S2 Ep149: Andrew Weissmann: This is Why America’s Institutions Are Failing

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Hello, everyone.

Welcome to the Bullwork.

I'm Sarah Longwell.

And usually when I am with Andrew Weissman,

it is because we are discussing the illegal news.

But just recently, Andrew and I were chatting

in the green room and he told me, Sarah, I write about this

in my book and I said, wait, there's a book.

There's a book.

And there's always a book.

There's always a book, Sarah.

Yeah.

Well, you know, they're hard to write.

They're hard to write.

So liar's kingdom being announced right here

where you're launching it is today the day.

Today the day you're making it public.

Exactly.

And I couldn't think of anyone better to celebrate with.

How do you feel having just written a book?

You know, I don't think people understand.

It's like, you think of the idea

and you think this would be a really good thing for a book.

And then you sort of don't focus on the pain.

And so, you know, it's just a long process.

And there's like, you know,

and there's parts that are joyful and wonderful

and there are parts where it's a tough slog and at the very end

where you're just looking for typos,

you're like, what did I ever think of this?

But you know what, now when it's over

and you're just at the part where it's getting announced

and look, there's a reason I wrote it.

And now it's just like all of that's gone

and you sort of forget about that pain

and you think about, this is why I did it.

Yeah.

Let's do, oh good, we've got your dogs.

I know our viewers.

Exactly, he's like all excited about the book.

He's pumped about the book.

I'm so glad.

Totally pumped.

This guys, we're going to do a preview for all of you

about the book.

I know Andrew has become, he is my sometimes co-host

on the illegal news guest host.

People love it when you're here.

And so I thought it would be fun for us to chat about your book.

And why you wrote Liars Kingdom?

What it's about.

And just like give us the overview out of the gate.

So why did I write it?

I wrote it because this is something

we talked about either in the last time

we met or the time before that.

And both of us were saying, we have

to think about the systems that are not working.

We cannot just hope to win the next election

and think everything can go back to normal.

There are systems that are not working.

And we just have to focus on that.

We cannot put our heads in the sand on that.

And that was really the genesis of the big picture.

And I think as we were talking about this, I said,

I love dearly the people who say, oh, well,

we have to educate people.

And we have to have more civics lessons.

And I'm like, well, of course we do.

But in the middle of a crisis of Ionology

and the book was, when the Titanic hits the iceberg,

you really don't want to hear the captain say,

I've got a solution.

We need to invest in radar.

Yeah, that's right.

And of course, we need to invest in radar,

but we're in an immediate crisis.

And so the issue is what can we do?

And so that was the big picture.

And then it went from there to something granular.

I remember this, because that was what I asked you,

was we were talking about the institutions.

And this is just a thing I wrestle with all the time,

which is now that so much has been exposed

about the fragility of these institutions,

about the chinks in the armor.

Like we can see all the places where things are failing.

And like if Democrats win and they get back into power,

there's a question of like, well, what do you do then?

Like what do you do in the face of trying to do?

Do you try to, because I think Biden did this,

where he was like, we're gonna protect these institutions,

norms, values, institutions.

There was a lot of that.

And like, it was pretty insufficient.

And actually it turns out a lot of voters.

It's not a good pitch to just say,

it's like I would do a different analogy.

It's sort of like when you're kitchen floods,

it's like your kitchen floods and you're like,

oh, I've got to spend all this money

just to get the kitchen back to where it was.

It's not like you're spending on a big renovation

to have something great and new.

It's just like, oh man,

you gotta spend all this money just to get it back to par.

And so I was asking you, like, okay,

do you have solutions to what we do with these institutions?

And that's when you told me, I do actually,

and I've written about it in this book.

First, let me do all the, all the cabbets.

I'm not sitting there saying this is the only solution

and God knows it isn't.

There are lots of other things,

but what struck me is we are a wash in lies,

and specifically political eyes.

People remember the washing past

that used to have a counter of all of the lies

that Donald Trump was telling,

and in just his first term,

so folks are going, oh my God,

that's the first term, pales in comparison,

but just the first term was 30,000 lies

were documented by the washing past lies

or grossly misleading statements.

And that came to an astounding wait for it,

20.9 lies per day.

Per day.

That sounds right.

Is that a bit?

I mean, to the extent that Trump lies

every time he opens his mouth that feels plausible.

Or tweets.

Maybe were you thinking understatement?

Pops, possibly.

But I was thinking about it as I was relating it to my life,

as you know, as a prosecutor for many years,

and I was thinking, you know,

I prosecuted so many people for the crime of lying.

I prosecuted mobsters for lying.

I prosecuted Paul Manafort for lying.

Roger Stone lied to Congress.

The leaders, the CEOs, and chief financial officer,

and the chairman of the board of the Enron Corporation,

you know, a fortune, actually a fortune,

10 companies prosecuted for lying to the public.

In civil cases, you can be charged, essentially,

civilly with lying about somebody.

And I was like, there are all these things

where we hold people to account criminally and civilly

for lying.

But when it comes to a politician lying, nope, nothing.

There's no repercussions.

And you're able to lie.

And as I think it was Cory Lewandowski,

when he was caught and people said,

well, wait a second, what you said was completely not true.

And he said, yeah, but there's no crime

on lying to the public.

And I think Donald Trump is very, very aware of that

during the impeachment, for instance,

he would say to the public, you know,

there was no quid pro quo.

I didn't do this.

Everything was perfect.

But you know what he didn't do?

He never said that in a setting

where it would actually be a crime.

He never lied to Congress.

He never submitted anything to Congress.

That's criminalized.

And so what I looked at was how do other countries

deal with political lies?

And it turns out major countries, the countries

that Donald Trump would not describe as shithole countries.

Meaning countries that even he would admit

are sort of so-called first world countries.

So France, England, Germany, Brazil.

He has a particular focus on Brazil

because they had a particularly effective solution

for their leader, which is if you lie about an election,

you can be disqualified.

And there's a whole process that you're given

so that you have to prove it.

Their judges have to find it.

In other words, it's not just a, you know,

you may waive a magic wand

that you give the person to you process.

But it's a way of saying, why is it

that political lies in America are absolved

from that kind of accountability

when other countries have figured out

how to deal with this spate, the scourge of political lies?

So I sort of walked through that

and talk about what are the challenges?

First, what is the problem?

What are the models that we have from other countries?

And actually, even our states in the United States

have useful models.

And then what are the potential challenges

both legally and just in terms of wisdom

in implementing something like this?

I guess I've got to ask, what do they do?

What do they do that we don't do?

So here's a good example.

Bolsonaro, Bolsonaro was the president of Brazil.

Many people listening to this may know

that he was criminally convicted

for engaging in an insurrection.

Sound familiar?

Sounds familiar, only in this part.

He engaged in insurrection,

but he was actually held criminally responsible.

But before that, before that,

that criminal case was brought,

he was barred from running for office civilly.

Why?

Because he engaged in what was unlawful

under Brazilian law, which was lying

about the election.

The same thing, the same law exists in England.

There's a similar type of law in France,

one of the leading candidates,

it's conservative candidate,

Marie Le Pen is barred for running in her case

for simply committing a crime, a crime of fraud.

So there are all sorts of models that can be used,

that we do not use.

And if we're ever going to get back to a place

where politicians should be held

to the same standard that we hold all sorts of people,

in other words, why is it that you can lie

about the stock price of Enron?

And we say, that's so serious,

that you are lying about stock,

the price of Enron shares that you can go to jail

for a decade.

But if you lie to the American public,

there's no penalty whatsoever.

So that's sort of what I wrestle with.

So one of the things that I think about

with listening to voters is how Trump benefits

from a certain kind of cynicism

that has now taken root among people,

which is that all politicians lie.

And I think that it gets tough sometimes to be like,

okay, there's sort of politicians spinning,

trying to put a positive light on things,

like how do you disaggregate between kind of milk-toast

politician, I'm trying to put the rosiest view on this

or I'm saying things about my opposition

that are maybe overstated and things like that.

Versus, I think something like the 2020 election

was stolen and we've got to do something about it.

So we better march to the Capitol

because if we don't fight like hell,

we're not gonna have a country anymore.

Like how do you pull that apart?

So that's a great question.

So by the way, that is of the, you know,

obviously I couldn't address each and every one of the,

just the 30,000 laws documented by you.

That would be a very, very long book.

So I too, just I'm gonna pick one example.

The one example is lying about the election

and saying that's sort of a classic instance

and we're not doing that.

Where it does start getting gray, you know,

this is where I do think if having been

by the prosecutor and defense lawyer

for longer than I care to say, that is what the law does.

So it has to be intentional.

It cannot be a mistake.

It also has to be material, meaning it can't be Sarah,

what's your favorite color and you're like blue?

No, it's not.

You told me it was gray, you know?

It's like, so, you know, England's had to deal with this

because they have a law like this.

And it's, you look, are looking for what are the sort of,

the lies that are big, bold and intentional

as opposed to things that are gray and perhaps a mistake.

But that also is where the system works that out

and that we have a current system for that as well.

We have defamation law where you have the same kinds

of issues come up.

You have issues in the securities laws where somebody lies

and the courts look to whether it's intentional

and whether it's material.

Now, what I would say though is it's a good thing

if politicians have to be thinking,

you know what, I don't think I really should say this

because I don't know that I can really back it up.

And you know, this is one where I think,

I was thinking about this from perspective of what you

and I do because we both are on podcasts,

we both appear on TV.

And we think about defamation law.

We think about, you know, we have to be sure

when we say things that we're careful as to what the law allows.

And yes, we're allowed to have opinions.

Opinions are not, by definition,

they can't be sort of false, intentionally false.

They're just your opinion, they are.

But when you're lying about a fact,

like I won the election because there was fraud,

that's a fact.

And if you're gonna make those statements

and you're a journalist, you know, you and I know,

you better have the goods to back up that statement,

you better have reliable sources in a way to say that

so that you can actually defend what you're recounting to people.

And if journalists have to do it,

why shouldn't politicians have to do it?

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Are you saying you have to pass laws

in which there are consequences

if you lie about material things?

And I have two follow-ups on that, because one is...

Well, first, let me just say the answer is yes.

Yes. You do, but I was trying to think of is

how do you do this that you do not have

to amend the Constitution?

Because I wanted this to be practical.

You can't just be like, oh, I've got an idea

let's amend the Constitution because that's not going

to happen in my lifetime or your lifetime.

And so I tried to think of things

where it could be a statutory fix and it could happen

at the state level, it could happen at the federal level.

I deal with, could you pass a statute

and what kinds of things would it say?

And I sort of give examples after I sort of walk people

through sort of the argument as to why this is a good thing

and what models there are, what we could do

and why I think it could pass muster.

I think one of the differences between the United States

and other countries is just the level of robustness

of our free speech laws.

Absolutely.

That creates a way in which, you know, basically like,

now, you can pretty much say what you want

and Trump really relies on this a lot.

Or his fault, like, you can't shut me down for this.

This is free speech.

That's sort of one question on it.

The second one is, why don't we have these laws?

Or is it just that Trump is so sui generous

that he's just shown us like, we can't rely on norms anymore.

Like you used to basically say, well,

if you lied all the public, like eventually the public

will say, hey, I don't want this person

to be president anymore.

But of course, that's not what's happened.

And so in the face of that, is it your broad contention

that things that we used to take as norms now require laws?

But these are great questions.

So the first one about, there's no question

that we have a robust first amendment.

And it is more robust than other countries.

So for instance, Germany, and I sort of explain

that I have a chapter talking about sort of

how different countries do have free speech rules

and do honor it, but they also have lots of other things

they honor.

But I think that's where I think people will actually learn

a lot from this book because we do have a robust

first amendment, but it does not stop prosecuting

Ken Langev's killing for lying about Enron.

It does not stop holding Rudy Giuliani

to account civilly for defaming Ruby Freeman and Shay Moss

and I could go on and on and on with examples.

And so there are limits and the general line

that we draw is statements of fact

versus statements of opinion.

And it's an enormous amount of deference

to the statements of opinion.

And I don't in any way cripple with that.

I think that's totally fine.

But statements of fact, there was fraud in the election

and I actually won is a statement of fact.

And that's one where I deal with sort of

the major Supreme Court case on this

to where I sort of dissect the case to explain why

I think what I'm proposing would pass muster

because we actually do allow in numerous circumstances

false speech to be both criminally and civilly held to account.

In terms of your second question,

which is also great about sort of norms versus laws,

sort of big picture I think what we've been living through

makes it clear that norms don't work.

That things that we took to be norms

just take my little world,

which is the Department of Justice at a norm

that it was separate from the White House.

That is one that was followed just to be clear

by Republican and Democratic White Houses.

I've worked in Democratic and Republican administrations

where it was absolutely crystal clear

that there was that separation.

And so it's not a matter of politics.

It was a matter of good government understanding

that that's what you need to do.

And so I do think when I was thinking about how do you rebuild?

How do you what structures have to change?

What kind of laws can you put in place?

And also I was thinking about what institutions do we have

that have held up because who's what is held up

is a way of separating truth from fiction.

And that is what courts do.

And that's what courts do day in and day out.

And frankly, the district courts right now

are sort of one of the last no pun intended Sarah

bulwarks of liberty here.

And the kind of things that I'm talking about

are using the courts to help separate that.

And I spend a fair amount of time talking about

sort of the late 19th, early 20th century idea

that there's some marketplace of ideas,

some fictional marketplace where we don't worry

all ideas sort of confront each other

and come out in the wash.

And that for a whole variety of reasons,

one that doesn't apply to factual issues

that applies to opinions.

And two, I'm not sure we even have a marketplace anymore

that is functioning in the way that Oliver Wendell Holmes

Jr. thought when he discussed that very precept

that there is this marketplace

because we have such a vulcanized market

where there's just these little bubbles of information.

There's a lot, this is like a nutshell,

there's a lot more explication in the book

is to like how I sort of piece this all together.

Was it hard to write?

Like did you, like Trump's told a lot of lies?

And so how did you like decide how you were gonna approach this?

So I had a pretty good idea about what my argument is

and how I sort of wanted to structure it.

I had a marvelous marvelous editor at Little Brown

and you know, cause I'm not a writer by, you know,

I'm a lawyer and so, you know, I sort of like go right

to the chase and there's a lot of like set the scene

and you know, make sure people can follow it.

So I had a wonderful editor.

So after I sort of did a first draft,

I had a great person to sort of say, look, let's make this,

let's make sure this is readable and people can follow it.

And I have to say, like I'm so happy with the book

but I really feel like it's a collaborative effort

because it's the book I wanted to write

but I don't think on my own, I would have written.

What do you hope kind of last question

because I could talk about this

but we'll have lots of opportunities to talk about it.

This is kind of the launch, but like, why did you write it?

What do you want to accomplish?

What are you hoping comes from you writing it?

I want people to really think even, even,

I'd love it if they thought I was right

and that we deserve better from our politicians

and that this is a potential solution

but even if they disagree, I want them to be thinking boldly

about structures that need to be put in place

because Donald Trump will be gone at some point

and I don't think Trump is well-being

and this is sort of what he's unleashed,

the model of what he has done is they're going to be

cop cats and we see it already.

And so we just can't live by putting our head in the sand

and so part of this is trying to get that conversation

going about we really have to be bold and inventive

and be thinking our ways out of this

and it's about to be the 250th anniversary of this country.

I'm so thankful for I know you are too

for like living here and being in America

and for its values, but it doesn't mean that everything

is set in stone and has to be the same

because we can see that various structures do not work.

The whole idea, for instance, of separation of powers

to have divided power in order to secure liberty

is not effectively working the way it was envisaged

it would work.

Well, yeah, for that you need ambition to counteract ambition

and what happens when one branch of government

decides to just like be supine in the face

of an authoritarian takeover, right?

Then you don't have the counteracting

of the institutions as they were set.

That's why we have checks and balances.

I can't wait to talk about this a lot more.

I'm glad we got it out there that the book was there

because we couldn't have like a full-fledged conversation

about what's in the book until it was time to release it

and so now that it is, first of all guys,

I want you to say pre-orders matter a great deal

for authors and so go buy Andrew's book,

help juice those pre-order numbers

because that's how you get on the best sellers list

and that's where we want this book to be.

We need people to read these books

and I also just want to say like this is the kind of book

that matters to me a lot because I,

I think there's a lot of diagnosing going on

and we all have our, you know, we should diagnose

but I think that right now we should be thinking about

what are we gonna do?

How are we gonna get out of this?

What are the things that need to happen?

And those are the conversations we should be pushing

as we sort of go into 20, 28 because one election,

two elections, that is not gonna be enough

to sort of counteract what we're dealing with.

We've got to start putting ideas on the table

and wrestling with them and thinking them through

if we're gonna get ourselves out of this moment.

I totally, totally agree.

So, A, thank you very much, Sarah.

B, obviously you couldn't get this wherever you get your books,

you can get it but there will be signed copies

because I know a lot of people don't want to get books

from sort of Amazon and may have reasons

that they want to support certain bookstores

and not other bookstores, not weighing in on that.

I'm just saying, I know that's true for many people.

So, there will be signed copies of this at both politics

and prose, a very well-known bookstore in D.C.

And also a wonderful small independent bookstore

in Chatham, New York called a Chatham bookstore.

And so, they will both have signed copies.

And I was gonna tell you something else that I just,

you know, I've been telling you how great my editor is

and I wanted to give one quick shout out,

which is they were not the original editor.

They were not the original publishing house.

And you know how we've seen media companies

and law firms cave face of threats and executive orders.

Well, that's true of the original publisher.

They were on board until they were not on board

because of the concern that they would be targeted

by Donald Trump.

I did the same thing when Jackson testified,

I remember being on air and saying,

I want people to notice the law firm

of Covington and Burling is representing him

and is behind him and every step of the way

because they deserve to be sort of the shout out for doing that.

And that's the way I feel about Little Brown,

which is my publishing house.

And if there's any group that should be promoting

and defending the First Amendment,

it should be publishing houses.

And that's what I feel about Little Brown.

I mean, they really stepped into the breach

and we're gonna publish this.

You know, I'm really glad you told that story

because a lot of people might not realize this,

but like in our world where this is not the first person.

You are not the first person to tell me that a book

where they had like a signed advance and whatever

and then it got kicked up the chain and it got pulled

because people didn't want,

they're too afraid to take it on.

And when it's like the media companies,

the law firms publishing houses,

the places that are the defenses,

the purveyors, the people who live

within the First Amendment who won't do it,

those are the real chilling effects.

So I'm thrilled you wrote the book

and I'm thrilled Little Brown published it.

You will not be silent, Sandra.

I will not let you be silenced.

To continue the plug, Sarah,

there will be an audiobook.

Guess who's reading it?

That would be me.

Have you read it yet?

No, I haven't.

And by the way, that, you know what?

To be continued.

The next time I see you ask me about

my first experience reading a book because it's funny.

It's maybe not as funny as the motorcycle story I told you,

but it's funny.

There will be an audiobook that people can get

and also I'll be doing also a tour

of the day of release on May 19th.

I'll be at the 92nd Street Y in New York.

Great venue.

Great.

It's totally, it's fantastic.

Yes, exactly.

Love Lawrence.

And so we've done this before.

We'll go from there and we'll then go directly back to MS now

and go on air and talk about the book there.

There's a link right now in the show notes.

Go get Andrew's books wherever you want to get it from.

And when's it coming out?

Like when's it hit actual shelves?

It's so good that you asked,

I'm sure my editors are like going,

yep, are you planning on mentioning the date?

So yes, it's coming out May 19th.

But the pre-order is that you can do right now.

Go get your pre-order, guys.

Let's bump up those numbers.

And Andrew, thanks for writing it.

Thanks for being here.

Thank you.

And I need to now spend a lot more attention

on my dog that is like yapping away.

Sounds very upset, very upset.

This is very, very.

All right, see you later.

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