Pod Save America - "Protest is the new brunch."

Episode Date: January 30, 2017

Jon, Jon and Tommy discuss Trump's unconscionable Muslim ban and the politicization of national security. They're joined by The Guardian's Sabrina Siddiqui to discuss the global reaction to the EO, and then later by former White House lawyer Danielle Gray to discuss the EOs and Trump's impending Supreme Court pick.

Welcome to Pod Save America. I'm Jon Favreau. I'm Jon Lovett. I'm Tommy Vitor. On the pod today, we have political reporter at The Guardian, Sabrina Siddiqui, and former White House lawyer to President Obama and friend of the pod, Danielle Gray. Huge friend of the pod. Before we begin, a few announcements. Tommy, you want to take first? Big announcement, guys. Cro we begin, a few announcements. Tommy, you want to take first?

Big announcement, guys. Crooked Media's empire is growing. Today we announced a new show called Pod Save the World. The idea behind the show is I was not someone that was particularly focused on foreign policy for most of my life. And then I spent four years working on the White House with the National Security Council and was involved in some of the, you know, the day of the bin Laden operation, I was sitting there in the situation room and was in meetings about Syria and Iran and some of the hardest topics we faced. And it was the most fascinating education of a lifetime. And it was, I went from thinking that this was too complicated and boring, inaccessible to me to the most important and fascinating thing you could be a part of.

So I'm going to try to do a series of interviews with people who I worked with along the way, reporters and others who are in those meetings to bring you guys behind the scenes into what it's like, how these decisions get made, and the stories of the people who make them. So please subscribe to Pod Save the World. It's on iTunes now. On iTunes. It's on iTunes now, guys. Pod Save the World, the first episode drops on Wednesday On iTunes. It's on iTunes now, guys. Pod Save the World.

The first episode drops on Wednesday with Jake Sullivan, who was Hillary Clinton's top advisor. And a deputy national security advisor in the White House, right? He was Joe Biden's national security advisor. There it was. Excellent. All right.

Pod Save the World. Go subscribe. Also, keep subscribing, rating, reviewing Pod Save America in the iTunes store if you can so we can get back to the top of the charts again. Yeah, listen, I don't like this number two spot. It doesn't feel like us, frankly.

I don't know what's going on with you people, but you're letting us down. The failing Washington Post is taking the top spot. I mean, unbelievable. Just kidding. And my announcement, more importantly, today is the last day of open enrollment where you can sign up for the Affordable Care Act to get insurance.

Despite all the talk about repeal, delay, repeal and go fuck yourself, all this kind of stuff that's coming from the Republicans, if you sign up today for health insurance, you will have it for a year no matter what, at least. So go get covered. Very important. John's really one-upping us with the altruism here.

By the way, I feel like that was also my announcement. Because I texted you to remind you about it, and I was like, we should do this on the pod. Alright, let's get right into it. On Friday, President Trump signed an executive order that indefinitely suspends the settlement of Syrian refugees and temporarily bans people

from seven predominantly Muslim nations from entering the United States, with an exception made for persecuted religious minorities like Christians. The headline of Benjamin Wittes' Lawfare blog on this, which you should all go read, excellent piece on this, is Malevolence Tempered by Incompetence, which I think is a great place to begin on what this ban is all about. So a quick, just a quick history on how this happened. Of course, in December of 2015, Trump issued a statement and called for a total and complete shutdown of Muslims entering the United States. This was, of course, in response to the San Bernardino attacks, which were carried out by a U.S. citizen and a permanent resident of Pakistan.

Not on the list. And then on Fox the other night, Rudy Giuliani said a couple weeks ago, Trump called and said, quote, I want to do a Muslim ban. How do I do it legally? I just want to point out that Rudy Giuliani is a great, great tool for us because he cares more about seeming like an insider than actually being helpful to his friends. Repeatedly. Not helpful. Rudy Giuliani, not helpful to anyone. Just a dotty weirdo at this point.

Well, so the reason we're saying this, too, is because the White House keeps saying it's not a Muslim ban. It's not a ban, nor is it Muslim-related. And Rudy Giuliani just basically gave all the lawyers who wanted to say it is a Muslim ban a lot of ammo by saying that the president himself said it was a Muslim ban. It's not just a public PR thing. It's going to be in lawsuits. It's going to be in the briefs. Yes, what Rudy just said will be in lawsuits, so good for Rudy. So the way this came about was Steve Bannon and Stephen Miller,

a Jeff Sessions aide, wrote the executive order. No one in the government was notified until shortly before the EEO was final. No consultations with Congress. They said that the Trump administration is saying it was written in consultations with Congress. Keep in mind, Jeff Sessions is still technically in Congress. So that's what they could be lying about that. They also said it was for national security reasons that they didn't tell anyone because all the terrorists could have come into the country immediately. Yeah. Leapfrogged that 15-month vetting process for refugees.

Right. Morons. Unbelievable. Congressional Republicans said that that was a joke, basically. They were telling people that no national security reasons is ridiculous. They didn't seek legal guidance from the Office of Legal Counsel in the White House, though they're now denying that, or the Department of Justice. And then at one point, the Department of Homeland Security said that it was not legal for the ban to apply to people with lawful permanent residence, also known as green card holders,

and then Bannon and Miller overruled them. What do we think, guys? Tommy, you want to talk about why this is stupid? Yeah, I mean, there's so many reasons why this is a bad idea, but the first one I want to talk about is the fact that members of ISIS are cheering for this policy literally on social media. You have them calling it a blessed ban, and they're comparing the propaganda value of this Muslim ban to the Iraq war.

That is a frightening thing. Others are saying that they're making true Anwar al-Awlaki, who is one of the most dangerous members of Al Qaeda. They're leading propagandists. They're making his predictions come true that the U.S. would turn against its Muslim citizens. So the problem with this ban is from a policy level, it doesn't make any sense, right? They cite in the EO that it was refugees who committed the 9-11 attacks. None of the countries those individuals were from are covered in this ban. It was Saudi Arabia, Egypt. homegrown extremists, people who are living here, who become disaffected, who stay up at night. We're citizens, right? We're citizens who look at, you know, ISIS propaganda online and they become radicalized because they feel like there is a war between the East and the West and they are soldiers in that

war. And those people are going to be further radicalized and driven away from the communities we need them to assimilate into by this order. It is a horrible idea. I have a million more reasons, but I want to kick it to you. Just one fact that I saw that I thought was pretty compelling is that vastly more people are accidentally killed by toddlers with guns than by refugees and terrorist acts.

There's just no, it's just not a, this is an order looking for a problem. Tommy, can you also talk about, because I think some people would say, obviously people coming from countries that are terrorist hotspots should be vetted. And Trump has told people that basically we're just letting people into the country with very little vetting and that we need better vetting. So what are the current procedures in place? Because I don't know if people understand how stringent they are right now.

how stringent they are right now. The reason this policy is, this has always been a policy chasing a headline, right? Because the refugee vetting process is actually very long and very onerous. And if you were a terrorist who just wanted to get to the US to commit an act and kill yourself in the process, there's a lot faster ways to get here.

But for example, a Syrian refugee named Mustafa Hassoun wrote a piece for Politico about the vetting process. He was a part of it. He said he was interviewed five times over 15 months in person over the phone by the UN, by the US. They asked about his family, his politics, his hobbies, his childhood, his opinions, his love life. No less than four government agencies had the opportunity to screen me. By the time I received an offer to live in the US, the US officials in charge of my case knew me better than my family and friends do. Right. Like the vetting is extreme. It takes a long time. I would personally argue that we're not letting enough refugees into this country, given that we have a role or part of why the Syria situation is so bad or some of the other countries affected, like Iraq, a country we invaded. We're keeping out interpreters who helped our army at the time. Yemen, another place we bombed the shit out of over the course of the last decade. People are so desperate they can't get in.

So on a policy level and a security level, we're not doing anything with this order seemingly to keep people out. We seem to be doing a whole lot to create more extremists in the process. Now, I saw a bunch of conservatives on Twitter, and then Trump said this himself in a statement that the White House released yesterday. Well, Obama did this for six months in 2011 for refugees coming from Iraq. So do you want to talk about that? It's outrageous. In 2011, we ordered a review of what was called a special immigrant visa. And this was a program created to help Iraqis who helped us during the war to get to the United States. It was a very narrow review order that definitely did slow down the refugee process for about six months. The reason we did it was

response to a specific threat information. Two Iraqis were arrested in Kentucky for plotting an attack. So we were like, whoa, let's slow down. Let's take a look what's going on here. But it was very narrow. Trump's order applies to seven entire countries. 140 million people, right? Yeah. 130, 140 million people. So we slowed, we did not stop resettlement. And you know what people criticized at the time. And, and it was in response to a specific problem and something that needed to be tightened up. The exact thing that these conservatives are claiming Obama never did. Right. There's a certain brand of person on right now that thinks that the way you kind of, I don't know, defend Trump

or pretend like what's happening isn't deeply troubling. It's like, you guys are overreacting. This is exactly what Obama did, but you don't care because you're just a bunch of liberals and the media is biased. Here's the thing. First of all, that's not true. And then from some of them there's the inevitable, like, this is what's going to re-elect Trump. I hate that. I can't even

process that today. But it's the um this idea that that uh you guys are holding trump to a different standard first of all we're not right these are different things but also i can't believe we had this impression that donald trump wanted to put in place a muslim ban he talked about a muslim ban for two years that's why i started with that like the the statement is still on the website muslim ban it's still on the campaign muslim ban is still on the campaign trail. The statement is still on the website, Muslim ban. It is still on the campaign website. Muslim ban is still on the campaign website, but the judicial branch is no longer on WhiteHouse.gov.

So priorities in order with those goons. I do want to address your point because there are people who are going to reflexively say, you know, you're not listening to the Trump voters. People are scared out there. Let's not come down hard on this. I just want to say, I don't give a shit. You know what I mean? I don't care what you think the politics could be. I don't think any of us can figure this out. We should respond to this on a moral level. And we should respond from a place of authenticity

because these are our values and these are the things we care about. Right. And if you disagree, Google the St. Louis Manifest. That is a boat filled with German Jewish refugees that were turned away in 1939 by the U.S. and Cuba and a quarter of them died in the Holocaust. We should not fuck around with situations like this where people's lives are at risk because it will not only those people will be put at risk and it will harm our reputation in perpetuity. There's a certain kind of it's just this like idea that you guys are playing right into Trump's hands. Like, look, Trump is innovative in a certain way in that we've always had wedge issues, right? Gay rights was a wedge issue. Abortion is still a wedge issue. But Trump and Bannon are just being like, we're going to turn core tenants of America into wedge issues. Well, you know what? We just have to jump into that trap. Like there's just nothing else to do. Well, this is maybe, I mean, I will say we're all in the white house, especially you, Tommy saw these decisions being made every day in national security, but it's like, there are very

tough decisions around national security where you have to decide how to balance liberty with security. And sometimes you have to make some concessions on that, right. To keep us safe. And maybe, you know, and like even the guy who the guy who wrote the the lawfare blog that I was just talking about, he was like, look, I am saying how bullshit this this ban is. He's like, I am for non-criminal detentions. I am for some of these things that, you know, I thought. So there's a lot of tough things that the government does that a lot of conservatives or people who are interested in national security would say, yeah, I'm for that. But this ban is stupid. And I think if Trump really wanted to do this because of a specific threat,

they could have, Trump could have given a speech on Friday saying, we are not at war with the Muslim world. This is not about religion. I am doing this for a specific reason. We all still would have completely disagreed and flipped out about it, but it goes to show that they did this. They did this specifically to freak

people out and to cause chaos and to be cruel publicly. This was so sloppily, poorly done that it was not a well thought out thing in any way, shape, or form. And it's also just, they have no respect for the institutions of the government at any level,

not even for the ones they now control, so they don't use the systems designed to make sure that these orders make sense, are constitutional, etc., etc. They also are showing a profound lack of respect for the people that are enforcing it. They're forcing government employees at the local level to decide whether or not they're supposed to listen to the superiors or obey a court order or talk to the congresswoman who came to the airport. There's just such a profound lack of respect for Americans, for Americans, for American government servants, and also especially for these desperate people trying to get into

the country. I got up on my moral high horse. Yeah, you're like six feet off the ground right now. I realize that. But then, like, I want to be clear. Presidents make decisions on foreign policy based on U.S. interests, right? It is a selfish, narrow decision-making process frequently about what's good for the country. And I've seen President Obama make many of those decisions. And we have not gotten involved in every humanitarian challenge across the world. Look at Syria. Our record is not perfect. just think this policy is so dumb. No one has been killed in the U.S. in a terrorist act by anyone who emigrated or whose parents have emigrated from the seven countries targeted by this EO.

Right. It is slapdash, half-assed idiocy. And you have countries that are left out like Saudi Arabia, where the majority of the 9-11 hijackers came from. And people are pointing out, rightly, I think, that Trump has business interests there. And like, you know what? The bigger problem is the U.S. can't fight terrorism alone with U.S. troops globally. We need partners, right? We need partners like Pakistan who help us deal with the Taliban or Al Qaeda, who need to have the political capital to work with their people to allow us to do certain things we need to do and for them to help us by them taking certain actions. When we alienate their entire populations, when we give their governments

political cover to tell us to go away in perpetuity, we're making ourselves less safe. I just think we shouldn't have elected an old dotty racist to be president of the United States. I think he's making a fucking mess of it. Part of the problem. Alright, let's talk about some of the results of the ban and the reaction. Lovett, you

went to LAX on Saturday evening with Emily, and you guys did a little protesting. We did. Look, not my usual Saturday. It's funny, you know, there really is something happening with people going to these protests, people that wouldn't normally. It's awesome. And, like, I would not have gone to it a year ago. I'd never would have gone to LAX on a Saturday night to protest. Right. Saturday night to protest. Right. I don't even like going there to fly. It's a godforsaken place.

It's a godforsaken place when they're letting the refugees in. But, yeah, we went and we protest and, Talk to anyone?

I don't like being prompted. I'm trying to get you to the, Well, yeah, no, so we, so I talked to, so I talked to this,

so I talked to a bunch of people there, but there was this one woman who was telling her story. She was just there to pick up her uncle, who i believe was coming in from iran and she showed up at 7 p.m uh the day the eo was signed and she was there for a full 24 hours and her family was waiting at home they were excited to see him the table was set they had like made his favorite food that like kids

were staying up late and she just never left the airport because he was stuck there. And she was just exhausted and, and, and like, you know, she'd been crying and her whole family had no idea what was going on, but it was incredibly powerful to see how supported she felt. You know, she, she spoke at this, there was, you know, several hundred people, maybe a thousand people gathered at the international terminal and there were all these speakers, but then this woman got up there and spoke and, and it was uh incredibly moving because the answer she's like i just i just came to the airport to pick up my uncle and um everybody cheered and supported her and there were these you know dozens of lawyers sitting around uh a sign that said if you know if you need legal help come here and all these people coming in to translate um there were

two members of congress they are kind of trying to get the border, get the customs officials to give them any information, which they didn't either didn't have or couldn't give because it was chaos. But I think the inspiring thing is that people are turning out to protest in a new way. Like there is a like there is there are black. I feel like we're building on the success of black life black lives matter on uh union organizing even like occupy wall street which i think was was is still a contingent that's part of this new growing movement but a spirit and culture of protests taking taking hold amongst people who never would protest is incredibly powerful and i think barring barring things getting much worse and you know we're not in the prediction business anymore but the single most important thing we can do is figure out how to harness this new energy and turn it into votes in 2018 like this is there

millions of people are taking the streets as a matter of habit now which never ever has happened before i noticed this morning i mean one thing is there's more of us than them um and the second thing is the the greatest danger to donald trump's presidency is a unified opposition and he knows that and part of what he's doing this morning and his some of his responses he's just trying to And the second thing is the greatest danger to Donald Trump's presidency is a unified opposition. And he knows that. And part of what he's doing this morning in some of his responses, he's just trying to pick off people left and right. Like he dismisses John McCain and Lindsey Graham speaking out against this as, well, they were former presidential candidates. He tries to single out Chuck Schumer's fake tears to try to get him. So he tries to attack The Washington Post and The New York Times.

He's trying to pick people off left and right and they're saying oh it was just a few people that are protesting it's just a few people who are upset and they try to minimize all this stuff because what he can't acknowledge is that there is a unified opposition against this that is you know uh thousands of people at airports across the country not just in liberal coastal cities but in the center of the country right and by the way thanks to all the friends of the pod sending us pictures and also who came up to us at these various events and things telling us that, you know, it means a lot, but also just sending us the pictures is cool and we're sharing them. And Democratic politicians that have gone and spoken out and the tech community has a lot of people have spoken out as they were pushed.

And a few Republican politicians have managed to get these kinds of words out. I don't really think this is necessarily the best idea. But that goes to show, too, how protest and opposition works. They were completely silent, Republican politicians, at the beginning of this. Chief coward Paul Ryan was out there. We're saying, like, absolutely, we're for the ban. And now Paul Ryan is behind more conservative, traditionally conservative members in the Republican Party because he went out there early. And now McConnell

is now more against it than Ryan is. I happened to see Marco Rubio's face on the back of a milk carton at the Bristol Farms. Did it say Marcus Rubinstein? Well, it said Marco Rubio, last seen endorsing Trump holding a newspaper. And also

may be out of sorts and confused because he almost showed backbone but didn't in the Rex Tillerson vote. Also travels under Marcus Rubinstein. Will run from reporters. The reason I felt so strongly about not

licking your finger and putting in the wind on the politics of these sorts of issues early is because I think when people see this unified opposition, it moves them quickly. It can not only move lawmaker opinion, but it can move public opinion quickly. So we should stand up like people, people want to get on board with something when it's principled. Right. And I think, you know, part of it is like these stories you're hearing at the airport, right? One of the best ways we build ties with countries is student exchanges or cultural exchanges. When you tell a kid in Tehran who is attending MIT that he can't come back, that is so dangerous.

Interpreters. Iraqi interpreters, this like Iranian woman who's coming to Harvard Medical to work on a cure for tuberculosis. Iran's Oscar Fahadi, who's nominated for Best Foreign Language Film for the Oscar, like may not be able to come to the Oscars. Now, I don't like seeing films with words on the bottom. I i didn't come here to fucking read but still i still think it's wrong do you think marco has enough cash uh to not show up on his credit card forms where he's staying right now i don't know is he bouncing around like the fugitive but it is it is it's it's the

activism in the in the organizers and the protesters who are pushing the politics here you thought democratic politicians were like elbowing each other, like tripping over each other to get to the airport. To get to the protest. It's great. Good. And you know what? Chuck Schumer has been great on this. Like he was, you know, they weren't fake tears. He was like genuinely moved. And I think like, I don't know, there's a certain kind of New York Jew that like you talk about the Emma Lazarus poem and you get misty.

Well, on this political front, I mean, what scares me about this is clearly this process, like Steve Bannon and Stephen Miller writing this EO, not sharing with any of the relevant agencies, writing it so poorly that there was just mass confusion. Like, point A, it's very easy to have ideas in government. The execution is hard, which is why you vet things, because there's second and third order consequences that you don't anticipate, like millions of people with green cards not knowing if they're allowed back in, right? Or confused customs and border control agents. I can't believe a 31-year-old graduate of Duke couldn't come up with an executive order without the help of the U.S. government. Mentored by Richard Spencer, by the way. Tough hit on Duke.

But the other thing on the politics of this, this is where I do think Steve Bannon knows exactly what he's doing. Because we are making it incredibly... European leaders are facing huge security threats greater than us because of their borders. You know, people can flow through Europe far more easily. They're easier to get there from Syria. Right. They're trying to secure their borders and keep their people safe while maintaining their values.

When Bannon is giving the right-wing party across Europe cover by doing this shit. And so we need to show as Americans that this is actually not what we stand for. Donald Trump is not putting forward our values and our beliefs to help these guys abroad as well. So all of this is working in a sense. The ACLU sued. A federal judge granted a national stay on the deportation part. In Boston, they granted a stay on both deportation and detention. By the way, the ACLU has raised $20 million now, I don't know, some kind of crazy amount of money, and has like 150,000 new members. It's probably more by now. So that's really hopeful.

And finally, today or last night, the White House and DHS basically walked back the part of the ban that has to do with legal permanent residents, green card holders. They say it was never a part of that, which is a lie, of course. Right, they're lying. Yeah, as Jake Topper tweeted this morning, he said they told him over the weekend it did include green card holders. And, of course, green card holders were being detained all weekend long. And being asked, like, intrusive questions in this kind of ad hoc loyalty test, which is ridiculous because they've already gotten the green card. They already went through the process. I mean, green card holders, America's their home. I mean, they work here, they live here, they can do everything but vote and serve on the jury. It's ridiculous.

So we should also talk about some of the global reaction to this already. You know, it's been criticized by- I'd say it's been mixed. Theresa May and Merkel, Justin Trudeau's welcoming all the refugees to Canada. Iraq and Iran have threatened to retaliate by barring American citizens from their countries. And then, like you were saying, Tommy, ISIS was just posting the stories with no comments. Well, yeah. From the Muslim world, yeah, it's been, you know, mixed reviews.

Like ISIS seems to love this order, but the rest of the Muslim community, the rest of the Muslim world is opposed to it. Yeah, big go. It's my best. That's some searing analysis. That's my gut. That's some searing analysis. Yeah, hot take. What happens next? Where does this go from here? Do we think, because I know that some now some Republicans are saying

in Congress, leading Republicans, that Trump has to revise the EO. I can't tell. Does he do that? Does he, you know, do they just move on? He's announcing a Supreme Court pick Tuesday night at 8pm. So this seems like an effort to change the subject. Yeah, everyone knows that when something's going really well, you move up your Supreme Court pick to change the news. So I think they're showing with their actions. It's funny. Yeah, they can fix this with a law at any time. You know, Congress can supersede an executive order anytime they want, but they don't want to. They just want to get out of this.

My fear is that they just continue to add countries to the list. Right. I mean, it doesn't make sense that pakistan isn't on there with given the stated rationale from all these other places so there's ways for them to expand this and continue to demagogue it and now you have eric trump calling up eric trump calling up his like people in pakistan i mean it'd be a shame if we couldn't get a hotel open yeah but i'm joking the challenge they have right is like george bush his credibility never recovered from hurricane katrina because they looked unbelievably incompetent.

And I think that if there's a takeaway from this, the events of the last few days is these people are utterly incompetent and they are in charge of our country and they're fucking it up in week one. I was saying that the other night. I was like, what would Donald Trump say about this if he was a citizen on Twitter? And the angle he would probably take is what a mess. Chaos. Look at the airports. Complete incompetence, right? It's not only that it was malevolent and cruel and against our values, like you were saying, Tommy, but it was so

stupidly executed. The thing that we have to also keep in mind, though, is capriciousness, incompetence, and authoritarianism are very, very old friends. Like, these things go together. Like, having unexpected announcements that green cards don't apply, that strikes fear in the hearts of people.

Having incompetence gives you the ability to say, like, oh, we need more power. I mean, one of the things that happened after Katrina is the Bush administration claimed that part of the reason it happened is we didn't have enough authority. Right? So we also just need to be aware, like, these are old problems, right? The problem of an incompetent, bumbling, authoritarian impulse. It's very dangerous. That's all. That's all I got to say about it. And I also think that, you know, we should all be prepared that if a, God forbid, a terrorist attack does happen, the question and the debate will not be as easy as it was this time,

because this was in a response to basically nothing. And when there is some attack, and God help us if it's a refugee or someone from one of these countries, it's going to be worse next time. They're just going to use it. They're going to use it. That's why they won't,

they'll just revise the EO, leave themselves the ability to add countries. I mean, there's all this vague and poorly written language inside this sort of Stephen Miller special, this Jeff Sessions special, really, to give them the chance in the future to, you know, basically shut the borders. And which is a reminder, and I think Dan appropriately hammered this on Thursday, not one Democrat should vote for Jeff Sessions. I do not care if you see him in the House gym. He is a menace to our entire country and everything we stand for, and he should not be voted for. It was his aide, Stephen Miller, who was mind-meld with Sessions that wrote this executive order. Sessions is a dangerous person.

I don't care that he was nice to a lot of senators. I'm sure he was nice personally to a lot of people. That's wonderful. But his views on government power and authority is very dangerous. Honestly, we don't even need to make an argument. It's not an argument. It's a pressure thing. If a Democrat votes for Jeff Sessions, they're not a fucking Democrat.

They're done. We're done. We're not going to support them. We're not going to help them. We're going to primary them. We're done. No Democrat. Just be nice to give people a reason why they should vote against him. They're not listening. Who gives a shit? Any Democrat considering voting for Jeff Sessions is a calculating moron. So let them calculate.

If a Democrat votes for Jeff Sessions, they will lose the support of millions and millions of Democrats. John Lovett. John Lovett is pulling his support. No t-shirts for you. There it is. Not a friend of the pod.

Not a friend of the pod, guys. Where I go, people follow, frankly. So test me. Sufferable. Test me. You've done this, listeners. Yeah, yeah. You've done this.

Stop tweeting at him. With your tweets. Okay, when we come back, we will have Sabrina Siddiqui of The Guardian. This is Pod Save America. Stick around. There's more great show

coming your way. With us on the pod this morning, we have, from The Guardian, Sabrina Siddiqui. Friend of the pod. Friend of the pod. Joined us before on The Keepin' It 1600 Days. Welcome back, from The Guardian, Sabrina Siddiqui. Friend of the pod. Friend of the pod. Joined us before on The Keepin' It 1600 Days. Welcome back, Sabrina.

Hi, thanks for having me on. Thanks for joining us. So, I saw from your Twitter feed that you were at some of these protests in D.C. yesterday and Saturday, or both. What did you see there? What was the mood? What was the mood? Well, I think that it's becoming the new normal in D.C. on the weekend to just see people scattered about with poster boards heading toward the White House or toward the U.S. Capitol.

I think one of the signs that really sums it up was protests is the new brunch. Nice. It's sort of where we find ourselves. Low bar, D.C. Because any given day, we don't know what to expect. And yesterday, Sunday, there were hundreds of protesters who began at the White House to protest this refugee and partial Muslim ban that obviously Donald Trump signed Friday. And many of them also marched over the U.S. Capitol, where there were a lot of emotional scenes from

people chanting, this is what America looks like, to singing, you know, the national anthem, and just trying to present a portrait of a diverse America. I think the key question, though, is because you're starting to see people galvanize, and we certainly saw the biggest show of that in the Women's March the after inauguration is, does it actually become a movement that translates to something more at the ballot box? That's the big question is, where does the organizing go from here?

Was the person with the brunch sign, were they gay and handsome? That just felt like it has a gay vibe. I'm just trying to check out who's out there, you know? What are people doing? I didn't get that up close and personal of a look. There were also a lot of dogs with some pretty good signage. One of them had a sweater that said,

Trump doesn't even have a dog. I think at this point, people... I love that sign. A lot of signs directed at Paul Ryan. That was an interesting theme in terms of extending the accountability to Republicans in Congress who are supporting the refugee ban or silence. Paul Ryan certainly was the first high-profile Republican and one of

the only ones to immediately throw his support behind this executive order on Friday. Sabrina, this is Tommy. I was wondering what you're seeing or reporting about the global reaction to this, especially from majority Muslim countries or from Muslim communities across the United States. Are people feeling like we would expect them to feel? Has the reaction been caustic and fast, or what's going on out there? It's absolutely been both swift and caustic with respect to how this is being perceived, not just by Muslim-majority countries, but as you said, Muslim communities who live around the world, even in Europe. Certainly I myself just heard immediately or was inundated by text messages from family members of mine

who live in London asking what you know, what this means for them and just what's happening in America right now. Because the perception globally is very much that this is a Muslim ban, whether, you know, the debate over semantics that's taking place here is not withstanding. I think because this is someone who campaigned openly on a Muslim ban, and even if this is certainly not suspending all Muslim immigration to the United States, the language was so clear that religious minorities would be given preference, and that in order to be prioritized, you would have to be a religious minority, and obviously we're talking about seven Muslim-majority

countries. So that's walking as close as you can to the line of not having to say the word Muslim. You can try and survive some kind of legal challenge. I think, you know, you're also seeing backlash toward political leaders. You know, Theresa May, I mean, since I report for The Guardian, one of the big themes is her own conservative MPs are criticizing her because she was here, of course, just the day before or the day of when Donald Trump signed this executive order and hasn't condemned him. So I think that... Literally held his hand.

Held his hand. I mean, the thing is that this very much feeds into the notion that this is going to be a president who is going to overtly target people based on their faith and also based on their nationality. And I'm sure some people have seen Iran talking about potentially retaliating, and all that's probably left now is other countries then responding in kind, which is very much a possibility if their citizens are not allowed to come here. Yeah, I saw that note about religious minorities, specifically Christians, getting preference. But do you have any sense if they would also include Shiites or Alawites as persecuted minorities? Because it seems like there are a lot of people who are Muslim who are being targeted because they are religious minorities. But I don't know if there's any sense out of the Trump administration that those people might also get some sort of special treatment.

But I don't know if there's any sense out of the Trump administration that those people might also get some sort of special treatment. No, there's no sense of that. In fact, the only group that Donald Trump himself has singled out is Christians. And I think that, you know, he only made those comments himself in an interview on the same day that the executive order was unveiled to the Christian Broadcasting Network. But that's something he repeatedly said on the campaign trail. And it was striking because there are some reports that, for example, Yazidis would not be given prioritization, even though the U.S. government has openly said that Yazidis are victims of a genocide.

So clearly, I mean, we know they're very much doing this on the fly, and it's tough to say, but I don't think that Donald Trump is getting into the weeds on who are minorities within Islam. I mean, he has no idea, right? I mean, he just has no fucking idea. He doesn't have that understanding or that nuance. And I think that Rudy Giuliani's comments were very telling when he was explaining this over the weekend on Fox News, saying that Donald Trump had asked him and others how to do a Muslim ban legally. So it's very clear. And I've talked to lawyers at the ACLU who say that the one thing that they give them some confidence that they can really litigate any of the actions he takes against Muslims

in court is there's just such a rich history of Donald Trump's statements that you could use to point to his intent here, which is to discriminate against Muslims. I've noticed on Capitol Hill, there have been more Republicans in the last 24 hours who have started to say that the Trump administration needs to revise the executive order to make it narrower. Do you get a sense that this is sort of a movement among Republicans that's going to build? Do you think it's going to pressure Trump to do anything? What's your sense of how the politics of this are playing out, at least among the Republicans?

Well, I think the silence for the first 24 hours for most of them was telling because they were trying to get a sense of what is even happening. So concerning to so many of them has been the fact that, forget consulting Republicans in Congress, the White House didn't even consult the appropriate agencies, not even the new chief of the Department of Homeland Security. So I think that the question is, are they just talking about green card holders who were clearly also being swept up in this order over the weekend, and now that's something the administration is claiming that they're going to look into revising? Or are Republicans also going to argue that

beyond just green card holders and people who have been vetted, is it still too broad? Because they have supported and passed legislation that would ban refugees from certain Muslim-majority countries and restrict even overall immigration from certain Muslim-majority countries. They did that in December of 2015 after the attacks in Paris. So it's one of those questions of, was that posturing in the campaign because Donald Trump had made it the campaign year issue, or are they actually now kind of looking at the scenes at the airports and this movement we're talking about that's mobilizing and assessing the politics of it?

And that question I don't think is an answer they're going to be back today, and people like myself I think will be asking them a lot of questions as to how they could also possibly argue that this is not a case of openly discriminating on the basis of religion and national origin, and not just, you know, some question of national security. Listen, something's happened that I think may change the contours of this whole thing. Marco Rubio has emerged from hiding. Oh, God. He is uneasy, and he has concerns.

You coward. Yeah, you ate too and he has concerns. You coward. Yeah, you ate too much dinner last night. You covered the Rubio campaign, right, Sabrina? Yes, I did. I'm like the resident Rubio beat reporter, I think, because somehow people still look at him as this source of, what will Marco do? At this point, I actually think it's very clear that he's pretty much made it clear

he doesn't intend to fight the administration. But, yes, that he's pretty much made it clear he doesn't intend to fight the administration. But yeah, that's a recurring theme that I often get called upon to answer to. And listen, here's a curious, also just, I don't want to give him a short trip. He also has some unanswered questions. Unbelievable. Never disappoints Marco Rubio. Sabrina, I just want to close by asking you, how are you feeling?

Well, you know, this is tough. I will tell you that I had texts that I was receiving from family members, my family from Pakistan, paranoid because the White House was signaling they might add Pakistan to the list, and that would mean that our relatives who come to visit all the time can't do that for who knows how long of a period. And it doesn't matter that, you know, I don't want to make it just about any one country because those of us who have been raised in Muslim communities,

this action that is taken directly affects people that I have grown up with and people that, you know, are part of our communities who are trying to figure out, you know, what this means for their family members. And I think that, you know, I always said this whole debate of do you take them literally versus seriously, take them both ways and don't underestimate his potential to do everything that he campaigned on doing. So, you know, everyone keeps saying, well, maybe he won't go quite so far as what he campaigned upon, but really anything's possible. And the fact that this has come within the first week of his presidency really puts you on a path to worrying that this might just be the beginning. think that, you know, the scenes that you're seeing are very encouraging, that people are out there, and not just in Democratic cities, they're out there all over the country.

So I think that the question becomes, again, though, the key question is, can people translate these protests into real action when it comes to trying and defeating some of these measures? That's what really would give people a lot more sense of security in these communities. But it's a start. It is a start. Like I said, one day at a time. All right. Sabrina, thank you for joining us.

Thank you. And please come back again. Thanks. Appreciate it. Take care. Thanks. This is Pod Save America. Stick around.

There's just great stuff coming. Lots of great stuff. Lots of great stuff. Okay, so before we move on to our interview with Danielle Gray to talk about EOs in the Supreme Court, let's talk about Steve Bannon. Our favorite. Our favorite, right. And the story that was out over the weekend that there was also a presidential memorandum on Friday that reorganized the National Security Council so that Bannon gets a seat on the principals committee.

Yeah, let me explain how this works. So the National Security Council is essentially an entity that conven Secretary of State, the DNI, all those relevant people literally around a table in the White House Situation Room to talk about an issue and try to make decisions. What they did over the weekend was they gave Steve Bannon a political hack, a permanent invite, literal seat at the table at those meetings, and they removed the Director of National Intelligence and the chairman of the joint chiefs of staff. OK, they're allowed as needed. Let me just point out that almost every PC principles committee I've ever been to begins with a intelligence overview and includes a military component. So, of course, the chairman should be there. This is a huge break from precedent. There are people out there trying to say, well, Axelrod attended a couple of meetings. Like I was in those meetings. Gibbs and Axelrod or David Plouffe, they would occasionally attend national security meetings if there was an issue that touched on working with

Congress or rolling something out to the public, something we really needed to explain. It was rare and it was something we tried to prevent because you don't ever want politics to come up in those meetings. In fact, there's sort of like a false piousness where we try to prevent it. So, you know, this basically means, I think, that foreign policy is getting run through Bannon. And, you know, Sean Spicer is trying to say, oh, well, Steve Bannon was in the Navy for seven years. So it makes sense to be there. Meanwhile, they are telling a four-star general, General Dunford, the chairman of the Joint Chiefs, that he's allowed to show up if he asks. It is the most ludicrous, idiotic thing I've ever fucking heard.

I love the Navy thing. Sean Spicer, come on, man. Laughable. Also, I remember a couple years back when it was reported that Axelrod might have gone to a national security meeting. There was like two weeks of hysteria. Hysteria. Bob Gates lost his mind.

He wrote a book called Duty. He was so upset. Fox News did like 50 million segments about how bad this was. This guy is now running the National Security Council. He's a nationalist. I don't think this opposition is on the level. We wanted to touch on this because this is codifying politics as being the cornerstone of their foreign policy decision making. If Donald Trump wants to talk to Steve Bannon or Jared Kushner or Joe Schmo on the street about foreign policy, that is his right. But there's something that's supposed to be sacrosanct about

the White House Situation Room deliberations where you're supposed to focus on U.S. interests and not reelection, not politics. Politics seeps through every decision ever made. We can't pretend otherwise. But I've sat in a million meetings and people like Dennis McDonough or Tom Donilon or General Jones would never allow for a political debate to emerge in those meetings. It doesn't happen. And by the way, don't take us Obama hacks word for it, right? Like all the Bush people. General Hayden. All the Bush people are out there today. Josh Bolton, who's chief of staff in the Bush White

House, all these other people are saying. They wouldn't let Karl Rove in those meetings. Yes, other people are saying They wouldn't let Karl Rove in those meetings Yes, they wouldn't let Karl Rove in those meetings They think this is unprecedented This is a bipartisan condemnation Of this complete fucking bullshit That Steve Bannon, scary white nationalist Sympathizer

Is now running the National Security Council And if you want to see How well he's doing Look no further than how the EO played out and how the Muslim ban played out over the weekend. Great job. Great job, Steve Bannon. More of that to come. You know what? Now I don't want to make my point. You just kept rolling over me, so

you're fine. You feel good about it? That must be so hard. Imagine what happens. Let's get Daniel Gray on the phone. Let's do it. Alright, when we're back. When we come back, we will have former lawyer to President Obama and good friend of the pod, Daniel Gray. And one last point. I mean, look, if you're a political hack interfering in national security decisions because you've muscled your way into a national security meeting you have no business being a part of, and you just want to feel comfortable, try Tommy John underwear. Okay, we'll be really, really.

Hey, don't go anywhere. This is Pod Save America, and there's more on the way. On the pod today, we have Danielle Gray, who was a lawyer in the White House when we were there. Look, Danielle, we're friends, and I just want you to know that I kind of play a character on this podcast where I'm arrogant and a bit smug. Straight shooter.

Can you imagine that, Danielle? I'm just so excited that I thought it was going to take me years to make the cut as a friend of the pod, so I'm just excited that there's a lot of legal news these first 10 days. You jumped right to the front of the line. Let's start with talking about the... We were going to have you on originally just to talk about Supreme Court stuff, but since the executive order came out Friday banning refugees and people from Muslim-majority countries, we figured we should start there.

Could you talk a little bit about the process of crafting an executive order in the White House? I know this is an exciting topic, but it seems relevant. Yeah, I mean, I think ordinarily this is probably not a very exciting topic, but I think, you know, this weekend highlights the kind of chaos and confusion and very real, you know, fear that can ensue when that process is abandoned. So, you know, our process generally was one that really dates back to the 60s, which is that you would receive a draft executive order. Lawyers in the White House and at the Justice Department would review the executive order for legal concerns. You would then have the Office of Management and Budget circulate that draft to different agencies within the executive

branch that might have interests or equities in the particular policy decision at issue to determine whether there were any concerns, if you had concerns about how it was being implemented or concerns about how it would operate in practice. And you'd have this kind of back and forth so that ultimately, when you handed the executive order to the president, he could be assured that what he was signing had been reviewed for legality, that agencies that may have had concerns about it, that those concerns were aired out before he was signing it. And so that was the general basic process that we followed. Did that happen with the Trump White House this time around? It's unclear. You know, I think it's really hard to follow the news these days, but I think in the last 48 hours, we've heard varying reports. You know, I think his press secretary

said that there were national security concerns about showing it with agencies. There was an unnamed senior official yesterday who said that, you know, the Justice Department looked at it. There have been suggestions that maybe the transition beachhead teams took a look. But, you know, I think it's hard to tell. They could tell us whether or not the Office of Legal Counsel wrote a memo to the president assuring the president of its form and legality as is customary. White House produced this draft EO, and it came across your desk. Other than literally setting yourself on fire inside the White House and running screaming out of the building, what would you do with your red pen? What would you do? If I received that executive order? Uh-huh.

That's a hard counterfactual. Let's just talk about the way it was drafted say you agreed with the policy in principle but you read the text of the EO because it seems like it wasn't very well written in the first place part of the reason that people have been talking about process here is not out of a sense of we did it this way, so you should too.

But part of the reason is, if you're a lawyer in the administration, you want the president's policy agenda to succeed. What you don't want to happen is the day after the president signs an executive order, five district courts all around the country issue temporary relief in joining large parts of it. As a former lawyer in the White House, I would have viewed that as a I failed to do my job. Part of my job was to make sure that anything that went out could withstand legal scrutiny and to convey the importance of those legal considerations to the policy people who sometimes might disagree, who sometimes might be looking to advance their particular programmatic agenda, but making sure that the policies and actions of the executive branch were not susceptible

either to this kind of legal challenge or to some of the confusion where you had, you know, administration officials having to clarify provisions of the executive order, you know, on Sunday morning talk shows. You know, that to me, I would have viewed that as, you know, we let the president down. Yeah, maybe tell the Department of Homeland Security, like, how to enforce this thing before you announce it. Daniel, you were a White House lawyer. You were a lawyer in the Justice Department. You were the cabinet secretary. You're now a partner at O'Melveny & Myers. You are the most qualified person we've ever had on the show. I'm not actually sure how we got you here. But one of the things you did is-

Because we asked. You were involved in the vetting of Supreme Court justices, including Justice Kagan, Sotomayor. I'm just wondering, what should that process look like the last few weeks? What do you think has been happening, and how did you guys vet those individuals before an announcement, since apparently we're going to get one on Tuesday? Sure. So, you know, I think in the ideal pre-announcement phase, I think in the ideal pre-announcement phase, what you're really trying to do in the White House is to make sure the president has the best kind of information he needs to make a decision. And you're also attempting to make sure that whenever that decision is announced to the world, you are well prepared to defend your nominee. you know, the confirmation process is very predictably

contentious. You can identify where you think points of opposition will come from. And so part of your job as a White House lawyer in the selection process is really thinking about, you know, how do I get a command of this candidate's record so that I know this person's record inside and out probably better than that person. So, for instance, all of the nominees that have been rumored to be on the sort of shorter list of people that President Trump is considering are all federal judges. They all have opinions that they've written over the last decade or more. Many, you know, several of them were government lawyers. So in the case of someone like Judge Pryor, you know, he has a record of

briefs that he filed when he was the Attorney General of Alabama. And so it's important to really have a good command over those things, not only so you can inform the president about his decision as to who to select, but also, you know, when that person's record is attacked, if that person's record is mischaracterized, you're very well prepared to defend it. Now, at what point in the process do you go on Morning Joe between 6 a.m. and 7 a.m. to try to influence the president's pick because you know he's watching. I don't think I talked to a single reporter prior to the selection of the president's nominee. And I think that's, you know, we very much view this as President Obama's decision. President Obama was someone who had probably thought more about constitutional law, the role of judges in a democracy, and was probably as well prepared to make that decision as any president in history.

And he certainly, more so than anyone in his White House. And so we would not have dared. Could you talk a little bit about the folks who have made the shortlist and who we should be most scared of, who's somewhere in the mainstream of conservative thinking? Just give us a little background on each of the, I guess, the top three that have made it to the shortlist, which is Pryor, Hardeman, and Gorsh. I don't know how to say that name.

Judge Gorsuch. There you go. News guys. There you go. Yeah, well, you know, it's always dangerous. I think one thing I learned after the last election is to not make predictions, so I'm not going to do that. Us too. But, you know, there are other names that have been bandied about, including several women,

but I think no one really thinks that those are going to be the names that he picks. And so of the top three, I think a few things. One, as I mentioned, they're all federal judges. So all of them have been on the bench for a number of years and will come to this confirmation process with a record of judicial decisions that people can review. with a record of judicial decisions that people can review. So Judge Gorsuch is a judge in Colorado. He is on the 10th Circuit. He is known for being someone who probably is as close to the mold of Justice Scalia, whose seat this nominee will fill, as anyone else on the list, in part because nominee will fill as anyone else on the list, in part because he's well known for having a theory of the Constitution that what matters is how it was understood at the time it was written, which is known as originalism. And that theory has obviously lots of implications for how you think about whether a decision like Brown versus Board of Education or Roe v. Wade,

and whether that decision was correct. He also was a judge in the Hobby Lobby case, which is the case about the contraception exception, and he thought that the corporation at issue there, Hobby Lobby, had religious rights that should be respected in that. So predictably, solidly conservative judge. Judge Hardiman is interesting, I think, for two reasons. Very similar sort of judicial record as some of the other names on the list, but he sits on the same court as the president's sister, who's a Third Circuit judge, Judge Marion Barry. the president's sister, who's a Third Circuit judge, Judge Marion Barry. And at least according to press reports, she's been strongly supportive of his candidacy. The other thing that's interesting about Judge Hardiman is that he has sort of an interesting biography and a background. And that

is often something that presidents find very important in thinking about these decisions. And so he was a taxi driver. He didn't go to Harvard or Yale or some, you know, one of those schools that all of the current justices went to. He went to Notre Dame. So, but again, has a pretty strong conservative record, has issued decisions on gun control and the Second Amendment, and is someone that the Federalist Society, Heritage Foundation are equally excited about. And the last person that's been bantied about is Judge Pryor, who is a judge in Alabama, 11th Circuit judge. He was the twice-elected Attorney General of Alabama. And his nomination to the 11th Circuit was quite controversial.

President Bush recess-appointed him and then followed that up with a very contentious confirmation hearing a second time around. And the part of why it was so controversial is that Judge Pryor is on record as saying that Roe v. Wade is the worst abomination of constitutional law in our history. And at his hearing, he refused to walk back from that. He stood by that declaration. And so if he is the nominee, I would imagine there would be a host of opposition around his views on women's reproductive issues and his views on things like gay marriage. So if that's the pick, that's the, we want chaos, we want protests, we want as much noise as possible, right?

Well, what I would say about this is that sometimes it's easy in these situations to think that the person who has written it down and said it out loud is the person who is the most conservative, as opposed to someone who, you know, perhaps has been a little bit more careful and cautious in their public statements. So I think it actually would be difficult to actually make the argument that Judge Pryor, for instance, is so much more conservative than Judge Gorsuch. I think part of what I think it will be important for people to do is to read everyone's records. I mean, all of these candidates are frequent speakers at Federalist Society events. You can go on YouTube and find out things they've said. Judge Gorsuch has written a book. And so I think it's easy to think that only of what will be important for Democrats in the Senate to do in particular is to apply real scrutiny to their record. One last question before we let you go. You clerked for Merrick Garland, who President Obama had nominated for the Supreme Court

and never got a hearing because the Republicans blocked him the entire time. Yeah, I'm still mad about that. I was going to say. So basically my question is, how do you feel entire time. Yeah, I'm still mad about that. I was going to say. So basically my question is, how do you feel about that? Yeah, I'll pester you. This is a space for your rant on that. No, I mean, do you think Democrats should sort of respond in turn with this Trump pick? I know that I guess McConnell could probably nuke the filibuster and get a judge through anyway,

but what do you think about all this? Well, you know, I'll say a few things. I did court for Judge Garland, and I think he would have been as fine a justice as we've ever seen on the Supreme Court. And if I take one positive thing from the last year, I think the American people were able to see up close not only his intellect and his temperament, but just that, you know, he's a really good guy who's really decent and has the highest character. And I think one of the things that's been a little bit disappointing is that, you know, we've sort of stopped talking about how we got here. You know, this seat didn't arise, you know, two weeks ago or a month ago.

two weeks ago or a month ago. The seat became vacant almost over 300 days ago. And Judge Garland waited over 300 days, never received a confirmation hearing. A number of senators refused to meet with him during the traditional courtesy meetings. And all in advance of a principle that was a fake principle. You know, this idea that you just don't confirm a nominee when it arises in the last year of a president's presidency, which has been well debunked.

So I think there's a lot of temptation to just sort of like, you know, throw our hands up and say, well, we're not going to participate at all. This is a stolen seat. And, you know, that's, you know, Ron Klain wrote an article today in the Washington Post saying, you know, that's a very appealing thing, particularly for many of us who, you know, know and respect and admire Judge Garland and feel very bad about what happened to him, what happened to President Obama and what happened to the country as a result of what happened with that seat. But I think, personally, I think that it's on Democrats to really demonstrate exactly what should have happened with Judge Garland's nomination, with whoever is nominated for this seat.

nomination with whoever is nominated for this seat. And it's to participate in the hearings, to make sure that nominee's record goes through, you know, to borrow a term, extreme vetting, you know, to make the case to the American people that what's at stake in this is, you know, not just sort of whether one conservative justice will be replaced with another. But really, all of these potential candidates are in their late 40s and early 50s, and you're really talking about shaping for a long period of time to come on the Supreme Court a certain viewpoint. And I think that it's really important for Democrats in the Senate to make sure that those views are subject to scrutiny, because it's unclear that a majority of Americans actually voted for, you know, restrictive rollbacks in a woman's right to choose or an absence of checks on presidential power. And so I think that's something that really should come out in these hearings.

It is important to make an argument. Danielle, thank you so much for joining us. We appreciate it. Come back soon. Thanks, Danielle. Alright, take care. Bye. That's it for Pod Save America today. Thank you again to Sabrina Siddiqui and Danielle Gray for joining us. Also, remember to go

subscribe to Pod Save the World, Tommy Vitor's new show, which will drop on Wednesday. And also, if you want some merch. Merch. You get some fun shirts, people. CottonBureau.com slash Crooked. You got it.

Thanks, guys. There you go. Take care.