Mike Pence's Dumb Privilege; Jim Jordan's Circus Committee; Rihanna - Transcripts

You voted. I did. You protested. Again. You postcarded. So many Sundays.

You posted on social media. Got some likes. And you're still reeling from all the terrible news.

Yeah, but what else can I do? I'm Kelly.

I'm Lila. And we're gonna help you figure that out. Each week, we'll interview people on the frontlines of political action about the things they actually did to take action.

What got them started, who helped them along the way,

and what they'd do differently if they had it to do all over again. And in the process, we'll give you concrete advice about how to take the leap from freaking out on Twitter to making a difference.

Follow What Can I Do wherever you listen to podcasts. Or tune in on WhatCanIDoPodcast.com.

So, Asha, Mike Pence is challenging the grand jury subpoena for his testimony. Is he gonna get out of testifying before the grand jury?

Eh, it's complicated. I'm Asha Rangappa. I teach national security law at Yale University. I'm a former FBI special agent, and I'm a legal and national security analyst.

And I'm Renata Mariotti. I'm a former federal prosecutor, a practicing lawyer, and a legal analyst.

And we're here to help you understand topics that can't be broken down into a soundbite or a cheat. So, Special Counsel Jack Smith has issued a grand jury subpoena for Mike Pence's testimony. And I know you have thoughts on the significance of that, but procedurally, he is challenging it on constitutional grounds. And so, that issue has to be decided before he even gets in front of the grand jury. And his argument is that... So, just as a little trip down memory lane, Mike Pence challenged the January 6th committee's subpoena for him to testify by claiming executive privilege.

Did he? I thought he just wasn't subpoenaed. I actually thought there was some secret agreement between his staff and the January 6th committee, because they all were super cooperative. And then the committee is like, we don't need to talk to Pence, because we've already gotten all this amazing information from these guys.

You might be right. They might not have issued it, but he definitely basically said that that would be the grounds that he would challenge it, that it would be unprecedented for Congress to ask him to testify about conversations he had with the president. So, he was intimating that he would invoke executive privilege in that context. Now, with this grand jury subpoena for the criminal justice process, he is claiming essentially legislative privilege. He is claiming that because he was acting as the president of the Senate on January 6th, that he can claim the immunity offered under the speech and debate clause of the Constitution from having to testify.

I think that's right. Yes, he said that.

So, this is kind of crazy cakes. Now, we had our initial disagreement, because you think it's dumb. I agree that it's dumb, and I compared it to the dumbness of the Trump claiming, for example, that he could pardon himself. It's dumb, but it's also an unsettled legal question. So, it's not like there's anything like a clear precedent, or it's not that it's, in fact, I think the self-pardon thing is even dumber,

but you disagree. Yeah, this is like next level dumb. I think this is like, so this seems to me like the sort of thing that law professors write in law journal articles where they're trying to dream up. For our listeners who don't read law review or law journal articles that law professors write, occasionally they will write about a practical topic, but often they're sort of dreaming about interesting, complicated scenarios that bear no resemblance to the real world whatsoever. This strikes me like that sort of thing. Basically, Pence's legal team got together, and they're like, okay, every argument we could make to shut this down is a complete loser. So, let's come up with an argument that no one's ever conceived of because it's so bizarre and absurd. Okay, here we go, and this is totally, you're right, no one has ever considered this. You say, well, what about the self-pardon? Wasn't that equally dumb? Well, the self-pardon, I mean, no one's ever tried it, but there's nothing that says you can't pardon yourself. I mean, it's sort of inherent to the clause, but you're kind of, to prevent something that is really bad, like the president shooting people and then pardoning himself or whatever, you know, the courts are likely going to limit that, but on the face of it, there's nothing that says he can't do that.

So I think there's more of a colourable argument. I mean, I agree that it's a failing argument, and it's really, really stretching the constitutional text. But I think there's a colourable argument, and here's a couple of notes on that, which is that, because I was on Twitter this morning, someone quoted Steve Engel from the Office of Legal Council under the Trump administration. I think from his testimony to January 6 committee where they asked him, did the Office of Legal Council provide advice to Mike Pence about what he was allowed to do constitutionally or not on January 6? And his answer was no, the Office of Legal Council would not be appropriate for us to provide advice on what the vice president would do in his purely legislative duties. So they were considering him an Article 1 officer for purposes of giving Office of Legal Council advice. I'll just put that to the side. Now, Steve Engel was my classmate. He also wrote some dubious internal opinions, so whatever. But my point is that that was the position, at least in his testimony. So he is acting. So let me just read for our listeners what the speech and debate clause says.

I am not a constitutional scholar. Okay, this is this is something that, you know, when I talk to, when I talk about what I think can happen in a criminal investigation that I'm saying from many, many years of experience and thousands of thousands of hours of experience, I don't, I'm not a constitutional scholar. And this is not my area of expertise. I will say, though, that a couple of things, you know, first of all, the speech and debate clauses is being expanded beyond its text by the courts, and they have protected, for example, staffs of congressmen and senators, and their, you know, the their work, their written work that they do to try to work on legislation outside of the chamber, that's not, you know, they're not speaking or debating, but they're, you know, working on bills and so on. So it certainly, you know, would afford if Mike Pence was, you know, did fall under the embedd of that clause of would, you know, provide some protection to him. I'm not sure it would protect him from testifying regarding conversations in which Trump is trying to pressure him to break the law. But, you know, it's an interesting argument that will will run some time off the clock. And I think the important thing from my perspective is it's going to make it look to conservatives and to Republicans like he's not just rolling over and helping the government because my initial take was like, okay, I bet Mike Pence's team said, sure, we'll testify you give us a subpoena. And that's that's that was my take of what I thought had happened here, because his team certainly seemed very happy and eager to help the January 6. And I'm sure they wouldn't have done that if Mike Pence told them no. And so I just figured that Mike Pence was trying to, you know, pretend like he was at arm's length, but actually help Jack Smith. And he may still be in that in that in that mindset.

special counsel. Yeah. I mean, I'll just give my thoughts on the constitutional argument. Like, you know, the the speech and debate clause is there. It's a separation of powers principle to prevent encroachment upon Congress by the other branches. It's a separation of powers principle. And, you know, so it is to protect their core legislative functions, you know, from, you know, from them being subject to harassment for what they're doing. And in the same way that executive privilege is there to protect the core executive functions, to the extent that Mike Pence played a role on January 6, it was purely ministerial, a of all, there was no like, he's not engaging in legislative duties. Second, as you pointed out, Renato, to the what Jack Smith is really concerned about is not Mike Pence counting of the votes. It's about everything that led up to January 6, the pressure that he was under, what were the conversations that he was having with, you know, Mark Meadows and the president, maybe what what kind of conversations he was having after the attack began. But, you know, it doesn't really concern the legislative duties, to the extent that they existed, per se. And then finally, I'll just say, it is a, it is pretty effed up to use a separation of powers principle to hinder an investigation into an attempt by the executive branch to usurp Congress's authority, and in fact, attack Congress for doing its duty in violation of the separation of powers.

principle and overthrow the government. I just don't even in this, in this case, I don't even think it this is a legislative activity at all. In other words, as you I mean, what happened here, the conversations that Jack Smith is interested in, and, you know, part of what's going to happen here, some of this will likely get spelled out in in the in the litigation, which I think is in, you know, I ordinarily if I if Pence was, let's say, my client, which of course he's not, but if he was just to put myself in those shoes, I'd be like, well, one advantage of litigating will know in advance what the questions are. But I think he he already has a sense. And if I'm Jack Smith, I'm litigating this and I'm like, hey, all I want to know from this guy is, what did Donald Trump say to you on the phone when he's trying to pressure you to overturn the results of the election? And that's not a legislative function that you listening to him on a rant threatening your political career unless you helped him do something that was unconstitutional.

That was I was outside the scope of your constitutional duties. Exactly.

Yeah. Yeah. I mean, so I just think at the end of the day, like whatever way, I mean, a court could just say could just punt on these goofy constitutional arguments and just say, like, regardless, even if you assume that they're all true, none of this has anything to do with it. But I so I just think one way or the other, Mike Pence is going to end up testifying. This is my practical advice as somebody who's not a constitutional scholar. And my initial gut reaction is is was my was the same as yours, which is like this is really bizarre.

Yeah. And I'll just add, you know, there's been these weird arguments that have been made just like with with Trump trying to assert executive privilege against the Biden administration's waiving of it for the classified documents, turning it over. And now Pence trying to claim the sort of legislative privilege, which, by the way, is yet another chink in this unitary executive theory. If the vice president and officer of the executive branch has an independent privilege that can be asserted, then this whole idea that there is this, you know,

bulletproof unitary executive is not really true. Yeah. And let me just explain that. And let me just explain what I was just talking about, because it's a bit this is a very nerdy legal. Yeah, this is like, OK, we've got foam there. We've got full full law school nerdy here.

So unitary executive is this theory that, you know, it's a bit this is a very nerdy legal.

Yeah, this is Bill Barr and other Republicans have where they say that the executive branch of the government is one person, the president of the United States. And everyone else are just like hangers on and derive their power solely from the president. And so the president could decide to do anything. You know, I, you know, whatever, just abolish things that will and, you know, you know, do whatever he or she wants. And that will that is the executive branch. And as Ash is pointing out, will you if you have an officer, the executive branch is independent? I think even Bill Barr would have to admit the vice president kind of has separate constitutional authority like Donald Trump couldn't get rid of Mike Pence as much

as he wanted to, because Pence is elected too, right? Right. Anyway, so let's, you're right, we've gone, we've gone down the full, you know, legal nerd untethered to reality rabbit hole. So let's get back to reality and talk about assuming that Pence can't get out of testifying. What does this mean? Not only for Pence, but the significance of Jack Smith taking this step. Now remember, Mueller never issued a subpoena for Trump. He didn't go this far, I think partly to avoid having to enter these weird constitutional thickets as it were, I think. Jack Smith is, has decided to, you know, he said, bring it on. So what do we make of it?

Yeah. I mean, I'll just say that Mueller, I think, had uncharacteristic restraint for prosecutor. I don't criticize that. I know many of our listeners probably would. I have seen too many prosecutors who abuse their discretion to criticize ones who are very, who exercise great restraint. But I think Jack Smith, you know, one thing this tells us about Jack Smith, as you point out, just to hook into what you just said, Ashos, I think, you know, he's an aggressive prosecutor. And it also suggests to me, and I think this is very interesting, that he's pursuing the January 6th investigation, particularly this whole question of whatever you want to call it, decertifying votes or, you know, throwing things back to the states, whatever you want to call the scheme that Trump had to thwart the counting of the electoral votes. He is investigating that with a lot of verve and is pushing that forward aggressively. And that's interesting to me because, you know, if you, I think we've had a number of conversations on this podcast about what Jack Smith is doing. And my prediction was always, you know, the Mar-a-Lago case is low hanging fruit. And, you know, he could just like focus on that and push that forward in kind of January 6th. You know, he has to make a decision.

I bring an indictment potentially or get a conviction. Yeah, to that point, I do think that it looks like there's a lot of other things being uncovered in terms of, I know there was some reporting last week about the Trump camp had hired a firm to find evidence of voter fraud and the firm did not find any, you know, so there's a lot of other things that are putting the nail in the coffin of he totally knew he had lost. But I think what you're saying is this is kind of the last little thread that they need to make sure they know exactly where, you know, what would be said here

if he were called up on the stand. Right, well, think about how this is gonna play out. Like people often don't understand, you know, people, when I'm talking to people who are commenting, let's say on Twitter, they're like, well, it is something's either true or it's false and it's very black and white. But you can imagine Mike Pence saying, oh, I had conversations with President Trump. You know, he just, he told me that this Eastman guy had these weird theories and he just wanted to let me know about them, you know, wanting me to consider them and make sure that my team had considered them and I told them I had and, you know, he just made it sound like very conversational. Like this is, you know, he's just throwing out some ideas versus, you know, Trump told me that Mike, you know, that I would be disloyal and he would make sure I paid and unless I, you know, did what, my duty to overturn the election or to do whatever on January 6th and I understood him to mean overturn the election and I told him that that was, you know, illegal and he didn't care. I mean, you could see those conversations happening in different ways and those having different legal consequences and, you know, ultimately, someone else was part of those conversations. Mike Pence is going to have some ability to shape his testimony regarding that for better or for worse. And I think he's going to say, well, my impression was this, or I viewed it that way, or I understood what he was saying to be this or that.

And I think it's going to have an impact on things. Hi, I'm Frances Callier. And I'm Angela V. Shelton. And we're Frantula. You know what you need in your life? The Final Word Podcast. Yes, you do. That's right. It is the final word on all things political and pop cultural. Where we make real news real funny. Where we inspire you so you can hashtag resist.

All we do is give. So, Asha, what do you make of this weaponization committee? That was certainly bizarre.

Yes. And there's so many committees happening right now that it's worth delineating. I actually wrote a piece for cafe.com likening these committees to a three-ring circus. And so, you know, in ring one, you had Hunter Biden. Only three? I did note that there were a few others and I couldn't fit them all into the three rings. But Hunter Biden's laptop, ring one, ring two, weaponization of government.

This is a subcommittee of the Judiciary Committee and it's headed by our favorite, Jim Jordan. Only three?

Actually, I did note that there were a few others. And what's going on here is that the Republicans intend to use this committee to show that the investigations into the January 6th defendants, you know, were politically motivated. And that in general, the FBI is engaging in political persecution. They claim to have all of these FBI whistleblowers, which as far as I can tell are FBI agents who are fired for not doing their jobs. But so that's kind of and they've likened their committee to the church committee. Now, the church and pike committees in the 70s were basically a turning point in terms of oversight of law enforcement and intelligence because these hearings in I want to say it's 1976 basically exposed all kinds of civil liberties abuses that the FBI and the CIA were engaging in. So, for example, the FBI was engaging in counterintelligence investigations and activities against, you know, Vietnam War protesters and civil rights activists and the CIA was also participating in this stuff. The CIA was doing crazy stuff abroad, you know, trying to assassinate leaders and things like that. But anyway, it was a very, very important, serious bipartisan congressional hearings that led to important reforms. The irony here is that many of the reforms that the church committees resulted in, for example, the attorney general guidelines, which kind of puts a lot more guardrails on FBI investigations, in my mind, actually got in the way of the FBI really being able to be aggressive leading up to January 6th. I think there's a lot of other failures, but a lot of what came out of the church committee was to make sure that there was a large First Amendment buffer that prevented the FBI from investigating people based on First Amendment activity. And I think for this reason, the FBI was circumspect about policing social media, for example, leading up to January 6th.

Yeah, I have to say, I don't know if there is a coherent topic that the weaponization committee is about. It seemed to me, I tried to watch part of it, it seemed to me like a mishmash of all sorts of, like, Fox News talking points that had nothing to do with one another, it was completely incoherent. It was just a whole bunch of grievances, many of which don't make sense when you kind of get past a very thin veneer. I mean, some of the allegations were absurd, but there's these crimes that have been committed by whatever. It seemed like everything from Hunter Biden to the, quote, Twitter files to, you know, everything else, it just, it's more, the purpose of it, as far as I could tell, is to generate Fox News clips for Jim Jordan and other people on the committee. And I don't know what is going to achieve other than, you know, they're going to get a lot of denied requests by the Justice Department for, you know, evidence regarding ongoing investigations that they can point to to prove why they needed an even bigger majority in the House or that they're, quote, doing something or whatever.

Yeah. And I'm glad you point that out because this is, it's not going to make sense to you. It's not going to make sense to most of our listeners. This is largely performative because, as you said, it's really just regurgitating a bunch of propaganda talking points, conspiracy theories that are in circulation on the right. But here's the thing. It makes total sense to a Fox News watcher because they are in an insulated reality where all of these narrative threads, you know, are repeated constantly. They fit together into this whole, you know, deep state conspiracy. So that is who their audience is. They are feeding, you know, they are basically trying to legitimize those conspiracy theories by bringing them into, you know, they have to be true otherwise. Why would there be a congressional hearing about it? And I think I've mentioned before on one of our episodes this idea of the propaganda feedback loop. This is a concept that was created by a Columbia law professor, Yochai Benkler, and some co-authors in a book called Network Propaganda.

A person in government, right?

Yeah. In government, exactly. Like in other words, the narratives that they're saying are actually not only false, but projections of what, you know, was going on. I don't know. I don't know how much of it we'll get through. I think there might be some sliver of people who will see it, but it's not going to get very far. But it does help to legitimize a lot of the disinformation and propaganda.

Yeah, that's a really smart take. I'm even less optimistic than you. I doubt almost anybody is going to take a look at this outside of the ecosphere that they're in. And I agree with you that the main purpose of this is to provide some legitimacy. I mean, I spend a lot of time talking to people on the right. A lot of family members are on the right and I otherwise interact with lots of, there's lots of lawyers on the right who I have to interact with on a regular basis. And for them, they'll throw something out there, or there's a whole committee looking at this. That's the sort of thing that they would do to sort of shut down me trying to introduce facts into a conversation. You know, I think that's exactly what this is. And what's sad about it is that I think we're seeing more and more that for a lot of members of Congress, it's particularly true, I think, in the House. The House is not about legislating. It's about finding ways to get yourself on TV clips.

fact of that committee. Absolutely. Now, I think this is completely intended to obfuscate and disorient people on which way is up with regard to January 6. And I think with an eye towards making any indictment of Trump appear politically motivated

as well. Yeah. So it's ironic because they don't hold, they're very interested in why, for example, Vice President Biden, there hasn't been more investigation of classified documents and they don't have the same, they don't question Donald Trump's activities the same way, very, very obviously partisan.

Oh, yeah.

And that's ring three is Joe Biden's handling of classified documents. Which is, it's just hilarious because Biden's, Biden essentially, it appears like he inadvertently had classified documents and it is totally cooperated and is nonetheless the subject of a federal investigation by special counsel. And yet that their focus is on that instead of Donald Trump, who defied the Justice Department. Thumb does knows that them refused to produce documents in the face of repeated requests in the subpoena. And so on.

Bizarre. Totally.

So before we go, Renato, uh, did you watch the Super Bowl? I did. And I, so I have been, I'm a huge sports fan. I was, uh, like when I was a kid, I was like super football fan. That was my number one sport because I grew, I mean, the bears won the Super Bowl when I was in grade school. So I still know a lot of the worst of the Super Bowl shuffle. I brought, I don't know of all of them, but I'm probably, you know, all of them pretty close. Um, but you know, the bears have been so bad for a long time that I'm now more of a bit of a NBA and baseball fan. But I still, I, I'm in a fantasy football league and I follow the league. So I didn't have a dog in the fight. But I watched the game and I was a little disappointed with how it ended because it

was so exciting most of the way through. Okay.

I know who was playing. I knew it. I knew it. I knew it. I knew you were good. I'm a halftime and commercial person. Am I right?

I knew it.

Um, I mean, sort of, um, I, I know that Rihanna performed the halftime show. I saw some clips.

I know that she was showing her pregnancy, but you, you didn't even watch Rihanna in

the halftime show. I was skiing in Utah and it was like a prey ski time. They have televisions in Utah. I think I know, I know they do just making sure, but I had just gotten out of the hot tub and was having a glass of wine.

They have televisions in Utah. I think, okay.

Just making sure. But Wow. You know, you miss an amazing dog food commercial.

Did you see the dog food commercial?

Amazing dog food.

Yeah.

How were the commercials? They were good. They were good. The dog food commercial was like, that was the pull that your heart strings. That's like if somebody who has my own dog and loves my dog. That was, I don't know. Maybe as a cat person, you wouldn't appreciate it but as a dog person, I was like, Oh, that was, Okay, I'm gonna have to look it up. Which dog it's um, it was for farmer's dog. The, you know, it's just like a fancy. It's like trying to get you to spend twice for your dog food. My dog has like special, he's a special needs doctors get special dog food anyway, but it's like, you know, super expensive dog food. And so if you really love your dog, you're going to buy farmer's dog

because you watch this commercial. It's a great commercial. What did you think of the halftime

show? Because there was some debate. It was good. I mean, I will say I, one thing, and this makes me maybe makes it seem like a curmudgeon is I really wish there's less lip syncing in halftime shows. It's just so obvious. I mean, I don't blame Rihanna. Everybody seems to do it in the halftime show, but it's kind of lame. Like I'd love, you know, I'd sound like I, I can always just play her tracks on my iPhone. I would, what would be interesting is to actually hear her sing occasionally to me. Um, but I thought she was good. But she's lip syncing to herself, right? Yeah.

Yeah, that's it at this point

I think that like if if there was a black person doing anything that means it's woke I guess I don't know. There's nothing woke away She's performing a lot of major, massive hits over many years. I don't know what's... I gather that she's a very successful artist. I don't know what you would get out of that. I mean, there's nothing particularly creative. It wasn't risque. Okay, I remember when there was that whole thing with Justin Timberlake, like, Oh wow.

There was nothing like that at all. Many years.

There was some right-wing commentator who claimed that her performance was satanic.

They got that. There was like some sort of I think we talked about this last time with that other performance Like I don't know that now actually I could see it. There are some imagery like artistic imagery here. There is nothing like Remotely satanic. I mean maybe because she was wearing red. Is that the idea like we can't wear red anymore I guess is it is all about red. I mean do they want to go they want to go blue now I don't know this bizarre

There was a great tweet though on Twitter where there was a, you know, long distance shot of Rihanna performing and she's in the air on that platform. And there was a balloon behind her.

And the tweet says, watch out, Rihanna.

That's awesome. That's awesome. Yeah, that's awesome. Wow. And you were and you missed it all. You missed it all. Yeah. You were like in a hot tub. Oh, did you have wine? I assume you had wine.

No fries. Yeah. No fries.

No fries. Yeah. Yeah.

Do you need more protein after a long day? My legs were sore.

My legs were sore. I was just, you know, like I, I, you know, it's not, I, I appreciate if I were not doing anything I would totally, like I would go to a Super Bowl party or whatever, but I'm just not invested in it and you know, I don't, it's fine.

Are you a professional sports person? Are you a professional sports person at all? Are you just like totally out? No.

Oh my goodness. No. Oh my goodness. No. And I, look, I grew up in Southeast Virginia. There aren't really any like state or local teams that I identified with. You know what I mean? Like if you grow up in Dallas or Philly or something like that, I think you can get, you know, that regional or local tie. And then I went to Princeton and you know, I love Princeton, no offense to anybody, but like, it's not a college that, you know, except for its basketball team in 1996, you know, that, oh my God, who did they beat UCLA in the first round of the tournament. But other than that, like I've just had no reason to become, to have like professional or college, you know, to, to be that invested.

Okay. I'm, yeah. I'm just, I grew up in Chicago. I don't, I'm not into college sports because I went to the University of Chicago, which

I think was really. But Chicago has a lot of teams. I mean, you, there's so many.

Oh, right. No, I, right. There's so many. Oh, right. No, I grew up, I grew up with Michael, Michael Jordan joined the Chicago Bulls on the years old. And, and the Bears won the Super Bowl a year later.

I mean, it, that was amazing. But here is the flip side. I'm a tabula rasa.

Like I can root for anybody.

That's true. So, you know, I texted my boyfriend and I was like, who am I supposed to be rooting for? And he was like the Eagles. And I was like, okay, sorry.

Okay. Sorry. Yeah. I know.

Um, I was not rooting for either side because I like, yeah, he's an Ohio state person. So, you know, like, so I, I can kind of, I can adopt teams make sense because, you know, I'm, I'm open.

Yeah.

Sure. Makes sense. Wow. I was watching a Super Bowl. It was good this year. It was, if you missed a great game, because it was really went down to the wire.

I did. I did. I did watch the hour.

I was in a room with a TV at the end when it was tied and very, it was until it wasn't just running out the clock.

But yes, it was, it was exciting.

M S w media. Hi, I'm Moji Alawariel from the feminist buzz kills live pod. The only podcast that helps you navigate the news in this post-pro anti-abortion hellscape each week with co-hosts Marie Khan and Liz Winstead. We dissect all the news from that sketchy intersection of abortion and misogyny with providers and activists working on the ground. The cherry on top is we have amazing comedy guests who help us laugh through the rage. Feminist buzz kills live drops Fridays, wherever you pod, listen and subscribe. Because when BS is popping, we pop off.