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- [00:00]
A
Hey, it's John. I want to talk to you about Shopify. A lot of people talk to me about starting podcasts. This podcast is 10 years old. It's in a different place from a lot of podcasts because we're obviously part of a nonprofit institution and it's not a way that we are seeking to earn our livelihoods. But a lot of people look at this and say this is something I can really do to create a business and run the business and do it in a really comfortable, practical and serious way. Gotta wear a lot of different hats when you start your own business. Can be very intimidating. But one of the things that I know from a lot of people is that if your to do list is growing and growing and growing and that list starts to overrun your life, you need a tool that not only helps you out, but simplifies everything that can be a game changer for millions of businesses. That tool is Shopify, the commerce platform behind millions of businesses around the world and 10% of all e commerce in the US from household names to brands. Just getting started. You get started with your own design studio. With hundreds of ready to use templates, Shopify helps you build a beautiful online store to match your brand style. You can accelerate your content creation because it's packed with helpful AI tools that write product descriptions, page headlines, and even enhance your product photography. You get the word out like you have a marketing team behind you. Easily create email and social media campaigns wherever your customers are scrolling or strolling. And best yet, Shopify is your commerce expert with world class expertise in everything from managing inventory to international shipping to processing returns and beyond. If you're ready to sell, you're ready for Shopify. Turn your big business idea into Kaching. With Shopify on your side, sign up for your $1 per month trial and start selling today at shopify.com commentary go to shopify.com commentary that's shopify.com commentary. Hope for the.
- [02:23]
B
Expect the worst Some preach and pain Some die of thirst.
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A
No way of knowing which way it's going Hope for the best Expect the worst Hope for the best welcome to the Commentary Magazine daily podcast. Today is Tuesday, November 25, 2025. I am John Pot Horiz, the editor of Commentary magazine. With me, as always, Executive editor Abe Greenwald. Hi Abe.
- [02:51]
C
Hi John.
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A
Social commentary columnist Christine Rosen. Hi Christine.
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D
Hi John.
- [02:56]
A
And joining us today, senior fellow at the American Enterprise Institute. Therefore Christine's colleague as she is a senior fellow also at the American Enterprise Institute and director of the Seaboard and Grace center for the study of the administrative state. Adam White. Adam, welcome back.
- [03:14]
B
Hi, John.
- [03:15]
A
So, Adam, we're going to get to a whole slew of Law Fair Trump, Fair Trump, Law Law Trump questions. But I think we have to start by commemorating the we did not have a chance to yesterday commemorating the pending resignation of Georgia Representative Marjorie Taylor Greene from the Congress. She has announced her intention to resign on January 4th. Midway into her I think it's her fourth term, though it certainly feels like she's been there forever. And this is a significant moment because it's a Rorschach test of some sort. Do we think that she was driven from Congress simply because she got crosswise of Donald Trump on the Epstein files? Does she think that it's time for her to leave Congress? Does she? Because the gap between her and Trump on the Epstein files is an opportunity for her to start establishing herself as a beachhead in 2028 as some form of post Trump candidate who can come at Trump on an issue that is emotionally resonant for a lot of people on the right. That will be difficult for so that she can both say she is following in his footsteps and say she will do things differently. Does she have the political common sense and fingertip feel for the right to know that that's a good idea, or does she just look at Candace Owens and Nick Fuentes and say, man, I want a slice of that podcast pie. They're making millions. I could make millions. So these, I think, are the three or four possible options to understand the Marjorie Taylor Greene resignation.
- [05:10]
C
I say the last option is certainly operative. I think she wants in on the Tucker Bannon Candace scene. Whether or not she then tries to ride that to some position of actual political salience, I don't know. But she doesn't have to know yet either. I mean, she could just do that and I'm sure she will make good money doing that and raise her profile and she could take it from there.
- [05:48]
D
I think of her as a kind. I agree. I think it's the podcast route for her. I think that's why she's been in our faces a lot in the last month or so. But I think that she is sort of like a stuntman of congressional politics and always has been. She doesn't. She was never there to govern and she hasn't been a very good representative for her district in Georgia. So leaving now doesn't it actually is an opportunity for her constituents to get someone in Congress who will do some work on their behalf. And she's always been that Sort, I mean, from the Jewish space laser comment on, she's always been wackadoodle and that's her brand. So she will do very well in the Candace Owens, Tucker Carlson space. Would she run again? I don't know. I would hate to see the revolving door of our politics go from, you know, the K Street lobbyists back in and out of administrations to crazy right wing podcast world and back into administrations. But that might be the way we're headed.
- [06:38]
A
So I do want to warn people that there is a line of argument about her that's been going on that she quit on the day that she quit or resigned on the day that she resigned because it's the day after her pension kicks in and that that's why she's quitting. When she's quitting and she is in fact very wealthy. It's not that it's not possible that she. It's certainly possible she's like, I want that extra $50,000 a year from my congressional pension. But I doubt that she was stirred or manipulated by money in this sense. Of course, you know, she's barely in Congress in some fundamental sense. She was stripped of all of her committee assignments four years ago. I'm not sure that she is actually on any committee. She actually endorsed the political violence of January 6, said it was good, that was why she was stripped. And I think 15 Republicans or something like that voted with the Democrats to strip her of her committee assignment. So her vote in Congress is largely ceremonial. Now with a two or three or four seat majority that the Republicans have in Congress, that ceremonial vote can, can mean a lot if things are really, really close. And there were these moments in the last couple of years where she seemed to almost like wake up in the morning sane. Like when she sort of said people should stop attacking Kevin McCarthy. Remember, Kevin McCarthy was essentially ousted from the speakership largely due to the manipulations and rage of Matt Gaetz, also now out of the Congress because Gaetz was mad at McCarthy for understandably loathing him and wanting to sideline him for being in a Febophile who was chasing and sleeping with 17 year old girls, which may be legal in the state of Georgia, but is illegal in the sight of God. When you are, you know, in your late 30s or early 40s, creepy, disgusting, foul, rotten, anti Semitic piece of garbage that Matt Gaetz is. And Matt Gaetz as it was, actually the author of the downfall of Kevin McCarthy, which in itself has proved to be an interesting and unexpected blessing because Mike Johnson appears to be a pretty good speaker of the House, able to herd cats, saying a lot of really very powerful things. He just did yesterday, as Christine pointed out to Katie Miller, Stephen Miller's wife on her podcast about the need to denounce anti Semitism in all its forms. And, and that if we're all enjoying to love our neighbor, we need to love the Jewish people grateful to him for that. So, I mean, in some implicit way, Gates's ouster of, of, of Kevin McCarthy was a, was a grave injustice, but like, has led to a decent result. But Marjorie Taylor Greene did had this moment where she was like, why are we doing this? This is crazy. But then at some point she just went back to being a crazy person, which she is. And I think maybe she's looking at the world of crazy people and saying, this is really not fair. Now you can monetize being crazy and I'm leaving all this money on the table as a professional crazy person.
- [10:01]
C
Yeah. I also want to say that, you know, this, this adds yet another voice to this chorus that is sort of of maga, but firing at it from outside. And I wonder how many more sort of defectors we will have by the time 2028 rolls around if there's going to be this sort of full other semi party and what kind of effect that's going to have on what's left of actual political maga, especially J.D. vance.
- [10:42]
A
Well, Adam.
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D
Well, it's also, it's also, and Adam and I in our group at AEI talk about this a lot. This is also a part, broader problem of decent members of Congress not wanting to stay any longer and help contribute to the institution, the institution building, because it's become a very hostile environment in which to work. Whether that's because you're getting death threats from the extreme left or the extreme right, whether it's because, you know, the kind of dysfunction that, that seems to have ruled, particularly on the Republican side because of the demands for loyalty to Trump for a number of reasons. There are plenty of representatives, and Don Bacon was the most recent one. He's already announced his retirement, but he was so upset about what was going on with UKRA plan, he said, I might just resign now. So there's a lot of, I would say, employee dissatisfaction right now in Congress.
- [11:28]
A
Well, you know, Steve Bannon, one of the crazies, compared Congress under Trump to the Duma. The Duma was the Russian parliament before the Revolutionary War, before the Russian Revolution, that existed as a, as a representative body, was voted on in free elections by the Russian people for like 50 years, but was a rubber stamp to for the Tsar and did not have any independent standing, unlike other, other parliaments or legislatures like the House of Commons or, or, or the, you know, other. Even in authoritarian countries, the legislature had independent powers. And Bannon meant that admiringly. Meaning, like, this is great. The Congress is like a duma. The executive gets to do whatever the executive wants. So Adam White, this is one of your specialties, your Bailowicz, is the existence of a too powerful centralized administrative state under the management not only of the executive branch, but of itself, kind of self perpetuating, self governing structure. And we do exist in a world in which Congress is, you know, increasingly irrelevant. Though that is a choice. I mean, Congress could make itself relevant at 11:30 this morning if it chose to. It is a kind of, what would you call it? Like, almost like atrophying of a muscle to do oversight and be the co. Equal branch of government that it has ceased being.
- [13:09]
B
Yeah. Congress was made to look to the future and make broad laws for it. And now it mostly sits around looking at what's happened in the past and making narrow accusations about it. And I think that's maybe the best way to understand Congress now. Its entire mindset or posture has changed from a forward looking body to a backward looking, kind of judgmental body. It's not that Congress isn't doing anything. We have people often say, oh, Congress doesn't do anything. It does a lot, just not what it was built to do. And as you point out, it's because long ago the presidency and his agencies became the center of gravity for policy making in government.
- [13:51]
A
That was so pithy. That was like pure, that was aphoristic in the extreme. That was like a sort of thing that Reader's Digest back in the day might have like clipped out and run as a, as a sentence, you know, of a pearl of wisdom about past the future.
- [14:09]
D
Okay.
- [14:10]
B
When you started cunning, I was worried.
- [14:11]
D
You Drama in real life section of the podcast.
- [14:13]
B
I thought you were going to bring me in on the intricacies of.
- [14:16]
A
Yeah, exactly. Yeah. What were you worried about?
- [14:19]
B
I was worried you were gonna bring me in on the intricacies of House pension law. And I know some things, John, but not you do. No, not that I. I don't know that.
- [14:29]
A
That's unfortunate. I want you to unlearn that immediately. There are things you do not need anyone to know that you know about because then they'll start calling you. It's just not, not, not, not a good, not a good plan. So Adam White knows nothing about congressional pension law. Heretofore, what, what Adam White does know about with in great detail is lawfare and Trump fair and the Supreme Court and what, what may be going on there. But before we get to that, there are a couple things we should probably bring up, like the continuing very deep confusion over what is going on between the United States, Russia and Ukraine. So much so that the first stories this morning suggesting that the United States and Ukraine had agreed to a peace.
- [15:23]
B
Deal.
- [15:27]
A
Which for those of us who are worried that the Trump administration is on the verge of selling Ukraine out to the country that invaded it without cause and is attempting to create a, you know, a satrapy inside, you know, wage a successful war against other European country for the first time, you know, in 80 years and needed to be stopped, that this was basically going to be resolved by force by the United States on, on the side of Russia. And that's what it looked like for about five minutes. And then stories began coming out that the Ukrainians were very heartened by the negotiation that they had yesterday with the United States with Steve Witkoff and Jared Kushner. In particular, that the 28 point plan that was leaked to Barack Ravid and Axios last week, which was basically a Russian document, is no longer, if it ever was, the governing document of the talks that the United States and Ukraine have instead come up with 19 points that, that push the most controversial issues into the negotiation between Ukraine and Russia, among them, how much territory Russia gets to claim if there's a peace deal based on what it's won during the course of the last 11 years that it's been trying to take bites out of, out of Ukraine. And size of the Ukrainian army, which was going to be set at a definitive limit of 600,000, which seems to be an unbelievable intrusion into Ukraine's sovereignty by the United States and by, by Russia. That's apparently out the limit on the army and, and the security guarantees, including, though it's not mentioned, the possibility that we will treat an attack on Ukraine as an Article 5 attack. That is Article 5 of the NATO charter that obliges all NATO countries to go to war if one NATO country is attacked. Now, I don't believe that Article 5 is still extant. I mean, it's a very alarming thing to say, but I, I do not believe that. If you, if you think that the Trump, if you think that Russia invades Poland and the Trump administration goes in with boots on the ground to retard the Russian invasion of Poland, I think I have A bridge to sell you in Brooklyn. I don't think that's going to happen. That's part of what Trump's anger with NATO is all about. The idea that the United States is obliged to do things because of the NATO treaty that he doesn't like. But still, Russia doesn't know that for sure. Nobody would really know that. It would be a very significant security guarantee. We've essentially extended a security guarantee like that to some extent to Saudi Arabia and Qatar. So it would kind of be weird not to extend it to Ukraine anyway. So apparently the. What's actually going on took a turn for what to me is unambiguously the better yesterday.
- [18:37]
D
Well, I will give you two slightly more pessimistic possibilities to keep in mind. I hope you're right. But there were two things yesterday that I found noticeable. One is this elevation of the Army Secretary Dan Driscoll into a negotiation role with the Russians to. He has no diplomatic experience. Now, in Trump world, we know he likes to just throw people like Witkoff into these situations and say, you know, it's a fresh outside perspective. Sometimes it works, sometimes it fails miserably, which Adam will talk to us about in the domestic law context in a second. But he, this, this guy's very close to J.D. vance. And then J.D. vance puts out a post on X. That's very much the isolationist we should be looking at home. I don't know why, you know, everybody's so focused overseas. Those two data points, I think, are worth watching because Driscol Driscoll's job technically is to, like, go procure drones. It's a very important job, Secretary of the army, but it's a procurement role. It's not a diplomatic role. And Trump is now giving him this elevated position to go in and negotiate with the Russians. And that actually should be watched. Rubio has been doing amazing work, as, you know, basically our country's janitor, cleaning up messes that are made by others. But I wonder about the power balance that's shifting in the White House when J.D. vance's role in this new front with the Ukraine and Russia negotiations.
- [19:57]
A
Look, that's an important point. I want to read JD Vance's tweet that you refer to, or his ex, or whatever we're supposed to call it. Somebody sent us an email yesterday yelling at me for still calling it Twitter. I still call 6th Avenue, 6th Avenue and not the Avenue of the Americas. And I call the Triborough Bridge, the Triborough Bridge and not the RFK Bridge. So I will stick with Twitter. If you want to keep yelling at me, go ahead. It's not my business. JD Vance's tweet reads. After 4 years of house prices doubling and in some areas tripling, many young Americans feel priced out of the American dream of homeownership. A welfare fraud scandal in Minnesota reveals that large numbers of new arrivals aren't assimilating and are funneling, funneling out tax dollars to literal terrorist groups. And this woman was set on fire in Chicago. The Obama insurance system is buckling under its own weight. The country is 38 trillion in debt. Our administration is working hard on addressing all these problems. But you know what really fires up the Beltway gop? Not any of the above. Instead, the political class is really angry that the Trump administration may finally bring a four year conflict in Eastern Europe to a close. I'm not even talking about the substance of their views. Much of what these people have said about the Ukraine war has been proven wrong. But whatever, we can agree to disagree. But the level of passion over this one issue when your own country has serious problems is bonkers. It disgusts me. Show some passion for your country. But this is where losing a feel.
- [21:24]
D
This is where the isolationist tendency is not sustainable. Because the whole point of a political party and the whole point of holding political power is that you do have to do more than one thing at the same time. You do have to have a domestic policy, you do have to secure your border. You do actually have to worry about the economic impact on, you know, American voters who, while also protecting us from foreign enemies. So it is. But, but he's, he's quite skilled actually at the way he's trying to shift the focus as if if you do this one thing, it's a pie and we're taking pieces of the pie away. When in fact the old school conservative foreign policy message was always safety at home and safety abroad are always intertwined. We have enemies that will try to disrupt us. And we talked about this on the show a bit yesterday in terms of just cultural disruption and what foreigners are trying to do to disrupt our cohesion as a society. So it's misguided in many ways, but I think it was a shot across the bow for thinking ahead to his political ambitions in the future.
- [22:26]
A
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- [25:36]
C
And I also think what he calls the Beltway GOP is actually not particularly thrilled with how the Trump administration is handling the economy at the moment to begin with. So I'm not sure what he's crowing about. If he's trying to set up, you know, domestic concerns as opposed to foreign ones, it's on the foreign front that this administration has had the most success, actually.
- [26:08]
A
See, that's a very good point. And one of the reasons that I got low down and angry and name calls is that if this is the way we're going to go, then let's, then, fine, let's go. You want to be President of the United States? And I know Donald Trump is full of. Donald Trump ran as an outsider in 2015 and 2016 because he was an outsider. And he ran in 2023 and 2024 because he was an outsider again, because he was like running for president with these seven cases, legal cases, shackled to his legs, proving that the establishment of the United States, using the legal system in at least two states and the federal legal system were trying to do whatever they could to prevent him from achieving the, from getting to the White House again. He was an outsider then. He was an outsider when he ran the first time. You know who's not an outsider? J.D. vance. Not an outsider. J.D. vance is a Yale graduate. J.D. vance is the author of an enormous bestselling book. J.D. vance worked for a hedge fund. J.D. vance got himself elected to the Senate the first time he ever ran for office, and two years later was Vice President of the United States. He has an inside job. He is a figure of whatever the establishment in America is. At the age of 40 or 41 or whatever he is right now, he is the most successful person of his age. He is in the United States. He is a dominating figure in Washington. He is the front runner for the 2028 nomination in one party. And if he, if his effort to claim the mantle of outsider against people who are fighting a rear guard action to prevent him from changing US Foreign policy so that we no longer defend nations in the world that are attacked unwarrantedly, that are democracies, that are run by pro Western governments as opposed against an anti Western government that is a authoritarian, corrupt, authoritarian dictatorship with a president for life is an astonishing act of chutzpah.
- [28:28]
C
But, you know, can I say, I think there's a little silver lining in this, which is that it reveals something. The reason he's so frustrated and angry is because it's not just the hawks and the neocons who are opposing or who were opposing the direction in which this Russian, this, this handover to Russia was, was happening. It was the bulk of the gop. And he saw that and that's a good sign. In some sense it's better than saying, too bad that the neocons wanted endless war, but we're getting this done instead. Which is the other kind of thing that you would hear from such figures.
- [29:20]
A
Also, what possible role does the Beltway GOP have in the negotiation that is going on between Russia, Ukraine and the United States? None whatsoever, as far as I can tell. Unless you want. Unless Marco Rubio in some fashion inside the administration is representing the Beltway gop. If that's a sort of hint that he is throwing at us. If Rubio, yeah, okay. But in any case, he's higher up on the food chain than Marco Rubio is. And I appreciate that Running as an outsider is the thing to do when you want to be the person who is running for whatever. And actually the war against the administrative state is one way in which a person who is on the inside can run an outsider fight. Like he could say, I'm going to continue our battle here in the Trump administration to prevent the permanent institutional government from running your life. But that's not the fight he is fighting. He is fighting an internal battle among the, in the intellectual wing of the conservative coalition, which is very flattering. I mean, if he wants to go at, you know, people like us instead of, you know, people like the Assistant Secretary for Procurement at the Department of Commerce, then, you know, fine, I'm glad to be the Vice President's target rather than, you know, that guy. But it is very telling. I don't think he can pull off running as an outsider. And if that's the direction he thinks is the good direction for him, I'm heartened. Cuz I'm pretty sure I don't want him to be vice be the presidential candidate in 2028. And I don't think he is showing political smarts or as Adam would say, in terms of Congress, that he is actually seeing the future and trying to plan his way into it. He is seeing a future. I think he's got the future wrong. He's going to be Vice President of the United States or President United States. If he is part of a successful administration. That's the only way he wins in 2028 is if the, if the American people, like they did in 1988, look at the administration and say, oh my God, this was a pretty great time. Reagan leaves office with a 70% approval rating. That's how George W. Bush wins. 53, 54% of the vote. If he's going to stand there saying, you guys are all making us lose while we're desperately trying to make sure that people aren't set on fire on a subway, then I don't think he has anything to say to the American people. I mean, it's a long time till that contest actually takes place. But there's also a tone issue.
- [32:09]
C
It reminds me of when he, you know, set the Oval Office on fire with Zelenskyy that day. Vance comes across very impressive when he's calm and reasoned and analytical. When he loses it like this, it's very ugly. And it's hectoring, you know. You know, to think that we used to say that Obama had a lecturing tone that was off putting, and he did. And then you compare that to this tweet by Vance. I mean, this is so much more over the top. And it's not like when Trump acts crazy. It's just Trump or it can be kind of funny or you kind of expect or whatever. It's something. It has more to it. This just comes across as a kind of tantrum.
- [33:01]
D
Well, and I actually, because we have Adam here and I know we're going to talk about Comey and Halligan, but there's another more obscure thing that happened that I don't understand legally. And I want to ask Adam because it's bothering me and it is linked to this, to Vance's tone and to the whole immigration debate. The Supreme Court just did something with regard to the cases regarding birthright citizenship. Is that something we should keep watching? Like they didn't take up one of the Trump appeal? I don't know. Something happened with the birthright citizenship stuff. And I think that's the representative of the Stephen Miller Vance direction in immigration. And I just, I don't know if that's, I'm just springing this on Adam, but are those cases still active before the court?
- [33:39]
B
You are springing me this. Sorry, you've caught me off guard. I don't actually know the latest development in this case.
- [33:46]
A
All right, well, so let's move on from there.
- [33:48]
D
Okay.
- [33:49]
A
I'm such a failure. Very quickly, just to explain what Christine is talking about. You know, there is a quiet there. Obviously, the administration is being very aggressive on immigration law. Various things are coming before the courts that will come before the Supreme Court about what power it can use under national security provisions to enforce immigration law in the United States and whether, therefore ISIS raids in cities are constitutional or not. But then there is this effort to extend out the question of whether or not People who are whether or not birthright citizenship, which has been understood at least since the mid 19th, late 19th century to be a provision of the Constitution of the United States, can be essentially.
- [34:38]
D
And I, and I did spring. So all I should have been. They just extended their period of review. So I answered my own question. I thought it was some like, on the birthright question. Okay, thank you. Sorry, sorry.
- [34:50]
A
Does that mean. Okay, but let me just ask you now, now, since you, I mean, when you say they extended their period of review, does that mean that they're trying to extend it into the following term? Or are they. Are they extending it to hear it, to make sure that they decided before the 30th of June? You don't know. Okay, well, birthright citizenship, very huge issue at a nor.
- [35:16]
D
I mean, they've extended to December 5th.
- [35:18]
A
Okay, well, then it should be heard this year, right? No. Yeah. Okay. Adam's saying yes. Okay. So the point here is that I think of all the things that are before the Supreme Court, in my estimation, the birthrights, any. If the Supreme Court were to rule that birthright citizenship, as understood since 1865, was not actually a thing, that would be the single most significant thing the Supreme Court will do this year or possibly, you know, in decades, as an entirely new understanding of what it means to be an American. One of the reasons, I assume it will not. It will not rule that way. But so, but more, more immediately, yesterday, obviously, this judge throughout the indictments of James Comey and Letitia James, but on procedural, not substantive grounds, having to do with how the case was filed and how the indictments were procured by the grand jury. Do I have that right, Adam?
- [36:35]
B
That's right. Both of the indictments were dismissed because the U.S. attorney who filed the indictments or got the indictments turns out, wasn't the U.S. attorney. It's the great twist that everybody saw coming for the last month. I can get into the weeds on this if you want, John, but in a nutshell, to be a U.S. attorney, you normally have to be nominated by the president and confirmed by the Senate. But oftentimes that doesn't happen. Right. This process takes time. President Trump has had an interim U.S. attorney from the very beginning of his second term. Under the law, under a statute that can only last for 120 days. After 120 days, the courts under current law are the ones who make the appointment, which is an interesting. That raises separate constitutional questions. But the upshot of yesterday's decisions on Comey and James is that long ago, President Trump lost his power to appoint interim US Attorneys and that the district court is the one who should have been appointing the interim U.S. attorney. So everything that Halligan did on these nominations is null and void. It doesn't mean Comey and James can't be indicted again. And that's the point about whether this was dismissed with or without prejudice. But for now, those indictments go away and we'll see what happens next.
- [38:06]
A
Do you think that in the prosecutor shopping that led to the appointment of the soon to be forever obscure Lindsay Halligan or Hartigan or Hannigan or Ms. Hannigan for Manning?
- [38:22]
D
Halligan.
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A
Remember Halligan.
- [38:24]
C
Thank you.
- [38:26]
A
One of the many beauty queens who have. This has really been a period of great moment and triumph for the American beauty queen who is usually, you know, lapses into obscurity unless the Trump administration comes along and then they, they get really big jobs anyway. She's one of them. And although to be fair, the Solicitor General under Biden was also a beauty Queen, I believe. Ms. Preligar.
- [38:56]
D
So, John, it's a college scholarship program. I wish you wouldn't be so, you.
- [39:00]
A
Know, but I think she was from your home state, I think. Is that correct, Preligor? I think she was Miss Iowa, anyway.
- [39:08]
B
Oh, I didn't know that.
- [39:09]
A
Yeah. Anyway, beauty queen, very big moment for the beauty queen. I call a scholarship program. Great. But apparently not entirely. Not only. So my point is, like, I forgot what my point was because I got. So let me, let me offer a.
- [39:30]
B
Point, let me offer a point here, John. This is a disaster, but it hurts that it was a disaster that happened in public.
- [39:37]
A
Right.
- [39:38]
B
Was this played out the original interim, the original interim U.S. attorney, Eric Siebert, by all appearances, was carrying out the office totally normally. In fact, when his 120 day window ended, the district judges reappointed him to continue serving as the, as the interim U.S. attorney. All hell broke loose in September when suddenly the interim U.S. attorney stepped down, citing pressure on his office. And President Trump puts out his social media post imploring, ordering Attorney General Bondi to go after what Trump sees as the bad guys. And in the middle of all that, Bondi names Halligan as the interim U.S. attorney. That put an enormous cloud over all of this. As we all saw, this procedural issue arose almost immediately. And it shows how things can go bad quickly in a chaotic administration. But this was, I almost feel sorry for Halligan, who she was serving in the White House before that. I don't know what she was doing. She was on Trump's Legal team. Right. Like so many of these people who was suddenly cast into the middle of these enormous responsibilities without any. In an administration that has no interest in actually learning how these institutions work, so much as learning how these institutions can be quickly weaponized.
- [41:20]
D
I want to point out about Bondi, by the way. Can I, like, what do you think this tells us about Bondi's Justice Department and her tenure so far?
- [41:30]
B
It's been fascinating to watch because as our colleague Jack Goldsmith has documented at high levels, the Justice Department has done extremely well in its approach to the Supreme Court. Like, it's strategic decisions around the Supreme Court have been by and large, very well executed. It's on the criminal law side of things that everything seems to go to hell in a handbasket. And I'm trying to wrap my head around what that means about the Attorney General who's been on the public radar for US Lawyers for well over a decade. She was the Attorney General of Florida in many ways. On paper, she was, you know, well, credentialed to be the Attorney General as opposed to Matt Gaetz, who was supposed to be the Attorney General. But on the other hand, but, you.
- [42:20]
A
Know, he has to go to Claire's that afternoon. So he missed his.
- [42:23]
B
Yeah, right.
- [42:24]
A
He missed his appointment.
- [42:26]
B
Right. But I'm still trying to wrap my head around, around what this means for the Bondi Justice Department.
- [42:31]
A
I do want to point out in the U.S. attorney game that, that this is. Having spent much of the last four or five months praising the Trump administration for its foreign policy successes and vision. The U.S. attorney problem, which extends back to the beginning of 2025, is a mark of the Trump administration's of the disastrous and potentially criminal side of the administration. We have three different cases in three incredibly high profile U.S. attorneys. Offices of U.S. attorneys either being replaced or having to be removed. I don't know what's going to go on with Halligan now because it's, that's not quite clear. Or Harrigan or again, Hannigan. But we have the case of Danielle sassoon in the U.S. southern District of New York. Who Interim U.S. attorney, very conservative, a very conservative person. Clerk to Harvey Wilkinson, Federalist Society, you know, sort of stalwart. You couldn't get, you couldn't get somebody who was better. Credentialed former prosecutor, you know, serious person, you know, like a kind of credit to the entire process by which the federal society and people like that have advanced the careers of people finding it necessary to resign her office as interim U.S. attorney in the Southern District because of the unconscionable pardon of Eric Adams, whom she had prosecuted. So that was U.S. attorney scandal number one. U.S. securitary scandal number two. Ed Martin, the Stop the Steel lunatic kind of incendiary conspiracy election conspiracy theorist, gets named interim U.S. attorney for the District of Columbia, starts tweeting out and saying things that are insanely prejudicial to the cases that were before the, before the D.C. circuit. 100 lawyers in his office. Not that this is not part of the deal. I mean, they can hate him or not hate him, but I mean, it was evident, it was self evidently clear that what he was doing was absolutely sort of, you know, disbarable behavior in prejudicing the public about cases that were before him that he, that he and his officer are going to have to prosecute. He had to be removed as the, as the interim US Attorney in part under this rule that the judges appoint the interim attorney. And now we have this case in the, I guess it's the Eastern District of Virginia, is that right?
- [45:33]
B
That's right. It's the Eastern District of Virginia and Alexandria. And John, you left out the end of the story with Ed Martin. When his, his tenure at the U.S. attorney's office in D.C. didn't quite work out, President Trump reached into his deep bench of very, very serious career prosecutors and appointed Judge Jeanette Pirro to be the federal Prosecutor in Washington D.C. now.
- [45:56]
A
Again, you're Judy wasn't available, but at least Jeanine Pirro had been a, was the, was the prosecuting attorney in Westchester county, the third largest county in the United States, or something like that. Like she, I know she comes off TV and I know John was in.
- [46:16]
B
Office and Dr. Phil was a doctor. I wouldn't make him Surgeon General at this point.
- [46:19]
A
He was not a doctor. Dr. Phil is not a doctor. But she's actually, to be fair to Jeanine Pirro, she did hold a, she was an elected prosecutor in the United States as opposed to Martin.
- [46:34]
D
There's another layer of this as well, which is, I mean, obviously he fired a couple hundred people.
- [46:40]
A
Oh, Lena Haba, doj.
- [46:42]
D
But there's also the fact that like thousands and thousands of people who are lifers at doj, people who know kind of how things work. And to Adam's earlier point, like how not to make stupid public mistakes that blow up cases in your own face, those people have left in droves in this second term. And that's a story that's not been covered widely. But not all of them are leaving for political purposes. They're leaving because the entire department is in complete disarray. So I think that's another so they've lost a massive amount of institutional knowledge breaks on these sorts of excessive uses of executive power to bully and cajole prosecutors. And that's bad for the country because those are the people who know how to actually prosecute federal crimes.
- [47:23]
B
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- [48:25]
A
Anyway, One of the reasons to keep one's powder dry and keep a keep focusing attention on this for the future is that this is One of the three or four areas in which should Democrats take the House in 2026 or before? If there's a bunch of people follow follow mar. A bunch of people follow Marjorie Taylor Greene out the door and they don't get new candidates in really that fast. There is a non, it's not, it's a non zero possibility that Democrats will take the House before the 2026 elections. I mean, the margin is so narrow that a certain type of thing happens and they can call a vote and, and take the, take the House. If, you know, three people resign and two people end up getting sick and they, they, they get a quorum and they don't have a Republican majority and then the Democrats take the speakership. That this is one of the areas on which Democrats will be looking at impeaching Donald Trump, the handling of these cases and the question of whether or not he used his political power to punish his political enemies in a manner that is, you know, does not befit his Constitution constitutional oath. I'm not saying that he will be removed from office, but I mean, you can see three or four different areas in which that would happen that would be frankly, harder for the administration to handle than, say, the first impeachment over Ukraine, which was not that hard for the administration to handle because it really was a questionable impeachment in the sense that it involved the president's powers as.
- [50:12]
C
A.
- [50:14]
A
In foreign policy, which are pretty commanding. And, and, and therefore the idea that you would impeach him over his behavior there, as opposed to areas in which there is no question that Congress and the judiciary are co. Equal branches in domestic matters and in court matters. So you may look at this and say it's just the deep state or I hate, you know, the lawfare is so terrible and Trump had to do what he had to do and all of that, that's not right. Like, that's not the way to look at this properly, in my view. And if you want to hand the Democrats the kind of issue that they can prosecute successfully rather than unsuccessfully, like crappy lawfare cases, like the case that Tish James brought, even though she secured convictions or whatever you call civil judgments against him, or the case that Alvin Bragg brought, or the case that Fani Willis brought. Those were all garbage cases. This would not be a garbage case. About Trump's use of. Go ahead, John.
- [51:21]
B
Before we get back to into the big picture, can I sneak in really quick and give our fair listeners just a sense of what happens next?
- [51:27]
A
Yes, please.
- [51:28]
B
Okay. So, folks, there's a couple of questions that are surrounding this case now that it's been dismissed. The first question is whether the Trump administration can file new indictments.
- [51:40]
A
Right.
- [51:40]
B
They were up against the statute of limitations, I think, in at least the Comey case, when this case was filed. And there's a question about whether the Trump administration can refile. And there's a law on this. There is a statute that says when an indictment, a federal statute says whenever an indictment is dismissed for any reason, the statute of limitations can be extended by six months. Right. From the, from the, the date of the dismissal. It seems to me that that clearly indicates the Trump administration could refile in six months, within the next six months, if it wants to. The administration's opponents, some of them say, actually, no, the statute of limitations expired. This indictment that was just dismissed wasn't even an indictment because the U.S. attorney wasn't even the U.S. attorney. And so that statute doesn't apply. I think that's wrong. It seems to me that it's pretty clear here that the Trump administration could refile in six months, within six months, if it wants to. But we'll see. There'll be litigation around that. Then, of course, there's that question of whether this dismissal should have been with prejudice, which is to say this should have been dismissed and the judge herself should have said the Trump administration cannot refile. It seems to me the judge got that right. But it's possible Comey or James will on appeal argue that actually there should be no discretion regardless of that statute, there should be no discretion to refile because of the threat of prosecutorial bias or so on. I think the judge made the right call here, dismissing without prejudice. But we'll see. And then there was one issue left, John, and now. Oh, it's the one I alluded to earlier. It's a weird statute, a statute that lets the courts appoint somebody in the executive branch. And this is kind of an old legal question. Can you. The Constitution says that Congress can pass a law vesting the appointment power for an office in the head of the department, the Attorney General or the president or the courts of law. But it's a little strange when you have a statute letting the courts appoint somebody in the executive branch. Now, this is one of the issues that came up years ago in that famous case about the independent counsel, the famous Morrison vs Olson case. This is one of the issues that Scalia dissented on. Right. He said it's crazy to read that constitutional provision as letting people in one branch appoint members of another. But of course, Scalia was writing in dissent and the majority opinion written by another great justice, Chief Justice Rehnquist, said that it's okay. And in the context of prosecutors, there's a long tradition in American history of judges being in a position to appoint prosecutors or defense attorneys and so on. So that case is, that is lingering out there. And sometimes one of these cases takes on a life of its own. By the time this is done, maybe there will be a Supreme Court justice somewhere saying in a concurrence or a dissent, we gotta take a look at this statute, the appointment statute, because it's weird and unconstitutional to let the judges appoint an executive branch officer. But that is much further down the road.
- [54:54]
A
Okay, so let's move on to other matters before the Supreme Court. Like the actual, most easily the most important case of the year in terms of its effect on the day to day lives of Americans. And that is the tariff case that was heard six weeks ago, I think, or something like that. The arguments were held six weeks ago and it was thought that the justices who were very valuable and active in this case were signaling the majority, were signaling that they would in some fashion or other reject the legality of the Trump Tariffs. But it was, but it, but it was a harder, it was a, it was a not as easily done question as I think people thought that it was going to be. Do I have that, do I have that right? And where do you think we're headed?
- [55:55]
B
You have a right, John. And I'll say off the bat, the easiest way to get my legal pundit license revoked is to read too much into the Supreme Court Justices questions at oral argument. But heck, let's just wing it. So it did seem like the majority of Justices are deeply skeptical of the administration's argument. For folks who have forgotten what the case was about, the legal question is whether this word in a statute from the 1970s, the word regulate in the statute on emergency economic powers, whether the word regulate includes the power to impose tariffs. On the one hand, it seems a little implausible, right? We know what regulations are and we know what tariffs are. And you know, legally speaking, they're somewhat different. I tend to think that's right, that the word regulate can include tariffs. But President Nixon did something kind of like this once under a prior statute. And of course tariffs are the main way in which we tend to, you know, quote, unquote, regulate imports. So there's a plausible argument that the word regulate includes tariffs. The Justices seemed inclined to disbelieve it. The oral arguments of the Solicitor General, John Sauer, were full of extremely skeptical, almost hostile questions from the Justices who seem to recognize that this is an enormous power grab and that it strains, it's strains credulity to suggest that Congress could empower one person, the president, to single handedly make and unmake global markets on the scale that President Trump has done. Kind of like the prosecution case, John. This is one of those cases where President Trump's actual use of power and the way he describes his own use of power casts a very heavy shadow over the legal debates. So Solicitor General Sauer had a very tough day at the podium. But then, you know, when his, his opponent, his colleague Neil Kochel, former Solicitor General for President Obama, when he took the podium to make the contrary arguments, a number of Justices had real questions about that, about where to draw the lines. And it wasn't just Justices Thomas and Alito who seemed the most skeptical of the challenges here. Justice Kavanaugh had a lot of questions about how we should think about what happened in the 70s under Nixon and how it informed Congress's writing of this economic statute in the late 70s. Those are Justice Barrett asking very, very good questions about reading this law against the backdrop of other laws. Now, when I look at this case, it feels to me, after all arguments like it's like the center. You're thinking about this like a bell curve of probabilities. It looks like six, three, I would bet seven two. I think Kavanaugh is going to wind up with the. With a majority striking down the tariffs. Frankly, I would be more surprised by a narrow 54 decision than by a 90 unanimous loss for the administration. But this one feels like 6, 3 or 72 with no real resolution over whether there would be refunds for people who paid tariffs already.
- [59:01]
A
I mean, that's a whole other. The interesting thing about the Supreme Court's sense of its obligation to provide actual, actual findings in explicit cases. Right. Which is these are, of course, decisions in individual legal cases, not just, you know, the court opining on where the Constitution should be, that the remedy factor here is so unbelievably complicated. In other words, like, aside from having to maybe pay back the countries that you. Tariff question of whether or not you might have to pay back the American taxpayer who found prices increased on certain types of goods because of tariffs, how on earth that's administered, how you can sort of rule on something like that when nothing like that has ever happened before in the annals of human history, and that there is no precedent for it, and there's no, there's no, I don't know, model that you can follow for that kind of reimbursement. But although if you find that the tariffs were imposed unconstitutionally or illegally, I suppose there also has to be a remedy. You can't just say, well, you can't do that anymore, but I guess you did it before, so that's all right. Whatever happened, happened. And now from. But not now, not now. Now we've said no. And from here on in, no. I mean, maybe you can, I don't know. You tell me. Is that something the court can, can do? It can sort of punt on the question of what, what the, what the remedy is for the Unconstitutional Act. Yeah.
- [60:48]
B
They might phrase it a little bit differently than you just did, John, but.
- [60:52]
A
Yes, that would be fun. If they phrased it that way, they.
- [60:57]
B
Could do something like that. They could very easily say that the question of remedy is one for the lower courts, including the Court of Federal Claims, to handle in the first instance. But also, by the way, going forward, it's not so clear to me that ruling against the Trump administration here would settle a whole lot. It's been very interesting to listen to the administration's leaders just Yesterday morning on Bloomberg, you had Commerce Secretary Lutnick explained that the administration fully expects to win this case. And even if it doesn't happen to win this case, it has plans, B, C, D and E, other statutes or other legal theories for imposing these tariffs. So it's not clear that a whole lot would change going forward, except that the president might not be able to use this statute, which has enormous power and minimal procedural constraints, that he might have to jump through a couple more hoops next time around. But honestly, that's how the modern Supreme Court largely works. It is in the legal question answering business, not the practical remedy administration business. That is something for the lower courts to handle. Some companies will pursue refunds, some won't. They won't want to pick a fight with the administration. Some companies might wound up being made whole by other countries. You could imagine President Trump strong arming other countries to make companies whole on some of these things. We don't know. And again, the fact that the administration claims to have so many alternative paths for doing this might create more courage in the court to swing for the fences on the legal issue at hand. Because legal at issue at hand might actually settle less in the real world than some people think it will.
- [62:41]
A
But Christine, as our foremost exponent or expostulate of the idea of that the administration is walking into a buzzsaw on the economy, might Trump and the administration, contra Lutnik, take this as an exit ramp? Well, we tried. We wanted to do tariffs. Court says we can't. Oops. Or is Trump so fundamentalist about tariffs that even though it seems pretty clear that they are having both an inflationary effect and a dragging effect on the economy, that he will pursue them regardless.
- [63:23]
D
He'll pursue them regardless. For him, it's a sort of personal mission statement. Clearly, his, his fixation on tariffs is of long standing. I do think, though, that they're continuing to waltz straight into that buzzsaw. Some of the more recent data that they should look at, and this is actually bad in general for the conservative movement and the GOP broadly, is they're losing all these Latino voters and they are losing those voters, not just on immigration policy, but on economic policy. The voter, that interesting new coalition he built in the last election, is evaporating, and it's evaporating because of choices this administration is making. It's certainly the choices of tone in terms of immigration. But on economic policy, there are no they're not giving anything to the people who are struggling right now. In fact, I really do see these echoes to the Biden administration. And we criticize these at the time, too. And I'll criticize it now that Trump's doing it, telling everybody their Thanksgiving dinner is going to be cheaper. He Trump pointed to Walmart. Walmart says it's their gift basket is cheaper. Well, if you actually look at the gift basket and the differences between last year and this year, which I did, they're totally different products. The turkey is like a couple pounds smaller. The sides are not as good or as large. So the idea that he's trying to sell to the American people a notion that they feel in their bones and in their checkbooks isn't real. He's that's bad. And that will obviously continue because we don't sell see signs of a reinvigorated economy yet. And the promise always of the tariffs was, trust me, wait and see, and then we'll have this amazing boom. We don't see that yet.
- [64:51]
C
And we saw this coming so long ago. I mean, from the second he got in office and started talking about tariffs and prices were people were already very uncomfortable with where inflation was at and kept saying if he doesn't pay attention to the economy, if he doesn't pay attention to prices, to inflation. And here, here we are.
- [65:15]
A
Adam, is there, are there other matters before the court that you might want to give us a little bit of a magic mirror view into the future?
- [65:25]
B
Oh, you bet there are, John. You bet there are. So later, in just a few weeks, the Supreme Court's going to hear all arguments around President Trump's firing of two members of the Federal Trade Commission, which raises real questions over whether Congress can make those agencies somewhat independent from the president, one of the great granddaddy of all constitutional issues around the administrative state, going back to fdr. And we're going to relitigate that question in just a few weeks. Then in January, late January, there is litigation around President Trump's firing of one of the members of the Federal Reserve's Board of Governors.
- [66:00]
C
Right.
- [66:00]
B
He didn't fire her as a matter of constitutional power. He didn't say Congress made the Fed independent. But forget that. I'm firing you anyway, like he did with the Federal Trade Commission. Rather, he he fired her for cause. He remembered that. He said, we have evidence that you lied on your mortgage application and that's reason to fire you. That case will get litigated. Oral arguments are in late January, which is interesting because the new round of Federal Reserve bank presidents gets appointed, I think, in February. And a lot of people want to know who's on the Board of Governors in February. So we shall see. But John, I'll tell you, I try to think about these cases in two categories. The who for constitutional questions. There's the who, there's the who cases and the what cases. And the who cases are who can be appointed to run an agency and or really more, can the president fire people who are running agencies? And for 15 years, the Supreme Court has repeatedly recognized, even expanded presidential power to fire the heads of agencies. And so I think that's the Federal Trade Commission case as opposed to the what cases, where for 15 years the Supreme Court has continued to just squeeze and squeeze the discretion that presidents have in making policy. We saw that in all the Biden cases about the greenhouse gas regulations and the OSHA vaccine mandate and, and a couple other policies that are suddenly escaping.
- [67:25]
A
College loans.
- [67:26]
B
That's right, college loans, the eviction moratorium. Right. But all the way back into the first Trump administration and you saw a little bit of this at the end of Obama. I detailed this in a piece for you, I guess about a year ago, the rise of these cases. The court has continued to squeeze the president on the what questions. And I think they will with this tariff case and for the next three years. But on the who cases, the president's constitutional power to fire people, he's gonna continue to win those cases, I think, except for the Fed.
- [67:56]
A
Okay, I wanna make a recommendation that actually springs, interestingly is adjacent to what we're talking about here. You know, Garfield mania is upon us. James Garfield mania. Because of the surprising success of the Netflix four hour documentary document docudrama Death by Lightning, which is about the last year of James Garfield's life in which he becomes the unexpected Republican nominee for president and wins the presidency. And we watch that in parallel with the collapsing and increasing psychosis of the man who would shoot him in a train station, Charles Guiteau. And then the aftermath of the shooting and the 80 days in which Garfield survived before he succumbed to his injuries unnecessarily, as it turns out, because he was really killed by his medical treatment and not by the assassin's bullet. That series, which we've recommended a couple of times, and the book on which it's based, Destiny of the Republic by Candice Millard, remain must reads and must sees. But I want to recommend a surprising documentary from a very surprising source. The Competitive the Competitive Enterprise Institute. Competitive Enterprise Institute, a Washington think tank that is largely dedicated to matters of how to increase American competitiveness through deregulation, de administration and all of that out of nowhere produced a documentary called Dear Mr. President, the letters of Julius Sand. And this is about the relationship, the epistolary relationship, one sided really between Chester Allen Arthur, who took over the presidency after Garfield was assassinated, and a 31 year old invalid in New York City named Julia sand, who started writing him, wrote him a series of 21 letters encouraging him to do the right thing as president, which was essentially to be brave, to face down his, to overlook his political, previous political connections and follow the policies that James Garfield would have followed had he been president. This is important because Chester Allen Arthur was the most corrupt person ever to have become President of the United States. He was a sort of, what do you call it, like a ticket balancing choice representing the people in the Republican party who were known as the stalwarts, who believed that the purpose of winning the presidency or winning office was to hand out political jobs to your friends. And that was what though they were all, they were all Republicans, so they were all, they were, you know, anti slavery and they were, they were supportive of integration policies and things like that, but on matters relating to spending and government regulation and all of that, their idea was that the Spoil system, as it was called, was not only legitimate, practical, but necessary. And it was the source of their power. And Arthur had been the commissioner of the ports of New York, through which 80% of American governmental revenue came into the country in the form of tariffs. As there was no federal income tax until 1913. Tariffs were the way in which the federal government funded itself largely. And those tariffs came in the form of imposts that were taken at the ports of entry. And New York was by far the largest port. And Arthur was a crook and stole money and hid money and gave it to his fellow stalwarts and under the direction of the most powerful person in the Senate, Roscoe Conkling. Anyway, this really wonderful documentary, which is about 45 minutes long and you can watch on YouTube. Dear Mr. President is the story of how Arthur was stirred to turn his back on the stalwarts and agree to the Pendleton Civil Service act that created the civil service that ended the Spoil system in the United States largely at the federal level, because in part because of these letters from this constituent whom he did not know, with whom he had no personal relationship and whom he met only once, because about halfway through the 21 letters, he showed up at her house On, I think 31st street in Manhattan to pay her a call. And she said to him, according to her family, oh, you know, I hope I'm not being too hard on you or too unfair on you in my letters. And he said, you are, you're way too hard on me. Me. It's really hard. You're. You're really mean, basically. But, but she, it seems to be understood, played a signature role as a kind of external conscience, like, you know, Jiminy Cricket to Pinocchio, and getting him to do the right thing, to run his presidency according not to the interest of the stalwarts, but what he believed to be the best interests of the United States. And when he, and when he basically retired after his single term, people like Mark Twain and others said nobody could have, under the circumstances, nobody could have done better than Arthur had done from less fertile soil. And he died less than a year later. And tragically, Julia sand, the author of these letters, committed suicide 10 or 15 years after this. And her family discovered the letters and kind of made them public. Anyway, this as a, as a, as a companion piece to Death by Lightning. If you watch Death by lightning, go to YouTube, Google. Dear Mr. President, the letters of Julius sand. This really wonderful documentary by the Competitive Enterprise Institute, which is really among the more unlikely places I would imagine to have. It's also very serendipitous that they ended up doing this, just releasing it. Not all that distant in time from this one moment in my entire lifetime when anybody was actually paying any attention to the question of the presidency of Chester Alan Arthur and James Garfield. So if you're a fan of Death by Lightning, go watch Dear Mr. President for free. And if you're not, watch it anyway because it's an amazing story of the intimacy of the US government in the 19th century and how, how easily ordinary citizens could actually reach and get in touch with and affect their, their leaders. Including, by the way, horribly, the fact that Charles Guiteau could get so close to James Garfield that he was able to shoot him point blank range in a train station without anybody protecting him. So that's my recommendation. Dear Mr. President, the letters of Julius Sand. Adam White, fantastic as always to have you. Everybody should go look up Adam's latest piece and commentary, his review of Amy Coney Barrett's memoir. And for Christine and Abe, I'm John Pot Hortic. Keep the candle burning.