Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara.

Folks, I’m here to inform you that we’ve made it through another year, 2022. This year, like many, brought a ton of challenges, a few rewards, and a whole lot of learning. I was thinking this week about when we first started doing the end of year compilation-ships. As 2020 was coming to a close, we had the idea to look to our Stay Tuned guests, to teach us and enlighten us, and challenge us to think through the many complicated issues the world is grappling with.

This year is no different. Between a devastating war in Ukraine, the overturning of Roe v. Wade and deadly gun violence, there was no shortage of bad news. But there were and are moments of hope and clarity and inspiration. And so, so many people who were fighting for a brighter future.

So with that, we bring you a reflection on 2022 as told through conversations on Stay Tuned, our new Stay Tuned in Brief episodes, and the CAFE Insider podcast. That’s coming up. Stay tuned.

At the start of 2022, Supreme Court Justice Steven Breyer announced he would retire after serving more than two decades on the court. Shortly after the announcement, my CAFE Insider co-host Joyce Vance and I reflected on his legacy.

Joyce Vance:

He was, in many ways, a very pragmatic man of the people. I think, I’m just guessing, I don’t know him personally, but based on what he’s written and his books and what he said, I think he would want the title Caretaker of the Constitution. That really seems to epitomize what people are calling… A lot of folks are saying, Well, he had a pragmatic approach where he had these functional rulings with an eye towards real world consequences. I think what that comes down to, is that he was someone who believed in fidelity to the Constitution and the founder’s vision, but he wanted to make the Constitution work for real people. And that’s the kind of justice that I really like. I’m sorry to see him go.

Preet Bharara:

Yeah. Although, may be appropriate timing, given his age.

Joyce Vance:

Good timing; but a real splendid legacy that he leaves behind.

Preet Bharara:

And a good run on the court. He’s associated with some significant opinions, not as many as some folks. He wrote the opinion upholding the Affordable Care Act. But there’s an opinion that I know that you like to talk about written by Justice Breyer.

Joyce Vance:

So I was the appellate chief in my office before I became the US attorney. So I care about these really nerdy inside baseball legal sort of issues. And one of the opinions where Justice Breyer in many ways saved the day, was a case called Booker that had to do with the constitutionality of the sentencing guidelines. And there was a five-four majority that wanted to rule that the sentencing guidelines were unconstitutional. This is the basis for sentencing in federal cases. And it developed out of a belief that hit its apex in the late 1970s, that there was a lack of uniformity in federal sentencing that was really problematic. You could commit the same crime in New York and Oregon, and get very disparate sentences.

And so the sentencing guidelines were, in essence, an effort to make the world more fair. If the guidelines were unconstitutional, they would be thrown out the window and we would’ve been back to a sort of wild west where federal judges were free to sentence at will. And so Justice Breyer wrote what’s known as the remedial opinion in Booker. He too crafted a five-four majority. It was bipartisan. He got both Justice Rehnquist and Justice Ginsburg to sign on to his opinion

Preet Bharara:

On the heels of Breyer’s retirement, President Biden nominated Judge Ketanji Brown Jackson, who at the time was a judge on the DC Circuit Court of Appeals. Justice Jackson is the first black woman and the first person with experience as a public defender to serve on the Supreme Court.

Ketanji Brown Jackson:

My parents taught me that unlike the many barriers that they had had to face growing up, my path was clearer. So that if I worked hard and I believed in myself in America, I could do anything or be anything I wanted to be.

Preet Bharara:

To discuss the hearing and the historic nature of the nomination, I spoke to Jeffrey Rosen, the president and CEO of the National Constitution Center.

Jeffrey Rosen:

We have seen in the course of her hearings how incredibly judicious she is. That’s the word that keeps coming to mind. She’s a judge’s judge. She described her judicial methodology to Dick Durban, and said that there were three components of her judicial philosophy. She followed three steps. First, she makes sure she’s proceeding from a position of neutrality and clearing her mind of preconceived notions and setting aside personal views. Second, she says she receives the inputs for the case, including the briefs and the parties and the factual records. And the third step she says, is the interpretation and application of the law to the facts. And this is where I’m observing the constraints on my judicial authority. There are many constraints in our system, and importantly, judges have limited authority. That’s a very judicious, moderate, judge’s judge approach. And it suggests someone who, as we’ve heard throughout the hearings, is not an ideologue within an agenda, constantly is saying in response to every question, I’m doing what Congress required me to do. In establishing these sentences, I was balancing the congressional requirements or in interpreting statutes, I’m just doing what Congress said.

So her temperament, in any of any event, and her general approach seems to be more of the pragmatic, moderate approach. Which is why she embraced Justice Breyer’s emphasis on bringing all sides together and harmonizing and conciliation, and said that he was a model. So just based on two days of really interesting exchanges, she appears to be more in the Kagan than Sotomayor mold, but I’m sure she’ll establish her own voice and her own approach.

Preet Bharara:

The start of the year also brought some very grim news. On February 24th, Russian president Vladimir Putin ordered the invasion of Ukraine. The invasion triggered a full scale war and staggering geopolitical shifts as nearly the entire international community came together to condemn Russia. The war shook markets, displaced millions of people, and killed tens of thousands of people. The week of the invasion I spoke to Kimberly Marten, an international security expert and political science professor at Barnard College who spoke about Putin’s political calculations.

Kimberly Marten:

So I think the strongest argument is that Putin has been waiting for the opportunity to take his move to show that you can’t ignore Russia, that Russia has power in its region, that Russia is a necessary player. I think we’ve seen this in Africa and the Middle East too. And to make Putin go down in history as the man who made Russia great again. And so I really think that that’s the most likely explanation. And it’s not opposed to the idea of ethnic nationalism, it’s not opposed to the idea of being against NATO enlargement, but it’s just the most likely explanation that fits everything that he’s done.

Preet Bharara:

Spoiler alert, the invasion did not go according to Putin’s plans. In the months that followed, in a stunning show of bravery and strength by President Volodymyr Zelensky and the people of Ukraine, Russian troops were forced to retreat in regions across the country. So how could Putin, who has been widely thought to be savvy and shrewd, make such a huge miscalculation? Bill Browder, the investor, activist, and author, who has dedicated his life to holding Putin accountable for state-sponsored violence, shared his thoughts on this baffling question.

Bill Browder:

We don’t know what his calculation is yet. We’re saying it’s a miscalculation and yes, he certainly miscalculated.

Preet Bharara:

It hasn’t gone according to plan, right?

Bill Browder:

It definitely hasn’t gone according to plan. But my analysis is something different. So why did he do this war? I believe this war comes back to that trillion dollars. That trillion dollars that was stolen should have been spent on healthcare and on education, in roads, and all the things that a government’s supposed to do for its people. Instead, it went into yachts and planes and villas, and Swiss bank accounts. And after a while, the Russian people got mad. And every time they got mad, what did Putin do to deflect their anger? He started a war. The war in Georgia in 2008. I mean, you can look at the chart. His approval rating skyrocketed. The illegal annexation of Crimea and the invasion of Eastern Ukraine in 2014; again, his approval rating skyrocket.And then now, with this murderous invasion, full-scale invasion of Ukraine, and his approval ratings skyrocket.

His calculation is all about him being worried about getting kicked out by his people. And so he maybe didn’t miscalculate because his approval ratings are where he wants them to be so that he can be safely the leader of Russia and not have anyone challenge that. And yes, of course it’s very expensive now because of all these sanctions and money is being frozen. And yes, he lost 20,000 troops, but he doesn’t care about 20,000 troops.

Preet Bharara:

As the war raged on, the Russian forces continued to fall short of their goals to overtake Ukraine. Since February, Ukraine has recovered more than half of what was originally seized by Russian troops. I spoke to Julia Ioffe, the Washington correspondent at Puck, and among the most expert voices on Putin and Ukraine. She spoke about where Putin and the Russian army went wrong, and whether the West’s goal should be somehow to dethrone Putin.

Julia Ioffe:

Some of the errors have been pretty damn basic.

Preet Bharara:

Yeah.

Julia Ioffe:

One of the most amazing things about watching Russia in this war is that Russia has been riddled with corruption. And the seat of the corruption in Russia is the FSB. They’re the mob. They’re the Sopranos that run all of Russia. And I think some people could also tell that there was a feeling of like, Okay, well everything else is kind of rotten to the core, but surely the army isn’t. And surely the army is still. And then it turns out…

Preet Bharara:

That was incorrect.

Julia Ioffe:

Yeah, incorrect. And it turns out the army is corrupt, and the FSB is corrupt and was feeding incorrect intelligence up to the Kremlin. And it turns out the army is corrupt as (beep) and the equipment wasn’t very good, and the soldiers don’t really want to fight because they don’t know what the hell they’re fighting for. And it turns out that it really matters. And it also turns out that Western weaponry, Western equipment is a lot better than Russian equipment. I mean there’s a lot of factors. All of that grinding, fighting over the summer that looked like a stalemate just ground down a lot of Russian men and material. I mean they lost 50% of their tanks, for example.

Preet Bharara:

Ordinarily, the West and reasonable people, will sometimes prefer a strong man or someone whose movements and actions can be predicted, because there’s some stability there. And they prefer that over complete confusion and instability. Have we reached the point where if the West could wave a magic wand or have some influence over Putin being taken out, would prefer the kind of instability you describe to Putin being in office?

Julia Ioffe:

Well, the thing is that he did that himself on February 24th. The Putin that we had before February 24th, poisoning his opponents, poisoning people in Salisbury, England, that was still a Putin that the West could kind of do business with; that could squint and hold its nose and do business with. It was still stable enough for the West to deal with.

Preet Bharara:

So your answer to the question is, it’s too unstable now. Putin himself is so unstable that the instability of a Putin removal would be preferred.

Julia Ioffe:

Well, I don’t know about that. I mean, I think at this point, it’s like he already set that in motion on February 24th. He’s created so much instability in the world now; in the region with refugee flows, energy prices and food shortages, a land war in Europe, and the threat of nuclear weapons. And the chaos inside Russia; he has unleashed that instability. And like I said, it’s already unstable, is what I’m saying. And he did that.

Preet Bharara:

Moving on to domestic news. In May, the Supreme Court leaks sent shockwaves through the nation. It was the draft majority opinion of perhaps the most consequential case to reach the high court in the generation. Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. As we all know, that draft opinion, which was authored by Justice Samuel Alito, was essentially the same as the final decision that was released the following month.

Joyce Vance and I discussed the news and the implications for reproductive rights in this country.

Joyce Vance:

If this opinion stays in place, abortion rights in America are over. States will have the authority to adopt laws without exceptions for incest and rape if they choose to. They will be able to criminalize abortion. They will be able to make it a crime for a woman to obtain an abortion, a step that most states haven’t taken until very recently. Laws that are already on the books that prohibit abortion, both these pre-Roe zombie laws that stayed there but haven’t been enforced, and more recently, these trigger laws that states have been passing, anticipating that Roe could be reversed, all of those laws will go into effect. So when this opinion comes down, if it does come down in this form, the effect will be very immediate in many places.

Preet Bharara:

I want to go back to some of the substance of this, because I know you have strong views. Among other things, Justice Alito in the draft opinion said, as I mentioned, The Constitution makes no reference to abortion. He also says that the abortion right is not deeply rooted in the nation’s history or tradition. And he has an appendix in which he includes anti-abortion laws going back, I think to the 1800s.

Joyce Vance:

Oh yeah.

Preet Bharara:

What weight do you put on any of that?

Joyce Vance:

I am so proud to live in America, Justice Alito’s America, where the fact that men withheld these rights from women hundreds of years ago means that women can never have them.

Preet Bharara:

That’s a great way to put it.

Joyce Vance:

He covers that in some very pretty 14th amendment analysis and he justifies it with the law. But ultimately that’s what he’s saying. So if you’re a black person, three-fifths of a person at the founding of this country, you should maybe be a little bit concerned about what role Sam Alito thinks you should play and what autonomy you’re entitled to. This is just at bottom, a deeply offensive opinion in so many ways.

Preet Bharara:

And another thing we should make clear, you’ll hear commentators say, echoing Alito, stare decisis is not an inexorable demand. And conservatives will like to say, Well, there were bad Supreme Court decisions. And there became a consensus that they were bad and they were overturned. And that happens, and that’s something that the court can do and that’s something the court has a right to do. And it’s happened before, and liberals have applauded that in the past. But the difference is this, I think it’s the case and we have to check with scholars on this, that on every prior occasion where there was a reversal or an overturning of a Supreme Court precedent, it was in favor of the expansion of a right. And this is the first time, or least the first serious time, that there has been an overturning of prevailing law that is restricting a right or taking a fundamental right or something that was found to be a fundamental right away. What does that mean?

Joyce Vance:

I think that’s correct. And it’s important to underline that. This is an opinion that takes away a right that women have enjoyed for almost 50 years. And this notion that you can take rights away from people is something of a watershed moment in the court’s history. A wise judge, a civil rights era judge, told me a while ago that in the sixties, civil rights advocates were comfortable that they could go to the courts and ask the courts to give them a fair hearing on an expansion of rights. That’s what’s given the courts the integrity, the role, the place that they have in our society, is that they guarantee our rights.

Now the Roberts Court for the first time is going to take a right, a foundational right, away from Americans. This is a right that has kept women from dying from botched procedures in alleys. This is a right that has made it possible for women to engage fully in the economy. This is a right that has permitted women to make choices about their own lives. And although certainly not all abortions are obtained by 12-year-old victims of incest and rape, that’s not an insignificant consideration. The idea that you’re taking away from young girls, from victims of crimes and abuse, the ability to determine the course of their future; you’re taking that right away. That’s what this opinion’s about.

Preet Bharara:

And the other thing to bear in mind, and maybe we’ve mentioned it a little bit in passing, is history shows that if you ban abortion, the number of abortions does not go down. It just changes the number of people who die from it, and who can get it, as you’ve mentioned.

Joyce Vance:

Hillary Clinton got this exactly right when she said abortion should be safe, rare, and legal. And the way you do that is by providing a safety net so that people who want to make the choice to have a child don’t have to be concerned about paying for expensive medical costs, like the cost of the birth itself, which is not insignificant. So that in states like Alabama that have refused to expand Medicaid, women will be forced to carry babies to term, forced to take on that expense. They won’t have access to prenatal care, they won’t have access to early childhood education, and a whole host of other things that a society that was truly pro-life, right? If this is about being pro-life, just not pro-forced birth, then you would do everything that you could to enhance the life of these babies that will be born. But that’s not what’s going on here.

Preet Bharara:

We’ll be right back after a short break.

On Stay Tuned, I spoke with Jeannie Suk Gersen, a constitutional law professor at Harvard Law School, about the fallout from the overturning of Roe and what state legislatures might do moving forward once the loss of the right to abortion really sinks in.

Jeannie Suk Gersen:

I think it’s an interesting period for the American public, because we’re coming off like many decades of feeling like, Okay, the Supreme Court is where the litigants go to settle these important issues. And I think that it has taken the focus off the work that the other branches are able to do, to the extent that we are upset about the focus now being on states and legislatures. I would say let’s turn that around and just stop thinking about going to nine people on the Supreme Court for resolution of our important issues, and actually really think about the power that people hold to make laws that suit the interests of the Democratic majority when it comes to important issues as well.

Part of the problem is, the Supreme Court has been seen, of course, as the body that protects minority rights and the rights of the vulnerable. But it is true that in the area of abortion, we don’t really know what will really happen when all the people in these different states, even the red states, realize that what their state legislatures are really interested in doing is completely taking away the right to an abortion from conception. Now will the majority of those people in those states, when it’s not just a fight about, Oh, the Supreme Court and it’s power grab in this area. If that’s not really what this is about, at some point, if it’s really about the policy issue of do we want a right to abortion in our state, are we really going to see a few years from now that people in the red states are happy and willing to live with the complete lack of a right to bodily autonomy when it comes to the question of pregnancy and when whether one gets to choose when that happens?

Preet Bharara:

What’s your prediction about that?

Jeannie Suk Gersen:

I guess my prediction is that it’s one thing for something to be a culture war issue on which there’s one side and the other side and you have to be on the right or the left, or you be red or blue. It’s another thing for people to do the hard work of really thinking through what kind of state do we want to live in. Do we want to live in a state where there is no right to control my own body? And my prediction is that as that sinks in over time and that it becomes a little bit less possibly of a polarized issue of there are these states and that those states, I think that we’re going to see some movement. Because also the polls do show that the majority of the country does support a right to abortion and that I think that that will have an effect.

Preet Bharara:

A Supreme Court case the justices have yet to rule on with potentially huge implications for our democracy takes up the issue of a little known theory known as the independent state legislature doctrine. Constitutional law professor Franita Tolson spoke with me about it in August.

Franita Tolson:

So that case is called Moore versus Harper, and it deals with a North Carolina case where the North Carolina Supreme Court found that a severely gerrymandered congressional redistricting map violated the state constitution’s free and fair elections provision. So the Moore case squarely presents this question of whether or not the state legislature is constrained by the state constitution in drawing this map. Now, the North Carolina Supreme Court said, Look, you have violated the state constitution, we protect free and fair elections. People have a right to participate equally, this plan violates that. And the Supreme Court decision in Rucho versus Common Cause in which the Supreme Court said, Look, we will not resolve partisan gerrymandering claims. The fact that a state court is stepping in to police this is very, very important. But the claim and more is that the state court really can’t police this because of the independent state legislature theory. So Supreme Court will likely weigh in and perhaps recognize some form of the theory. Let’s be clear Preet, the court does not have to say that the state legislature is free of all substantive constraints of the state constitution.

Preet Bharara:

And here’s how Joyce and I analyzed the case on the Insider podcast.

You could actually kind of intellectually find this kind of interesting, right? Because the Constitution, the text of it says plainly, the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. That means what it says. And if you’re a textualist, you say, Yeah, without restriction of any type. But then the other side says, Well, hey, wait a minute. Common sense and history and the structure of the Constitution indicate that the Constitution can delegate to a particular body or type of official some role, but it’s always been understood in this country that those things can be reviewable by the independent judiciary. That’s what basically checks and balances mean. And how can it be that a state legislature can pass a law about an election, the time, place, and manner of an election, that violates the state’s own constitution as determined by the state judiciary? That doesn’t make any sense, notwithstanding the plain language of the constitutional provision. So it’s kind of interesting.

Joyce Vance:

It is. And you have made precisely the correct legal argument about where the decision point is. And I respect your ability to be intellectual about this one, because I clearly view it with a little bit more emotion than I typically reserve for Supreme Court cases. But it is an utterly fascinating issue. Judicial review is so very much grounded in our country’s history.

Preet Bharara:

Some events from this year are particularly difficult and painful to revisit. On May 14th, a gunman opened fire in a Top supermarket in Buffalo, New York, killing 10 black people in a racist hate crime. Then just 10 days later, another gunman opened fire at the Robb Elementary School in Uvalde, Texas, killing 19 children and two teachers, and wounding 17 others. The aftermath of these massacres brought a lot of the usual thoughts and prayers from the very people blocking gun safety legislation in Congress. But then about a month after the shootings, Congress passed the bipartisan Safer Communities Act. Though narrow, it was the most significant federal gun legislation in almost two decades.

On Stay Tuned, I spoke with Shannon Watts, the Gun Safety Advocate and founder of the Grassroots Organization, Moms Demand Action.

Are we focusing too much on the national scene and national legislation and not enough locally? And the one example that you always give, and that others give, is even though we say nothing changed after Sandy Hook or after Parkland, that’s not quite true. In those states, in Connecticut after Sandy Hook, there were changes made to the laws. And in Florida, which is not a liberal state by any means like Connecticut is, they passed a series of gun reform legislation too. A, should we be focusing more locally? And B, as an organization and as a person who leads the organization, how do you split your time between state fights and the national fight?

Shannon Watts:

Well, we’ve played a lot of defense at the federal level. We’ve had both a Democratic president and Republican president in the 10 years that I’ve been doing that this, and now we have an even split in the Senate. So working on federal legislation is certainly important, but we decided when Manchin-Toomey failed, and Manchin-Toomey was a bill that was put forward just weeks after the Sandy Hook School shooting, put forward by Senators Manchin and Toomey. Bipartisan bill that would’ve closed the background check loophole and required a background check on every gun sale in honor of what happened at Sandy Hook School. I was sitting in the Senate Gallery when that failed by just a handful of votes. And I’ll be honest, I thought, Okay, the country’s not ready for this. I’ve spent the last few months of my life doing this, and now I’m going to go back to what I was doing before living my life in Indiana.

And instead our very brilliant volunteers said, No, let’s pivot and do this work at all levels of government where we live. We’re going to pass resolutions through school boards that educate families about secure storage. Two billion families have received that information. Now we are going to pass resolutions through city councils. Just in the last month, we’ve passed five separate resolutions through five separate city councils in the state of Colorado, and one in Walnut Creek, California. We are going to pass legislation in our state houses; 20 states now have background checks. We’ve disarmed domestic abusers in 30 states. We’ve passed red flag laws in 19 states and on and on and on, including secure storage and police accountability legislation. As I said, we play defense, and we’re also shaping the culture and educating people around secure storage. So all of that work, it never would’ve happened unless Manchin to me, failed frankly.

I mean, it was really the last 10 years that gave us the ability to build this eight million strong grassroots army that is now larger than the NRA. And you asked me, Do we focus too much on federal legislation? I think what we focus too much on are mass shootings. They get attention, and I get it, because it’s so horrific and there’s so many people killed, but mass shootings are about 1% of the gun violence in this country. If you zoom back, it’s really the daily gun violence that’s killing 110 Americans and wounding hundreds more. And it’s mostly done with handguns.

Preet Bharara:

Right. But the mass shootings are at schools are the things that cause every single family in the country to go to bed sad and frustrated and anxious for their own children, or their friends children. And it focuses the mind, unlike random gun violence on the streets of cities all over the country.

Shannon Watts:

It does. And something that’s happened since you and I last spoke is that guns have become the leading cause of death for children and teens in America. But if you go back to Columbine, the Washington Post found that over 300,000 students have experienced gun violence at their schools. Gunfire on school grounds. And it’s certainly an alarming trend, and most occurs in majority minority school districts. And this school year is one of the deadliest in recent history for gunfire at schools. And look, every single instance is trauma. It will stay with these kids forever. It will drastically impact their mental and emotional health. But the most effective way to prevent this from happening is to keep guns out of schools in the first place. And many of the things that we’ve been talking about and that we work on would address this, like closing loopholes in background checks, enacting red flag laws, raising the age to purchase a gun, enacting secure storage. Certainly we have seen, since Uvalde, that we cannot count on good guys with guns to save us from bad guys with guns.

Preet Bharara:

Well, that’s certainly true.

Stay tuned. There’s more coming up after this.

Throughout the year, the January 6th committee captivated the country with its public hearings. In a series of presentations, the committee presented its case against Donald Trump and the big lie. Some of the most striking testimony came in the surprise hearing where former Trump White House aide, Cassidy Hutchinson, detailed Trump’s erratic behavior on January 6th and the extent to which members of Trump’s orbit anticipated the chaos of that day.

Cassidy Hutchinson:

The President said something to the effect of, I’m the effing president, take me up to the Capitol now. To which Bobby responded, Sir, we have to go back to the West Wing. The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, said, Sir, you need to take your hand off the steering wheel. We’re going back to the West Wing. We’re not going to the Capitol.

Preet Bharara:

Here’s how Joyce and I characterized Hutchinson’s testimony.

When we’re taping the show a year from now, or 16 months from now, and if it turns out that an indictment is brought by the Justice Department against Trump, which I’m not saying is by any means assured at all for a variety of reasons. But if we start moving in that direction, or at least it looks like there’s a much fuller, more aggressive criminal investigation of Trump and others in connection with January 6th, do you think we’ll be saying that a turning point, an inflection point in all of this was Cassidy Hutchinson’s testimony?

Joyce Vance:

I think that that’s fair. And it was a turning point certainly in the public’s perception. Who knows how responsible her testimony was for the movement that we’ve seen in the polls where, for instance, now a majority of Americans think that the former president should be held accountable. But it was perceptively a turning point for the committee to have someone that close to the presidency speak so directly and so bravely. And frankly, part of the appeal of her testimony was that she was young. She has a long career ahead of her, and she made herself available to testify when more senior, more responsible, more experienced people had essentially stonewalled the committee. So yes, that’s definitely a moment in history.

Preet Bharara:

The committee also highlighted how Trump did nothing as the violent mob overran the capitol.

What’s crazy to me is, forget he’s the President of the United States with unique ability, not just as the president and the commander-in-chief, but also because he has unique, for want of a better word, cultish hold on these followers. And we heard testimony about this as well. They listened to him. They listened to him when he said, Go to the Capitol. And they listened to him ultimately when he said, Go home. Even though he was reluctant to say that, and it was too long of a delay. They listened to him. And the fact that he knew they listened to him and he wanted the thing to be done and didn’t do anything in the face of knowing that there were guns, knowing that there were people who were harmed, seeing the images unfold on television, which is mostly what he was doing, watching television that afternoon. It’s not even clear to me, separate and apart from his duty as a commander-in-chief and leader of the country, what rational normal person doesn’t try to act.

Joyce Vance:

That was such a good closing argument. I feel like Lisa Monaco maybe should knock on your door as she looks to staff up her case.

Preet Bharara:

And later in the year, the committee made history when it issued a subpoena to former President Trump.

The other question I have with I respect to Donald Trump testifying is, if he’s proud of what he did, and he says over and over again, he did nothing wrong. He loved the people who marched on the Capitol and rioted at the Capitol. He said, I love you to them on January 6th. He’s dangled pardons for not some of them, but all of them for the conduct they engaged in. Even though many of them have been convicted and many more will be convicted, of violating federal criminal statutes. Why not just come to the committee and explain forthrightly what you did and why it was right? How come his base, how his supporters, are not disappointed that he’s not taking his seat and proudly proclaiming his patriotism in support of what happened on January 6th?

Joyce Vance:

There’s one little problem for Trump with coming in and testifying, and I think that we sometimes talk about the fact that he’s not very smart. I give him credit for being smart enough to appreciate that nothing good happens if he testifies particularly under oath, but even not under oath, because the questioning will be skillful. It will reveal the fact that there are discrepancies in his story. And I think Trump runs a very real risk if he testifies and if the people in his base hear the testimony. I guess that’s a big if there. But there’s a real risk here of exposing the truth and of exposing his failures. Because one thing that he can’t do is deal with the factual record. I mean, it’s easy for him to say when he’s on a rally stage or when he is just spewing on his social media channel, for him to tell lies. But when he’s confronted with the truth in person and asked to respond, he looks very weak if he just denies documented truth that can be presented to him. I think that’s a risk he can’t run.

Preet Bharara:

But on the other hand, Joyce, huge ratings. Lots of people would tune in for the testimony of Donald Trump.

On Stay Tuned, I spoke to Representative Jamie Raskin of Maryland, a key member of the House January 6th committee. He talked about the committee’s goals and its impact.

Jamie Raskin:

We have no charge to prosecute or convict anyone. Our only charge is to get at the truth. And that’s what Donald Trump decreed could not happen, which is why his cult followers in the GOP rejected their own proposal when we agreed to it, when Trump said no, he didn’t want any investigation at all. And if I had done what he did, I would not want any investigation at all either.

Preet Bharara:

Do you think you’ve moved the needle with respect to public sentiment among independents and among Republicans?

Jamie Raskin:

Well, I know we have both anecdotally, by virtue of the emails and the letters I get from independents and Republicans who just tell me they’ve had it and they can’t take it anymore, and they did not sign up for this kind of nihilism and authoritarianism. And I know it also from the public opinion polls, which show that more than two-thirds of independents reject the big lie and reject the insurrectionist politics that the GOP has unleashed against us. I hear from Republicans, not as many, but I do hear from Republicans, and I know that there has been some erosion there. And people say, Well, still, the vast majority of Republicans embrace the big lie. This is true, but we don’t need all of them…

Preet Bharara:

To every little bit helps.

Jamie Raskin:

… To decamp. But yeah, well, if we get two or 3% of them to come on over, 4% of them are going to come on over with Liz Cheney and Mitt Romney and Adam Kinzinger. That’s great. I don’t know that the Republican Party, which is already a minority party and a shrinking minority party, can withstand those kinds of losses.

Preet Bharara:

Trump’s legal problems only widened as the year progressed. In August, FBI agents executed a search warrant at Trump’s Mar-a-Lago residence that uncovered classified documents that should have been at the National Archives.

Does this kind of search, which some people call a raid, does it strike you in any way as being heavy handed? Or is it, on the other hand, evidence that no one’s above the law?

Joyce Vance:

It’s evidence that no one’s above the law. And look, let’s be really clear about what yesterday was. It was a good day for the rule of law. It was a day that showed that even though Trump is slippery and maybe even Teflon coated when it comes to the criminal justice system, and even civil law, that yesterday the law applied to him just like it applied to anyone else when there’s probable cause to believe that there’s evidence or fruits of crime in their house. And he gets searched.

And it doesn’t look heavy handed to me. Heavy handed, although on occasion this can be warranted, and I think most federal prosecutors don’t do this unless it’s warranted. But heavy handed might be a pre-dawn raid, a no knock where your door gets kicked in, right? This was a couple hours of notice to the Secret Service so they could prepare. I suspect that they timed the search warrant to take place when Trump was not at Mar-a-Lago, to avoid the specter of him being removed from the residence to secure the premises prior to the search. It looks to me like this was done in a respectful, diligent manner.

Preet Bharara:

A debate soon emerged over whether the documents in Trump’s possession were somehow automatically declassified, as some claimed. I spoke with Michelle Flournoy, the top national security expert who served as the undersecretary of defense for policy from 2009 to 2012.

What do you make of all that?

Michele Flournoy:

Well, as someone who’s held a security clearance and has had to sign all the associated paperwork and go through all of the training and briefings on how you handle it correctly, the removal of classified information and the storage of TSSEI or top secret compartmented information, which is the most highly classified information, in a personal safe; that’s not in a skiff, that’s not in a validated, secure facility, to me, that just it’s potentially endangering national security. And I don’t believe that the president has the sort of declassification authority or that it was properly exercised to say, Okay, we’re going to treat all of these nuclear secrets or these documents related to negotiations with North Korea or whatever else is in that stack. I don’t think it was handled properly. If it were anybody else but a former president, they would be facing criminal charges now for this behavior.

Preet Bharara:

The Mar-a-Lago search unleashed a legion of legal battles over unsealing the search warrant and related documents, the appointment of a special master to review the seized materials, and the propriety of the search in the first place. In November, attorney General Merrick Garland appointed a special counsel to oversee the department’s Trump related investigations, the Mar-a-Lago documents and January 6th probes. We’ll continue to cover these cases in 2023.

Better domestic news came in August when Biden signed the Inflation Reduction Act into law.

Joe Biden:

And let me be clear. This bill would be the most significant legislation in history to tackle the climate crisis and improve our energy security right away.

Preet Bharara:

I spoke with Jennifer Granholm, the US Secretary of Energy, about the historic achievement.

This got passed in the House, passed in the Senate. Some people were surprised by that. And it’s becoming law. But the way it’s going about making all this progress in the areas that you’ve mentioned is through tax incentives rather than tax penalties. It’s almost all carrot and no stick. And so my question is, Why don’t we always do that? Does that make it a better policy and a more acceptable policy?

Jennifer Granholm:

Well, here’s what I’d say. I like the carrot approach, because you get much more buy-in from people. People see it as an opportunity rather than a punishment. There is a little bit of a stick in here. It’s not just a little; there is the first time we’ve ever put a fee on methane. Methane, of course, being a very potent greenhouse gas that often results from the extraction of, for example, natural gas and oil. So there is a penalty. That piece of things, there’s a penalty.

And the regulatory side is important, but when you are talking about the level of investment and deployment that’s necessary, having carrots that incentivize the investments is very effective. And we’ll see, the proof will be in the pudding, but these are very generous incentives to be able to get there. This is why we’ll be able to see the level of carbon pollution reduction and addition… I mean, we’ve got to triple, essentially, almost triple, the size of our electric grid with clean energy by 2050 to reach these goals. By 2030 alone, it’s going to be a $27 trillion global market for the products that will reduce greenhouse gas emissions. Oh my gosh, what an amazing opportunity for businesses.

And so incentivizing the business community to really dive in to clean energy deployment is an effective strategy. And we will see, I think, massive improvement in adding clean energy to the grid as a result of this bill.

Preet Bharara:

In September, thousands of miles away in Tehran, Iran, a 22-year-old woman named Mahsa Amini was killed in police custody after she had been arrested and beaten for allegedly improperly wearing her hijab. Amini’s death set off massive protests around the country demanding women’s freedom. Foreign policy expert Karim Sadjadpour, joined me to discuss the scope of the protests on Stay Tuned in Brief.

Karim Sadjadpour:

So reports suggest that these protests have happened in over 80 cities throughout the country. It’s difficult to get a sense of how many people we’re talking, but certainly in the hundreds of thousands. And the bigger picture is that what’s somewhat unique about the Islamic Republic of Iran is it’s not only politically authoritarian, but it’s also economically and socially authoritarian. They don’t only say you’re not free to express yourself politically, but they police your life socially. You can’t go out in the streets easily with your boyfriend or girlfriend, what you listen to, what you watch, what you drink. And then economically, it’s just one of the worst managed countries in the world. And so for that reason, there’s this collection of grievances that people have, which span politics, economics, and social.

Preet Bharara:

Because these protests were provoked by a social issue, are the participants in the protests, generally speaking, more diverse? People from lower incomes and higher incomes? And does that give it more force?

Karim Sadjadpour:

So the most vivid videos and images of these protests so far have been young women. And one of the powerful slogans to come out of these protests has been this chant, which means woman, life, freedom. I would argue though that if these protests are going to lead to any type of change in Iran, the burden can’t only be on these young girls. And obviously it’s not just young girls. You have young men as well, and as I said, in a diverse array of cities and social classes. But I think if these protests are going to be more impactful, you may need to start to see strikes from the merchant classes, the bazaar, from oil workers. These were the types of highly impactful tactics which helped bring down the regime in 1979, the Shah of Iran.

Preet Bharara:

In October, political turbulence enveloped Britain. Shortly after Queen Elizabeth passed away on September 8th, the grieving nation faced another change in leadership as Liz Truss, who had just replaced Boris Johnson as prime minister, stepped down. Her 45-day tenure is the shortest in UK history. Truss was succeeded by Rishi Sunak, the country’s first non-white prime minister.

Rishi Sunak:

But some mistakes were made. Not born of ill will or bad intentions, quite the opposite in fact. But mistakes nonetheless. And I have been elected as leader of my party and your prime minister in part to fix them.

Preet Bharara:

I spoke to Financial Times editor and reporter, Ed Luce, on Stay Tuned in Brief, about the country’s turmoil.

So does Prime Minister Sunak benefit from the fact that he had a very unpopular, historically unpopular predecessor, or did she bullocks things up so much that he’s in a lot of trouble? And I want you to appreciate my use of bullocks.

Ed Luce:

Yeah, I was going to give you an A-grade. Bullocks, I was impressed by that. Well, the first rule of jobs, as you know, is always follow an underperformer.

Preet Bharara:

Yes.

Ed Luce:

So he starts off in a relatively good place. He’s followed arguably four underperformers. So an even better place. It’s a low bar to sort of being an acceptably competent prime minister. Unfortunately, for him though, he inherits finances, an accounting situation if you like, that is really unenviable. If he wants to please the markets and stabilize the bond, the guilt markets, as they’re known in Britain, the bond market, government bond markets, and the pound, he has to be fiscally responsible. Which means spending cuts and tax increases. And no politician ever got popular doing either of those things, let alone both at the same time. But if he doesn’t do that, that then the markets will resume their tumbrels and they will decapitate him at the guillotine just like they did Liz Truss. So he’s got a horrible choice. And I suspect the only one that’s realistic, is to be fiscally responsible and politically unpopular.

Preet Bharara:

Domestically, a pivotal moment of this year was the midterm elections. Democrats performed exceptionally well for an incumbent party in a midterm election, with big wins in key battleground states. And after Reverend Raphael Warnock won his runoff Senate race in Georgia, Democrats secured a solid Senate majority with 51 seats. I spoke to political reporter, Jonathan Swan, about what the midterm results mean for the Republican Party.

Are there signs that within the Republican establishment, I don’t just mean elected officials, but also the conservative media establishment, Fox News and other places, are you detecting any kind of shift away from Trump and towards DeSantis?

Jonathan Swan:

Oh yeah.

Preet Bharara:

Describe that.

Jonathan Swan:

I mean, among Republican elites. Well, the shift has already happened, right? The shift happened about a year and a half ago. It started to happen. Murdoch turned against Trump. You started to see very negative coverage of Donald Trump in the New York Post and the Wall Street Journal editorial side of things. That’s been going on for a long time. Fox News in the daytime hours has been turning against Trump and boosting DeSantis. You’ve seen a shift in tone in their morning Fox and Friends show with Steve Doocey becoming quite anti-Trump. And so you are seeing the shift happen.

What hasn’t shifted yet, and I don’t know whether it will, is the really important piece of the Fox real estate, which is primetime. You haven’t seen Laura Ingram, Sean Hannity or Tucker Carlson turn on Trump. And I think if you do see that, that will be meaningful with Republican primary voters.

And then you’ve got the sort of conservative elite. The donor community is with DeSantis. I mean, the big end donor community, they’ve had enough of Trump largely. Now, not many of them are brave enough to come out and say that yet, except for Ken Griffin, who’s is a big deal donor who’s done that. But you may start to see now more donors emboldened to come out and sort of say, We need to move on from Trump. But a lot of these guys still have scar tissue from 2016 where they threw everything. A lot of these donors spent quite a bit of money trying to beat Trump and got humiliated. So they’re quite reticent to do that. And then you’ve got these conservative influencer activists; there are some of them who have already sided with DeSantis. There’s still a lot of people who are privately against Trump but afraid of going against him publicly, because there is a disconnect between Republican elite opinion and the base.

Preet Bharara:

Yeah.

Jonathan Swan:

It just is. And I constantly talk to these Republicans in DC, this professional Republican consultant class. So they’ve got their views and whatever, and none of them were there two months ago in the stadium arena in Wilkes-Barre, Pennsylvania. 10,000 people pack to the rafters, fervent Trump fans. And just complete different universe. So he still has a very, very strong base. And there’s going to be a lot of people who are saying, Rest in peace, Donald Trump. This is the end of Donald Trump. It’s completely misguided, in my opinion. I don’t think we’ve seen any evidence to support such declarative statements.

Preet Bharara:

You don’t see any fatigue in Trump’s base?

Jonathan Swan:

In his base, not a huge amount.

Preet Bharara:

No.

Jonathan Swan:

Not a huge amount. It’s not coming through. I mean, there has been a little bit of slippage, but the strongest fatigue is among Republican elites.

Preet Bharara:

As Jonathan says, it’s hard to know what the future will hold for Trump. He still has a great deal of support among his base. But the midterms have left me feeling hopeful. Hopeful that hard work can pay off, that the efforts of organizers and activists and young people and new voters can make a real difference. Because the reality is, that people are working to make our country, our democracy and our world better every day. Especially when there is so much bad news, so much violence, and so much cruelty, it’s important to find and listen to those voices.

So with that, I want to share a few moments from guests this year that have struck me and stuck with me. Cognitive scientist and fellow podcaster, Maya Shankar spoke with me about the importance of change and why we shouldn’t fight it.

Maya Shankar:

If there are people who are looking to inspire more changes in their lives, and fear is a reason why they’re not pursuing those things, which I think was part of your question. One piece of reassurance that I can give to those listening is that by and large, every person I’ve interviewed for the show has in some way felt that they’ve grown from a change experience. Or that they’ve been humbled by a change experience, or they’ve developed a deeper sense of self-understanding as a result of a change. Or they have revealed to themselves features of their personality that were previously undiscovered because the situation never called for it. And so there is an element of discovery that accompanies every change, that can fill us with some degree of delight and optimism and curiosity. And I sometimes remember that when I’m resistant to a change. But then I remember that it can really alter me in a profound way that at a minimum leads me to understand myself a bit better. Even if hedonically there are some negatives, a deepened self-understanding is enriching in its own right.

Preet Bharara:

And last but certainly not least, I’ll remind folks that we had our first live show since the outbreak of the pandemic. It was amazing to see so many of you in person and an honor to speak with Gary Kasparov, Lieutenant Colonel Alexander Vindman, and Ben Stiller.

Stiller, the writer, comedian, and refugee advocate, spoke about the importance of comedy during difficult times.

You’ve said that even in this humanitarian work you do, humor is important, and you find a way to make people laugh. Explain that.

Ben Stiller:

I think you just have to try to somehow connect with people. I mean, a lot of the work with UNHCR is just trying to tell stories of people who we see as statistics mainly. When you hear there are 80 million displaced people in the world; 80 million, it’s just such an overwhelming number. Unless you can humanize that statistic in some way; tell their story, show them as a mother or father in a family who we’re dealing with the same issues we’re all dealing with. And part of that is humor. So I still haven’t figured out how to be funny in that way, honestly. I’m still trying.

Preet Bharara:

My suggestion would be to go blue.

Ben Stiller:

Okay. Don’t issue me a subpoena.

Preet Bharara:

If you have bad things going on in your life, and you’ve had that on occasion, you’re a human being, with relationships and career issues. But then you got to sit down and write or direct something that’s supposed to be silly and funny. How hard is that?

Ben Stiller:

Well, you have to have fun while you’re doing it. That’s the key.

Preet Bharara:

But if you’re sad, if you happen to be in a sad point in your life, and your assignment is to do funny stuff at work, how does that go?

Ben Stiller:

Not great.

Preet Bharara:

Yeah.

Ben Stiller:

I mean, that’s what professional comedians do.

Preet Bharara:

Yeah.

Ben Stiller:

I mean, smile, though your heart is breaking.

Preet Bharara:

Yeah.

Ben Stiller:

I mean, it’s a tough job, but I think the best people take their experience and take their pain, and they use that in their work, in their material. That’s what you do. Because comedy is tragedy plus time, I think was the adage.

Preet Bharara:

Yes.

Ben Stiller:

That’s not really that simple, but it’s about personally connecting with something that’s very true for you, and that’s where you find the universal connection with people.

Preet Bharara:

So here we are. We’re saying goodbye to 2022, and looking forward to what’s to come in 2023. We’re entering the second half of the Biden-Harris administration now with a divided Congress. A number of investigations relating to Donald Trump are ongoing, and the war in Ukraine rages on.

For those of you who have written to us with your questions, your stories, your activism, and your ideas, we thank you for your engagement and for your passion. Happy holidays, happy New Year, keep the faith, and as always, stay tuned.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @preetbharara with the hashtag, #askpreet, or you can call and leave me a message at 6-6-9-2-4-7-7-3-3-8. That’s 6-6-9-2-4-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staten, Noa Azulai, Nat Wiener, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.