Trump Is So Immune

A
This is the moment. The bachelorette is back, and the power. I'm gonna fall in love is in Jen's hands, and I'm gonna do it my way. ABC Monday. Everything about her is great.

C
I feel so special. Jen's looking like a queen. My men are very, very hot. Someone call 911. You are looking so fired.

D
This is the beginning of a new era. The Bachelorette season premiere Monday, eight, seven. Central on ABC and stream on Hulu.

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Hello, and welcome to Slate Political Gabfest, July 4, 2024. The Trump is so immune Edition. I'm David Plotz of Citycast in Washington, DC. Happy Independence Day. I'm joined by John Dickerson of CBS's daily reports from New York City.

Hello, John. Hello. Wow, that was a weird hello. That was like from the end of a tunnel. That must be how John feels.

A
It's how I feel. It's exactly right. Never at the end of a tunnel. Always. Or only the bright light at the end of the tunnel.

B
Emily Bazelon of Yale University Law School and New York Times Magazine. Hello, Emily. Hey, David. Hey, John. I hope your fireworks explode and your hot dogs sizzle tonight and not vice versa.

That would be terrible, though. I feel like I could pull that off somehow. My hot dogs could explode. I don't eat hot dogs. Continue on.

This week on the Gabfest, our light start belies a very dark episode. The Supreme Court restored the monarchy this week. That's great. For July 4, we will discuss their ruling in the Trump immunity case. Then, will President Biden withdraw from the race?

Is pressure on him to pull out of the race growing, or is it receding? Then the Supreme Court rules against the administrative state, or what I like to call the government in two important cases about who decides what regulations should be and when they should be. Plus, we'll have cocktail chatter. So let's begin with Sonia Sotomayor's dissent in the huge presidential immunity case decided this week, a case involving whether Jack Smith could charge former President Trump for offenses related to his efforts to overturn the election on January 6 and around January 6. So Sotomayor wrote, when he uses his official powers in any way, under the majority's reasoning, he will now be insulated from criminal prosecution orders the Navy SEAl team six to assassinate a political rival.

Immune. Organize the military coup to hold on to power. Immune takes a bribe in exchange for a pardon. Immune. Immune.

Immune. Immune. Immune. Immune. Emily, what did the conservative majority decide in this case?

And how much of a surprise was the breadth of this decision? I was very surprised by the breadth of this decision, they went much further than I expected, and I feel worried in a way that I don't know if I've ever felt about a supreme court decision. So here's what they did. There are now three zones for considering criminal allegations against depression president. One is what's called exclusive and preclusive presidential powers.

D
That means only the president governs in this realm. So we're talking about things like his powers as commander in chief or the pardon. In that zone of presidential authority, he has absolute immunity. He cannot be criminally charged for anything whatsoever that he did as president. There's another zone of power that he shares with Congress.

So things that Congress has legislated about. And for that area, he has presumptive immunity. The way Roberts describes this presumptive immunity, it first of all goes out to the outer perimeters of the acts of the president in his office, so it seems pretty vast. And second of all, it's quite difficult for prosecutors to rebut this presumption because in order to do so, you have to show that probing the facts surrounding the allegations would pose no dangers of intrusion on the authority and function functions of the executive branch. No dangers.

So that's hard. John, would you like to interrupt my mini lecture? Emily, does that mean that it's basically like, in the abstract, we have to imagine how a future president would be chilled by the mere act of probing, because the whole idea is, I'm a president, I'm about to act, oop, I might not act with the dispatch and energy that they think, because I'm worried someday somebody will raise it in court. Totally. I mean, the sort of feeling, the vibe that Roberts brings forth as a justification for all of this real expansion of presidential power is, first of all, some notion that the framers wanted an energetic, emboldened president.

So there are some, like, kind of vague quotes about that, although everybody admits that the historical evidence is fragmentary. And let me also just say we have never had a president with this kind of power because we've always had the reserve, the reverse idea. Before that, of course, the president was subject to potential criminal penalties. See Gerald Ford's pardon of Nixon, which now looks like, what was the point? Why did he do that at all anyway?

And the second thing in Roberts's opinion is the sort of lurking vibe is this idea that, like, presidents are going to fear they're going to be unduly cautious. He uses that phrase and that we're going to have some tit for tat of presidents criminally prosecuting their predecessors. That's going to go on forever. And I just, I mean, look, if the country elects Donald Trump, we could have some tit for tat. That's what Trump has been threatening.

Although now it does seem like that would be harder to pull off. But it just is not the version of our country that we've ever had, nor is it, like, the clear and present danger that we're looking at right now. So I just found this honestly baffling. And the other part I find so baffling is like, why the Supreme Court wants to live in the nation and the world that they just created. Like, we're talking about the most powerful person in the world.

Why would you want that president unbounded, whether it's Donald Trump or anyone? I just don't understand it. Ok. I mean, the other thing, John, about, like, this outer perimeter and this presumption is that this part is going to get litigated in the charges against Trump with regard to all the allegations about pressuring Mike Pence because the Supreme Court said, okay, well, Trump is absolutely immune for anything he did directing his own Justice Department. So a whole set of charges about, like sending a false letter to Georgia that there is a federal investigation of the election, gone from the case, gone from the story, but in the presumptive but not absolute immune area is all the pressuring of Pence to refuse to certify the election.

And so we're going to have an evidentiary hearing about that. And this question is going to have some kind of answer with lots of appealing, by the way, to the Supreme Court along the way, because every single ruling Judge Chutkin makes with regard to immunity is going to go up on what's called an interlocutory appeal, which means it happens during the case as opposed to the end. Can I ask a question that has really perplexed me, which is, how far down does this apply? Is it turtles all the way down if Trump, because the president does very few things himself, the president tells people to do things that then they do, that is the person who is ordered to do the criminal act also protected? And the person they order to then do the criminal act below them protect it, and the person below that protect it.

It's just the president. But so now it's relying on everybody who works for the president to be like, boss, I don't want to assassinate that person, but they don't know whether they should do it or they shouldn't do it. Is it a lawful order or an unlawful order? And so they're in this state of ambiguity. Well, right.

That's the other part of this. So I was texting and emailing with various legal experts in the last few days, trying to understand a bunch of questions, among them chiefly that. And one of the answers I got back from people who've served in previous republican administrations was like, don't worry so much about this. Everybody's overreacting because all the appointees are still bound by criminal law. And if they're worried about being prosecuted for obstruction of justice, they're still going to feel self preservation and refuse to do the thing.

And, I mean, maybe. But I think part of the problem is, is it always clear in the moment that you're really taking that precise risk? And second is what John just said, that the president retains the power of pardon, which is in his zone of absolute immunity. And so they're going to have that, like, sort of get out of jail free card in their back pocket. I mean, this puts so much pressure and meaning into who, the quality of who is in the Oval Office, obviously, most of all.

But also the people surrounding the president. First of all, on the history. When. They created the constitution, it was after the articles of Confederation had been a disaster. So, yeah, they wanted an energetic executive, but they didn't want an executive that was 90ft tall.

A
And also, Hamilton and Madison have a huge debate over whether President Washington, this is in 1793, so not that long after 1787, have a big debate about whether Washington can declare neutrality for the United States in the war between France and Great Britain. And Hamilton says, no, of course he's president. He can do that. And Madison says, uh uh, it's got to go through Congress. Point being, there was a debate about the presidency and its powers, on the question of national security, right?

Which would be, according to this court, in the zone of absolute immunity, leaving aside for the moment, presumptive immunity in that other circle. In other words, in the early days, there was never a conception that the, that, or at least it was open for debate among the founders that even in this protected zone, a president didn't have the kind of power that the Supreme Court is giving them. That is kind of nutty, and then just, I'll shut up. But on this question of all relying on the character of the president, there's a moment at the constitutional convention 234 years ago in the summer of 1787, where Pierce Butler, a delegate from South Carolina, says, you know, we've got this problem because George Washington is the chairperson of this constitutional convention, and everybody assumes he'll be president. We're not thinking through what would happen if you had an unvirtuous president.

I know we've put some checks and balances in here, but I'm afraid that everybody's affection for Washington is going to create a loophole and keep people from thinking wisely about what would happen when there is an unvirtuous person. And so thereby Washington's virtue actually embeds in the constitution a weakness for an unvirtuous president. He was right. I should hasten to add that Pierce Butler is no hero of history, unlike my favorite Gouverneur Morris, who spoke out vociferously against slavery. Pierce Butler, Washington, perhaps the most ardent proponent of slavery at the constitutional convention.

D
Wow, that is feeling prescient right now. So, to round this out, the third zone of presidential action is unofficial acts. So things the president does that are private, they're not part of his presidential duties. He has no immunity for those acts, but it's pretty tricky to figure out what the division is. And when the lower courts try to figure out the division between an unofficial, unprotected act and an official immune act, they are not allowed to introduce any evidence that probes the motives of the president.

So, like, I just don't. That is very confusing to me in thinking about how this is actually going to work when you start having evidentiary hearings. And the last part, and this is the part that Justice Amy Coney Barrett dissented from, is that when you are considering this division, you can't have any testimony or private records from the president or his advisors to be admitted as evidence. So that's like rounding out this idea. You can't probe the president's motives and you can't have testimony from his records or his advisor's records.

Suddenly you're blinded to why he might have done whatever you're talking about. So, like, think about that in relation to the actual facts on the table here. So it seems like, I mean, Roberts never said this, which is kind of incredible, but at oral argument, Trump's lawyer conceded that a whole bunch of things were unofficial private acts. Right? Like calling up the Georgia secretary of state and pressuring him for elections, the whole fake electors, like the consorting with Giuliani and other lawyers to bring these lawsuits that were bogus, that pile of stuff involving interference with state election results.

How do you decide that's criminal if you can't probe the president's motives or you can't look at any of the internal communications? I'm really confused about that. And so the sort of upshot of all of this is that it is a huge present tied with a huge bow for President Trump. The whole tenor of the opinion is that he was a normal president. There's no sense that there was, like some urgent, distressing event on January 6 that took place that we might be concerned about, much less like, reelecting him with this kind of power that the Supreme Court has just given all presidents.

And it's just sort of this sense of like, I mean, the line that got me the most maybe, was this sort of banal thing Robert said was like, well, you know, of course it's part of the president's taking care to faithfully execute the laws, to think about the fair conduct of a federal election as if that is what Trump was doing. That is not what Trump was doing. This is a question for both of you, which is that I understand how Alito and Thomas end up where they end up on this. I mean, they are pickled in this politics. Kavanaugh is different because Kavanaugh worked in the White House and I think has a very expansive view of executive authority.

B
No, but Roberts and Kavanaugh, Barrett have all seemed to me people who are quite institutional, thoughtful. Like, I don't think there's any evidence that they are unaware that Trump is an anomalous and wicked person. Like the hints that we get suggest that they are aware that Trump is not the kind of person or leader they want in the country. So why, given that, do you think they still ended up in this place of normalizing the Trump presidency in this way? Can I just add to David's question?

A
Is it, Emily, that they are being obtuse, which is this is a decision for the ages and that they've completely thought about this as the presidency, totally unhooked from both the Trump case or the effectiveness of elections or impeachments to constrain a president, that they've just, that it's, that they're kind of, well, just totally obtuse and that Trump is the absolutely beneficiary, but it's a accidental beneficiary because they're thinking about the year 30 34, not 2024. I mean, they want you to believe that Trump is the accidental beneficiary. And there's a lot of sweeping language about case for the ages. It's very abstract, right. And this idea that you have to make sure that the president is powerful.

D
And then you read back into history this notion of this monarchical president and these ideas about separation of powers that are just, like, not really there in the sources I mean, I also am totally baffled by exactly the question you asked, David, because it is at odds with what I thought establishment Republicans thought. Like, chief justice Roberts is no Maga guy. Right. And also, you know, I. Until this week, I thought of Roberts as someone who kind of carefully marshaled the political and social capital of the Supreme Court, very aware that the court's public approval rating is at a record low.

And every term has basically ended with, like, some headline grabbing win for liberals that seem to balance out a lot of conservative rulings. That is just not the case this term. He has expended a huge amount of the court's capital on this decision, which totally empowers future presidents, including perhaps Trump, and totally helps Trump out in this, like, way that he just did not need to go this far. I mean, if the court had landed where Justice Barrett's concurrence was, it would feel like more of a kind of middle of the road. I mean, I think that there would still be a vociferous dissent, but it wouldn't be filled with this level of urgent alarm.

And the only explanation I can really come up with is to go back to Roberts time in the Reagan Justice Department and these ideas of unitary executive theory where the president is the whole executive branch, that everything has to come back through him. That's one way of trying to square the result in this case with all the total disemboweling of federal agencies that we're about to talk about with regard to overturning Chevron, although it's the opposite. Isn'T the opposite the constraints on the admin, on the government? It's like we have a president who's a king, but isn't actually allowed to do anything. A government that isn't allowed to do anything.

Yeah, you're right. That squaring doesn't work at all. Okay, good point. By the way, wouldn't Roberts embrace that definition, David, which is in the spheres where the president is empowered, he should have absolute immunity, and then the executive, in other ways where the power isn't so clear, should be weakened, and that should go back to Congress, or in the case of chevron, as we'll discuss it, goes to the courts, too. Yes, you're both right.

A
I mean, I guess that would be one way to kind of try to put a theological theoretical bow around this. Can I go back to the presumptive immunity question? Two things, Emily. Presumptive immunity seems to be where the whole game is here, because that seems to be where the judgment call is. In other words, as you said on the Justice Department stuff, there's no, I mean, it's part of the executive branch.

They've said it's absolute immunity. There's no, like, debating that. But in these areas of overlap with Congress, presumably both Judge Chitkin and Smith can try to find their way to claiming that he's not. And then it goes back up to the Supreme Court. Right.

I mean, isn't that where we should really look for where the fine line gets drawn here on how sweeping this ruling is? Yeah, I mean, the Supreme Court has, like, married itself to this case because, I mean, there is also the DC circuit, the federal appellate court, but there's going to be a lot of back and forth. Now, of course, the Supreme Court can just refuse to hear various appeals along the way if it thinks the lower court rulings are fine. I mean, yes, John, there is going to be action on this question of the Pence related pressuring, Pence and that presumptive immunity zone. Then there's going to be a lot of action about whether all the interfering with state elections is unofficial acts and that, I mean, Barrett said, like, those are unofficial acts.

D
She was trying to make it clear, but it was quite telling that Roberts did not do that. And in fact, he sort of saved Trump's lawyer at one point by picking up a part of the transcript in which Trump's lawyer seemed to kind of backtrack on some concessions he made. It just, it's kind of wild as a document that just seems, seems to like favor Trump's interpretations at every turn. And also where Robert says to the dissenting minority, as for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the court actually does today. So at that point, he seems to, I mean, I guess at that point, you would, you would again have to assume that Roberts is, has got his head in 3034.

A
In other words, hey, you know what? In your neighborhood, your neighborhood watch on the 6 January, saw that across the street, there were all these people attacking the Capitol. Turns out that things can happen in this moment we're in right now, that reward people who have imagination about chilling things that could happen. It just seems completely disconnected from the reality we live in. But secondly, it's this inside game part, which is he's saying basically the dissenters are, you know, are jumping its shadows, but the ruling itself imagines the possible chilling effect of all kinds of behavior and protects the president from that.

So on one hand, the ruling has a hair trigger on any chilling effect. But then when the president, on the president, anything that might chill, nah, we're not going to allow it. But then when the dissenters say, hey, you know, if you think this through, this might happen, he's like, no, no, you're totally going overboard. That's outrageous. I mean, one of the things that sotomayor says in her dissent that's really important is that the court has truly altered the relationship between the american people and the president.

D
I mean, if you think about Watergate and like, the facts of Watergate, what was happening in Watergate was that there's a prosecution of all these Nixon AIDS going on. And in the course of that prosecution, the special prosecutor asked to get the tapes in which Nixon was supposed to be discussing the crimes. Nixon refused to turn them over based on an idea of executive privilege, not some wild immunity claim. And the court said no. The Supreme Court unanimously said, you have to turn over these tapes.

And that is foundational to our idea of rule of law in the modern era and why the president is not above the law. And this case, this opinion, just goes completely in the opposite direction. They turned over the tapes on the theory that the crime at issue was more important than the abstract notions about the presidency. Exactly. One thing I do wonder about, Emily, is when we get to the evidentiary part of deciding what's official and unofficial, that does seem like a moment where the government can freight into the public record a lot of what they've found to, and that as a political matter, will, I mean, this election has always been that people are going to have to decide whether they want to give four more years to somebody who's behaved in the way that Donald Trump has.

A
But they're going to have a whole bunch of more information as a result of this question that Chutkins got to figure out. Right? Yes, assuming all of that happens before the election, but, yes, I mean, there could be a lot of motions filed to try to delay. And we know how much former President Trump has benefited from delayed. Do you want to hear more from us after this episode?

B
Man, Emily's on fire. So I bet you do. So stick around for our bonus segment today, we're going to be talking about summer, how to have a good one at a bad time. Summer started. It has arrived.

It's arrived. But for those of us who've been thinking about politics and sort of spending time on politics, it's been a kind of tense period. And we're going to try to, to figure out how to loosen the shoulders, how to take out the knots in the back and go wild. Go have a wild beach party. So we're going to tell you how to enjoy summer.

But that's only for Slate plus members. So if you are a Slate plus member, thank you. If you're not a Slate plus member, please sign up. Go to slate.com gabfestplus and sign up today. You get so many things, as well as bonus segments from us, bonus episodes of other shows.

You don't hit the paywall on the slate site. Again, slate.com gabfestplus and become a member today. Lucky land casino asking people, what's the weirdest place you've gotten lucky. Lucky in line at the deli, I guess. Haha.

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In my dentist's office. More than once, actually. Do I have to say? Yes, you do. In the car before my kids PTA meeting.

A
Really? Yes. Excuse me. What's the weirdest place you've gotten lucky? I never win in town.

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Void replicated by law. 18 plus terms and conditions apply. See website for details. In 1978, gay people in California faced a dire threat. Proposition six, the Briggs initiative.

A
The teaching profession is riddled with the homosexual element. John Briggs is going to fire every gay and lesbian school teacher in the state of California. I'm Christina Catarrucci. This season on slow burn, we'll explore how a nationwide backlash against gays and lesbians led to a massive showdown in California. This was tens of thousands of pissed off gay guys and lesbians roaring down Market street.

C
With so much at stake, young people became activists. We've got to fight. We can't let this happen in California. And activists became leaders. My name is Harvey Milk, and I'm.

D
Here to recruit you. Slow burn, season nine. Gaze against Briggs. Listen to the whole season now. Wherever you get your podcasts so publicly, at least the Wyatt wagons are circled.

B
So far is not. I don't know. Oh, John is saying not encircled, I guess. When I wrote myself this note yesterday, the wagons are moving around. They're uncircling.

D
There are some breaks in the circle, David. When I wrote it, the wagons are circling. When I wrote this note to myself yesterday, last night or yesterday afternoon, I guess there is not much of a hint from Biden's inner circle or from top democrats that they are considering his withdrawal from the race. But even as we're taping on Wednesday morning, by the way, we're taping on Wednesday because we're not going to tape, even though you're listening on Thursday or Friday, we're taping on Wednesday. There may be wagons uncircling.

B
Well, let's just start there. So there's been this almost universal cry from the media, from Biden's sympathetic media. I would note that he withdraws the candidate because he is too handicapped by age to credibly campaign and beat Trump. So the campaign in the few days after the debate sent him out to North Carolina to give a feisty teleprompter speech, which he did adequately. But the message, the concerns have not stopped.

The whispers have not stopped. There was a story in the Times on Wednesday about how, at least from the inner circle, reporting on how Biden's lapses have become more frequent, how inattentive he's become, how he's having a harder time concentrating and paying attention to things. So that was clearly leaked. Sometimes, not often, just to be clear. Well, it's true of all of them.

D
Often lucid. That's going to be on my tombstone. Often lucid. Occasionally lucid. Anyway.

B
So, John, start where you started, which is with the wagons. On Tuesday night, I had Susan Page at the USA Today on the show, because Susan's been around watching a long time, has seen a lot of these kinds of moments. And also she's one of Pelosi's biographers. And Pelosi was on MSNBC and when asked about the debate performance, said, I think it's a legitimate question to say, is this an episode or is this a condition? When people ask that question, it's completely legitimate.

A
And then she hastened in to say of both candidates, and as Susan Page said, so I said to Susan, basically, like, you know, Pelosi speak, what does that mean? And she said, that's as serious a thing as Nancy Pelosi could say about this. In other words, Pelosi's not going to call for Biden to leave the race, but this, I mean, is it a condition? Here you have the chief wagon person who should be chief, circling the wagons is saying, yeah, it's an open question whether it's condition, then to the kind of extraordinarily overheated response from some Democrats who are saying, anyone who tries to even think through this question of whether Biden and his performance suggests something about the next four years is like a closet Trump supporter, Pelosi is saying, is saying it's a completely legitimate question to ask of both candidates. So she's saying that this is as serious as whatever questions you may raise about Donald Trump, I mean, that isn't now.

And we also have things like Sheldon Whitehouse, Senator from Rhode island, saying, you know, that he was horrified by the debate. You have Lloyd Doggett of Texas calling for Biden to drop out. You have a lot of behind the scenes CB's getting, its reporters, getting various notes from democratic lawmakers on the Hill saying, you can't name me, but please convey that everybody is panicked and terrified, both about Biden's chances and also what it does to down ballot races if you're a Democrat in a tough race. Now, every question from the Republican is not just whether Biden is up for four more years, but whether you are complicit in a cover up of whether the president of the United States is fit or not. And these articles from the Times and Politico who are hastening to catch up with what they, the criticism they face, which is, hey, wait a minute.

You had this reporting over the last two years that maybe this was going on. Why weren't you saying it? Why weren't you reporting it? So if this is going to pass, we are not at the moment. It's passing.

It's passing. It's still, it's still growing. And there's the question of the polls. Right? I mean, some of the polls have been fine for Biden, but some private polling leaked this week from open Labs, which is like a democratically connected polling firm.

D
And it showed for the first time, I think, that some of the potential other candidates, Harris, Gretchen Whitmer, Pete Buttigieg, are out polling Biden and showing wins against Trump where Biden loses. So that also seems significant. And there are probably going to be more polls by the time people listen to this. The public polling has not shown a crater in a Biden support. It simply shows a sort of status quo, which is that he is losing significantly.

Right. And the swing state polling that open labs did showed him falling. So it suggested that in the places where maybe people have reason to pay more attention, they're more affected. Betting markets are not, they're not polls. They're not anything.

B
But they are the, I mean, in the betting markets, Biden is now at ten to 20% to win the election. Ten to 20. He's not at 40% to win the election. He's not at 48%. Ten to 20, I mean, that's requiring some sort of extreme improvement.

A
You had a person who had congestive heart failure, and then they broke a hip. And so the argument that the hip is healing has to be evaluated on its own terminal. But he still has congestive heart failure. I mean, there were still all the problems that this debate was supposed to fix, all the problems that are super hard to fix, even for the most wildly energetic candidate who has the full, unwavering support of his party, which he doesn't. Just one poll number, CB's news poll.

Does Biden have the mental and cognitive health to serve as president? In June 9, 71% of Democrats said that after the debate. 59% of Democrats said that. USA Today poll 41% of Democrats say they want Biden replaced at the top of the ticket after the debate. What do you make of the fact that it's taken the campaign a while to do the kind of like real questions interview that might make people see this differently?

D
So I think they scheduled an interview with George Stephanopoulos, but not until Friday. I just, that also makes me think like either they don't. How can they possibly not understand the urgency of that? I don't get that. Or do they not have confidence that he can do it?

A
I don't know. I guess they're trying to value, I guess one thing, it would be to evaluate how bad the bleeding was and how much they really need to do that because doing high stakes interviews is tough, even for a president who's 30 years younger. So the idea that lots of these kinds of public press conferences, hard hitting interviews are going to solve this, a is not proved and b, puts the president in a really tough situation for any president. I understand the logistics of what it takes once Biden has withdrawn, for the Democrats to get a new candidate on the ticket. I do that part.

B
I think it's pretty clear. I think what I am actually less clear on is how, and this is all criminal analogy, John. How do you get Biden to withdraw? Who does it? Where are the pressure points for him?

Where he might decide he can't continue or that he's compelled to not continue? I guess. I mean, it would have to come from, or it would have to be something that he would have to accept and he and his wife, based on what the reporting, which I don't have firsthand, that his family is very much behind him. So it would have to be overwhelming from the outside. There doesn't seem to be anybody on the inside who is saying, well, let's think about this and weigh it.

A
So I don't know. I mean, I think what Pelosi did would be in the mix. You could imagine President Obama making a call if it starts to get completely out of control. The number of Democrats who are out loud talking. It has now become a talking point among the high profile Democrats that this conversation that's going on is a part of the health of the Democratic Party, which I totally agree with.

And the fact that that's the case suggests that they're expecting a conversation to keep going and get bigger. And so the way it would work, presumably, is it becomes so loud that they just have to accept reality. But by they, I mean the president and his wife. Emily, you sent around the David from piece from the Atlantic, which was sort of skeptical, which is saying that Democrats could put themselves in a worse position if they stray from Biden, that Biden is somehow known. He's respected.

B
He has a profile. And if you take a flyer on somebody who doesn't have this reputation and who could be defined rapidly by a free spending republican party, that you risk being the party of chaos and confusion and fracture. I mean, I think that's the wrong way to look at it. But why were you at least momentarily interested in that? Well, I want to hear your response, but I thought it was a good reminder that all of us over informed people probably discount the ramp up to replacing Biden.

D
That's going to take place among normal people who don't pay hyper attention to politics because a lot of the potential names are not well known at all. And the chances that that raft of candidates will have to make their case publicly, it's going to happen in a matter of weeks. It's not clear what the format would be. If there's a debate, for example, who qualifies? How do they decide who's on that stage?

And then, of course, there's this question of Kamala Harris. She is the obvious person. She's the vice president. She's already on the ticket. Yet the delegates will be unbound once if Biden withdrew, they would be released.

They are free to vote however they want. There are around 4000 of them. And so do the terms of the withdrawal create the conditions for a race among several people who then have some chance to prove themselves? Do they get enough attention? Is it interesting and exciting enough that people in the democratic party and, you know, other people, obviously everyone who's going to get to vote for them has a sense of who these people are and their merits?

And then can all of that take place without the party eating itself alive? Those are like really big questions, right? There's a sort of positive spin of like it'll be energetic, maybe it'll be chaotic, but it'll land in a good place. And then there's the set of, I think, legitimate fears. Like, actually, it's going to been totally out of control, and the public is going to end up with someone who they're not familiar with and don't really trust.

A
So one way to think about this is what is the worst of compare the two worst outcomes, and then which of those two does that give you a decision on which way to go? So the worst convention outcome, Emily, you've already stretched, you've already outlined pretty well. And I think no one should underestimate how ugly it will be, because that's the nature of the Democratic Party. As Will Rogers said, I'm not a member of an organized party. I'm a Democrat.

So this would be quite ugly. And the focusing quality of Donald Trump and the threat from Donald Trump as Democrats see it wouldn't matter. I don't think. I mean, you already see it not mattering in this conversation that's happening right now, where people are having this very weird response, which is to say that anyone who questions whether Biden is the person to continue in the race means that a person is unfocused on Donald Trump. The reason that a lot of people are raising the issue of Biden's, um, qualities is because they're overly focused on Trump and they don't think he can beat him.

But the question is, imagine all the ugliness at a convention. But also imagine a late September, another moment like the debate. There is no response. Like, there already may be no possible spin from the White House to overcome the 90 minutes, but there really won't be late in the game. And it's not just about whether Biden can handle four more years, which is the central question, as it should be.

But then it becomes further proof that the entire democratic party is engaged in a conspiracy to tell people things that they can see with their own eyes. And that that kind of, to use a popular word during the Trump years, gaslighting makes Democrats no different than Donald Trump. And it connects with the gaslighting argument that Republicans make on inflation and the border, which is that Democrats said things were better than they were and they weren't. And so now you have a public piece of evidence on a very understandable, visible thing in front of them that connects with a line of argumentation made by Republicans that goes all the way through both policy and the theatrics of politics. That seems to me to be a pretty ugly outcome when youre measuring what are the two ugliest outcomes, and it doesnt seem beyond the realm of the possible.

In fact, it seems quite possible. I mean, you could also imagine if Republicans take the House or Senate investigative hearings about that question. Yeah, exactly. I mean, I have a slightly, although, I mean, obviously Donald Trump, there is no line he will not cross. But I wonder whether, if they come to power, whether investigations tend to kind of fizzle in the end, the way they have on impeachment and all the other things they've already tried to investigate.

I mean, I know they're promising that now and it gets the base ginned up, but I just wondered in the end, on the other hand, you could imagine, because being effective at government might be difficult for Trump, the rallying benefit of lots of investigations might benefit him in a way that I haven't thought through enough. Well, and he's vindictive and aggrieved to a high degree, shall we say? Yes, exactly. Jon, if the dam breaks around, Biden withdrawing will then happen pretty quickly, do you think? I, there are some logistical parts that can't happen quickly.

The question then is whether it's what happens in temporal time and what happens in political time. So it might take a long time to get this all worked out and figure out who the right person is. But if the Democrats were smart, they would roll out somebody during the interim period of political time to grab the stage and say to the audience, we have some technical difficulties. While we're waiting, let me reset what this debate and this race is about, that if you, and then just basically make the, I mean, I'm basically the only person I can think of who's alive, who could make this case is Obama. But reset the debate, which is to say, if you've been wondering what this campaign is about, here's what it's about.

It's about a person who lacks the character for the office. And that isn't just some abstract notion. What character means is the person in the office is thinking about the entire country all the time. And so who in the office do you think is going to be caring about you and the people you care about in the office to determine whether your kids are going to have a better life, whether you're going to be able to get elder care or time off from work in this cutthroat economic environment we've got whether your water's going to be clean, whether those least among us who the politicians don't normally think about is going to have somebody in there thinking about them, or is there going to be somebody in the Oval Office who has shown repeatedly in their life that when it comes to caring about anyone else, even in the room, that he will put his own interests above them. That's what the stakes of this election are about.

And then go on and whatever else you want to say. But one of the disadvantages with having Biden, whether you think he's mentally diminished or not, is that he's not a very good arguer for the case. He asserts things he says Donald Trump is without character, but he doesn't drive that home in the way that Bill Clinton used to, which is to, like, burrow it into the marrow of the lives of the people he was talking to and why. Character isn't just some abstract thing crucial in the job, though it may be because it's a job of high stakes surprises in which you act alone. And only if you have character can you handle those kinds of moments.

And as the Supreme Court has shown us, presidents have enormous power, and only if you have character can you be a good steward of that power. Sure, those things, but those are abstract. There are ways in which a lack of character and a lack of empathy for people other than you and a lack of interest in long term consequences of what you do. Two of the defining parts of character are central to this race, and having somebody who can articulate that out loud has been a problem the Democrats have had. So while they figure out who their candidate's going to be, you can imagine somebody charismatic coming out and making that case during the interim and also trying to bait Donald Trump, which is important for Democrats.

B
Corner post loper bright, relentless chevron. Tell us about these funny words, Emily. What do they mean? They mean a disempowered regulatory state. They mean lots of chances to wipe away pesky regulations and rules that big corporations don't like.

D
Loperbright was the court's decision overturning Chevron, this 1984 Justice Stevens decision, which set rules for what happens when statutory language is unclear or ambiguous. What Chevron said is that if a statute doesn't seem clear, that an agency interprets it and courts defer to that agency interpretation. And so that gave a lot of space for the career professionals in the federal agencies to figure things out. Based on their expertise. They are staffed up to do this.

And then judges who don't have any subject matter expertise and do not have big staffs would basically defer to their interpretation unless it was unreasonable. That's gone. The court's basis for getting rid of it is the Administrative Procedures act, which Congress passed in 1946 to try to give some standards for adjudication in this then vastly expanding post new deal realm of federal agencies. And it is part of a suite of opinions this term that takes away power from the agencies. Corner post is another one.

In corner post, what was happening was there was a regulation about the fees for swiping debit cards, I think, and it was from 2011. And the plaintiffs, this company that didn't like the fee splitting, challenged it in 2021, there was a six year statute of limitations. So it seemed like, well, this law has been on the books for ten years. Sorry, this lawsuit's too late. Oh, no.

From now on, the statute begins Tollingenhe when the company is affected by the regulation, not when the regulation went on the books. And so that means that you can have a kind of endless parade of challenges of regulations. Whenever a company decides they don't like something, they can still get into court. And there were other ones. I mean, we also have this opinion about how the SEC can no longer use administrative law judges to try security fraudsters.

Now they all have a right to go into federal court. We're just having this bonanza of pro corporate, anti agency opinions from the Supreme Court. I mean, this is the project of the, of conservatives over the last 50 years, and we've talked about what is it that they've been up to? And of course, Roe was part of it. But more than anything else, the effort that's been happening over the past 50 years is an effort to undermine the power of government vis a vis versus the private sector, versus corporate interests and private interest, individual interests.

B
And it has been fantastically successful, successful beyond probably the wildest dreams even of the Koch brothers and the others who have been the funders and architects of it. And it's been successful in part because it is much less politically sexy than abortion. And so it hasn't caused this sort of backlash against the court in the same way that these other political issues have caused backlash. But the effect has been to degrade government service, to degrade the authority of the federal government, to diminish people's faith in government. So the Supreme Court is part of it.

But there's this other effort that Congress has been making in how they treat federal employees and how they treat federal work. It's been incredibly successful, and it's going to bite us in the ass one day. One day. And we saw this during the pandemic. Even when you undermine people's faith in government, or belief that government can do the job, or belief in the expertise of the people who serve us in the public and you make that work seem sluggish and pointless and that it's blockading the industrious work of real people.

And you call it the administrative state rather than these are the people who are ensuring that your water isn't polluted. They're the people ensuring that the drugs you get are not contaminated and do the things that are alleged. They're the people who are making sure your financial institution isn't defrauding you, isn't costing you unreasonable amounts of money. And at every turn, the court has weakened the strength of that government. The court and Congress have weakened the strength of that government and empowered usually extremely rich corporations and extremely rich individuals at their expense.

And Chevron is like people say, oh, Chevron was already a dead letter. It was already a small. It wasn't even. The Supreme Court wasn't even taking it seriously. It's not a big deal.

But it's, as you say, Emily, it's part of this huge artillery barrage, this kind of like battle of the Somme level artillery barrage against a government that the court and Congress has been engaged with. Yeah, I mean, an important part of the barrage that we've talked about previously is called the major questions doctrine. Another decision the Supreme Court has made saying that when Congress addresses what the court decides is a major question. It has to be very specific in how it talks about that in writing a law. That's another important piece of this puzzle.

D
And why is it the most important project? It's just like, follow the money. This is how corporations make more money and how the public gets less served by the government. It's really pretty straightforward, and it does affect all these different domains. I think you're also right.

You can't sum it up in one word like the end of row or abortion rights, and the impacts are going to kind of trickle out over time. I mean, people say Chevron was kind of overrated in importance. On the other hand, it's determined 18,000 court rulings since 1984. Now, it's possible that a lot of judges will continue to defer to agency judgments because they're not going to want to wade in on their own and do some super difficult calculus without expertise, but some will not. And those judges are probably going to be predominantly on the right, and they're going to be striking down more regulations.

A
Emily, on the question of the specifics of the case versus the larger ruling for the ages view, which we talked about with respect to immunity, how does that play out here? In other words, it did seem that the National Marine Fisheries Service had stuck this fine on people that we, obviously, no one would say that every decision made by the bureaucracy is wonderful and that it doesn't crush people because of course it does. Do you think the facts here were more weighed in a way that they weren't with respect to Trump? And there are those cases where the facts are really great for those who want to get rid of chevron. In the case of immunity, the facts were not good, it shouldn't seem for anybody who wants to give President broad immunity, but the court basically leapt over those facts.

How did the court deal with the facts in this case? Well, one thing about the costs that you're talking about, John, is that the fishery service had actually rescinded this regulation. They weren't actually anymore charging people. And also this lawsuit was kind of paid for by the Koch brothers. So you had these sympathetic herring fishers who were officially the plaintiffs, but behind them stand the like forces of rapacious capitalism.

D
And I think it is telling that this particular regulation was rescinded, actually, and. Also, actually, just to enter it one more time, John, you referred to it using the language that I think conservatives would love to refer to it as a fine. They weren't being fined. It wasn't a fine. They hadn't done anything wrong to be fined.

B
It was a charge that was being done so that the government could monitor what was going on in these fisheries, but they weren't. To present as a fine is in itself to buy into this idea. Oh, here's this punitive government. No, the government has a service it's trying to do to protect a fishery which is a public good, which is a good for all of us to protect. Right.

A
But what if you don't want that service? Is every service that the government forces you to do good? All I'm saying is I object to your use of the word fine here. That fine is not fine implies like, oh, the government has found you to have done something wrong, and it's this oppressive government doing something like that. That's not at all what was happening in this case.

D
I mean, John, I think one way to think about the point you're making is like, bureaucracy sometimes sucks. We've all experienced that from the government. Right? They absolutely suck. Absolutely.

Like, I am 100% sympathetic to that. I think the question is whether this new world we are going to live in is going to actually be better or worse with that regard. Right. What is now going to happen is there's going to supposedly be pressure on Congress to write clear legislation longer, lengthier. Right.

And if that does happen, Congress is also not staffed to, you know, figure out, like, what particle level of the ozone, whatever. And so then you're going to have corporate lobbyists probably having more input into those laws, and then you're going to have judges as opposed to agency experts. I mean, you just got to ask yourself, like, are those the hands we're better off in? Can I also make one point about the judges? The sort of hypocrisy of this court, saying that government bureaucracy shouldn't make these decisions because judges, one of the premises of judgedom is it's a priesthood.

B
We are the experts. They are the experts in deciding. We are the experts in law because we sit and consider these things. We understand the law at a level that you, there was a reason we have judges and nothing random people pulled off the street making decisions about law. It's because you have training, you have expertise, you can do it.

And that's what judges do. And the irony of them then telling government agencies, which have exactly that same expertise, but for the safety of drugs, but it's for the pricing of health services, but telling them, no, no, no, your expertise has no value here. We who are experts in law are much better positioned to decide this than you. It's just very rich and unhappy making for me. And we're having this discussion in a week in which the Supreme Court had to correct multiple times an opinion by Justice Gorsuch in which he referred to nitrogen oxide as nitrous oxide.

D
In other words, he mixed up a major pollutant with laughing gas because expertise. So before we. Lee, this has been a momentous court term. Emily, any final conclusive thoughts on the term that restored the monarchy and ended chevron? Yeah, I was trying to think about exactly how it is that the court has positioned itself this term.

And so I made a list of winners and losers in front of the court in some of the major cases. Here are winners. Donald Trump. Donald Trump January 6 defendants, deregulators, polluting states, securities fraudsters, Koch funded deregulators, companies suing agencies, politicians who take bribes, cities without any services for homeless people, buyers and sellers of bump stock guns, Starbucks and the National Rifle association. Okay, here are some losers.

The Biden administration, the Biden administration, the EPA and downwind states getting polluted, the SEC, the National Marine Fisheries Service, the Federal Reserve Board, homeless people, and people who might like to be protected from bump stock guns, workers at Starbucks, the state of New York, the Colorado secretary of state. It's just a list of winners that, like, yeah, I don't know. It's not that every single one of those decisions can't be justified or doesn't have some reasonable basis for it, but you are talking about the strong over the week, again and again. Let's go to cocktail chatter. When you're sitting watching a firework explode delightfully above you with a cold, frosty one in your hand, what are you going to be chattering about, Emily?

My chatter this week is about an act of civic heroism by my husband. Okay, so we live near a park, East Rock park in New Haven, where there are lots of people picnicking, barbecuing, and lots of dogs. And maybe like six weeks ago, a raccoon died in this park somewhere. And since then, as you can imagine, many dogs have been extremely interested in the remains of this raccoon, which stayed on the ground, did not get cleaned up for lo these many weeks as the raccoon disgustingly decayed. Then more recently, a squirrel died on the opposite side of the park.

And so dog owners, and I am sure, like parents of children, have been trying to steer clear of these patches of horrible ground in the park, and yet it's hard to keep dogs away from animal remains. So Paul, my husband, finally went out with the shovel and bagged the completely disgusting leftover pieces of dead animal. A great act. He just went and did it on his own. He tied up our dog so she would not bathe herself in the animal remains as he was doing this.

And I'm just very grateful, and I feel like these acts of unsung heroism deserve to be wildly applauded. He's no RFK junior. Exactly. John, what's your chatter? My chatteregh is just about the.

A
I don't know a great deal about basketball, but I just kind of. And maybe I've got all the wrong reasons here for doing this, but LeBron James and his son Bronny are going to now be the first father son pair to play in the NBA at the same time. That's so awesome as a parent, to be able to do the thing that you love and that gives you meaning and that gives so many other people meaning together with your child in the team context, which is totally different than lots of other things that just. I don't know, it just seems a source for personal joy for them, which, of course, one wishes for anybody else, but also perhaps even collective joy in a new way for both those people who love basketball, but also maybe even those people who don't know so much about it, among whom I count myself. Yeah, I kind of love the idea of passing it along and then also that the child would feel welcome in this universe where the parent was such a mega star.

D
There's just something, I don't know, healthy and inspiring about that. Yes. And, of course, we could trundle in the cartloads of ways that it could be unhealthy or sour or bad or whatever, but we're not going to do that. We're not going to do that because that's what the rest of the show is about. Right.

I mean, obviously, there are advantages. Like, we all get that, too, but the idea of also surmounting all the psychological hurdles that you have to think about. I mean. Yeah, I don't know. It goes both ways.

B
My chatter. Well, two chatters, really. One, there's a really great episode that city cast did all across the country. So, you know, we have these 13 daily local podcasts, and for July 4, we decided to get all of our hosts together in a room with me, and we talked about the thing that's happening in Boise or Houston or Pittsburgh or Chicago that will affect the rest of the country in the year to come. So we hit on these 13 stories that are emerging in cities that may be relevant for where you live.

And it's just a fantastic episode because we talked about the disappearance of Ob gyns from Boise and from Idaho. We talked about Tesla's the failed Tesla tunnels in Las Vegas. We talked about the failure to decriminalize drugs in Portland and the impact there. We talked about the creation of an Africatown, kind of analogous to Koreatown and Chinatown in Philadelphia, the first ethnic neighborhood called an Africatown. It's just a really fun episode.

So if you're a city cast listener, we're going to put it in every city. But you'll get a chance to hear from all of our hosts about the thing that may matter for your city in the year to come. It's a way we can kind of be, because we're all over the country, we can be a kind of early warning system for issues that are bubbling up at the local level. My other chatter is about a wonderful story by Ross Anderson, who's just this brilliant reporter for the Atlantic. It's called the search for America's Atlantis.

And it's about. It's not really about the search for America's Atlantis. It's about the question of whether Americans, people, first arrived in the Americas by land or by sea. And the strong hypothesis for many generations has been that they arrived by land. And it's called the Clovis Clovis first hypothesis, which is that around 13, 13,500 years ago, people started making overland trek.

And now there are a lot of scientists who actually think no, there were people who made their way along the coast, coming down from Alaska and across where the Bering Strait is and down the west coast of Canada, Alaska and the United States more than 1000 years earlier. A lot of evidence for it. There's some evidence, including some human feces in an organ cave and some tools in Chile. And it's just a great story about a fight over what peoples were in the Americas first. And Ross, as always, does a great job illustrating it.

Listeners, you send us great chatters all the time. Please keep them coming. Please email them to us at gabfest@slate.com dot. And our listener chatter this week comes from Jen in Denver. Hi, Gabfest.

C
This is Jen in Denver, Colorado, and my chatter is a story from NBC. Back in May, a group of scammers tried to steal Graceland, Elvis Presley's former estate. They claimed that Lisa Presley, Elvis daughter, owed them millions of dollars. When she died, a judge halted the fraudulent foreclosure and the scammers seemingly confused. But reporters from NBC continued to dig.

They followed a trail of paperwork and fake social media accounts to a grandmother in Branson, Missouri. This story involves bullying small businesses, romance scams, a Ponzi scheme, the Grammys and fraud. It's a strange end to a strange story, and I hope you enjoy.

B
That's our show for today. The get fest is produced by Shana Roth. Our researcher is Julie Hughen. Our theme music is by they might be giants. Ben Richmond, the senior director for podcast operations.

Alicia Montgomery is the vp of audio for Slate. Emily Bazelon and John Dickerson, I'm David Plotz. Thanks for listening. Talk to you next week.

Hi, Slate plus, how are you?

Summer is now full swing July 4. Marks, of course, I guess the centrality of summer or the marks something, it's something having to do with summer. But we're clearly, clearly now in the midst of summer. And one of the things I've been hearing from some people I love and admire is, man, this summer feels kind of grim. Presidential election seasons are not fun these days.

Days. The Supreme Court term has been pretty dark for some people, and the world is hotter than ever. You had temperatures in New Delhi that were the highest kind of ever really recorded in a major urban center. It's an intolerable place to live, the world. But we don't have anywhere else to live so how can one find a joy and solace and comfort in the summer where you may feel a sense of anxiety and dread?

D
Well, I was going to say that I think it's really important to spend time outside, and then your climate change point made me feel a little sheepish about that. But if you can go somewhere where it's not unpleasantly hot, maybe it's at night, maybe it means traveling somewhere, if you can swing that. I just feel like nature is the most healing thing we have right now. It's the thing that takes me out of myself. And so I'm just really looking forward to spending some time that's just like outside and obviously with friends, if you can do it.

Picnics, barbecue. 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.

B
If you want to hear the whole conversation, go to slate.com gabfestplus to become a member today.

Trump Is So Immune

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1: Introduction to the Episode

2: Analysis of Supreme Court Decision

3: Historical Context and Legal Implications

4: Potential Future Impacts

5: Concluding Thoughts

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