E (2:19)

The case and what you think's happening?

D (2:21)

Yeah, yeah. So on Monday, the court heard arguments in Trumpby Slaughter, which is this case about the firing of an FTC commissioner. Now this is one of those really interesting areas where old school conservatism meets Trumpism. Well, I wouldn't say meets Trumpism. There's some overlap with, with Trumpism, and that is that the FTC set is one of these multi member commissions created years ago. There's a number of these where they're located in the executive branch, but they're kind of hybrid agencies. They're supposed to be in the executive branch, but also immune from some degree of executive branch oversight. You can only fire the commissioners for cause, for example. And this has been something that conservatives for a long time, legal conservatives have really bristled at because they look at these multi member commissions as almost creating a kind of a new branch of government. They're not really under the control of the legislature, they're not really totally control of the President. They result in, in the conservative argument, one that I happen to share, they result in kind of an entrenched bureaucracy that isn't really accountable, purely accountable to the President, not purely accountable to Congress, not really accountable to the people, because it's so far removed from the people. And this is kind of a legacy and hangover of the progressive era, sort of this idea that, you know, look, administrative states need a lot of technocratic expertise and we need to insulate technocratic expertise from political accountability. And, you know, there are problems attached to that. The way I've described what's going on here with the court is we're very much, Tim, at what I would say, a fork in the road. Think of it as we've got one of two destinations, the good place or the bad place.

C (4:11)

There's no purgatory in this world.

D (4:13)

Nope, nope, nope. It's one or the other, Tim. It's one of the others. Sorry, it's to use the old phrase, turn or burn, like those are your two options, right? So here's the bad place, and then I'll tell you the good place. The bad place would be if the Supreme Court does what I think has been kind of consistent with originalist philosophy forever and ever and said, wait, these hybrid agencies are structurally not in conformance with the Constitution. If it's an executive agency, it's got to be under the President. If it's, if you wanted something under, with Congress having a lot of control, you create a legislative agency like the Congressional Budget Office created at the tail end of the Nixon era. But the bad outcome would be, okay, you give the President greater authority over the executive branch, but then you also give the executive branch greater authority. That would be if you upheld, say, the Birthright Citizenship order.

E (5:07)

Well, that's where I was going next. And there's been some interesting kind of analysis of what we're hearing from the judges of that. What did you think the justices rather.

D (5:17)

I think they've taken the case to uphold birthright citizenship. And it's very difficult for me to imagine an executive order sort of overturning more than a century of American law that is also, by the way, promulgated by statute. So you have the constitutional provision, you have a statutory citizenship provision, and then you have this Trump executive order. And I don't think that Trump executive order is going to trump the statute. I don't think he's got a proper understanding of the Constitution here. There's exactly on point Supreme Court authority from right close to the generation that actually passed the 14th amendment. So I think you've got a lot of things against the Trump administration very similar with the tariff case. So the bad place, though is let's say the court gives Trump more power over the executive branch and then allows the executive branch to do what Trump wants to do and grab more power. But I don't think that's what's happening. Yeah, I think what's happening is this. They're going to give Trump more power over the executive branch or give all presidents, let's put it this way, all presidents more power over the executive branch, but also make the executive branch less powerful by extending the Biden era precedents around vaccine mandates and student loans into tariffs, into birthright citizenship. So that presidents who want to be lawmakers are just going to be shut out. A president is a law executor, which is very different from a lawmaker. And so I think that's where they're headed. And I think that's the better place or the good place is greater political accountability for a diminished executive branch. The bad place would be greater executive authority over a more powerful executive branch.

C (7:00)

Yeah, I'm instinctively with you on that. I do think that there are some.

E (7:03)

Risks associated with giving him this kind of firing power and with politicizing all these offices. I mean, you see that potentially, obviously does this extend to the Fed and does that then, know, raise questions about the Fed independence? You know, obviously we're seeing some of this at HHS with, you know, now we're going to get rid of scientists and put in quacks. And at some of these commissions, we're.

C (7:27)

Quarantining people in South Carolina right now over measles. So that's where we are as a country. So, you know, what would be your.

E (7:32)

Pushback to that, which is like, we do need some of these commissions to be independent.

D (7:37)

Yeah. The problem you have here is you have three branches of government. Judiciary, executive, and legislative. If you want to create an additional branch of independent sort of technocrats, how do you do that? I mean, I think that that might be constitutional amendment territory where you sort of delegate. You delegate some political functions over to independent, non accountable, technocratic bureaucracies or that have very, very, very limited democratic accountability. The problem here, though, Tim, we are often conflating things. This case was about, you know, one of the heads of the agency. You know, part of electing a president is you're electing a person with hiring and firing power of cabinet agencies of the. The top people in the executive branch. The top people in the executive branch serve at the pleasure of the president. But what Trump is doing is something different that wasn't at issue in this case. So this case was about the top person, one of the top people. But he's also firing people up and down the bureaucracy, including lots of people who have civil service protections. And that's where you're getting into some of your SC scientists, for example. But the problem is, even if you keep all those scientists, if the top person is Robert F. Kennedy and then his boss is Donald Trump, you've got a load of problems.

C (8:56)

There's still some good stuff happening, though. I don't, I don't want to out there. I saw somebody at the airport recently who's at one of these, like, small commissions tucked into one of the departments. I'm not gonna out them. And they're not out them too.

D (9:07)

Yeah.

C (9:07)

They're like, I'm listening to your podcast every day. And I'm like. And they told me what they did, and I was like, how have you.

E (9:11)

Not been fired yet? I don't know. Like, I don't know. They don't know.

C (9:16)

They don't know that we're here. There's only five of us in this corner office. And so, you know, sometimes good. There are civil servants that can do good work that don't have, you know.

E (9:24)

The oversight of those, you know, whatever the political leadership.

D (9:28)

Totally. I mean, it's a big government. It's a very big government. Lots of different arms and tentacles of it. But where I really, really part company with the Trump administration is they're doing much more than firing agency heads or commissioners. They're firing civil service protected prosecutors, for example, creating a reign of terror up and down the ranks of sniffing out and ferreting out people, many of whom enjoy these civil service protections. They're not policy making individuals, they're not policy making figures, and they're being fired. And that is beyond any sort of unitary executive theory that has what is what you would call mainstream on the right. Sure, that's turning it to 11 to use the Spinal Tap reference. But this case, this case is about the commissioners themselves.

E (10:15)

Got it.

D (10:16)

And the interesting thing about it, if you listen to the oral argument, two things were pretty clear at once. One was lots of members of the court seem to want to have a narrow ruling here, not a big broad ruling. That's like injecting the presidency with testosterone. No, they wanted a narrow ruling, one that seemed to be maybe even not entirely clearly overturning Humphrey's executor. Although I think that's the case that allowed the independent commissioners to begin with from 1935. But one, it might overturn it, but not in as dramatic a way as you might think. And then the other thing that came out was Justice Gorsuch in particular, who took a big lead in the tariff case. He came out of the tariff case swinging an oral argument on these tariffs. I mean, as I was listening to Justice Gorsuch on the tariffs, I was like, dude doesn't like these tariffs. And then when he was quizzing D. John Sauer, the Solicitor General, he was calling back to that very concept and basically saying exactly what I just said earlier. Okay, are you ready for a diminished executive? If you're going to get this additional power to hire and fire these commissioners, there's something else going along with it, this diminished executive. And even in the oral argument, Sauer was not, again, this is the Trump Solicitor General. Sauer was definitely not circling the wagons on trying to do anything about the Fed. And it was very clear from the oral argument that the Supreme Court and also from previous opinions, the Supreme Court views the Fed as something very, very different. And so what I would say to those who are looking at the court, and this is true now, and it's been true for a long time, think of the Court as a collection of pre Trump conservatives. And when Trumpism overlaps with pre Trump conservatism, they tend to give Trump a win. When Trump doesn't overlap with pre Trump conservatism, they tend to give Trump losses. And so that's the clash. And that's also why a lot of liberals still are very nervous about the court, because they are, at the end of the day, still pre Trump conservatives.

C (12:26)

Yeah, they overturned Roe, which is a pre Trump conservative position.

E (12:29)

Right?

D (12:30)

Exactly, Exactly. Yeah.

C (12:31)

So just really quick, you Know, because.

E (12:33)

We'Re getting pretty nerdy now, but like, you just have piqued my interest.

D (12:35)

True.

C (12:35)

How is the Fed different? Doesn't that just run afoul of what you said? Haven't we just kind of in some ways created a fourth branch of the government with the Fed?

D (12:44)

The Fed is seen as something different, a legacy of the second bank in the United States. It is not an executive agency purely in the way that the, if you look at the structure of American government, you have executive agencies, you have legislative agencies. And one of the problems with the Fed is you, I mean with the FTC is you have a law making entity because the FTC promulgates regulations, things like that under the executive, but that's not what the executive is supposed to do. It's not supposed to be a lawmaking branch of government. And so the Fed, though, honestly, Tim, the Fed has a very unique history. The Fed is not located under the executive branch in the same way that, say, the FTC is. And then also there are greater consequences when you're talking about uprooting the Fed. And one of the things about precedent is that one of the calculations, when it comes to precedent is something called reliance interests. How much has society, how much have people shaped their decisions, how much is the economy shaped by a particular arrangement, et cetera. And so when there has been an enormous amount of reliance, stare decisis, that's the weight we give. Precedent gets more weighty, it gets more potent. And so I think that there's a lot of reasons why the Supreme Court has said, Fed's different, Fed's different.

C (14:16)

You expect that law school grads and legal stuff is much more based on the details and it's precise. And then sometimes you get to a thing and you're like, it's just a.

E (14:28)

Little bit more weighty than the stare decisis in other cases.

C (14:32)

Okay, well, it's in the eye of the beholder sometimes.

D (14:34)

Yeah. That's why it's just wrong to think of the law like you would think of a science. Now, there are some parts of the law that are, that are routinely applied every day uncontroversially. Like one of the things I talk to people, you know, what's one of the biggest misconceptions about the law? And I say, well, one of the biggest misconceptions is that every case is in doubt or every case is controversial. Most cases, vast majority, for example of Court of Appeals cases are decided 3, 0. Ideological alignments don't matter. So there's an enormous amount of law that is just almost rote in its application. It's just okay, once you learn it, you apply it, it's done. But then there's another sliver which happens to be the most controversial. These are the Supreme Court cases. You know, the court doesn't take the easiest cases, it takes the hardest cases. And there's both principles that apply and judgment. This is something that Gorsuch is fond of saying, at the end of the day, it's very difficult to escape the idea that judges exercise judgment when weighing competing interests. And so, yeah, inescapably in the practice of law there are subjective elements, there are a lot of objective elements, but there's also a lot of subjective as well. And we're just never going to get out of that. We're not going to have ChatGPT running our legal system ever.

C (16:02)

Sam Altman would think differently. Yeah, it's the judgment side of that.

E (16:05)

That was really even more than the ideology where I got get crossways with Clarence Thomas following the 2020 election.

C (16:10)

But we'll save that again.

E (16:12)

I've done that rant a couple times already.

C (16:15)

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E (17:59)

Song should be like a sailor in a big green coat because they actually say that during the song.

C (18:05)

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Some babble lessons for you.

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E (18:27)

I haven't talked about that much but I just want to get your take on it. Ken Kloppenstein has been all over this, so shout out to him on the substack. This memo, this NSPM7 memo, there was.

C (18:37)

Some kind of a follow up memo that was sent to that this week.

E (18:41)

Attorney General Pam Bondi, according to Clebitzoons.

C (18:44)

Reporting, ordered the FBI to compile a list of groups or entities engaging in acts that may constitute domestic terrorism. Those expressing, quote, opposition to law and immigration enforcement, extreme views in favor of mass migration and open borders, adherence to radical gender ideology as well as anti.

E (19:02)

Americanism, anti capitalism and anti Christianity. I guess being anti other religions is.

C (19:07)

Okay on a face like this memo.

E (19:10)

Is like absurd and un American and like crazy. Like the FBI would target. This is basically just saying we're going to target groups that are politically opposed to this administration.

C (19:18)

In practice we're like 11 months in.

E (19:21)

And it's hard for me to see exactly what's happening. What's your sense of this?

D (19:25)

Yeah, it's very hard to know exactly what's happening here, but it's very easy to see what the administration is capable of because we've already seen the administration take pretty dramatic unconstitutional action against far less extremist organizations than anything related to or adjacent to or in the neighborhood of antifa. So for example Some of the biggest white shoe law firms in the US have had extremely punitive actions taken against them. Some of the biggest universities in the United States have had punitive action, lots of, you know, selective prosecutions of individuals. So when I read that memo, what I see is the, the attempt to import a particular kind of bullying, pugilistic approach that was originally related to law firms, individuals, universities, and then sort of expanding that and trying to pull in the NGO world the world of activist nonprofits, which are harder to reach in many ways than the law firms or the universities because they don't have as many points of contact with the federal government. You know, a law firm, if you do something to take away security clearances, for example, you're going to cut out the practice of a lot of your lawyers. Right. Or if you do things that prohibit their access to the courts or whatever. But, but when it comes to these NGOs, a lot of them, they don't take any government money at all. They don't have those touch points with the federal government. And so there's just been less ways for the federal government to get at some of these more progressive nonprofits.

E (20:59)

It's like auditing them, taxes, opening books, I mean, is one thing, but the FBI obviously has a lot greater powers than that.

C (21:06)

Oh yeah.

E (21:06)

In a worst case scenario, the type of investigations they could be doing could be.

D (21:10)

I just, you know, this is the first administration in my lifetime where you say it could be worse than my actual worst case scenario. You know, in other words, when I was sitting here thinking about Trump's second term, I did not have in my mind launching an illegal war and then committing war crimes in the middle of an illegal war, blowing up shipwrecked survivors. Something that is so black and white basic in the rule of law that it's an actual example in the law of war manual of an order that members of the military should refuse. Like, it's literally in black and white. I can tell you the page 1088, Tim, page 1088, it's right there in black and white, so. Or sending people off to be tortured with no due process in an El Salvador. I mean, the darkness of this administration is beyond anything I've ever seen. And so, you know, what they would do to target progressive nonprofits and just simply label them antifa so that, you know, somebody on Fox or Newsmax or OAN says, look at Trump targeting antifa terrorists. I just don't think there's, you can really put much of anything past him.

C (22:21)

Yeah, and just one more time looking at that list. Like, the government can target you if you have, quote, extreme views in favor of mass migration. Like what happened to the free speech.

E (22:31)

Administration here I thought we were going.

C (22:33)

To have the golden age of free speech. It's like, how would you even judge that in a free country, the government should look very neutrally on what your.

E (22:40)

Views are of migration when deciding whether not you've committed any crimes.

D (22:43)

Oh, and when you're talking about targeting, quote, unquote, extreme views, one thing we've already seen from the Magaverse is targeting religious institutions that minister to that minister to migrants who've crossed the border. In other words, fulfilling Christian commands to take care of refugees and strangers in your midst. And we've seen Paxton, Attorney General and Senate candidate in Texas target nonprofits, religious nonprofits founded by Catholics who minister to people who are in this country, which is one of the most basic and elementary Christian commands that exists now. I don't know. You know, when the Catholic bishops got together and they condemned Trump's immigration policies and his brutality in immigration, does that now label them as pro immigration extremists? You know, even though, you know, as Pope Leo said, nations get to have borders, but you never get to treat people brutally and cruelly. But as you've seen, Tim, I know you've seen this. If you ever raise an objection to masked men grabbing people off the street based on racial profiling, including American citizens, etc, then people say, oh, you're for open borders. Or then if you say, you know, I really don't think that we should be blowing up people without due process and launching illegal wars without congressional approval and blowing up shipwreck survivors in violation of our own law of war manual. They say, oh, you're for the unimpeded flow of drugs into America. No.

E (24:12)

Or into Suriname in this case.

D (24:13)

Or into Suriname.

C (24:15)

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E (25:51)

More about the Venezuela. You had a column recently where you.

C (25:54)

Wrote in the military campaign in South.

E (25:56)

America, Trump and Hagset aren't just defying the Constitution and breaking the law, they're attacking the very character and identity of the American military. Talk about what you meant by that.

D (26:04)

Yeah, so if you want to look at the US Military as distinct from other forces, and I'm not going to single us, the British military, the French military, I mean, you're talking about the Western sort of the Western way of war, that one of the things that we have prided ourselves on and have imperfectly achieved is that we wage war in a way that is very distinctly different from say, the way Russia wages war or the way Imperial Japan waged war or Nazi Germany, that yes, our military is lethal, yes, our military can inflict great destruction, but it's bounded by rules and laws and codes of honor. And one of the things that really upsets me about the Hegseth as head of Department of Defense is that the things that make the American military distinct he seems to despise and view as weakness. And the things that make the Russian military so brutal, he seems to admire. Do we want a military like the Russian military? Would we look at the Russian military and say, yep, that's who we want to be. It's a less effective military than ours, it's a less competent military than ours, and it's a far more brutal military than ours. And you know, when you look at. I think. I think one thing that, you know, if we have listeners here who are sort of skeptical about laws of war or rules of engagement and how they might tie the hands of soldiers, there are some very concrete military benefits that we have always gotten when we have complied with or upheld the law of war. And I talked about the way in which, for example, at the end of World War II, German soldiers and civilians were desperate to surrender to us that. That they were fighting fanatically to stop the Soviet Red army, which was raping its way across, in murdering its way across Eastern Europe. And one of the reasons they were fanatically fighting the Red army wasn't because they thought Hitler was going to win. Almost everyone knew it was all over at that point. They were fighting a delaying action so that more people could surrender to us. And so think about how many lives were saved, how much territory we gained, because by the end of the war, in many ways, we were advancing unopposed. And the Soviet army was facing ferocious resistance because they were so brutal. In my own deployment to Iraq, Tim, when we really turned the tide against Al Qaeda in my area of operations, by the end, they were surrendering to us in droves, and they were seeking us out to surrender to us rather than the Iraqi army. Why? Because we treated them with decency and dignity. And so I saw the concrete benefits of treating detainees decently in my own deployment.

E (28:50)

Yeah.

C (28:51)

And honestly, just because I'm sure some listeners think about this, but the fact that there was internal outrage and pushback.

E (28:56)

Against the cases where we didn't is part of what we're talking about. We, during that era also treated detainees in certain cases in Guantanamo or Abu Ghraib or otherwise. Wrong.

C (29:05)

But the fact that we have a free press, that there's a legal system that people can go through in this.

E (29:10)

Country, it's out of patter, toes on the back. It still is a distinct difference from the alternative.

D (29:15)

Right. We have never. We have never fought a war in total compliance with the loss of war. There have been individual soldiers and commanders and units that have gone rogue that have done the wrong thing, but people were prosecuted as a result of Abu Ghraib. There have been many war crimes prosecutions, and then, you know, not all of them are. Some are more solid than others. But it really seemed as if even going into the. The office of Secretary of Defense, that Hegseth was kind of indiscriminately behind these guys and supporting these guys who'd been accused of war crimes, and in some cases, Convicted. And, and so you just saw. And he, and he wrote in his book how he advised his men to ignore the briefing by an army lawyer that, you know, that, that when he received the JAG briefing in his deployment, that he then immediately instructed his men to ignore the briefing. Now, I've read the description of his briefing, and I'm very skeptical about the details of that story. But the bottom line is, you know, he goes and he hears a legal briefing by a JAG captain and then immediately just tells his men to disregard. If that is true, if that is actually what happened, that's a dangerous person. That's an extremely dangerous person.

C (30:27)

You know, I spend more time in the MAGA fever swamps than you probably.

E (30:30)

I think that you have a little.

C (30:31)

Bit more time among the right wing intellectual crowd than I do these days. Have you heard any, like, good faith, like, serious case for what we're doing? Like, the whole thing is kind of crazy to me that, like, we were repelling against a Venezuelan oil tanker yesterday.

E (30:48)

Like, what is the case that is being presented?

C (30:51)

Who's for this?

E (30:52)

Besides Marco?

D (30:53)

Yeah, that's a really good question. I have not heard a coherent defense from anyone who I would consider serious and honest. So, you know, people that I consider serious and honest are people who have differed from me. Like, let's take, for example, my friend and former National Review colleague Andy McCarthy. We do not see eye to eye on all the legal developments over the course of these last 10 years. We have what I would call honest, good faith disputes about some of the legal developments over the last 10 years. And Andy has taken a position, especially on the Russian investigation that was, you know, more in line with Trump arguments than me. But I never have questioned Andy's good faith. I've never questioned his honesty, his approach to the law. And he is one of the most vocal voices saying this is completely wrong. And this is somebody who Trump has trumpeted, you know, when Andy has agreed with him. Right.

C (31:49)

Yeah. Even outside of the legal, like, now I'm moving more into just, like, what is the objective? Yeah, it's hard to even understand the rationale, like, for what they're doing.

D (31:58)

This is the only rationale that makes sense. The rationale that I have heard is that by liberating itself from the law of war and doubling down on cruelty and lethality, that the Trump administration is trying to deter drug smuggling. That by taking off the gloves, it's going to deter drug smuggling.

C (32:17)

We haven't tried that one before. Are these, like, the cavemen, like, the unfrozen cavemen who, who. They missed the 80s. Okay, sure. I think drugs will find a way. In the words of Jeff Goldblum, I.

E (32:32)

Think drugs find a way.

C (32:33)

And in particular, these drugs aren't even coming here. Most of them aren't even coming here.

D (32:38)

And he keeps doing this extremely dishonest thing where he's talking about the horrible toll of fentanyl and applying it to what are pretty obviously, if they're drug smugglers at all, cocaine smugglers out of Venezuela when fentanyl is coming by and large through Mexico. So he's not even hitting at the number one driver of American overdose deaths at all here. He's doing something else. And look, as you. I'm so glad you brought up the history. This is the first time we've really launched a lethal, undeclared war where our own forces are engaging in the combat. But we have been providing military assistance and intelligence support to South American militaries for a long time.

C (33:20)

Yeah.

D (33:21)

Including in large scale operations. We actually had an effort where the CIA cooperated with local air forces to shoot down drug smuggling planes, which was something that really wasn't on the headlines until the operation shot down an American missionary rather than a drug smuggler. And so these attacks are imprecise. Rand Paul, you know, I have a lot of beefs with Rand Paul, but God bless him on this issue, produced a study last week where he showed that when the Coast Guard does interdiction, which is actually the best way of trying to stop drug trafficking is you stop the boat, you seize the boat, you grab the drugs, you arrest the crew, and guess what, you then get to question them. Who's your supplier, who's your distributor? All of these things. Right. You can't question people blown up by a missile. But what he found was that there was more than 20% of these interdictions, these stops. There were no drugs at all. And so this sort of idea that we have the best intelligence we can absolutely know. Look, I've helped. I've helped approve airstrikes. I've seen the intelligence. I understand how difficult it is to get very, very precise intelligence. And the idea that the military can now look at us straight. I mean, Hegseth can look at us straight in the face and say, we absolutely know who all. I mean, come on, you know, are we really that naive still?

E (34:48)

Yeah, well, also, I mean, we wrongly sent at least dozens, maybe hundreds of like, we don't know at this point how many of the people we sent to El Salvador were wrongly sent. But we know that many of them were.

C (34:59)

So now we're trusting the same people.

E (35:01)

With going after the same alleged enemy of trenduragua and that they got it.

C (35:04)

100% right this time.

E (35:06)

Okay, on the history part of the reason I'm bringing it up is on a previous podcast was recommended the book Everyone who's Gone is here, which I'm in the middle of right now. I kind of like the origins of the Central American migrant crisis and all this. It's excellent.

C (35:19)

One more thing before we get to Mega do you see the story about how we're going to be start checking people's social media visitors last five years of their social media if you want.

E (35:28)

To come to this country for starters, utterly unamerican. I mean we might as well be China. What's the point of competing with China if we're just going to be China number one. But just a more living in New Orleans like the economic element of this and where our tourist places in America are already struggling. People don't want to come here for various fears, some legitimate about what might happen if they're traveling here depending on their visa status and just wrong and stupid and harmful to the economy.

C (35:57)

I wonder if you have what your thought, if you have anything to add to that.

D (36:00)

Let's see. Wrong, stupid and harmful to the economy. Yeah, I'm going to agree with that completely and totally. I mean I think it's pretty clear that what we're looking at is that the Trump administration, especially in the Trump campaign, especially in during the election and the run up to the election, sort of used the free speech land of the free kind of language to pull in a lot of kind of the anti woke heterodox sort of. So a lot of the people who'd been driven away from the Democratic Party by ideological intolerance and censorship and cancel culture etc. And then presented itself as we are the champions of liberty and free speech. This is how you get a lot of these tech lords, you know, the ketamine crazed tech lords into the the movement. But anyway you, you get kind of this tech world, you get a lot of the heterodox sort of folks who are really tired and many of them have like been living in deep blue areas where they felt a lot of intolerance and cancellation etc. And then they're tied into this movement under this free speech and liberty banner only really and as if they have eyes to see to realize that everything awful about Cancel Culture this administration has taken and has turned the dial again, you know, to 11 it's just absolutely turned it way up. You know, at the height of the cancel culture craze, you did not see the kinds of explicit federal intervention into free speech that we're watching now systematically across sector after sector after sector. And there are going to be people who say, well, what about, you know, the Biden administration attempting to job own social media? What we're witnessing right now, Tim, is so far beyond bureaucrats jawboning a social media site over coronavirus stories. It's hard to even see that in the rear view mirror at this point. It's one of the most comprehensive attacks. I was talking to an expert in free speech and I said, look, I don't want to engage in hyperbole. I said, my own view is that the current environment for free speech is worse than the Red Scare, but not as bad as the Wilson administration, because Wilson, a lot of people forget he jailed his political opponents by the hundreds.

C (38:25)

Sure, yeah.

D (38:26)

And this person I was talking to said, no, I think it's worse than Wilson. And I'll tell you why he said, no. We have not seen the jailing at large scale of political opponents. We're seeing that sort of starting to try with comey, prosecution, et cetera. But when Wilson was doing that, he was doing it without the free speech case law that exists now. In other words, he wasn't defying the known legal precedent on free speech. And in fact, one of the first big cases after the Wilson era was this dreadful Shank vs United States case that actually upheld one of his political prosecutions on the basis that, you know, handing out leaflets opposing the draft was like falsely shouting fire in a crowded theater, creating a clear and present danger, you know, to the body politic. And then it took years after that, for decades after that, for all of this Supreme Court free speech precedent to build up. And so his point was Trump is actually defying the law in a way that Woodrow Wilson never was. Now, I'm still gonna say I still think Woodrow Wilson was worse.

C (39:34)

And it's pretty bad for you to say it's worse than the Red Scare.

E (39:36)

Now, I'd have thought that's kind of borderline.

D (39:39)

I think when you look at the depth and breadth of what's happening, it's worse than the Red Scare. It's worse than the Red Scare.

E (39:46)

It's not just government, folks. You know what I mean? It's the government going after regular people.

D (39:50)

Yes. And you also have the dynamic of when I was reading to circle back to the memo about domestic terrorism, one of the Things the memo talks about was acts of intimidation designed to sort of suppress political participation. I was like, oh, you mean maga? Everyone knows what happens if you run crossways with MAGA now is you're going to get flooded with threats. You're going to get flooded with acts of intimidation. I mean, you know, we've been watching awful things happen in the state of Indiana when this Indiana senators are not willing to do this. Snap redistricting. There's been swatting, there's been threats, Avalanche of threats. It's horrific. And so, you know, I'm reading the memo and I'm thinking, physician, heal thyself. I mean, this is, you know, this is one of the most aggressively intimidating political movements I've ever seen in my entire life, certainly in the United States in my adult lifetime. Okay.

F (40:45)

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G (40:48)

Let me see your charges.

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Fine.

G (40:50)

You spent over $600 on takeout last month.

F (40:52)

I can't cook. You know this.

G (40:54)

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E (41:01)

That.

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G (41:02)

Look, just get Rocket Money. It shows you all of your expenses in one place and even tracks your subscriptions. And if there's a subscription you don't want, which for you, there are a lot you don't need, you can just cancel right in the app with a few taps.

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So you mean I don't have to.

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Call anyone to cancel?

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G (41:19)

No hold times or anything. And they'll even try to get you a refund on some of the months of wasted money, which is a lot of money for you.

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Okay.

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C (42:16)

You also wrote recently, the article is.

E (42:18)

Well, these days you can't say what the article is titled because, you know, the digital gurus are testing out eight different headlines to see what people will click on it the most. But the one that was served to me was what do Republicans think about each other? And you talk about the Tennessee experience. You're in Tennessee.

C (42:33)

And the short of it is I kind of view these new MAGA entrants.

E (42:36)

Into the party, which makes up now about a third of the party, give or take, are folks that were not traditionally Reagan conservatives, either because they were younger, because they used to be Democrats or independents, or used to be not involved in politics really at all and have jumped in and how they're much more conspiracy minded. We're going to talk about the conspiracies.

C (42:56)

In a second, but I'm kind of more interested in your assessment of on the ground, how that conflict is resolving.

E (43:04)

Itself, like where the momentum is, who's winning and what you're seeing on the ground.

D (43:08)

Yeah. So just to set the stage here, I wrote this article after the Republican won in Tennessee, 7th district of Tennessee, which is my district that I used to live in until May of this year, spent many years in this district and he won by nine points, which you think that seems pretty healthy. No? Well, the previous he replaced somebody who in 2024 won by 21 and Trump won that district by 22. So it's a 13 point negative swing against Republicans from the Trump numbers. And when you look even closer, that looks even more remarkable because it's a 13 point negative swing against Republicans when he was running against somebody who won the Democratic primary pretty far left with only about 27% of the vote or somewhere in that neighborhood.

E (43:58)

She went a very narrow plurality.

D (44:00)

Yeah, very narrow. Who was not, and this is not a compliment in Tennessee. She was called the AOC of Tennessee. Had some pretty controversial posts in the 2020 George Floyd era, including one where it kind of looked like she was celebrating burning of police stations and then had this hot mic or this not hot mic, this podcast moment where she talked about how much she hated Nashville and part of her district is in Nashville. So this was not someone designed like in a lab to contest this district. This is a very poor fitting candidate for the district. And she still improved by 13 points.

C (44:37)

Wasn't even ideology, too.

E (44:38)

Also, it was vibes like, you know.

C (44:40)

Graham Platner, you could say is lefty.

E (44:42)

Might not be perfect. You know, all of his views might not be perfectly representing, you know, kind of rural Maine. But like, you know, he's a farmer.

C (44:49)

He'S A lobster farmer. His affect is very kind of rural.

E (44:52)

And populous, like she was. I mean, she just seemed like a lefty Internet poster.

D (44:58)

So anyway, and so what I wrote about was what we've seen for a long time and it's just growing and growing and growing is the new entrants, this really phenomenal Manhattan Institute poll that I think was fascinating about the difference, what it called core Republicans and the new entrants, where a lot of these new entrants, which are people who are more ideologically say populist, more conspiratorial, etc. Have really moved into the party and they have aggressively contested party control at the grassroots. And this has happened all across Tennessee. And so what's happened is that the Magaverse, which used to be really, truly much more of an online phenomenon, if you weren't on Twitter, your experience of the Republican Party wouldn't be that dramatically different. It's, you know, it's still all the same people.

C (45:50)

It's like a 50 year old churchgoing Republican who's got a family and taking kids to, you know, sporting events. Like you might and like, is not.

E (45:58)

A big consumer of political social media. Like things might not feel that different.

C (46:02)

Trump, the president's weird, but like you're.

E (46:05)

The people in your life seem like similar.

D (46:07)

Yes. And then people like me who are seeing the rising weirdness of maga, who've been experiencing it through the threats and the intimidation, and we sit there and we wave and they this is going on because it hadn't penetrated to their lives yet. We look like we're crazy people. What are you talking about? This is, you're just nut picking. You know, if people knew what that was. You know, you're just picking out the extremes and the fringes. But what we saw was the building wave and now that wave has crashed all over the country. And you have, say, for example, in Williamson County, Tennessee, where I used to live, we had Republican civil wars year after year after year where you might say, like the Moms for Liberty, hyper Magath faction is fighting the more establishment Republicans, often in the most vicious of ways. And so the thing that has kept Republicans together even across all of that was really two things. One was a shared affection for Trump. I mean, nobody should say that virtually any Republican now is holding their nose to vote for Trump. Very, very few. So even the core normie Republicans like Donald Trump.

E (47:14)

Yeah.

D (47:14)

So they had a shared affection for Trump and they had a shared antipathy against the left, specifically sort of the view that the Democratic Party was Far, far left. Well, two things are happening at once here. One is Trump's not on the ballot anymore, so that shared affection for Trump is not holding the coalition together as much. And then number two, the Democratic Party isn't the same party as it was in 2020 and the Republican Party is getting more extreme. And so the Democratic Party has been moderating as the Republican Party has been radicalizing. And so a lot of that means that Normie Republicans are now facing worse treatment and more vicious treatment from MAGA Republicans than they've ever experienced from Democrats. And while you still have a coalition that's hanging together, you can see it's bleeding numbers. My goodness. I mean, did you see some of the election results from earlier this week? Just remarkable. And so I think what has happened is while a lot of the Republican disunity has been obscured by the continued affection of partisan Republicans for Trump, you go one layer below that, just one layer, and the whole thing is starting to pull apart at the seams. This coalition is not a stable coalition of people.

E (48:39)

Bolt, smag, which I really like for.

C (48:41)

Very nerdy elections analysis.

E (48:43)

And they looked at like 2017 versus this year. Republicans actually did worse this year than 2017 ahead of that 2018 wave.

C (48:51)

The other thing that just to put a finer point on what you're saying locally, this is what I'm hearing at least.

E (48:55)

And Tim Alberta has talked about this. And from an evangelical perspective, my friends.

C (49:00)

That are still in Republican politics tell me this. The Manhattan Institute poll made it seem.

E (49:04)

Like the legacy Republicans there were still more of them than the new entrants. It was like 2/3.1 third at Republican events and stuff.

C (49:12)

Like in Republican groups they've been totally run out. That Mobs for Liberty fight that you.

E (49:18)

Were talking about before, whereas the crazy people are fighting against the irregular churchgoing, whatever traditional school board member Republican. The Mounts for Liberty people have run the traditional person off the school board. They don't want to even deal with them anymore. They're so crazy. And so the crazier conspiratorial Tucker Candace people which we're about to get to are dominating in these offline spaces too.

C (49:41)

Are you sensing that?

D (49:42)

Well, so it very much depends on jurisdiction. By jurisdiction, I would say the fight is very, very real. In my experience in Williamson county, there's been actually some real success in the establishment kind of beating backs the more extremists. I'm so close to this district that my sister in law managed the campaign of an establishment Republican against a radical MAGA challenger and she Managed the campaign of the Franklin, Tennessee mayor. And then my brother in law is on the Williamson county school board and was targeted as, even though he's a, you know, staunch Republican, targeted by the more crazy people viciously to the point where he had to get security, you know. And what was the reason why they targeted him, Tim? He worked for Pfizer. And so the problem you have is that in some areas the fight is over and MAGA won't. I don't think there's any areas where the fight is over. And like the establishment one, Georgia is pretty good.

C (50:38)

I shout out Georgia is where the.

E (50:40)

Strongest pushback has happened. We saw this a little bit in the local elections this week, but yeah, no, for almost entirely.

D (50:46)

And Tim, you have more experience, like, you know, in your previous life in dealing with sort of the grassroots party folks. I was always much more involved in the legal side, the conservative legal movement. But when I would go to like a grassroots Republican gathering, and I don't know if this is your experience, it was sort of like this. You would have a room full of people who were like bankers, lawyers, insurance agents, you know, people are stay at home moms, like just a collection of normie folks from the neighborhood. And then you have a couple of people over in the corner who were like, I formed the anti Sharia law nonprofit or I have the.

C (51:25)

They've got a pamphlet for you.

D (51:26)

Yes, they've got the pamphlet. They've got a card. They're going to, to, they're going to try to jump in and dominate the conversation. But they were on the edges of the room. You fast forward to now and the whole thing is flipped. The bulk of the room are the people with the crazy ideas, the people who are the fanatical, more extremist, conspiracy minded individuals. And a lot of the normies are the ones at the edges that are sort of trying to cling on. And this dynamic has an effect over time, especially when you no longer have the unifying figure of Trump to rally behind in an election. And especially if the Democrats actually try hard to pull in moderate and centrist voters that 13 point swing. Tim, just to show you how much opportunity is out there for Democrats, that 13 point swing in, in Tennessee, seven was the lowest swing yet. The lowest. All of the others were between like say 16 and 28 points. And so think about what could have happened had the Democrats run somebody that was really crafted to appeal, you know, to the district. And you know, assuming present trends continue, which is a dangerous assumption, but just assume it for a moment I think you're going to see in many districts there's a lot of more moderate Democrats who are running and I hope that they can win their primaries. And if you do see that, you might see some pretty surprising flips in this next cycle. You might see some pretty shocking outcomes.

G (52:59)

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C (54:00)

All?

I (54:00)

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E (54:30)

Okay, really quick. On the crazy side, I gotta talk about Tucker and the Tates on the.

C (54:34)

Tucker element, two things caught my eye yesterday. Tucker, who is again dominating the podcast shirts.

E (54:39)

He's everywhere. He's going to be speaking at the TPUSA thing. Obviously he has the ear of the vice president. So this is not a fringe figure at this point?

C (54:48)

No, he was on Theo Vaughan's podcast.

E (54:51)

They did like three hours. I haven't made it through all of it yet, but one of the clips.

C (54:55)

That went public was Tucker was Basically kind of saying that he's open to.

E (55:00)

Candace's conspiracy theories about who killed Charlie Kirk. And then he had to do a.

C (55:06)

Selfie video where he kind of was like, well, he walked back a little bit, but he's just like, basically, I.

E (55:10)

Don'T trust the FBI. I don't trust the FBI. This is Bain takeaway.

C (55:13)

So, yeah, so he did kind of a just asking questions thing.

E (55:15)

And I'd then walk it back to.

C (55:17)

Like, well, I'm really just saying I.

E (55:19)

Don'T trust the FBI.

C (55:20)

Simultaneously, there's this interview, Olivia Nutzi, last week, and it took me a while.

E (55:25)

To figure it out.

C (55:25)

I'd read this part in the book, but she anonymized all the names.

E (55:28)

And I figured it out yesterday that.

C (55:30)

Her and Ryan Lizza both were saying that Tucker had communicated to her that Israel. This was in private, that Israel was potentially involved, and that Olivia should be worried about herself because this.

E (55:45)

This was.

C (55:46)

It's hard for me to tell whether Israel was. Was trying to sabotage RFK or whether RFK was an agent of Israel. Both. It's just a matter. Or maybe both. The more interesting thing to me is, like, these are all private conversations, right? So, like, in the question of, like, you know, is this all a show? In a private conversation with Olivia Nitze.

E (56:05)

Is telling her that she's got to worry about Israel being involved in a conspiracy involving her.

C (56:09)

Anyway. Thoughts?

E (56:12)

I don't know if there's a question there.

C (56:13)

Thoughts on Tucker.

D (56:14)

I think we're way past the point of saying this is all an act. If it's an act, it's one of the best acting jobs I've ever seen in my entire life, and especially similar with Candace, similar with some of these other figures. And one thing that I learned in the practice of law, Tim, one of the questions that you're often asked when you want to be a lawyer is, how can you represent somebody whom you know is lying? Or how do you represent somebody who you know is lying? And one of the things that you realize is that when the stakes are high enough, people will believe their own bs. People don't live for very long in that tension of being an intentional liar. They will often migrate to and rationalize to the point where they can pass lie detector tests for some of their craziest assertions, that the human brain's a very interesting thing. It's a incredible engine of rationalization. And you also have to understand that once you enter this space, the next thing that happens is you're bombarded with messages from people who are like, finally, yes, here's this secret memo I found. There's this huge population of people out there who've been doing their own research for a long time on lots of things. And so you get immediately hooked into this. Like, you're, you know, you're mainlining all of a sudden a lot of the thoughts and ideas of the most disaffected people in society. And I think it just has this corrupting effect on the brain. So I think that these people are sincere in their beliefs. And that, in my view, just makes things so much worse because you're talking about radicals radicalizing influencers, and then influencers turning around and radicalizing the public to the point where it is not uncommon, Tim, to encounter an incredibly normie, let's say, homeschool mom who's raising their kids and teaching them sort of classical education. And then you, like, peel one inch below the layer of normality, and you've got the wildest conspiracies underneath it. It just the craziest stuff, and that's becoming just more and more and more common. You know, a lot of people write off the audiences of Tucker and Candace as well. That's just fringe. They're huge audiences, and you'd be shocked at some of the people who listen.

C (58:39)

Yeah, I don't know. To me, that's why at some level, it kind of doesn't matter whether they believe it or not. To me, it matters in the sense.

E (58:45)

That because his audience is so huge.

C (58:46)

If, like, this is the type of.

E (58:47)

Person that in private conversations, like, thinks that Israel is involved in an assassination conspiracy related to RFK and Olivia and Nitzi, and is open to the idea that Candace, who's like, anyone that does not look at Candace and then say, you're having a psychotic break and you need to get off camera, is complicit. And apparently both Tucker and Theo Von are looking at Candace and saying, maybe, maybe it's possible.

C (59:09)

Lastly on the Tates, Barron Trump spoke with Andrew Tate.

E (59:12)

It's a great New York Times story. Andrew Tate and his brother, the Romanian sex traffickers, they do the manosphere, like.

C (59:19)

The worst manosphere stuff about, like, like.

E (59:22)

Women should serve men and all that machismo.

C (59:25)

And we learn more about how the.

E (59:26)

Trumps helps get them off the hook for their sex crimes in Romania, including mild frenemy.

C (59:33)

Were we ever really frenemies?

E (59:34)

No, actually, that's not true. Someone I have disliked for a long time, Richard Grinnell, who called the Romanians, apparently.

C (59:40)

And within days of the second conversation.

E (59:43)

With Grinnell Romanian prosecutors handed their Tates their freedom to travel. So they bucked pressure from the Trump administration.

C (59:51)

And to me, this story shows, I.

E (59:54)

Mean, just at the moral debasement of the Trump administration that they're pressuring Romania to release these sex traffickers.

C (59:58)

But also how deep it is at.

E (60:01)

A personal level that Baron Trump, who you would think would have all the self confidence in the world, being a tall, handsome, rich kid whose dad is the president, feels like he needs to have a relationship with these guys that are doing this kind of like hate women need to serve men and, you know, talk. It's, it's pretty bleak across the board.

D (60:19)

It's extremely bleak. It's also extremely consistent with the Trump administration's treatment of some of the worst people in the world. I mean, you know, you, you have a Chinese crypto billionaire pardoned because, you know, right after he has helped increase the value of Trump's family crypto holdings, who then now is subject to a lawsuit claiming that his company might have been helping funnel money to Hamas. You have a former Honduran elected official who's pardoned after he trafficked hundreds of tons of cocaine to the United States. And this is, you're blowing up low level drug mules, but you're pardoning the drug lord and all. The only consistent theme is they had friends on the inside. They have friends in the administration, and Andrew Tate is no exception. The Barron Trump part of it is interesting because it really does sort of prove the lie to the notion that, that these guys are speaking to just struggling men, struggling young men, alienated young.

C (61:19)

Men who are not getting enough attention from women and don't have enough economic opportunity. Barron Trump.

D (61:27)

Look, there are people out there like that, no question. I've met them, I interact with them all the time. But there's an awful lot of people who love them, some Andrew Tate and other manosphere influencers just because, because they're assholes. And like, calls to, like, these people are seeing in Andrew Tate, they're seeing in other manosphere figures the kind of person that they are and want to be. And so this is not a thing where you look at an Andrew Tate and say, well, it's a shame that this person speaking disaffected, alienated youth has so many problems. I mean, that's the Tucker Carlson spin. Even though he has personal problems, his message. No, no, no, no, no. What these people are doing is it's like calling to, like they are sort of sending out into this call of the wild, a beacon for all your angry, you know, exploitive, vicious men and then urging them to double down on all the worst elements of their nature. And this is a part of the manosphere story. Part of it is struggling young men reaching out, but a part of it is just calling out to.

C (62:31)

Yeah, and to your point, it's worse.

E (62:33)

Than that even in some ways, it's assholes encouraging moldable young men to feed the worst parts of their nature.

C (62:41)

Right. You know, and that is what's so disgusting.

E (62:44)

And what's so disgusting about them is that they're sex criminals and that we let them off for some reason and pressured a foreign government to let them off. But, like, that is what their culture is encouraging, is taking people that are.

C (62:56)

Trying to figure out their way in.

E (62:57)

The world and saying, no, feed your dark wolf. Feed the dark part of yourself. Women are terrible.

D (63:02)

Absolutely.

E (63:03)

Rather than trying to improve themselves.

C (63:05)

David French, thank you as always, man.

E (63:07)

I really appreciate your insights.

C (63:10)

Have a great Christmas with the family, and we'll catch you in the new year.

D (63:13)

You too, Tim. Always great to talk to you.

C (63:15)

All right, we'll be back tomorrow for another edition of the podcast.

E (63:17)

See y' all then. Peace.

J (63:24)

Your horse and ride. D is an Indiana. You're an. Get on your horse and ride. Get on your horse and ride. Get on your horse and ride. You're an asshole. Get on your horse and ride. Get on your horse and ride.

C (64:06)

The Bulwark Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.