Election Fraud Pure and Simple

David Waltz
Hello and welcome to the slate political Gabfest, April 25, 2024, the election fraud pure and simple edition. I'm David Waltz of Citycast in Washington, DC. Update still not friends with the crows. From New Haven, the New York Times Magazine and Yale University Law School and so many other things, Emily Bazelon. Hello, Emily.

Emily Bazelon
Hey, David. Hey, John. And from Manhattan and CB's primetime, where you can now get 90 minutes of CB's prime time every day, not just 60 minutes. Is there anything better than 90 minutes of John Dickerson? 120 minutes of John Dickerson would be even better, but 90 minutes better than 60 minutes.

David Waltz
Congratulations on your expanding show, John. Thank you. Although I should hasten to add two important caveats. One, it's no longer prime time. It's called daily report because it's not in prime time on the west coast.

John Dickerson
It's at six now, so can't call it prime time when it's not in prime time. Second thing is, it's not 90 minutes yet. It'll be 90 minutes in a couple of months once we get all of our staffing. But it was announced this week, which is nice, and we move times. So I'll take the congratulations.

And it's been an exciting week. And obviously no shortage of news this. Week on the gabfest. The prosecution gets off to a strong start in the Trump election interference case. But trials are long.

David Waltz
Lots of things can happen. Then the Supreme Court considers how much immunity, if any, Trump should have for his actions to overturn the 2020 election. Then the chaos at Columbia and other college campuses deepens. What can colleges do about pro palestinian, anti Israel protests? It is that is.

I am looking forward to talking about that. Plus, we will have cocktail chatter. The first Trump criminal trial is in full swing in Manhattan under the brisk direction of judge, the prosecution of Trump for falsifying business records to cover up a scheme to silence stormy Daniels. So her allegations didn't disrupt the 2016 election got underway with fascinating testimony from National Enquirer boss David pecker, who testified about his conspiracy to help Trump in the election by covering up stories damaging to him and covering them up by buying them catch and kill. Catch and kill.

Emily, what has been most remarkable to you about this first week, other than the fact that it's moved so rapidly that they got this jury seated so quickly and got moving so quickly. Yeah. Moving quickly is something that never happens in a case involving Donald Trump. Until now, a couple of things have struck me. I mean, one is the theatrics or just the presentation of having former President Trump have to sit at this trial where he doesn't want to be.

Emily Bazelon
He's projecting to his supporters over social media that he's storming out of court and in other ways, challenging the judge. He kind of wants to portray himself, himself as shaking his fist at these proceedings, but he's not doing those things. He's sitting there because he has to do that. His lawyers had a big fight over his violations of the gag order this week, and that's obviously bleeding over the trial. I mean, Trump has continued to post on social media about witnesses he reposted, something about the jurors that could be seen as intimidating.

And that's something the judge is going to have to really watch. And this question of what consequences will kick in to dissuade Trump, I think, is going to be a kind of face off throughout the trial. The second thing that I thought was really smart was for the prosecution to start with David Pecker. This is like a good way to tell this story, right? You start with the guy who's saying, yeah, I was the head of the National Enquirer, and we were basically part of the Trump campaign.

And here's the stakes. Right from the prosecution's point of view, this is a case about election influence. And so you're showing what the stakes were and how this alleged conspiracy worked. And so I thought that was just, like, a smart choice for getting things started, both the jury and for the public and the press to get everyone's attention. JoHn Pecker claimed in his testimony that the catch and kill scheme was cooked up in cahoots with Trump to benefit Trump's campaign for the 2016 election.

David Waltz
And, I mean, this is with Trump and Michael Cohen. And one great example that was mentioned, I don't know if it was mentioned in the opening statements or in testimony, was that one of the NDAs? So one of the people who was caught and killed was Karen McDougall, who had also alleged an affair with Trump and that they released her from her NDA once the election was over. So that it was clearly, clearly like, this is not to protect Trump's reputation with his wife, to, you know, to cover up something for his personal, you know, so that he wasn't embarrassed at home. It was.

It was election related. Yes. The mechanism of this case is you take a misdemeanor and then you make it a felony by attaching it to this election charge. But Emily's gonna explain to us why you don't have to actually then prove the actual crime, the election crime was committed. You just have to use it to, to prove motive in this case or in the instance in which you're just describing it.

John Dickerson
And the point you're making is that one of the possible defenses is, hey, Donald Trump is a popular, famous guy. Of course he didn't want bad stories out there. This is just a part of image management. He would have done this whether he was running for president or not. And so he didn't run afoul of any federal election campaign laws by hiding a campaign expense paid for by Michael Cohen.

A possible funny thing here is that if Donald Trump had tried to do this by the books and had, in fact, had his campaign pay for Stormy Daniels to stay quiet and argued, hey, I need her to stay quiet because it's going to hurt my campaign. The FEC might have said, you know, that's not a purely campaign related expenditure. It could be to protect your own personal reputation and therefore it's not a legitimate campaign expense. He's on the other side of that now. He has to prove that this was a personal act, not something in furtherance of his campaign.

David Waltz
But the thing, can I, can I pause for it? Sorry, John, I know you're in there. But the other thing, which I didn't understand, and maybe I'm getting this wrong, is that one of the reasons why Trump is in trouble is that they didn't pay the national Enquirer to, the National Enquirer could have paid stormy Daniels themselves. But because Trump's campaign hadn't paid the national Enquirer for other catch and kill stuff, the National Enquirer was like, no, you have to pay it. So Michael Cohen ends up paying for this stuff rather than the National Enquirer had paying for it.

If the National Enquirer had just paid for it, I don't think there would have been any trouble at all. No trouble whatsoever. One other thing about David Pecker and Emily, just picking up on what Emily said about starting this storyline with him, the prosecution calls him one member of a three man plot. And I think what it does immediately as a storytelling mechanism is, boom, Donald Trump is in the room. He's in the room cooking up this conspiracy with a guy who knows from conspiracies.

John Dickerson
And the conspiracy wasn't just a one off. It was this very involved, by the way, thoroughly despicable and utterly without moral anything, effort not just to bury bad stories, but to make up stories about Ted Cruz and other opponents. I think there was one about Marco Rubio as well, out of whole cloth in order to hurt those candidates and we saw repeatedly in the campaign that when the National Enquirer put out stories that were completely made up, Donald Trump then grabbed them and used them in the campaign to beat his opponents, opponents who now think that that behavior and everything that Trump has done subsequently means he should get four more years in office, which is just, you know, extraordinary. Emily, why is Pecker helping the prosecution? Well, I think he could get in trouble otherwise for participating in this conspiracy.

Emily Bazelon
And also, maybe he's just had enough of Donald Trump and the role that he was playing. It is a fascinating question, though, because unlikely, but without him, this case is so much weaker. And, you know, I don't think he really had criminal jeopardy here. So, I mean, this is the thing about when you get called in by prosecutors and asked to tell the truth and you're under oath. Like, people start telling the truth often when those mechanisms kick in.

And so maybe it's that simple. He didn't want to lie on the stand. He didn't want to lie when he was being questioned by investigators. It's hard to maintain a lie constantly when there are so many facets to it. I mean, this is one of Donald Trump's great skills, is the ability to lie so often, so freely, and have no even fibrillation in the muscles of his face.

John Dickerson
When he's lying so often and in such high stakes moments, it's like, that's hard to replicate. Right. And what's in it for Packer to keep lying? I mean, he's not running for president. He's not the one facing charges.

Emily Bazelon
Right. Like, at some point, I think we're actually seeing this repeatedly with witnesses. It's true about Michael Cohen, too. I mean, he actually went to prison for his role in all of this. People just, like, run out of steam for lying on behalf of someone else.

David Waltz
Right. It is exhausting. I feel like I would definitely be one of those people who I to have committed a crime or some sort of set of lies that were damaging, that I would be so relieved when I finally got to be like, yeah, I did it totally. I would be that kind of person. Yes.

But I'm not sure that David Pecker. David Pecker has a long history of immoral, amoral, highly disruptive behavior to benefit rather wicked people. So I don't know that we can conclude that he suddenly has been like, oh, I'm so tired. I guess maybe he's never faced FBI questioning before. Maybe that's new.

Emily Bazelon
I mean, it just. It's a different kind of pressure. What if it's the case. And I don't know how a jury, one of the things I liked is Katrina Kaufman, our reporter covering the case, said that when the jury at first heard the opening statements, they were all wrapped with attention to the lawyers. And the judge said, Judge Mershant said, would you like a pen and paper to write some of this stuff down?

John Dickerson
And almost all of their hands went up, so they're paying very close attention to what's being said. But what I wonder about Packer as a witness is, does Donald Trump's general degradation of what's accepted in public, by which I mean expectations are lowered, actually make pecker less of a despicable witness? In other words, in the past, if Donald Trump had raised the level of how you're supposed to behave in public with respect to lies and truth telling and deceitful and immoral behavior, if he'd raised the bar, then a person coming on the stage who was kind of had built a career and a life out of being awful might seem awful. But in this case, I wonder if he's like, well, he's just part of this, like, group that does stuff that's awful. So.

And that, in fact, that perhaps with the jury might make him, may not penalize him the way it would have in a previous generation. It doesn't make him seem not credible. It makes him seem like he's a see me picture, which is going to be possibly true about Michael Cohen as well. Right. I think that was the question I wanted to ask you guys, which is that it seems like the Trump's best defense here or a solid defense for Trump will be.

David Waltz
Yeah, I mean, this stuff may have happened, but it was Michael Cohen who's out there doing it. Michael Cohen. And then Michael Cohen bilked me by over billing me for something. I mean, they can try that, but they have on tape Trump talking to Cohen about how to make this payment and saying, pay in cash. He seems very much in cahoots from that snippet of tape.

Emily Bazelon
Right. I mean, one thing that Trump's lawyer previewed this week was this argument of, like, we're a democracy. Sure. I was trying to influence the election. I wanted to win.

So what. Which is a different kind of. Kind of trying to shake off of these charges. It was when. Yes, when.

John Dickerson
When Trump's lawyer said, I have a spoiler alert. There's nothing wrong with trying to influence an election. It's called democracy. Hey, buddy. But isn't that like saying if you're caught cheating, there's nothing wrong with trying to get a good grade on the exam.

It's called being a good student. I mean, to me that seems ridiculous, but maybe it's some clever lawyer trick. I don't know. No, I mean, it's interesting. When I was reading this week, the best arguments I heard against these charges were coming from a couple of law professors.

Emily Bazelon
One of them, Rick, has in, who's an election law expert. And he was like, look, this is not the same as, like, trying to stuff a ballot box. This is a minor kind of campaign finance violation. And that's the real issue here. But I'm not sure that Trump's lawyers have ever really made that argument.

Like, okay, yeah, maybe I'm at odds with, you know, the FEC guidelines about how I was supposed to report this. But other than that, so what? There just isn't a box for paying off your alleged mistress. It's like you couldn't fit it in there. Right?

David Waltz
Well, it's all. Then it gets always to sort of the Al Capone phase, which is like, how much are we willing to tolerate the prosecution of someone for a lesser crime? Because we believe them to have committed all these much worse crimes that have been so damaging. Right. And thinking about the David Pecker testimony is a great example of that.

Emily Bazelon
You were talking about all these other stories, the Cruz stories, the Rubio stories, this larger plot to influence the election. Most of those things don't have to do with these falsified business records. And so there's a way in which the prosecution has so far succeeded in bringing in evidence that makes the election influence conspiracy seem bigger and wider than the kind of, like, tight connection to the business record. I think you've made a really interesting point for outside the courtroom, Emily, which just struck me, which is that to your point, David, I am reminded of sort of the Bill Clinton years where it's like, oh, come on. It was like, of course you'd lie about sex and, like, it's messy and all that.

John Dickerson
But in this case, what Pecker has taught us is not. Forget the case for a moment. What he's taught us is that Donald Trump is perfectly fine with creating an entire long strategy for lying in public, fooling the public. This isn't catch and kill. This is the stuff attacking the other candidates.

That that's one of his habits that, like, he will cheat at the game. And that's not just something he did because he got caught having an affair. No, this is something he affirmatively engaged in as he was walking on to the tennis court. He made an arrangement. How can I cheat at this game?

And he did that back before he was running for president in 2016. And he has done nothing to suggest that that isn't his normal course of business throughout the time he's been in public life since then. That just seems to me to be the way you find the presidential question. Inside this court case. One of the constant accusations of Trump and Trump's allies is the media is colluding with Trump's critics, or they're colluding with Biden conspiring against him.

David Waltz
And here he is, literally conspiring with immediate publisher to win the election. I mean, literally, it a conspiracy. So, of course. Of course. Can we just momentarily, on the gag order, the judge says to Trump's lawyer, Todd Blanche, you're losing your credibility with the court.

John Dickerson
When Blanche sort of had to say that Trump was just defending himself, or I think he even went a little further in trying to defend Trump's situation. How bad a problem is that, Emily, when the judge tells you the jury wasn't in the room, but our reporter said that Blanche then went back to the table, and instead of sitting in his normal seat, which is sort of head on with the judge, he moved down and had another of the lawyers sit in that head on from the judge seat. So kind of literally moving himself into the doghouse. Yeah, it's not great. I mean, what can you do?

Emily Bazelon
This whole side drama about the gag order, as I said before, I think is going to hover over the trial, and the prosecution right now is asking for fines. Trump, of course, on social media blared about how he was about to be thrown into jail. The judge does not want to throw him into jail. Like, that's not. You don't, you shouldn't want to do that.

That's bad for any defendant in a case like this. That's really not good. If the judge ordered a fine of $1,000 a day, would that stop Trump? I don't know. We'll see.

David Waltz
Do you want to hear more from us after this episode? Stick around. For our bonus segment today, we're going to be talking about another really naughty legal issue, the Supreme Court case about whether grants pass, Oregon can more or less criminalize homelessness. That segment is just for Slate plus members. If you are a slate plus member, thank you so much.

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This is Gabfest live. The Supreme Court just heard arguments in the immunity claim brought by Trump to stop delay the January 6 charges brought by special counsel Jack Smith. Trump argues that he has absolute immunity from criminal prosecution for official acts he undertook as president. Smith says no. The district court judge in DC said no also.

But the Supreme Court heard argument for two plus hours today. Emily, you've just listened to all of it. Give us the hot take. What was the shape of it? What did the landscape look like?

Emily Bazelon
I mean, I have to say I was surprised at how many justices seem to take these arguments to the point of really talking about sending this case back to the lower courts for more proceedings. There's a couple of answers to this question, right? I mean, one is the answer the DC circuit gave, which is a president does not have absolute immunity for every single thing he does in office. Another thing is to look at which of these acts were official acts and which were private acts. And in some ways, the justices seem drawn into that as the route to resolving the case.

They were dividing the things that Trump did because he was president from the things he did because he was a candidate trying to hang on to the presidency. The thing about that route to resolving the case is because it's not one the lower courts took. It seemed like the justices were then going to use that potentially as a reason to send the case back to the lower courts as opposed to resolving those issues themselves. And then we're just talking about a lot more delay and complications. Yeah.

John Dickerson
I thought when they refused to wrestle with the details of Trump's specific case, they were all acknowledging that they're awful facts for the president's argument. But then I realized, no, what it will allow them to do is to say, you know, we have to make this decision for all time immemorial, and this is not just about this set of facts. It is an important thing to do to figure out what's public and what's private, and there's ambiguity. So send it back down and figure out what's public and what's private. And that, as you say now we're into three years from now.

Emily Bazelon
Yeah. I mean, there was a lot of concern about all future presidents and this really basic division about what's worse. Right? So from Justice Alito's point of view, and Justice Gorsuch was there with him, the worst case scenario is a president who is second guessing himself because he fears future criminal prosecution. And Alito raised a specter of like, someone who just goes and pardons him or herself after they leave office to avoid that.

That's his bogeyman. Justice Ketanji, Brown, Jackson, other people, maybe Justice Barrett, seemed much more concerned about a president who's not bound by the rule of law, who's just, like, not subject to the same criminal statutes as everybody else. And that's just the fundamental divide here. Which of those things do you worry about more, and then how do you apply that to this looming prosecution against former President Trump? Was there any discussion about the question of time that there was a reason for this to move expeditiously, or did the justices not even nod at that?

Sotomayor was totally thinking about that. She made that clear, that if they send this case back, if they can't resolve these questions, then there is no prayer of a trial happening before November. It may be that the trial is basically off the table before November. In minds of the justices, anyway. They may have feel that because they waited so long to hear this case and they're probably not going to resolve it till the end of the June, that that's already kind of gone and it lets them off the hook of worrying about this.

Of course, that is very much still within their control. They don't have to take eight weeks to issue this decision. They could do it faster. And so I am sure that some of the justices think that that is the right thing to do and want that to happen. I will be surprised if there is a majority for resolving the case fast.

David Waltz
One thing I didn't understand, Emily, is so Jack Smith believes that Trump does not have immunity for either official or private acts, that the official acts were also criminal. Well, Jack Smith thinks that all the charges in this case, a president does not have absolute immunity for. There is a sphere of presidential duty and conduct that the government conceded, yeah, you're not going to be criminally liable after you get out of office. There were certain things connected to being the commander in chief that the government conceded your pardon power. They conceded.

Emily Bazelon
So they weren't saying that every single thing the president does can be subject to criminal prosecution later because they recognize the president has this core set of duties that that should not have the same kind of fear of criminal prosecution. But then I think for some of the justices at least, there's a sense that, like most of the time, if you're just talking about an ordinary criminal statute that should apply to the president. And also, didn't they say, Roberts at one point said, I mean, obviously there are official acts that in the abstract are not prosecutable, but when you do them in the furtherance of a crime, you know, appointing somebody an ambassador was the chief justice's example. It's fine to appoint somebody to ambassador, but not if you're doing that as a part of a bribe. It seemed like they were drawing sort of circles where there are those that are article two powers and then there's these other acts that are outside of that.

John Dickerson
But anything that's not purely protected, like the pardon power, they seem to be saying it's a matter of how they use that power. Exactly. And so they spend some time talking about what if you order a military coup? I mean, if you're a president, you have the power in your office to order the military to do stuff, but if you're ordering something that's totally illegal, then doesn't that have to be subject to criminal liability? And I have to say, I mean, Justice Barrett seemed concerned about that.

Emily Bazelon
So it wasn't just the liberal justices. And Trump's lawyer didn't seem to have a very good answer on the coup front. He did not want to talk about the coup. So usually in these cases, it's sort of the fulcrum is Kavanaugh, Roberts, Barrett at this point, when you listen to this, Emily, where does it feel like that FulcRum lands? Barrett, I thought, was, I did not hear Barrett expressing a lot of sympathy for Trump's position.

Kavanaugh seemed interested in sending the case back for more proceedings at one point. At another point, he cast doubt on the conspiracy charge at the center of this case and talked about how broad and sweeping it is. And that is a real problem for the government because as you may remember, last week, we were talking about the charges do with obstructing an official proceeding, which the court is hearing a separate challenge to. If they cast doubt on whether the government can use those charges, and then they say that this conspiracy charge is way too broad for charges against a former president, then that would be the end of the government's case. Kavanaugh did work in the George W.

David Waltz
Bush White House, and I think it's very attached to the damage that he felt was done to the executive branch by the nibbling away by liberals at the executive authority in his view. He also worked for the special counsel, and, I mean, he worked for Ken Starr. And one of his lines of questioning was about the awfulness of the independent counsel statute and how that left lasting damage and that a reading, an incorrect reading of the current case before them could leave this kind of lasting damage, which all feels like an argument for sending it back for more clarity. Yes. I mean, I felt like going into this argument, it seemed like many commentators, and including the DC circuits, their main concern is, wait a second, did Trump try to subvert an election?

Emily Bazelon
What do we do about that? And we want to make sure that it's rock solid clear that american presidents are subject to the rule of law. Listening to this argument, it seemed like for some of the conservative justices, there was much more concern about weakening the presidency, subjecting the president given separation of powers too much to a special prosecutor or to the rulings of courts themselves. Like, that seemed to be the main concern. And that was really surprising to me.

John Dickerson
The department, Justice Department's case was that there's no immunity, in part because there are all of these hurdles that keep that apocalyptic result from taking place, including a president gets counsel from his attorney general, and once he gets that counsel, he can't be prosecuted for good faith counsel that he was given, that, you know, there are protections in court, cases that, you know, there are protections in court, I should say, that protect defendants, that there are a lot of, so the Justice Department argued a lot of things already that exist that keep the apocalypse that they were pretending might happen from taking place. But I don't know how convincing that was. You could certainly have a president who appoints a attorney general that he knows is going to rubber stamp his decisions and will declare everything to be kosher. Yeah, somebody brought that up. Right?

Alito brought that up. And the argument was, well, sure, but there's a separation of powers check there, which is that the Senate has to confirm. Now, we obviously don't put a lot of faith in a Senate, Senate that has to confirm. On the other hand, presumably in the Supreme Court, you're supposed to pay attention to the way the system was designed. Not its most inefficient execution at the current moment, but that is kind of.

David Waltz
One of the problems, is that the system, as designed doesnt work the way it was designed to work right now, that there are all these other things that have been broken, some by accident, some on purpose, that make it not really function the way it was intended. And the justices can sort of take this luxury of viewing everything from this, oh, this grand, broad constitutional. We have to look to history. But then you can end up ignoring the gritty facts and real awful things that are happening when you just look hypothetically. But whatever.

Emily, I have a question, which is, was Judge Chutkin negligent in not having distinguished official and private acts, having determined that earlier and sent a record up to the Supreme Court that had, had determined that these were all official acts? Yeah, I was thinking about that. I mean, I wouldn't say negligent, but I was thinking about how there have always been two ways to resolve this case. This question of, well, of course, you can't be absolutely immune for every single thing you do as an official act versus. Well, were these really official acts?

Emily Bazelon
And certainly it is possible to imagine a set of proceedings in which both of those avenues were entertained in the alternative, and then you have a different kind of record. You know, it's a matter of, like, second guessing and after the fact quarterbacking. But if that ends up being the reason the case gets sent back, it's going to look like that wasn't a great set of decisions. Emily, why couldn't, let's imagine that trial has to go forward. Why couldn't it be a defense of the Trump counsel in the, in the course of the court proceedings to say, you're trying to make this thing criminal?

John Dickerson
That's perfectly legal. You know, even the, even the fake electors or even the slate of alternative electors, that's what President Grant did. That's not illegal. That's perfectly within the bounds of his. Now, the problem he would come into, which one of them pointed out, I can't remember, was Kagan or the other, is Trump knew that all those electors were fake and that there was no basis for them to be named and so forth.

But then you get into a question of what he knew and when he knew it. But I guess my point is, could he was just doing his job, be a sufficient defense in the course of a trial and therefore protect the president from what they were worried about at the Supreme Court. Yeah, absolutely. And Sotomayor talked about this. You know exactly what you're saying.

Emily Bazelon
Like, okay, will you raise this during the trial? And we have remedies for during the trial or after the trial or the judge's instruction to the jury. And those are all the normal routes. You know, there was this really interesting through the looking glass feeling about this in which the liberal justices were basically assuming that the criminal justice system is going to operate in good faith and that you're not going to have presidents indicted in the future, Willy nilly, and you're not going to have corrupt attorneys general. And it was the conservative justices who were saying things like, oh, well, you know, prosecutors can get a grand jury to indict a ham sandwich.

So that's not a real constraint here. That was the way it was shaking out this morning. And honestly, it was just kind of bananas. I'm not sure I'm going to argue this point, but I think if you assume, as I kind of already assumed, there was literally no chance this case was going to go to trial before November, and hence it's sort of moot for its impact on the election anyway, that it wasn't going to happen. And if you assume that that was the case, it doesn't seem to me the worst thing in the world for the justices to kind of lay down a set of benchmarks about when a president can be prosecuted and when a president can't.

David Waltz
Because I actually don't, I'm not so sure they're wrong, that the biggest danger there is a significant danger to malicious prosecution. I think Trump has already said that he would use his Justice Department to go after Biden from day one. That's what he's going to do. He said he's going to do it. So if you think that they are possibly preventing some malfeasant behavior by a future president by taking a little bit of time, I don't think it's terrible because I do think it was already off the table that this trial was going to happen.

For months, I have not believed this trial was going to happen. So I'm not so brokenhearted to think like, oh, now it's really not going to happen. I never thought it was going to happen. And if your political interest is in not having Donald Trump reelected as president, if these issues become central in the campaign, both with respect to Trump and with respect to the indictments now in Arizona, with respect to fake electors, there are now four states in which they're fake elector indictments. You now have cooperating witnesses who are a part of the scheme, who are now helping out.

John Dickerson
If that becomes the centerpiece of the campaign. You know, I'm not certain that's really so wonderful for Donald Trump. Right. I mean, look, if you've already made your peace with the idea that this trial and the other federal trial, the Florida one involving, you know, taking all the documents to Mar a Lago, if you already thought those trials weren't happening before the election, then, right, this is more about politics as you're saying, John, and that makes sense, right? Like that.

Emily Bazelon
It's up to the american voters to decide how to weigh all of this and the swirl of it. The facts are going to remain with us and that if it takes the courts longer to thoroughly nail down the answers to these questions about the scope of a president's immunity from prosecution, a former president, I keep reminding myself to say, then this seems okay. And certainly I think there are several and maybe a majority of conservative Supreme Court justices who are going with that. Like, their job is the future. It's the future of the country.

It's making sure that future justice departments and prosecutors and future presidents don't abuse this authority to prosecute their rivals or other defeated presidents. That's the kind of tension here, of course. I mean, I still just can't resist bringing up the fact that, like, I still am confused about why this is such a hard legal question and why it has taken them so long. But I realize that's kind of crying over spilt milk at this point. Were going to take a short break.

David Waltz
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One woman has a secret and the other has a mission to reveal it before thousands of lives are lost. FX's the Veil premieres April 30 only on Hulu. The anti Israel, pro palestinian protestant encampments that have popped up on campuses are only spreading. We have ones in Brown and Princeton today. Theyre in Michigan, UT Austin had a showdown at Berkeley.

These started at Columbia, where Columbia president Manouche Shafiq is in a world of hurt. She tried to satisfy conservative inquisitors in the house by expressing very strong criticism of palestinian sympathizing professors and students. Then she was beset by criticisms and protests by palestinian sympathizing professors and students that led her to call the NYPD on her own. In camp students in shades of 1968, she finds herself in a situation where pro Israel and conservative lawmakers and donors think she's cowardly and allowing antisemitic intimidation to flourish. Student protesters who are encamped, in their view, peacefully express their First Amendment right to protest, thinks she's a thug.

Meanwhile, at all these other schools, Yale, Harvard, northwestern, Pitt, Berkeley, as I mentioned, Princeton, Brown, their encampments are rising protests. The best advice I can give to any college president is just get to the end of the term, man. Just get to. Because come summer, none of these kids are all going to go home in the summer. Like, you don't have protests during summer.

John Dickerson
But, oh, my God, yes, move up exams. Seriously, I mean, that is like a big question here that I've been asking myself. We had arrests at Yale as well, and it just seems, talking to my activist friends, not involved in these protests, sometimes what you fear as an activist is that the other side is going to de escalate. And I'm just a little baffled about why these administrators decided to relatively quickly call the police and ask for dozens of students to get arrested as opposed to just letting them camp out for a little while. Is the end of the term and making them take their exams.

Emily Bazelon
Right. I mean, for these students, the consequences of academic trouble, failure is much more serious than getting arrested. And so I also question that, like, bringing in the police has a whole different, you know, kind of foreboding feeling to it than threatening suspensions or just telling people like, okay, you can sleep outside if you really want to, but you need to take your exams. Now, obviously, there's a whole other set of considerations here, because there are other students who feel like the chanting and the effective calls for the elimination of Israel is really hard on them. And so that is part of the calculus here.

But I still just kind of remain puzzled by this set of choices. Does that give evidence to the claim then, that it was just wholly performative as a way in keeping with the way the testimony went down in front of Congress? In other words, to send a message that the university is doing everything it can to make jewish students not feel threatened. So that you need to show that because you're trying to counter these calls for you to leave your job. Yeah, I mean, look, Colombia is specific.

You're right, because that testimony, I mean, frankly, it was not just pro palestinian sympathizers who were distressed by that testimony that Shafiq gave. A lot of people were outraged by it because it really seemed to throw a lot of free speech and academic speech principles out the window. I mean, Shafiq named faculty members who are being investigated. She turned over information about that in a way that really broke a lot of norms at Columbia. And then on top of that, you have her calling the police.

Right. So I think all of that is specific. I mean, the other thing, obviously, that's specific about Columbia is it's a relatively small campus. So when people camp out on that front lawn, it's super central, and then it's in New York. And so then you have all these people outside the gates who are really being more anti semitic and intimidating, I think, than the students inside, which is not to say that there's no anti semitism inside.

I don't think that's right either. But it does create a kind of more tense picture than lots of other campuses and cities. I mean, I think you're right to say that Columbia example is specific, but Columbia is the trigger. Right? Colombia is the ignition for all the others, so the others don't happen if Colombia doesn't do what it does, and it does what it does because Manoo Shafiq clearly values keeping her job and saw this as a way to keep her job.

David Waltz
But I want to get to the really ambiguous question to me, in part because the coverage has been appallingly bad about this, about whether what's happening is anti semitic or not. Like, what is it that is happening? And in whose eyes is it antisemitic? And whose eyes is it not antisemitic? So clearly, there are broad chants from the river to the sea chant, the Zionists unwelcome.

I forget what the Zionists chant are, which the people chanting them claim are not anti semitic. But some people may perceive them as antisemitic, and we can talk about that. Then there are these other really non specified things that it's very hard to find specific examples of students who are making accusations or doing things towards other students which jewish students are feeling are anti semitic, or they're jewish students who feel threatened by it. So, you know, there's the. Go back to Poland.

Apparently one student yelled at a jewish student in Colombia. There's jewish students who tried to walk through, visibly jewish students tried to walk through encampments at Columbia who were sort of isolated, maybe physically kept away from the encampment. But, Emily, do you have a really good sense about what it is from the perspective of jewish students that is explicitly antisemitic about what is happening? Well, I mean, going back months, there are some incidents of harassment. Someone putting up posters about the israeli hostages in Gaza and getting assaulted.

Emily Bazelon
I can't remember what campus that's at. There are isolated things like that to point to. I think what's going on now has to do with the sort of social cost of being jewish and being unwilling to denounce Israel. I think we can think about whether that's anti semitic. One way to think about this, and this is part of, one of the definitions of antisemitism, is that if you're being told that in order to live in your society, you have to denounce part of your core religious or peoplehood.

Identity like that is a form of bigotry. And I think there are circles, at least on these campuses, where that is the case. It's complicated because they're also jewish students in the middle of the protests. I mean, jewish voices for peace is a real force among young, progressive Jews. And there are Jews who are saying, it is my values to condemn and oppose the war in Gaza.

And we're seeing the death toll is horrible. The toll of hunger and looming famine is awful. And that's happening during Passover. I'm really struggling with that. So I don't think it's a simple picture, but I can understand why jewish students would find this unwelcoming and difficult.

And then what responsibility do campuses have when you have a truly divisive issue? And I think the campuses haven't really been faced with this for a very long time. And that's the struggle here. Right? I mean, most schools have said to students very clearly, we want you to feel like you belong.

We want you to feel welcome. We don't tolerate hate speech. They've said that in multiple other circumstances. And so I think for some jewish students, this feels like a breaking of that promise that's been made to other groups. It does a responsibility of a university administrator change based on how the external circumstances are changing?

John Dickerson
Obviously, antisemitism in America has been on the rise for the last couple of years. There was fear about this before October 7, and so that encampments, which might not be as menacing two years ago in a context, become menacing. And I think also what seems different from the protests of the sixties on college campuses is that you don't have an affected party walking through the protests so much. Now. Maybe I'm forgetting the rot.

Well, so if part of this debate is whether protests in support of a palestinian state or of Gaza can bleed over into anti semitism, that's one question, but it's taking place physically in an environment where jewish students have to walk through it. Whereas in the 1960s, if you're protesting against the Vietnam War, the people who are possibly injured, if you believe that's what's happening in the protest, aren't having to walk through the protest itself, a. Point I never really thought about? I don't know if you tuned into this, Emily, that the former Columbia Law School dean and the chair of the anti semitism task force at Columbia, David Scheisser, talked about Title VI of the Civil Rights act, which is, whose perspective do you take when you're considering whether something is hate speech? Is it the intent of the speaker or the listener?

David Waltz
And that traditionally, universities have very much taken the perspective of the listener, that if the listener perceives something to be creating a hostile or dangerous or unsafe environment for them, the university takes that seriously. Do the protesters mean it? Do they mean something anti semitic when they say, chant from the river to the sea? Does a jewish student walking by there feel that as a threat to their jewish identity? And does it make them feel unsafe or that they're in a hostile situation?

And I don't like, my view is very much, everyone should be allowed to say whatever they want under almost all circumstances and not worry about this kind of safety question unless it gets very specific and extreme. But if universities have the standard for all kinds of other speech, presumably they should have the standard for speech that's perceived to be anti semitic. That's exactly the dilemma, right? I mean, you can take a very pro speech approach to title Vi and the rules you're talking about, which is to say a university can say, we're only going to discipline for speech if it's directly targeting an individual. Right?

Emily Bazelon
And if you go back to, like, why the president of Harvard and Penn and MIT got in trouble with Congress months ago for talking about context in, when they were asked about a chant about genocide to Jews, that's what they meant. Like, if you were talking to one person, then that would be targeting and threatening, but otherwise, possibly not. That answer seemed unsatisfying. And part of the reason it seemed unsatisfying is we live in a world in which it's impossible to imagine people chanting kill group x on campus and having that be okay. Like, that's just not where universities have landed.

And so that potential inconsistency is very real. Other schools, like you can have a very broad set of free speech protections in which you just tolerate tons of speech. The question becomes, I mean, that just has its own cost, right? So a couple of weeks ago at Berkeley, some pro palestinian students put up a poster of the dean, Erwin Chemerinsky, that showed him with a bloody knife and fork and called him a Zionist. And to a lot of Jews, to a lot of listeners or in this case, viewers, that seemed clearly antisemitic, like an invocation of the blood libel against Jews.

Now, Dean Chemerinsky has a very pro free speech approach. He's a First Amendment scholar, so he left those posters up. And then the question is like, okay, is that the right rule? Or are you, in fact, on the other hand, obstructing learning? Because the people, some of the Jews who pass those posters in the halls are going to feel really troubled by them.

And that's like a real dilemma that universities are facing kind of over and over again in the face of these protests and chants. Can I make a slightly simple images point just to go into this question about learning and disruption of learning? And clearly learning is disrupting on the Columbia campus right now. But every one of the students at Columbia that is involved in this, that is peripheral to this, this is a formative, crucible experience for them. And so to say, like, oh, well, people can't, you know, classes are being canceled, and that's terrible.

David Waltz
Like, I missed my art history seminar this week is to kind of miss the point. Like, I do think 100%, I do think that this has so much more educational value than most art history seminars. Couple of things to bring us home. First of all, I just want to repeat my point, which is that university president is the worst job in the world. Yes, you have no, everyone hates you.

The faculty hates you. The students despise you. The staff doesn't like you very much. And if donors start to hate you, then you have no purpose at all. It's awful.

John Dickerson
And you can only salve your discontent by getting on the phone and begging donors for money, which is a depressing thing to have to do. And we should say the donors are hovering over all of this, right? I mean, sometimes explicitly and sometimes in the shadows. And that pressure is part of this picture, and it's part of how universities have changed and become more and more dependent on these huge faucets of money. And that is its own troubling part of it.

David Waltz
Robert, Robert Kraft, the owner of the patriots who's been a major donor to Columbia, has made it clear that Columbia is on probation with him. Emily, just next to last question. What is it that you got at this right at the beginning? It seems to me that where the university, if the university wants to control these protests, its best mechanism is around the academic status of the students. Don't arrest them.

But certainly you can make students force them take their exams, suspend them, cause them academic misery. That is really, really painful if you want to prevent them from protesting. Yeah. I mean, look, I'm not advocating for this, but if you are thinking about how you disband encampments with the least possible police presence, that is obviously a card that you play. And I haven't asked any administrators why they haven't gone in that direction.

Emily Bazelon
I mean, do they just not want to have to deal with the due process or the fall? Do they think the fallout from parents will be worse? Are there real violations of their rules here that they can enforce? Because if not, they should not be calling the police. Like, it just seems that you should always with young people have the lower level discipline that you try first.

And I'm surprised that this has risen to the level of the cops as the, to bring in the outside agents, particularly with all the history of, you know, police presence in the 1960s. I mean, this is, I don't think this is the same thing, but it's just mystifying to me. I just don't understand it. Jon, as a last point, how big a problem are these protests for Biden, my sense is that it's like a major drag. Not because, you know, he's not going to lose New York and losing a few thousand college students, but it's hard.

David Waltz
Youth disaffection has always historically been a bad signal for presidential campaigns. And if you look back to 68 and LBJ, LBJ was sort of haunted by the war, and it just made it very hard for him to campaign. It made it just. It was the first question on everyone's lips, and that was just misery for him. And it caused him to pull out.

John Dickerson
Well, that's because he was pouring the bodies of middle class boys into the fields of Vietnam. I mean, that was a big difference. You had the voters whose lives or the lives of their kids were affected directly by the deaths in Vietnam. So that had a, you know, it hit a little closer to home. But clearly, you have 52% of Democrats now in a recent poll, said the way Israel's carried out its response to the October 7 attack has been unacceptable.

51% of registered voters in those battleground states have decided that they strongly, or I should say, 51% of the registered voters in these seven states support aid for Israel. That's down eleven points from November. Support for sending weapons and supplies to Israel is down among Democrats from 47% to 32%. So numbers are going down. Now, the question is, is it salient with younger voters?

And there's some debate about that. In other words, they will say they care about it. They will say they don't like the US position with respect to Israel. But is abortion more important? Is their economic condition more important?

Is their fear of Donald Trump more important? And we don't know that at the moment. We know there was a lot of protest in Michigan, but of the battleground polls at the moment, the one place Biden's actually doing better is Michigan. It's all at the margin. It's all very close between the two of them.

But in Michigan, doesn't seem to show an acute problem. There was just a primary in Pennsylvania in which there were opponents to both of the major party nominees on the ballot. Nikki Haley got 17% of the republican primary vote in Pennsylvania, including a pretty good share of the people who showed up on the day of the primary to vote against Donald Trump and for Nikki Haley. So in terms of, like, how are the problems of the individual candidates showing up on the, on the ballot the way we worried about it in Michigan with the protest vote against Biden. Biden only got 7% who voted for his opponent.

In this primary. So I guess the thing to watch is really how lasting this is. But as a public nightmare, we're all covering it. It's very much in the news. And that, of course, causes the chance for donor upsetting and just a constant stone in the shoe to perhaps use a bad metaphor.

The final point is reality might intrude. Israel's about to go into Rafa, and the humanitarian situation is about to get much worse. They just. There have been additional humanitarian reports coming out of Gaza about atrocities. The State Department's report on human rights abuses talks about Hamas and the October 7 attack and the ongoing treatment of the hostages.

But it also talks about what Israel has done in this war. The fuel for demonstrations is going to keep coming for a while. Now let's go to cocktail chatter. When you're speaking to your college student children about something which isn't protests, what will you be chattering about? Also, update the crows.

David Waltz
During taping, just chased off the blue jay. There was a battle royale in the back garden where the crows drove the blue jay away, and I didn't love it. Wait, because some people are negative on blue jays. They sort of think of blue jays as in the class of crows. I was taking a David Plotzlek walk this weekend and came upon an entire thicket of red winged blackbirds all singing their spring mating song.

John Dickerson
It was gorgeous. That's amazing. Well, you can have a chatter, John, because you evoked such beauty there. I have wrestled the chatter well, I guess just playing off of your idea of speaking to college age children, which often only happens after a large interregnum. There was another thing that's far away and took five months to communicate, and that was the Voyager spacecraft, which has for five months been sending a loop of indecipherable gibberish from 15 million mile away.

And NASA thought, oh, no, like, our beautiful sort of signature exploratory vehicle out there is done. It served its useful purpose in life, and now it's no longer working. It's just sending back gibberish. And we should note that Voyager one sent back. I mean, we know so many things about the rings of Jupiter and Saturn and all of these wonderful things about our galaxy because of Voyager one.

But then they fixed it. They basically, from 15 billion mile away, that's be with a. Carl Sagan discovered that it was basically a memory chip, and some of the code was corrupted. And so they basically relocated the necessary code from the faulty chip to other parts of the system. I mean, talk about like an it fix from a remote location.

And now it's sending back useful data from. Viger is on the march again. Emily, what's your chatter? Even though you apparently didn't see any red wing blackbirds? I know, which is so sad, though I did see a lovely cardinal this week.

Emily Bazelon
It's spring here, too. I cannot let pass the major Supreme Court argument in a case about Idaho's abortion law, which is banning abortions unless a woman is at risk of death, versus eMtala, which is the emergency provision, federal law that says that emergency rooms have to stabilize people by giving them necessary medical treatment. And so you had a face off at the Supreme Court this week, essentially between the liberals in the court plus sort of Justice Barrett, thinking about this group of cases where you have women who could lose an organ or they could not be able to be fertile again because they don't receive an abortion in an emergency situation. And then on the other hand, you had the male conservative justices basically saying, like, well, that's up to Idaho. And if Idaho wants to force a situation where some people have to be airlifted out of the state in order to receive the treatment they want because they're not at actual risk of death, well, that's okay.

And it's a legal question about the scope of this federal law. Emtala. And it's a political question, too, even though, of course, that's supposed to be in the background about drawing attention to this particular group of sympathetic cases in which people are being made to suffer because of a very, very strict abortion law. So it will be interesting to see how this breaks down. I mean, it was hard to see five votes for choosing EMtala over Idaho, but we'll see.

It was a little hard to tell, I think. Idaho. I think I'm right. I'm remembering this from listening to city cast. Boise has already lost something like a quarter of its ob gyns.

David Waltz
Ob gyns, that's a state that has a pretty high birth rate. I don't really know what's going to happen there. Seems like a mess. My chatter. I have several chatters.

First, log rolling chatter. I lead a tour of Fort Derussy, a civil war fort here in Washington, DC, in Rock Creek park. It has five stars on Airbnb. It's a great tour. I love doing it.

Do it about once a month. And I just put up a whole set of new dates for the fall and winter of this year. So please check that out. You can go to exploring a secret fort on Airbnb. Look for exploring a secret fortunately.

Or you can email me davidplotsmail.com and I'll send you the link. Also, Citycast is hiring a membership manager. If you want to help us build membership at Citicast, please also email me or check out Citicast job page Citycast FM jobs because we're hiring someone to help us attract members, people who love what we're doing. But that's not my chatter. My chatter was a story in the Washington Post on Earth Day by Eve Schaub.

And Eve Schaub, who is a person who is all for improving our planet, says it's time to stop recycling plastic and has some really shocking numbers about how ineffective and inefficient plastic recycling is that in the best case, every bit of recycled plastic requires three times as much new plastic just to create something out of that recycled plastic. So you're continuing to create new plastic, huge amounts of new plastic. Every time you recycle, only about a tiny, only tiny fraction of plastic, 5%, gets reused. It also can't be used for it has to be used for a much less effective use. So it's actually not recycled.

It's down cycled. It becomes used for something that's much worse, and it just contributes to the overwhelming amount of plastic in our waste chain. Plastic sucks. Plastic is terrible. The goal is to use much less plastic, and the 5% that's recycled to plastic compares to 68% for paper and cardboard.

So we seem to be doing a pretty good job with that. Maybe we should reconsider that. But it does involve who is really recycling plastic like it's fake. I mean, when they say that they're recycling plastic in a city, they generally are really not doing. I would like to send a memo to members of my household who would disagree with you, but I share your position.

I also have members of my household disagree with this. Oh my God. There are Shakespeare plays that are less performative than the recycling theatricals that go on in this household. I'm kidding. I'm kidding, but I'm not kidding.

John Dickerson
Oh my God. If I don't we have so many sorting. I mean, it's not just a place to put the paper. There's the paper on which you use script to write. Then there's the paper that's cardboard that comes from an outside source.

Then there's paper that's cardboard that you might use again. Then there's paper that's written with block letters. You sound like Andy Rooney right now. I have a whole podcast where I sound like Andy Rooney.

David Waltz
You can't even go. You can't even go one episode without log rolling navel gaming. You can't even do it, says David, having just lost. Oh my God, you've got a whole cabin full of log rolling. All right, listeners, you have great chatters.

You've been sending us excellent chatters. You've emailed them to us@gabfestslate.com. Dot we really appreciate it. So fun reading them every week, something that you're chattering about at your cocktail party. And our listener chatter this week comes from Michael Starr in New York City.

D
Hi political Gabfest. We saw Patrick Page's show all the devils are here, a wonderful performance that gathers many of Shakespeare's greatest bad guys. Needless to say, Richard III is awe inspiring and accepting himself as a villain. This prompted me to read his biography. Guess what?

It's all tudor propaganda. Richard III was shriveled in neither body nor personal capacity. He was the greatest military leader of his day, solid support to his brother, King Edward IV. He was far from England's worst king ever. He was a loving and loyal husband.

As for murdering his nephews, the evidence is so murky as to suggest a very probable alternate perpetrator. This biography was written before the discovery of Richard III's body in 2013, which revealed that he did have scoliosis, in spite of which he rode to his death on horseback wielding his battle axe to great effect. Never has a biography so changed my view of its subject. Love the show. Be well.

David Waltz
That's our show for today. The Gabfest is produced by Shayna Roth. Our researcher is Julie Huge. Our theme music is by they might be giants. Ben Richmond, podcast operations senior director Alicia Montgomery audio of Slate VP for Emily Bazelon and John Dickerson.

I'm David Plotz. Thanks for listening. We'll talk to you next week in May.

Hello. Slate plus, how are you? My goodness, the Supreme Court has been so busy. Or maybe it's just paying a lot of attention to it, I don't know. But the Supreme Court's very busy week.

In addition to considering EMtala, in addition to hearing the Trump immunity case, they heard an argument about ordinances passed by the city of Grants pass in Oregon to effectively criminalize homelessness. The grants pass, which is a city of about 40,000, has several hundred homeless residents, and the town made it a crime to sleep outside with a blanket, among other things, which anybody who is homeless is going to do. In the course of being homeless. It's very hard to not break the law of grants pass while you are homeless in that town. So the 9th Circuit had ruled that this ban violated 8th amendment protections against cruel and unusual punishment, and looked back to a ruling, a Supreme Court ruling in Robinson back in the sixties, where the Supreme Court said you can only criminalize conduct, you can't criminalize status.

And that effectively grants passed by making it impossible to be a homeless person was criminalizing the status of being homeless. That when a person has no choice but to sleep outside in a blanket, you're criminalizing their status as a homeless person rather than the conduct of the homeless person. Emily is going to explain this more clearly in 1 second. It is not an easy case, Emily. This is a pretty gnarly case because you can really see the balance that cities are trying to meet.

Cities do have an obligation to control public space and make public space available, accessible, safe for all citizens. And yet they also have this problem of people who do not have homes. There are no easy ways to regulate it. Yeah, and there are different ways to think about why this is so tricky. One question is whether the 8th amendment and courts and this idea of cruel and unusual punishment about the status of homelessness.

Emily Bazelon
That's the advocates on that side of the case. That's our stance. Is this the best way to try to address this problem? Nope. Okay, so make an argument that it's not.

And if not, then that was just. A snippet from our Slate plus conversation. If you want to hear the whole conversation, go to slate.com gabfestplus to become a member. Today, I'm Dalia Lithwick, and I'm host of Amicus, Slate's podcast about the law and the US Supreme Court. We are shifting into high gear, coming at you weekly with the context you need to understand the rapidly changing legal landscape, the many trials of Donald J.

Trump, judicial ethics arguments and opinions. At SCOTUS, we are tackling the big legal news with clarity and insight every single week. New amicus episodes every Saturday, wherever you listen.

Election Fraud Pure and Simple

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