D (3:49)

Thanks for having me.

B (3:51)

And Josh Marshall, a journalist, blogger and the founder of Talking Points Memo, my go to site for many years and one of the first which just celebrated on My right its 25th anniversary. Congratulations. Yes.

E (4:06)

Wow.

D (4:07)

Very cool.

F (4:07)

Thanks.

B (4:08)

He also hosts the Josh Marshall Podcast where he provides insight into the big political stories of the day. Always great to welcome you. Thanks for being here, Josh.

F (4:18)

Thank you so much for having me.

B (4:20)

A lot of incendiary developments this week. Hard to know where to start, but I think we can begin with the Epstein revelation. So Trump spends months resisting a House measure to force release of the files, which he could have done at any moment just on his own say so last minute intimidation. But then when it became clear that he wasn't going to stem the tide and he executed a complete U turn saying we've got nothing to hide. Josh, as you wrote, it was the flip that launched a thousand WTFs. Does anybody in the Congress or the country buy his complete reversal of position, do you think?

F (5:02)

Well, I think two things. I don't think anybody buys it as anything more than wanting to say he won or didn't lose in the same sense that, you know, anybody who wins an election, he endorsed them. And if he didn't endorse them, he says he endorsed them and vice versa. Versa and all that stuff. I would assume that most people also realize that given how this administration works, they passed a law which basically asked him to release the files or whatever files he says are the files. This is an administration that, with increasing routineness, disregards court orders, frequently disregards statute laws. So I don't think anybody thinks this is done. It's sort of a defeat in principle. That moves them on to the need for Pam Bondi to do some kind of ongoing switcheroo and have everybody take their word for it when they release it. I mean, I would even say that on the extremely unlikely scenario where they actually did release everything, no one would believe them.

E (6:06)

Why?

F (6:06)

Because why would they believe it? They have no credibility on this at all. So it's a, it's a funny situation. Yeah, yeah.

B (6:13)

What else is back in the catacombs? And it is, as you pointed out, it's an administration that has violated every law. So it's sort of the final irony or the, you know, last refuge of a scoundrel that they're going to proffer they'll, oh, no, we have to protect the, the people from an ongoing investigation. All right, so. But he does cave and then the avalanche comes, right? I don't know if, if he or anyone was anticipating the basically unanimous 1 holdout vote from the Republicans. Is that kind of monumental defeat augur a real possible distance for the first time between Republicans in Congress and him?

C (7:00)

I think this, and I know we're going to get into this a little later, but I think, I think this marks the beginning of the lame duck period of his presidency to some extent. And the thinking here was, well, first we have to back up, right? It's not real hard to discern what's happened here. Trump and everybody in his cabinet was like, we gotta get the Epstein files out. Then they looked at them and then they were like, no. So, I mean, like, everything I just said is a fact. It's not an opinion. Like, that's the order of the way things happened. And then you combine with that, the fact that Donald Trump has, at least from what we've observed, never in his life done anything to protect anyone else. Like, if he really is willing to go on a limb, it's always for himself exclusively. So when you put those things together, clearly what happened here is he said, okay, I'm going to lose this one. It's better to be at the front of the parade than being the person who people are parading to. So that's what he did. And then what this does, because clearly they're going to pick and choose to some extent what they let out. Now the air is out of the balloon. Now. Congress has already done the thing that they've done, which is why Trump didn't just turn around and go, you know what? I'm just going to do it. You don't even need to have a vote because then you still have on the table. Congress could do something to pressure you to put the rest of it out. Now, this has already happened, so whatever he puts out is the thing he does in reaction to this congressional action. And I think what they're hoping is that, you know, it makes it harder to have this be an ongoing issue. I think that that is hoping in vain. But I think that's, that's their goal.

B (8:32)

I mean, taking Josh's point, that, you know, they've lost all credibility and who's going to believe they're not Going to bring in, you know, borders to see it's an empty vault. So now that they've had such an emphatic yes vote by everyone, as things either drip out or they stonewall on the basis of the investigation, how do you see the Republicans who have really now staked out that position, especially a few who are leaders, do they continue to be crosswise and even really aggressive against what's gonna be in no way a full exposure?

D (9:15)

Well, that's the big question. And this is a really interesting issue because it wasn't driven by Trump so much as it was driven by his base. And this is the thing about conspiracy theories. They're never satisfied. They're never gonna believe that everything has come out.

B (9:31)

They're.

D (9:31)

This was a monster of Trump's own creation. He ran on this. There was a giant scandal with Epstein and Bill Clinton. You know, Pam Bondi said she had the client list on her desk. Oops, that turned out not to be true. So the big question is, you know, if he couldn't flip Lauren Boebert or Marjorie Taylor Greene after bringing Lauren Boebert to the White House and browbeating her in the Situation Room, I don't know if he can tamp down and satisfy the base that he's finally released all of these documents. And don't forget the documents we're gonna see first and maybe the only ones we're gonna see are about Democrats, cuz that's what he said he wants to do. So I think this was a big, this was the biggest defeat Trump has had. It was the biggest crack between him and his base because no modern president has had as firm a hold on the base of their party as Donald Trump. And this is a story that had a heck of a lot more legs than I ever thought it would be.

B (10:26)

Yeah, it did seem whenever it came up, all of a sudden he was scrambled and had fear of it more than anything we've seen this the guy who has weathered how many sexual related scandals, starting with Access Hollywood, which just gives rise to speculation what the hell could be in there. And I'm just wondering what do all the Rs, especially ones who are in any kind of close reelection campaign or whatever, do when it becomes clear, well, that they're either hiding behind some legalism about a investigation of Democrats based on what? Oh, new information says Ram Vonnie. And there is this dissatisfaction in the base. I mean, it did seem like he was hoping at least to staunch the blood or whatever, but I think they've maybe bought by their Bungling of it all, or by the way they handled it, a scandal that will continue. So it doesn't seem that it's likely to go away. No.

D (11:28)

Everything he's done has thrown more oil on the fire and kept it alive. And so you'd think that that keeps on happening. Plus, you know, he is a lame duck. He's gonna have less and less sway with his party as they look to a future without Donald Trump.

F (11:43)

There's a couple additional points here. I mean, Tamara's point. I don't think the vast majority of people who cover D.C. thought it had the legs that it has had or thought that there was that much of significance in there, like, real significance, until he told us there was that time in that Cabinet meeting where he just, like, shut everybody down. I don't want to talk about it. We're done.

B (12:08)

And.

F (12:09)

And he basically shook official DC until they realized that something is in there that must be very. Either very damaging to him or very personally humiliating to him or something that is problematic in the context of his family, something that is bad for him. But there's two other points that got, I think, less attention here. There was an article, it was either Bloomberg or Reuters, where after the House voted. And look, he gave them all an open shot. So of course they're gonna take it. It's Clay Higgins who's gonna make a point of principle, you know, kind of die on the fire for Donald Trump even when he says not to. But they basically reached out to the Senate and said, let's slow this down. And they just immediately went to unanimous consent. That, to me, was much more telling than what happened in the House because he gave them that. He gave them that, so of course they're gonna take it. He didn't give them that in the Senate. And that sped things up a lot. There's two ways they can come at this. One way is to say, look, we're giving you this stuff, but there's X, Y and Z bogus reasons why we can't give you this other stuff. So at least then they are saying in some sense what's being given or not. The other way is to say, yeah, that's everything, and it's not everything. But the reporting out there suggests that there's a large number of people at the FBI and the Department of Justice who have reviewed this stuff. And that means I'm sort of surprised, frankly, that it hasn't leaked already. But that creates a large pool of potential leakers. If they go that second path, it's.

B (13:44)

A really good point. And I just want two quick follow ups. First, on the Senate, I thought Schumer, who's really been coming in for a lot of criticism this year, pulled a really smart move trying for unanimous because it forced anyone who wanted to oppose it to really be on the record. And it was sort of indomitable. But on the FBI, the FBI has no love lost now for the administration, and some of them are prone to leaking anyway. So I think it's a very good point. They have to know, I think you're really right, that he only cares about himself. And something that occurred to me as I was preparing, I wonder what this means for so far, a loyal stalwart Pam Bondi. Because if she's the one who takes the flak and she's the one who puts herself forward, you know, I don't think it would be beyond Trump to sort of have her be a kind of sacrificial lamb here. She's been a pretty controversial attorney general. And if she's standing up, investigation, investigation, I think you could find some real heat from Capitol Hill toward her. And there's quite a lot of vulnerability there.

C (14:56)

Well, Donald Trump is the Aaron Rodgers of presidents.

B (15:01)

No, I'm from Pittsburgh, Jason, so. But go ahead.

C (15:03)

Well, then you should appreciate this.

B (15:05)

We've wound up with him.

C (15:06)

Yeah, then you should appreciate this, because Aaron Rodgers is that quarterback who will tell you how it was everyone else's fault, and that's how he has handled most of this stuff in his career. And if Donald Trump is looking around, he's looking at his numbers and he's looking at the fact that his members of Congress just turned on him for the first time ever. And they're all realizing, wow, we took a shot at the king and we didn't miss. And also, he's not doing anything about it. He's gonna look around, he's gonna be like, okay, who in my inner circle can I blame for the way things are going right now? Because it's never gonna be the man in the mirror. So I think everybody is on the chopping buck, particularly because he may just wanna do it to get a new news cycle going.

B (15:44)

And there's also, you know, Patel has seen very vulnerable as well.

C (15:48)

So can I add to that that there are at least three cabinet positions in this government who Donald Trump put someone in place because he wanted to do those jobs. He wanted to be his own attorney general, he wanted to be his own secretary of defense, and he wanted to be his own FBI director. So, yeah, what difference does it make to him if he gets rid of any of those three people? Because he's just going to put in another person who lets him do their job.

B (16:12)

He's certainly proven that case. So why don't we just. And you were the one who said we can look back on this as the beginning of a lame duck period, which isn't only looking toward the election, but a certain kind of weakness and lack of muscle. I don't know if you saw the piece in the Atlantic by Jonathan Lemire that Trump steamroller is broken and there's a new sense of political weakness in the president and it's not just emboldened Democrats, but it's begun to give Republicans a permission structure for pushing back. You know, we've seen this before and he's been able always to revive himself. It does. This defeat seemed significant and precedent breaking. And the timing is really different. Mara, you focused a lot on this. Where do you stand on how much political juice Trump has left?

D (17:06)

So how much of a lame duck is he? So I think that the fact that this happened after the off year elections is not a coincidence. And what the off year elections showed us is that the laws of political gravity have not been repealed and they still work on Donald Trump. When you are unpopular, your approval rating is bad and all of your policies are unpopular, net, net net unpopular with the country, especially with independents, your party's gonna do badly at the ballot box. And that's what happen. I mean, that was a huge rout. Now, I don't want to give too much predictive power to the off year elections, but Democrats didn't lose anywhere. And that plus the big vote against him on Epstein, which is, I think, a conspiracy theory that he created and then totally bungled, make him seem weaker. Now, there are a couple things he can still do a lot of things. And look, we say this over and over again. No modern president has had the kind of grip on his party's base as Donald Trump. But he's now threatening to have a primary challenge against Marjorie Taylor Greene. He's threatening to do a lot of things. Let's see if he can actually pull that off. People are gonna think these are people who are younger, they have a whole career in front of them. They have to think about 20, 28 and beyond. And right now, it doesn't look like he's gonna be the dominant figure forever and ever. So I vote for. He's a lame duck. He's not powerless at all. And the Supreme Court might make him much more powerful. Very soon when they rule on a lot of these cases. But he is a lame duck.

C (18:39)

The one thing I was just going to add to that is that I agree that this is of his own making because of the way he hyped the Epstein files and allowed that to be hyped and then, you know, became a roadblock on it. But also because of the way he's handled the economy. He was very narrowly elected because he talked about the economy and because people were unhappy with the economy, mostly because people thought stuff cost too much. And what has been his really the only consistent thing that he has focused on since he got into office? Tariffs. So he took an election that he very narrowly won by complaining about the price of things, and then he came into office and made it his sole focus to make stuff more expensive.

D (19:17)

And then he backed off, just like he backed off on Epstein.

C (19:19)

Right?

D (19:20)

Then he back started backing off on tariffs.

C (19:21)

And at the end of the day, yes, I agree that those two things together are why he's in the position that so many second term presidents are in a midterm, which is people are moving on, including his own movement to some degree.

F (19:34)

I think there's an additional. I agree he's in his lame duck phase, whatever we want to call that. But I think in my mind it's important to recognize that a lame duck phase is different for Donald Trump than it is for really any other president, because most other presidents have a range of tools they are using to be president. The people, at least of their own parties, support them. They have certain policies that they know have public support, et cetera, et cetera, et cetera. Trump has domination of the political situation. He dominates his party and he does everything he can to dominate the opposition. Everything in Donald Trump's world, clearly in his interior world and in the world that he creates is this binary between there is the dominator and the dominated. There's no ambiguity. You're on one side of that or the other. So I think for Donald Trump becoming in essence the dominated, not being able to dominate the political situation, not being able to basically destroy anybody in his own party who challenges him, which is absolutely what happened in his first term. And since then, you can think about there's half a dozen members of Congress in the first term who went against him and they're done. Some of them were primaried, some of them just saw the writing on the wall and retired. That's not happening. So I think it is different for Donald Trump than, for instance, it was for George W. Bush, who was Very unpopular by the end of his term. And a lot of that unpopularity was because of these basically wars of choice that he had gotten the country into.

C (21:17)

But.

F (21:17)

But there were still ways that he could function because his political existence was not denominated purely in the currency of domination. And with Donald Trump, it is. There's no Donald Trump reaching out and saying, hey, let's get together and come up with something. That's not how it works.

D (21:34)

I have a question about that. Do you see him calling a female journalist on Air Force One piggy as part of that? Like the shtick isn't working anymore? Or accusing Mary Bruce of ABC of insubordinate questions?

F (21:48)

I mean, I certainly see it that way. It is his response to feeling the lack of the immediate ability to dominate the situation he's in. He lashes out with these. I mean, look, he's been gross a million times, right? I think we're talking about these cases because they may be gross, but they're kind of pitiful because you see right now that he's weak politically. And one of the reasons he's losing power is that he looks weak. He looks like the weak horse. And so when you see him clearly just getting angry and calling this female journalist piggy or saying insubordinate or all the. Or, you know, kind of saying, these senators should be hanged, I think it is palpable for most people, I suspect even for many of his supporters, that. That he is protesting too much and he is trying to shift into overdrive to overcome this kind of palpable loss of power. So, yes, I think it is 100% because of that.

B (22:49)

It sure reads that way. I've long since steered away from psychoanalyzing him, but it does seem totally unhinged. I agree with what everyone's saying, and this does seem like a new day of sorts. But we've seen them before and we've been wrong about them before. And remember, his numbers are falling. The Fox News poll has, like, 41%, but he's always been in that range. And when he's been able to bring things back up to 46 or whatever, it's by appealing to the base. So you could imagine this as a calculated strategy to. How do you win back the part of the base that's losing him? Be as double gross and vicious and nasty as possible.

F (23:33)

Can I say. Can I say one thing about that? I think. I think what's important. There are certain things about our recollection of his first term. Yes, he did come back, despite having been Extremely unpopular for most of his first term. He lost, clearly, but not, not overwhelmingly. Certainly he made a good run of it to get reelected. But I think it's important to remember that two big new things happened that allowed him to shift things. And the two big things were four, first the COVID pandemic and then I think the deeply related George Floyd protests, which I don't think ever would have happened without Covid. I think it was tied to everybody being in their house for three months or whatever. And that allowed him to jump on top of a different story. And that different story was there are these largely non white left wing mobs burning down your cities. And that became kind of his entire discussion for the remainder of 2020. So what I draw from that, I mean, look, he has these sort of structural lame duck issues, right, that are difficult for him. I don't think he can change this around without a pretty substantial exogenous fact coming into the political world that allows him to come up with a fundamentally different story about why you have to support him. I don't think he's going to do it by calling female journalist piggy or picking these fights with senators and stuff like that. And I think one reason we can know that is because we saw this happen in the first term and he wasn't able to do that. He remained super unpopular until a very new world came into existence in the last year of his term that allowed him to at least start a different story, that he at least did get back into the mid-40s and you know, he made a real run of it to get reelected.

B (25:29)

And you could say he's trying to create these exogenous events, Venezuela or the immigration debacles in the cities, but it doesn't. They don't seem to be really playing very well.

F (25:42)

It is interesting that I think a lot of his opponents thought that there was going to be this process where he menaces these cities, he forces confrontations that do become violent, then he escalates, possibly with the Insurrection act, all these kind of things. And it's been interesting to watch the extent to which that has simply not happened. That what's happening in these cities, you have a lot of opposition, you have a lot of protests, you have a lot of mobilizing civil society. But in some ways their own actions tell the story. Because you know, you'll have a situation where someone like rubs up against an ICE agent and then like 10 ICE agents like Slam the dude on the ground and that person gets, you know, charged with assault. You know, those Examples are ones that, like, I would have thought they would have been able to drive more real confrontations. Right? You can get people upset and they.

B (26:37)

Do stupid things, and it's always gonna. There's always gonna be those scenarios. I wanted to follow up on one point you raised, which occurred to me. Remember how he behaved after losing? And there was no real prospect, I think, that he was going to be elected in 2024, but he went back to Mar a Lago and still tried to play the dominant figure in the party. So you can see a future that he sort of previews now to his apostate party. They're like, I'm still going to be around and I can primary you later, and I'll still be this power base. I think he'll try to go back to it as a king in exile.

D (27:16)

And don't you think that will depend on the economy? I mean, he can't tweet or post his way out of the affordability crisis. He has to actually bring prices down. And I don't think there's that many things he can do to bring them down. I mean, he can throw some tariffs overboard. He can try to send out $2,000 checks for people to buy health insurance, but this is a hard thing. This is what defeated Biden, among other things.

B (27:40)

We had a recent economics roundtable. His MO of lurching here and there and making individual exceptions so he can maximize his power is just the thing to keep the economy on the skids, even if in isolation. Wherever he's winding up in a given moment is a good one, because the thing that the economy most depends on is stability and predictability. And this guy couldn't be less stable and predictable.

F (28:09)

I mean, there's. There's an argument that outside of housing and health care, if you look over the long term, things aren't less affordable than they were 20 years ago or something like that. He's made, in addition to tariffs, which again, are taxes on consumption. So of course they raise prices. It's almost like a mathematical thing, right, that he's made his other central policy initiative, or raising health care prices on tens of millions of people. And that's one of those things that's literally the case that, you know, we talk about subsidies and all this stuff, but he's. He's done to those two things. Once you get to other things, you know, look, there's a whole debate in this country about. About housing costs. Probably fundamentally, you need a lot more housing, but that is not something that the federal government can act on quickly. And as Mara said, I mean, there's a reason that presidents get in trouble over inflation shocks. Cuz it's really hard to change that in any sort of political time horizon with policy. Right. You're not gonna like halve the price of bananas because you do some one crazy trick kind of thing. Unless your crazy trick is abandoning your tariffs.

B (29:25)

Yeah. I mean the one thing you can maybe do is make it worse by lurching. Well, I want to actually to ask everyone, but it's a point you made Josh, in Tiger points this week, that a weakened Trump is not by any means a less dangerous Trump. So what will Trump do when he feels cornered and how afraid should we be?

D (29:47)

I think there's a lot of things he can do. I mean the Supreme Court is probably about to give him a whole bunch of expanded powers and there's a lot of things he can do to affect the next election, not just before election day where like, you know, the Illinois Governor Pritzker keeps on saying the reason there are troops in the streets is to get us used to them being there on election day, intimidating people from voting. But what happens after election day? Do we think that the House of Representatives will actually seat a whole bunch of new Democratic members? There are a lot of things that he can do. So I think he's still a powerful President. I just think that his rock solid grip on his party is weakening, which.

C (30:27)

Is a huge deal because to the question of does it make him more dangerous? It makes him immensely more dangerous. I mean from starting a war with Venezuela to like, I mean, I don't even want to go through the list because what if he hears him? And I don't want to give him ideas. I mean there's no shortage of bad things a bad person with a lot of power could do in order to preserve that power. Now the other side to that is that November of next year is a full year away. But if things are anything like they are now, he's gonna get the crap kicked out of him in the election. I mean the Democrats will take the House. There's a real chance they take the Senate. And here's the really interesting thing that I'm gonna watch the people like Marjorie Taylor Greene, who he goes out and tries to primary. If he's unsuccessful in all of those, he's totally dead in the water. And then he confronts the fact that, that while there are a handful of congressional and Senate Republicans who genuinely like the guy, I'm talking about a literal handful. I think it's less than 5. The people who, who say they like him has been a very large number, but the people who would love a permission structure to throw him overboard is enormous. And I think that if he's unsuccessful in demonstrating any political power within the party at all in, in an election where he gets beat handily, I genuinely think that there's a real chance that he gets removed from office. And I think that that charge would be behind the scenes, led by his vice president, who knows that he's heading into an election where the nomination is by no means his for the taking. He's going to be just another candidate because he's not that good at it, and he's going to be up against Rubio and all these other people. And if I'm J.D. vance, I'm already thinking, if we're in that situation where they're willing to truly go against Trump, I'm jumping to the front of that parade.

F (32:18)

It goes to that Bush analogy that in 2007, 2008, Bush was very unpopular. He was politically toxic within his own party and politicians acted accordingly. But he wasn't disliked by Republicans in Congress. They liked him as much as they'd ever liked him. They didn't like. They didn't. It wasn't a cult. But, you know, one of, obviously, George W. Bush's great strength was always that people just thought he was a decent guy, fun guy, all that kind of stuff.

B (32:46)

Want to have a beer?

F (32:47)

When they. And so that, I think, also shows you the peril and delicacy of the dominating and dominated binary that everything in Trump's world runs by, is that as soon as you are not dominating, you've pissed off a lot of people and you have humiliated a lot of people and taken a lot of people who thought they were big time impressive people as senators, you know, United States senators, and made them act like peons and toadies. So there's a lot of ill will towards him. I mean, frankly, I don't think Trump counts as a dictator, even though he's pushed the presidency in a lot of ways in that direction. This is one of the big reasons why dictators don't cede power, even when they often have some opportunity to do so safely, because once you do that, once you've pissed off too many people, it's not safe. You've got to hold on because too many people are angry at you. And, you know, I don't think we're going to end up with like a Gaddafi situation. But in political terms, it could be perilous. I'm not quite where Jason is that I think he's going to be removed from office, but he's. Jason is certainly right that there are more than enough people who would love to see that happen to him. Whether they'll do it is another question. But there's more than enough Republicans in the Senate who despise the guy. And if he's losing you elections, that despising is going to get a lot more intense, don't you think?

D (34:19)

That only happens after they get shellacked in 2026.

C (34:22)

Oh, they have to. Absolutely.

B (34:25)

That's your trigger point.

C (34:28)

Plus, he doesn't win any of the primaries he enters and they look at opinion polls and realize nobody's going to punish them for doing it. If those things happen, he's gone.

B (34:36)

It's like the Agatha Christie novel where who does the murder? All 10 of them, you know, with the different, like, knife points. All right, it is now time for a spirited debate brought to you by our sponsor, Total Wine and more. Each episode you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.

E (35:09)

Thank you, Harry. In today's spirited debate, we pop into the beer aisle for a closer look at the two main types of beers, ales versus lagers, and to help separate lagers for males, it first comes down to one thing. Fermentation. That's the process where the yeast does its magic to give the beer its alcohol content and carbonation. Now, ales are fermented with top fermenting yeast at warm temperatures somewhere between 60 and 70 degrees Fahrenheit. Whereas lagers are fermented with bottom fermenting yeast at colder temperatures between 35 and 50 degrees Fahrenheit. Because of their warm fermentations, ales can generally ferment and age in a relatively short period of time, three to five weeks. Lagers can take longer, up to six to eight weeks. The difference in temperatures and time means the quicker fermentation in ales, including stouts, Hefeweizens, pale ales and IPAs, creates a fruitier, spicier flavor that's crisp and refreshing. At Total Wine and More, we have over 1100 ales, so you can explore all you want. Lagers, including Helles Pilsners, have a smoother, richer, more mellow and robust flavor than ales thanks to their longer fermentation time. We can thank the Bavarian brewers from the Middle Ages for discovering the benefits of longer fermentation after storing their brews in ice caves during the winter. In fact, lager in German means to store, which adds up since lager beer was brewed, covered and stored with ice harvested from nearby lakes. At Total Wine and More, we have an ice cave of our own filled with a huge selection of ales and lagers from around the world. Just remember the next time you enjoy one, give a little cheers to fermentation.

B (36:58)

Thanks to our friends at Total Wine and more for today's A Spirited debate. Jason, I wanted to ask you about his recent controversy with the ad from the service members, Democratic members of Congress, so much like you all who served and they given the, I'll say, legally dubious situations in Venezuela and even in the States, there's an ad reminding that under the Uniform Code of Military justice, you're not permitted in theory to obey at least flagrantly unlawful orders. And he's really gone up in arms that the Dems there are being seditious and it's outrageous, et cetera. What's your sense of the ad? And also if you know what prompted.

C (37:48)

It, I don't have any inside information about what prompted it other than watching the news. And I think that what has been missed in the way that that ad has been discussed is the I think people have misunderstood the purpose of that ad because everything that is done by politicians is of course digested through a political lens. I think I mixed digestion and lens there in terms of metaphors. But you get my point because it's all taken in that way. People are like, what political acts? Are they grinding? And I think what and knowing, knowing the folks who are actually in that ad, I don't think that's what they're after at all. I think the important part of that ad is getting across to people who would be in that situation and would have to make that decision that there are people in the government who will support you in doing what your oath requires you to do. So that if you are, for instance, a commander of a missile boat off the coast of Venezuela and you're given an unlawful order, it is important that you know that you are not on a metaphorical island if you make the choice that your oath requires you to make, that there are people out there of influence who will support you if you refuse to follow that illegal order. To me, that was the point of that ad, and I think it's a really, actually important thing to say right now. Trump's response to it was sadly predictable, was to frame it as something that it wasn't in order to continue to do what he has sought to do since the beginning of his second administration, which is make the military view his partisan enemies as their actual enemies.

D (39:34)

Jason, I have a question about that. Do you think that this was. This ad was made to get a reaction from Trump to kind of troll Trump a little bit? And then the second question is, given that he's kind of hollowed out the jags and the parts of the military that would tell a commander if an order was legal or not, will they be able to know?

C (39:54)

So, yeah, two great questions. The first, I don't think it was created to get a reaction out of Trump, because you can do anything and get a reaction out of Trump. I do think it came from a more genuine place. To your second point about making sure that there is a sense of support for what they're doing. So, look, when you go through training, you are not instructed on to a great level of detail necessarily on what is and is not a legal order. Right. I mean, obviously there are things that you come to understand really easily, like you can't kill an unarmed person. You can't. Those kind of things. But it's not like you get, like, when you're going through basic training as an enlisted troop, it's not like you get training on the Posse Comitatus act or anything like that. That's not a thing. But certainly for the command structure, like as you now, I never, you know, I got out of the military before. I would have gone to like, Command and General Staff College or anything like that. But all of that stuff is addressed both the philosophy of it, the black order, law of it, that sort of thing. It's part of the education of getting to that level. So those folks do know, and I think to your point about hollowing out, at least at the upper levels, the legal advisors within the military, I think part of this is about aiming at them, too, because you still have jags at the commander level in those subordinate commands. And part of it is making sure that there's a support structure for them to do their job. And so I actually see it as very necessary, I think any day here. I mean, look, everybody's saying, well, what illegal order is he given? I mean, plenty. There's a reason that the courts have stepped in and kept him from being able to deploy the military in all sorts of places. So I actually see it as very necessary. And will they know what to do? Yes, the commanders, the people who were in that ridiculous room that Hegseth and Trump called in, those people do know what the right thing to do is well.

B (41:50)

And more than that, those very people were the ones who insisted that they get legal opinions from the Department of Justice. It's classified still, God knows what tortured prose there is that somehow equates the fishermen off Venezuela. Even if they're narco terrorists, we're not in any kind of conflict with them. The authorization to use military force from 2001 can't possibly apply to them. So people are justifiably, really anxious. And there's the whole example of the torture memo looks very different, you know, ex post facto. So I think that my understanding is, and it certainly makes sense, there's a huge level of nervousness on the part of the military that's being told to carry out what Hegseth and Trump want.

F (42:38)

I think another political part of this, and it hasn't is maybe just so obvious people don't say it explicitly, but certainly the two senators in that ad, and they're the most known ones, are people who are, you know, sometimes unfairly within sort of the intra Democratic conversations seen as centrist soft. So these are not the firebrands of the Democratic Party. These are people who are often taking positions that, you know, more aggressively partisan Democrats think are too soft, too accommodating, too reaching across the aisle. So I think that is a powerful part of what this ad's about. You don't see Mark Kelly like, you know, dropping tiktoks and doing like sick burns on Donald Trump or Alyssa Slotkin.

B (43:23)

So.

F (43:23)

So that is, I think, a pretty powerful part of this. And I think it, you know, it is not only that, yes, there's other people in the government who will have your back. There is a part of this that, and this goes back to the larger context that we started this episode with of Donald Trump does not seem like the strong horse right now. I think there's a message here that if you get that order, Donald Trump may not be around to back you up later on when there is more visibility into what you did. So I think it is a mix of both support and warning to get that out there. And obviously that's, you know, in a different moment. I don't think Donald Trump would feel as threatened as he does because I think he probably feels as acutely, perhaps more acutely his antenna to who has power and who does not have power is probably more acute than anybody I've ever seen in public life. You see that in the way that he even silly things like with his nicknames, he senses people's the sort of the lacunae of people's weakness and these vulnerabilities they have. So I suspect he gets palpably that his, his diktats are not having the responses that they have had through most of, you know, calendar 2025. So that's my sense of that. And again, it is a very bold and aggressive and I think correct, but still bold and aggressive. It is inevitably a bold and aggressive thing to say in a political climate like this coming from people whose political profile is seen as generally polite, compromising, non controversial. So it jumps out. This isn't like, you know, AOC and Bernie making an ad.

C (45:12)

He does have that acute awareness and he has an acute self consciousness about the fact that other than the people he has handpicked in the second term to be close to him in uniform, that all the rest of them have no respect for him whatsoever. And I'm talking about the high level commanders, the people who have spent a career doing this thing that we all know that in private he has said terrible things about. He's aware that those people don't actually respect him and that they salute him and they, as he often mentions, call him sir because it's part of the job description.

B (45:47)

Right. And part of these reversals, I just want to spend a minute or two on he they've got some tough news on the redistricting front. And you saw this very strong opinion out of Texas and posing the possibility if that stays, they've invalidated it as basically racist or race conscious. And there's an irony there because the head of the Civil Rights Division, Harmeet Dhillon, worked with them to try to rationalize it and actually gave the evidence to the court to say you've done it illegally. But it could just turn out that when everything shakes loose, maybe there's like one or two extra seats for the Democrats out of this whole political game, which would be, you know, a remarkable reversal. Right.

D (46:39)

Well, I have a question about that.

B (46:40)

Yeah.

D (46:41)

If this is a racial gerrymander, as the lower court ruled, I thought that the Supreme Court was just about to get rid of the whole idea of racial gerrymanders if it finally finishes undoing the Voting Rights Act.

B (46:55)

Couple things, I'll be the lawyer here. One, it wouldn't be till this is a regular case, not an emergency case. So it wouldn't be till June. But I think that that's right. Dylan was kind of anticipating that. Of course, what they tried to say is, and what would be legal after the Supreme Court rules is, well, I know it seems all race, but it was partisanship that's what we were really trying to do. So in a, in a framework in which the Supreme Court. Yeah.

D (47:21)

Oh, you know, just so happens you can't separate them. Yeah, it's very.

B (47:24)

Well, right. So you say, I know it's, it's really going to be a tinny opinion in that sense. Okay. You political officials just say partisanship and don't say race. But even Mara, in that future world, if the, and it was a Trump judge assessment of things hold, which is they did it for race reasons, it would still not pass muster in the, you know, whatever they do with Section two down the line. Does that make sense?

D (47:49)

Yeah, that makes sense.

C (47:50)

Harry. Is that because, is that because we're talking about like, what's the, I am trying to remember what's the difference between the two? I mean, is it, is it part of the preclearance and versus like so.

B (48:01)

Very quickly on the Voting Rights act, preclearance was the big engine and they, they just got rid of that saying it seems like it's been enough time and the way to end racially is to stop discrimination. So what was left is and still is Section two. So you have to be able to show in order to be race conscious that there's been underrepresentation, etc. So what they held here is no, there wasn't any kind of attempt to, you know, remedy and it was just naked race consciousness, which it, which it was. And the paper record is just atrocious. Foolishly and aided by the head of the civil rights division, they made it all about race.

F (48:42)

This is actually one of my big questions for the, for the next year, year and a half, or really the remainder of Trump's presidency is part of my theory of the corruption of this Supreme Court majority is their craven political and partisan disposition and their entirely outcome driven reasoning with no consistency whatsoever. So it is not clear to me that they will be immune to the pretty general recognition now that Trump is the weak horse and most people do not want to back politically back the weak horse. So I'm wondering if he will get as favorable decisions as he might have gotten if the calendar were different and these decisions were being made in the spring of 2025 or the summer of 2025. Again, I think these are highly, highly political. I mean they're all very political people. Some of them, I think are maybe more political than they are ideological on some issues. So that's kind of, that's what I'm waiting to see. I'm really curious what that effect is.

D (49:50)

That'S a very damning thing to say about the Supreme Court. They're not conservative. They're partisan is what you're saying.

F (49:57)

You know, I think that's where we've been really since certainly since 20.

B (50:04)

Well, look, the brief against them I can speak is exactly that. And that's part of the debate with Roberts. Is he the statesman, or when push comes to shove, is he the pro Republican? I do think, though, that to the extent you take that cynical line, it's not that they're pro Trump, it's that they're really pro Republican Party. So the stakes, for instance, in the Texas case, I think it's a very good litmus tests because they're huge. So if you're just, you know, about raw politics, they would come in, but legally they. They wouldn't. But that's, you know, that's the raging debate.

C (50:41)

Can I just say that if it does go, if it stays as it is, and ultimately what Trump did is he got California to undo their really, truly pretty nonpartisan process for choosing who goes to Congress and ends up screwing himself. I mean, that's pretty good karmic energy.

B (50:59)

No disagreement. Okay. Hey, we're about out of time. Just on the spring, I do want to say the vote, the Section two that's coming in the spring, but what's coming any minute now is Chicago versus Illinois. Will they greenlight the emergency power? And now, now they ordered new briefing. They're all in. They could drop it tomorrow. All right, five words or fewer, everyone. As we speak, more or less. New York Mayor Lexoran Mandani is meeting with Trump in the Oval Office. What should he do or bring to win over or influence the President? Five words or fewer. Gold straight out blocks like. Yeah, the universal currency.

D (51:43)

Okay, just keep talking about the cost of living.

B (51:48)

Yeah.

F (51:48)

Talk to the hand Trump.

B (51:50)

Oh, yeah. Okay. And I'm going to say, you know, give Trump, you know, his own medicine a little summons for employing illegal workers. Thank you so much, Jason, Mara and Josh, and thank you very much, listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and my daily takes on top legal stories. Check us out as well on substack@harrylittman.substack.com where I'll be posting two or three bulletins a week breaking down the various threats to Constitution, institutional norms and the rule of law, and Talking Feds has joined forces with the Contrarian. I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come, come to know and trust just now linked up with an ambitious project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw associate Becca Haveian sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers. Production assistants by Akshaj Turbailu. Our editorial interns are Bridget Ryan and Troy Neville. Our music, as ever, is by the American Amazing Philip Glass. Talking Feds is a production of Delito llc. I'm Harry Littman. Talk to you later.

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