00:00 David Plotz Hello and welcome to the Slate Political Gab Fest for February 26th, 2016, the Is Trump's Nomination Inevitable Edition. 00:10 I'm David Plotz of Atlas Obscura. 00:12 John Dickerson of Face the Nation and the Whistle Stop Podcast and so many other things joins me in this new Slate studio, which is my – I'm having my debut voyage in my cabin. 00:27 I have an ocean view here. 00:28 Yeah. 00:28 It's nice, right? 00:29 It's nice. 00:30 It's like a hundred times better, as you said, than the last one. 00:33 So this is great. 00:34 And now Elle is taking a picture of us through the producer glass. 00:37 Emily Bazelon Okay, guys, you talked about the new studio last week already. 00:40 This is boring. 00:41 David Plotz That's Emily Bazelon. 00:42 That's Emily Bazelon. 00:43 Presentful Emily Bazelon, not in a new studio. 00:45 Hello, Emily Bazelon of the New York Times Magazine. 00:47 How are you? 00:48 John Dickerson I'm good. 00:49 How are you? 00:50 Wow, she's coming in with a certain clarity. 00:52 David Plotz I know. 00:53 It's exciting. 00:54 It's real weird, the whole thing. 00:55 I don't even know what's going to happen with the show. 00:57 John Dickerson Ever since we put down the Progresso soup cans we used to do this thing on, we're just kind of getting used to it. 01:03 David Plotz On this week's GabFest, Super Tuesday is next week, and there is growing fear and in some quarters of the country glee that Donald Trump could be close to locking up the nomination for the Republican Party. 01:15 John will parse the numbers for us, tell us if that is so. 01:18 Then the Supreme Court will talk about a police search and seizure case that landed there and what that court will do Scalia-less. 01:26 That's a word. 01:27 But more importantly, we'll talk about what is looking like it might happen with the nomination of the next justice to replace Scalia. 01:35 Then it is Apple versus FBI. 01:37 Part two, the unlocking. 01:38 This time it's personal. 01:40 The not unlocking. 01:41 We will reprise our scalding fight from last week, possibly. 01:46 We'll see what happens. 01:47 But we will talk about the new developments in that very interesting case. 01:51 Plus, we'll have cocktail chatter. 01:52 And in Slate Plus, President Obama's latest doom plan to close Guantanamo Bay prison. 01:57 If you are not yet a Slate Plus member, you can get it by going to slate.com slash GavFest Plus. 02:02 OK, let's talk about what's going on in the fascinating Republican race. 02:08 Donald Trump won the Nevada caucuses in a walk this week, taking as many votes as Ted Cruz and Marco Rubio combined. 02:16 John Kasich and Ben Carson limped in in a week fourth and fifth. 02:21 Trump's victory and the prospect that he could win a bunch of states, eight or more states, in Super Tuesday next week, including perhaps Ted Cruz's Texas, have some of the numbers mavens delegate counting, saying that his nomination might be inevitable. 02:34 So, John, give us the 35,000-foot view of the numbers on this. 02:40 John Dickerson John turns to notebook. 02:42 No, I'll give you two. 02:44 So the Trump is unstoppable scenario goes like this. 02:47 There are 11 Super Tuesday states. 02:49 He wins 10 of them. 02:50 Even if he loses Texas, if he's close to Cruz, it just creates a sense. 02:55 It builds on this sense of inevitability. 02:57 The biggest... 02:58 The biggest question with Trump is how do you stop him? 03:01 In South Carolina, the electorate there set up nicely for Cruz, more conservative, more evangelical. 03:07 If there was a state where Cruz was going to take him on, South Carolina would have been it. 03:11 Why does that matter? 03:12 Because the Super Tuesday states, Texas, Alabama, Arkansas, Georgia, Tennessee, Oklahoma, are kind of like South Carolina. 03:21 So if he couldn't do it in South Carolina, it's unlikely he'll do it there. 03:23 So that means the threat from Cruz looks highly diminished in terms of knocking him back on Super Tuesday. 03:28 Marco Rubio's theory is that he'll live through Super Tuesday and be able to really take out Trump with the winner-take-all contests on the 15th in Ohio and Florida. 03:38 It's a long way to wait. 03:39 If Trump does well on the 1st, this sense of kind of rolling momentum will continue. 03:46 Now, there's been this talk all along that Trump had a ceiling. 03:48 I've said it many times myself. 03:50 The problem is... 03:51 That ceiling may not exist. 03:53 The ceiling may not exist, and there may be something like a bandwagon effect, which is we saw one poll in Massachusetts where Trump has 50 percent of the vote. 04:00 So all the things that people found objectionable about Trump in the first place have been removed as he continues to win. 04:07 And so some people say, oh, well, maybe I'll go with the winner. 04:09 And then he has no ceiling in the Republican primary race. 04:12 He obviously has a ceiling in the general election. 04:15 that's kind of where things stand. 04:17 I think I've touched most of the major bases. 04:20 David Plotz Is there any model whereby Cruz actually drops out after Super Tuesday? 04:25 John Dickerson I think you could imagine two scenarios. 04:28 One, he drops out after Super Tuesday and says, I'm going to focus all my fire on Donald Trump. 04:34 And these are fantasies, by the way. 04:36 This is not reported. 04:37 There's no evidence he's dropping out. 04:39 I think, let's go with the more plausible thing. 04:41 The more plausible thing is he stays in. 04:42 He's a warrior for conservatism. 04:44 There are a lot of 04:45 true conservatives who believe that Ted Cruz is the man. 04:48 And you could imagine him going all the way to the convention with a certain number of delegates, hoping for chaos at the convention, at which time he could play a role. 04:57 That's one scenario. 04:59 He would not diminish his stature in the conservative movement if he remained a warrior for the cause all the way through against Donald Trump. 05:05 So he doesn't lose any personal stature. 05:07 In fact, you can imagine he gains personal stature. 05:09 There's a model for this in the Republican Party, Ronald Reagan in 75 running against 05:13 75 and 76 running against Ford where he becomes a hero even though he's trying to take the main guy down. 05:19 The other alternative is he drops out, says, I'm going to help Marco Rubio defeat Donald Trump. 05:25 Rubio gets in, becomes president. 05:27 Then, you know, he owes Cruz. 05:29 If he doesn't, Cruz sets himself up for 2020 as a guy who did the magnanimous thing for the party. 05:34 That second scenario is totally made up. 05:36 There's not a single person I've talked to who's floated that. 05:39 So don't think that that's reported, okay? 05:42 That's fan fiction. 05:45 So anyway. 05:46 David Plotz You're a Cruz Rubio shipper. 05:48 I like you're a fan. 05:49 Emily, why has the shine worn off of Ted Cruz in these past few weeks? 05:54 Is it simply that he did not do well as well in South Carolina as he hoped? 05:57 Or is it that there's this feeling that he's a bit of a cheat and a bully and – 06:06 and running a dirty campaign. 06:08 Emily Bazelon Didn't you just give two good answers? 06:10 So his challenge all along has been to show that he can go beyond his core evangelical support. 06:16 He didn't do that even in South Carolina. 06:19 And then there are these dirty tricks and he had to fire his own campaign guy for, uh, 06:24 circulating, tweeting, I guess, out a video of Rubio supposedly saying there were no answers in the Bible when he actually said there are many answers or it has all the answers. 06:33 David Plotz Also, for which I have to say, the incorrect or whatever, the supposed smear answer is actually more correct in my view than all the answers in the Bible, but whatever. 06:46 Emily Bazelon And you wrote a book about the Bible, so you should know. 06:48 But in their circles, surely the correct answer was the one Rubio actually gave 06:55 David Plotz Is there any mechanism whereby Trump gets the required number of delegates, John, but somehow is not the nominee? 07:03 Is there any way that the party can do that? 07:06 I'm not sure that they would. 07:07 I mean, presumably if he got those delegates, he would be the choice of a lot of the people in the party. 07:11 John Dickerson Right. 07:11 I don't think so because you have – the delegates are bound on the first ballot. 07:16 I believe this is true in all of the states. 07:19 And so if he has enough delegates and they're bound, then the vote – then he wins. 07:23 Now – 07:24 If you get there and you don't have the correct number of delegates, then in various different states, I believe it's the case that you then become unbound on different ballots. 07:34 So you're bound for the first, but you're not bound for the second or third. 07:38 But wait, that's if you come in under the requisite L account? 07:45 The so what we're plotting here, I think, is where what David's seeking is what are the in order of ranking of plausibility or effectiveness? 07:53 What are the possible stop Trump moves? 07:56 I think there are those that are pre convention. 07:58 Well, obviously, one is to beat him in the contest. 08:01 Second is to do something at the convention. 08:04 And then I think the third would be. 08:07 Could – somebody floated this to me yesterday who is not a fan of Donald Trump's. 08:12 Could you run somebody in battleground states who would basically just – I mean this is the chaos theory. 08:20 Who would basically take votes away from Trump and hand the election to Hillary Clinton? 08:24 That it would be better to have Hillary Clinton than to have Donald Trump as the president. 08:27 David Plotz But it's hard to get people on the ballot at this point. 08:29 Crosstalk The Republicans couldn't do that overtly, could they? 08:31 David Plotz You'd have to do it on the Constitution Party ballot or something like that. 08:33 John Dickerson Yeah, you'd have to. 08:34 Right. 08:34 You'd run as an independent and you'd have to gain. 08:36 So you'd have to collect signatures. 08:37 I mean, you'd have to you'd have to like you. 08:40 And that's that process starts. 08:41 David Plotz Well, as far as. 08:42 Yeah. 08:42 I mean, I was talking to people who are thinking about the Bloomberg one and Bloomberg feels he has to decide by March 1st. 08:50 John Dickerson Yeah. 08:50 That's why I've always said, wait till he starts actually getting signatures to get on the ballot. 08:55 Then we'll know whether we should take him seriously. 08:57 David Plotz So we have this bizarre spectacle, Emily, where you have Donald Trump, who is not. 09:01 a republican by any of the normal metrics used by the party establishment over the past several years he is a protectionist nativist i mean that nativist part i guess is more increasingly republican pro protecting entitlements he has a mercantilist not a free market policy he is not anti-government in any real sense he is against a lot of yeah he's an isolationist he's against a lot of the the neocon 09:28 Expansionary foreign policy. 09:30 And then you have a donor class of the Republican Party, which is free markets, immigration, invade countries in the Middle East, lower taxes. 09:38 And these two things are not hot. 09:40 There are not a lot of points of overlap. 09:43 Can this be a coherent party with Trump at the head of it? 09:46 Emily Bazelon So if they decide to make their peace with him, they have to come together around lowering taxes, right? 09:52 Because that's important to both sides, and that could be a really great place to meet. 09:57 And then they can have some symbolic, or I guess real, effort to repeal the Affordable Care Act or replace it with something else that has an individual mandate. 10:06 I mean, that part starts to be incoherent again, although at least rhetorically, Trump usually says that he's on board to repeal Obamacare. 10:14 John Dickerson Yeah, I think he's I think he's run away from individual mandate. 10:18 And I mean, I think he's gotten to the right place now, even though he was a little confused last week about where exactly he stood in terms of what would stay as a part of Obamacare. 10:26 But I think he's now he's on board with the full repeal and destruction of it. 10:31 Emily Bazelon So those are two important and immigration, I guess, immigration, too. 10:36 John Dickerson Well, not exactly. 10:37 Emily Bazelon I mean, that's the problem on board for his immigration agenda. 10:40 John Dickerson Right. 10:41 Exactly. 10:41 And also. 10:42 Yeah. 10:43 And also, once you get so repealing Obamacare, that's one thing. 10:46 Once you quickly get into the details, you get run into problems with Trump and Ryan. 10:51 David Plotz Do you think, though, John, supposing the Trump indeed continues and secures the nomination, who is going to move toward whom? 10:59 John Dickerson Yeah. 10:59 I don't know. 11:00 David Plotz I mean – Because Trump doesn't seem to – like – sorry to interrupt you. 11:03 But Trump doesn't – Trump is an amazing rhetorician, but he actually doesn't seem to have actual policy views. 11:09 It's like sort of whatever he thinks at that moment. 11:11 Emily Bazelon I think that's true about – The wall seems harsh. 11:14 David Plotz Well, he's stuck with that because that – he landed on that, and it's been useful. 11:19 John Dickerson Right. 11:19 I think – so I – 11:22 He does have views. 11:23 They are malleable for sure. 11:25 I mean, we've seen that a lot, both in how much he's changed from when he said he was a Democrat to what he's the Republican he says he is now. 11:32 And then we've seen it in real time. 11:34 I mean, we've seen even his position on immigration has shifted from its kind of hardcore part to he is actually I mean, it depends on where you want to. 11:44 put the needle down. 11:45 But on the one hand, he's more to the right than Cruz. 11:47 He wants to round everybody up. 11:49 But on the other hand, he's got this touchback provision, which is basically, if you're one of what he calls the good ones, you have to go back to your country of origin, touch ground there, and then you can come back in. 12:03 When members of Republicans brought it up in Congress as a part of immigration reform, the conservatives said, that's basically amnesty. 12:09 And so that is to the left of where Ted Cruz is. 12:12 So 12:13 I guess the point is I think they both kind of move towards each other if we get to that point. 12:19 But I think that – I think we've got one more round of – I mean the challenge with Trump is both to actual ideological conservatives and the business kind of mainstream Republicans. 12:33 So he's got two sets of the parts of the Republican Party that think he would be a disaster. 12:38 Yeah. 12:39 Those two could come together in an effort to try and block him somehow. 12:44 Because, I mean, there are people who believe in the conservative movement that think about what the Republican Party has been able to do in the states, in the House. 12:51 They have the majority in the Senate now. 12:53 And then if Trump becomes the nominee, that he essentially destroys all of those gains. 12:58 Emily Bazelon John, is Marco Rubio going to start going after Donald Trump? 13:01 This is what I want to know. 13:03 I find his ducking and fainting to be baffling enough. 13:06 John Dickerson Well, I think you can do one of two things. 13:10 First, if you look at the way in which foreign policy is discussed in this campaign, those leaders who do not take immediate, bold, fast action to confront threats are considered to be weak and unworthy of the American name. 13:23 So in that regard, Marco Rubio, by the metric used to measure foreign policy success, has been a disaster. 13:31 As a strategic move, though, you can see what's true in foreign policy is true in campaigns. 13:36 Sometimes waiting and sometimes restraint is the smartest thing you can do. 13:39 So that argument goes this way. 13:42 Which is, OK, let it get down to a two-man race. 13:45 And when it does, there will be a debate or there will be a moment in a venue. 13:49 Don't have the venue be every tweet and every cable show. 13:53 That'll kill you because Trump is really good at those fights. 13:57 Just keep the debate in the debates, which are visually more presidential. 14:01 And this is half reporting, half riffing, by the way, just so... 14:04 Glad to have that. 14:07 Crosstalk Well, I mean, I don't want to have to give their percentages. 14:10 John Dickerson Unlike the earlier fantasies. 14:12 Yeah. 14:13 Bedchamber. 14:14 So but imagine you're on a debate stage. 14:17 The venue itself raises the – or is supposed to raise the dialogue and raise – and everybody looks at the two people up there as though they might be president. 14:25 And in that venue, Marco Rubio could then take him on and it would have more – it would be closer to turf that he has talent on than the turf, the day-to-day, hour-to-hour, tweet-by-tweet where Donald Trump has a lot more turf if you're deciding when and where do I take him on. 14:41 David Plotz But that – John, when – We are taping – 14:43 Yeah, I mean, this is March 1st, and there's a whole bunch of stuff that's going to happen before that moment could possibly take place. 14:50 Emily Bazelon And we're taping on Thursday before the debate, so we don't know whether Rubio is going to become more aggressive tonight. 14:56 John Dickerson Right. 14:57 There's also debate on the 10th of March, which takes place in Florida, obviously five days before the vote in Florida, in Florida. 15:04 That'll be coming down to the wire. 15:05 That'll be an interesting one to watch. 15:07 So there are two opportunities here. 15:09 David Plotz Can I just go back and make a point about Trump and policy is that that when people talk about Trump as being like Goldwater and possibly that far outside the mainstream of where the parties are, I actually think that Trump is in some sense he's more dangerous as a politician because he is such a bully and a demagogue and an authoritarian. 15:29 But ideologically, I don't think he's that as dangerous as Goldwater because it isn't actually a coherent set of ideas that he is. 15:35 match to that he is willing to carry forward ideologically. 15:40 Emily Bazelon Are you guys drawn at all to the Governor Schwarzenegger comparison? 15:43 That's been comforting me lately. 15:45 Various commentators have been pointing out that Schwarzenegger said, I mean, he was a Trump-like candidate the first time he ran for governor, and he came into office, and he seemed like a fascist, and then he calmed down, although it may have taken all the way until his second term for that to happen. 15:59 But he basically became a moderate, and 16:01 Someone who was pro-business, but in a way where you work with the Democrats. 16:05 And obviously, California is a more liberal place in the country. 16:08 So maybe it's not apt at all. 16:10 But I was clinging to that a little bit. 16:12 John Dickerson This goes back to David's original question is, is Trump totally transactional? 16:16 Does he have a set of core beliefs or will they change? 16:18 And if they change, you would imagine him changing quite a lot in the general election because of the way the polling looks. 16:25 And then when he gets to Washington because he believes – or because he wants to win and just have points on the scoreboard, he would do whatever was required to do that even if it broke whatever ideological rules. 16:37 I mean there are structural impediments to just doing whatever you want. 16:39 In a democracy, those still do hold. 16:44 But just quickly to your point, David, I think you're exactly right about – 16:47 Goldwater was an ideological movement based on a certain set of ideas. 16:53 Trump is much more of a freewheeling set of ideas that get authored as the plane's flying. 17:00 David Plotz God help us. 17:02 Okay, now let's hear a word from our first sponsor this week, which is Stamps.com. 17:07 Getting your mailing and shipping done can seem like a no-win situation. 17:11 You have to interrupt your data, drive to the post office, find podcasts. 17:13 parking stand waiting in line for who knows how long while those people in front of you try to send those weird shaped packages that's now a thing of the past thanks to stamps.com with stamps.com you can print postage whenever you need it right from your desk just use your computer and printer to get official u.s postage for any letter or package you can even get special postage discounts you can't get at the post office 17:38 Plus, stamps.com is more powerful than a postage meter at just a fraction of the cost. 17:44 Right now, sign up for stamps.com and use promo code GABFEST for a four-week trial plus a $110 bonus offer, including postage and a digital scale. 17:54 Don't wait. 17:54 Go to stamps.com. 17:56 Before you do anything else, click on the microphone at the top of the homepage and type in GABFEST. 18:01 That's stamps.com. 18:02 Enter GABFEST. 18:04 The Supreme Court reconvened this week. 18:07 It sat without Justice Scalia, who, of course, died last week. 18:12 Eight justices immediately confronted a contentious case that may end up with a different outcome because there is no Justice Scalia ruling on it called Utah versus Edward Streif or Strife. 18:22 It's a search and seizure case. 18:23 We're going to talk about the case, but really we want to talk about the court dynamics. 18:26 So, Emily, let's start. 18:29 I just had a question, which is, did the court do anything ritually to commemorate Justice Scalia in the hearing itself, in the argument, or was that not done in the courtroom? 18:37 Emily Bazelon Yes, they started off, Chief Justice John Roberts started off by talking about Scalia, and there was certainly a recognition that he was not there among them. 18:46 And the justices have also done that in their individual appearances in the last couple of weeks. 18:51 David Plotz And so talk a little bit about the Streif case and why it is important and why Scalia's absence is important to it. 18:58 Emily Bazelon In this case, the police department in Salt Lake City got a call that there was maybe some drug activity going on at a house. 19:06 And so they started watching the house and there were an unusual number of people coming in and out. 19:10 And they stopped this one guy who was coming out. 19:13 His name was Edward Streif. 19:15 So let's stop right there. 19:16 That was an illegal stop. 19:18 It's an illegal seizure of his person in Fourth Amendment terms because having some suspicion of one house and people coming in and out isn't enough to seize the person of one of those people. 19:31 So everybody agrees. 19:32 David Plotz Can I call time there? 19:34 Because if that is illegal, how is the entire stop and frisk policy legal? 19:39 Emily Bazelon Right. 19:39 Well, one of the questions with stop and frisk was why were the cops stopping people? 19:42 Did they have good enough reasons? 19:44 And they had to give reasons that were individualized about the suspicious activity of a person, not just like they were coming down a dark street or out of a house that a lot of other people came out of. 19:54 And then sometimes they gave justifications that were challenged in court for being unpersuasive. 20:00 David Plotz Good. 20:00 All right. 20:01 Sorry. 20:01 But that's not this case. 20:02 Emily Bazelon On with Salt Lake City and let's call him Edward Streif, though I also have no idea how to pronounce his name. 20:07 So he gets stopped. 20:09 He gets unconstitutionally seized. 20:11 He's standing there. 20:12 The cops run a warrant check on him. 20:15 The warrant comes up positive. 20:16 There's an outstanding warrant for his arrest. 20:18 He had minor traffic violations. 20:20 And at that point, they searched him and they found methamphetamine on him. 20:25 And he was convicted at trial for having drugs. 20:31 So the Utah Supreme Court gets this case, and it's actually a really interesting question about the extent of what's called the exclusionary rule. 20:38 This is the idea that if the police do something that violates your Fourth Amendment rights against search and seizure, then how far do those right extend? 20:49 So there was a very striking and unusual moment in oral argument where Chief Justice Roberts and Justice Alito were trying to make the point that, you know, really most places in the country, the rate of warrant arrests is so low that— 21:05 The police wouldn't go on fishing expeditions just willy-nilly stopping people like, oh, maybe you have a warrant out for your arrest. 21:13 Of course, in places like Ferguson, the rate is quite high. 21:15 Anyway, Justice Alito said, well, you know, we really don't have to worry about judges just issuing outstanding bench warrants for people to make it easier to stop them. 21:24 And Sotomayor said that she was very surprised that Justice Alito didn't know that these bench warrants are issued automatically when people don't pay fines. 21:32 She was really calling him out. 21:34 And I know that like it's all in this cloaked legalese. 21:38 Maybe it doesn't sound super dramatic. 21:41 It's like only in the world of the Supreme Court would that essentially deserve a kind of gasp. 21:48 But she was saying to him, you don't know anything about what it's like to feel victimized and at the mercy of the justice system. 21:56 And you need to think about it a little bit and, you know, have your worldview expand to include places like Ferguson. 22:02 John Dickerson Does the American legal system care about search and seizure so much because it's written into the Fourth Amendment? 22:09 I mean, in other words, in Canada and places like that, is it not as enshrined in the founding document? 22:15 Emily Bazelon Yes, that is absolutely true. 22:17 It's also true, though, that it's clear that the framers and even like, you know, until the 20th century, that what people thought was the remedy for an illegal search and seizure was a civil lawsuit against the police and not that you automatically throw out all the evidence. 22:32 That's the creature, the creation of the Warren court. 22:35 And there's this whole, now that you've given me my opening, this whole interesting debate about whether American... 22:41 procedural protections are strong at the mercy of really trying to make sure innocent people don't go to prison. 22:49 So this question of like, do we prevent the police from violating the rights of guilty people versus having stronger ways to revisit bad decisions that cause wrongful convictions? 23:00 And I'm now relying on a late Harvard law professor named William Stuntz, who wrote a lot about this in a really interesting way. 23:07 David Plotz I do think – I mean I don't – the fact that Canada or a lot of Europe doesn't have the exclusionary rule is interesting. 23:13 I didn't realize that. 23:15 I feel that there's this form of policing that happens in the U.S. and particularly in cities and particularly in poor communities where there's just a ton of police activity. 23:23 sieves up lots of people all at once or lots of people one by one all the time that that makes the exclusionary rule pretty valuable because so many people are so caught up in the justice system so often that you do want to you do want to have a kind of inbuilt constraint on police activity and not rely on judges having to deal with this after the fact right especially because judges don't judge in so many state court proceedings they merely process people 23:50 Emily Bazelon in a way that doesn't protect anybody's rights. 23:53 So yes, I think there's a strong argument for what you're saying. 23:57 David Plotz All right. 23:58 Meanwhile, back on Capitol Hill, Senate Majority Leader Mitch McConnell said, and was backed up by John Cornyn, who I guess is the Senate Majority Whip, they would refuse to even meet with a nominee that President Obama put forward for the Supreme Court. 24:10 They said putting forward a nominee would be divisive, doomed, pointless, expose the country to this pointlessness, and that the next president should, of course, 24:18 There seems to be growing consensus, at least publicly, at least this is the pose that Republicans are taking, that we will not have any hearings, we will not have any votes, no matter who it is. 24:29 John, as politics, do you think the no hearings, no vote, is that a wise move or is that a damaging move? 24:37 Or is it just a posture and then they'll allow the hearings? 24:41 John Dickerson It's a depressing move. 24:43 So the Republicans were happy this week when they found Joe Biden arguing, when he was a senator, arguing essentially for what is now the Republican position. 24:51 Emily Bazelon Maybe, sort of. 24:52 Sort of, sort of. 24:52 Let's just like footnote that he said other things in that speech that suggested if, right, like a moderate nominee would be treated differently, et cetera. 25:00 Yeah, but I mean, he wasn't- But he did at one point say this, yeah. 25:05 John Dickerson Yeah, right. 25:06 He wasn't saying what you'd want them to say. 25:07 Emily Bazelon He said a lot of things. 25:08 John Dickerson Yeah, yeah. 25:09 Crosstalk He often does. 25:11 John Dickerson Right. 25:11 You would want I mean, let's stipulate it at the outset that whether Democrat or Republican, you'd want them to do their job and their job. 25:18 The job of the president is to nominate somebody. 25:19 The job of the Senate is to knock that person down or or approve of them or whatever. 25:24 But do their do the job. 25:25 So do something. 25:27 Right. 25:28 And so they're not they're choosing to do nothing. 25:30 How do the politics work out? 25:32 Well, they do. 25:33 Republicans do have these instances in which Democrats said a version of what they're saying. 25:38 They have cover in that way. 25:40 Emily Bazelon But the question is saying something is different than doing it. 25:45 John Dickerson I don't know. 25:45 I don't know. 25:46 Who knows where the country is? 25:48 Well, no, I'm talking about the politics. 25:50 It's not that I'm not saying that I'm not. 25:52 No, I think there is a I think there there is a difference. 25:55 The Republicans are are not allowing this to happen. 25:57 What's going to happen when—so the president will name somebody, and then he will start having visits with that person. 26:03 And what will happen? 26:05 Will Republicans just refuse to meet with that nominee? 26:09 If they do meet with them, then the next round is, well, you met with him. 26:12 Why don't you give him a hearing? 26:14 Then if they give him a hearing, they could have a hearing and not have a vote. 26:16 That's been done. 26:17 Emily Bazelon It happened to Justice Kagan when she was nominated to the D.C. 26:20 Circuit. 26:21 There's a little piece of trivia. 26:22 Right. 26:22 John Dickerson So anyway, the question then, though, is on the Democratic side, is that would the president want to nominate somebody who has to go through this circus? 26:31 You know, they'll become the punching bag in this left-right firestorm. 26:35 God, that was a horrible mixed metaphor. 26:37 David Plotz The firestorm. 26:38 That punching bag is totally in flames now. 26:43 Okay, now let's hear a word from our next sponsor this week, which is Concur. 26:46 As a business leader, I know that employee satisfaction is just as important as the bottom line, and that's why there's Concur. 26:55 Only Concur offers simple and intuitive expense reporting tools that benefit both your employees and your business. 27:03 With Concur, employees can create expense reports that practically write themselves. 27:06 All they have to do is take a photo of their receipt, and Concur creates and categorizes the expense entry. 27:12 As an employer, you get accurate, consolidated spending data instantly, giving you the visibility and the insight to drive cost savings. 27:21 Happier employees, more productivity, and the data you need, all leading to a healthier bottom line. 27:27 Expense, travel, invoice. 27:29 Learn more at concur.com slash gavfest. 27:33 We had such a good discussion about Apple versus the FBI last week. 27:36 We are going to have another one because there's been more action this week. 27:39 It's going to have to be a little bit quick because we just realized Emily's getting booted out of the studio by jackbooted thugs. 27:46 John Dickerson No, not by jackbooted thugs. 27:48 David Plotz The FBI is taking her out. 27:49 Not at all. 27:50 Apple's coming. 27:51 So this week, Zuckerberg and Google sort of came down on Apple's side, and the New York Police Department boss, Bill Bratton, said, hey, if the FBI can force Apple to do this, we're going to want to force them to do this on a lot of phones that we've got, too. 28:07 The FBI also conceded or somehow – I don't know how this came out – that there were at least 10 other phones, maybe 11 other phones that they want access to that they're asking Apple to crack open for them. 28:18 So it is in no sense a one-off as some people thought last week. 28:23 So did anything you heard this – during the course of the week, Emily, change your mind and make you think that you – God, I was so wrong – 28:30 Emily Bazelon No, I was relieved actually because I initially figured I must be wrong since everyone on the internet is on your side. 28:37 Of course there are more phones the government wants to break into because what is at stake here is whether the government is going to be able to solve crimes by using the information on phones that are protected by passwords. 28:53 Maybe we want to move to a world in which we truly have secure information on our iPhones and that's it. 29:00 I don't actually think that Congress in the end would let us live in that world because it's not the world that we have lived in. 29:07 We have had phone companies that have had the obligation to work with the government when the government gets online. 29:14 a search warrant or a court order. 29:15 And so it is this we're talking about a big shift here and maybe it's worth it because the government screwed up with the National Security Agency and all its data mining and raking in of information. 29:26 Maybe we want to move to that universe, but it is a different universe and it will be a big problem for the cops and the FBI if we decide to live there. 29:33 David Plotz Well, but first of all, there was a long period of time when phones were not tapped, when there were phone communications that existed which were not tapped and the government didn't. 29:41 Emily Bazelon Yes, that is true if you go back. 29:43 Right, we're going back. 29:44 David Plotz So we certainly lived in a period, there's been a period in our memory practically, not in our memory, but in our parents' memory, when phone communications were the government couldn't touch them and there was no access to them. 29:53 Emily Bazelon I think you're probably right. 29:55 Pre-1970s, you're probably right about that. 29:57 David Plotz So don't make it seem like inevitably the government has always had the right and the ability to tap into every communication that people are making, even electronic. 30:05 And certainly, there are lots of kinds of things that the government is unable to get access to, the communications the government can't get or the conversations that you have with people randomly. 30:16 Emily Bazelon I think that's exactly the right analogy. 30:18 Is the information on your phone like the spoken word, something that just ephemeral, goes out into the air and nobody imagines the government? 30:24 We would find it super creepy if the government was capturing all of it. 30:27 David Plotz And I certainly think that the government has an absolute right to try to get this data and to take the physical object that has the data and do whatever they want. 30:36 I think where you get into trouble is where you say, I'm going to compel a private company, which is not a party to any of this. 30:44 Apple is not a party. 30:46 They are not suspects in this case. 30:50 They are not bringing the case. 30:52 They're not civilly part of this case to compel them to do labor that they don't want to do in order to abet your investigation. 31:01 Why? 31:02 Emily Bazelon Why is that such a big deal? 31:04 Is it also terrible to have a statute requiring phone companies to set up the way they place calls in a way that they can be traceable? 31:12 David Plotz If Congress wants to write a statute that says any software company is compelled to cooperate in this fashion, I welcome them to do it, and I welcome them to have the public debate over it. 31:22 What I don't like is taking a 226-year-old law, which was written not at all for this, and applying it to technology in a way that's never been applied before, and demanding that a company do something. 31:34 It's never been applied in a way which said companies have to actively go out and create some new piece of work for you, the government. 31:41 Yeah. 31:41 Emily Bazelon See, I find that to be not – I'm not moved by that argument, but I am moved by the idea of the courts versus Congress because we've been using the All Writs Act for all kinds of ways, and we – this has been part of how law enforcement has worked. 31:54 So the idea that, like, all of a sudden we all woke up to the notion that, like, OG, a technology company was being asked to help – 32:00 David Plotz Apple's been helping forever. 32:02 If it is so important to the government that they get this phone, then hire hackers. 32:06 A friend of mine suggested, why don't they put up a $5 million prize for whoever can come up with a way to hack this phone? 32:12 John Dickerson But here's a question about the technology. 32:14 Is it the fact that you want Apple to actively engage in coming up with the software? 32:21 Or what if only all Apple had to do is provide, since this is part of the trick— 32:25 provide the signature that allows the new iOS, that allows these blunt attacks to go forward. 32:30 So the FBI creates the technology that would actually figure out what the password is. 32:36 But they do need, the one thing they need from Apple is they need the signature that allows it to work. 32:41 Emily Bazelon That would be a much bigger deal to hand over the signature. 32:44 David Plotz Well, they're going to have to do that regardless. 32:46 I think the FBI can subpoena Apple and demand, like make a case in a courtroom. 32:51 We need all of your blueprints. 32:52 We need all of the underlying code here so that we can... 32:55 If they want to do that, I just think they're just saying, oh, it's easier for us to go tell Apple to do something than to do it ourselves because they are not weighing the cost that this opposes on other people. 33:05 John Dickerson Can we just focus the question just quickly for a moment, which is since you're saying that compelling a company to create something that essentially breaks its own device, is it the amount of work that the company has to do that is the barrier? 33:18 Because if all Apple had to do was provide this – 33:21 which is, I mean, there are at least two things that have to be done. 33:25 One, you have to create the iOS that allows you to get past this limit of 10 passwords. 33:30 And then the other is you have to gain access to the phone to be able to use that piece of software that you would create. 33:35 And that is something that only Apple has. 33:37 So if Apple only has to do that last marginal thing, is that less of an offense than saying, get all your scientists in the room to create the fake iOS? 33:47 David Plotz Yes, I do think that is less of an offense. 33:49 Yeah, although it's not clear to me... 33:51 I haven't thought about that. 33:53 But yeah, I certainly think it's less of an offense to be forced to provide a single number than it is to compel you to do work. 33:59 John Dickerson Let me ask you this then, the other question, because we've talked about this in terms of what obligation we owe the country that builds our roads and takes care of our airports so that our planes don't crash and all of the thing that was surrounding the you didn't build that debate. 34:13 What role does a company have as a corporate citizen in a country where 34:18 You're allowed to operate and all that. 34:20 What do they – what role is Apple? 34:22 David Plotz Oh, absolutely. 34:23 Apple has an obligation. 34:24 And I think everyone is right to say there's a little bit of – we're dressing ourselves in the mass in a kind of cape of civic obligation and civic goodness and patriotism that Apple is putting on when in fact it's self-interested. 34:37 But I think Apple is protecting a certain set of core American values, too. 34:41 And what it is saying is this is a judge who's been asked by a prosecutor to do something. 34:48 This is not the United States Congress passing legislation at the will of the people. 34:52 This is something that is – no, the judge – these are duly authorized officers of the United States. 34:57 Yeah, and you know why? 34:57 Emily Bazelon Because Apple asked to not have Congress step in, and the Obama administration has been trying to work. 35:03 That is fine. 35:04 David Plotz That's why we're in this position. 35:06 By all means, call Apple out for the hypocrisy about this. 35:08 You know, if this is so important, then get the public to pass legislation. 35:14 And you know what, Emily? 35:16 And when they pass that legislation, people like you are going to sit there and be like, oh, this is like the Patriot Act because you're going to realize that this. 35:25 Emily Bazelon No, not if they could. 35:27 David Plotz The kind of crap legislation that Congress passes around this shit is always going to be invasive, excessive. 35:33 Well, that is a problem. 35:34 John Dickerson When you throw things to Congress, you're stuck with what they come up with. 35:37 Well, let me ask that question then and use an expression I hate when people use, but let's think about it in terms of game theory. 35:43 So you are holding your view, David. 35:46 Do you really want to hand this over to Congress, given where the polls are right now, which is that the country is right now not in Apple's corner? 35:52 And so if members of Congress are pushed and moved by public opinion, let's just assume that blunt correlation, then the law will be far worse than if it were to take place in a court of law where presumably the arguments that you make might have more standing. 36:07 Emily Bazelon You might want Judge Maid. 36:09 I don't know. 36:10 I have no choice. 36:11 John Dickerson You might want the judge more than the Congress. 36:12 David Plotz I'm totally disillusioned by all of the branches. 36:14 But actually, in this regard, I think the misbehavior of the judicial and the investigatory branches of the government have been so profound in the past 15 years that I want it out of their hands because I think they seize things in a way that they shouldn't. 36:28 Crosstalk I feel like you're coloring everyone with the NSA. 36:32 David Plotz Oh, and the FISA court. 36:34 And the CIA. 36:36 And the FBI. 36:37 And one of those letters, the national security letters. 36:40 Emily Bazelon All of that. 36:41 Everything. 36:42 All the post-9-11 mess. 36:43 John Dickerson Can't you blame Congress for setting up the weak FISA system in the first place? 36:47 Yes. 36:50 David Plotz Yeah. 36:50 All right. 36:51 We've got to leave it there. 36:52 Okay. 36:52 And now we're going to hear from another sponsor of the GabFest, Texture. 36:57 when it comes to magazines you know what you like and with texture you can get all the magazines you want in one super convenient place the texture app lets you tap into the world's most popular magazines anytime anywhere using your smartphone or tablet you can breeze through hundreds of your favorite magazines including back issues and pick the articles that interest you the most texture has made it easy to find articles you care about 37:22 You don't just get to read National Geographic and The New Yorker. 37:25 The Texture editorial team recommends content for you every day, plus you can dive deeper with personalized collections. 37:33 Sign up for Texture right now and gain insider access to all the content from the world's best publications. 37:39 And the best part? 37:40 Texture is offering our listeners a free trial right now when you go to texture.com slash political. 37:46 You'll gain immediate entry to all of the top magazines, including back issues and bonus video content. 37:51 Try Texture for free right now when you go to texture.com slash political. 37:57 That's texture.com slash political. 38:01 Okay, now on to cocktail chatter. 38:03 We don't have Emily, so I'm going to do an extra cocktail chatter. 38:06 How about that? 38:07 Yeah, yeah. 38:07 All right, I'll do my first chatter because I had two, is that I saw this – 38:11 Someone has put up a memorial in Chicago to the place where President Obama and Michelle Obama had their first kiss. 38:19 There's like this cute little rock and then a memorial plaque. 38:23 They had a date, and it was outside of Dunkin' Donuts in Chicago, and now they put up on the Obama kissing rock. 38:28 I just think that's great. 38:29 So cute. 38:30 John, what's your chatter? 38:31 That's very cute. 38:31 John Dickerson So I was doing some research into the 1976 race between Gerald Ford and Ronald Reagan and came across something that I didn't put in the whistle stop about the two whistle stops I did about that race that just amused me. 38:43 Because when we think about the small little things that whipsaw our presidential contests and how meaningless they are, you can find a sustenance in the fact that it's always been this way. 38:53 In November of 1975, Ford was doing an interview with a 38:57 And the columnist asked him where he was going to go skiing. 39:01 And he said, well, you might go to New Hampshire because, you know, there's an important primary there and you're down to Reagan. 39:07 And, you know, and he said, oh, no, it's too icy in there. 39:10 I'm going to go ski out in Vail. 39:12 So Ron Nesson, who is the press secretary at the time, relayed this thinking, like, no big thing. 39:17 No big thing. 39:18 Well, there is now box number 300 at the Gerald R. Ford Presidential Library is filled with letters and outrage. 39:26 And the box is labeled New Hampshire skiing furor. 39:30 This erupted into an enormous kerfuffle in New Hampshire that the president of the United States and more to the point, his press secretary. 39:38 was denigrating the big winter business of New Hampshire. 39:42 So people sent, in this box, people sent a poster that said, it's a wonderful year to ski in New Hampshire. 39:49 Mount Sunapee Ski Resort invited Ron Nesson to come to an international ski event in which they promised to name a slope, an icy slope, dedicated in his honor. 40:02 He had to write back to the owner of the ski resort in 40:06 I was aware of the Mount Sunapee Area Ski Club Invitational Weekend during which the icy slope is being dedicated in my honor. 40:12 Unfortunately, the president's schedule is going to prevent me from attending. 40:15 But that didn't then stop the congressman from the 2nd District of New Hampshire, James C. Cleveland, to write Ron Nesson and encourage him, really, that he should go to the Mount Sunapee Invitational Weekend on March 6th and 7th. 40:26 This then became the subject of several editorials. 40:30 And then also in this box are several letters from people, eastern skiers, supporting the president and saying, 40:36 The next time they give you any flack about eastern skiing, just ask them if they had a choice between New Hampshire and Colorado, which would they choose? 40:44 David Plotz Did Ford win New Hampshire? 40:45 John Dickerson He did. 40:46 He won New Hampshire by 1,300 votes, but mostly because – and this is an interesting – well, I find it interesting anyway. 40:54 He took a speech that Reagan had given in September in Chicago that nobody paid attention to at the time in which he called for a $90 billion reduction in the federal government. 41:02 And Ford said, well, that's going to require the states to raise taxes to deal with this new burden that they're going to have to deal with because it's no longer being taken care of by the federal government. 41:10 That policy proposal in the course of a campaign ended up dooming Reagan in the state because they had no sales or income tax. 41:18 And so imagine today that a policy somebody offered would actually hurt them in the campaign. 41:24 Like this doesn't happen that much in politics, but that's why he ended up winning in a squeaker in New Hampshire. 41:31 David Plotz All right, I'm going to do my real chatter now, which I do in honor of you, John. 41:35 It was a story that we ran at Atlas Obscura about the first birthers. 41:39 So in 1881, there were Chester Arthur birthers. 41:43 The Democratic Party seems to have set in motion an investigation to try to prove that Chester Arthur, who was the vice president of James Garfield and then inherited the presidency upon Garfield's assassination, 41:55 Arthur had been not born in Vermont, as he claimed, but actually born in Canada. 42:01 And there was a guy named Arthur Hinman was sent up to Vermont to look around at Arthur's birth. 42:11 And there had been rumors that certainly one of the Arthur children had been born in Canada. 42:15 There was even a claim that there was a brother who had been born in Vermont. 42:19 And that Chester Arthur, who had been born in Canada, sort of adopted the identity of the brother and the records of the brother. 42:26 It wasn't a huge controversy. 42:29 I'm not claiming that it shook the nation. 42:32 But it is funny to think that all the way back in 1881, there was the same Ted Cruz, Obama, birtherism even then.