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"Tiny, decent things."


The aftermath of the Alexandria shooting, the investigation of the President, and the Democrats' plan to stop health care. Then, former White House lawyer Danielle Gray joins Jon, Dan, and Tommy to talk about the travel ban, and Judge Tim Black discusses his ruling in the same-sex marriage case, Obergefell v. Hodges.

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
The presenting sponsor applied, save America is blue apron customize. Your recipes each week, based on your preference, is blue. Apron has several delivery options, so you can choose what fits your needs and there's no weekly commitment. So you only get deliveries when you want them. Get your first three meals, free free shipping by going to Blueapron dot com, Slash, Krooked, blue apron is better. We cook welcome to parts of America, I'm John Fabbro Dan Pfeiffer, I'm Tom eat or who we are coming at. You live from Portland me for the big wedding weekend here. Dan is actually in Logan Airport in Boston. Then glad you landed on time, good for United yeah. I could cry United really delivered at a chemo in our lives. They actually dragged in off the plane to ensure he was on time. I turned that story nice. I was going to
that check of our. If I was late and gets are you know you got the drugs okay yeah today were walking back to the pod former ago about my cabinet Secretary White House lawyer and former Supreme Court clerk, Danielle Gray. Danielle will be talking to us about the emoluments cases filed against Trump in the fate of his travel by and and in keeping with our legal theme will be talking later to the federal judge who rule in the gay marriage case that made its way to the Supreme Court. Judge TIM Black. How do you land that guest? It's? It was quite some complicated. Housekeeping. Who do we have on pod, save the world this week? Well, I had us senator TIM Kaine. He was on the show on Wednesday Oct all about the legal framework for the war. You know it. It's a it's an interesting interview, because we never ever ever talk about
the legal basis for these things. It was also nice reminder that, like there's, really good people that are elected officials and work in politics, ten Kane is one of them, good God. I need to work on the stuff for a long time. He cares deeply sons marine you to work on this for awhile, so check it out, That's excellent and tomorrow on Marie Cox, is with friends like these she's gonna, be talking to an l dash and her dad cool keep it in the family this week or keep it in the family this week, so check out that episode love it. I believe recorded love it or leave it last night, Wednesday night and can't keep track. In LOS Angeles. I have no idea when that's going to drop, but obviously obviously pay attention to love, leave it and then because I'm going to be gone, I'm going to be gone the next Monday next Thursday and the following Monday on our honeymoon, but the pod will go on pod goes on with, with Dan and Tommy and lots of lots of big guest next week, we're going to tell you who they are soon for the so they don't cancel it. We have a potential very exciting Thursday guest host, so will have more on that next week, awesome.
Awesome. I will be listening from from my honeymoon right. Yeah do not take the location, no ok! So, let's start, let's start with the her
shooting yesterday. So our yesterday, a gunman opened fire at Republicans practicing for the congressional baseball game in Alexandria. Virginia wanting for people, including Steve Scalise, see who is the majority whip in the house two members of Mr Scalise. He security detail Crystal Guy Reiner and David Bailey, we're going to it as well as former congressional staff member Matt, Micah Representative School Lee C suffered extensive injuries, including internal bleeding, and he's still in critical condition right now he's undergoing additional surgery. So we are certainly keeping him in our thoughts and prayers. The capitol police were absolutely heroic in chasing down the gunman and preventing even more violence. So thank God for them. As for the gunmen himself, he had a long history of domestic violence and violent anti social behavior, and it
that's Trump's election put him over the edge. He apparently knocked on doors for Bernie Sanders. He posted all kinds of anti trump ship on social media. So I was not on twitter. There are a lot yesterday. I saw the news break in the morning and then you know we were doing wedding preparations all day and then sort of last night. I came back to it and it's just like what so like. I won't talk about both of the there is a set of admirable, sensible reactions to this horrible incident, and then we should spend a few minutes on some of the more revolting reactions. I I do think I as far as democratic and republican politicians, especially members of the house, lot of them expressed unity. So I guess that's good. What
do you guys think? What do you tell me what we wrote down the whole thing yeah. I spent way too much time in an airplane reading about this yesterday and it got me very frustrated. So forgive me if I go along so obviously it's a horrific act. There's no excuse for violence of any sort of. We should condemn this as Democrats as human beings. It's a good thing that the response has been unity. Obviously that would be good for the rhetoric on both sides to calm down a little bit, but that's not a solution to the problem of gun violence and mass shootings by Barton. Baseball game is nice. It's nice symbolism. It'll raise money for charity, but I'm going to fix anything. We don't elect lawmakers to tell us to be nice. We elect them make law, since I was talking to Cody Keenan Obama's speech writer after John about how many times a bomb at a dress, the nation after mass shooting- and we couldn't. We couldn't get an exact count like fourteen or fifteen sick for Hood, Tucson, Aurora, Wisconsin Sandy Hook, maybe art for Hood again Kansas City jewish community center to
girls in Chattanooga San Bernardino, Kalamazoo Orlando. So, like you know my job, my messages do your job do something that would prevent thousands of deaths with some gun control legislation because you're you've. Twelve thousand homicides a year, you're fifty women shot to death by an intimate partner each month and it's like I don't want a calls for unity that are kind of saccharin and get drowned out in a few weeks to drown out the conversation about policies that might actually save lives. He's calling for unity is easy, but when you start pushing for real gun control measures, background checks denying firearms to domestic abusers, your accused of politicizing, a tragedy, I'm so fucking sick of hearing that I want to. I want Congress to do something,
that actually keep this from happening again, because we have the gun, homicide rate, United States, twenty five times, the average of every other developed country and there's no rational reason for that. There's no reason that should be yeah, and I mean at the very least the guys that has a record of domestic violence. You think we'd be able to keep guns out of like it. If you committed domestic, my you, don't get a gun and that's like that's one of the things. That's always tied to these mass shooters, like domestic violence, is one of the leading indicate,
that you might more so than a political ideology on either side Dan, what do you think? Well, I was agree with all of that. I think there is something I mean. What happened was horrendous and scary. You know for those of for people, who've worked on Capitol Hill or wander around the halls there. You know there have been a number of their back several incidents over the last. You know ten fifteen years targeted at the capitol or members of Congress, and there probably is something slightly more alarming to us when it's our political leaders were targeted. If that is what this turns out to be, I don't think we know enough to know that exactly the background here. But if that's what it is, that's more alarming, but in and we can all admit political
rhetoric, it's overheated we should all get along, which is sitting next to Republicans in the state of the union. You know come by, but you know I was in San Francisco yesterday and at the same time, almost the same time that this happened yesterday morning, someone walked into a ups office, not too far from my house or from a lot of the big tech companies that are here and shot it up and kill the number of people and that had nothing to do with political rhetoric. It had to do with the whole some other things, and so we're going to talk about political rhetoric. We should talk about the other,
Things to you know first and foremost comes guns, but you know we're all we're always very hard on Paul Ryan on this podcast and then on Twitter and me in particular. You know I thought he in Nc Posi did a good job in calling for unity. In you know, we have to say I'm sure that the members of Congress are actually shocked by this boats. You know scared, and we know when it's someone you know it hits home it. Just the hope would be. You get a different policy outcome, but my particularly hopeful about that yeah I mean look at. I thought that, like the like, you said Paul Ryan, Nancy Pelosi, people on both sides of the aisle said the right thing. Donald Trump statement was good right like thank God for that. You know because I could have gone in any number of different directions, but the same people who are always causing trouble in the right wing media like Alex Jones and Sean Hannity, and most of the hosts on Fox NEWS, Fox NEWS yesterday, when they were saying like
was like left wing media that was radicalizing people Alex Jones had seen and endorse the attack, Infowars and was media inspired. Donald Trump Junior was blaming it on elites in blah blah blah like it's just like look violent people and violent rhetoric exist on the left, just as it does on the right, but the idea that Bernie Sanders or the Rachel Maddow show or like any of this liberal media stuff, like like rhetoric, gets heated, but these people are not inspiring fucking violence. Yeah come on, it is so frustrating Alex Jones today said what happens with Blitzer when somebody pumps rounds into your little pumpkin head and says it's just political, I'm not the one. That's calling for violence you're going to get wrecked bad. There are a lot of people like Santa Claus, but making a list and checking it twice, but who's been naughty and who's been nice. If you kick off civil war, two baby you'll think Lexington conquered was a cake.
Sounds to me like he is looking for an excuse that is someone with millions of listeners and weak who's being interviewed by Megan Kelly on NBC. They right and by the way he's not really, if you like, who knows, he's a tough guy and really want to fight. What we do know is that this is his business bottle. He needs a boogie man to scare people to anger them to get listeners to get them to buy is survival packs in rather shitty hawks so there we go, but does he does he sell survival? Packs? Oh yeah man? This is just fill as it just filled with twinkies. I'm sure you know. I'd like to you say the POD save America had a survival pack advertiser come to us and we said no. We said that was nowhere not said that was weird to just send us more politically You said no right, yeah, I you said no. I said yes, but that's right. Time is very careful. The advertisers I also like Newt,
English today, essentially accused the Intel community of staging a coup against Donald Trump like come on. Guys, new cooking, which is the world's biggest hypocrite, he's calling Bob Muller the tip of the dip deep state spear trying to takedown the Trump administration, but in the 90s he was savaging the Clinton administration when they defended over they criticize the KEN Starr investigation. Just a real quick note about the FBI. It's mostly FBI agents are mostly like white guys that are older, that are into law enforcement. That is like the prototypical Republican Bob Miller fought in Vietnam. He was a marine like these are pretty conservative individuals to say that this is some sort of liberal group out to get Donald Trump crazy. It's a ridiculous. There's like in the hypocrisy, just knows no bounds on this. I know Dan. What do you think of the the right wing media reaction? Well,
actually nude, who tweeted the day Mahler was picked it. He was a great pack and, as we did yesterday, that he was leading into the tip the deep Speights steep state spear, which is a hard thing to say I mean it. It's all read the whole thing is, I thought the most the two most irresponsible things that happened beyond Alex Jones. He was Kellyanne Conway. Who is not star right wing media person, she's a senior government official to the highest non elective rank you can have in the government and to re tweeting, rumors unconfirmed rumors about the shooting, while the law enforcement, still figuring out out. You absolutely cannot do do doing it it to stoke partisan anger and then Donald Trump's, son, Frado or Donald Trump, Junior or whatever you wanna call on, but he blame
the shooting on Kathy Griffin and the Shakespeare in the park print production that included the assassination of a of a character like Donald Trump yeah, and it's a can. We just take a breath for five minutes and not be ridiculous about this and try to do the right thing. That's the thing we could have gone through yesterday in another world with everyone, just stopping at the condemnation of the violence, saying that it's it's a it's a good moment for everyone to tone down rhetoric and really think about what you're saying and move on from there. We could have done that, but we can't because we have a group of people and the right wing,
who are intent on making sure that everyone, you know it's the last yeah I mean we used to. We used to feel I'm anything. We said at the White House with a responsibility to get right and there was quite a cost to getting it wrong. If you look back at Benghazi, if you look back at the early details about even the Bin Laden operation like we took a lot of from getting some basic facts wrong that we had to correct. There is no cost for that anymore, with Kellyanne Conway we're done from juniors in north and south the rapid response director at the white. I think the thing that is different it felt different about this is in all of the other tragedies in mass shootings that we dealt with when we were in the White House. The right, like the far the fringe of the right wing media did their thing. Drudge Alex Jones Hannity, but then, but most Republicans either in the media or in Congress, did the right thing, at least in the moment. Maybe they've dives it into the policy outcomes we want, but they behaved like dignified patriotic Americans. What is different? Now,
all is the far right fringe is sitting in the White House or that they have or if you like, our actions have been given the imprimatur of legitimacy by the White House and so they're now at the center of power, and that's you can't it's much harder to dismiss now like. I would have cared what Kellyanne Conway said about this when she was just hoping, Laura, Ingram canceling the foxes, if you could go, but now that she's a senior vice the White House in matters yep yeah or for again and culture who is saying, like the resistance start, opening fire Rachel connecting the fire to the resistance movements which is just easy. It's just crazy, but you know it. I. I do think that, like there was enough responsible politicians that didn't take it there on both sides, which was which was good to see. But you know, like you, said, Tommy, let's see what happens on guns yeah. Sadly it doesn't like. You know. We thought we saw after after new town. If, like Joe may,
Jen and Pat Toomey Republican Serve Republican from Pennsylvania and a guy who literally like shot the affordable care act in an ad. Couldn't get background checks pass through the Senate. Then, like I, don't know what kind of political coalition we can get to do that were in Patriots Country Bill Bella check. Do your job to something. Do your check this and if you can't cheat, is at the Bella Bella check thing: that's hurting! You can't say that word the New England right now we will little get sanctioned if you say that your your in New England, Boston you're in Logan Airport you're, probably I don't you're, probably looking. I know I'm a big phone, I'm gonna he treats fing. Don't you dare go to Dunkin donut after this yeah? I don't know why out here in some dude in that Larry Bird Jersey looks like Mark Wahlberg's, gonna punch me in the mail like I thought it was like to tape the who have been my brother I'll, be like what what's up house of pain. So this is second biggest story from yesterday, what I'm going to say, Washington, Post last night reports that President Trump is person
any under investigation by special concert, reported that Don Trump is now personally under investigation by special counsel, Bob Muller for possible obstruction of justice. Also, investigators are looking for evidence of potential financial crimes among Trump Associates boobs. So how about that now I mean you too, This during Comey's hearing, but call me basically said this- confirmed this during his testimony when he said that I'm sure he's at quote, I'm sure the special counsel will be looking into obstruction of justice. Now we have Doj or FBI officials. I forget who the background source were confirming that this is the case. Some irony here. This is the first of anyone is read back my tweets to me and I felt good about it by it. I mean this is
is obvious and I think reporters that I've talked to have been just trying to nail this down since the since the economy. Testimony because it would be irresponsible for mother not to look at this, because it is like the textbook definition of at least potential obstruction of justice. If you fire the person investigating, it is actual structure like it's obvious acceptance, affection if you fire the person who is investigating the crime that you may have committed, and but what I think is interesting, but you point out that they're looking at everything yeah and they are going deep in this- is gonna S really. This is gonna, be a massive g sockets, a cloud of what else, because I think it down from should always be referred to now. As President Donald Trump, who was on
criminal investigation yeah X today, you know what I mean yeah, I'm not. I did not tell the section Russia for the first time I title that the President is under investigation. That is, that is what's happening there. No, I mean is there is some irony irony in like one of the reasons the Trump fired call me is because call me wouldn't say publicly: the Trump wasn't under investigation, a firing that lead to Trump actually being under arrest. I mean that the the irony of all this amazing part of all this is that, if trumpet just let this investigation play out into collusion, who knows what would have happened? But the fact that he decided to question call me the fact that you decide to go to Dan Coats that that do you not have national intelligence to MIKE Rogers, the head of the NSA to Richard alleged the deputy director and ask them to help button up. Call me to help.
Ask him to to calm down the investigation to General Flynn is part of the reason is now being investigated, and apparently the Wall Street Journal reported that the deputy director of the NSA wrote a memo documenting a phone call that Rogers had with Trump or Trump question the veracity of the intelligence. Community's judgment that Russia interfered with our election and try to persuade Rogers to say there was no evidence of collusion between his campaign and russian officials took. He is creating every single problem with himself both privately and publicly. By tweeting, like an I mean, can we just go back and talk about like what Trump could have done right like so, there is a massive amount of evidence, the Russian to fit with the election right, and so obviously, the FBI opens a counterintelligence investigation to look into russian interference to see
if there was any kind of collusion whatsoever. If you have nothing to hide your Donald Trump. If you swear that you're not under investigation, you didn't do anything wrong. Maybe someone that you know did something wrong and you don't know that they did something wrong. You say, let's get a full investigation done, let's clear this: let's, let's let them do let them do their jobs and see where the evidence takes us right. He doesn't do that, and so not only does he not do that, but he like at every step of the way, tries to like
break norms like obstruct where he can try to lie like it's just it's, so he just like stumbled his way into possibly obstruction of justice. What's interesting about this, if you talk to reporters who cover this White House, a lot of them in in their darker more quiet moments will admit that they feel like they didn't properly help the american people understand Trump, the man and how petty and vindictive self absorbed and and terrible he is in, like. I think he did everything he could to demonstrate that to us both publicly and all the stories that were written about him. But you're seeing it play out and how that would manifest as president I'd states and like he just can't accept anyone questioning the veracity of his electoral college when that's what it is heavy bullshit has led to this whole. You know what that venture you just had on it, but the him being upset that people are questioning the veracity of the electoral college. When could be at the root of all of this right,
I mean who knows, there could be collusion and he could be aware everywhere. We don't know right, but like it's very likely that all of his misdeeds come right from him. Worrying that Russia interfering in our election means that he's not a legitimate president and he's pissed about that, and so he has just kind of been a fucking bull in the China shop Dan. Where do you think the thing? That's amazing here is it's not everyone always says it's, not the crime. It's the cover up. This may be a situation where Trump goes down for covering up something that wasn't. Prime, like it's very possible. There was no collusion right. That is maybe even the most likely scenario, because the people all seemed too dumb to actually execute collusion. Still, there is some kind of arrange. We're with Jarod could, let's hope, just out of here narcissism in security. He obstructed justice his chest like a really fitting and to the shakespearean tragedy. That is the Trump Presidency
so can so there was rumors floating around. We talked about this a little bit on Monday. Then maybe he fires Muller right. Can he fire Muller? Will he fire Muller? What do we think about those Dan? What's your take? He I mean tech Klay yes by he has to fire Rosen's dine. They got that right person yeah, that is a virus and signed to do that right. He cannot do it himself and so because that was part of thought as I understand per the refusal, so this will be very much
like if you were to do it. The Saturday Mass at the Saturday night Massacre with Nixon where Dixon just kept firing people until we found someone who would actually fire Archibald Cox, the special prosecutor in the Watergate case- and so I mean who knows like it may be. The person who checks ids at the front of the OJ would be the only person who had fire Muller. So if he does, it would be quite a massacre, but politically he cannot do it, which means he'll, probably try right. Well, let's say because my first reaction, when I heard the rumors that he was thinking of firing Muller, is, if
does this. The conversation has to move to impeachment, and you know a bunch of on Twitter said to me like that'll never happen, because Republicans will never do it. I'm, like you know I get that maybe, and I I can. I can never get in the minds of Republicans in Congress. Who knows what they'll do you know how who knows how far they'll let him go, but our conversation has to move to impeachment and Democrats have to start demanding pizza, because I mean you just you can't you fire, you were firing, the guy that was investigating Russia and not lead to the appointment of a special counsel. Who is appointed by your deputy attorney general. The reason it was appointed by your deputy attorney general is because your attorney general had to recuse himself because he had done disclose meetings with Russians. So then, the deputy attorney General hires, a special counsel, former FBI director, appointed by republican President like in Vietnam, war, hero and now you're going to fire him too, as he's investigating you for obstruction of justice. No,
you have to draw the line somewhere. We had is impeachable as we follow the bouncing ball of this of this case. Again, I I'm with you like. I, I need to just sort of level set with myself every once in a we. What is rationally what what is in the scope of sort of like normal political actions, are discourse in absolutely there's no question that this is it. The context has to turn to impeachment. I mean: do you think that would be enough to enter what you think. I think we not I mean Democrats absolutely would, and should it do it but I can make a couple first. Bob Miller is a person beyond impeachment. He is who is so good at his job as FBI director to hit this. The Congress passed the law to let him serve longer the ten year term, like that's how good he was at a job, how much people liked him. It's like with broad Democrats before this could not agree on anything. They can agree on Bob,
yeah, so that's one two. I can already see the path for how Paul Ryan takes trudges out to the microphones and then capital an defends trump on this, because There are the right wing. Media is already doing his hand. It is already doing this. They are trying to say that they're like pulling the Fec reports to the people who ballers higher. Like I say this is Kim that it's rigged their weaker is
and there they will create an alternative reality where firing bobble. It makes complete sense, and if you only watch Fox news, then you will think it makes complete sets and so and Republicans in Congress. Only watch Fox news, so it'll make complete sense and they will defend them on it and it will take Democrats taking the house the change. The conversation on that yeah I mean I saw. I saw a if you had a poll, a six and ten people think the trump tried to obstruct or impede the rush investigation. Of course, like he only has a thirty seven eight percent approval rating anyway Trump today, tweeted, you are witnessing the single gray. List all caps witch hunt in american political history led by some very bad and conflicted people, one somewhat positive sign and I'm sure he could walk it back later, but John Thune Senator from South Dakota yeah, said
Bob Miller is a man of integrity. This is not a witch hunt which just goes to show you. He like you said, and he is it's going to be very hard to impeach by Miller's character, at least if you're, like a regular republican politician like Sean Hannity, Newt, Gingrich, the rest of them, they already think he's like the worst guy ever, but I I do think it's gonna be hard for some of these republican politicians to get there, but they could. I mean also like, if you fire by Mullard, there's nothing stopping him from walking out the door and just to spend roasting you on every network, doing press conferences every day. I mean look active commies been yeah, we'll call we got a special prime and what it can we get a special prosecutor. We got, we got Miller the motherly, what mode with smaller gonna get hiring people hasn't played so well for for Donald Trump, all right. Let's move on to the affordable care act, the attempts of the repeal of the affordable,
The biggest story out there right now. This is the third biggest story, apparently because the President United States is under investigation. There's a the horrible shooting yesterday and by the way Senate Republicans are writing a bill that will affect the health care of every American, with no public hearings, no public debate and no input from a single Democrat. So talk about your bipartisan unity, Orrin Hatch, the second most powerful Republican in the Senate today was asked about the bill and said you know. When are we going to find out? You know? What's in the bill? Who knows it's in the bill? He said well, join the crowd, I'm in the same category. I don't know, what's in it, either hey Buddy but will meeting? What are you talking about he's not invited. He was not invited. I guess for wearing hats, didn't get it didn't, get the invite for orange. Well, there's one that all that Orrin Hatch is actually in charge of the committee that writes the healthcare well. This is actual job who's like who is writing this bill, then Mitch Mcconnell and can TED Cruz and I'm like what's happening. It's Mitch Mcconnell
and twelve other white dudes, just a it's farm, or eleven other way too it's in TED Cruz, or something like that. So on Tuesday Trump said there was a report that Trump said the House bill, the House build some care that he celebrated in the rose garden was quote mean and he used a folder for hit phrase to describe it. What we and we don't know that it's piece of burger king up what we think is a I don't know so served from sort of throws the house bill under the bus, at least in private. It's as though the Senate bill needs to be more generous. I actually don't think everyone is like all that's tough for the house. How could you, through the house under the bus like that, like it's, probably good for the overall bill for them? Because if Mitch Mcconnell can say? Oh, he was right. We made this bill more generous, even if it's just like, because medically more generous and not really more generous than the you know, they'll get enough people saying they
moderated it and get it through right so like, and that that was a great thing. That Trump said that what do you think that? Well, I think it's not good for the equate contacts for a quote Unquote Senate bill, but I do think that people can run ads against these members say even Donald Trump thought this be was wasn't good enough, because even if we pass another bill, I don't there's a and did not hit them on the on the original vote for Wealth Kerr, and so just keep that camera with that and then we're going come back and say no. My vote only took healthcare away from thirty one million people. You lied like that's a great debate to have, I mean yeah also, so what we know about the Senate bill so far from everything we're hearing is because it's not going to be so so different from the house bill. It charges older people, more charges, sicker people, more cool it gets Medicaid again Medicaid covers
not just low income people but families, children, pregnant women, the elderly, in nursing, homes of people with disabilities. A lot of kids with disabilities get their coverage through Medicaid
other thing. They say that the Senate bill is going to do. Is it's going to allow states to eliminate essential health benefits so as anti slab at wrote? This are not bad today who used it row run Medicaid Medicare for in the about administration. Insurers couldn't deny coverage to a cancer patient, but they could deny treatment to a cancer patient. So basically it gets around the pre existing condition thing by saying yeah. We technically have to offer coverage to people with pre existing conditions, but we can. We can not have to deal with all the sick people by just not offering the treatment that the sickest people need and call those essential health benefits. One of the things that that would do also is the Senate bill, probably lead to return of annual and lifetime benefit limits for as many as twenty million people, including people, have coverage from their employers. So this is not just the individual market
coverage from your employer. Your employer could decide to say you know what there's going to be a limit on the amount of health care coverage you get each year and for your lifetime. So if you have a serious illness, the requires a lot of money in a lot of treatment. They'll cut you off. It's a best of luck. Good luck on your own! It in which this is so so cynical Tom Price, the head of Hhs, is reading. Complaining. That Obama is, I did about a formal care act, left twenty million people still uninsured. Yes, you crave and creep. That's because, like a bunch of states into Medicare expansion, that's because illegal or undocumented immigrants aren't covered under the plan and young people don't want it so that the thing I
someone asked Dan about Safety- and I saw you tweeted this as Levin pointed out from indivisible- that, with the reconciliation process, you have the option of procedure on a procedural move called the vote. A Rama which means Democrats could offer unlimited amendments. So, conceivably, you could say we're introducing forty thousand elements. It will take ten minutes to read and vote on all of them and you could bottle up the process. Through twenty eighteen, you indefinitely, if you wanted to, I mean I do where do you draw any line after Mitch? Mcconnell stole a Supreme court seat from present a bomb after we're running this healthcare bill through a process that is the most secretive in the history of the Senate. Basically, what do you think is sort of accept? What should Democrats do here,
look at. I thought that was very interesting, the red you know we, we have talked a lot about domestic. Ever we talk about all the pike as we just talk about to each other, but either on the podcast or to each other. We talked about how like whether what the Senate can do to actually Senate Democrats would actually stop this they bring the sent it to a halt is with this. This very amorphous idea of you know demanding western things demanding consent on things, and it wasn't really clear what it would do as idea, which I sounds like it would work, or at least be an aggressive move, would could delay they ask is, are, I think, the longer we can delay this, the the more chance that we can do more longer option. We have five for transparency, the more chance aggressors has to express their concerns about it, and-
and so I think, it's really worth discussing a b. I'm very interested to hear- and I have not yet heard arguments from Senate leaders online. Why not to take an approach like this like? What is the alternative reason like? What is it? What what do you lose by fighting like hell to save the correct yeah? So like I, I would hear the debate because it seems patently obvious to me, but I suspect, there's probably something I'm missing in this, but it like. If you leave, we can't fight to stick protect healthcare, protect rock about the signature g been really the singer. She's been a progressive movement of the last forty years. Then I don't know what we're fighting
or I'm with him and I'd love to hear Chuck Schumer out or anybody out on whether or not they think that's a good idea, but I'm starting from a place of if they don't do everything possible to block this bill procedurally or other. I am wildly disappointed and I think that Democrats should be pushing republic if you live in a swing state with a Republican who may vote against this bill, you should call them every single day, and if you live in a state with democratic representatives, you should let them know that they should do everything possible to gum up the works and prevent this from getting through get caught trying how many times I have to say I mean so you should everyone should follow. Jeff Stein at VOX, he's been sort of covering this beat about what Democrats are going to do in the Senate on the holding consent. Thing right, which is Democrats can withhold. Consent is to come up. The works in the Patty Murray Center from Washington told him that they could do that on other business, but that Mcconnell can still bring up the bill immediately and vote on, and so she said that wouldn't work. I don't know if that I assume that's true.
She said it, but certainly the filibuster by men at the time you just brought up seems like it could work, and I do think like look. Murphy has been good about this he's been saying like this is a huge issue. We got to talk about this. We get a fight with everything we have. I saw that RON. Wyden said that every time he gets a question about Russia, now he's going to answer it with health care, which is great but like. I want every single democratic senator on board, with a strategy to drag this out for as long as possible, Chuck Schumer delete it. I know that, like Schumer is probably waiting, they wanted wanted to get that bill passed on to make sure is by by bipartisan bill. That would levy sanctions on Russia right so now that out of the way, so I don't think there's there's no more excuses and here's I get that this may not result in a victory. I get that they still might pass this bill, but the long
this bill is debated- the more sunlight on this bill. The more debate about this bill, the greater the chance that we couldn't put enough pressure on some of these republican senators to kill the bill and like we might as well try and fight with everything we've got and if we don't, then Democrats deserve a lot of activists and a lot of people in the base being very upset with them. Thinking they didn't fight hard enough, so go fight. You know, I just thought I feel very very strongly about this. I do too. This reminds me a little bit of the conversation we had around Gorsuch we're we're sort of was like. Well, maybe we is not worth fighting. His are just gonna change the rules anyway. It's like that's not actually the point here right. The point is to fight and maybe a way to maybe lose by it. You you have to fight because the p there are people who are engaged in a public
process right now. There are people that we see it. Some of the events we've done that we see on twitter that are showing up at these marches, who are not traditional democratic voters. They may even a set out the last election and butter very worked up. I was having this country and if they don't believe that Democrats in Congress are going to fight like hell and share their view of what a dangerous situation in this country is in then they're not going to turn out and we're just going to be in the same place. We were two years from now four years from now, and so there is value in fighting. You know, there's no, like one LAS.
At the end of Congress about how many fight she won the loss just strictly a minority. The point is to fight right and it definitely if you live in Nevada or Alaska or main or Ohio or West Virginia or Arizona or Colorado. You have senators who are on the fence. You may get scared into voting against this piece of garbage bill, which will kick tens of millions of people off their insurance call them every single day. Yeah be nice, be polite to call them be polite, don't don't harass people, but she did show up. You. Could peaceful protests go to the district offices? Call the district offices again like this, you know bring the barrel pressure, keep it polite but bring to bear a lot of pressure on the steps is very, very important. Okay and we also have we have all kinds of information about. You know numbers and everything else that we've all tweeted out and that's our Facebook page and get cooking media dot com. So what we'll send you everything you need to know because we don't have it at our fingertips right here, but but the these next two weeks are critical, yeah, I'm so everyone's got a focus really really hard on this, because the lives- and
look one more thing too. There's a lot of you know the statistics thrown around, and we do that here too. If you have a story about health care, if you have a story about what this matters to you, why this matters for your family tell it to yourself telling it tweet it put it on Facebook, like. I think we sometimes forget the power of individual stories to drive this debate, because that's what this is actually about. Call your local newspaper called the local tv station news room. If you have a health care story about and then back to you and you live in Ohio or Nevada or Arizona. Let him know China should anyone else. It was the story of a woman named Toma Canfield in Ohio, who is dealing with cancer, who that hell is probably the reason showed a letter to Barack Obama. He talked that letter and he used it, and this is probably the reason the health care became law, and so these stories matter hugely when we come back we'll be talking to former Obama Cabinet Secretary and White House lawyer Daniel Gray, hey don't go anywhere. This is
of America and there's more on the way POD save America is brought to you by zip recruiter. Are you hiring Tommy know? Do you know where to post your job to find the best candidates? I do because you have read me this copy of many times and I really appreciate it with zip recruiter. You can post your job to one hundred plus job sites with just one click, then their powerful technology efficiently matches the right people to your job better than anyone else. That's why zip recruiter is different, unlike other job sites,
scooter doesn't depend on candidates finding you it finds them it tracks down the candidates like the in the middle of the night, like kid robot, in fact, over eighty percent of jobs posted on zip recruiter, get a qualified candidate in just twenty four hours, no juggling emails or calls your office simply screenwriting manage all candidates in one place, with zip recruiters easy to use dashboard. What a lovely service that's really! Next time we hire a comedian. Maybe you know, let's get that zip recruiter going, I'm with him find out today why zip recruiter has been used by businesses of all sizes to find the most qualified job candidates, with immediate results, and right now, pod, save America, listeners compose jobs on Ziprecruiter Free, that's right, free, just go to zip recruiter, com, slash cricket, Ziprecruiter, DOT, com, slash cricket, also, everywhere, you see John love it now. He wears the vikings of the love that backpack you If you go on a zip recruiter, there's actually ambassador to Ireland, 'cause they're, seeking
Sean Spicer and then a agrees because they're going after rights, I can't believe you shipping his entire White House staff to various european yeah. It makes sense like K, keep him in the on the team. I guess good luck. John good luck ran some fun. They were gonna come such cricket. Pod. Save America is also brought to you by souness. We love send us your note that the what the copy says yeah, hey guys, one of many things we love about. You is your own personality and creative ideas. That's what I love about us to here's kind of cell I wanna tell in actual persons are about to us. I have one if you go ahead, please, okay! So the other day we live on West Coast time, which and we're lazy. So I was getting ready to take a shower during part of the come here and I really don't want to miss the hearing. The day before I put one of those little son us is in my bathroom. So I could group the speaker in the tv room and the bathroom together and listen to
two there's. Nothing like hearing the hearing. The wonderful sounds of James Comi, intones, well, you're, just sort of watching herself, the Impi Chino sounds Jim Comi, so my mother, in law, to be Marni Black, was just telling the story yesterday about Sonos. She was setting it up. She's sitting up in additional speakers. Charity has one that she loves and she's having a few problems, so she called up Sonos customer Service and she said it was like the best customer service should ever ever talk to. They fix the problem in five minutes and she was very, very have never had a problem, so it's so easy, but that's great. She wanted to make it clear that it's very easy to set up, but she just had one little will talk to morning anyway. Everyone go by so Jonas two chords, one power cord and one optical court for your tv. You don't even have to read the manual. The sun is apt guide you, through every step of set up check out some as dot com for more information, they're, excellent speakers. It isn't it is so easy and wonderful. On the pod. Today we have former Obama cabinets,
Terry White House, lawyer friend, of the pod, Danielle Gray. Danielle how's it going good how's it going good to be here. It's good to have you back good to hear your voice is always degrey thanks, man I have a question for you. You are a legal expert, Supreme Court clerk, wicked smart in general now. There's three cases against President Trump that'll allege she's violating the constitution, violating the monuments clause, which prohibits him from taking gifts and presents from four leaders, the most recent was filed by nearly two hundred members of Congress a day air here suit was filed by the attorney general in Maryland and DC, and we talked a little bit about that on Mondays POD. What do you think about these cases? Do you think there's a chance. Many of them have standing, which means that they'll be able to bring the case for murder. Is he in real legal jeopardy here yeah? So you know the
underlying issue in all of the cases of the same. You know really whether the provision in the constitution that says you know that you're not entitled to as a public officeholder accept gifts without the consent of Congress from foreign leaders and foreign governments is applicable to this kind of situation. You know, I think the founders were really worried about ambassadors, accepting horses and diamonds in really envision the trump hotel- and you know the Chinese who scheme conferences at the hotel and so the uh you're lying question in all of these cases is the same, and it's a really hard one, and I think what we're seeing with all of these different cases being filed is that before you even get to that very hard question, we have to determine who actually should be in court to sue about it and the question there really comes down to who can make the best argument that they are truly injured. In harmed by this, you know as
as a general matter. Just because a person is unhappy with something doesn't mean they're entitled to come into court and fight about it. And so the three suits that have been filed all have different theories for who has standings members of Congress have basically or making the argument that if you read the emoluments clause, it says that such gifts cannot be accepted. You know without the consent of Congress, and so their argument is that they have special interests at stake in enforcing the emoluments clause and ensuring that that kind of inherent conflict isn't allowed the other to kind of major suits that have been filed today. One is is with association, public interest law, firm known as crew, but they've also joined forces with in association of businesses and restaurants, and their argument is that Trump hotels are too
the way businesses from them, because Trump is being allowed to violate the constitution. And then the third had agreed to that. We've just seen as the suit filed by the state and their argument is that it states they have a sort of special standing. That comes with enforcing certain sovereign Prague, it is a state Supreme Court has indicated that that's unacceptable, and so I think the bottom line is is figuring out. Who has standing is much of the battle here and at this point you now basically have all of the major theories for standing being pressed quartz. Do you have an opinion on who you think is most likely to have standing of all of these three cases? You know it's hard to say, which is bad because they all have pros and cons. You know. Courts have been very sceptical that members of Congress can sue just because they are unhappy about how something is
being carried out. You know, I would think that to the the lawsuit that is been brought by the competing businesses is is attractive, although you wonder whether those are the right kinds of businesses, you know you might, you might want to see, is lost you being brought by. You know a major hotel chains to make or a real, very concrete argument of harm. So I think it's hard to say I think all three have you know major major downsides just want to ask you about the travel ban which, because there's so many other stories this week, was sort of under the radar, but the ninth circuit ruled against the administration's travel ban, bring us up to speed on what happens with the band this week and and and what the ruling was and and what the next steps are. Yeah I mean I think this is been a pretty significant we can travel ban litigation and, as you said, it's sort of fall.
Under the radar of a lot of things, and so the ninth circuit joined other courts and saying that the Executive order was unlawful on Monday, but Imp only they didn't say that it was unconstitutional, like the other courts have said, they didn't say that it violated the establishment clause. Instead, what it said is that you know the immigration statute requires the executive to proper a justification. If you we're going to do something like suspend entry, four hundred and eighty million people based on their nationality and what it says is that the proper justification wasn't sufficient under the statute and so that's important, because many people who study the Supreme Court in our looking ahead to how the Supreme Court might deal with this believe that the sort of statutory arguments against the
active order might be a more appealing ground for invalidating it, then then actually having to say that the president acted unconstitutionally. So that was pretty important, but you know I actually think more important act act happened yesterday, right after the president's cabinet meeting. Oddly enough and the President issued a presidential memorandum that amended the adjective order and essential he called on his cabinet to begin the internal review within cell in two hours of being allowed to do so by the courts, which is going to likely come as soon as next week. You know, and you know, Tommy. I know you've talked about this on pod save the world, but one of the main justifications plug there. You go one of the main justifications offered by the
ministration. Perhaps the only justification for what Doj has been causing that temporary pause on entry is that it was necessary. So The administration could take the time to can an internal review of their vetting procedures to make sure that you know x. Betting in the in the president's words. What was in fact actually happening, and the argument was that they couldn't simultaneously review the adequacy of their percy and also deal with large waves of entry into the United States from these particular countries. At the same time, and so now, the president's basically telling his cabinet go ahead, review the procedures. Now, don't worry about the fact that the courts are. Not letting the travel ban take effect, and that may not come until later, and so I think that that it's going to lead to some really difficult questions, especially when this gets to the Supreme Court from the Supreme Court about
What is the rationale for this temporary pause or travel ban? Is the president likes to call it if you can actually go ahead and conducted there with that internal review? even without the band in very well. That internal review may very well be completed even before the Supreme Court hears the case, and so that's a pretty significant development. Is that why you need to ban the Thirty, can you did the review in the vetting and then you need the band afterwards that doesn't they're morons a little bit bigger uh. You know, I think the long term significance is. I mean if you can put yourself in the position of a department of Justice lawyer, Ann actions like this one actions like the president's tweets are really making it more and more difficult for Doj to enjoy the kind of credibility that comes when you say. You know I'm standing here on behalf of the United States and that's credibility that Doj fights pretty hard to preserve,
and so I think the erosion of that kind of credibility. You know putting Doj in a position where they essentially defending Arash. Now that you know at least speaking Bentley undermined in a presidential memorandum issued in the middle of the afternoon, you know that's a really hard blow Danielle as an attorney. Is you watch like what is your reaction, just as you watch Trump in his spokespeople constantly do things that potentially undermine the cases attorneys are trying to make it that exact moment? Yeah I mean it's, it's really. It's really hard. I find myself having a lot of of empathy for his legal team, which you know Is you know Dan? You know in the White House, you know the low. Ears are often having to find themselves in the position of explaining to the policy, staffer communication staff or other staff
you know. You know why it is that Doj wants to argue a case in a certain way or why it's important that White House officials do not make statements from the podium about cases that are being actively litigated. You know and there's no hard and fast rules here, and there are always exceptions that are made that that's a pretty regular dialogue. I think with surprising here is just the the the it seems that hi and time again the lawyers are really losing out in that exchange and and seemingly at great detriment to the it is a gender wishes. All raises the question, at least at least with respect to the travel ban case. You know, God does the President want to win the case? Or is he just? You know really want to win the issue, you believe her, but isn't the answer because once he just wants to going to be nice day, no, you are
your president about Cabinet Secretary, you know the short version. Is you manage the entire cabinet? Can you talk about the purpose of, meeting and if you ever seen one like the cabinet meeting you mentioned earlier, the President Trump held earlier this week where everyone went around the table and told him how great he was like some sort of bizarro north care. North korean propaganda film I think this is another example of how we were doing it all wrong, which is yeah. We go around the table and talk about like problems that everyone was facing, which you know we probably talk a little bit more about the winning, but no in all seriousness, I've. Never seen or imagined anything like that forget about on camera. I've never witnessed anything like that. You know even once the press pool was ushered out.
And you know the meeting continued we really did spend much of our time in those meetings. Talking about problem, and sometimes actually talking about shower is that were of our own making and that that kind of, like serious reflection was often of a large focus of the cabinet meetings, seems crazy, seems like much easier to just. You know praise that we should just told brag about how wonderful it was every day. The funny thing is that I would have pissed him off. You know he did. He was here to get like that. Can meetings the last I really feel bad
for the people who were like halfway around the table, because you know like once right said. Thank you for all of the blessings like what do you say after that yeah they took all the good adjectives. Daniel last question will let you go. Has Neil Gorsuch surprised you so far, or is he been pretty much what you expected? I have not been surprised and I don't think anyone have been surprised. I also don't think the docket of the Supreme Court At least this term is, you know, has enough of the kind of cases where I think the you know prediction. About how conservative or not Justice Gorsuch is have been really called. The question I think, we'll probably get a much better sense of that next term. Putting you know with the travel ban case we will be, will be watching that Danielle.
Thank you so much for joining us and please come back again. There's lot of legal stuff going on out there. I think we're going to we're going to need your help quite often no thanks, thanks for having me and having a particular morning, John Congrats, to you and Emily. Thank you so much I mean what about Tommy and I were going to have some fun this weekend too. I'm pretty sure of that, but at least for John you know they said this day would never come That is a good life. The winter. Emily is the change we were waiting for us, so title hi, Danielle, alright, guys thanks for having links but but Lots of America stick around, there's more great show coming your way. Pod save America is brought you by seek that's how I got my ticket to your wedding.
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It'll be the cash three cash out pod. Save America is also brought you by her friends post mates If you haven't downloaded postmates, yet we have a good deal for you. You download the app you type in the code, Krooked and you're getting fifty dollars of free stuff. Over to your house, and you can get anything delivered. It doesn't have to be delicious foods which it can be. It could be a White Board or Dryer Race Board say we need something for the wedding. Last minute say: we forgot the say we have made some rings right say we only have six chairs at your office and you have visitors over and they have nowhere to sit, and it's embarrassing compose made some trip post, nasal, chair, excellent everyone go download, post mates, on the pod. Today we have a very special in studio: Guest TIM Black- You are a federal judge for the southern District of Ohio Hoover in the gay marriage case that ultimately made its way to the Supreme Court two years ago, this month, Obergefell versus Hodges. More importantly, you are officiating my wedding to your daughter, Emily Black, indeed welcome to
let's save America them well, I'm delighted to be here: it's a high, honor and great privilege, I'd like to make a number of disclaimers number one. I don't talk politics, that's right! Two! If we're going to talk about marriage, we're going to talk about your marriage the primary reason. I'm here is just to make sure you're in town in her absolutely coming. There closer set, no fun to talk, but it's very difficult as a judge to talk publicly about the work. Judges do that dinner judge for more than twenty years, and I think I've built. Reputation as being someone who is a straight shooter respected by both sides, yes brand appropriation, glad we have one on this pod and if Levitz show it is you coming to the wedding he is going to the wedding like he's on his way. I intend to speak with him about check out my tagline he'll, be giving a speech tomorrow night, so I think good on you can see how
come up and Tommy it's nice to see you right to see you too, I'm glad you're here for this wedding understand. Weddings and marriage are highly. Can just so want to warn you of that good with getting his face, got red because it's hot as hell and So obviously we wanted to bring you on. I want to bring you on for reasons of pure nepotism, but also so hot right. Now, it's yeah it's the two year anniversary of Obergefell, and I just wanted our listeners to get a sense of how a judge rules in a case that has such political implications so take us back. The case came to you in alive. Two thousand and thirteen tell us a little bit about the case. Well, it was two men who were Cincinnati Ensued, been along time over twenty years, intimate relationship and one of the man was diagnosed with a ls which is progressive and fatal an he knew he was going to die in the last thing he wanted to do was Mary, his spouse, and can't do that now
now so they medevaced couple to Maryland married on the tarmac and came back to Ohio and then learn to their disappointment that on the death cert we could have John Arthur, who was dying. He would be listed as unmarried and surviving spouse would not be completed because Ohio refuse to recognize same sex marriage, but in Ohio, it's like in most states it's the law of the location. If you get married validly in one state and come back to another state, that second state recognizes the marriage, even though they don't perform it in the state. So, for example, if your first cousins and he screwed over to kentucky- and then you come back to Ohio, although Ohio does not perform first dozen weddings Ohio will recognize that wedding, marriage and
likewise, if you're underage and you screwed over to Kentucky and come back to Ohio with a valid Kentucky, even though you're underage Ohio will recognize it and the only merge that they wouldn't recognize was same sex marriages, and so it was a question of fundamental fairness. Equal protection of the law and the Supreme Court decision speaks for itself, but it started in a courtroom in Cincinnati. Now it must be very difficult right. Obviously, the voters of Ohio decided that they did not want to recognize same sex marriage. This case comes to you. I absolutely love the opening line of your opinion. That just starts. This is not a complicated case. How was it not complicated for you with all of this stuff swirling around it? Well, that was a provocative statement and I said I set it on purpose: it had enormous ram
vacations, but it wasn't complicated institution guarantees us the equal protection of laws, and you can single out popular minority and take away. There are fundamental rights and we have a fundamental right to be low left alone by govern unless there's a substantial public policy. Reason and so I didn't struggle with it. I knew the ramifications would be significant, but I wanted to start by saying this is not complicated. This is about fundamental fairness and Wound its way through the courts, I get reversed by the court of appeals and then the Supreme Court reversed the court of appeals. So how hard is it to tune out politics when you're deciding a case? Some people today have said you know whether it's Trump's comments or other comments. News is everywhere. There's a lot of political rancor these days and without judges are only human. So,
some of these comments have an effect on them. How how do you, as a judge, tune all of that out when you're sitting you know and trying to make a decision and trying to write an opinion? I want to be judged. The type of judge that I would want to have on a case if I were litigated something significant. I want somebody to make an independent decision on the evidence and the law and not on their political directions. I am, however, a human being with values and background and training, but I've been trained to simply look at what the facts are and decide how the fat x play out under the law, and I don't ask a criminal defendant. Are you a Republican or a Democrat? I don't ask anyone that accord. As I see it, I'm like love it. We are definitely added
apart. I there's a lot of jokes. We get a made here, but we're not one thing I look at you have Mentor Judge Arthur Spiegel, who said give you the advice always make a decision without looking over your shoulder. But what does that mean? It means don't look over your shoulder worrying about who who's going to react in what way, but in the spirit of full disclosure, it's a heck of a lot easier to approach life that way when you're appointed for life and not seeking to get re elected every six years, a state judge in State Court judge in Ohio I had to get reelected and when I made a decision that was high profile right, not to look over my shoulder and my
one time mentor when I got to the court where he was talk to me about courage and just call it like you see it to him, don't look over your shoulder and I try and do that Obama is to say that he was looking for judges who are appointed. Judges who had a sense of empathy got some criticism for that. But what do you see? Do you think, there's a role in making sure the judges have ample see. And how do you balance that out with, as you said, being a straight shooter respected on other side, let's say hard quest and that's difficult to answer with a sound bite? But, yes, I think judges should have empathy answer pussy and when I was facing confirmation after the President's nomination, we were told to be very careful with the agitator, the noun empathy, but the truth of the matter. I think that's one of the most important qualities in any moment in life
and even as a judge, there are times when you can be empathetic or sympathetic without being lenient and without being raw and I'm getting older, but my favorite quote: mission in the world is from Danielle GOSH Oaks essay on political, Peru process, and she says when we studied the biographies of our heroes. We find that most of their time was spent in quiet preparation, doing tiny, decent thanks until one historic moment, catapults them to center stage and causes them to tilt empires, and I have tried to live my life in a way when I have the opportunity, I do the tiny, decent things and I've tried to teach your bride that as well. That is
very, very nicely. My bride to be is actually in the room. Right now only want to come, say: hi K, pod people. This is a very moving episode for me, but I'm ready to go back to let's go. On that note. Judge Black TIM. Thank you for joining us and and thanks for marrying us, that's for going to save us some money, I'm looking forward to it. Thank you, John Good, to see you Tommy great to be here. Let's leave it at that by
ok. That's all the time we have on today's Portland POD save America. We will, I won't, but these guys will see you next week by everybody.
Transcript generated on 2019-10-14.