“Little Ronny Pudding Fingers.”

Welcome to Pod Save America, I'm Jon Favreau.

I'm Jon Lovett.

I'm Tommy Vitor.

On today's show, Little Ronnie Puddingfingers finally responds to Trump's attacks and quietly signs a six-week abortion ban. In Florida, Kevin McCarthy has a new debt-sailing plan that's probably dead on arrival.

You know, he may not have wanted to sign it, but his fingerprints were all over it. Pudding.

Boy.

Puddingfingers The proof? The Democrats Dianne Feinstein problem is not going away, and neither are Clarence Thomas's ethics scandals. Then we talk to Crooked's own Max Fisher about the epic defamation case that's set to begin this week between Fox News and Dominion voting systems. All right, let's get to the news.

You guys, half of you are so afraid of the NRA. I like taking the guns early, take the guns first.

Trump cut and run like a coward, Trump, the gun grabber, doesn't deserve a second chance. All right, what do you guys think of these ads? take on the strategy behind them, and do you think they're effective, Tommy?

The pudding thing worked. It's weird and gross and funny and memorable, and it's getting covered in mainstream media, on social media, and it's Trojan horsing in this message about cutting social security. It was well done.

It's a very good point about the Trojan horsing.

I think the horse was pretty open.

No, but I get it because it's like, if you just did another Social Security Medicare hit, who's going to cover that, right? But the pudding, you get some fun pudding stuff in there.

We got some weird pudding pops.

And then you got a really effective message about Social Security, Medicare in there. A-plus ad.

It's an A-Plus ad and we were talking about this when it first came out. It's a shockingly normal political ad. it feels like it could be made by any normal for a Democrat or a Republican. It's just a traditional professional ad.

The first thing I thought is, I'm like, David Plouffe probably loves this ad, I could see him. This is like a Barack Obama versus John McCain ad. a Barack Obama versus Mitt Romney ad.

And there's a Santa's response when you whine about tactics that, to me, always says, you are losing. If you're saying, How dare Donald Trump attack a Republican, are you just meeting Donald Trump? Did you not watch the primary?

Also, so, also, first of all, I do think it gives you a little bit. There's a little bit of a hint of where they want to go, which is like, there's a little bit like, he's creepy, he's filthy. Yes, DESANTIS No, no, no, there's a little bit of that, like, you know.

Yeah, he's a weirdo.

He's a weirdo, he's a creep. They want to get those photos with the teenagers back out there, so that's under there a little bit. The DESantis response, I think, gives itself away when it ends with what happened to Donald Trump. Which is kind of like saying, like, Oh, because even the DESantis ad says he used to be fucking awesome.

Even the NRA ad, like, maybe there are some hardcore NRA fans and gun supporters that are upset by that. But most of the ad was Trump looking tough and talking about fighting the NRA, a powerful interest group. Like, Are you kidding me?

It really was like the gun one was much worse, I think, for DESantis. First of all, the gun ad. Maybe who knows how it plays for the Wackadoos attending an NRA convention. But it showed him negotiating for modest gun reforms with Democrats and Republicans. And we're what? Like, we're seven years into this fucking Trump fiasco, and you still think you get points by showing Trump not caring? What interest groups think like it's wild.

To me, it speaks like their theory of the case here is so flawed. Like Republican voters who are considering ditching Donald Trump are not doing so because they think he's not conservative enough on issues like guns or abortion. Or because, like Tommy said, they think he's too mean to other Republicans. If they are considering ditching Donald Trump, it's because they are worried that he has now lost them. Several elections, and for some insane reason, DESantis isn't making an electability argument, but, by the way, Trump is.

There's a lot of things I think you can get the Republican base to believe about Donald Trump, but you're never going to get them to believe he's not on their side. Like, first of all, everyone's tried that it has never stuck.

Aside from immigration, I would argue that Republican voters did not back Donald Trump in 2016 in the first place because of any specific policy position immigration. It's vibes, he's an asshole, and it's also like the guy doesn't sound like a regular fucking politician. And guess what DESantis does now?

And this is when DeSantis was doing well, when he was fighting Disney and yelling at, you know, woke corporations.

Which he's back at it again.

He's trying to do it again.

Yeah, and there's that line from Mad Men that I'll paraphrase, which is, it's what I think of. Whenever I see DESantis and Trump going at it, which is, DESantis is trying to make Republicans feel as if their needs are met, but Donald Trump makes them feel as if they have no needs. And it's just over and over again, Desantis gets himself wrapped around the axle because he's trying to win on points. And there's this underlying kind of inherent qualities that these two guys have, that he just, he's not able to get past. Electability is the only thing.

Yeah, and you hear all these Trump people, even the ones that they're interviewing now, who are like, thinking about both candidates. And they'll say, you know, what about Donald Trump? And they're like, Ah, you know, I wish he wouldn't tweet as much, and sometimes what he says gets him in trouble, but I like that, he says. What's on his mind?

Yeah, it's like, you want the fun, dad that's going to take you on the roller coaster or not.

No one's going on any roller coasters now. DESantis is like, Shh, we're going to drive Disney World out of the state.

You go off the roller coaster, you can see the state prison he's putting in there.

Putting dad yeah.

He did make a joke that he was going to maybe put a prison near Disney World just to punish them more. DESantis is also trying to get to the right of Trump on the issue of abortion. He signed legislation late Thursday night that would ban abortion in the state of Florida after six weeks, which is essentially a full ban. Since most abortions occur after six weeks, and many people don't even know they're pregnant by six weeks. DeSantis didn't say a word about the new law at the multiple events he held around the country. Which tells you how much of a winner he thinks the ban is.

This seems like a political suicide. The numbers are not even close. The University of Florida did a poll in February that found that 75 of Florida residents opposed a six-week ban, including 61 of Republicans. This is an insane idea. It will have huge ramifications outside of Florida. Because Florida was unfortunately a place a lot of women had to go to get abortion services. Because other states around it had even more draconian bans.

Somebody close to Desantis said this to The Washington Post. Abortion is not an issue that motivates him. I can tell you that, but it's one of those. What choice do we have? And it's like he clearly had hoped that the 15-week ban would get him to the other side of this issue. Without having to pick a fight with the evangelical base that wants a total ban, but he couldn't come out against this. He clearly didn't want to do a six-week ban, but felt dragged to it by the right-wing members in the Florida legislature. And now he has tied himself to this evil fucking thing.

Clearly, like you guys said, the motivation is to try to win this primary, and general election will worry about that later. I don't even know if it really is going to help him in this primary. Partly because of what we were just talking about with the NRA ad, too. It's like this theory that the evangelical base, they really just care about abortion, and that's it. Maybe at one point, they used to, it's all vibes.

Take it from the other side, take it from the other side. Donald Trump On the issue of abortion Donald Trump is the most successful Republican president in a half century. He stacked the court with right-wing judges who are anti-abortion. He delivered them the majority that got rid of Roe V.

There are reports that Trump's been telling anti-abortion activists that Republicans risk losing big on this issue unless they soften the messaging. And Trump wants to be emphasizing exceptions to bans, and he thinks that all of these total bans are bad now. Which, by the way, for Trump, is very silly. Because it's like, you just said, he's the guy that literally his judges are the reason that Dobbs happened.

Well, he's basically saying, Look, guys, we got to lie a little bit, come on, work with me here.

He's been saying this for years, he's been saying this for years when he was first, before he even got the majority to do it. He was worried about the political implications of this and has always kind of joked about the evangelicals being kind of weird to him. He's never got them. They don't resonate on the same frequency.

I mean, how long until Donald Trump starts openly attacking DESantis for the six-week?

Ban, you can see it.

I mean, it's going to be hypocritical, obviously, but he's going to be too extreme. He's not going to win the General Medicare and Social Security position, his abortion position. This guy's a weirdo, it's the pudding, the pedophilia.

The one piece of this is, I can imagine DESantis thinking, like, I'm just trying to get past this issue, right? If he fights this thing that the majority of the caucus wants in the legislature, he's now in a fight over abortion. That makes it more salient. And he signed this law and now he kind of moved past it. Even though the politics will trail him, that's the only kind of cynical political argument you can say.

I think you can't move past it because he's going to own the ramifications. It's going to be story after, story after story of the horrific consequences of this law.

I think it is crazy to me. I've really tried to think of it from his point of view, like just from pure hard politics.

I remember thinking he was smart for not doing this and just sort of standing behind the 15-week ban. The more palatable, politically at least.

And there was the Republican Senate majority leader, who is someone who is less conservative on this issue. Was asked why she was getting behind this, and she's like? Asked Ron DESantis. She basically was like, look at him, help me get out of this fucking thing.

This is not like the legislature just handed him something that he's like, Oh, now I have to sign it or not sign it. He runs that legislature. They're there to do it.

He had a choice to make, he had a choice to make, whether he wanted to have the fight or not. Yes.

Believe it or not, there are other Republicans in this race, though. The potential field shrank by one over the weekend. As Never Give an Inch, author Mike Pompeo did in fact give several inches when he announced that he won't be running for president. A political earthquake that upended the GOP primary. Other 2024 hopefuls seem to have a higher tolerance for embarrassment. Mike Pence was booed at the NRA convention in his home state, where he once served as governor.

Thank you, John for asking. This was, um, it was a tough weekend for me and tens of others. Um, I actually, oh, I prepared something, oh God.

He's got a he folded something up in his pocket.

I just wanted that.

Why would it be? why would it be separate than his laptop?

Andy and Olivia do have their hands over their mouths.

I don't understand why you'd have to print something. He has his laptop. It's an important moment, it's just drama.

Um, we, we gather here today to mourn the death of Michael Richard Pompeo's presidential ambitions. Um, I know that some of you traveled from as far away as Santa Monica to be here. And I just want to say thank you and that it means a lot to me. Uh, as Neil Young once wrote, Oh my god, my my, hey hey Perens out of the blue, close perens. Uh, it's better to burn out than it is to rust. The king is gone, but he's not forgotten.

Wow, beautiful performance, he really captured, he captured the tone.

Um, uh, okay.

Oh, there it is again. You should just we need the UM, we should also layer on the A Zempic jingle.

I thought, yeah, also, um, just saying, what did he do that with discipline? Wasn't he, like the first person and maybe only person to blurb his own book, too? Oh, yeah.

He did his own book, yeah, he did his own book, yeah.

I want to. There was one part at the end. Thank you Tommy, by the way.

Thank you for giving me this moment.

So, uh, Mike Pompeo, who, uh, whose whole public persona, persona is about how sort of, uh, unstoppable he is? Backs out of an inch, doesn't give an inch, decides to give all the inches and step out. And he releases a full page statement on Twitter about why he's doing it. But the the end of the statement, to me, captured everything that makes Mike Pompeo someone would, just the absolute worst personality in public life. And he ended the statement by saying this To those of you, this announcement disappoints, my apologies, and to those of you this thrilled, know that I'm 59 years old.

The problem with that is that is incredible.

It's an incredible statement to be like, like, Uh, it's a. It's very much like, I'm sorry, I can't meet you at the flagpole after school. Today I have violin practice. But oh, next couple of days we're going to find a time and boy are we going to fight at that flagpole. He is really embarrassing.

Don't threaten us with a good time, Mikey.

It's like, but also even the end of that statement, like, So you're saying that now is not the time for presidential leadership? But but in the future, it might be. It's a, it's an, it's. It's just so arrogant and stupid. God may his memory be a blessing.

I miss him already.

Raises a question. We're not going to do a predictions here, we're not going to. That's going to feel like a little twist. Oh, you didn't know, do you? So far, do you think any of these fucking Yahoo's are showing what it takes? Not even to beat Trump, but to, like, be the new Ron DeSantis?

Could you would say like, all right, obviously none of these other fucking jokers, but like, you look at someone like Tim Scott and say, Okay, maybe. And then he gets the most obvious question that you could possibly be asked about abortion and gives a absolute just a word salad. In response, though, it actually captures, I think, the problem that has nothing to do with each one of those individuals. There was a sort of a column looking at, like, the politics of what Tim Scott is supposed to say. And he's supposed to find a place in the Venn diagram that will please the evangelical base without pissing off the vast majority of Americans who are pro choice.

Nor does, nor does the Republican base. And being hopeful, yeah, that's not what they're looking for.

It seems like the plan right now is once again, to hope that Donald Trump will implode on his own. Even though they all chose to defend him over the indictment that might have led to that implosion. Yeah, so even when things come up, that might hurt Donald Trump, no one is going to take advantage of it or hasn't so far. No one wants to split it, like, if you do not go after Donald Trump directly and do so.

It's, um, it's a bunch of people throwing, uh, buckets of water on a house fire, hoping that the house burns down. How about that?

Okay, I like that, I like that.

Just came to me.

Let's talk about Congress, which is back in session this week.

They're back, baby.

Didn't even know they were gone. Kevin McCarthy is still trying to pass a budget through the Republican House that raises the debt ceiling. His latest plan is a one year extension of the debt ceiling to May of 2024. Right in the right, in the middle of campaign, that should be fun.

It's funny to say, what's what's the thinking behind the plan? It's Kevin McCarthy, uh, you know, he is the political equivalent of, um, checking your watch while holding a coffee, uh. And and you know, as a rule, when Kevin McCarthy does something, you could ask if you don't really understand it. It's like, is this? is he smart? or is he stuck? and the answer is never that he's smart.

He's just trying to figure out, he has to put something forward so he can blame Biden for refusing to negotiate. And they haven't released a budget yet. I think still, even after the speech, the thing that bumped me was doing this speech at the stock market was an interesting choice, yeah.

He spoke, he went to Wall Street today and spoke at the stock market.

Yeah, a bit like a an al Qaeda member doing a press conference on an airplane. You know what I mean, like, check out this thing.

I don't know.

I say, I guarantee you that these CEOs care a hell of a lot more about their stock price than deficit spending.

Look, I don't know what the guy's doing, I mean, it's it's what you said to me, he wants to. All he's thinking about is I got to get something through the house, right? And so I got to find a majority of house.

Yeah, I just it all was heading to the same place. Whether it's whether it gets killed by some House Republicans or it makes it to the Senate and gets killed by Republicans. There. We're heading to a place where, at some point, this will be. The question will become, Will Kevin McCarthy say? Sorry, guys? I tried? And that is where this has to head. But it doesn't seem like he's going to acknowledge that.

I just think he's trying to keep the speakership as long as he possibly can. But I mean creating work requirements to receive Medicaid and food stamps. So if you have cancer, you have to go out and get a job, and then you can get chemotherapy. That's what we're doing here. And then Reuters found that most of the spending cuts McCarthy wants will hurt states.

No, yeah. Both the cuts to domestic spending on education and transportation would hurt those states, and instituting work requirements would also hurt those states. Because the vast majority of people who are on Medicaid and food assistance are in those states.

Yeah, I just you sort of step back from all this. It's like, No, this ridiculous, these ridiculous cuts are never going to become law. There's not what, there's probably not 40 votes in the Senate.

But I do think if this fails in the house, this plan, if he can't even get it through the house, ironically, we might get a better outcome sooner. Because he will continue to fucking drag this along by. If he gets it through the house, he's going to claim it's a big win. We're going to know it's not. The press is probably going to be, Oh, McCarthy got it passed. Time for Joe to negotiate We're going to get a round of time for Joe to negotiate.

Or it's like, now it falls to McConnell, there's just going to be, yes, sure.

It is going to be a bring McCarthy, why don't you bring McCarthy to the White House and just sit down and talk about the plan? You don't have to accept the plan, you just have to negotiate, and Biden's going to have to say, no, I don't want to negotiate.

And then it's going to be a whole thing. And then it's going to be selling to the members that are like, don't make me vote for this fucking thing.

That's right, but if McCarthy fails now, then I think it's right to. Then McConnell and Schumer have to get together and start figuring something out.

And then force a jam through the House, but someone has to call it for a vote on the floor.

We have an update on 89-year-old Dianne Feinstein, who Lovett's been trying to shove out of the Senate.

Excuse me, there's no shoving.

A gentle push.

An invitation, an invitation, an invitation.

Just sort of a prodding, prodding.

Cattle.

Chuck Schumer said he spoke to the senator, who said she hopes to return soon, but he still wants to appoint a temporary replacement on the Judiciary committee. Ain't happening. First they thought, maybe unanimous consent, then Tom Cotton was like, Nope, not unanimous consent. And then they're like, Okay, well, you could do it with 60 votes if maybe Mitch McConnell will help us out.

Absolutely not.

Which, of course, if the shoe was on the other foot. And this was an old Republican senator that they were trying to replace, would we be like, Oh yeah, Democratic senator? For a couple months? Help out Mitch McConnell, help them pass those judges.

Of course not. Are you crazy? And so, and yeah, so there's the idea that there would be these 10 Republican votes. Like everyone from the furthest, right, like Codd and all the way to like Susan Collins, are like, I don't know, I'm sorry, what are you asking me? Absolutely not, no.

So what other options are there now? Lovett.

There's really two options. Option number one is that. Senator Feinstein returns to the Senate to participate in her vital work as a representative of the most populous state and a member of the Judiciary committee. Or she resigns.

And although you and I were talking about this before the pod, if she resigns, it still might be hard to replace her.

It still might be hard to replace her on the committee. So basically, everyone is. There's been a lot of kind of. I think now this will happen on Twitter. And if you notice it, people just saying things like Schumer can replace No. In fact, Schumer does not have the ability to put anyone on a committee that requires the Senate to vote.

But they could be assholes if they wanted.

Well, my concern is that we've now had like a two-week news cycle. That began with Dick Durbin saying, Hey, I can't confirm judges. That has now basically made this not about a routine filling of an opening, but a question of will Democrats get to confirm more judges? So I worry that that has planted a seed that is growing in the minds of the fertile minds of your Tom's cotton and so forth.

If only you hadn't started this news cycle.

Dick Durbin started this news cycle. I just helped it along.

Don't blame Durbin, you always blame Durbin for everything.

I don't know what to do with this power, guys, I've never felt so powerful. I'm eating raw meat and thinking about what other old people I can push out of their jobs.

How about Terrence Thomas?

That's a good idea.

Perfect segue, Tommy Perfect segue.

Oh wait, I do want to make one more point, though, about having the kind of amazing segue.

We were flying into the next.

What else have you got?

What else have you got, judges? How powerful are you?

I just want to make one more point about this, all right, which is because this could happen quickly between pods and I just need to have said this.

Which is this? Do you want, Dan to take this point?

Yeah.

Which is this?

That's how it usually goes.

I've got to say it before it ends up in the message box.

His lips to God's ears.

It usually goes the other way, it usually goes message box through me to the pod, I basically chat GPT for ad jokes to message box. But basically, if Senator Feinstein can't return soon, and she does decide to, as the L.A. Times said, heroically, step aside. Which I think is a nice thing, then it would be Newsom's job to fill the seat. Newsom promised to Joy Reid in March of 2021 that he would replace Dianne Feinstein with a Black woman.

Look, I just want to thank you very much for making that point that we discussed extensively on Thursday's pod.

Yeah, but I didn't discuss it and that now when is that?

Just a whole conversation, Did you exactly that?

Did they really leave it in?

It's all.

Wait, what do you mean? Wait, Andy, so you just cut it then? No, we're leaving this in.

No, now we're leaving it in.

I gotta listen to the Thursday pod. Yeah, I'm making a show Thursday, check it for me. Let's see if we can tighten this up.

Clarence Thomas, the right-wing justice, now plans to amend his financial disclosure forms after ProPublica on a Roll reported that he failed to include a real estate deal with sugar daddy Harlan Crow. Where the Nazi memorabilia buff bought three properties from Thomas, including a home where the justice's mother still lives rent-free. The Washington Post then reported that Thomas has also erroneously claimed income from a defunct real estate firm for the last several years. Though, that one may be more of a bookkeeping error, but, you know, not great. So Dick Durbin, who's coming up all the time these days? People are talking more and more about him these days. Yeah, he's being recognized more and more. He said that they'll hold a hearing about Supreme Court ethics on the Judiciary committee, but some activists are calling on Congress to subpoena Thomas to testify.

TOMMY I mean, they should give it a shot. I do want to just talk about this real estate deal for a minute because Harlan Crow, they buy the house that Clarence Thomas's mother still lives in. Someone did the math on how much rent she hasn't paid, and they say Business Insider suggests that saved her 150 grand. So that's interesting.

A weird.

No, it's all about a museum, which is a weird thing.

For more nazi memorabilia.

No, no, no for Clarence Thomas.

Yeah, like a Clarence Thomas museum. But if you're going to turn, if they're going to be like this is his childhood home, you don't want to....

I run out of places to keep all my Nazi memorabilia.

If you're going to turn a childhood home into a museum, you probably don't gut the place and refurbish it, right? So it's also not the first time he's made some sort of bookkeeping error. He also. Thomas failed to disclose his wife's income from the Heritage Foundation for years. She made $686,000 between 2003 to 2007..

You know?

It's just.

His mistakes keep happening to him, he didn't....

Doesn't think these rules matter, or that they're important, or that he should be held to any kind of standard? To your question, John, can they subpoena him? and should they? They can, and they should. Yeah, that's it.

Well, they can if Dianne Feinstein comes back.

We're going to need every vote, we're going to need every vote.

And Sheldon?

And I don't want to be a Shingles issue voter, but I do think it's really important.

Oh my God, I can't believe you saved that till now.

I forgot I typed it actually, I forgot to say it earlier. That's prepped just in case.

Sheldon Whitehouse is pushing the Attorney General, Merrick Garland, to investigate Thomas as well.

Yeah, I think there's a lot. Oh yeah, we'll be dead by then.

Yeah, we're going to have Merrick Garland wandering in the Justice Department with his candle and his nightgown slowly moving through the old house. But look, there's been a lot of senators saying how there's so many different people that should be doing oversight well. They should do it too, they should give it a shot.

Yeah, look, I realize there's not going to be an extremely satisfying outcome to this likely. But just from a pure political perspective, what's going to happen? There's all this corruption surrounding this judge. He doesn't have a high approval ratings, nor does the institution in which he serves at this point.

What's the harm? Even Mitt Romney today, when he asked about it, he said that this story stinks.

They're going to retaliate, he did so. Then you worry, Oh, now they're going to call justices all the time to testify. Great.

Sonia Sotomayor.

What are they going to do? They're going to give great answers, yeah.

Remember when they were like, We're going to get Hillary Clinton to testify all day about Benghazi? She made you look like dopes. It was the best day of the campaign, right?

Yeah, that's not retribution that I'm really worried about.

Okay, counterpoint, she did say. This is from the Wall Street Journal opinion piece defending Clarence Thomas quote. One may be tempted to think that, of all people, a judge should know what the law says, but that's a nonsensical standard.

How are we not doing? Take appreciated today, that's a full playbook.

I stole, Uh, that is a full playbook. James Taranto.

Oh, he's awful.

I think I muted or blocked him.

You know, when we were in Wisconsin for the Supreme Court race, it was this incredible, like, refreshing thing that everybody was just campaigning. Not on some imaginary concept of what a judge does with calls, mauls and strikes. I'm going to be the most impartial person you've ever seen. But it was like, Hey, this is an ideological context. There are real stakes, we have real views. Abortion is on the line.

They are doing a pretty good job themselves.

Yeah, they are, but like, they're lawyers in drag. Six of them are freaks. At least one's a criminal. Like, let's, let's, let's do it and let's do everything we can to have accountability.

When is John Roberts doing another public event? Because someone needs to say to him, Hey man, you whine all the time about political attacks and the legitimacy of the court, and don't attack it. Blah, blah, blah. You're doing more harm to the court's reputation than anyone else by letting this flagrant corruption go and not saying a word, you know what, not doing anything?

I bet his schedule is pretty clear right now, I bet he's not well. I don't think he wants to do a public event. I would do a public event and get that question.

These dorks are always talking at some law school about something.

This is the problem is, they're so insulated from any kind of reality. This is why if you can't subpoena him, it's a good thing to subpoena him.

And then there's going to be a whole, like just an idiotic news cycle. People throw in terms like separation of powers and overreach, and it's already being described as a showdown. Just fucking do it.

Just asking you to come answer some questions.

It's but the idea that like, the idea that that like. The laws that Thomas is accused of breaking are made by Congress. If he is to be impeached, it's going to be impeached by Congress. He has got that seat because he was confirmed by the Senate. It's not a violation of the separation of powers to have a Supreme Court justice testify for Congress.

We're also what we're doing here is we're building support. In my mind, at least for term limits, that's what I want. Expanding the court, that's a little bit of a fantasy right now. That's like the thinking we're going to get rid of the electoral College.

You're probably not on that PJ after six years, right? That's like a 12 year kind of well, he famously said. He's like, he's been on the court for.

30.

Let's start with some. Let's start by trying to get some term limits on the Supreme Court. That's my new thought. We're all going to yell about expanding the court. And we were so far from that. We're so far from being able to do that and having the votes. But I bet I term limits is probably easier, and I still think it would be pretty effective.

Yeah, I think a lot of these octogenarian senators are going to be big fans of term limits.

What else do you guys talk about on Thursday?

Senators.

All right, when we come back, Tommy and I will talk to not DMCA this YouTube. When we come back, Tommy and I will talk to. Crooked contributor Max Fisher about the Fox versus Dominion trial.

Could be in the offing.

Could be in the offing. Here to talk about the strength of Dominion's lawsuit and the many implications of this case, is Crooked's newest contributor, Max Fisher.

Hey Max, hey pals.

What's going on?

Thanks for having me.

Why aren't you in Wilmington?

That's where all the cool kids are. I'm hologramming in from Wilmington.

Oh, right, that's all the media reporters.

It is wild down here, it is popping off.

Some very fired up media reporters hanging out in Delaware, hanging out in Delaware and Wilmington for no trial.

Case of the century?

It's a glamorous field. What can I say?

So there's been reporting that Fox has wanted to settle this case for a while now, but so far Dominion has refused. What do you think might get them to change their minds at this late stage?

So we don't know why Dominion has declined to settle. It stands to reason that Fox News wants to because they've already settled one separate case over 2020 election lies. There are two kind of most plausible reasons in my mind, although we don't know for sure, one is just that Dominion. Fox News might just have very different reads on the likelihood of the suit succeeding. Because successful lawsuits, defamation lawsuits against big media companies are really rare. Because the standard is so high for them, which I know we're going to talk about. So it might just be like, there's not a lot of precedent to look through to see the likely outcomes.

That's interesting, I hadn't thought about that, I have been reading about this and what struck me is that. Dominion seems to have a pretty strong case on the liability front, on the fact that Fox is liable for this, but less of a strong case on the amount of damages that they asked for, which is 1.6 billion, and I think the company was valued at like $80 million.

Right, yeah, some of these numbers are a little like pulled from thin air.

So perhaps if this is less about a cause for dominion and more about like, just. It's a company and it wants financial rewards here from Fox. They just want to settle and get as much money as they can.

Yeah.

Though, for all of us, we'd rather go to trial.

We like the show, we like the show.

Or, like, a very public apology from Fox.

Right, the whole thing is a little weird. Because, like, the reason that we care about it and the reason that, like, people should care about it is that. It is a test for like, how far can you go in lying about elections and inciting insurrection? But the terms of the case will be decided on. Are like, you're saying, it's like, how do you count up corporate damages? So there's this, like, I think, like, something that is coming through. A lot of this is there's a little bit of a mismatch between the significance of the trial and the actual like facts of it.

Well, so Maxime, you sort of alluded to this. I mean, you're seeing a lot of coverage of this case where it's described as like the trial of the century for press freedom.

I'd rank it number one, I'd rank it number one.

Freedom of speech, freedom of the press, they're sort of derived from this, so, but when it comes to libel law, I know a lot of liberals, us included, are rooting against Fox because they lied. And they did it egregiously, and that is bad and we want them punished here. But the landmark case that protects all of us from liability was brought by a racist Alabama guy who oversaw the police during the Civil Rights era against the New York Times and a bunch of civil rights leaders. So it can cut both ways. So, you know, for you, as a lifelong journalist, how do you feel about the prospect of a potential?

So the like? The premise of that is, of course, that the standard set in that 1964 Supreme Court trial is famously incredibly high. For proving defamation against a media organization, it's always really set the United States apart and is considered part of its press freedoms. That it is so, so hard to prove defamation by a media organization. Because you have to prove that they internally, in their own minds, and do. They were lying when they did it, which is incredibly hard to prove. The actual malice standard, the actual malice standard. Yeah, exactly.

Deliberately, exactly right, actual amount, which would be the actual amount exactly in London, this is a big problem, right?

You've Russian oligarchs bringing completely frivolous lawsuits against journalists and basically, you know, putting them out of business with fees for attorneys, etc.

Right, right. And the fear is, if you're the New York Times, the Washington Post, and a big company is creating this paper trail. And saying, you know, all of these things are gonna report are not true, even if you know they're lying. If you make some innocent mistake along the way, right, then they can hold the threat over you of Are they gonna bankrupt your news agency over this one mistake?

There's been a lot of talk about this very high standard of actual malice. Which is, you know, either the outlet knows the information they aired was false or did so with quote reckless disregard for the truth. That's the description of the standard, right? But in this case, it does seem like Dominion might be able to meet that very high standard. Like we might not even need to move the standard at all. Just because. And you see a lot of First Amendment lawyers, a lot of media lawyers who've, like, represented media companies in these cases. Before just saying that, like, I mean, the sheer amount of texts, emails, testimony that we've already seen in the pretrial period suggests that. Yeah, Fox did deliberately know they were wrong. Like, you don't even have to go with the reckless disregard for the truth standard, which is the easier one. I mean, they clearly knew this.

Dominion's case So there's not a like email from Rupert Murdoch saying we're going to do the big lie now and lie about Dominion voting systems. But it's, it's pretty close, it's very close. You have to do like a little bit of connecting the dots. It's not like a 1 million percent slam dunk. Yeah, but basically what you have is after the election, you have a bunch of internal emails and text messages within Fox News as we have now. Because they came out in discovery in the course of this lawsuit, saying we know that this Dominion conspiracy theory that's out there and Trump's election denial generally is false.

Well, and that's key, because I've seen that now. They want to go with the defense. That Lou Dobbs and Maria Bartiromo actually believed this, and so it wasn't deliberately spreading misinformation. So they really believe this. And they're just crazy, so we're gonna throw them under the bus. But I think the judge said at one point in the pretrial period, like, it's not about who said it, it's about the choice to publish and air these lies. And that rests with the executives, right?

Or, or it rests, or at least it doesn't. They can't push it off on the guests because initially they were saying, we're just reporting what the president and allies are saying. These are just guests on our show, we're not responsible for the lies they tell. Anything with the judge, Davies was saying, is that no, you chose to air that, and you knew it was a lie when you chose to air it.

Pushed it to happen. Yeah, I want to push you on this, this sort of question of democracy. Play a little devil's advocate here. Because you do hear a lot of people say, like, well, with a big lie, this is bigger. This is about a threat to our democracy, right? But I think a lot of academics, in particular, argue that press freedom is core to democracy.

Balancing through these trials, although no one in the trial is doing this deliberately, we are balancing a really tough set of questions about our democracy, about how we balance the absolute standards of press freedom that we have right now. Against the rising threat of deliberate disinformation that clearly subsumed Fox News, even against the wills of its own hosts and executives. That they felt compelled to tell these lies, that they knew were going to these extremes. How do you balance those things? how do you balance the freedom to get things wrong in the media against the clearly rising intentionality of lies? And that just the fact that we are in such a rapidly changing political environment where we have so many political actors now who are leading the media rather than the other way around and trying to pull them towards election denialism. That has clearly real gravity and real weight with the audience.

It's like, What do you? What do you define as journalism? Well, you know, we've talked about Fox a lot on this program. And they like to think of themselves as a media outlet. I think there was a time when other journalists would think of them as a media outlet that was just conservative.

Yeah, and it's degrees to it what I think. What's fascinating about the disclosures that we saw of Fox News is internal emails and text messages. Is you actually see them wrestling with this question in real time? Because they have reporters, they do have, they're obviously a diminishing part of the network, but they do have reporters who do re-reporting, and they had a reporter who fact-checked. I think one of Sidney Powell's press conferences and was getting just dragged internally within the network. Because people saw the host, saw the executives, saw that that was playing into hurting their ratings now at the same time.

It's a Hannity and maybe Tucker, Carlson said. We need to fire her, like, right away.

It was right great. They claim that she was hurting the stock price, which I might actually be true.

Yeah, sure was hopefully.

And you know, you saw that? You saw Rupert Murdoch initially after the election, saying, We're not going to go down election misinformation, we're not going to go around down election denial. Because I think this is bad for the country. And then he changed his mind. So I don't have any delusions that the people at Fox are going to make the right choice because of ethical reasons. But I think there is a question of what are the financial incentives that are going to push them to do the right thing?

What do you think it says about Fox and the larger right-wing media ecosystem? That they felt the need to chase these online conspiracies because they were afraid of losing viewers?

So it's so fascinating because it it what it didn't look like at what I thought it was gonna look like. You know, I really thought that watching like Fox News arrive at this place in real time in 2020, that it was, you know, they love Trump, they want to keep Republicans in power, so they're making a deliberate, top-down choice to broadcast these conspiracies. And what we know now is that they did it basically out of fear, and they did it out of this realization that they had. I mean, you can pinpoint it almost exactly to like November 12th if you look, or like November 10th, 12th. If you look at the emails and the text messages where they initially said we're not going to do election denial. And they thought that that decision was going to be enough to shape the narrative. Because for 25 years, Fox News has been in charge of what the right things, and they've had an iron grip on what, what are the narratives?

Well, and to Tommy's questions about sort of the balance between protecting press freedom and stopping the spread of disinformation. The fact that Fox now chases these conspiracies that are mainly developed online that then get fed to places like OAN and Newsmax makes that question even more complicated. Because, again, what is a media outlet if it starts in some 4chan forum and it spreads around and YouTube?

It's like, I would argue, though they've been doing that for a long time. I mean, what was the birther conspiracy? If not for, like, an online thing that hopped to Fox and other you? So look, I mean, I think like this is. The courts are catching up with Fox's practice for a while here.

I think the internet was always a where, at least for the last 20 years. However long we've been doing this, I think the internet was always a source, right? But the power, their power to set the narrative and change it and cut it off, that has diminished.

Oh, absolutely, it's flipped. I mean, like, you know, I think the big moment was when they sent Megyn Kelly out to ask Trump a bunch of tough questions at a debate. He attacked her in the most vile ways imaginable. They backed her for a couple days and then eventually showed her the door.

You know, what's funny is when you just said, Megyn Kelly, I thought you were gonna talk about the 2012 election night. Remember when Karl Rove and all the Romney people were like, No, Obama didn't win yet, this is fine, whatever. And they were you, because they forgot that that Black people voted in Milwaukee. And then Megyn Kelly went over and was like, No, that's wrong he, you know, and so like.

I think you're right, though, that the 2016 election was like another big version of this moment. Or it's like, it's like, it's what you see with the Republican establishment like 2016. They hated Trump, tried to stop him, failed. And then we're like, I guess we'll just embrace him.

No matter where it takes us, him get in front of this parade. Yeah, train, it is great, all the parade.

Yeah, it is clear there are not a lot of tools to fight disinformation right now. And the legal one that we're going to be witnessing this week and in the coming weeks is definitely a different one. That we've talked about over the last several years. And it's not perfect, the standard is not perfect, but we'll see, we'll see what happens. It does feel like it in my mind.

It's very of a piece with the Trump Stormy Daniels indictment at the many other indictments, where it's like, it's a sideways way into. What I think is like, the biggest question facing this country right now, which is, is there going to be accountability for trying to do a coup and overturn?

American democracy two years ago. Because the guy who did it is, you know, a coin flip away from.

Although maybe president from a jail cell, that's.

Max Fisher, Thanks for for joining us in this. And I know you're going to be following the trial for these next next couple weeks, if there is a trial. Yeah, unless we wake up and there's a settlement. Are you guys coming down to Wilmington with me? Yes, we'll be there.

Okay, Joe says. It's fun.

Does Amtrak go there from L.A. Gotta?

There's gotta be a go through a Wilmington on the way to New York, right? That's not sure. That would be my only point of reference. Train through country. Is that a thing?

Give them a second term, and we'll have those, we'll have those trains out there.

Dan's gonna yell at us now for making fun of Delaware.

Running for Senate there, all right, Max, thanks for stopping by and we'll check in with you as the trial continues, right?

Sounds like it doesn't.

Pod Save America is a crooked media production. The executive producer is Michael Martinez. Our senior producer is Andy Gardner Bernstein. Our producers are Haley Muse and Olivia Martinez. It's mixed and edited by Andrew Chadwick, Kyle Seglin and Charlotte Landis.