Jeffrey Toobin On Lawfare And SCOTUS

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Jeffrey Toobin is a lawyer, author, and the chief legal analyst at CNN, after a long run at The New Yorker. He has written many bestselling books, including True Crimes and Misdemeanors, The Oath, The Nine, and Too Close to Call, and two others — The Run of His Life and A Vast Conspiracy — were adapted for television as seasons of “American Crime Story” on the FX channel.

You can listen right away in the audio player above (or on the right side of the player, click “Listen On” to add the Dishcast feed to your favorite podcast app). For two clips of our convo — why the Bragg conviction helped Trump, and the origins of lawfare with Bill Clinton — pop over to our YouTube page.

Other topics: growing up in NYC as the only child of two journos; his mom was a pioneering TV correspondent; his dad was one of founding fathers of public television; Jeffrey at the Harvard Crimson and then Harvard Law; how Marty Peretz mentored us both; the conservative backlash after Nixon and rebuilding executive power; Ford’s pardon; Jeffrey on the team investigating Oliver North; the Boland Amendment and the limits of law; Cheney’s role during Iran-Contra; how Congress hasn’t declared war since WWII; Whitewater to Lewinsky; Ken Starr and zealous prosecutors; Trump extorting Ukraine over the Bidens; Russiagate; the Mueller Report and Barr’s dithering; how such investigations can help presidents; the Bragg indictment; the media environment of Trump compared to Nixon; Fox News coverage of Covid; Trump’s pardons; hiding Biden; the immunity case; SEAL Team Six and other hypotheticals; Jack Smith and fake electors; the documents case; the check of impeachment; the state of SCOTUS and ethics scandals; Thomas and the appearance of corruption; the wives of Thomas and Alito; the Chevron doctrine; reproductive rights; the Southern border and asylum; Jeffrey’s main worry about a second Trump term; and his upcoming book on presidential pardons.

Browse the Dishcast archive for an episode you might enjoy (the first 102 are free in their entirety — subscribe to get everything else). Coming up: Eric Kaufmann on liberal extremism, and Bill Wasik and Monica Murphy on animal cruelty. (Van Jones’ PR team canceled his planned appearance.) Please send any guest recs, dissents, and other comments to [email protected].

Here’s a fan of last week’s episode with Anne Applebaum:

I loved your freewheeling interview with Applebaum. Just like the last time she was on, each of you gave as good as you got.

I tend to agree more with her, because I fear that sometimes you come off as what Jeane Kirkpatrick called the “blame America first crowd” — not that we haven’t committed our sins. But if we didn’t exist, Putin would still be evil and want to recreate the Warsaw Pact, and the mullahs in Iran would still be fanatics despite our CIA involvement. It’s complicated.

Another on foreign policy:

I despise Putin, my sympathies are totally with the Ukrainians, and I get angry when people like Rod Dreher and Tucker Carlson imply that the Russians were forced by the West to invade Ukraine. But, so what! You hit the nail on the head with the Obama quote — that Ukraine is never going to mean as much to us as it does to them (the Russians). You also made another very good point that the Russians can’t even conquer Ukraine, but we’re supposed to fear they will march West? How they going to do that?!

Another took issue with several things from Anne:

You raised the immigration issue, and Applebaum completely dismissed it:

Hungary doesn’t have a migrant crisis. … Because it’s a useful symbol [to] create fear and anxiety. … This is the oldest political trick in the book, and the creation of an imaginary culture war is one of the ways in which you build support among a more fearful part of the population.

WTF? Are Hungarians not allowed to see what is happening in every other European country that has allowed mass migration and see the problems it has caused and proactively decide to prevent this?! Are they not allowed to be concerned until Budapest has the banlieues of Paris, the car bombing gangs of Sweden, and the grooming gangs of England?! And in Germany, it has been recently reported that almost half of people receiving social payments are migrants.

Applebaum followed that up with an even bigger gobsmacker about Biden’s cognitive decline: “This is another road I don’t want to go down, but I know people who met with Joe Biden a couple months ago, and he was fine” (meaning I just want to make my statement but will not allow you a rebuttal). And then:

I’ve met [Harris] a few times, mostly in the context of conversations about foreign policy and about Russia and Ukraine and other things. And she’s an intelligent conversationalist. … I was impressed with her. And these are way off-the-record conversations... And I was always more impressed with how she was off the record. And then I would sometimes see her in public. And I thought, she seems very stiff and nervous. … You’d like her if you met her in real life.

Translation of both of these excerpts: “You plebes who aren’t insiders just don’t understand, but trust me — the connected insider — instead of your lying eyes.”

Another adds:

I think for the next few months, you’re going to have to push people like Anne Applebaum to be more open to criticizing the Biden-Harris record. She’s a smart person with important things to say, but she clearly dared not criticize the current administration, lest she be seen as helping Trump. 

And another:

She says, unironically, that autocrats rig court systems with exotic new lawfare to attack their political enemies to seize or cling to power. I wonder what that makes Alvin Bragg and Merrick Garland.

This Dishhead listened to the episode with his teenage son:

The notion that Trump supporters want a dictator is beyond ridiculous. They are among the most individualistic and freedom-loving people in America. They are the Jacksonians, the Scots-Irish heart of this country. They are ornery as hell, and if Trump tried to force them into anything, he’d have another thing coming.  Just look how he tried to get them to take “his” vaccine. That didn’t work out so well, did it? 

The truth is, they view people like Anne as the ones who are taking away their rights and freedoms through their absolute dominance of the media and all cultural institutions. Now maybe Trump will deliver them from that and maybe he won’t, but that is what they are seeking — not a dictator, but someone who will break the hideous grip that the liberal elite has on the culture.

My son is 18 years old and was also listening to the episode. He is highly engaged in national and world affairs, and he also thought Anne was way off track. He’s already announced to his mother (much to her chagrin) that he will be casting his first vote for Trump. And get this: he’s going to Oberlin College this fall. I can assure you he’s not looking for a dictator. He’s looking to say “eff you” to a system that has no use for upper-class, normal white boys like him. The elites hate him and his friends.

But I’m glad you have a diversity of views on the Dishcast. It really is the best. I look forward to listening to it every week.

I can’t back Trump, but I do think your son is onto something. On a few other episodes:

Lionel Shriver — I love her! I wished you’d talked more about her novel, Mania. It’s not perfect, but it’s good.

On the Stephen Fry pod, I was resistant! He’s irritated me at times. But I loved it when you two started doing Larkin! I shouldn’t admit this, but “Aubade” could be my autobiography. I think one or both of you misinterpret “Church Going.” Larkin doesn’t wish he had faith. I don’t think that’s relevant to him. Fry talked about how he liked everything about Anglicanism except for the detail about God (and I always suspect that for Anglicans, God is a somewhat troubling detail). I’m probably just guessing, but I don’t think that’s Larkin. Larkin didn’t wish he had faith. He was elegiac about the past in which there was faith. I think you’ll see this sensibility in “An Arundel Tomb.”

Agreed. Another on Shriver:

She seems to think that “liberals” are mistaken in believing that everyone can be equal, but I think she is mistaken in thinking that is what they believe — at least those I know. Liberals do think that 1) expectations play a role in what people achieve; and 2) given the right circumstances, many people find they can achieve more than was expected. Low expectations do lead to low outcomes (and yes, there is research to support that statement). Does that mean everyone can do anything they wish? No. Neither you nor I will ever be a concert pianist, but let us not condemn everyone to the garbage heap based on false expectations.

Thanks as always for your provocative discussions.

Here’s a guest rec:

Musa Al Gharbi, a sociologist at Stony Brook, has written for Compact, American Affairs, and The Liberal Patriot. His forthcoming book, We Have Never Been Woke: The Cultural Contradictions of a New Elite, draws on Pierre Bourdieu’s notions of cultural capital to analyze the ascendant symbolic capitalists — those who work in law, technology, nonprofits, academia, journalism and media, finance, civil service and the like — and how the ideology known as “wokeness” exists to entrench economic inequality and preserve the hegemony of this class. I have preordered the book, and it should be a timely read for an election in which class (education), not race, has become the preeminent dividing line in our politics.

Here’s a guest rec with pecs:

I have a recommendation that may sound bonkers, but hear me out: Alan Ritchson, the actor whose career has taken off thanks to playing Jack Reacher on Reacher.

The fact that he’s really, really, really ridiculously good-looking is the least interesting thing about him. I’d love to hear a conversation between you and him for a few reasons. First, he’s bipolar and speaks openly about it. Second, he started taking testosterone supplements after his body broke down from working out for Reacher, and he speaks openly about that too. Third, he’s a devout evangelical Christian who speaks openly about his faith — and about his disgust with Christian nationalism and the hijacking of Christianity by many Trump supporters. Fourth, he posted what read to me as a thoughtful, sane critique of bad cops, thereby angering certain denizens of the Very Online Right. 

Thus, he could speak to a number of major Dishcast themes: mental illness, masculinity, and Christianity. To me, he manages to come across as a guy’s guy whose comments on political matters sound like the result of actual reflection, rather than reflexively following a progressive script, which is how most celebrities come across. He’s articulate, and the way he’s navigating this cultural and political moment is fascinating. 

And if you do snag him, you should supplement the audio with video.

Haha. But seriously, we’re trying to keep the podcast fresh and this is a great out-of-the-box recommendation.

Next up, the dissents over my views on Harris continue from the main page. A reader writes:

I have no particular attachment to Kamala Harris, and share some of your concerns, but your latest column reads more like a Fox News hit piece than a real assessment. The main problem is that you seem to be judging Harris almost exclusively on the basis of statements she made in 2020, at the height of the Democrats’ woke mania because of George Floyd. Do you not remember that she was destroyed in the primary because she was a prosecutor, and was to the right of almost everyone else in the primary, except for Biden and Sanders? That’s why she lost: she wasn’t woke enough. 

So as VP, of course she pivoted to shore up her appeal to the base, like any good politician would. It’s terribly unfortunate that she had to tack hard left precisely as the country was moving back to the center and rejecting wokism, but that doesn’t mean she’s the “wokest candidate,” as you say. It just means she’s a politician.

My criticism also extended to her management and campaigning skills in the past. And look: I don’t think it’s fair to compare my attempt to review the evidence of her record with a Fox News hit-piece. It’s important to understand her vulnerabilities as well as he core ideas, if she has any. This next reader thinks she is off to a good, non-woke start:

I agree with your criticisms of Harris, at least some of them. We need to have stronger border enforcement, we can’t have riots in cities, and racism is real but DEI excesses are also bad. And it’s troubling that she has a history of being a bad boss. I can only hope that she has learned from her mistakes.

But I take heart from her campaign speech in Wisconsin: she said not a word about DEI, nothing about “vote for me to show that you’re not sexist/racist, because I’m a woman of color,” and not much about “Trump is a threat to democracy.” It was all, “I have experience dealing with sleazy crooks and sex offenders like Trump, and I want to help middle-class Americans and protect health care and a woman’s right to choose.” Sounds like a popular message!

You also say, “She is not a serious person.” Bro, have you *seen* the other party’s candidate?