Hi, I'm Molly John Fast and this is Fast Politics, where we discussed the top political headlines with some of today's best minds, and Clarence Thomas took thirty eight quote unquote gift vacations paid for by people who had business in front of the Supreme Court. We have such an
interesting show today. Michigan Secretary of State Jocelyn Benson talks to us about how to secure elections, and then we'll talk to slat's Mark Joseph Stern about the Supreme Court's recent ghost gun surprise ruling and what it means for the dynamics of the court. But first we have the Bulwarks. Charlie Sykes, Welcome back to Fast Politics.
Charlie Sikes, Hey, it is great to be back. Too bad we don't have anything to talk about though.
I was just saying we were talking about this piece that you wrote again, Churchillian, and it's funny because Darwin and I went to the war room, so we are, like Churchill is on the brand the Churchillian case against a Trump pardon. I want to talk to you about that first because there's been big drama at the Bulwark in a good intellectual way about this idea of would a Trump pardon actually lead to more violence or would it perhaps sue the fractured nation what.
You're describing as sort of the point counterpoint, JVL wrote a piece the Keynesian case for a Trump pardon. I beg to differ rather significantly with That's why I came back with you have canes. I'm going to go with Churchill, who knew a little bit about appeasement, who knew a little bit about you know, hoping that the alligator eats you last. Look, First of all, it's premature to be talking about a Trump pardon. But a Trump pardon as an idea, it is. It is mad, bad and dangerous.
Because does anybody think that Trump would learn his lesson? Does anybody think that he would go away quietly? Does anybody think that this changes the incentive structure in America that has given rise to so many demagogues out there who are willing to undermine democracy. I mean, I understand
that there's high risk in pursuing criminal charges. I mean, I'm willing to concede that, But you have to weigh risks versus risk, and the risk of not prosecuting Trump, I think is greater than the risk of prosecuting him. But the idea of a pardon essentially confirming that the president of the United States is above the law, that they cannot be prosecuted while they're president, and after they leave the presidency, the criminal justice system is never going
to hold them accountable. What a terrible precedent, and we would be living with that for decades. Terrible idea.
I just want to say, this is the last time we will ever compare Lord Byron to Donald Trump. I think you would to anything Trumpian.
Yes, the mad, bad, and dangerous to know is is Carolyn Lamb's description of Lord Byron, And yes, the similarities and right.
There, right there, yes, But I do want to talk about this idea of how you stop people from doing bad things, right, because that's where we are now in the Republican Party, right and in America as the country is how do we stop people from doing bad things? And the reason why this pardon and your pardon piece was so interesting, and you brought up this Nixon's pardon, which is, you know, in my mind, sort of the original sin and I think you sort of think that too.
But Trump was number one thousand, I think five hundred and thirty three or something people who have been indicted on January six charges. Many many of those other people are actually like in jail.
Right, the little people are in jail. And I think this was one of the sort of the festering injustices that the little people who listened to Donald Trump's call to come to Washington and be wild. They were arrested, they were charged, they were tried, they were convicted, they are in jail. But Donald Trump and his immediate circle, the people who instigated it, had faced no consequences. And there's just something wrong with that.
Yeah, I don't know if Donald trum again, like this is a sort of unknown unknown, but like obviously there's a percentage of people who consider Trump to be a religious figure and who would do very dangerous things to protect him.
Oh yeah, there's no question about it. I don't sense that Donald Trump is any quieter, and I don't sense that his supporters are any quiet I think that they are breathing menace every single day, and I think that it's becoming more menacing, it's becoming more dangerous. The threat of violence is in fact rising. So if you don't confront that, if you don't say the full force of the law will come down on you if you behave
in this way. I don't see how you stop this bad behavior if you give Donald Trump and a pardon would be the ultimate get out of jail free card, essentially saying, Okay, you conspired to overturn the election, you conspired to have a coup, you obstructed beneficial proceeding, you violated the Espionage Act, and you engage perhaps in racketeering. But hey, you know, no harm, no foul go on normally in a pardon. I know this may seem a
little bit quaint. There's an assumption that you have been rehabilitated, or that you are showing some sort of remorse. Right, this does not apply to Donald Trump at all. And you mentioned Richard Nixon, and I am old enough, of course to remember that, and I can certainly remember, you know, what I was doing, you know, on that day in nineteen seventy four when he resigned, and then when Gerald Ford pardoned him. At the time, I didn't think that
it was a terrible precedent. I did, actually, I think I like a lot of Americans, I took a deep breath, and it was kind of a relief that we could move on from that, that we wouldn't be stuck in that. But in retrospect, it was a bad precedent and it did establish this this notion somehow that the presidency was this imperial king like institution that really, you know, was not held to the same standards as we lesser commoners.
And I think that's fundamentally anti American. I think that's fundamentally anti democratic and against the spirit of the Constitution. So unfortunately, this is morphed into this notion that if you were a sitting president, you cannot be indicted. And even though Mitch McConnell and others said, well, you know what, even if we don't impeach the guy, you know, with the criminal justice system, you know, still will have jurisdiction, Well now you have the right going No, not even now,
you know, we were against impeachment. We were against and we were against holding mccennabal when he was president. We supported him for another term. And now we think that it's wrong that that in fact he'd be charged with breaking the law that hundreds of other people who have been charged with.
Yeah, and I mean Mitch McConnell again, don't cry for Mitch McConnell. He has millions or billions of dollars, are quite rich, very powerful. But he did have this moment in Kentucky where they were booing him, which, you know, if your whole life is about this quest for power, I mean, that must have been at experience for her.
In a reminder, the karma is a bitch. He had the opportunity to do what he knew was the right thing many times, but particularly in that second impeachment. Had he voted along with his colleagues to remove Donald Trump, that would have disqualified him from ever running, we wouldn't be here today. And he knew that Donald Trump was responsible for January sixth, he said it explicitly, but under our constitutional system, he had the obligation and the opportunity
to do something about it, and he failed. I do wonder what goes on in his mind now as he looks back and you know, he's being booed and Donald Trump is tweeting it out and attacking him and vilifying his wife and throwing racial epithets at his wife, which by the way, should be a big deal in and of itself, but it's like now, it's like a footnote to page twenty eight of the terrible things Donald Trump does, and so Mitch McConnell very much reaping what he sewed.
Yeah, I mean it is incredible she used to be in his cabinet, right, Like I mean, imagine just even if you just back on Earth one, you had a president attacking a member of his cabinet, right, I mean on the internet. I mean, even that, you know, would have been just a complete scandal to end all scandals.
Well, and among the many, many, many unprecedented things that we're dealing with, has ever been a president who has been denounced by so many members of his own cabinet.
I mean, think of the list of people who had been named to these positions by Donald Trump, members of his staff, his chief of staff, his secretary of State, his secretary of Defense, his attorney general, one after another, all saying yet we work with this guy, we supported this guy, and we have to tell you he is unfit for office and should never be allowed back in
the oval office. You would think, Molly, that at that point that with all of these show we think negative reference letters from his colleagues, that that would have more of an effect that it's having with Republican base voters right now.
You really know the Republican Party or the pre Trump Republican Party. And it seems like even though look, I think a lot of us hoped that these indictments might break the spell, that clearly did not happen. But it feels like to me, just viscerally, that the Republican Party, I mean, I still think they're going to go along with Trump, but it feels like the calculus has changed a bit. Do you agree? And what is the calculus and how has it changed?
Well, first of all, what is the Republican Party. We've been talking about this for a long time. The Republican Party or the Republican establishment or the adults in the Republican Party. Who the hell are these people? I mean, I think Judge Ludig, Who's right, There is no Republican Party. There's just this angry base. So if you watch some of the videos out of Iowa when the candidates speak, you get a sense of what you know, who they are. So Asa Hutchinson talks about the rule of law in
the Department of Justice, crickets. Nikki Haley gets up and talks about why we should support Ukraine crickets. Vivic Ramaswami gets up and spews some sort of pandering demagoji and the place goes absolutely freaking wild. So what is this? What is interesting to me is that I think there are here, here's an oxymoron. Thoughtful Republicans understand what a disaster it is to basically lash yourself to a man who at the moment faces seventy eight felony charges, were
facing four separate criminal cases next year. They understand this is I think this political malpractice on a scale that we have not even imagined before. And by the time the really heavy shit hits, they will have already essentially renominated him brilliant, real men of genius, and it will have an effect all up and down the ticket. To your question, there's a time in everybody's life, in every political party's life, where the id just runs wild and
they can't help themselves. You know, he ask why are you doing that? Why are you know? Why are they decided to take that step? Why are they going with carry lake? And it's because it is it is kind of the ideological id or or to change the metaphor a little bit, you know, they're scratching their ideological itch. It's almost like they can't help themselves to the extent that I can understand it, and a lot of it is hard to understand. I mean, honestly, my book was
How the Right Lost its Mind. I mean, like what happened here, it's an invasion of the body s natchers.
But part of what.
Happens is sometimes you get caught up in the fight and the fight becomes about the fight, not about what you thought you were fighting about, not about anything. It's just like we're in a fight and we hate the other side and they hate us, and we have to win. We can't let them win. We can't lose. It is the fight. And you might look at the person saying, okay, remind me what we're fighting about, and not quite clear
about that. You know, maybe it would even change, But you can be caught up in that us versus them, and sort of you see red. And I think in a sense that's what's happening. Is they've lashed themselves to Donald Trump. They have made so many compromises, so many rationalizations with with Donald Trump, the rule of sunken costs. They're in this deep. You know, once you've carved out
eighty six percent of your soul. It's not hard to carve out another four percent, you know, and there is sort of a he's our guy and we're going to stick with him no matter what. And you know, some part of their brain deep down knows that this is perhaps not the smartest, wisest, most decent, prudent thing to do, and they just can't help themselves.
But this is this fundamental problem. I argue about this with George Conway all the time, which is what do they become the whigs? I mean, right, like, play this out for a minute. They nominate Trump. Trump goes on and again, Trump could win. It's electoral college, he might win. You sort of underestimate him at his own peril, but it's going to be an uphill slog for him, and he's going to be in and out of federal court
and state court during that time. So then is there a come to Jesus moment where they're like, look, the base loves scary fascism. But I mean, do they then go back to as I mean.
No, Jesus has left the room. I don't know what to come to Jesus moment? Is if there was going to be a come to Jesus moment Jesus came lots of time to the Republican Party. I mean that moment came and they said, yeah, we're too busy. We'd rather go with the orange caligula. We'd rather go with Brobas. I mean, they could have taken an off ramp after the election. They could have taken an off ramp after January sixth, They could have taken an off ramp after
he was indicted. They could mean, they're not taking the off ramp. There's not going to become this moment. My concern is that this culture has become so deeply rooted that even if Donald Trump, when Donald Trump leaves the scene, there's no return to normal. See, the tale of this is going to be extremely long. There are young people who are getting into politics now, for whom this is the new normal, this abnormal, bizarre world that we live in. This is all they know. This is the way you
you rise, This is how you get celebrity. This is the way people talk with one another, This is how you deal with facts and truth and moral dilemmas. And those people will be around Molly thirty forty fifty years from now.
I mean, that is the sort of ron DeSantis dilemma. If we're going to talk about that, right, is that his staffers. You know, we saw this that he had a staffer who tweeted out a Nazi video. I mean it wasn't necessarily a Nazi video, but it certainly had Nazi ideology. I don't know, I mean, was Nazi ish, it was Nazi adjacent. I mean I feel like once you start trying to qualify your Nazi experience. But I mean these young staffers are a large group of people.
Yeah, well, and you know, why does this keep happening? I mean, why does it keep happening that you have your story every week like, hey, you know this this rising young right wing influencer turns out to you know, have all of these these all right, what white supremacist treats? Why does this happen? It's like, hey, why, you know, I've been swimming in this particular pond for so long? Why am I wet?
That's true?
And unfortunately, so this is looking They're not all like this. I mean, this is still this is still a minority. But there's a tolerance of it, and there's an escalation of it, and you can watch it on a regular basis I mean, I was just thinking. Today I did a podcast with Ben Wittis from Larfare talking about Donald Trump's latest attacks on Fawnie Willis. I'm sort of getting ahead of ourselves here, but I mean, look, you know that he's going to play the race card because she's a black woman.
The newest Trump attack line is basically that Fawnie Willis has somehow dated a member of a gang. I mean, none of this is true. It's all like the kind of stuff he said about Hillary Clinton, but it's very sexist and also like very racist.
Yeah, and dated is a euphemism because that's not what he's suggesting. I mean, he's suggesting that she was basically, you know, having an affair with a gang leader. She was prosecuting. On one level, you goya, this is Donald Trump. Donald Trump's going to attack all the people that come out against him. But wait, you know, part of what we're seeing now is that everybody needs a stronger and stronger dopamine hit. The shock wears off, so you need,
let me switch, you know a metaphors once again. You need the more intense crack.
You need to have the pure something.
So Donald Trump is ramping it up he's going after her because she is black, because she is a woman, and he is whipping up this frenzy implying that she engaged in sexual misconduct with a gang leader. I mean, there's like all those you know, that constellation, and even for Donald Trump, recognize that he keeps upping the ante all the time. You know, you watch the social media accounts.
They're upping the ante all the time. The rhetoric becomes more intense, it becomes more violent, it becomes more you know, it's one thing to be hair on fire, then you just keep setting your whole body on fire. This has mine. This is real constant. But I don't want to be the Cassandra that goes, hey, guys, guys, guys, you understand
where we're headed here. There are crazy people out there with guns, like maybe this guy in Utah who listens to all of this stuff and he's got all these AK forty seven's and he hears that Joe Biden's gonna come to town and he thinks, hey, I'm gonna blow Joe Biden away. I'm gonna kill him, and I'm gonna kill FBI Aidens if they come to my house. This
is not theoretical anymore. This is actually happening. We've had January sixth, We've had people go into shopping malls in Texas and kill people because they believe the great replacement theory. We have people who go into synagogues and kill Jews because they think that they are encouraging illegal immigration. I mean, this is happening. And Donald Trump looks at this and goes this chaos and the fear that it engenders, I can work with this, I can use this.
That's really horrifying. Thank you so much, Charlie, really appreciate you.
Thank you.
Jocelyn Benson is Secretary of State the Great State of Michigan. Welcome to Fast Politics. Secretary of State Benson, thank you for having me.
I'm really excited and honored.
To be here. We're delighted to have you, and also, more importantly, he is being a secretary of state of a swing state in twenty twenty four, perhaps like the most crucial job for the preservation of democracy. Yeah, it is.
I mean voters have the most crucial job, always in preserving democracy, but in terms of a position to hold where one person can have the greatest impact, either in a positive or negative way around guarding democracy is it has always been the chief election officers in the states, particularly in battleground states, particularly in years like this where democracy will be hanging in the balance and will be directly impacted by the outcome of the elections and will
be directly threatened by many individuals and entities, including individuals to likely be on the ballot.
So let's talk a little bit about what that looks like in Michigan. You've written a lot about this, and you know, it's something I think I thought a lot about in the midterms. In a way, right now we have all of these swing states that have actually largely pro democracy people in the important jobs. So how will that affect things? And also what exactly are the nuts and bolts of you protecting democracy here?
Well, we essentially have three roles. We have to build the infrastructure in our states to ensure that the trains run, that people can get their ballots, can return them, they that they're counted, that the security provisions are in place.
That's priority number one. And then secondly, we have to tell that story, educate voters about the nuts and bolts are participating, and make sure everyone knows their options and how to have faith in the rescist so the election is an accurate reflection of the will of the people.
And then our third piece of that is countering misinformation and anticipating proactively and dealing with it reactively in the midst of making sure that voters can have the confidence and the clarity as to how to participate and the certainty that when they do participate, their vote will count and that results will hold. So we've got the sort of three pronged approach to our jobs. And certainly it's important for people of integrity in battleground states, regardless of
your political party, to be in those roles. And you also need a degree of competence because you've got to weather these battles. And it's not enough anymore to simply just run a good election. You have to not just educate voters proactively, but reactively address the lies that are out there and ensure they don't impact voter's ability to participate.
Michigan is a pretty exciting state. You have three women really in charge there. I was hoping you could talk a little bit about what Attorney General Dana Nessel did when it comes to the fake electors, because I think that that really does it does actually affect people's confidence when it comes to voting.
Yeah, I mean two things. I think certainly, it's important to make sure when as there was in twenty twenty, you have this actionable, coordinated effort to overturn a legitimate presidential election, that there are consequences not just for the election itself and what happened, but to ensure from a
preventative standpoint, it doesn't happen again. And then secondly, as we see everything play on in the national level and really start to understand I think as a country, the depths to which people stooped to collectively, nationally coordinate an effort to undermine the will of the people, none of that would have actually come to fruition had they not
had people in the states actually executing the plan. And so to seek consequences for those folks who made the whims of the former president and his supporters at the national level actionable in the battleground states is critical because all of it was part of the broad coordinated effort to overturn the will of the people, and there must be consequences at the state and the local and the federal level for all of it.
It is incredible that your state was one of these six states where they were just going and literally steal the bouts.
Yeah, It's something that began to be apparent to us in the spring of twenty twenty as Trump's fire kind of zoomed in on us, in particular myself, the AG and the governor. I think in the span of one week in May, he had mean tweeted all of us, which I think he never fully grasped how that helped us more than it hurt us ultimately in terms of doing our job and getting attention on the work we
were doing to protect Michigan, to protect democracy. But that said, it was really then where we began to see the unique role that being a battleground state and that being women running a battleground state was going to push us in.
And yet after the election, we were every day surprised again and again it's just how far he and others would go to keep escalating this losing strategy without any evidence or any real winning opportunity at trying to overturn these election results where there was not again a shred of evidence that he had anything to base his objections on.
I mean, just sort of an incredible bit of Trump as as we've seen it. So I want to ask you, now you have this crucial state, we're coming up into this insane election, how is your communication with other secretaries of state and are you guys read.
Been in near constant communication with the secretaries in other battleground states with Georgia Pencil, Wisconsin newly appointed secretary of state there, Nevada, and Arizona.
One of the.
Things that we didn't do, or that we did serendipitously, perhaps too late, in twenty twenty was that coordination. I mean, we talked in general about sharing best practices, but it wasn't until after the election where we knew what was happening in Michigan would impact what was happening in Pennsylvania, and that georg Joe was getting the same calls that we were getting. That the need for us to all
be talking and coordinating became really clear. So after that point, twenty twenty two actually became about ensuring we had the team we needed and working together to make sure that we did in these respective states. And so you saw the election of secretaries of state really front and center in that cycle, or the appointment of secretaries was the
case in Pennsylvania. And then now that we're here, we've got our team, we are already talking regularly and sharing even just you know, week to week, what is happening in our states, what we're finding, what we're challenging, what we're dealing with, because so there's far more in common
than not. And you know, for example, when all of the clerks in my state get a Foier request for pole book results, it's likely that the folks in other states have gotten that same request, and so we work together to figure out where it's coming from and what the intent is behind it, as we you know, again grapple with this common enemy against democracy that continues to be present in all of our states.
So can we have a two second conversation on Eric. We're going to get real nerdy here.
Yeah.
Eric is Election Registration Information Center and it was sort of the single best way to stop people voting more than once. Right, explain to us. I would love like your take on Eric, what it is and also why Republicans are now furious with that.
Yeah, it's really a great and I mean it's an unfortunate window into how misinformation. If a chief election officer decides to respond to it and validate it can really harm democracy in a significant way. So ERIC is a consortium of states that started about ten years ago where we simply just shared information when a voter moved from
one state to another. If you are a part of ERIC, shared that information in a very sort of both secure but also highly accurate way, so that we could assist that voter essentially in ending their voter registration at the state they moved from and becoming reregistered in the state they moved to. That was it, And we also worked with the federal government so when people passed away or moved and filed with the US Postal Service that they were moving, we got that information too, and we still do.
I don't mean to talk about it in past tense. ERIC member states still have access to all of that information, but it's not really clear. It looked like, I think a sort of right wing blog began to attack ERIC.
I'm pretty sure it was the Gateway Pundit in point I don't like named, but go for it. It's but I think it's worth just mentioning like they are sort of one of the number one places where disinformation originates, and it's also a favorite of the forty fifth President, Donald Trump.
It's really extraordinary how when you have no interest in the truth, there's no limit to what you can do or say to harm the very fabric of who we are his Americans in our democracy itself. And that's what
the Gateway Pundit has done. So that said, the story first emerged with a one secretary of state in Louisiana decided that he was going to lead gave ERIC as a result of just a barrage of lies about it, and as we peeled back the layers, it also appeared that there were some secretaries in conservative states like Missouri who started publicly saying they didn't want to be part of ERIC all of a sudden because they didn't want to have to register new voters through the system, which
is one of the parts of ERIC is you contact all eligible but unregistered voters in your state and give them information on how to register. It's a simple thing which I think every state should feel responsible to do. But that sort of became this sticking point where after the misinformation was debunked, other secretaries started to hone in
on this requirement that is a part of ERIC. You had to contact eligible but unregistered citizens and give them information on how to register to vote, and it became a lightning rod for secretaries suddenly saying they didn't want to do that anymore. The fact that they didn't want to do it coming off of the highest turnout election in twenty twenty in our lifetime is notable, And the fact that they didn't want to do it at a time when our country is becoming increasingly diverse is notable.
I think part of the context here, but all of that conflagrated with a lot of different other noise to cause a lot of states to leave ERIC. And it's unfortunate because every state that leaves is simply saying we don't want to be part of this bipartisan interstate collaborative
to help us collectively keep our voter roles accurate. And now also say, there's some scuttle butt that perhaps the conservative states that are leaving, and they're all led by Republican secretaries, that they may be starting their own ERIC like organization that will perhaps do the same thing. But there's a lot of questions about how it's funded and
what it's actually going to do. So it's so an evolving story, but the bottom line is Eric's going to weather this moment, and as I'm optimistic that as we get through the next few cycles, we'll start to see
it grow again in membership because it works. It's a effective way of us all ensuring the accuracy of our voter roles, and that truth, I believe, is going to carry the day long after the secretaries who are currently responding to misinformation to get out of it have left their roles and are replaced by people with greater integrity.
I mean, here you are doing these kind of very nuts involved democracy stuff, and you have really one political party that no longer believes in democracy. Not everyone, but certainly a large margin. And you hear people on television saying things, right wing pundent saying things like what's the harm and wanting to overturn election? I mean, you know,
things like that. Are you hopeful that, I mean, Michigan has actually done a lot of really interesting things and is a state with real serious conservatism and trump Ism and maga. I mean, are you hopeful that the country is turning a corner?
I think voters will determine, particularly in this election, whether we're going to turn a corner or not. And every time voters have been given that choice, and they were given it in twenty twenty two. They were to a certain extent, given it in twenty twenty they have chosen to turn the corner. And I believe that pro Democracy Coalition is going to grow into the future and that will actually emerge from this moment with a stronger and
healthier and more robust democracy than ever before. And that's the subtext of what we're experiencing in Michigan because along the same lines, at the same time that we've seen these threats escalate, that we've seen these challenges emerge, that we fought these battles in our state and in others, we've also seen democracy get stronger because voters, voters are participating, voters are voting to change their constitution to give themselves
a stronger and healthier election system where you can register on election day and have early voting. So what we're also seeing in this storm is a rainbow emerging of when voters decide to be a part of this work,
democracy thriving. And as someone who's done this democracy work my entire professional career, going back decades, we've always struggled to get democracy and the importance of participating in elections to be front and center in people's minds amidst the political noise, and what we have now is a time where it is and the more we can keep ensuring that people understand the foundation of democracy leads to everything else that we fight for. And that's also, frankly what
Michigan's demonstrating right now. The more we can have a healthy democracy that will coincide with this robustly diverse country
that we are growing into and evolving into. And that gives me a great deal of hope that in the next decade, particularly with young voters stepping up and into the fold and more diverse constituencies claiming their power, that we will have a b right new day where democracy is thriving, at the very least is more aligned with the goals of its founders than it has been in the past.
Michigan has been such a democratic success story in so many ways, led by through women, led by three democratic women, you know, even like Debbie Stabnaw stepping down and releasing her seat, it was a very sort of organized, you know, primary contest. It's still going, but there's been a lot of like harmony and working together and a lot of just sort of impress of state level staff. Is there a lesson for Democrats to take from Michigan and from the way you guys have worked together.
Yeah, I think the lesson is twofold one. Make it easier to vote in your states and put people in charge of elections. That will ensure people can have faith in the process and expand democracy. I mean that really what has preceded the policy changes in Michigan were changes to how we elect and how we vote and how we draw our districts. And that was the game changer.
And I think when you look at states even like Mississippi or Missouri, or states that seem very deep red, or Ohio, and what Ohio certainly has shown is that when voters have greater access to their own power to govern and to hold folks accountable and to elect people
who reflect their values, that's the game changer. And so you know, to me, Michigan went to a state where we saw you know, thirty to eight percent turnout in past midterm elections to a state where we see sixty percent turnout and seventy percent turnout in elections, and that really is the game changer. And it's gratifying for those
of us who believe in democracy. We're like, oh, and more people are voting, you actually get a government that's more responsive and more effective and works better than before. And so that to me is the lesson and certainly the role that women have played and that people of color are playing as well in leading our state right now.
It shows us also that when you open leadership to everyone, when anyone can run for office who has a story to tell on a contribution to make, then and when you have a more diverse governing coalition at the helm, you can get a lot of things done in a way that makes things better for everyone, regardless of whether they're a Democrat, Independent, or Republican.
Thank you so much, Secretary of State Benson for joining us, and really appreciate thank you for taking the time. My pleasure honored to be here. Thank you for having me. Hi. It's Mollie and I am wildly excited that for the first time, Fast Politics, the show you're listening to right now, is going to have merch for sale over at shop
dot fastpoliticspod dot com. You can now buy shirts, hats, hoodies, and toe bags with our incredible designs we've heard your cries to spread the word about our podcast and get a tow bag with my adorable Leo the Rescue Puppy on it. And now you can grab this merchandise only at shop dot fastpoliticspod dot com. Thanks for your support. Mark Joseph Stern is a legal analyst and Supreme Court correspondent for Slate magazine. Welcome to Fast Politics.
Mark, thank you so much for having me. Thrilled to be here.
Well, we're very excited to have you, and we're going to start by talking about everyone's favorite, Amy Koney Barrett. Did I pronounce her name right? I don't even care? Fuck it Amy Coney.
It's Amy Coney Barrett, that's right, Like, yeah, she I refused, I will say, I refuse to call her ACB.
Yes, I just I can't bear it, right, I mean, as soon as she was nominated, I remember vividly Republicans were trolling liberals with the notorious ACB shirts, which then became like the contagious ACB after the super spreader White House event.
But it's like Kaitanji Brown Jackson gets to be KBJ. But Barrett has certainly not earned the three letter thing yet and probably never.
Will, except and again we're never going to say anything nice about her, because really she does suck. She made this very weird and we need to talk about it. So I want you to give us a little background on this because it's a Supreme Court decision coming down in August, which is not when we're used to them coming down. So explain to us what the fuck is going on.
Yeah, so this is the famous shadow dockets, which listeners may have heard of. This all happened in the shadows, not on the Court's regular merits docket, but all as an emergency application. So that means that one party in this case, the federal government, went to the Supreme Court and said, something has gone horribly awry in the lower courts and we need you to fix it. And it's such an emergency that we can't wait for weeks or months or years. You need to do it now. And
so that is why the Court acted now. It handed down this order, but notably did not produce any opinions either a majority opinion, concurrences, dissents. Nobody wrote anything. So we're going to have to kind of guess as to the motivations of the justices here.
Remember, or that the shadow docket has dealt with lots of stuff it's really not supposed to deal with. Oh yeah, right. I mean there's sort of the hallmark of this Kavanaugh Court, if that's what it's called now, which I kind of think it is, is that they take stuff like Roe v. Wade and put it on the shadow docket, right like.
SBA totally and also a bunch of really important COVID cases involving religious liberty and the closure of churches. And you know, I think the important thing to remember about those crazy times is that the court was regularly changing the law over the shadow docket. So the court, you know, in the SBA case, allowed Texas to ban abortions at six weeks before it had formally overturned Roe v. Wade and so essentially use the shadow docket to overturn fifty
years a precent. That is an abuse of the shadow docket. But there are also instances in which a crazy District Court judge, usually although not always appointed by Donald Trump issue is an opinion that's way the hell out there, that changes the law in a way that is alarming and radical, and inevitably the Fifth Circuit, which is the most conservative circuit Court of Appeals in this country covers Texas, Louisiana, and Mississippi allows that to happen because the Fifth Circuit
is nuts. And so this was one of those situations where it's not really an abuse of the shadow docket because what the court did essentially was intervened to keep the law where it is and to halt this way out of line rogue decision that had come down some below or form.
Right, let's talk about this decision. The decision is five to four. You can't make ghost guns, right.
So the Biden administration is very careful about this. They want you to know that you can make all the
ghost guns that you want, Molly. You are free as an American citizen to purchase and assemble ghost guns, but you you have to go through an authorized firearms dealer, and the authorized dealer has to follow certain federal laws, including a mandatory background check and ensuring that there is a serial number on the weapon and keeping certain records so that if it's used in a crime, then the government has some chance of tracking it and you know,
finding the person who committed the crime. The problem with ghost guns is that as they have been sold up until basically now none of those rules apply. You know, all of the federal restrictions on firearms, and there are only a few, like there are very very few. It's just like background checks and serrical numbers, basically, but those were not being followed because what ghost gun sellers did
was sell these kits. And I'm using air quotes here because it is essentially like an almost entirely finished gun and you just have to like screw on one last piece. And they claim that because that was not a true firearm and that the user had to spend twenty minutes watching a YouTube video to finish putting it together, that they were exempt from all of these various laws. And that is what I think led to the proliferation of ghost guns and specifically their use in crime. Fewer than
one percent of ghost guns have been tracked. They are essentially untraceable, and they are right now the favored gun of criminals who want to use firearms to commit crimes and murders because they have this great benefit that you can buy it with a prepaid debit card that you
get at seven to eleven. You don't have to show any ID, you don't have to undergo any background check, and if you have access to YouTube, you can make this weapon and use it to murder someone in less than an hour did, just as.
Handmaid and Hack. Did she in fact have a reasonable thought explain?
Yeah, I think that's what happened. So in twenty twenty two, the Biden administration and specifically ATF issued a new rule that essentially said ghost guns count as firearms under federal law, and that means they have to be sold by licensed firearm dealers and they have to go through the same very minimal process that all gun purchases do under federal law,
like the background check and whatever. That was pretty reasonable because the statuted issue here says that a firearm is either an assembled weapon or a series of parts that may readily be converted into a weapon, and that is a perfect description of what a ghost gun is. I mean, you get the kit, it's a series of parts, you convert them into a finished gun, and then you shoot someone.
And so it was quite sensible, I think for the Biden administration to come in and say, look, this is what the law requires, and we're going to start requiring that ghost gun dealers go through these processes and a federal district judge in Texas named rit O'Connor issued what we call nationwide vacator, essentially a fifty state bar on this rule, and said it's illegal, it's totally beyond the president's authority, and I'm blocking it all across the country.
And the Fifth Circuit agreed with O'Connor and kept that block in place, and so the case came up to the Supreme Court.
So this was a Federalist Society judge.
Obviously, this was a yes, one of the worst federalist scited judges. So you may remember rit O'Connor is the one who tried to strike down the entirety of Obamacare in twenty eighteen.
Yes, yes, so yes. As much as we like George Conway personally, this is likely a friend of his.
This is probably a good drinking buddy. They have brandy after dinner. But rit O'Connor is a nutjob. And in addition to trying to strike down all of Obamacare, which got reversed seven to two at the Supreme Court. By the way, even Clarence Thomas said that O'Connor was wrong.
He is.
He has done a bunch of other crazy stuff like anti vax stuff like very far reaching anti LGBTQ stuff. He's a bad judge. And so as this case came up to the Fifth Circuit, it was like, of course, the Fifth circuit's also crazy, they're going to uphold Rite O'Connor. That leaves the question to the Supreme Court, well, do we step in. Do we go through the shadow docket to say rit O'Connor, you need to go to time
out because the adults are back in the room. Or do we just let the lower courts continue to go hog wild and allow the proliferation of ghost guns to continue apace and basically be single handedly responsible for thousands more ghost guns being sold without any kind of licensure,
background check or anything. That was the question for the court. Amazing, the Supreme Court ended up issuing an order by a five to four vote that put rite O'Connor on hold and allowed the ghost gun rule to take effect and said basically, Biden administration atf you guys are allowed to start restricting the sale of ghost guns while this case continues through the lower courts. Again, no opinions, so we
don't know exactly what happened. But Amy Cony, Barrett and John Roberts joined the three liberals to create a majority, and Thomas Alito, Gorsich, and Kavanaugh all dissented. And that was a real surprise because Kavanaugh is the one who's kind of suggested in the past that he's not a Second Amendment maximalist, that he might agree with some reasonable limitations on firearms, but that was all absent from this case.
He was gung ho, it seems, about getting ghost guns out onto the streets and into the hands of criminals. So I think Barrett in this particular instance, did have a thought that was more judicial than political or personal or ideological. You know, she seems to have believed that the Biden administration got this one right. She's also, and I have to give her a little bit of credit for this, she has expressed a lot of skepticism toward these single judge orders that apply nationwide that we've all
become so familiar with. Right when one judge issues this decision that's universal, that applies to everyone everywhere, And she has suggested that those are not actually legal, that they're not authorized under the Constitution or by Congress. And so it may also have been that she wanted to send a message that she's not going to continue entertaining these sweeping orders that purport to cover the entire country when that's not a power that judges have.
So this was.
An interesting moment for those of us who follow Barrett closely. She's never ever before joined with the Chief and the three liberals to create a five four majority. This was a novel coalition. And I guess if you're like really desperate to look for optimism about the Supreme Court, like this would be the place to do it, because she's acting like a real judge and not like a partisan have.
Yeah, let us never give her too much or really any credit, but that is still pretty interesting. So I want to talk to you about some of the other shit that's gone down. We have this pretty interesting blowback to the overturning of Row, which is that in Wiscon, in this very divided state, by a large margin, they elected a judge named Judge Janet. Talk to us about Judge Janet. I want to mispronounce her last name too. It's pro to say. It's oh easy, it rolls off
the tongue. It's now Justice Janet. Yes, she's got a promotion. Yes, but let's talk about Justice Janet because this was a real upset for Republicans and we drank their tears. But it has really important meaning and let's talk about it.
Yeah, it absolutely does. So, I mean to the point about abortion that has been such a topic of conversation around Wisconsin. I think very soon Justice Janet will probably cast the decisive vote that blocks Wisconsin's abortion ban and restores legal abortion in the states and holds that this very very old law that was passed exclusively by white men, like more than one hundred years ago is no longer good law, and that people are allowed to exercise reproductive freedom.
So that's really great. But I actually think there's like an even more fundamental problem that she's eager to tackle here, which is the fact that wis consent is no longer
really a democracy in any sense of the term. So, you know, Wisconsin Republicans in twenty ten drew the most egregious partisan gerrymander that has ever existed, and they managed to preserve it with the help of the Wisconsin Supreme Court in twenty twenty because the court at that time had a conservative majority, and the day after Justice Janet joined at the beginning of August and flipped the court
and give it a liberal majority. Voting rights advocates filed a lawsuit against that jerrymander and argued that that Wisconsin legislature is so chopped up and horribly jerrymandered that it violates various provisions of the state constitution that guarantee the equal vote of every citizen, that guarantee freedom of association, expression, all of these kind of bedrock rights that political gerrymanders target by saying, well, if you vote for Democrats, then
your vote's going to count for less. We're going to you know, stick you in this district where you'll never be able to elect your preferred rep. And so, you know, when the court tackles that, and it's going to happen soon because the case is already there. That I think helps to restore actual democratic rule to Wisconsin, you know, make it a representational democracy again for the first time
in more than a decade. And at that point, we won't have to rely on Justice Janet to do things like overturn an abortion ban, because if the state legislature reflects the will of the people, it will either be
very closely divided or democratic leaning. Because Wisconsin in recent years has been either in the center or a little bit to the left, and so that's like a big difference I think between Republican and democratic judges in some sense, Like what Justice Janet wants to do is return a lot of these issues to the democratic process and you know,
let the people work them out. What some Republican justices on that very same court want to do is prevent the people from ever really exercising their rights through representative democracy because they're going to be toiling under a partisan gerrymander forever. And that is like a huge dispute in the legal world, and Wisconsin is coming out very much on the right side of it at this moment.
Unbelievable, Wisconsin, Michigan, Pennsylvania, Like, whoever thought those guys would be leading democracy. Let's talk for a minute about Trump's legal troubles. Since you are a legal scholar of a sort, right, we're going to get a fourth indictment, maybe around the same time as the GOP first debate, I mean, what the fuck? What the fuck?
Indeed, I've said all along, I think the New York indictment is weak. I'm not optimistic that that one's going to even get to a jury trial. I think the way that the district attorney tried to bootstrap this election crime onto a misdemeanor to get it into a felony range is just very legally questionable.
Right, And it's also a state charge that somehow then would have to become a federal charge.
Right, Yeah, exactly. You know, the accusation is that he violated federal campaign election laws and that the DA can like kind of couple that with a violation of state business records laws and magically transmography it into a felony under New York law. I'm not convinced. I would love to be convinced. I've read the best arguments.
I'm not convinced by the way. He had a good case. He just decided not to go with that.
Alvin Bragg did.
Alvin Bragg had the lying about the valuation of his property's case, which I've known people to go to jail for, and Alvin Bragg decided not to go for it. And then the political bullback was such that he went for this lesser case.
I think that's exactly right. And there was blowback within his own office too, and that pressured him to figure out a way to bring charges, and he just sort
of brought the wrong ones. I think the mar Alago classified documents case is clearly the strongest on the law and on the facts, Like you not only have the obvious theft of these classified documents, which is in itself a crime, but you have this totally blundering obstruction of the resulting investigation into the theft of these documents, and this broader conspiracy with at least two other people to
try to cover up the obstruction itself. You know, we've got apparently CCTV footage of people like secretly moving these documents out of the storage room where the federal agents are going to be tomorrow to look through them like that. You know, this was a crime where Trump got caught red handed. But the problem, of course, is that it's landed in the courtroom of Judge Eileen Cannon, who is is either maliciously partisan or extremely stupid or both. I
really don't know which is which it is. But she already at a previous stage of this case ran interference for Trump, tried to halt the early stages of the criminal investigation into the classified documents at mar Lago got brutally reversed at the Conservative Eleventh Circuit twice, which accused her of creating different rules for Trump than everybody else,
which is exactly what she did. And now she's handling the rest of the case, and she's already suggested that she's going to be pretty much in the tank for Trump and is forcing federal prosecutors to jump through hoops they should not have to jump through, delaying the schedule for no good reason. And so you know, if we assume the Canon is going to kind of throw this case, which a trial judge really can, that leaves us with the January fifth prosecution here in the district, and that
has landed before brilliant Judge Tanya Chuckkin. She's an Obama appoint judge. Cannon is, of course a Donald Trump appointee. Chuckin is like a judge's judge, widely respected. I think that these charges are strong and legally grounded. But I also think the Republicans have done a good job trying to tend that they are just prosecution of political speech. That's bs to be clear, like that is absolutely not
what's going on here. But I am worried about the ways that Republicans can manipulate the January sixth case to try to paint Trump as a martyr who's facing this witch hunt. Again, that's not the case, but that's what
they're already trying to do. And that's why I'm I don't know, I'm still kind of worried, because ideally, you could just nail him on this massive criminal conspiracy at mar A Lago to trick the government, and that case has landed before maybe the dumbest judge in the history of the federal judiciary.
I love the dumbest judge in the history of the federal judiciary, though. I think kas Merrick would like a word. Thank you so much for joining us. I hope you'll come back.
Yeah, thanks anytime.
Molly, no moment, Jesse Cannon, Molly Jung Fast that Matt Gate's always up to something to defend mister Trump.
What do you see in you know, you may remember Matt Gates of being under FBI investigation for a long time. He's cooked up a plan to immunize Trump to get him off the hook for the federal charges he faces again. It all sounds like hooey to me. That's it for this episode of Fast Politics. Tune in every Monday, Wednesday and Friday to hear the best minds in politics makes sense of all this chaos. If you enjoyed what you've heard, please send it to a friend and keep the conversation going.
And again, thanks for listening.