Advisory Opinions - Do Crimes

Episode Date: January 16, 2020

David and Sarah take a closer look at the new impeachment evidence, the continuing legal objections to the strike that killed Qassim Suleimani, and what exactly is Mike Bloomberg doing? Learn more about your ad choices. Visit megaphone.fm/adchoices

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More importantly, I pronounce it Dispatch. I know. There's a dispute, listeners, about the proper pronunciation of Dispatch. Nope, it's Dispatch. I had no idea we were saying it differently until multiple people pointed it out to me. I think we'll embrace diversity. Okay. But we've got a lot to talk about today. We're going to talk about the new impeachment evidence that was uncovered. We're

going to talk about the continuing legal objections to the strike against Soleimani. And then we're going to ask the question, what on earth, and we'll ask and answer the question, what on earth is Mike Bloomberg doing? Let's do a quick note on audio as well. We know there's been some audio issues with this podcast, particularly episodes one and three. We think we have them resolved now, but we actually really have valued your feedback on this. It has been helpful. So we like substantive feedback. We like audio feedback. Hopefully we have resolved this issue and we thank you for your patience. Exactly. I don't want my voice to be any more grating than normal.

And we're together today, which is also special. Yes. I'm inside the Beltway sipping a cocktail as I always do inside the Beltway, at least according to lots of people out there. He doesn't even have water, you guys. No, no. So let's just dive into the new impeachment evidence. And we're not going to trace all of the various scrawlings on napkins. We can't. We can't.

But I would put it this way. I think there are three notable new developments. new developments. One is this idea that apparently the Rudy Giuliani associates, Lev Parnas and others, were at some point actively tracking the now-fired Ukrainian ambassador's movements in a way that seems a little bit creepy. Also, there were indications that Rudy, well, not indications, there was a napkin. How did you describe the scrawlings? I described it as a cocktail napkin that said, do crimes. Do crimes now. That's not what, it was not a napkin and it did not say do crimes. But other than that, I think my description is really accurate. But essentially it was a handwritten note saying, get Zelensky to announce the Biden investigation. And then finally there was a letter from Giuliani that plainly stated to Zelensky that I'm here operating on behalf of President Trump, but in his personal capacity, not as the president of the United

States, but as Donald J. Trump, which is a really, let's unpack that for a minute, because one of the defenses of Trump in this whole affair, there have been a couple. One is that, well, some of the underlying allegation is just wrong. He didn't really demand investigations. He didn't really try to condition aid on at least the announcement of these investigations. Which, hold on, before we move on, I don't think any of these new pieces of evidence, they all tie in what Giuliani was doing. They go to his state of mind. I don't want to sound Pollyannish here, but none of this actually is from the president. It is Giuliani saying it's from the president. And I'm not sure

that Giuliani is the most reliable narrator at any point in this saga. I think I want to guess where you're headed, which is, yeah, but come on. And I hear you on that. But I do want to make clear, you know, Giuliani saying the president sent me in his personal capacity. I mean, at some point, like the SNL skit becomes reality. And it's not totally clear to me that he is acting with authority. Yeah, I would say you heard me say, yeah, come on, before I even said it. It was in your eyes. Yeah, it was. Well, I would say this. I would say in every single normal circumstance, and note that I said normal circumstance,

if you receive a letter from an attorney, particularly an attorney as accomplished as Rudy Giuliani, that says I'm operating on the behalf of a principal, you would believe he was operating on behalf of a principal. Now, we have seen- But if you spend the last year following Rudy Giuliani and all the interviews and the butt dials and the text messages, it may undermine that. If you were on a jury, I mean, this is in some ways a fact question for a jury. And that's why I said normal circumstances. Yes. Far from the era we're in. scheme in Ukraine is pretty much what we thought it was, that there was an effort to oust the ambassador. There was an effort to try at least communicate the schemers were communicating and were believing that they were going to try to get Zelensky to announce an investigation.

Rudy was reaching out to Zelensky as Trump's personal representative. All of this sort of just kind of adds additional color and flavor to a story that we pretty much felt like we knew already. It advances it. It doesn't contradict it. But this is why I think Mitt Romney has said that he would vote to hear from witnesses. And I think by that he really means John Bolton. This is where hearing from John Bolton or the chief of staff, some people who are not in the Giuliani orbit but are actually solely in the Trump orbit, I would find instructive because of this disconnect that I see. Right. Now, I would say that the disconnect has it's not so much of disconnect as a not a complete connect because we have the memorandum of the call and the memorandum of the call. He directs Zelinsky to Giuliani. And I agree that this is your best piece of evidence. Yes. But I don't think it's as definitive as you. I don't know. Are you jury foreman at this point? But, you know, the Giuliani talking to the president and saying, like, sir, we've got to do this stuff. To me is a far cry from Giuliani has been reading him in a

methodical way to what the plan is, what's going on and what they're doing. Again, that's what I'm missing. Except that you should talk to my guy Giuliani about the very topics that Trump raised, which were the very topics that the schemers were dealing with. Let me put it like this. Let's not think in terms of metaphysical certainty. Let's think in terms of burdens of proof. Because no court, not even an impeachment court in a sense, is about metaphysical certainty. It is true. Far from the impeachment court. Yes. I would say at this point, we're way beyond preponderance of the evidence. I would say at this point we're way beyond preponderance of the evidence.

You disagree. You're saying what I'm saying, what I'm hearing you say right now in your silence is I'm not so sure. Let's put a pin in this. I have a different question for you. Okay. Constitutionally speaking, do you believe that the chief justice can dismiss the charges if he wanted to? The Alan Dershowitz theory. Yes. Again, to your point, a storied lawyer of American jurisprudence. Mm-hmm. We had a debate on whether the Mueller investigation was a threat to American democracy at the Comedy Underground

in Manhattan. Dear Lord. Yeah. In like 2017, early 2018. Fun times in the Comedy Underground. It was actually kind of fun. I mean, it was packed house. It was Alan Dershowitz and Byron York were making the proposition that it was a threat to democracy.

And Dershowitz made this argument all the way back then that he said that because of the procedural irregularity, and he was assuming that Mueller would lead to impeachment. And he was saying that because of the conflict of interest and the naming of Mueller as a special counsel, now this is probably something you could wax eloquent on. I have feelings. I'm sure you do. That all Trump would have to do is file a motion to dismiss or a motion for summary judgment. And John Roberts, functioning essentially as a trial judge, could dismiss it. And my immediate response, being the trained lawyer that I am,

when he made that argument was, I think, as best I recall, I laughed out loud. Because this is actually not John Roberts functioning as the United States District Court judge for the District of the U.S. Senate. Right. He's essentially functioning as more as a... A parliamentarian. Parliamentarian. Yeah. Exactly. Like he brings up the things that then the Senate gets to vote on.

You know, we want to hear this evidence before, you know, these hundred people. It's a motion to hear this evidence. All the ayes, all the nays. But I don't think he gets to say, I want to hear this evidence, all the ayes, all the nays. But I don't think he gets to say, I want to hear this evidence. Correct. Correct. I mean, he doesn't, he's not, he is essentially, I guess the best way to say it would be train conductor in a sense. Orchestra conductor. Orchestra conductor. But even that might be too powerful.

I don't know. I mean, it's more of a ceremonial. Except for one thing, and anyone who's listened to this podcast so far will know that I skip the Nixon, it doesn't even really go to trial, so it doesn't matter. So I skip Watergate. I skip Clinton.

I don't know why, because I really love the Johnson impeachment. We need more Johnson impeachment. And I have so much on it, so much to say about it, so many feels about all the characters. But one of the fun things is that Chase is the chief justice at that point. Side note, Kate Chase Sprague, his daughter, runs his presidential campaign, becoming the first woman to run a presidential campaign in U.S. history. Thinks she's just a badass all around. Anywho, he is the tie-breaking vote in two different times during the Johnson impeachment trial. So there is something that is not purely procedural and functional in the Johnson impeachment trial for the role of the chief justice.

I'm not totally clear where they got the idea that he's the tiebreaker. I was going to ask, was that something he took upon himself or did the Senate allow him to function as a tiebreaker, which I would feel like it would be more the latter. It was more the I think they wanted him to function as a tiebreaker. He had been impeached himself during the whole let's burn all the judges impeachment madness a few years earlier and had been acquitted while some of the other judges had been actually removed from office during those impeachment trials. So I think the pro-Johnson folks, although there weren't that many pro-Johnson,

there were maybe anti-impeach, remove Johnson folks, wanted him in that case to be the vote because they figured he was pretty anti this whole circus. Right, right. And a circus it was. Fun book, impeached. I'm forgetting the author, but it's impeached, you know, the trial to remove Andrew Johnson. Oh, man, there's so much. There's drunkenness, bribery, a lot.

You know, I would think, I think that this whole, the impeachment of Andrew Johnson, which was, of course, part of the whole rollback of the real vision for Reconstruction post-Civil War, it's really one of the most pivotal moments in American history. Yes. And one that we don't really even teach. We don't teach it at all. I mean, it's like Appomattox happens. We skip ahead to Teddy Roosevelt, basically. Yeah. Appomattox, then remember the Maine, and then World War I. And what you don't realize is that there was actually a vision and a plan to fully bring freed slaves into American society. For a while, for a very brief time, there was abundant African-American representation in state houses, in Congress. There was a real plan there. And there was, in essence, a counter

revolution. In essence, there was a... It didn't undo the Civil War in a formal legal sense of these states being separate, but it created, in essence... I don't think Americans... And you have to be of a certain age to remember that the United States almost had a sub-state within a state, within a nation, and that was the defeated states of the Confederacy. They set up a legal system and a cultural system that was unlike anywhere else. With the permission of the federal government. With the permission of the federal government. Which is what makes it. There's been a few tragedies in American history, but no question. The tragedy of picking Johnson as the VP to replace Hamlin

and what proceeds from that and what a flawed and just not great leader he was. leader he was. Anyway, off on a tangent a bit, but please continue. Yes. So let's put just a period on the Roberts discussion. Number one, John Roberts is not going to hear a motion to dismiss. He's not going to hear a motion for summary judgment. That's just not going to happen. I mean, that's just... The Rehnquist brought reading material with him. I think that's more likely. Yeah, exactly. Because you have to get back to court by... No, wait, I'm flipping this. He's going to come at 1 p.m. or leave. I mean, he has two different jobs here. Yeah, we're in a Supreme Court term. Yeah. Yeah. And a big one. Yes. So he's not going to do it. This

is just cable news content, period. Let's imagine one morning he wakes up and he's just fed up with it. Like he's got hearings in multiple Supreme Court, multiple cases that are going to melt down Twitter. He's just fed up. So I'm just going to dismiss this. Let's just imagine an alternate Earth 3. Sure. Because it's two Earths removed from the actual Earth. The multiverse. Yeah. In the multiverse, he's just fed up. He dismisses it. If a majority of the Senate looks at him and would look at him and say, no. I think that's the best point, which is even if you want to make the constitutional argument that he has the ability to do it, which I think is questionable, the majority of the Senate has the say here in everything. Right. Exactly. This is the Senate's procedure. And Senate Majority Leader Mitch

McConnell's in the driver's seat so long as he commands a majority. All right. Well, let's move on from... That was fun. I liked that one. Yeah. Yeah. Well, I'm going to continue to make my preponderance of the evidence case because I actually think we're moving from preponderance to close to proof beyond reasonable doubt. But we can continue this. We'll continue it. Let's move on. And that's separate than the prudential question of whether you would remove a sitting president for this. Correct.

Okay. Which is yes. So moving on to we're still in a law of war debate weeks after the Soleimani strike, which I think is really interesting. It's for me as a person who was practicing law of armed conflict stuff both inside and outside the military for years, when people ask me, well, what did you do as a lawyer? I said, well, I began as a commercial litigator. I spent most of my time as a constitutional lawyer. And then I spent a lot of time practicing the law of armed conflict. People's eyes either glaze over the most common response. Oh, my drink's empty. I'm going to go. Do you need anything to drink? Exactly. Or on occasion, they light up. That sounds cooler than like the normal kind of law.

So I'm like in my glory days. I've got to milk this right now. Right. We're still fighting over this and we are still continuing to view and I just want to focus on, I want to make this as simple as humanly possible. And what the simplicity of it is this. When American troops were in Iraq on a congressionally authorized mission, that much is only the fringe, a fringe group of people dispute that. They're in there. They're originally put into Iraq under a specific authorization for use of military force in Iraq. The anti-ISIS mission arguably is encompassed by the original Iraq resolutions. It's definitely encompassed by the AUMF after 9-11. They have been put there under a Republican administration. They were put

back there in 2014 under a Democratic administration. They are there lawfully. They're there with the permission of the Iraqi government. They are conducting a lawful mission. Now, that mission is not against Iran. It's not against Iran. Everybody knows that. It is against, it's an anti-ISIS mission. But if you're there conducting a lawful mission. Anti-terrorism mission. Oh, it's an anti-terror mission. I understand there the subset of that is that here it is anti-ISIS, but the AUMF part is the terrorism, not ISIS. Let's be clear.

Correct. Correct. So they're conducting a lawful anti-terror mission. Correct. Correct. So they're conducting a lawful anti-terror mission. When they are in the process of conducting a lawful anti-terror mission and they are attacked, they can defend themselves. For any reason, if they're attacked. Yes, if they're attacked by… Meaning Soleimani doesn't need to be conducting terrorism. We don't need to define his actions as terror. If Soleimani doesn't… They're in their realm. It could be Costa Rica sends people to Iraq to try to drive us out so that there will be greater military... More military service members would be available to vacation there and boost the economy. It could be... If they are attacked

for whatever reason from any party, the law of armed conflict allows them to defend themselves. And most people would say, I'm with you so far. I'm with you so far. But what that means is when someone fires at you, you can fire back. It means that. can identify who's attacking you, you have under the law of war an ability to destroy the military elements, including their command and control, who are attacking you. This is very, very basic stuff. Now, the fact that one of those commanders, and we know he's a commander, he has bragged that he's a commander to General Petraeus

all the way back in 08. The fact that one of those commanders is an Iranian officer, an Iranian general, doesn't change the law. It changes the stakes. And those are two different things. It doesn't, when he is a combatant commander in the theater of armed conflict, days after an attack on our embassy, meeting with the people who orchestrated the attack, he is absolutely fair game under the laws of war. The question is, should you do it? His status as a high-ranking Iranian official raises the stakes. It doesn't change the law. And I think that that's where people get completely confused. Is this a law of an act of war against Iran where we need

Congress? Well, I would say there is a lot kind of a hazy line where other additional strikes, certainly outside of Iraq, directed not at the immediate chain of command of these Iranian militias would be a different thing. Well, let's bring in the Democratic debates last night. The first 30 minutes was dedicated to foreign policy, the first debate that really spent significant time on this. I will say that my impression was that none of the candidates on that stage wanted to spend 30 minutes on it, let alone the first 30 minutes on it. They seemed eager to move on to far smaller

stakes in that sense. But there was some what I would call missed opportunities on stage. At one point, one candidate said that he was authorized in Iraq, but not Iran. Of course, this wasn't in Iran. So I think that was just sort of an unfortunate stumble. You can guess which candidate. wanted the moderators to ask was to Joe Biden. How is this different than bin Laden legally then? If you think that Donald Trump was not authorized, legally speaking, under the AUMF to take out Soleimani without congressional pre-authorization, which is what all of the candidates seem to agree on, that he should have gone to Congress first, then let's live in that world for a second where that's the case. Just assume with me that he needed to go to Congress to say I'm going to take out Soleimani first

at least notification if not straight up permission. What other things then would that have encompassed including the Bin Laden raid? I would say I think the quick answer to the Bin Laden raid is the AUMF is basically a declaration against bin Laden and his progeny. So it's just that it was more specific, you'd have to argue.

Right, right. So what they're saying is that the incorporation of Soleimani, a raid against Soleimani is outside the core mission of the AUMF, which is true. Right, but goes back to your point on if you're in our realm. But it doesn't mean we still have that underlying basic right of self-defense, which is inherent in international law. And to go to Congress about anyone. Well, they would probably say, well, I'll let you shoot back. But if you want to do anything other than shoot back in the moment, you're going to have to go to Congress. Because the argument was really that this was a combat operation, not a strike, if I understand their nuanced point.

Yeah. So basically, a lot of the critiques of this have looked at the Soleimani strike in total isolation. Right. Total, rather than a part of a series of escalating incidents. So you have Iranian attacks on a U.S. drone. We don't respond militarily. We almost did, but we didn't. Then you had escalating rocket attacks on bases where U.S. troops are housed in Iraq. Scattered, not intensive, not serious. Then you had a much more focused rocket attack that killed an American contractor, wounded multiple Iraqi and American soldiers. We responded to that with air raids in Syria and Iraq against Iranian militias. Then there's an attack on our embassy,

burning part of our embassy. So you see what's happening. Days later, here comes the commander of all of this into the theater of this conflict. Who arguably, his mistake is coming into Iraq, is your point. That's my point. Okay. What about the eminence argument? Well, the eminence argument is, now this is one where the bin Laden analogies may be a little bit more helpful. But the eminence argument is essentially saying, well, you can't strike somebody that you know is an enemy combatant commander until you know that he's going to strike again. Like that he just struck three days ago, he struck 10 days ago, but unless you have evidence that he's going to strike three days from now, then you have to leave him alone.

There's no concept of the law of armed conflict that holds that. Now, I would say this, if he last struck 11 years ago and had been, say, a diplomat, you know, the last moments of his conflict with the U.S. had been 11 years ago, he had bragged to Petraeus in 08 about his command and control of Iranian-backed militias, et cetera, et cetera. But then there had been no further activity. You might argue that there had been a cessation of hostilities. You weren't in a continuing, it wasn't a continuing hostile environment. But that argument's out the window because of all of the acts that I just mentioned. So if the administration is making the argument that they believe there was an imminent attack,

the president mentions four embassies, although Esper has said there's no specific intel on that. You're saying all of this might be good PR, but it's legally irrelevant. I think it's bad PR and legally irrelevant. Well, it would have been good if true. Yeah. Well, here's the problem. And I said this, I was on Meet the Press on Sunday, and this is what I said. I said, this was a low trust administration making a low trust argument. So they can't prove it. As a general rule, if you're talking about imminent, you have intel of imminent future attacks, generally that intelligence is coming through some highly sensitive sources. So you're making an assertion that you cannot prove,

and you're an administration that doesn't exactly have a tremendous record for honesty. And so you're making this assertion that you cannot prove to a very skeptical public when you didn't have to do that. You didn't have to say there are these things that we know are about to happen and we can't prove it to you. And oh, by the way, other people in the administration are going to contradict it because maybe Trump exaggerated a bit, which just impairs trust in this whole thing. I mean, there were profiles in like the New Yorker of this guy, of all of his activities, not just in the Iraq war, for running up to the present day. But this is where I think, David, your lawyer hat gets the better of your political hat.

I think it is an important argument to the American people to say we had to strike first because he was about to strike us. We had to strike first because he was about to strike us. I understand perfectly and am very sympathetic even to your, it had been escalating. But I actually think the only reason that escalation argument is politically relevant at all is if you think it's going to continue escalating. And if they had no intelligence that it was going to continue escalating, and I'm not speaking legally here, but only politically, the escalation is irrelevant politically, unless you believe it's going to continue to escalate. So I think they did need to make some sort of eminence argument. It would have been better if it had been a little more rifle shot and less shotgun, just saying the word eminence a lot. Yeah. I mean, I think you can say the guy who just directed the burning of our embassy had flown back into the country to meet with enemy commanders.

I think that's a great eminence argument. But you don't have to trust the administration. Yes, I take your point on that. But I still think it's an eminence argument. Again, politically speaking. It's implied. Yeah. It's certainly implied.

But... I think it's why the bin Laden raid, there was an implied eminence argument. Again, politically speaking. Yeah, it's implied. Yeah. It's certainly implied. But I think it's why the bin Laden raid, there was an implied eminence argument in bin Laden. We didn't kill bin Laden just because of 9-11, although that felt nice. We killed bin Laden because Lord knows he would love to do it again. Oh, absolutely. And that was in every American's mind as they heard that. Yeah. I mean, when you're dealing with an enemy combatant commander, they're conducting operations. And the evidence that this guy conducted ongoing operations against us was overwhelming. And the evidence that he was stopping was nonexistent. Have I discussed my favorite movie before and my Valentine's Day, myentine's day ritual oh i've i'm very curious about your favorite movie it is zero dark 30 and i watch it every day on valentine's day

with five guys cheeseburger i know that's important to listeners but it is relevant to this because i just like that there's nothing i love more than jessica chast. And it's everything I've ever wanted in a movie. But the Bin Laden raid, I think history will look back on as one of the great American moments. Similar to the, I mean, Captain Phillips, I actually don't think is as good a movie, though the military prowess of what actually happened that day is similar to me as the execution of the Bin Laden raid of just the pride that we should take in our military.

You know, this is a total digression, but can I tell you what I love about Captain Phillips? Yes. Okay. So it's a full spectrum look at the pride of the military in this sense. So the headlines were, I mean, you know, the actual operation on the high seas and the accuracy of the shots. Green, green, red. Unbelievable. Red. Unbelievable.

Green, red. I mean, it just, and you sit there for hours. Yeah. Yeah. And that sequence of how they did it was unreal. But I'll tell you what touched me is he's taken on board the Navy ship and then immediately this, you know, a Navy corpsman starts taking care of him. Yeah. And like the most, like this combination of professionalism and compassion that was so cool and so military at the same time.

And it was it really was it was sort of like the front end, the tip of the spear and the back end about how we take care of people. And I thought it was fantastic, like in that final climactic five minute segment, just how cool that all unfolded. It was really remarkable. Okay. Sorry for that. Yes. As we near Valentine's Day and you're thinking of what to get your wives and daughters, just let me recommend Five Guys Cheeseburger and a Zero Dark Thirty movie. I'll run that by Nancy.

I think Nancy would be into that. She's not as into the violent movies. Oh, but Zero Dark Thirty isn't a movie about violence it is a movie about feminism and uh and and it is actually just one more thing the reason that i think i love the movie so much um in addition to the the pride element is it is someone whose personality is so different than mine to spend 10 years on a single grain of sand and, and to come in every day to work, to sleep, to eat, to breathe that grain of sand is not my personality.

And it is a trait that I admire so much in others. And so to see a movie about someone, you know, I will not use the curse word, but you know, she's sitting in that room full of men and is like, no, it's 100% certainty. And they're like, who are you? I'm the mother effer who found the building. Like, okay then. So can I tell you a scene from that movie that's, I think, really well done and underappreciated? So as it's ending, and you've seen it more times than I have.

I've only seen it maybe two or three times. Yeah, maybe way more. She's in seen it more times than I have. I've only seen it maybe two or three times. Yeah. She's in the back of a military transport plane. And there's this sense of satisfaction, but it's also this sense of loss. What's next? The grain of sand is gone now. Yeah. Her life's purpose has been resolved. And I will tell you that that sense of loss is exactly what plagues so many vets when they come home from war.

The amount of purpose that you have when you are deployed, you, I mean, there are people who deploy and kind of get lost in sort of languish and all of that. But as a general rule, you know what you're doing. You know the stakes. You have an absolute purpose every morning when you get up until you close your eyes. It's something I actually don't think the World War II movies dealt with enough. There isn't that scene at the end of Band of Brothers, really, where Captain Winters comes back.

He discusses going back and being a teacher and he's with his grandchildren as he visits the world war ii memorial uh and there's something lovely about that scene yeah but i've never really seen uh art culture uh deal with that yeah exactly exactly so um well that was a fun digression. It was. Okay. Bloomberg. Bloomberg. Yes. So we're going to end the podcast with Sarah telling us and answering the question, what the heck is Mike Bloomberg doing? Go. Okay. So there were a few theories at the front end of this that we've largely dispelled. Let me briefly go into my favorite of those that is clearly not the case, which is the preferred rate that presidential candidates get on advertising if you're running for president vis-a-vis super PACs or, you know, you or me, David. Right.

V super PACs or, you know, you or me, David. Right. You can look back at 2016. There's a week in the run up to the New Hampshire primary where Jeb Bush's campaign and Jeb Bush's super PAC each by I think one was eight ads and one was nine ads in the same week on the same stations. You know, it's as equivalent as we're going to get. And the Bush campaign paid around a third of what the super PAC paid. Right. We can get into what that means for Citizens United and money in politics and all of that. But what it meant for Bloomberg to me, I thought, was a very clever strategy of announcing running for president for the purpose of running $100 million worth of ads against Donald Trump that were actually, you know, $300 million or more ads against Donald Trump.

However, as someone who lives in Virginia, which is a quasi-swing state at this point and has been watching the ads, that's not what he's doing. No. No. The only presidential ads I have seen in this season, because I'm in Tennessee and who's wasting money spending ad money in Tennessee, Mike Bloomberg, they're the football ads, the ads on the football games, and they're all about him. The ones I've been watching. Yes, they're all about him. They're all about him.

Mike Bloomberg, we actually have a little joke in our house. It's, Independence was one of them. Independence, that's how Mike Bloomberg will we actually have a little joke in our house. It's what was independence was one of them. Independence. That's how Mike Bloomberg will get it done. And just like weird, like basically catchphrases that they poll tested that sounded good. And then what's he getting done? Like what? How is independence getting it done?

I have I have questions. So anyway, the preferred rate from the FCC and FEC rules, I think we can dismiss that as a theory. Although, again, I think it would have been a really good theory. It would have been very clever. And he would have perhaps been the hero of the Democratic Party if during every football game he was running anti-Trump ads for a third of the cost of anyone else. Not what's happening. Okay. So it's a little hard to answer what is happening because

there's been one poll that has bloomberg at 11 points i believe it was the last fox poll that is an outlier and that's why we use polling averages and look at the quality of the polls um you know polling average wise he's doing higher than uh yang klobuchar booker who's no longer in the race but he's not anywhere close to the top four to the front runners uh and here's why this becomes really important and i could just write you a whole treatise on my time in 08 and 12 writing the booklets in the romney campaign for delegate allocation because the republican party and the Democratic Party up until this cycle, every state was a snowflake. Right. And had their own delegate allocation rules. Some were winner take all. Some were proportional with

a 20% threshold. Some were proportional with no threshold. And you had to go state by state to figure that out. And then, of course, there were the delegates themselves. Some you get to pick, some you have to pick a slate of ahead of time, et cetera. Okay. The Democratic Party, I think very smartly, although whether they set the parameters of it right, I think this standardizing it is very smart because it is not incumbent protection like so many other things that the party does. Parties, this is not a hit on the DNC or the RNC in particular, but rather institutions tend to protect institutionalists. This was not an institutionalist move to me to standardize this across the country. Here's the standardization.

There are no winner-take-all states. They are all plurality states. There is a 15% delegate threshold by congressional, by precinct, sorry, by precinct. Some of these states mean that's going to be a long night, potentially. Right. But not for Mike Bloomberg. At this point, there is no reason to believe that he's getting over 15% in any of these precincts. Now, obviously, we don't do precinct polling.

But he's poured just over $200 million into advertisements, none in the early states to speak of, other than incidental contact in football games. He's been concentrating on states like California, Texas, larger delegate-rich states. But none of that will matter if you're not getting above 15% in the precincts. And even then, this is all banking on a brokered convention, something we have not had. And there's many reasons why we have not had brokered conventions, even though everyone thinks we will. Wikipedia has a great site about the 92. has a great site about the 92. You can follow the 92 race by delegate numbers through each state by date to see how that should have been a brokered convention, except that once the ball starts rolling towards the end there and all the states fall in line, Bill Clinton wraps it up without problem heading to 92. Well, so here's my question. We can presume he's a smart guy.

I mean... According to his ads. According to his ads. He's phenomenally successful. We don't have to presume that. That's self-evident. That's true. He's a sophisticated political operator.

He's a two-term mayor of New York. All of this seems blindingly obvious to you and I. Is this a hope springs eternal kind of thing? Is this the kind of thing where you sort of feel like – because you've been around campaigns a ton. Is this the kind of thing where you feel like I'm just – there's just – there's going to be a moment. It's going to catch on.. It's going to catch on. It's just going to catch on. I don't know why or how, but it's just going to happen. I do think that candidates often believe that.

I think, though, in fairness, it is very hard before you get in to know whether just you getting in could all of a sudden galvanize a lot of people. You look at Deval Patrick. There's no question that's why Deval Patrick got in. He thought there was a decent chance. I don't know what he thought the chances were, but that when he got in, everyone would be like, you know what? All these other candidates have major flaws. Let's coalesce around Deval Patrick.

Right. Go team. And I think Mike Bloomberg was told that slash thought that as well. One thing worth mentioning, though, on this note, don't forget who you're surrounded by, which are the people who literally make their livelihoods from getting you into this race. That $200 million comes with kickbacks for your media buyers. Kickbacks is a mean term, but people make money on that $200 million, and it's not just the television stations. So there are incentives to tell candidates, just wait.

It's around the corner. Keep spending the money. There's a tipping point rather than a slow build. It's the $300 million. That's right. That's what is the tipping point. I think Malcolm Gladwell has a book on that. Yes.

So I don't know what he thinks is happening. I think that it has to involve a brokered convention or. And this is why so many candidates have run in the past. I think 2016 or sorry, 20, actually 2016 also. But 2020 has really undercut the there's no harm in running for president because it ups your name ID. I think it has hurt several of the people who've run. But, you know, you're running for a cabinet position. How else do you get the eventual nominee's attention but for running a solid but not too flashy campaign? Right. There's always that argument for Mike Bloomberg. Treasury? I don't know. Well, let's end on this question for you, because before 2016, there was some pretty good evidence that it didn't really hurt you to run for president.

I mean, Mike Huckabee got a Fox show. Well, we all aspire to. Which I think, truth be told, several of the 2016 GOP candidates were thinking downside, upside, POTUS, downside, Fox primetime. That's right. Who did anyone else besides Donald Trump come out of the 2016 campaign strengthened? Off the top of my head, I cannot think of anyone. I was stumped as well. Ted Cruz didn't hurt himself the same as the other candidates by shedding the reputation of just the firebrand conservative can't play nice in the sandbox.

Right. He became sort of the mantle instead of the conservatives of the Republican Party. Whether he can run for president again, though, which was, of course, he was running to become president. Yes. So in that sense, I don't know that he would view it quite that way. But Margot Rubio, Chris Christie, Jeb Bush, you know, you can argue Carly Fiorina increased her name ID. I mean, I know I'm biased. She just ran such a good campaign. Oh, outstanding.

But, you know, someone like that. But it didn't result in a cabinet position. It didn't result in VP, despite the Ted Cruz brief VP moment. And no Fox show. Right. So overall, it's hard to point to a winner. There's maybe some not losers. You know, there was a moment, I think, where Ted Cruz, right after the convention speech where he refused to endorse.

Yes. right after the convention speech where he refused to endorse. Yes. There would have been an interesting, it would have been an interesting sort of alternative history if he sort of continues as like the leader of the conservative opposition to Trump. But that evaporated pretty quickly. Yeah, and I think politically that was a cul-de-sac at best.

Yes. If he had done that, I'm saying. Well, with Trump winning, especially. It's done. Yes. It's done for four years. So there's no point in playing that role again politically if you want to be president. Not prudentially. This has been a real podcast about what you can do versus what you should do. Exactly. Exactly. And David and I don't have a lot of thoughts on the should. We're just here on the can't.

don't have a lot of thoughts on the should. We're just here on the can't. Oh, I have should thoughts on many things, but we are focusing on the can. Tune in next time for the should. Well, I think that wraps it up for us. Thanks again for listening. Thanks for hanging with us as we sort out the audio issues. When you have a startup, you know you're going to have hiccups. You just don't know what they're going to be. That's right. And one of the hiccups we've had is audio on our podcast, and we apologize for that, and we're taking decisive steps to deal with it. And so thank you for hanging with us.

Drone strikes on Caleb. Oh, and he's sitting right here. He's sitting right here. He said decisive steps. And please rank us on iTunes. Five stars, please. Really appreciate the feedback we've gotten. We've gotten overwhelmingly good feedback in spite of the audio issues, and we really appreciate that.

It helps us out a great deal when you give us that feedback. And we are. I am keeping a list of all of the ideas of what you guys want us to talk about. Those are not getting ignored. They are getting kept in a vault, a very special double lockbox. Only tipper has the key. So don't worry. We're getting to them.

Absolutely. And you can email me at David at the dispatch dot com. And we and I read them. I read them and we are saving them. And there are some really good ideas for future topics. And me at sarah at thedispatch.com with an H. It's like Ann with an E. Outstanding.

Thank you.