, so it's not the case that it is known, but we don't know. Maybe nobody knows.

B (42:46)

I don't know. Like, is there some scenario on earth in which the court internally identified the leaker and made a decision not to publicize it? I guess that's hypothetically possible. It seems pretty unlikely to me, but I honestly, I don't know. It's very hard to find a leaker. Very hard.

A (43:06)

I know that from my experiences as well. So we spent a lot of time talking about the court and the things you've written about with Adam Liptak and others. But as you've alluded to, you had a really important impact on the country on the World on workplaces through your reporting with Megan Tuohy. What is that now? 10 years ago? 9 years ago?

B (43:27)

Almost. Almost 10 years. I can't believe it. But it's.

A (43:31)

What are your reflections on that reporting and where we are in the country today?

B (43:38)

So it's been nine years, almost to the day that I started investigating Harvey Weinstein. Megan was off having a baby. I was alone. I remember in a trial nine years

A (43:50)

later, there's a trial going on right now in the Manhattan DA's office.

B (43:53)

He's been on almost continuous trial for the last couple of years, as you know. But I remember Preet like the blank Google document I started at the beginning of that investigation. And I did it without knowing if Harvey Weinstein had ever crossed a line with actresses. So I think I would say two things in response to your question. One, the truth works. Brave sources work. Even in our crappy information environment, it is still true that evidence is powerful that these women and their stories were more powerful than all the shenanigans that Weinstein pulled. I mean, he did crazy stuff, as you probably know, in addition to, like traditional stuff like PR stuff and attempted lawsuits and lawyers. You know, he sicced a group of Israeli ex intelligence agents on me and on other reporters and on sources. They, like, tried to dupe me. They came to my apartment building and took photos. Like, all this stuff he did, which sounds scary and intimidating. It did not work because these women's stories were true. They were real. And these women were incredibly brave. And if we look at, like, if you look at the number of people who gave us the vital information we needed to publish the Weinstein story, including, by the way, Harvey Weinstein's accountant at the time, who I won over.

A (45:31)

I've forgotten that.

B (45:32)

Yeah, I won him over and he ended up helping us. And he was very brave. That number of people would fit inside, like a tiny conference room. Like they would fit inside this tiny podcast studio here at the New York Times. And yet look at the worldwide impact they had. So that's the first thing. And then the second thing is, boy, these obituaries for the Me Too movement, they have really been premature. I mean, talk about not making predictions. There is a massive backlash against the MeToo movement, obviously. It is a presidentially led backlash in so many ways. And yet look at what's happening, Preet. Look at the Cesar Chavez story that my colleagues published just a couple of weeks ago. Look at Giselle Pellico in France coming out with her head held high during that trial. And A lot of other examples.

A (46:31)

You put Eric Swalwell in that category.

B (46:34)

I think that's a really good question. Right. There's like a. It's a complicated story, but I do, because there is now a mini reckoning going on in Congress all these years later. And it's not just Democratic or Republican. Right. That is about how could this behavior have happened and why didn't it come out sooner? And what's the system? And who helped these guys instead of helping the women who were in a vulnerable position? And so I would say the MeToo movement has become politicized. There's a huge backlash. We've never sorted out the basic questions about, like, how are we evaluating these stories and what's inbounds and what's out of bounds and what kind of behavior do we care about and what are the. What are the tools we use to examine them? But the process goes on. Nine years later, the conversation is still

A (47:28)

happening, and we have not returned to a, you know, hear no evil, see no evil 2015 mentality. We just haven't. And the other thing I will say is when people talk about these incidents, one of the first questions that people ask, whether it's the most relevant question or not, is when did the conduct happen? And if the conduct happened in recent times, meaning after public awareness, after your reporting, after Harvey Weinstein, after all these other stories and all this other accountability, and then it happened, it's judged, I think correctly, more harshly because there was no excuse before, but now someone decided to engage in awful, damaging, consequential conduct, knowing that you're not supposed to, even though you should have known it before. Do you know what I mean?

B (48:25)

Oh, well, look at Governor Andrew Cuomo. I mean, part of what's astonishing is that some of the most serious allegations against him were from right after the major MeToo moment, which was like, 2017, basically, and he was the governor of the state. That was ground zero for this stuff happening. So you're raising an excellent question about, you know, if you. If you take the women's stories to be true, what was he thinking?

A (48:58)

On the other hand, he's also probably in some ways a poster child for the backlash because given the alleged conduct and what you're describing, he came fairly close to becoming the mayor of New York City.

B (49:10)

You can talk about that either way. Right. Because his campaign was ultimately unsuccessful. And I do think the fact that he had lost the trust of many people played a role in Mayor Mamdani's victory.

A (49:25)

Do you hear from the people you wrote about now, do they have a different perspective?

B (49:31)

Oh, I love that you asked that. Yes, I'm in touch with a lot of them, not all of them every day. But I'll tell you one great story because this is very much a story about the law. Okay. There's this woman named Zelda Perkins. She lives in the uk. She is not a famous actress. She's a former assistant turned producer. She had a secret settlement with Harvey Weinstein that dates back many, many years. Like, this goes back to the 90s. It's a complicated story because her story is linked to another woman's story. She was less of a victim herself than somebody who knew about it at the time, tried to help, ended up taking a secret settlement. Really regretted it. So I call her in the summer of 2017, and we begin a dialogue. I was very honored. I'm still honored at the time that she decided to trust me, to talk with me. And in doing so, she's breaking the secret settlement. Right. But. But. So she's breaking it privately. And the thing she's starting to think about is could I ever really come out of the closet? Like, could I ever go fully public with what happened to me? And her story's crazy because she still had some of her papers. And the conditions of the secret settlement were so bananas. Like, you can't tell your accountant what happened without speaking to Harvey Weinstein. You can't tell a therapist what happened without speaking to Harvey Weinstein. So I know she's considering this. And, like, as a reporter, of course I want her to break the settlement, but I also know that I. She's in a perilous situation. So I call this lawyer in the UK who specializes in these kinds of settlements, and I don't use the name Weinstein, and I don't use her name, but I describe the situation, And I said, Mr. So and so I want you to tell me how much legal peril would she be in if she publicly broke the settlement and told her story? Because I want. As a journalist, I felt I had an obligation to know.

A (51:33)

Good question.

B (51:34)

So he starts, like, he gets as close to screaming at me as a British person can get. He. He's like. He's like, jody, this is irresponsible journalism. This is reckless, what you're doing. Like, even the private conversations with her, she is. She is facing legal jeopardy. She is facing financial jeopardy. It's basically this, like, giant lecture that I don't know what I'm doing, and it's really dangerous, and I need to stop. So needless to say, I didn't stop. Megan didn't stop. Zelda was in our first story, but on background, we didn't acknowledge that we'd spoken to her. Later, we're able to tell the whole story, and she does publicly break her settlement agreement. She tells her story to the press. She becomes a campaigner against secret settlements in the UK she recently succeeded in getting legislation passed that really limits these kinds of settlements. And Preet, she just got a cbe, which is that fancy British thing you get when you get honored by the King for being of great service to the British Empire. So, I mean, I. I can't even remember that name of that lawyer I spoke to, but I would like him to know that not only were we not doing reckless and damaging journalism, but this brave woman now has one of Britain's highest official forms of praise.

A (53:12)

Well, that's a good story. So no legal consequence for her because someone chose not to.

B (53:16)

Well, Weinstein has not gone after these women. I mean.

A (53:20)

Well, she has other. He has other problems.

B (53:22)

Correct.

A (53:23)

By the way, just going back to something we were talking about earlier. I meant to ask. Now it's sort of come up again. Do you have a view, as a journalist, about the fact that, as is reported, that Supreme Court clerks Now sign NDAs?

B (53:37)

Oh, well, I reported that.

A (53:38)

You reported. I mean, I didn't mean to use a passive voice.

B (53:41)

My view is that I broke the

A (53:42)

story, as you yourself, Jodi Cantor, have reported. But you didn't put an opinion about that in the. In the article. Do you have an opinion?

B (53:48)

I have shocking news to tell you, Preet, which is that we don't express our opinions in the pages of the New York Times.

A (53:54)

On podcasts, you must. So what is your view of that?

B (53:57)

My view is that it's our job to chronicle the court's secrecy, to probe it, to challenge it in an appropriate way as a reporter. Okay, I'll give you what I think is the more interesting question, which is, like, does it work? I mean, what we see with NDAs, both. So there are two types of NDAs, as you know. There's like, the workplace NDA that's a blanket NDA that everybody has to sign if they want to work at the place. That's what we're talking about at the Supreme Court and at, like, a million companies. Then there are secret settlements, which is after anything bad happens or allegations of anything bad or sexual abuse, in consideration

A (54:37)

for the money you get.

B (54:39)

Exactly. But what both of them have in common is that, like, they're not the strongest legal tools ever created, like, especially the workplace NDAs we've seen over time, and I'm not just talking about the Supreme Court, is that they tend to be tools of intimidation. It's not clear whether they hold up in court when they're meant to protect a trade secret. They are stronger. The strongest example I can give you is, like, an NDA that is meant to silence allegations of sexual abuse. We've seen that. Like, there are judges who are not gonna uphold that. Like, that's not the original purpose of an NDA.

A (55:20)

You've gone a long time. And I want to talk about your book that is, I guess, inspired by or of a piece with the commencement address you gave at your alma mater at Columbia. I have a million questions about it, so you'll have to come back so we can talk about some of the themes. And some of this stuff is more important, as I said to you before we hit the record button in people's lives, than this other really important stuff we talk about. One question is, you know, you talk about craft, which I wholeheartedly endorse, the idea that people should learn craft as opposed to trying to become king of the mountain at the outset. Those concepts are wrapped up with each other. But you talk about this idea of need. Think about what you want to do, think about what the world needs. The dichotomy I usually hear when people talk about how you decide what to do with your life. And there's a debate on this, and I wonder how you feel about this. Some people say, do what you love, and some people say, do what you're good at. And for some people who are lucky enough, those are the same thing. But for some people, they're not. So as between do what you love, do what you are good at, and do what is needed. How do you decide among those three things if you're a young person?

B (56:34)

Well, first of all, if you say to some college graduate right now in the spring of 2026, like, oh, just do what you love and follow your passion, and good things will come. You're gonna get shot by that kid. Or like the rhetorical equivalent of getting shot. What these kids are facing, Preet, is unbelievable. This is why I wrote the book. I mean, we don't know what.

A (56:56)

Which kids, which. So can I be contrarian for a moment? You're talking about kids who have. Who are. Who are admitted to and are going to matriculate from, you know, one or more of the most prestigious universities.

B (57:07)

Not only I have been to Stanford, with the material in this book and I have been to Texas Woman's University. Which universities? Nonetheless, these questions are generational. I know that it is atypical. It's not that I'm equating the kid at an Ivy League school with a kid from a humble background at a community college. But I am telling you, Preet, these questions are generational. I'm hearing the same thing on every campus. I'm hearing that we don't know what AI is going to do to entry level work, but we know what it's done to hiring, which is that hiring is being digitized. And there are young people who have done a ton of job interviews, and they are AI interviews in which they're not meeting real people. There are kids I'm meeting who went to very good schools, by the way, who are saying, I applied for 150 jobs and I didn't get a bite. There are kids who are saying, I believe that satisfying work is only for the rich, only for people who have trust funds. There are graduates who are saying, I got a great job and I am still worried that I won't make enough to rent someplace decent or buy someplace decent later on. So there are these, like, over. I'm not saying that all of these kids are the same. Like, of course not. But. But there is a common set of concerns and a common set of concerns that parents have because they sent their kids to college on the assumption that college plus hard work equals, you know, something decent, something substantive. And there is fear. I don't think we're ready to say that that bargain is falling apart, but there's fear. So the interesting question is not because, like, we could spend our whole time here talking about, you know, the negativity and the bad statistics, but we shouldn't do that. Because there's a more interesting question that I try to answer in the book, which is like, what does a powerful and productive response look like to these current circumstances? And by the way, I'm so interested in, like, the version of this conversation that's about lawyers in law school. Because I'm a law school dropout, right, who chose another path.

A (59:31)

Not to disagree with your thesis, but is something different today materially, in the level of angst among young people then, for example, in 2008?

B (59:44)

Yes, because for two reasons. One is that, like, young people are being told. And this, like, I will go back to the no prediction rule because I think this is smart. I don't think we know what is going to happen with the future of work. Everything I have learned in Decades of reporting on the workplace tells me that, like, these are stories of unintended consequences and unanticipated twists, and, like, technology never really works in quite the way that anybody predicts it will. So I don't think we know. But of course, there are very worrying signs about entry level work. So this generation is being told, like, in 2008, they were told that it was a tough hiring environment. Right now, kids are being told, you're not gonna be needed, like, you're superfluous. And that is a terrible message, Preet, and it's damaging, first of all, and it is not true. Anybody who has spent serious time in the workplace will tell you that we need the ambitions and energies of young people. They are vital. They refresh us. Without them, the workplace will differ. I've been doing a lot of talking about this with the therapist Esther Perel, who's very interested in these issues. And she said something so smart to me recently. She said, when I was starting out, I was really anxious and fearful about the workplace. But they were my own hangups. They were my own private anxieties and fears. I didn't have this social overlay of generational concerns about the workplace hanging over me as well.

A (61:26)

I wonder if that makes it worse or better, that you're not alone. You're not alone. Everyone is experiencing the same thing. And I guess it cuts both ways.

B (61:34)

Yeah. But again, the question is, I wrote this book because I think there is a way to face it. It's really hard. It's a very complicated environment for new graduates, but I want to convince them to still take a shot at filling their life's work with vitality and meaning. And the reason I want to is not only because I think it's possible, but because we can't give up on the workplace. It's our engine of progress. It's how we get stuff done.

A (62:04)

Well, so that's interesting because the question I have is whether or not generationally, there's a different relationship to work. Now, when I think about myself, I think how lucky and fortunate I am. I may have a blessed life. And if you ask me, I mean, obviously my first identity is in relation to my family. Right. Wife and kids. And that's the most important thing. And I think we've done pretty well. But my identity is like, in no universe is my identity not bound up with what I've done as work, whether it's to be in the public square or it's representing people, the people, the United States of America, like I did for a long time or engaging in. I think about work all the time. I'm a workaholic. I know from lots of vindicia that you're a workaholic. And I don't find anything degrading or dehumanizing about the fact that I and my work are bound up with each other. I'm proud of it. Again, I'm lucky, as I think you are, that I find my work not to just be a job, but to be a calling in all its various iterations. So maybe we're different and luckier than. Than most. I do sense that among some people there is the idea that your work is not your identity and it shouldn't be your identity and you should shun it because there are other things. And to be caught up in the thesis that you are your work or you're defined by having been a butcher or a construction worker, or a doctor or a lawyer or a journalist or whatever else is somehow not as self actualizing an existence as you might otherwise have. Does that make any sense? And do you find that.

B (63:49)

Oh, of course. Look, so what's right, giving up on work and saying, I'm just gonna like work till 5 o' clock and then check out and then my real life begins. That is a rational response to this environment. Like the world of work has become pretty dystopian in many ways, but not wholly dystopian. And what I care about, Preet, is that for the people who are like you and me, for like, work is how we spend. Even if you don't want to be, it doesn't feel.

A (64:16)

It doesn't feel like work.

B (64:18)

Even if somebody is not as workaholic as you or I are, it's still what they are going to do with their time on earth. And also, there may be people out there who are truly happy people despite being miserable at work. But I have never met anybody like that. So I want to read you one thing from this book. Cause if people read it or not, here's the paragraph I want young people to remember. Because I don't want them to give up before they have even had a chance at work. Meaning and satisfaction. I don't want them to hear all this bad news and accept defeat.

A (64:53)

So what page is it on? Because I'm following along.

B (64:55)

Oh, thank you. Page 13. And it says, do not give up before you start. Frustration and disappointment are certain. Failure is possible. But if you abdicate the search for satisfaction now, you will put it further out of reach. Resist the urge to arm yourself with Uninformed cynicism masking as oh, so wise pragmatism. That is really just good old fear of rejection. We do not yet know what the world will offer you, Preet. I had no idea what the world had to offer me. I was like a kid from Staten Island. I didn't know what investigative journalism was until, I think, like, several years into working at the New York Times.

A (65:38)

You know, it's interesting when you talk about AI and the effect this is having, I think that's a much more recent phenomenon that is an overlay on top of the anxiety. And the anxiety began before.

B (65:49)

Oh, completely. So I wrote this book in response to, like, as, you know, like, at Columbia's Nadir, they asked me to give the undergraduate commencement address, which was a big honor but a tough assignment given what was going on there. And it was the students who said to me, we don't talk about President Trump. We don't talk about Gaza, we don't talk about Israel. Our class, despite its political differences, is united in the question, how do we figure out our life's work in this crazy environment? And the question gripped me in part because I had written about employment for a long time, but in part because ever since Megan and I broke the Weinstein story, we had been traveling to campuses, and year over year, you could feel exactly what you were saying. Well, before AI, there was a rising tide of cynicism about work. Listen, like, work is not perfect. There can be terrible things about it. Finding a job is anxiety provoking. But what we have always associated graduation with is new beginnings and opportunity and some optimism and some relish and excitement. And I heard that diminishing and this fear and dread about the workplace taking over. And I am very worried about that, in part because I think that, like, my own life and experience has taught me that work is sometimes a more potent area of progress than politics.

A (67:18)

What do you mean by that?

B (67:20)

If you look at your great question about what happened with the MeToo movement, MeToo became politicized in a way that was pretty negative, right? We went from the first year of MeToo when there was impact on both sides, right? You had Bill O'Reilly and Roy Moore on the right and you had Harvey Weinstein on the left. Like, MeToo did not initially feel partisan, and then it began to feel that way. Like, we could talk about another time. The moment of the Kavanaugh nomination is really when it became very, very, very politicized. However, and there's been progress on a political level. There have been, like, legislatures that have passed important rules, et cetera, et cetera. I'm not saying that politics didn't get us anywhere with MeToo. But you could also see that where some of the most progress occurred was in the boardroom and it was at the corporate level. It was with organizations who shifted and said, the calculus has changed. This is such a liability. It is a risk to the sanctity of our company. It is now worth it for us to root out this behavior instead of protecting someone who may have done something wrong. And these boards and their lawyers and their committees, they came up with new policies, they came up with new training, and they took action. So I've seen, like I have seen sometimes the workplace be a more ripe area of progress. I also think a really good workplace protects you from the craziness that is American politics right now. Right. Like you to be on a team, to. Look, I don't know if you fell down the rabbit hole that I did of the astronauts who just went to the moon and their incredibly beautiful teamwork and sense of mission. That is like the most positive version I have seen recently of what the workplace can be. There.

A (69:18)

You know what I took from them?

B (69:19)

What?

A (69:20)

The thing that. Which will tell you a lot about me is that they're not 23.

B (69:26)

No.

A (69:26)

And they talked about, they're like my gen. I'm like, wow.

B (69:30)

But they are professionals. Like, they have code, they have technical expertise, they work together, they treat each other well. And by the way, one of them stood up and said like somebody asked them what's the most important thing you can tell young people? And one of the astronauts answered, failure. We are here. Like, to get to the moon is a process of learning to deal with failure on an individual and a collective level.

A (70:00)

I was gonna ask you a number of questions that arose from my interview with Ben Smith last week, including whether or not you agree with Ben Smith that journalism and journalists are a little more self important than they need to be. I'm watching your expression change.

B (70:15)

Well, you're asking me this at the New York Times, Preet, and you're asking me this actually on Pulitzer Day, when we are just hours from finding out.

A (70:24)

Oh, are we? Are you up?

B (70:25)

No.

A (70:26)

Is that a thing?

B (70:26)

No, no, no, no, no, no. I wasn't talking about myself at 3 o'. Clock. It's Monday.

A (70:31)

Maybe recording this.

B (70:32)

I should say it's Monday. May. It's Monday, May 4th.

A (70:35)

And may the 4th be with you.

B (70:37)

What we have been told is that at 3 o' clock there is a ceremony here that is all we know to date, but it's a big if. Like, first Monday in May is a big deal, you know, at Vogue and with the Met Gala at the New York Times. It is. It is Pulitzer Day. Do I agree with Ben? So, Ben. So Ben and I debate many things about journalism and have for years. I think I would state it less in terms of criticism than a goal. I think, like, I'm not interested in criticizing other journalists. What I'm interested in is making sure that we relate to people and connect with people. And, like, part of the joy of doing a podcast like this. Thank you for having me on. Is that there's a real formality to what I do. I mean, right. There's like an analogy to a lawyer in a courtroom. When Adam and I write an investigative article for the Times, we are wearing the suit and tie of the New York Times as we speak. And there is real rigor and power in that. But it's also very formal. So whether it's being on the Daily, which we were. Or coming on your podcast, or being on Instagram or LinkedIn, which I try to be, like, there's an opposing desire that I think is very important to connect and to constantly be building trust everywhere we go. And yeah, like, for sure, self importance and lack of humility can be a barrier to trust, especially right now.

A (72:13)

Okay, that's a good note to end on. Jodi Kantor, thank you so much for your time. Thank you for exposing so many important things in our country that deserve exposure. The book is how to Start Discovering youg Life's Work. Jodi Kantor says right here, New York Times bestselling author.

B (72:31)

That's correct.

A (72:32)

Yeah, there you go. There's no conflict there. Right. In fact, I'm going to say, like, I don't know. No, it's kind of for the time she's on the New York Times bestseller list.

B (72:41)

Like, it's. No, it's like the Pulitzer.

A (72:42)

Corruption everywhere I look, Jody.

B (72:44)

It's like the Pulitzers. If you ask. It's incredibly bad form that there are somewhere in this building there are people who do the bestseller list, but I don't know who they are.

A (72:54)

And likely story.

B (72:56)

If I did, the most I would do is smile at them in the cafeteria because to. Oh, my God. Even the suggestion that you were trying to game the system. I get high. I was thinking about that. I would never want them to think that. And I would never want anyone to think that's the way the Times works.

A (73:14)

I was gonna say the last point. That's One place where the shadow docket is alive and well. Exactly and appropriately so. Jodi Kantor, thank you so much.

B (73:23)

Thank you so much, Pete.

A (73:26)

Our conversation continues from members of the Insider community. In the exclusive bonus content, Kanter discusses how to build a fulfilling career and why a good boss can make all the difference.

B (73:37)

I think some of the bad advice young people are given is that their resume has to be like this straight line that all the arrows have to point in one direction.

A (73:45)

To try out the membership, head to cafe.cominsider again. That's cafe.cominsider. After the break, I'll answer Your question about 8,647 products on Amazon and share my thoughts about a new viral Cash Patel impression. Hey, I'm Matt Buchel, comedian, writer, and floating head you may or may not have seen on your F1, and I'm starting a brand new podcast. Wait, Don't Swipe away. It's called that sounds like a lot. I'm gonna start by breaking down whatever insanity is happening in the world, and then I'll sit down with a comedian or actor or writer or honestly, anyone who responds to my DMs. This is not the place to get the news, but it is a place to feel a little bit better about it. You can watch on YouTube or listen wherever you get your podcast. That sounds like a lot part of the Vox Media podcast network. So we are 250 years into this American experiment, and I'd say it's going okay. I give us like a C. There

B (74:51)

is no perfect past, but there is also no exclusively negative past, because humans are gonna human. That's what we do. I think the story of America is the struggle of people who have not been included in the promise of America to expand those principles to include more people.

A (75:11)

What's gonna determine the next 250 years of America? And how do we write a new social contract that can give us the democracy we deserve?

B (75:20)

Okay, so I'm just gonna be a jerk here because I'm a historian. So we have to have a prologue explaining, you know, we the people.

A (75:27)

Okay. You know, I do still remember it from Schoolhouse Rock. We the people, in order to the former perfect union, established justice. What is it? Ensure domestic tranquility.

B (75:38)

So you're talking about a foundational document. So I'm building a document that will protect American democracy.

A (75:45)

That's this Week on America actually.

B (75:52)

Elon Musk spent most of this week

A (75:55)

sitting in a courtroom litigating some of the most important moments in the early history of the AI Revolution. He didn't do a great job and the ways in which he didn't do a great job may come back to haunt Elon Musk in pretty big way. This week on the Vergecast, we're talking about what's going on in Musk vs

B (76:13)

OpenAI and how it might affect the rest of the tech industry.

A (76:17)

Plus the most exciting laptop we've seen in a while and maybe the most exciting game controller we've seen in a while.

B (76:22)

All that on the Vergecast.

A (76:23)

Wherever you get podcasts, Heads up folks. Stay tuned. Is going live. I'll be speaking with my friend and colleague, former U.S. attorney Barbara McQuaid at the 92nd Street Y in New York City on Sunday, May 31, about her new book, the Saving America from the Corruption of a Mob Style Government. To get in person or virtual tickets, head to cafe.com Barb that's cafe.com Barb don't miss it. I hope to see you there. Now, let's get to your questions. This question comes as an email from Brian Amazon currently lists over 3,000 items of clothing, mainly hats and T shirts imprinted with the numbers 8647. I'm thinking about buying an 8647 sweatshirt, but before I do, I have two questions. First, do people who wear this kind of apparel risk arrest and criminal charges for threatening President Trump's life? And second, do you think the Department of Justice will take action against Amazon and the makers of these products? Brian that's a very interesting question and gets to a particular, I think, contradiction slash hypocrisy of the charges that have been brought against Jim Comey. And you're not the only one wondering about this question. On last Sunday's episode of Meet the Press, Acting Attorney General Todd Blanche was asked almost the same exact question, though I'm not sure Kristen Welker was asking because she's considering buying such a sweatshirt. Before we get to Blanche's answer, let's just remind everyone quickly of the background. About a year ago, former FBI Director James Comey posted a photo on Instagram of seashells on a beach that he says he found arranged to form the numbers 864747 arguably refers to the 47th President Donald Trump. Now 86, as many people understand, it is common restaurant jargon, meaning to remove an item from a menu or to take something away from a table. So by extension, 86, I suppose, can mean to get rid of, cancel or discard something like let's 86 that idea. But some Trump supporters interpreted the post as a call for violence against the sitting president. And I guess the Department of Justice or certain people in the Department of Justice felt the same. DOJ investigated the Instagram post for roughly 11 months. And in April, a grand jury returned a two count indictment against Comey. The indictment is quite short, about two and a half pages. It alleges that, quote, a reasonable recipient who is familiar with the circumstances would interpret the seashell formation as a serious expression of an intent to do harm to the President of the United States, end quote. That's a conclusion that I don't think will be provable in court. The statute requires that Comey knowingly and willfully made the threat. It is not clear at all, based on the evidence we have, that he knew 86 could be interpreted as violent or even that 86 conveys violence at all. In fact, even Fox News legal analyst Jonathan Turley, with whom I pretty much always disagree, commented, quote, I believe that this indictment is facially unconstitutional absent some unknown new facts. So on Meet the Press, Welker pressed Blanche on how prosecutors intended to prove intent. Blanche responded by essentially acknowledging that the indictment itself, on its face, doesn't provide evidence or an understanding of how they're going to prove Jim Comey's intent. He said, quote, this is not just about a single Instagram post. This is about a body of evidence that the grand jury collected over the series of about 11 months. Many people are interested in understanding what that, quote, unquote body of evidence could possibly be. When asked what that other evidence consists of, Blanche said, quote, we are talking about evidence of all sorts. That means documents, that means witnesses, end quote. But he did not provide any specifics. Later in the interview, Welker raised your question about Apparel on Amazon featuring 8647. Blanche answered, Every one of those statements does not result in indictments, of course, and emphasize that the Comey case isn't about a single incident, although we don't have any information to the contrary. And none of those other alleged incidents that he spoke of appears in the indictment. What documents or witnesses the DOJ may have uncovered that support their case remains unknown. And I'll say it's a little bit odd, given that there is a lot of public skepticism about the retribution campaign, the vengeance campaign of Donald Trump against various people, including Jim Comey. The fact that the earlier attempt to indict Jim Comey for making false statements to Congress fell flat and was dismissed and hasn't yet been resurrected. So if ever there was a time to make clear to the public so that they have faith and confidence in the doings of the Department of Justice about what evidence they have against Jim Comey before there's a trial. This was an opportunity to do so. And by the way, they know how to do it and have done it in other circumstances. In another, I think very, very weak case against the Southern Poverty Law center that Joyce Vance and I have talked about at some length on the Insider podcast, the indictment is not two and a half pages. It goes on at some length, giving some facts and details about the theory which I think is mistaken and ill founded, but at least giving some details about the theory of their evidence, the theory of their proof in their criminal case against that civil rights organization. Not so here. So Brian, unless you have other incidents hiding in your closet, you are probably safe adding the sweatshirt to your wardrobe this question comes in an email from Laura who writes, hey Preet, did you happen to catch the last episode of Saturday Night Live? If so, what did you think of Aziz Ansari's impression of Kash Patel? Laura, I'm so glad you asked me this question. My simple answer is nailed it. And there's a particular line that made me laugh out loud. And lots of members of my family too.

B (82:38)

You guys should not be reporting the lies and the gossip. You should be reporting on the historic nature of my appointment. I am a trailblazer. I'm the first Indian person to suck at their job.

A (82:52)

I'll go so far as to say Ansari's impression of Kash Patel is one of the best new impressions we've seen in the past season of snl. Slate even called it perfect writing that only one comedian could have captured Patel's bro y energy. It's not the most important thing that I pray for week after week, but I'm saying a small prayer that Aziz and Sorry will be back. Well, that's it for this episode of Stay Tuned. Thanks again to my guest, Jodi Kantor. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen, every positive review helps new listeners find the show. Send me your questions about news, politics and justice. You can reach me on Twitter or blueskyeetbarharara with the hashtag AskPreet. You can also call and leave me a message at 833-997-7338. That's 83399, Preet. Or you can send an email to letterscafe.com stay tuned is now on substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That's staytuned.substack.com Stay Tuned is presented by Cafe in the Vox Media Podcast Network. The executive producer is Tamara Sepper. The deputy editor is Celine Rohr. The supervising producer is Jake Kaplan. The lead editorial producer is Jennifer Indig. The associate producer is Claudia Hernandez. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy and the marketing manager is Leanna Greenway. Our music is by Andrew Dost. Special thanks to Tory Paquette and Adam Harris. I'm your host, Preet Bharara. As always, stay tuned.