Will the Supreme Court Grant Trump Immunity?

Tommy Vietor

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Alyssa Mastromonaco

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Tommy Vietor

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Alyssa Mastromonaco

FX is the veil is an international spy thriller that follows two women as they play a deadly game of truth and lies on the road from Istanbul to Paris and London. One woman has a secret, and the other has a mission to reveal it before thousands of lives are lost. FX is the veil premieres April 30, only on Hulu.

Welcome to pod Save America. I'm Tommy Vitor. And I'm Alyssa Mastromatico. Alyssa, it's so great to have you. We have a packed show today.

My friend, Donald Trump, he's just starring in all kinds of legal dramas all over the world. He is. You know, the secret service is contemplating what to do if he spends time behind bars. You have the Biden administration taking big moves to help out consumers and workers. We might be banning TikTok.

I don't know. The courts are gonna have something to say about that, too. And state lawmakers in Arizona finally act to repeal their state's 1864 abortion ban. That feels like a very long time ago, everybody. But first, we're recording this on Thursday afternoon, East coast time.

And it was a day of truly dizzying legal news. In Washington, the Supreme Court heard oral arguments about whether Donald Trump should be immune from criminal prosecution for official acts and what constitutes official acts in the first place. This is very important for the January 6 case. Trump himself was stuck in a court in Manhattan, sitting through more testimony from former National Enquirer publisher David Pecker about the catch and kill scheme. More on that later.

And for good measure, New York's highest court overturned Harvey Weinstein's conviction. And that was just today. On Wednesday, the Supreme Court heard arguments about the Biden administration's challenge to Idaho's ultra strict abortion law and how it interacts with federal laws about emergency medical care. And then in Arizona, Trump has been named as an unindicted co conspirator in the new faked elector's indictment. That goes after Rudy Giuliani, Mark Meadows and a lot of other goons.

So, man, thank God we have strict scrutiny's Leah Litman with us today. Truly, thank you for being here, leah. You're saving the podcast. Thank you for having me. Too bad I can't save the supreme Court.

Yeah, you've been trying. First question, did I get anything wrong? So I might characterize the Idaho case as not necessarily just about federal law and preempting Idaho's law, but instead whether women are people and they get to keep their organs. But, you know, details. It was a yes or no question.

Leah Litman

Cosign. I co sign that. Leah Litman, I co signed that. Here's my actual first question. What was your big takeaway from Thursday's oral arguments in Trump's immunity case and what you heard?

Alyssa Mastromonaco

Did it make you feel like it's more or less likely that a January 6 trial will happen before the election? Way less likely. So the court seems inclined to reject Trump's very broad notion of immunity, which his lawyers said would make a president immune even if they directed the military to conduct a coup. But what they are inclined to do is basically say the court below needs to make some additional determinations before they can conclude that Donald Trump actually isn't immune here. And those additional determinations that a court is going to have to make are likely to prolong the proceedings here until after the election.

So basically, you would have to throw this case back down to a lower court. And they do a bunch of, what, hearings? Make a bunch of decisions, and that could take weeks, months. Yeah. So they would have to do additional briefing where they basically invite the parties to make arguments about whether the allegations in this indictment satisfy whatever legal test the Supreme Court makes up here.

Amy Coney Barrett

And then assuming that the allegations in the indictment, some of them might fall within the outer bounds of official activity, whether some of those allegations could nonetheless be introduced at trial, not to form the basis of criminal liability but instead, as evidence of the president's intent here and all of those questions, they're just going to take up time because there have to be hearings, briefing, determinations, decisions, and we're already really close to the election. So it's Trump in the calendar versus the prosecution. That's great. Alyssa, over to you. What a wreck.

Leah Litman

Leah, can you give us a quick refresher on Trump's immunity claim and how it relates specifically to the January 6 trial? Yeah. So his immunity claim is basically, if a president does something exercising the powers of the president's office, then the president cannot be convicted of a crime unless and until the president is first impeached and convicted by the Senate. This is completely nonsensical. And would, you know, immunize the president from criminal activity, given that the Senate is not in the habit of impeaching and convicting presidents.

Amy Coney Barrett

But that's his argument. And so he says, like, yeah, look, sure, I was attempting to overturn the results of an election, but guess what? I used the Department of Justice to do so. So nothing to see here. Leah, I've got to tell you, I listen to these arguments driving around in my subaru because I just find it, like, I drive around, I listen, I try to take it in, and I sometimes in this one in particular, I'm like, I think I have a comprehension problem.

Leah Litman

Like, we used to take reading comprehension when you were in elementary school. I'm like, this can't possibly be correct. What is the Nixon tie in? I'm impressed you did not devolve into road rage. But the Nixon backcountry roads, girl, backcountry.

Roads I can't be in front of. Only squirrels are at risk here. So there are several Nixon tie ins here. Of course, you know, Nixon famously or infamously said, if the president does it, it's not illegal. Donald Trump's argument is, like, slightly more nuanced, and that he's saying, if a president does it, it's an official act and therefore immune from criminal prosecution, and therefore, effectively not illegal.

Amy Coney Barrett

But the Supreme Court heard several cases involving presidential claims of immunity arising out of Nixon's case. So one was a case involving civil immunity, Nixon versus Fitzgerald. And there the court said presidents can't be sued civilly, that is, by private citizens seeking monetary damages for actions that fall within the scope of their official duties. And that's just an absolute immunity bar. But the court also decided Nixon versus United States, in which the court said, look, presidents aren't completely immune from criminal process and therefore can be ordered to turn over evidence, you know, as part of this grand jury subpoena.

And, you know, in part because of the Nixon events, you know, and particularly Ford's pardon of Nixon. Several justices pointed out that that seemed to reflect an understanding that, of course, presidents would and could be subject to criminal process if they needed a frickin pardon for violating criminal law. And yet, Donald Trump's lawyer was like, no, no, no. You all have it all completely wrong. Presidents just can't be subject to criminal law.

Alyssa Mastromonaco

I think you both have Trump Derangement syndrome. And it makes perfect sense that if I were president, on the last day that I was in office, I was getting a ride home from the Secret Service agents, and I get out of the car, and then I shoot them all myself and murder them. And then it's the next day and I'm no longer president, and I haven't been impeached by the Senate, so I get off scot free. That makes sense to me. It is so wild.

Leah Litman

I actually, I love that everyone focuses kind of on that because I enjoy, like, the insider trading. Like, this is what he would be doing. This is, this is like. I'm like, let's get into the financial examples, because I think we all know that's where he would be. But, leah.

So here's another one. A vivid and admittedly somewhat extreme example that's come up in the lower court's consideration of the issue is whether a president could order the military to assassinate a political opponent. For example, Justice Sotomayor asked a version of that question today. Let's listen. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?

It would depend on the hypothetical, but we can see that could well be an official act. It could. And why? Because he's doing it for personal reasons. Right.

So what did you think of Trump's lawyer's answer there, leah? I mean, in some ways, it was entirely expected. This was a question that he was asked in the court of appeals. You know, if the president orders SEAl team six to assassinate a political rival, are you saying the president would be immune? And Trump's lawyer basically says yes, you know, unless the Senate impeached and convicted him first.

Amy Coney Barrett

So this is his argument. They did not feel the need to basically trim its sales once they got to the Supreme Court. And I think for good reason. I mean, it seemed to me like there are a majority of justices, the republican appointees, who are willing to endorse some thinner version of immunity and even go so far as to suggest that there need to be additional proceedings in order to determine whether President Trump's attempt to overturn the results of a valid election and refuse to leave office fell within the scope of official duties that are entitled to immunity. And so there's a reason why Trump's lawyer didn't feel the need to basically moderate his position.

Alyssa Mastromonaco

Arguing before this court, Clarence Thomas did not recuse himself. Right? Correct. Instead, Clarence Thomas proudly proclaimed that, haven't a bunch of presidents done coups? So what's the big deal here?

Got it. Has his wife, Ginny Thomas, stormed the proceedings yet? You know, I was not made aware if that happened, but she doesn't text me like she texts Mark Meadows, so. Maybe I missed something. That's fair.

So Justice Barrett went a different route, asking about specific things that Jack Smith is alleging that Trump did in asking whether Trump's lawyers considered those official or private acts. Let's listen to a clip. So you concede that private acts don't get immunity? We do. Okay.

Leah Litman

And I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private as at large. I mean, we dispute the allegation, but that sounds private to me. Sounds private.

Amy Coney Barrett

Petitioner conspired with another private attorney who. Caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge that also sounds private. Three private actors, two attorneys, including those. Mentioned above, and a political consultant, helped implement a plan to submit fraudulent slates. Of presidential electors to obstruct the certification proceeding.

Leah Litman

And petitioner and a co conspirator attorney directed that effort. You write it quickly, I believe that's private. I don't want to. What did you make of that exchange? ACB asking those questions and the answers?

Amy Coney Barrett

I mean, unlike Justice Alito, she was actually willing to discuss the actual facts of this case and try to determine whether they were within the official activities or official, you know, scope of the president's duties. And it was encouraging in some respects that she was able to get a concession from Trump's lawyer that several of the allegations in the indictment conceitedly do not concern official acts. And if that's right, then a trial is not flatly prohibited here. Instead, the trial could proceed based on the allegations that Trump's lawyer is conceding, are not entitled to immunity and the fight is just going to be about how some of the other allegations can be used here. So, Leah, last question about the immunity case.

Alyssa Mastromonaco

So everyone seemed to think that Trump's team's case for absolute immunity was pretty weak. But the government's lawyer didn't exactly have a smooth sailing either. When it was his turn, a few of the conservative justices pushed him about the fraud statute that the government is using against Trump. Can you explain what that means, why it was unexpected, and whether you thought it was a big deal? Yeah.

Amy Coney Barrett

So Justice Alito in particular wanted to ask the lawyer for special counsel, Jack Smith, whether the fraud statute, the conspiracy to defraud the United States, which is one of the charges that Jack Smith charged Donald Trump with, whether that statute could itself be unconstitutional, because it's simply too vague and people don't know what it means. And so that is, I think, showing his hand, that even if a trial is allowed to proceed, you know, without a blanket form of immunity, it's possible, if and when the case goes back up to the Supreme Court, that there are some justices who would just say these charges are per se invalid and cannot support a conviction. Wonderful. So we heard these arguments in late April. Does that mean we'll hear some sort of judgment in, what, June, July?

So, by tradition and custom, the Supreme Court's term ends at the end of June. That is when they try to release all of the decisions in argued cases. But if they wait that long to release a decision in this case, they are all but guaranteeing there will not be a trial before the election. And so I think we should be willing watching to, to see whether they are able to issue a decision before the end of May, because that at least holds out the remote possibility of some pre election trial. Oof.

Alyssa Mastromonaco

Let's hope maybe someone will just, you know, leak a copy to Politico, like with the Dobbs case. Okay, let's turn to a different courtroom. So meanwhile, Donald Trump is in Manhattan. He's attending his criminal trial for paying to cover up the stormy Daniels affair story. So the DA's team asked the judge to hold Trump in contempt of court for violating his gag order.

Again, prosecutors presented what they said were four additional violations. Prosecutors now argue Trump has violated the gag order 14 times, I believe. Is that normal? Would any other defendant be allowed to violate a gag order 14 times? Usually they're allowed ten free violations of gag orders.

Leah Litman

No. Like a punch guard. Exactly. Like one violation of a gag order. That's it.

Amy Coney Barrett

There's no kind of like free passes. It's almost as if this guy believes he is above the law. Did you guys see the story in the New York Times about the Secret Service having, like, preliminary discussions about how to protect Trump in jail or in prison? Jail. Prison.

Alyssa Mastromonaco

I don't know if he goes for contempt, because I just want to flag that to get the vibes up. Basically, I have to tell you, I would love to be a consultant on this project. Secret service trying to secure him in prison. I have it all mapped out in my head. He'd have to be in one wing.

Leah Litman

Secret Service would have to have rooms on either side. He'd have to have 24/7 protection. But, like, I just imagine they do have to be playing this out. Like it's a possibility. And I would just give it anything to be in those meetings.

Alyssa Mastromonaco

I mean, listen, you are the coordinator in the White House for all things Secret Service. I can't imagine the conference calls and meetings with these guys right now. They're supposed to be losing their minds. The funniest thing is, I actually, I mean, you remember my stint at vice. I was there when Barack Obama was the first sitting president to visit a federal prison and that.

Leah Litman

And he wasn't going to prison. Right, right. Yeah. That was like, a huge thing. So I cannot, I could not, I would not want to be the Secret Service agents on that rotation.

Alyssa Mastromonaco

No. 24 hours shifts in a jail doesn't. Sound very fair at Rikers. I don't know. They probably sent him to, like, the, you know, Martha Stewart minimum security place.

Yeah, we'll see. So Alyss Trump said this morning outside the courthouse that he thinks he can win New York state in a general election. He did a meet and greet with some construction workers this morning in Manhattan. He's been holding rallies in the Bronx, Madison Square Garden. He went to a bodega the other day.

What do you make of these campaign stops? He's not really playing for the New York state picture. Okay, a couple things. Donald Trump, not a morning person. So the fact that he got up, I think he hit the, it was like the JP Morgan construction site.

Leah Litman

I think he hit that between like 630 and 07:00 this morning. So, one, he's scared. Okay? He is not doing these stops because he's not scared. Second, it's always about the fine print with him when he's talking about MSG.

I'm like, maybe the Hulu theater at MSG, that's a capacity of 5500. But I mean, in terms of, like, whether he could ever win New York. As a lifelong New Yorker, I think the last time a Republican won this state was Reagan in 84. And right now, Joe Biden is polling, on average, ten points ahead of Trump. So I feel like we're good.

Alyssa Mastromonaco

Yeah, he's just smart enough to know where the media is and he's going to go to them like a moth to a flame, though. I mean, like, those are facts and I feel confident in them. But I also don't want to have hubris because New York state is sort of responsible for, like, the narrow margin in the house right now. So we won't talk about that. Switching gears again.

So yesterday in Arizona, a grand jury handed down an indictment related to the state's fake elector scheme. They charged eleven fake electors themselves, as well as seven Trump aides whose names were redacted. But it was pretty clear who they were talking about. People like Rudy Giuliani, Mark Meadows, et cetera. Likewise, it was obvious that the anonymous former president named as an unindicted co conspirator is Donald Trump.

Unless Obama has been getting into some shit that we have not heard about. Leah, what does it mean to be an unindicted co conspirator? And does this mean Trump will remain one, or could he be indicted down the road? Unindicted co conspirator just means kind of for purposes of fleshing out, you know, the actual facts and giving the grand jury and the jury an idea about what actually happened. You are including some other person's involvement, but for whatever reason, you know, the grand jury or prosecutor did not decide to indict that person.

Amy Coney Barrett

So he was involved in the scheme, but is not currently facing charges. It is possible he could face charges in the future. Whether that's a possibility depends a little bit on when the statute of limitations for the crime would expire. Got it. And then I saw that Boris Epstein, who's a Trump aide, he was indicted in Arizona as part of this fake lecture scheme, but he was in the courtroom today in Manhattan.

Alyssa Mastromonaco

He's been described as the person quarterbacking the legal defense. That seems complicated. No? How does that work? I mean, there's a bunch of lawyers who have been indicted, you know, in the course of Trump's efforts to overturn the election.

Amy Coney Barrett

It's not just Boris Epstein. I think Christine Bob, you know, was also indicted, and she was named kind of the person in charge of election integrity for the RNC. So whole host of characters, and certainly being a lawyer does not immunize you from legal process or mean you have the good judgment to avoid trying to overturn an election. Well said. Switching gears again back to the Supreme Court.

Alyssa Mastromonaco

So yesterday, the Supreme Court heard oral arguments in a big case, this time related to Idaho's unbelievably draconian abortion ban and whether it conflicts with federal law. Leah, can you just give us the basics of Idaho's ban and why the government is challenging it? So Idaho's ban says that doctors can only perform abortions that are actually necessary to save the life of the pregnant person. What this means is they cannot perform abortions that might be necessary to save a pregnant person's organs or potentially prevent further deterioration of the emergency medical condition that caused the pregnant person to go to the hospital in the first place, and thereby risking them potentially becoming closer to death. And risking death.

Amy Coney Barrett

And that is what the federal government says violates hospitals obligations under federal law. EMtala, the Emergency Medical Treatment and Active Labor act that requires hospitals to provide stabilizing care for emergency medical conditions in order to prevent, you know, further deterioration, in order to prevent serious risks to bodily organs or bodily functions. And Idaho is like, nope, we can take a woman's uterus, her kidney, pancreas, right? Maybe some stomach, small intestine, large intestine, too, as long as she's not going to die. All good.

Alyssa Mastromonaco

Jesus Christ. There was a moment yesterday where even Justice Barrett confessed to being shocked by an answer that had been given by Idaho solicitor general. Can you just help us understand what that moment was about and what your takeaway was? Yes. So Justice Sotomayor had just finished going through a series of examples of actual cases where people had been denied abortions under restrictive abortion laws similar to Idaho's, including cases like Anya Cook in Florida, who ended up, after being denied an abortion, put on life support because she lost so much blood.

Amy Coney Barrett

Or people who went into septic shock, or people who had to have hysterectomies because of the amount of bleeding and complications that followed when they were denied abortions. And Justice Sotomayor kept asking the Idaho lawyer, could this person get an abortion under your law? And the Idaho lawyer basically said, maybe not. Maybe a prosecutor would choose to indict the hospital or the doctor who performed them. At which point Justice Barrett said, this is shocking.

To which I say, sweetie, like, have you been paying attention for the last two years? I mean, on some level it's good, right, that she's shocked. On the other hand, it's like, face eating leopards are going to eat your face, too. Amy. Yeah.

Alyssa Mastromonaco

There's been a lot of reporting about this kind of these scenarios that you're mentioning Alyssa, you and Aaron have covered the fight over abortion bans in many states in amazing detail on hysteria, which everyone should check out and subscribe to, obviously, yes. Why is this case, do you think, important beyond Idaho? What does it tell us about the stakes and the momentum for each side? There's so much like what Leah was just saying. This is bullshit.

Leah Litman

Like these laws and people, we are getting incredibly graphic and gruesome examples of how wrong these are. Republicans try to sound very middle of the road by saying, of course, the life of the mother, exceptions for rape and incest, except the caveats around them are bullshit doctors. These are the same states where there are huge penalties for a doctor who could potentially perform an abortion that someone could sue later and say, oh, that wasn't actually. They weren't close enough to dying. Right.

So on the one hand, these cases, I think, are showing the world what is really meant by these bans and how disingenuous. A lot of the sort of caveats around the. And the exceptions around some of these things that they say to try to make them sound wholesome and they're not. They're trash. And also, I think that if you.

I mean, and actually, Leah, I have a question for you. I have to throw this back to you. I really feel like the supremacy clause is having a moment because it has always been like the supremacy clause. Like, how is this even an issue with Emtala? Like, why are they trying to do this?

But what's their beef with the supremacy clause now? They're challenging it left and right. So maybe I should just pause to explain what the Supremacy clause is. So the Supremacy clause is part of the Constitution and it declares that federal law is supreme. And in the EmtAla case, you know, the Biden administration marches into federal court and says, there's a federal law, EMtAla, that requires hospitals to provide stabilizing care.

Amy Coney Barrett

And the state says, but we don't want to apply, you know, stabilizing care when that stabilizing care is an abortion. And when federal law says one thing that is inconsistent with state law, federal law is supposed to win out. There's a similar dynamic happening in the immigration case where you have, you know, Texas passing SB four and then interfering with federal immigration officers attempts to enforce federal immigration law. And I think the supremacy clause, Alyssa, has moments when Democrats hold office because the republican Supreme Court doesn't like to recognize that Democrats get to exercise political power and hold political power. And so in those instances, they say, well, of course, Texas gets to determine federal immigration policy rather than the Biden administration.

And, of course, Idaho gets to determine, you know, whether women can receive abortions that are necessary to save their organs rather than the federal law that Congress passed during the Reagan administration, by the way. And so it is just a further effort to impede, I think, democratic administration's ability to govern. And that is the threat that this super majority, republican controlled Supreme Court poses. Oof. Man.

Alyssa Mastromonaco

Okay, last piece of truly shitty legal news in this cornucopia of truly shitty legal news is that the New York Court of Appeals overturned times Harvey Weinstein's 2020 rape convictions. Leah, can you help us understand what happened here? What happens to Harvey Weinstein now? Like, does he go to prison in California instead? He's not released, right?

Amy Coney Barrett

No, he's probably not going to be released. The court overturned his New York convictions on the ground that prosecutors had impermissibly been allowed to introduce evidence of prior bad acts for which he was not charged. And those prior bad acts were other sexual assaults. And the court ruled four to three that those previous sexual assaults were not relevant to an issue at the trial, namely Harvey Weinstein's intent. The decision doesn't mean Harvey Weinstein is going to go three.

Obviously, he has the California convictions, and it's likely he will still be in jail while New York attempts to retry him. But I think the dissenting opinion, or one of the dissenting opinions, got it right when they basically raised the alarm that the majority opinion just inhabits this fantasy world that imagines when people make an accusation of sexual assault, a jury and people will necessarily believe them. And therefore, there's no need to introduce evidence of someone's prior bad acts in order to establish their criminal intent and willingness to forcibly assault someone without their consent. So it was a disappointing decision, but that was what the court did. So, Alyssa, I mean, everything you read about this guy, he sounds very guilty.

Alyssa Mastromonaco

Seems like an incredibly bad person. What do you think this news means for the broader me too movement? Efforts to hold people like Harvey Weinstein accountable and just. I don't know what it does to how people feel. Like, the morale of seeing someone like this seem to catch a break from the New York Supreme Court.

Leah Litman

Look, it's not good. It's not good, Tommy. It's not good. I think that honestly, and Leah chime in, to me, it feels a lot like when Ro fell a little bit. Like, guess what, guys?

It's not done. The fight's not over. We have to keep our foot on the gas just because we had a couple of marches and people wore pink hats. Doesn't mean that everything is all good and we can just move on. And it's why elections matter and we have to keep voting.

And, you know, Harvey is just. Harvey is a blip. Harvey's a blip. And we just, we can't let. We can't let this one.

Well, there are many, but we can't let this derail us. You know, we have to stay motivated. All right, well, Leah, we truly cannot thank you enough for being here. Uh, you made this show exponentially smarter, so thank you. And everyone should subscribe to strict scrutiny.

Alyssa Mastromonaco

Uh, truly, like, one of my favorite shows ever. So thank you again. Thank you so much for having me. All right, we're going to take a quick break. When we come back, though, Alyssa and I will talk about what President Biden has been up to, what happens next after Congress actually passed a tick tock ban and the cloak and dagger madness that goes into the vice presidential selection process.

You will not want to miss it. So stick around.

Amy Coney Barrett

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Alito

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Alyssa Mastromonaco

All right, Eliss, so some less headline grabbing, but actually good news while all this legal drama unfolds is that the administration has been busy rolling out regulatory changes that are a big deal for actual people. On Wednesday, the Biden administration issued a final rule requiring airlines to issue cash refunds for canceled and delayed flights, and to do it quickly. Anyone who's ever lost a airline voucher for hundreds of dollars knows how big of a deal that is. Then the FTC banned non compete agreements for most new workers. So right now, one in five workers face a non compete.

And then lastly, today, the EPA issued a new regulation on coal power plants requiring them to cut their emissions by 90% by 2039 and tighten rules on other types of pollution from these plants. So obviously, that's critical for climate change mitigation. The coal industry says they can't get to that emissions target by 2039, and that this whole effort is basically an effort to stamp out coal power in the US altogether, which doesn't make me sad. Yeah, seems fine. All right, elis, so these regulations, they're obviously the right thing to do.

They're great for consumers. But the question becomes, how do we make sure voters actually know about them? Any recommendations for the Biden team for actually selling some wins here? Tommy, listen, before we recorded today, I was telling you how I like to print things out and highlight them. Okay?

Leah Litman

My advice for the Biden administration is borderline. That basic. I want to turn on AM FM radio, and I want to hear people talking about this. Do you know that 88% of Americans listen to AM FM radio? Really?

Every week? Wow. 293 million people. You know what else they should do? They should take out ads or write articles or op eds for AARP magazine.

You want to know why? You wanna know why? 38 million readers. So I think they need to go, like, very guerrilla, very worm's eye view, and just do the things that people don't think are cool, because I actually think that in some ways, that's how people are consuming information. Totally.

Alyssa Mastromonaco

No, I'm with you. Listen, people hate the airlines. And if you hate airlines, you really hate airline vouchers. Cause you're never allowed to use them. They're always, like, some reason you can't do it.

You can't find them in your stupid app. So, like, I love this rule. This is one of those things Biden did where I was like, why didn't we do that in the Obama days? That's so smart. I'm glad they did it.

I agree with you. Like, I do think this is fodder for a funny, tight digital ad, too. Like, you find something, like, make a, you know, find someone who got screwed over or missed Christmas or whatever. People who don't care about politics. Remember that Trump sent them a check, right?

Leah Litman

Yes. Yes, Tommy, this is my. This is exactly what I'm talking about. Like, there should be billboards in airports. There should be, you know, when you go into a hotel and they have, like, the scrolling screen of, like, what, weddings, in which ballroom?

It should be up there telling people exactly how they can, like, protect their vacations. People save up for a year or years to go on a vacation that can be utterly fucked because of, like, an airline's malfeasance. This is real money for people. And so I think it's a real. If they don't try to get this out in every way, this is the thing that people could potentially remember.

Alyssa Mastromonaco

Totally. This is discreet. It's memorable. People will love it. The non compete clause stuff is, it's a bigger deal for the labor market generally.

But I think there's gonna be a long legal fight. So people aren't necessarily gonna feel this in their lives anytime soon. But again, like, this is where I would love to just see them lean into the fight. You know, you find some fast food workers who are harmed by a non compete. You tell their stories in an ad.

You lean into the legal case. Like, make the chamber of commerce the enemy here, right? Like, find a villain. Demagogue this. Like, people, people remember stories like that.

They resonate. They do. And it's like, with everything, even just back to the travel vouchers, everything that's been going on with Boeing, why should a company that's making so much money, why should people who have saved up for an airline ticket to go to Disney World or visit their sick relative be the ones who are put out? And so I just. To me, this feels like.

Leah Litman

Yes. Yes. Yes. Yes. Yes.

This is a yes. All of it. Yes. Yes. So the question, I guess, again, is, like, by election day, I imagine we'll be talking about sort of higher stakes issues, more thematic issues, like abortion access, like the future of democracy.

Alyssa Mastromonaco

What do you think? Do you think Joe Biden should be running a bunch of ads in October about how Joe Biden stuck it to united on your behalf, or you think it's gonna be all Roe by that time? They should be fighting on every front. Right? Because, Tommy, people are motivated by all different kinds of things to show up at the polls on election day.

Leah Litman

So, yes, there are people who will be super motivated to save democracy. There are people who understand that every vote is a potential vote to bring back Roe. And so I think that they can't take anything for granted, and they should have a strategy for each of these issues. Yeah. So, also this week, President Biden signed the bill that would ban TikTok if Bytedance, the parent company, to TikTok, doesn't sell it within the next year.

Alyssa Mastromonaco

Casey Newton, great reporter for Platformer, wrote an interesting piece about just how much legal risk there actually is for the government's case here. The gist is that TikTok is likely to have a strong First Amendment argument against getting banned. The Supreme Court has previously found that Congress can't ban foreign propaganda, including specifically chinese propaganda, so they'll have a case. Casey also points out that the government's other argument, which will be about data privacy, could also be weak, given that the United States doesn't have any kind of national data privacy law. So the suggestion that banning tick tock will fix that is silly.

Like, China could just go out and buy some data from data brokers. So let's just big picture. Where do you land on this decision, whether it's the right or the wrong thing? Like, I get, obviously, the national security concerns. I also do feel very bad for people who built a business on TikTok who have big followings or who just, you know, rely on it for a sense of community that they just can't find where they live.

Leah Litman

Well, Tommy, first and foremost, couldn't we find something else to ban, like, I don't know, assault weapons? That'd be nice. That would be great. I'd rather do that. Assault weapons.

Alyssa Mastromonaco

That's a good idea. I mean, honestly, look, I'm a dinosaur, but I love TikTok. Once I discovered TikTok, I was like, this is incredible. All the Gen X videos, the sea shanty singing, like, I love it. And so I feel like there has to be a third way.

Leah Litman

And there really kind of is. Right, like TikTok has, I think it's like 170 or 150 million users. So someone's gonna buy it. I mean, come on. Like, I think that.

Because, right, that is the issue. It has to. It will be banned if it is not bought by someone in the US. And so, I mean, I don't know, I guess I'm not too worked up about it. This feels like something that's going to get resolved because there are like 170 million people here who love it.

And, you know, I'm hopeful, too. I mean, there's a Reuters report out today where they talked to a bunch of sources at TikTok that say that they would rather exit the US market than sell it. Because ultimately they feel like the algorithm is the secret sauce of TikTok, and their algorithm is actually associated with a bunch of other Bytedance companies that we don't use, that are used in China. I don't know that I necessarily buy that. I don't buy that.

Alyssa Mastromonaco

The US market's a lot of cash, man, and I think a lot of people want to be here. But just to take on the congressional and the administration's argument, I mean, I've obviously not seen any of the intelligence that elected officials saw. It sounds like it was pretty compelling. You know, we had Katie Porter in here who saw the intelligence, thought it was compelling, but thought the government hadn't made the case yet. I mean, the government's concerns are twofold.

There's the question about data privacy and whether the chinese communist party could go to ByteDance and say, I need this person's, what, keystroke log or something. And then there's the question about whether TikTok could be used as a propaganda tool to shape us a public opinion. The public opinion question is interesting to me because there's an organization called Network Contagion Research Institute at Rutgers University. They looked at popular hashtags in search terms. So some of them were like Taylor Swift or Trump.

And they found that there were basically two Instagram posts for every one TikTok posts about those topics. But when you got to topics that were banned in China, the ratio changed. So it was eight to one when it came to the Uyghurs. So eight posts on Instagram to one post on TikTok, 30 to one for Tibet, 57 to one for Tiananmen Square, 174 to one for the Hong Kong protests. So you're picking up what I'm putting down here.

Leah Litman

Picking up what you're putting down. Stuff the Chinese Communist Party doesn't like ain't going viral on TikTok. So, look, your broader point is a good one. Like, I hope that Congress doesn't look at this and just decide, like, great work, boys and girls. We solve social media, right?

Alyssa Mastromonaco

Because our issues are not TikTok. It's about data privacy, protecting kids, understanding the mental health impact of social media, especially on young girls. So this is way bigger than TikTok, but this sort of anti China sentiment allowed them to pass the first major tech regulation in, what, a decade? Yeah. And you know, the other thing, though, Tommy, I was going to say is that, you know, going back to 2020, Microsoft, because this has come up before, right?

Leah Litman

And so back in 2020, Microsoft was getting together with Walmart and they were like, you know, let's do this. And then that didn't happen. But, like, here's the one thing that makes me a little nervous, is it's kind of like, careful what you wish for, right? Because one of the people putting together a bid right now with multiple investors to buy TikTok is Steve Mnuchin, former. Treasury secretary for Donald Trump.

Alyssa Mastromonaco

Yeah, he's probably going to get some saudi money in there, too. Right? So, you know, it's just, it's kind of like, okay, if the, even though I was a little bit light in saying, you know, I think that someone's obviously gonna buy it, there are like, real roadblocks to that, too, because it couldn't, a meta trying to acquire it would probably not get approval. You know, that would probably be seen as problematic. Same with Amazon.

Leah Litman

So it will require probably someone like Steve Mnuchin to put together the money. But then can you say, well, we don't want Steve, it wouldn't be Steve Mnuchin owning it, but it's still not great. No, that's a really good point, because you're right. The companies that can afford it would have antitrust issues. You are probably looking at some hodgepodge of investors with big backing.

Alyssa Mastromonaco

And someone like Steven Nuken would. Yeah, I don't want him with the keys to the algorithm either. So Donald Trump's trying to use this for political advantage. Obviously, on Monday, he truthed, quote, just so everyone knows, especially young people, crooked Joe Biden is responsible for banning tick tock. Accurate.

But not subtle. So Trump clearly thinks the ban can give him a political advantage with young people. The argument he's making is obviously complicated by the fact that in 2020, Trump himself issued an executive order trying to ban tick tock. Yeah. That EO was later blocked in court by a judge that Trump had appointed.

How much political risk do you think this tick tock ban creates for Biden? I don't think it's that much risk because it's weirdly the issue that's, like, united Democrats and Republicans. So I don't think it's great for Biden, but I do think that that gives him some cover. Yeah. There was a little bit of polling on this back in the day, so there was 38% support for banning tick tock, 27% opposed in a poll in December of 2023, but the support number had dropped from 50% in March of 2023% to 38%.

So it was going down. But, you know, to your point about, like, this actually united Republicans and Democrats for once, that's because the only thing that seems to unite these guys is kind of cold War 2.0 anti China sentiment. Right. And if Biden makes this part of a broader message about getting tough on China and says Trump is weak because he wanted to let you know, the CCP keep their propaganda tool in the US and keep your kid hooked on it, I mean, that could be a powerful argument, too. Totally.

It's also weird that they passed this thing in seven weeks. That is, like, lightning fast introduction to passage. Like. Like, you can't get, like, hurricane disaster funding that fast. Right?

Right. Last question. Or at all sometimes. Yeah. Or another problem.

So last thing. Last thing on this list. The Biden campaign says it's gonna keep using TikTok even though they're banning it through the election. They're putting in some sort of enhanced security measures. Does that bother you?

You think anyone cares? I mean, I don't think anyone really cares. I don't really care. But I think the bigger question is, like, what are the enhanced security measures, and can we get them right? And also, I mean, if they think TikTok is juicing the algorithm now, what's going to happen when Joe Biden is trying to post stuff on it later?

Leah Litman

Right. So I feel it's kind of like, whatever. Do what you got to do right now. That's how I feel. Do what you got to do to win.

Alyssa Mastromonaco

Two quick things before we go to break. One pod, save America is hitting the road this summer. The democracy or else book tour begins in Brooklyn on June 26, followed by Boston on June 28. We're also going to Madison, Wisconsin, Phoenix, Ann Arbor and Philly, so come see us. You can find all the tour dates and get tickets@crooked.com.

Events also, if you loved Alyssa Master Monaco on this episode, and of course you did, make sure you tune into hysteria, where she and Aaron Ryan cover everything from abortion rights to the weird interaction they had with a dude in the parking lot to politics to culture and more. Also, check out hysteria on YouTube. Their this fucking guy series is incredible and blown up on YouTube. New episodes of Hysteria drop every Thursday. Make sure you subscribe wherever you get your podcasts.

Amy Coney Barrett

You can live out your MasterChef dreams when you find a professional on Angie to tackle your dream kitchen remodel. Connect with skilled professionals to get all your home projects done well. Visit angie.com dot. You can do this when you angie. That why are smart businesses graduating to Netsuite by Oracle?

Because Netsuite eliminates the expense of multiple business systems by consolidating your operations together into one. Netsuite is the number one cloud financial system, bringing accounting, financial management, inventory, and HR into one platform and one source of truth. Netsuite reduces it costs because it lives in the cloud with no hardware required, so you can access it from anywhere. You cut the cost and headaches of maintaining multiple systems because you've got one unified business management suite. Bringing all your major business processes into one platform improves efficiency, slashing manual tasks and errors.

Over 37,000 companies have already made the move, so do the math. You'll see how you'll profit with Netsuite, too. And now, by popular demand, Netsuite has extended its one of a kind, flexible financing program for a few more weeks. Just go to netsuite.com podcast 25 for more information. That's Netsuite.com podcast 25.

Alito

My name is Sarah, and I got involved with Vote Save America Way back in 2018 when it first launched. My name is Nancy, and I first got involved in VSA in 2018. Ever since then, vote Save America has been the best part of my political engagement. Anytime the election anxiety starts to feel overwhelming, I remind myself that my anxiety relief program donation is fueling grassroots organizations around the country. NVSA has the political action finder, a handy website I've used to find phone banks knowing that I'm helping to win critical house seats.

In fact, I already signed up to volunteer with the political action finder on the VSA website and helped replace disgraced former volleyball star George Santos. So if you're someone who doesn't want to wake up on November 6 this year and regret not doing more. And I'm pretty sure you are. Go to votesaveamerica.com to get started, and I'll see you at a phone bank soon. This message has been paid for by Votesave America.

Alyssa Mastromonaco

You can learn more@votesaveamerica.com comma and this ad has not been authorized by any candidate or candidates committee.

All right, last topic here. So we talked on our live show on Sunday about the Trump VP hunt, the selection process. You didn't get to weigh in. So I wanted to, I didn't pick your brain on this and then just do some Melissa storytime. So who are you putting your money on right now in terms of the potential VP candidates?

Who's your favorite? Who did you put your money on? I got to know. I mean, I tried to stir the pot a little bit. So I said, tulsi Gabbard could be interesting in terms of just, like, generating a story, bringing on someone who was once a Democrat, showing that you're bipartisan.

I don't think that's a good idea. I wouldn't do it if I were him. But no, see, I think that for Trump, like, look, he has so much legal trouble right now. He's going to draw this out as long as humanly possible. He is going to wait until he feels the tidal wave a coming with one of his legal things, and then he's going to throw this into the universe.

Leah Litman

And I have to say, if I pick someone. Cause, you know, he loves a beauty pageant. He loves central casting. He loves all of it. I'm going with Christy nome.

Alyssa Mastromonaco

Okay. That's. I think Erin was there, too. Was she? Okay?

Leah Litman

She and I actually have not talked about it. Chrissy nome fits the bill. She is attractive, which matters to him. You know, I think South Dakota's had a republican governor since like 2015 or something like that. So, you know, and Lieutenant governor anyway, so there's no, like, risk.

It wouldn't be like a Carrie Lake situation. So. Yeah, yeah. I'm gonna go with Christina. That's good.

Alyssa Mastromonaco

I mean, you know, sticking in the region, Doug Bergam could be your pick, and he could write you, like, an unlimited check. Cause I think if you're on the ticket, you can write as much as you want to yourself. And he's worth hundreds of millions of dollars. There's that. But you're right.

I mean, Trump, look, he's a lot of things. He. Well, she's a little. She's a little abortion fairy dust, too. Right?

Leah Litman

It's like she's a woman. Yeah. Which to him is like, will sell to people that he maybe isn't as bad as he says he is. But, you know, I think there's a little, like, look, I can't be that bad. I've got a woman with me that.

Alyssa Mastromonaco

Is absolutely the case. And he views it all. It's sort of optics. And, you know, so and so is from central casting. You're right that he is.

Look, the guy's good at manipulating the press. He doesn't care about lying. So he's going to drag this out. He's going to leak a shortlist. He's going to add people, he's going to remove people.

He's going to say, dance for me. He's going to elevate their profiles. Yeah. It makes sense. Because if he sends Vivek Ramaswamy to a state to campaign for him, that's one thing.

But if Vivek goes out and campaigns for you in a swing state and you leak in advance that he could be the vice presidential nominee, that's going to get more attention. He's going to raise more money for you. Right. Like, there's no downside for Trump. No, none whatsoever.

Leah Litman

And he can honestly let this go as long as he wants to. It really, he can just. He can do it whenever the spirit moves him. Float away till the convention. Ok, so, Alyssa, you oversaw the VP selection process in two different campaigns, both for John Kerry and for Barack Obama.

Alyssa Mastromonaco

Let's start with Kerry. How did he view the process? And, like, given that literally every political reporter in the country is desperate to break this news, tell us about some of the cloak and dagger shit you had to do to keep it secret. So it's funny because of the Kerry days, it's how Jeff Zeleny and I became friends, because he's always been on the VP beat. We were both little babies back then.

CNN reporter, then New York Times, I believe. The New York Times. And so, you know, I worked for John Kerry back when Al Gore was considering him as a running mate in 2000. And Gore did this thing that was, like, a little uncool where he wanted Joe Lieberman to be the big surprise. And so there was a lot of leaking that it was gonna be John Kerry.

Leah Litman

And I was like, with John Kerry when it was announced that it was Joe Lieberman, and it was not great, just shitty. So when it was, you know, it's like you understood kind of what Gore was doing, but it really informed how John Kerry wanted to run the process. Then when he became. Became the nominee in 2004, and he was like, I never want anyone to feel the way that I felt. And so, Alyssa, since you were, like, there with me, I want you to do this, and I want it to be such a secret.

Literally. Tommy, we did such cloak and dagger stuff that people, reporters thought there was a period of time before the convention. I think John Kerry was getting a little work done on his teeth, and all the reporters were convinced that the meetings were actually happening in the dentist's office until they saw his new teeth. But we were doing. I mean, we had Bob Graham.

I ate chinese food with Bob Graham. You know, a senator, then senator from Florida. He had this diary. Remember that? Everyone.

He would write everything, everything he did in the diary. So we were waiting for John Kerry, and he was, like, writing down. And my friend who used to work for him, she's like, girl, you and that chinese food order are now in the diary. So you're just hanging out with him somewhere. I hung out with all of these people for, like.

Because the thing is, the way we would do it, say John Kerry. Good example was Tom Vilsack. He was meeting with then governor of Iowa Tom Vilsack. So if Carrie was going to meet with Vilsack, let's say 05:00 in the afternoon, I'm getting Vilsack into the hotel upstairs with the full baseball hat, the whole thing. 3 hours earlier, like, I had the loveliest conversation with Tom Vilsack.

He was like, tell me about yourself, because I think he actually went to school in upstate New York. So all of these people, it was like, you know, Bob Graham, the reporters figured out that John Kerry, they thought John Kerry was meeting with someone. I physically pushed that man into a car and threw his jacket over his head and was like, go, go, go. It was like my little Olivia Pope moment. I was like, I can't believe it.

Alyssa Mastromonaco

You're, like, kidnapping him, basically. Totally. And so the thing about it is, of all the people John Kerry met, we met them all over the country. We brought people to unexpected sort of locations where no one would see them, like, at the airport, and think, oh, like, why is so and so here? And then, like, when we announced John Edwards, nobody knew.

Leah Litman

Like, nobody had an idea that it was going to be John Edwards. None of the meetings leaked in 2004. That is an amazing accomplishment, truly, for people who don't understand. I mean, like, everyone is watching this process, and there's a lot of people read into it, and keeping that from leaking is amazing. How did Obama's process differ from Kerry's?

So it actually didn't differ much at all. He. He had fewer meetings with people than Carrie did. Carrie. I think.

I think I personally was there for, like, five or six meetings with Carrie. And with Obama, I think he did three. And the thing is, things had come a long way since then, especially because Jeff Zeleny had been iterating. He's like, let's look at airports. Let's see where people are flying in and out of to the point that it wasn't Joe Biden, one of the people.

It might have been Evan, by someone that Barack Obama was meeting with. I was, like, flying them into a different city's airport so that they couldn't. I think we used, like, East Philadelphia airport. Oh, it might have been Joe Biden. We used East Philadelphia airport for Axelrod, David Axelrod and David Plouffe to go see Joe Biden.

Like, even staff members who were going to see some of these candidates, we were being super, like, just subtracting nothing because everybody had sort of picked up on the tricks, you know, because I was like, very. Were these guys tracking the tail numbers of private planes? Are you talking about, like, sending a staffer to a public airport in the wrong city? They were tracking. Because at this point, no one's flying commercial for this sort of stuff.

They were tracking tail numbers to and from. You know, if there had been rumors of, you know, Tim Kaine, for example, people are checking the DC airports, they're checking the Richmond airport. You know, I think we actually busted. I think one of our colleagues, Ted, busted Tim Kaine out of his house without his family even knowing, you know, because Barack Obama, the thing that then Senate, then Senator Obama felt was that what John Kerry did was so honorable, right? Because you want to have the freedom to have conversations with people, but then not have them be humiliated for having agreed to be part of the process.

Right? Like, nobody wants to be like, oh, yeah. Like, I didn't make the cut. And so I think that that was very respectful. And then if you look at Donald Trump, he has done the exact opposite of anyone ever.

This is just a apprentice, like, beauty pageant, which I, even for Republicans, I just think is really, it's, like, sad. It's, like, mean. To your point about the kind of giving these people some proper respect. I mean, you're not only holding out the hope that you might be the next vice president of the United States, you are asked to turn over all your financial details. Totally these unbelievably intrusive vetting forms.

Alyssa Mastromonaco

I mean, it's like a security clearance on steroids, right? I mean, like, hundreds and hundreds of pages. Everything you've ever done that might possibly be leaked to the press and be embarrassing to the campaign. Totally. There was one story.

Leah Litman

So for the Obama search, I was in the headquarters the whole time. I had people who I totally trusted, who were out in the field sort of making these meetings happen. But the best phone call I got was from one of our dear friends, Jess, who was like, am Joe Biden. He had aviators on and a baseball hat. And he got off the plane before I was there.

And there was, like, a tour group that had come on a chartered flight into, I think we did the Biden meeting in Minneapolis. And all of these, like, older Americans are, like, on a bus and see Joe Biden. And she was so worried that we'd been busted because him trying to look incognito was actually, like a beacon of. Bidenness just looked like himself. Yeah, totally.

Alyssa Mastromonaco

Yeah, we gotta give him some different glasses next time. Yeah. I mean, my final memory of that, of that whole process list was just like, the night before trying to go to bed, I had my phone on, and, like, reporters were just, like, rolling calls into my cell phone. It's like, guys, I'm not gonna answer this. I'm not gonna tell you who it is.

I don't even know myself. I know there's three speeches. No, I knew there were three. There were three speeches. I did.

Leah Litman

I didn't even know until I had to have the charter company on hold. And I just got the airport. That was all I was told. And it was just a couple of hours in advance, so. A couple hours in advance.

Alyssa Mastromonaco

You don't even know who's getting on the plane you chartered. That's how secret it was. Yeah. Someone bring me back. I want to do it again.

Yeah. In hindsight, it was very fun. I mean, I think the final question on this, I mean, I think what I'm wondering is, does Donald Trump really want to do something interesting? Does he really want to shake things up? Or does he just want someone who won't outshine him, who won't cause problems?

And he's gonna be like, all right, JD Vance, you know, probably. I mean, I think that here's the problem with Trump, is that because nothing he does is genuine or guided by logic or reason, we have no idea why he's gonna end up picking someone. You know? I mean, he could be around the mypillow guy who's gonna be like, pick JD Vance. You'll win Ohio.

Right? You know, like, like, like he's so susceptible to any sort of, like, last person you heard, soul. Yeah, that it's, that it'll be, it'll be interesting. But for some reason, I really do think he's gonna pick a woman. Okay, well, let's, we will, I'm sure, be talking about this again.

But Alyss, thank you so much for hosting today. Thank you again. Leah Littman I had a blast. Let's do it again soon. Totally.

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Leah Litman

Angies list is now Angie and weve heard a lot of theories about why. I thought it was an eco move. Fewer words, less paper. It was so you could say it faster. No, its to be more iconic.

Amy Coney Barrett

Must be a tech thing. But those arent quite right. Its because now you can compare up prices, book a service instantly, and even get your project handled from start to finish. Sounds easy. It is.

Leah Litman

And it makes us so much more than just a list. Get started@angie.com. Comma. That's Angi or download the app today. Why are smart businesses graduating to Netsuite by Oracle?

Because Netsuite eliminates the expense of multiple business systems by consolidating your operations together into one. Netsuite is the number one cloud financial system, bringing accounting, financial management, inventory, and HR into one platform and one source of truth. Netsuite reduces it costs because it lives in the cloud with no hardware required, so you can access it from anywhere. You cut the cost and headaches of maintaining multiple systems because youve got one unified business management suite. Bringing all your major business processes into one platform improves efficiency, slashing manual tasks and errors.

Over 37,000 companies have already made the move. So do the math. You'll see how you'll profit with Netsuite, too. And now, by popular demand, Netsuite has extended its one of a kind flexible financing program for a few more weeks. Just go to netsuite.com podcast 25 for more information.

That's netsuite.com podcast 25.

Will the Supreme Court Grant Trump Immunity?

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