Presidential Immunity: The Hubris is Nuclear

Topics discussed

  • The Supreme Court Rules on Trump v. United States

  • The State of President Biden’s Re-Election Bid

*This episode is explicit.

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SCOTUS Rules on Presidential Immunity

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TRANSCRIPT

Sarah [00:00:07] This is Sarah Stewart Holland.  

Beth This is Beth Silvers.  

Sarah You're listening to Pantsuit Politics.  

Beth Where we take a different approach to the news.  

[00:00:14] Music Interlude.  

Sarah [00:00:29] Thank you for joining us today. This was supposed to be the first day of our summer break. The people in power had other plans. We are recording on the morning of Monday, July 1st. We are still reeling from Joe Biden's disastrous debate performance. But then we got the Supreme Court's decision in the immunity case. So, we're talking about both today.  

Beth [00:00:50] Supreme court's been busy here at the end of its term. And we know that many of you have questions about those cases. I am trying to cover them as quickly as I can on More to Say, which is one of our premium shows. Everything we do here is powered by listener support. That's why we're able to show up and be really honest, and sometimes say things that are controversial and unpopular and very vulnerable because listeners are the people who power our show. So, if you would like to hear about the decision overturning the Chevron case or the Supreme Court's consideration of homelessness ordinances in Grants Pass, Oregon, or the Fisher case, which relates to January 6th as well, all of that is up on more to say.  

[00:01:30] The information to join us on our premium channels in the show notes. Thank you so much to everyone who does that so generously, and I hope that learning more about the court adds to our understanding when landmark cases like this one are handed down.  

Sarah [00:01:46] Up next, the Supreme Court.  

[00:01:48] Music Interlude.  

[00:01:55] The Supreme Court has been releasing decision after decision after decision, waiting until the very last day to release this decision regarding presidential immunity. As a refresher because Donald Trump is caught up in so many legal challenges, this is specifically in regards to Jack Smith's prosecution of Donald Trump for his behavior on January 6th. For those of you who followed along in the January 6th hearing, so much of this is familiar to you. This is the pressuring of Justice Department officials to investigate what everyone could see was various election fraud accusations. This is the pressuring of Mike pence to violate his duty while certifying the vote from the Electoral College.  

[00:02:59] This is his speeches at the rally on January 6th and accusations of a dereliction of duty that he stood by as the United States Capitol was attacked by a mob of his supporters in an attempt to overthrow the 2020 election. So that's what we're talking about today. That's what went before the Supreme Court with the government saying he cannot have immunity for all of these behaviors. And the Trump attorneys arguing these were official acts and he deserves absolute immunity.  

Beth [00:03:46] And in the lower courts, so the district court first heard this argument, and then the appellate court for the D.C. circuit heard it. And both concluded that while presidents have immunity for civil liability in a lot of contexts related to official acts, criminal liability is a different matter altogether. One of the things that Trump has argued is that if a president is criminally liable for things he does while in office, it will have a chilling effect. The president will not be able to president. He won't be able to vigorously do what he thinks is right on behalf of the country, because he'll be worried that he'll be prosecuted later on.  

[00:04:26] And the district court especially said, that's probably good. We probably want some things making the president worry about how he does his very powerful job. The Supreme Court majority sees that differently. So, we have a majority opinion from Chief Justice Roberts, joined by all the conservative justices. Now, I want to talk in a second about Amy Coney Barrett, who sees this a little differently than her colleagues. But I had to draw a chart following this opinion, Sarah, because it's so confusing. The upshot is that the Supreme Court absolutely intended to slow this litigation all the way down.  

Sarah [00:05:02] And that sounds so reasonable, doesn't it? But we should carefully consider this historical prosecution. But my continued frustration with the Supreme Court-- I don't even like to say the Supreme Court. The six members of the Supreme Court, is they want to be judged, analyzed, considered absent of all reality on the ground. They are putting themselves in more and more of a godlike position. Truly, they cannot be questioned. They don't need to depend on even previous Supreme Court Justices decisions. They are infallible. They are unquestionably right. And so, this idea of like, well, we need to slow down. We need to be so careful sounds great until you consider that Donald Trump is running for president.  

[00:05:53] And the reason that people feel a certain sense of urgency is because we know that if he wins, he will instruct the Justice Department to cease all prosecution and investigation. So, of course, the lower courts feel a sense of urgency, as should the Supreme Court, but they do not. Because it's important to remember as well, in a sense of reality, fallibility, basic humility that one member of the Supreme Court's spouse was involved in this insurrection. Ginni Thomas. And one member spouse-- and I don't think it's really just about the spouse--hung flags above his home, indicating a sympathy for the January 6th insurrectionists. But we're supposed to forget all that, and we're supposed to just think of them as these objectives on high, infallible justices. And it is ludicrous.  

Beth [00:06:53] Justice Kagan, in dissent, in another case this term, said that you could call this majority's opinion hubris squared, because there are so many ways in which they are long on self-confidence and short on self-reflection or knowledge. And I think that's a fair characterization of the majority of the court right now. So, they want the lower courts to go back through the indictment and sort out of the conduct alleged-- all the things that Sarah mentioned at the beginning-- what is an official act and what is an unofficial act? And they say that's kind of hard, but let us give you some guidance. And here is to me the most concerning part of this opinion long term. They say that the president contacting and pressuring the acting Attorney General is an official act for which he is absolutely immune.  

[00:07:53] They say the president is in charge of the executive branch. The Department of Justice is part of the executive branch. The president may coordinate with the Department of Justice, and that is a very striking observation when we have historically, for very good reasons, spoken about the Department of Justice as having a necessary independence from the president. The casual way that Justice Roberts writes about the president being able to influence the Department of Justice to me endorses a lot of what Donald Trump has threatened to do in a second term. I think what Justice Roberts would say if he were here is, but the rest of this decision helps. And that's a problem.  

[00:08:40] All of this sounds pretty reasonable if you step back from the current context. If Donald Trump wins again, we may very well be glad of what the Supreme Court has done here, because he tells us pretty much every day that he intends to have his Justice Department prosecute Joe Biden. And when the shoe was on the other foot, a lot of what's in this decision is going to sound pretty reasonable. And so, I think that's probably what Chief Justice Roberts tells himself to get through this current context. It is still a really difficult pill to swallow as you read the opinion.  

Sarah [00:09:16] I don't understand the functioning model of the executive branch that the Supreme Court is giving us with regards to this decision, and Chevron. Is the model a monarchy? Because you have stripped power from the executive branch and grown the power in the president himself, which sounds an awful lot like a monarchy to me. No one can stop you. No one can stop you. Now, the court can. They've definitely expanded their own power under their rejection of Chevron because they're the experts on apparently fucking everything.  

[00:09:56] Water quality, Justice Department prosecutions, any kind of administrative regulation. Again, they're god. I mean, it's like a religious trinity they've got here. [Inaudible] trinity. It's just us at the top in this godlike position and the president, I guess, next maybe Congress-- unless we don't like it. I cannot find a consistent or logical version of a functioning three branch. Government here. I cannot find it amongst these opinions.  

Beth [00:10:40] I need some more time to read and reflect on everything. But what I see so far is that in this opinion, the court says the president is a branch of government. The one president is the branch of government that is the executive. And you definitely see over the body of work from this term a real disdain for administrative agencies and all of the people who support the work of the executive. You see a sense that the executive branch agency should not have their own tribunals when they enforce regulations. Those should go to article three courts where juries can be present and judges can make decisions.  

[00:11:24] Certainly, the respect owed to agency decisions has been pulled back. Chevron said that we defer to these decisions. Now the court says we'll respect them. What will bring our own judgment to the table? So, there is an erosion of power of the agencies that support the presidency and an expansion, I think, of the presidential power through these decisions. Which all does sound a lot like where Donald Trump is going in his vision of how the government should function.  

Sarah [00:11:56] But that is not a functioning vision. I mean, there's a part of me that's like, well, we're going to talk about this next. If Donald Trump is going to continue his march back to the white House and win re-election, at least the overturning of Chevron makes him instituting his plans through the administrative branch very difficult. I don't understand how people think they're going to get things accomplished without these administrative agencies. You know why I don't need to understand? I do understand they want power. They don't want to govern. But power is fragile and governance is difficult. And you need help. You need help.  

[00:12:52] If you guys want to keep shredding the administrative agencies that are supposed to help you put your priorities in place, Godspeed, I guess. But this is a joke. This is not a consistent or intelligent perspective on governing. This is so transparently a decision-by-decision approach to what we as these infallible people-- they don't even think they're infallible. They think they're objective, which is the true joke of this. What we think is right. Just what we think is right from moment to moment. That's what you put us here to do, is just to decide what's right. So, this is what we think is right. It is so, so shallow.  

Beth [00:13:48] I want to make sure we give people the upshot best as we can discern it on the January 6th case against Donald Trump. So, in telling the district court how to do its next work, the majority says the pressure on the attorney general- he's absolutely immune. The pressure on the vice president, there is at least a presumption of immunity. But we're going to let the government make its arguments about why the pressure on the vice president might fall outside the scope of absolute immunity.  

Sarah [00:14:19] But they don't really give any test on what presumption of immunity means.  

Beth [00:14:22] No, because they haven't even decided if there is a presumption or if it's absolute, but they want to hear more about that. They want more argument, which means this is definitely going to hit the Supreme Court again. They seem to be more skeptical that immunity would apply to the pressure on state officials and the fake elector scheme, but they want that to be briefed as well. His statements on January 6th, they also want the district court to take a look at that, to decide what communications fall in the scope of official acts and which don't.  

[00:14:51] Now, they do say that the president's ability to communicate broadly is a part of his core power. That the president has the bully pulpit. That the president's voice to the American people is part of his power. That the president's perspectives on free and fair elections are part of the president's power. So, I think it's going to be tough for the statements on January 6th to withstand this scrutiny, but the door is open for that. So, what will happen now that the district court will go back and have full blown briefing and hearings?  

Sarah [00:15:29] Toni Judkins is going to be doing this for the rest of her damn life.  

Beth [00:15:32] I think that's right. I think this is going to take a lot of time to make these classifications for those classifications to go back to an appellate court and back to the Supreme Court again. And I think that we could go through that cycle a few times. There's a piece of this opinion that alarmed me in addition to the pressure on the Department of Justice being apparently okay. The majority also says that whenever this all gets sorted out and whatever case is left against President Trump, when it goes to trial, the government cannot present evidence related to official acts. So, anything that he did that they have said that's official conduct he can't be criminally charged for it, cannot be introduced to the jury as part of the story of what went down here.  

[00:16:24] And Justice Barrett disagrees on this. She writes separately to say, I don't think that's right. I think courts all the time give limiting instructions. You're going to hear about this because you need it to understand, but this is not what he's being charged with. And she thinks that would be workable here and that the majority goes too far. But the majority justifies this by saying those limiting instructions work as to individual defendants. But we are talking here about protecting not a person. We're talking about protecting the office of the presidency. And that's why we have to do something different. Now, again, that's just divined from the air. That's kind of made up. We are making stuff up all the time as a democracy. I have to acknowledge that too. But I think that's really bad.  

[00:17:12] Justice Barrett gives the example bribery is clearly not official conduct. If the president receives a bribe, the president should stand trial for it. But there may be official acts done as a result of taking a bribe. And she says, if you're going to tell the jury bribery is a quid pro quo, this for that, you need to be able to introduce evidence of both the quid and the quo. And the majority opinion seems to tie prosecutor’s hands around that in a way that she thinks is wrong.  

Sarah [00:17:39] Interesting that they don't think that this massive expansion of executive power is a threat to the office at all, either. They only see the threat one way.  

Beth [00:17:47] So the majority's response to that is there are threats to the executive power no matter what we do here. And the more likely threat is the executive branch starts to cannibalize itself with each successive president trying to prosecute his predecessors. And, look, if Donald Trump is as likely to be our next president as the polling now suggests, I think that's a fair concern. I struggle with the way they got here, but I do continue to pull back and think if we subbed out names in this litigation and [inaudible], I get it. This is very hard. I am upset with this court for a number of reasons. I think the fact that Justice Thomas heard this case and thought it was cool for him to write his own concurring opinion, which he does, and in which he suggests that the special counsel's appointment is illegal.  

[00:18:45] Justice Thomas thinks the first thing the district court ought to do is ask whether Jack Smith can bring this case at all. So, I am very, very upset with this court. And, ultimately, I am most upset with Senate Republicans that did not do their duty and that's why we're here. And I am most upset with the people who propped up Donald Trump and continue to prop up Donald Trump. There is no system that can withstand someone who's willing to break everything. And so, now we have a shitty Supreme Court opinion that threatens to break more things in the wake of someone who broke everything and who will continue to break things. And so, I try to keep my real despondency trained on the right actors. But there are a lot of places that you could train your anger and frustration right now.  

Sarah [00:19:39] My rage at the Supreme Court is not focused on Donald Trump. My rage is at the Supreme Court because it's a broken institution, and these conservative justices are illustrating that decision, after decision, after decision. This posture of precedent doesn't mean anything. Our previous statements don't mean anything. It's what we get to decide in this moment that we think is right is unsustainable. It's unsustainable. This institution is permanently injured at this point. Permanently, unless we change things. We are past the point of needing to change things. Lifetime appointments no longer work. That has to change.  

[00:20:31] The number of justices have to change. Something has to be done and we need to continue to call out for that change from our elected officials because this is not working. They are creating chaos at every step because they cannot fulfill the most basic tenet of their position, which is objectivity and precedent. There's just no foundation left. They are leaning into their own biases, and they are not only rejecting the opinions of the other two branches of government, they are rejecting the opinions of past Supreme Court justices. It's untenable. It's untenable.  

Beth [00:21:20] I'm not as far down that path as you are. I try to remember that some of the decisions we most celebrate from past supreme courts overturn precedent. So, it happens. Now, I think this court does it pretty casually. And I am really disturbed by a concurring opinion from Justice Gorsuch that says that precedent is not statutes, and the court is going to exercise its own judgment in the face of new cases. I think they are really reorienting our understanding of how the law develops in a way that I think is unwise and unhealthy. There are still some cases that they decide that you read and you think, well, this seems pretty normal.  

[00:22:02] Even if you disagree with the outcome, even when there's a vigorous dissent that's compelling, you think, well, this is pretty normal work. For me, the reason that court reform is so desperately needed right now is this we are above any ethical standards posture that the court is taking. The fact that the chief justice won't even meet with the Senate Judiciary Committee to talk about Justice Thomas's conflicts, the reporting around Justice Alito, the lack of public trust and confidence in these decisions, which is only going to be made worse by this one today. Even if this decision in the long arc of history looks wise-- which it could. I do keep thinking to myself, I hate this decision; and if we continue to elect people like Donald Trump who will use the Department of Justice as a weapon, then I am glad that the court is saying that's a big deal and we need to put some brakes on it.  

[00:23:02] So I'm really trying to calibrate with a long view around this decision. But any way around it, I think nine people for 330 million is a bad format for the court. I think no checks on the courts, ethics and professional responsibilities is not working. And you can see that the court is becoming less productive with each successive term. We waited till the very end of the term for all of these highly politically charged decisions. When the court is taking fewer cases than previous courts did. They are doing around 60 decisions every term. In the 1980s, they were doing around 150 decisions every time. I don't think there are fewer issues that need the court's attention now. I just think the court has become so highly charged and politicized that this is where we are. So, I am with you on the need for court reform. I just get there on a slightly different path.  

[00:24:05] We haven't talked at all about the dissent in this case, and I think it's worth a minute to say that Justice Sotomayor joined by Justices Jackson and Kagan are ringing real alarm bells in dissent here and saying, what does it mean that presidents are now on notice that they have no criminal liability if they are arguably doing official things? We don't want to find out the answers to those questions, but those answers could be very, very scary. And it is a sharply worded, remarkable read that I encourage everyone to spend time with. Now, chief Justice Roberts says the dissent mischaracterizes what the majority does. It takes the fairly narrow holding of the majority to doomsday scenarios unfairly. But I think that really remains to be seen, and I think that it's worth paying attention to the warning that's contained here.  

Sarah [00:25:04] I take the liberal justices these days about as seriously as their colleagues do; which is to say, not very. If I felt like they argued with each other and influenced each other, I think I would be more invested in the liberal justices. But they don't, and so I'm not. That's just where I'm at.  

Beth [00:25:25] What I think is really fair in that perspective is that I do think there is no influence happening anymore.  

Sarah [00:25:29] None.  

Beth [00:25:31] Alise asked me last week where I thought this immunity decision was going, and I said, the fact that we still don't have it, that they're clearly going to save it till the very end. And the fact that in these other cases, the liberal justices are going balls to the walls, they are writing furious dissents.  

Sarah [00:25:49] Reading them from the bench. Oh, goodness, every single time.  

Beth [00:25:53] Reading them from the bench, very, very personally criticizing the majority. You can just tell that there's not any back and forth going on here, that there aren't deals being cut. Okay, we'll go with you on this. Let's keep this as narrow as possible so that you can come with us on that. There is some ideological mix up still in some of the cases, to be sure. It's not six-three every time or even most of the time. But on the cases that really capture the public's imagination and that really do shape where the law is going, I don't see any professional relationships that help keep the court on track happening here.  

Sarah [00:26:34] They think they're right. They think they're right, period. There is no humility. You don't even respect your fellow justices. They don't give a shit what those justices have to say. They're six, you're three. [Inaudible]. It is so clear that they don't care. They don't care what the liberal justices have to say. They don't care what Congress has to say, as far as I can tell. They barely care what lower courts have to say. And they sure as shit don't care what the rest of us have to say. And I hate to continue to attack them because that seems to just double down their complete and total confidence in their own rightness, but what does it matter? What are we going to do? Kick them out? They know it. They're there for life. They can sit there and tell us all what they think is right until we change it.  

[00:27:41] And the only thing we have going for us, truly, is I think those six really believe nothing will change. That they are as safe as they can possibly be. That's the only way I can make sense of their posture. That they believe that they are safe, and they can sit there as a majority and make decisions for the next 10, 20, 30 years. Amy Coney Barrett is really young. And there's nothing the rest of us can do about it. The hubris that is coming from this conservative majority on the Supreme Court is nuclear; it glows at night. It's like nothing I've ever seen. Even from Roberts that he wrote this decision, forget it. Forget it. It is so self-apparent that these six have put themselves in an almost godlike position to me that why are we even engaging with the justices? It's the institution that needs to change. Because they're not going to do anything.  

Beth [00:29:06] I think the thing that we have going for us is that we still vote as a public, and Congress cannot impose term limits on the court without going through a constitutional amendment process. But Congress can do a lot. Congress can change the number of justices on the court. Congress can appoint inspector general. The justices might strike that down, but there's a lot that Congress could do here to get a lot more in balance with the power that the court has taken for itself this term. And we have the power to decide who sits in Congress and what their level of dedication to that task will be. And, to me, that has always been the ultimate answer on Donald Trump.  

[00:29:48] The threat that he poses to our democracy, to our republic, to our ideals, to our civic life-- because I think the worst thing he does has nothing to do with government, it's just how he brings out the worst in all of us. We fight all the time. Families don't talk to each other. This loyalty to him superseding everything else or the disdain for him superseding everything else I think is the scariest part of him. But the ultimate check on that was never going to come from a system within our government. It has always been the responsibility of the voting public to prevent him from having power to the fullest extent that we can. And that's why, to me, the most critical question right now is how do we ensure that Donald Trump does not win the presidency again in November?  

Sarah [00:30:37] Well, I am reminded of the progressive movement in the early 1900s when senators were appointed by state legislators. And it felt, I'm sure, an insurmountable, unchecked power. But we did it, and they did it by largely deciding we will not nominate or vote for anyone who does not commit to this change. You must commit to this change before you have my support. Period. And that's about where I am on the court. You do not have my support until you commit to court reform. End of story. Especially if I lived in a blue state, I would make that one of my top issues. I want to see this at the top of every Democratic candidate’s platform, court reform. I don't want a commission that was not good enough. You just ignored them. So, what are we going to do? If I was a delegate to the Democratic National Convention, I would fight hard and long to put this at the top of the party platform. It has to become a priority. This is unsustainable. Speaking of the Democratic National Convention, we have some thoughts, further thoughts on Joe Biden's debate performance.  

[00:31:52] Music Interlude.  

[00:32:00] All right, Beth, as we sit here, it's been four days since Joe Biden's debate performance. The reporting from him and his inner circle is that he is going to continue to fight on, that there is no reason to replace him as the party's nominee. Even in the face of this immunity decision, the campaign, seemingly detached from reality, sent out campaign messaging that nothing's changed. This changes nothing. We still have to defeat Donald Trump. And on that point, I do agree. But the idea that Joe Biden is the person to do it, I no longer agree with, and I feel even stronger after four days than I did on Friday morning.  

Beth [00:32:40] I went back and listened to our episode from Friday yesterday because I wanted to check in and see how I felt about what I had said on that episode a few days later. And I agree, my perspective is not different. I have probably felt more insulted over the weekend by the campaign than anything else. I might be a little hotter than I was last week because I think it is just an incredibly dismissive hubristic posture to say to people, "Your concerns are unfounded. It was one debate. It was one bad night." That's not what I saw. It's not like I think, oh, he should have hit this point harder.  

[00:33:32] When you're talking about a debate performance, I can totally understand the President Obama line, "I had a bad night too." That's not what this was. And I went back and read more of the transcript. I've tried to check myself in every way. I would love to be with them. It would be so much easier to say, that's right. It was one bad night, and he's been a great president, and he's the person who has a track record of defeating President Trump and so let's go. That's a much easier place to be. But in every way that I try to check myself on that, I come away even more convinced that this is a train wreck in motion.  

Sarah [00:34:14] So I took a lot of time on Sunday formulating on Instagram my responses to all these arguments coming from the campaign that he finished strong. He didn't. That's the first important thing. He didn't finish strong. His closing argument was weak. And also, that's not how people watch the debate. That's certainly not how the debate makes impact on social media. It's not like people go back and watch the whole thing to really get the perspective. They're going to take that terrible moment in the first 12 minutes of the debate when most people were watching. They're going to clip it and they're going to watch it a million times. What I was most impacted by in the social media were the clips where people would put his debate performances in 2019 next to 2024. Did you see any of those?  

Beth [00:35:00] Yes. And here's what I want to say about the finishing strong, the evidence that I was presented with on social media to justify that strong finish was the clip of him responding to their fight about what Donald Trump has to say about the military. And it's President Biden saying, "You're the sucker. You're the loser." That, to me, is not what I want to see from a president.  

Sarah [00:35:23] It's not what the voting public wants to see right now from this matchup. Give me a break.  

Beth [00:35:28] Absolutely not. When you are relying on a personal anger as the fuel to demonstrate that this is a vigorous, energetic leader for all the American people, again, that's just like blaming the moderators in the format. That's a losing posture. I felt concerned about where President Biden was emotionally, at least, when I read the transcript of the Time Magazine interview, because it also had a lot of that personal anger running all the way through it. And that, to me, does not reflect the best that Joe Biden brings to his public service. And it does not bring what I want to the table for a strong presidential candidate, especially in contrast to Donald Trump. Do I want two angry guys whose egos getting bruised to where they find the bulk of their fire? No. That's why so many people are checked out on this race. That sucks.  

Sarah [00:36:24] Yeah. The golf moment where they're debating their golf swings and it's Donald Trump who says first, "We're acting like children," and you want to tell me you finished strong? Okay. You're delusional.  

Beth [00:36:35] The other thing I want to say about the strong finish is that one skill I am confident that I have is note taking. I'm a really good note taker. I tried to summarize the bullet points of Joe Biden's closing statement, and I couldn't do it. I could not say this is what he tried to hammer home in those closing remarks. That is not a strong finish.  

Sarah [00:36:58] Well into the bad debate, I was so disappointed to see Barack Obama come to his defense in that way. Because he knows, as does anyone with an ounce of political acumen, that the Biden campaign called for this debate early. They set the rules themselves. It was the Biden campaign that wanted muted mics. It was the Biden campaign that wanted no audience members. It was the Biden campaign that wanted all of this, because they knew they needed a moment to disrupt the narrative. The overarching concerns represented in every single poll of Democrats, Republicans and independents that Joe Biden is too old to serve a second term. They knew it. They had a very low bar. A bar so low that the Republican Party tried to raise it in the last moments. And he could not clear that very, very low bar.  

[00:37:54] The state of the Union has delayed this because he's working from a teleprompter. I let it do it to me. I let them fool me with that State of the Union performance, and I regret it tremendously because a teleprompter is not the same thing. The rally in North Carolina, that's all supposed to make us feel better is not the same thing. It's a friendly crowd, and he's reading from a teleprompter. When he was in LA when I saw him, he did not have a teleprompter and he struggled with Jimmy Kimmel and Barack Obama on either side of him. So, until I start seeing night after night of town halls and tough interviews, which they know and we all know is never going to materialize, all you've done is strengthen the concerns of the voting public. Now, I will give credit to the polling I think could happen.  

[00:38:47] I read an analysis that said what's really happened is the Democratic voters have been shaken out of their complacency. They were being told these are edited videos. The staff knows he can do the job. They're happy with the results. And when I say they, I mean me. That's where I was. I trust him. He told me he can do the job. I'm happy with the results of this presidency. I believe that the Republican Party is not operating with good motives when they make this argument, obviously. And so, I thought, okay. But I am not alone in realizing, no, there are real concerns here. I think it shook everybody out. So, we'll see in the polling if the swing voter, if the independent voter had already calculated this in. If they already knew what they were dealing with, and this didn't really change anything for them. But that's still a problem. That's still a huge problem. We have to overcome that to win. And I cannot imagine a scenario in which that is possible.  

Beth [00:39:50] Where the "It's just one night" line falls apart for me, is that it is one night but there is voluminous reporting and has been for a long time about how the staff ensures that this president works from about 10:00 a.m. to 4:00 p.m. every day. They skipped the Superbowl interview. When we have seen him unscripted with just him and the press, it's gone poorly.  

Sarah [00:40:17] Everybody remember the Israel press conference? I do.  

Beth [00:40:19] The freak out in response to the Robert Hur report looks quite different to me today. And so, it is not one night. It is one night that in a very poignant way validated a lot of concerns that were already out there. I also am bothered by the "It's just one night" and we just have to keep telling people how dangerous Trump is, because I think that this is something Democrats are now adopting that Republicans have been doing for a while. Which is asking everybody who's really tuned into politics not to check in with ourselves about what we see and what we think is right, but to always be in the posture of thinking as pundits think, how will other people view this?  

[00:41:13] Well, other people didn't pay attention to this. Ordinary people will see it this way. I don't want to be asked ever to only be predicting how other people are going to react. I want to always first check in with myself. And checking in with myself about this, I do not have confidence in President Biden to serve another term. And I hate that. I don't want to say that. But for him and for us, I don't have that confidence now. And whatever else is going on in the universe, I got to be able to sit with that moment of truth. Now, clearly again, and I don't know how many times or different ways I can say this, if no changes happen and the ballot says Biden and Trump, I will check Biden.  

[00:42:06] Clearly, I will do that. And I will encourage other people to as well, because I think Donald Trump is uniquely threatening to a lot of things that are important to me. But, man, what a stupid state of affairs it is if that's where we get. And what an impoverished view of our civic life to think that we just have to accept this because it's July 1st and here we are. And so, get on the ship or get out of the way. You're with us or against us on this. What an impoverished stance to take.  

Sarah [00:42:40] The call to my loyalty has sent me over the edge. That we can't abandon him. And this is the one that really pisses me off. He deserves better. This is not about deserve. I don't want to hear the word deserve come out of another Democratic official's mouth. How dare you? How dare you come to me with that bullshit? Joe Biden didn't trust any of us. He made the decision to run for a second term knowing because he's a smart man, that everybody understood that he was only going to serve one term. I understood it, we all thought it. And if it wasn't expressly said because we thought that that would open up some sort of political liability, we all believed it. That's why he didn't involve anybody else besides his family and close advisers, and as far as I can tell, just him and Jill, from the reporting in deciding to start a second term. Because he knew what we would say. No, we don't want this. He knew it because it said it in every single poll. Ordinary citizens have been very clear from the very beginning. We don't want this.  

[00:43:51] The committee is clear. We don't want this; 45% of Democrats do not want him to run. Forty five percent. And I bet that number is higher now. Can you imagine? To say, "No, I want to do it anyway." It's so egotistical. I have lost such enormous respect for this man. I have such sympathy for the way people felt torn apart when choices were presented to them, neither of which felt conscionable. I just have enormous sympathy for that now. But I never did before, I'm just going to be honest. But I do now. When a Democratic delegate says, how can I, with good conscience, stand up and vote for him at the convention? Yeah. When listeners come to us and say, "I was gaslit and told to be loyal in the Republican Party, and I left that party thinking the Democratic Party offered me another option. And now they have also abandoned me and told me, don't believe what you see and do what we tell you to do." 

[00:45:06] And they say, "I can't vote in good conscience. I just won't vote at all," what am I supposed to say to them? Ignore your conscience? Because that's what the Biden campaign is telling their voters. And it's particularly what they're telling any swing and independent voters. Ignore your conscience. Ignore your own experience with aging people in your family. Ignore common sense, and just believe us when we try to scare you about Trump and do what we tell you to do. That is the behavior of the Republican Party, not the Democratic Party. It's excruciating to watch them behave in this way. Excruciating. And this idea that any other path would tear the party apart, it's too late. It's already tearing itself apart. If you are not listening to the 45% of people saying, begging, pleading, don't do this, you're already tearing it apart.  

Beth [00:46:11] This, to me, is a lot like the Supreme Court. It was already there before this debate because of the election of Donald Trump. The Democratic Party was already being asked to be more than a political party. It was fairly weak to begin with because the parties have been weakened by a number of circumstances. And then you sweep into it people like me who don't always see eye-to-eye on policy or approach; and a whole variety of just like pro-democracy, anti-Trump folks have to come under this umbrella. And you do that at a time when the party's trying to pick its path in terms of Hillary Clinton and Bernie Sanders and everything that those two represent.  

[00:47:01] And then you add the war in Ukraine and you add the war in Gaza. And you have this enormous fracturing of these constituencies. And it is the fear of that fracturing that I think has everybody saying, just let Biden be a symbol not a person. And let's just get through this god awful, scary moment with him as a symbol instead of a person. And we'll figure it out on the other side. Trust us to figure it out on the other side. And I am sorry, it has to feel very unfair. I hear it from Democrats. Why is the New York Times editorial board writing about how Donald Trump should step aside? It's implied, guys. It's implied.  

Sarah [00:47:49] Because he's not Donald Trump.  

Beth [00:47:50] We've had 10 years of talking about how Donald Trump is unfit on a grand scale, and it is still true. It's as true as it's ever been. It's truer. But the expectations are different. And I'm sorry about that. Seems really unfair. It's obnoxious, but it's true. And this massive coalition of people who I think represent the majority of the country is saying, give me someone I can feel somewhat good about voting for. Just somewhat. Don't have to agree on everything, but just someone who I can feel somewhat good about voting for. And the Biden campaign has not been able to assure folks that he's up for this. And when you have that debate performance, and the campaign response to it-- which has made me very angry. I got an ad this morning on YouTube of President Biden direct to camera saying, "Folks, I hope I made you proud of that debate." And I it just ran all over me.  

Sarah [00:48:56] You did not, sir. You did not make me proud.  

Beth [00:48:59] And then today, there's the Vogue cover of Jill Biden with this big black quote saying, "We will decide our future." It all reads really badly. It reads really entitled and really Orwellian.  

Sarah [00:49:12] Yeah.  

Beth [00:49:13] And I don't like it. What else needs to happen here?  

Sarah [00:49:22] The data is clear. And the way they perpetuate in this absurd argument that either, one, well, it couldn't be Kamala. Why not? And more importantly, if it's so abundantly clear to you, why did you ever pick her as a vice president? You are in your 80s. You were in your late 70s when we voted for you the first time. If you have such grave concern about Kamala Harris's ability to perform either electorally or as president, then why did you pick her your Vice President? This is not engendering further trust in your decision making. Now, for what it's worth, I completely disagree. I think Kamala Harris would win. Because the problem right now is this race is way too close. The problem really is that Donald Trump is winning. The Economist electoral model has him with a 66% chance of winning. Two out of three chance of winning because we are floundering with voters of color and young voters. I wonder what would happen if we nominated a young woman of color. That would be weird, wouldn't it? If we couldn't make any gains within those groups. Get a grip.  

Beth [00:50:56] I came out swinging for Vice President Harris a lot.  

Sarah [00:50:59] I know. I'm excited for this to be your rage-filled portion of the program, because I think that the way they've been talking about Kamala is unacceptable. It's been bad before, but whatever. Nobody knows how to be a good president to a vice president. We're getting an insight onto how terrible the relationship between Obama and Biden was for so long. So, it's a shitty gig. Nobody really knows how to do it well. Maybe Dick Cheney was just doing some of the job. But the way they've talked about her since this debate, when she was the only one who came out and did a half decent job on cable news, oh my God. Get out of here.  

Beth [00:51:31] If they don't believe that she could accept the torch from him and carry it forward, then they have used her grotesque way.  

Sarah [00:51:39] Yeah.  

Beth [00:51:41] In a way that is so insulting. What I hear-- because, again, we have all trained ourselves not to think about what we believe, but what everybody else believes. What I heard over and over and over from our audience on Saturday as I fielded questions on Instagram, was America is too racist and misogynist to elect her. And I say, America elected Barack Obama.  

Sarah [00:52:04] America elected Hillary Clinton.  

Beth [00:52:07] Hillary Clinton won the popular vote. America loves to tell itself we just did a first thing.  

Sarah [00:52:13] Yes.  

Beth [00:52:14] We feel so good about ourselves when we do something that's a first thing. Whatever the case is, I think everything has changed. I think that is a mindset from six months ago. I think we are on a new stage of this contest, and something disruptive would be welcomed. And perhaps the more disruptive the better. And, look, I don't know who would win if it were Kamala Harris versus Donald Trump. I think it would be her, but I don't know that for sure. And if the party gets together and says we don't think she can do it; either because we think she's not competent enough and we have used her this whole time for her looks and what she represents to a certain constituency, but we don't believe in her.  

[00:53:02] I think that's gross and terrible and they owe her a lot of apologies. But if that's the decision, fine. Put somebody else in. But somebody in that you believe can do the job and do it really, really well. That's all I'm asking for. Put somebody in who you believe can for four years do the job and do it really, really well. But I am disgusted by the way she has intentionally been sidelined. Even with everything you say being true about how no one does a very good job with their vice president, it seems increasingly clear to me that they don't want the contrast. They know how bad it looks when someone films them at the Juneteenth celebration, and she's having a great time and dancing, and he looks like he doesn't know where he is.  

Sarah [00:53:48] Yeah, he's frozen.  

Beth [00:53:49] And I'm not saying he doesn't know where he is. I'm not making accusations. I don't know what's going on with him.  

Sarah [00:53:55] I can see. I can see with my eyes. I know it's not artificially intelligent manipulated video.  

Beth [00:54:02] What I know is that the moment that they make movies and commercials about if America were attacked at 9:30 p.m. on a Tuesday night by an adversary, I know enough to know that I don't want to see President Biden sitting at the desk in the Oval Office or at a lectern in the rose garden telling us what the plan is. Okay, that's what I know. And that that is enough for me. That's the test. And I'm just saying I am frustrated that they seem to have intentionally avoided the two of them appearing together because the contrast is so bad, when this whole time could have been elevating her stature and getting her ready if he thought she was the right person.  

Sarah [00:54:45] I think it was James Carville plan get Obama and Clinton and Biden together. Pick five. I can tell you I would pick. Kamala, Gretchen Whitmer, Josh Shapiro, Andy Beshear and Pete Buttigieg. That would be my five. I would say those are our five. Take those five. Let them give speeches, let them go on podcast, let them go on cable news, town halls and let the delegates vote. It'll take a couple rounds. So what? We've all structured our parties to be these democratic institutions. Let people vote a couple times. Even though I don't really like that argument either. I don't really like the argument, like, we can't do this because then it's not the voters picking.  

[00:55:27] You guys, it wasn't the voters that picked in 2020 either. I was there. I remember Pete Buttigieg won the Iowa caucus. Pete Buttigieg won the New Hampshire primary. And then Jim Clyburn in a smoke-filled room-- smoke-filled or not, and that type of room decided, no, we're going to go with Biden. And that's what happened. I was there. Don't try to gaslight me. And you know what? Good on us. I'm glad we did it. I'm so glad we did it, but enough. Enough with this. We can't do it now. Enough. Americans don't want this. How much more clearly do they need to tell you? They do not want this.  

Beth [00:56:12] The thing that James Carville has said that really resonates with me, is quoting Herbert Stein, the economist, "That which can't continue won't. And I just think he's right. This can't continue. And so, the question is, do you want to exercise some agency over the way in which it won't continue? And that's what I want. To exercise some agency over the way in which it won't continue.  

Sarah [00:56:35] I have to believe there are political animals inside the Democratic Party who know the truth. And the truth is the chances of Joe Biden having not a single other moment that builds on this debate debacle (a frozen moment, a stumbling, confusing Egypt for Mexico, asking for a representative who's been dead, not to mention an actual health event) is zero. It's zero. Time marches one way- forward. The chances that nothing happens between July 1st and Election Day to further confirm voters’ concerns about Joe Biden's age is zero. And you know who knows that best? The Republican Party. I read reporting that they were like, oh, we didn't want it to go this bad, where they might actually consider replacing him. They want him as a candidate. When you are in complete and total agreement with your political opponent, it's time to actually consider your strategy. They love this. They love it.  

Beth [00:57:50] Listen, Joe Biden could bat a thousand from here to November. Totally unlikely, but let's say he does. Let's say he bats a thousand from here to November. If you work for the Republican Party, you've already got everything that you need to reinforce the central argument against Biden's campaign. You have every clip that you need. You have every headline that you need. I understand that there was not a universe in which the next day, after the debate, President Biden was going to come out and say, "You know what? This isn't going to work. I'm going to drop out." I get that they've got to talk about it. They need to come up with a plan. They need to figure out what they're going to do. And I hope that despite all the reporting to the contrary, that's what they're doing right now. Making the plan.  

Sarah [00:58:38] Perhaps somebody is, even if Biden isn't. Hakeem Jeffries, I'm looking at you.  

Beth [00:58:43] Even in this period of time, the stories coming out are a gift to the Trump campaign.  

Sarah [00:58:49] Yeah.  

Beth [00:58:50] And a gift that can be used by their very savvy digital team come October. So, again, it's like even if you try to rehabilitate from this moment and you can carry that off, it doesn't matter. Something has really broken down here that I don't think can be saved.  

Sarah [00:59:11] Because their argument now is, well, if the polls don't move, he'll be safer. Oh, because he'll still be losing? Great. So, your argument to me that we shouldn't change candidates is that he's still losing after this debate you orchestrated. That it didn't move the numbers at all and that we're still losing. Wonderful. And I know people say, well, you know the best thing not to listen to polling. No, I say not to listen to polling in January. Months before it's relevant. It's relevant now. Should I think we live and die in Polling? No. But that's not what I'm talking about. I don't really care what the polling says. I saw what I saw at that debate.  

Beth [00:59:50] And so, the question to me is how do you handle this well, in the meantime, that brings people together instead of further inflaming everyone's concerns? And this you didn't see what you saw approach or if you saw it, you're being a self-important podcaster or whatever.  

Sarah [01:00:06] Oh, my God. Don't even.  

Beth [01:00:08] What are we what are we doing here? Every single thing that has come from the campaign since the night of the debate has been a brick in the house of Joe Biden's ego instead of what's right for the country.  

Sarah [01:00:28] And a brick through the window of political unity while telling us we can't do anything else because it'll tear the party apart. You're out there calling the Pod Save America guys self-important podcasters, while telling me we can't do anything hard because it'll tear the party apart? Get f***.  

[01:00:41] Music Interlude.  

[01:00:51] So let me tell you what I'm doing. Today's Tuesday. Good news, everybody. The white House comment line is open. It's only open from Tuesday through Thursday from 11:00 a.m. To 3:00 p.m. Eastern Standard Time. Fun fact. Learned that on Friday when I tried to call. But it's open now if you're listening on Tuesday after 11:00 a.m. Eastern Standard Time, let me give you the number. Well, I'll even give you a second to get pen and paper. The white House comment line is (202) 456-1111. I will be calling every Tuesday through Thursday. I have sent emails. If you live in a blue state-- God help you if you live in Hakeem Jeffries district. I would go to the office itself. I have found that the most impactful. You don't have to go to D.C. He has a local office. I would show up with my body if I had Democratic elected officials. Certainly, if I had elected officials that live in purple districts and are facing tough re-election campaigns, I would call, I would email, I would show up with my physical self in their local offices.  

[01:01:58] I would most certainly reach out to my Democratic state party officials, easy to find on the internet. Just Google your state Democratic Party committee, official leader, whatever. You'll find it. You are all very smart people. Call them. Email them. Show up at their offices and say it's over. It's over. He has to step aside. Do not tell me one more time that democracy is on the ballot, but we can't do anything hard in order to win. Do not tell me with one breath that this election is so important, and in the next breath, tell me, "Swallow all your concerns and get in line." If I wanted to be treated like that, I'd be a Republican. But I'm not. I'm a Democrat. So that's what I'm doing. I'm calling. I'm showing up. I'm articulating to whoever will listen that Joe Biden must step aside. I am not going to leave this to Jill and the family. This is not a monarchy. They are not a royal family. I don't care if Annie Leibovitz took beautiful portraits of them. I'm done. That's not what this is about any longer.  

Beth [01:03:13] The other call to action for me and all of this, is to just think really seriously about my own family dynamics. And how we talk about aging and succession and our responsibilities to each other, how honest we are with each other, where our advice and counsel hits. I think one reason that this is so emotionally charged, beyond the obviously high political stakes, is that it is something that comes up for every single one of us. And I think the reason that I get so angry every time I see something from the campaign, beyond the obvious political stakes, is because we do all have some personal experience here. And so, I just want to keep thinking about that. And I hope that some of our Nuanced Life episodes that are coming will speak to that, and help us all kind of work through how we can avoid getting to these points where it feels like you're trashing someone by saying your time has come to move into a new phase. How we can really honor where people have been and where they're going, and how we can also recognize when a chapter is over and a new chapter has to start.  

Sarah [01:04:37] As you can tell, I'm pretty angry, but I understand that anger is a secondary emotion. And I have enormous sympathy for this sense of if I tell someone I love-- because that's the reporting, right? His counselors, his advisors, his family, even so many of the surrounding members of the Democratic Party love this man. They love him. And I think we have the sense that the work we do here has tried repeatedly to push back on. Which is if I love someone, there can be no conflict. If I believe in a relationship, conflict will weaken it. And I do not believe that to be true. I believe we can look at someone and say, "I disagree with what you're doing. I think it's harming you." I think that is possible inside a loving and trusting relationship, which all reporting says Joe Biden has with his family and his counselors. And I think you're right.  

[01:05:48] I think it touches on this moment that so many of us have had with loved ones where we say, "You want this and I hear you. And please don't think that I don't hear what you want, but what you want is harmful. And because I love you, I have to say that to you. I have to be a source of conflict. I have to be a stop this far and no further." And I'm not going to say that I've seen anybody navigate this perfectly, because that's how hard it is. And I think we have this narrative that it's because we just throw away old people. That's what this is about. This is ageist, and ableist, and we just throw people away. And what I hear is the exact opposite. That deserve language, that sets me off, though. There is a loving component of that.  

[01:06:45] What I hear is when people talk about Joe Biden and when they talk about aging loved ones in their own life, is haven't they earned the right to make the call themselves? Shouldn't we just leave them alone? I respect that they're an elder. I respect that they've lived this long life, that they've been independent, that they've made their own calls this whole time. And I don't want to look at them and say, "You can't do that anymore." It's infantilizing, it's insulting, and I don't want to do that to them. That's what I hear more of an undercurrent than this sort of ageist, just throw old people away situation. At least in my own life. And it's certainly what I hear in this reporting. But again, just because it's a hard conversation where we must hold two truths at the same time, doesn't mean it's not one worth having.  

[01:07:36] We can hold both. That Joe Biden stepped up, that he beat Donald Trump, that he has been an exceptional president, and also that your legacy, in part, is built on your ability to know when to go and to formulate a succession strategy. That's just as true is if you're talking about taking away someone's keys as if you're going to be the president. There's a sense that, like, you have to have input. Because living a long life makes you wise. The experience fills you with enormous perspective, but it does not make you infallible. It does not make you infallible. And that's what I'm hearing from the Biden campaign. Don't question anything he wants to do, and I reject that. I reject that.  

[01:08:45] And you know what? In a family, you're not just talking about that one person, right? You're talking about the responsibility and duties of everybody surrounding that person. It's like this acknowledgment that we're all interconnected, which is what we talk about so much here at Pantsuit Politics. And that's why I think America is crying out for this acknowledgment that we face big challenges, the future is challenging, and we don't want two guys who argue about their golf swing. We want new, exciting visions for America. We need new, exciting visions for America. That's what people are crying out for. And that's what I believe the Democratic Party can answer. We can meet that challenge. We have the ideas. We have the future leadership. We have the vision. And I am so desperate to see us meet that challenge.  

Beth [01:09:52] I don't even need the new vision. I don't need the exciting leader at this point. I just want steady, dedicated, respectful leadership. And I think that's where a lot of people are. And that's why I really believe that the rubric, the way that you might test candidates at other points in different cycles, is out the window in this election. I think all of the dynamics are unique when we have a former president, a current president, a former president who's been convicted of felonies and is indicted with other crimes, a current president who is the oldest in history and has just validated some concerns about that age. I think all the dynamics are different. The way you would typically score a primary out the window right now. And so, I think there's a lot of opportunity for someone with a track record of good leadership to step in here who might not be elected in another cycle. A lot of history is about timing and luck, and that's where I think we are right now.  

Sarah [01:10:53] But that's the problem. We just have a lot of people who meet that rubric. That's an exciting problem to have. But that is the problem we have.  

Beth [01:11:00] That's a great problem.  

Sarah [01:11:01] So we have to figure out some way to decide.  

Beth [01:11:03] And that is where I think President Biden could really cement his legacy. If he stepped aside and endorsed someone, I think that this could move forward pretty smoothly.  

Sarah [01:11:16] So you think you should just coordinate, where this is who we're going with? 

Beth [01:11:19] Yes, I do. In consultation with other people. But yes, I do. I think pre-convention, get together and have people coalesce around someone. It was very effective when Buttigieg and Klobuchar kicked that off before. And I think the circumstances now are no less serious and in need of that kind of selflessness and willingness to work as a team.  

Sarah [01:11:44] Well, it is my deep and sincere prayer that you are right and that these conversations are ongoing as we record. We're going to attempt to go back to our summer schedule with full and complete awareness that you will most likely hear from us at some point in the month of July, maybe more than one point in the month of July. Thank you for hanging with us. Thank you for trusting us. Thank you for staying in conversation with us. We will have a new episode of The Nuanced Life for You on Fridays. We can't wait for you to hear that. Until then, keep it nuanced all.  

[01:12:21] Music Interlude.  

Sarah: Pantsuit Politics is produced by Studio D Podcast Production.   Beth: Alise Napp is our Managing Director. Maggie Penton is our Director of Community Engagement.  

Sarah: Xander Singh is the composer of our theme music with inspiration from original work by Dante Lima.  

Beth: Our show is listener-supported. Special thanks to our executive producers.  

Executive Producers: Martha Bronitsky. Ali Edwards. Janice Elliott. Sarah Greenup. Julie Haller. Tiffany Hasler. Emily Holladay. Katie Johnson. Emily Helen Olson. Barry Kaufman. Katherine Vollmer. Laurie LaDow. Lily McClure. Linda Daniel. The Pentons. Tracey Puthoff. Sarah Ralph. Jeremy Sequoia. Katie Stigers. Karin True. Onica Ulveling. Nick and Alysa Villeli. Amy Whited. Lee Chaix McDonough. Morgan McHugh. Jen Ross. Sabrina Drago. Becca Dorval. Christina Quartararo. Shannon Frawley. Jessica Whitehead. Samantha Chalmers. Crystal Kemp. Megan Hart. The Lebo Family. The Adair Family. Genny Francis. Leighanna Pillgram-Larsen. The Munene Family.  

Sarah: Jeff Davis. Melinda Johnston. Michelle Wood. Nichole Berklas. Paula Bremer and Tim Miller. 

Maggie PentonComment