Preet Bharara:

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

Jessica Tarlov:

I know when I have been able to have an impact on colleagues, and I’ve seen that, where they have updated their beliefs in the way that they talk about certain issues because of information that I brought to the table.

Preet Bharara:

Welcome to Stay Tuned. I’m Preet Bharara. My guest this week is Jessica Tarlov, also known as the lone liberal on the Fox News Show, The Five. She also co-hosts the Vox Media Podcast, Raging Moderates.

Today, she joins me to discuss her new book, I Disagree: Winning Arguments Without Losing Friends. That’s coming up. Stay tuned. Jessica Tarlov, welcome to the show.

Jessica Tarlov:

Thank you so much for having me.

Preet Bharara:

I’m very excited to talk to you about a lot of things. You’re going to teach me how to argue, how to disagree.

Jessica Tarlov:

You’re going to teach me how to argue.

Preet Bharara:

No, no. Well, but here’s the thing. I should mention why I’m saying that. Congratulations on the book.

Jessica Tarlov:

Thank you.

Preet Bharara:

So, yeah, I know how to argue, but your book is called I Disagree, and the subtitle is Winning Arguments. Okay. Yeah, I’ve done that. But Winning Arguments Without Losing Friends.

Jessica Tarlov:

Oh, that’s where I’ve got you.

Preet Bharara:

That adds a layer of difficulty. So we’re going to talk about the book. We’re going to talk about arguments. We’re going to talk about what constitutionally makes you able to be on The Five, outnumbered by the conservatives, how people react to that, current politics.

But before we do any of that, so I get your book. And before I get to the introduction, lots of authors have this thing at the front, and they quote their dad, or they quote Ben Franklin, it’s Republic, the same stuff. My greatest shout out that I’m proud of and will be till I die is Springsteen from the stage.

But if there’s going to be another shout out, and this is for everyone to see in this book for all time, I would not have guessed it comes from another person who… This is a big deal in my book. Quentin Tarantino is a fan of Jessica Tarlov. Can I tell the listeners what he said?

Jessica Tarlov:

I would love you to tell the listeners what they said.

Preet Bharara:

Quentin Tarantino, by the way, in an interview with Bill Maher, Tarantino says-

Quentin Tarantino:

Fox does hire Jessica Tarlov and they put her on their big show and she says what she says against the Fox audience, against the panel, and especially against Jeannine Pereiro Monday through fucking Friday.

Bill Maher:

Yup.

Quentin Tarantino:

As far as I can see, that is the hardest job on television. And also, maybe not Janine, but they all like her. They don’t go ballistic on her. They keep it respectful. And so here’s the thing. One, she’s amazing, and I think it’s one of the hardest jobs that there is out there. But two, how come there isn’t that person on MSNBC?

Preet Bharara:

My friends in MSNBC are going to be annoyed with me, but that’s pretty cool. When you heard about the Tarantino calling you amazing, what did you think? Are you getting cast in something?

Jessica Tarlov:

No. No luck there. Just living off the excitement fumes for the rest of my life from that one. It was one of those, and it wasn’t a picture or a video. So I didn’t really think that it was AI, but you hear something like that and you think, “Well, this just can’t be real.” And then you realize that they’re doing it on Club Random. So they probably are some degree of drunk and high while they’re having this conversation, which explains some of the accents.

Preet Bharara:

Well, but that’s probably more truthful.

Jessica Tarlov:

No, his core is thinking about me, which is a great affirmation of the work. And I just loved it. And I thought this is such a fun way to start the book and to also signal to the reader that we’re going to have some fun in this book. I really wanted it to be conversational.

Preet Bharara:

It is very conversational. It’s very easy to digest. So I got people listening, and they’re going to be asking the same question. How do you do it? Why do you do it? Are you excited about doing it? Just tell us about how this works for you.

Jessica Tarlov:

So I split the liberal seat with Harold Ford Jr. So he does it half the week, and I think that actually makes a huge difference for everybody’s mental health. If it’s going to be one on four, you should only do that two to three times a week.

And I think also for our audience, Harold is an old school blue dog Democrat. And I’m still from the center wing of the party, but I would say to the left of Harold. So the audience gets a taste of a little bit of different politics and then also a very different style of argumentation and relating to the conservative co-hosts.

The question, how do you do it is the reason that I wrote the book. And I’ve been co-hosting The Five for four and a half years now and was just over the years I’ve heard from so many people of all different political persuasions, the ones who say, “How do you do it?” Exasperated. The ones who say it, “How do you do it?” Genuinely interested. And the ones who love Jesse Watters and still are wondering how do you sit there and do it and with a smile on your face.

So it’s not drugs, which I made clear in the book. It’s a natural smile sheen that I have, but I really wanted people to understand where I came from and how important and seminal experiences from what my dinner table was like growing up up through my education and my work before getting into media have been in making me into this data-based storyteller that wants to have tough and contentious conversations with people about our toughest political topics and still be able to have relationships, because I think it is what is missing in a lot of ways from society right now and that people are desperate for it, even if they aren’t expressing it actively, that it seeps out in different ways, not necessarily that you’ve stopped talking to your family member or lost your friends, but that it’s too fraught and difficult for us to be able to talk to each other.

Preet Bharara:

Yeah. So a lot of what causes people to raise their eyebrows or be perplexed or to be impressed or to think all the things that they think about your participation in this nightly debate turns on what your goal is.

And so, one of my favorite sentences in your entire book, and it comes very early, it’s in the intro, and I’m not sure that I thought about it this way. You write, “I don’t view my job as changing minds. I view it as opening them.” That’s actually pretty profound because, probably, most people as they’re thinking about your job and what you’re doing and why you’re doing it are probably a little bit marveling at it, which not to underestimate the job you do, but marveling at it because they assume that you’re there to change minds, and you’re trying to win every argument.

Even for example, I suppose on abortion when there are people who have religious faith-based beliefs from the time that they were children up until whenever you’re talking to them in the ’50s and ’60s, and that’s just not plausible. When did you come to the realization that your job was opening minds rather than changing them?

Jessica Tarlov:

Probably when I realized how hard it is to change a mind-

Preet Bharara:

Change your mind, right.

Jessica Tarlov:

… and that I should shoot for something more plausible because everybody likes to feel like a winner. And I come from a very liberal background, didn’t have a lot of experience with conservatives. And if I did, they were more like Romney Republican types.

And Trumpism is a whole new world, as I think it was for a lot of us in understanding the political undertones that were permeating parts of society that we just hadn’t been paying much attention to until the 2016 election.

And then I would argue it has grown into something even more malignant as time has gone on. But I had no exposure to people who were pro-life because of their religious background or what gun culture actually was in this country or talking about service and patriotism with veterans who had had their legs blown off, like one of my colleagues, Joey Jones.

And it really started to recenter the way that I thought about the point of having these conversations. And I don’t want for you or your listeners to think that I think I’m doing something like curing cancer or something that profound. I know that I talk on TV for a living, but rethinking what kind of impact you can have by being a representative of a different ideological viewpoint and being data-based and firm but kind, I read it as a sharp but not cruel, and pushing back against stereotypes that have really taken hold, especially in the conservative community about who liberals are, what they think, how they look, and how they present has been a really exciting challenge.

And I have seen the effects, positive effects, since I rewired myself to be focused on the opening of the mind to an alternative point of view. And throughout, I disagree. I use a lot of social science. I’m a researcher by trade. So I wanted there to be a lot of data in here.

But I was really shocked to learn about how the body physically reacts to information that flies in the face of long-held beliefs, and that threat reflexes go up and pain sensors even. I thought like, “Oh, actually a lot of these conversations make more sense,” once I consider the fact that I’m talking to someone who’s actually in pain from hearing what I have to say and all of the data that I have to back up my points.

So I do think that we would all be a lot happier and more effective if we focused on the opening of the mind versus the changing. And that’s not to say that opening of minds over the course of time can’t lend itself to change. You get there.

Preet Bharara:

So you have a PhD. Why don’t you go by Dr. Tarlov?

Jessica Tarlov:

So I started doing public-facing work. It wasn’t my main job. I’ve only been in media kind of full-time for a year and a half. But when I started appearing on television, I was in my early 30s, and I knew that my persona already came off a little Doogie Howser to people anyway. Not that I was too young to be able to do it, but it was like this girl with the glasses, and she has a PhD, and she’s telling us all that we’re wrong about everything, and that it would feel like a bit much if I then said, “Call me doctor.”

And I also had one of those instances where you’re on a plane, and they actually said, “Is there a doctor on board?” And I was across the aisle from this couple and the wife was just hysterically laughing. And the husband, he looked so distraught and scared about what was going to happen.

And she was just like, “Oh, I can’t wait. I hope they come over here.” And he’s like, “Stop it, stop, stop, stop, stop.” And she’s like, “I can’t wait. They’re going to come over and say, ‘We need your help and you’re going to have to tell them that you’re a specialist in the Ottoman Empire. You need to stop using the doctor sign.'” So I don’t use it because I can only help you get out of a political jam. I can’t save a life.

Preet Bharara:

It’s like medical doctors, Jill Biden and Henry Kissinger, and let’s just leave it at that group.

Jessica Tarlov:

Okay. What’s your rationale?

Preet Bharara:

My father’s a medical doctor. So part of it is probably the respect I have for people who actually have gone to medical school and use the word doctor means something. Look, it’s a norm. We talk about norms. The word norm doesn’t have a value attached to it. So maybe it’s a stupid norm. And maybe it’s a little bit a majoritarian thing, and it’s a peer pressure.

So if everyone with a PhD went by doctor, then maybe it’s okay. But it’s like a few people go by doctor, and so judgments are made, and those judgments are probably unfair. In life generally, there are a lot of obstacles and things you have to get through because people make assumptions about you. If you go by doctor without a medical degree, that’s just another layer of crap you have to deal with. So it’s a pragmatic view, not a judgmental one.

Jessica Tarlov:

Yeah. I like comma PhD. I don’t do it, but I think it’s elegant.

Preet Bharara:

Okay. Well, I don’t have one. So I’m just-

Jessica Tarlov:

Well, you’ve got other stuff.

Preet Bharara:

I’m just Mister. So I want to go back to this concept because I think it’s super important of opening a mind. What does it mean to open a mind? Does it mean among other things, because I think you said this in your answer, that you get someone to at least respect your point of view, hear your point of view, concede some of your point of view, accept that there are normal human beings who have your point of view. What does the open mean?

Jessica Tarlov:

All of the above. And it’s different depending on who you’re reaching and talking to. But I would add one to the list, which is for you to be viewed and considered as an important part of the conversation, or I say the table because it’s the table at The Five, and earning your spot in those conversations. And, of course, people who read this book aren’t going to do the same job that I do.

They have other hills to climb in their own lives. But for people to understand you as a good faith actor, I think, is so important, especially with how dirty our politics are right now and how often people are just trying to land cheap hits or show up on other people’s platforms or however you want to say it to deliver this big haymaker that’s going to go viral or whatever it is, that to be there for genuine reasons feels like a great affirmation of the thesis of the book, which is that these discussions are important and that when you’re ready to do them, that hopefully the tips and tricks in here can help you do it better.

But it matters a lot to me that Fox viewers, not all of them obviously, but majority of them do see me as a valued part of the discourse and the table.

Preet Bharara:

Well, is the important part of that before you can open someone else’s mind that you should have and be able to demonstrate that you have an open mind? I assume you agree with that. And if you don’t, let me know. But if you do, not only for yourself, but for other people who are trying to have conversations with those they disagree with very, very strongly, even really, really, really deeply going to the core of their belief system, how do you show a person who’s on the other side of the spectrum ideologically or on a policy that you have an open mind?

Jessica Tarlov:

Well, I think there are two camps with this or two things that I’ve employed that I think are important. The first is to genuinely tussle with their ideas and to spend time looking at them and considering their sources.

I always say one of the strangest algorithms out there because I need to not only prepare for what I want to say. I need to understand what it is that my colleagues are seeing and how they’re creating their opinions or what’s informing them. So I’m all over the spectrum.

And I write about in the book these common policy positions or political areas that we talk about all the time, like the Big Beautiful Bill, for instance, where it just gets thrown around, and everyone has in their corners where they say, “This is a complete abomination,” or, “This is the greatest thing in the world because we’re extending our tax cuts and that’s all that matters,” et cetera.

And so I always try to really actually engage with the source material so that I can understand how someone like Lisa Murkowski, for instance, can get to a yes, because she’s not someone who I see as a craven Republican, but she’s someone who voted to convict Donald Trump after the January 6th insurrection.

That feels like the least that I can do to show up to a conversation, having at least tried to understand their point of view and what the material actually says. The second piece of it, and this goes for any of our interactions in life, is to know when to talk and when to listen. And we are living in a society right now that rewards constant jabbering, and it’s just nonstop.

No matter what type of relationship we’re engaged in, it can be your personal relationships, romantics with your family, your colleagues, people that you meet on the street, in the subway, wherever it is, people really want to be heard out without being interrupted and jumped all over.

And one of the anecdotes that I use in the book that really taught me this lesson, and it didn’t happen that long ago, it happened just a year ago after Charlie Kirk was murdered, and I’m thinking about how could I possibly talk about something so personal and difficult on air in front of four million people? And the president has said we’re at war, everyone is grieving, it’s a complete atrocity.

What happened? And there’s also a political point that I want to convey, which is that a majority of political violence is perpetrated by the right. And how do you think about making both those points to say, “I knew Charlie. I saw him just a month before he was killed. He was a dad. He was being nonviolent.” You can hate his views, but the guy wasn’t being violent, and then also get in the rest of it.

I ended up in a big disagreement, which is a gentle term for it, with one of my colleagues, with Greg Gutfeld, who talked at me for about four minutes straight, and it got very personal, like, “Jessica, Jessica,” to the point that he realized that he was doing that and apologized on air. And I remember thinking, “I have a rebuttal to this. I have something else that I would say, but I want to just listen. And you will have another crack at it or bite of the apple the next day or the day after.”

We have since gone on to talk about political violence a number of times, and it has gone smoothly, I think, in large measure because I knew when it was the right moment to keep pushing and when you have to relax and let people carve out space for themselves and their ideas.

Preet Bharara:

You say in the beginning of a chapter of the book about your colleagues on The Five that they’re all dedicated and thoughtful. Not everyone would agree about every one of those people on the second point, but I’m not here to argue about that.

But from time to time, you must come up against a non-thoughtful person who has a view that it’s otherwise arguable or defensible. And my best friend from college is a very conservative Republican. His best man at his wedding, and people are surprised about that, and we’re proud of our friendship. But he’s over here, and I’m over here. But he’s really smart and knows how to make arguments and knows how to use data and also knows how to tell stories.

But then sometimes you talk to somebody who has a view that there’s no evidence they came to that view in a well-considered way. They have no responses to the points that you make. Do you just avoid those people? Because we all know people like that, and we know people like that on our own side of the ideological spectrum. What are the strategies to talk to somebody who’s not really come to their positions with any kind of deep care or rigor?

Jessica Tarlov:

Well, I think that some of the same rules apply, like being generous and making time and space for them to put their positions out there. Because no matter where you’re coming from, we all react poorly to being cut off or talked down to. And that was the main takeaway from the 2024 election and all of those autopsies, which are liberals are a bunch of elitist scolds essentially, and I don’t want to be that way, and I don’t want people to think that I think that they’re dumb, frankly.

I don’t know who that benefits, and if there is going to be an opportunity for opening a mind to something else, I don’t think that helps anything. So still letting people get it out and talk about it, but then pushing like, “Well, where did you see that? Did you see this part?”

I have found in talking to people who are putting forward ideas that are based nowhere in reality, that a lot of times they will admit, “Oh, I didn’t know that,” or, “I didn’t see that.” And when you are forming these arguments, and the way that I do it is… I read in the book about thinking in averages and not in anecdotes, and how that you can make an argument that feels as ironclad as possible, that if you’ve made space for them to be able to ask questions, then sometimes, they will.

There are some folks who are just totally far gone, and you make a decision about that. If it’s someone who’s in your family, you’re probably not going to disinvite them from Thanksgiving, and you’re just going to get on with it.

But I think that there are ways if you give people and treat them with respect, even if you are not always getting it back and you probe and you show that you are invested and interested and that you are willing to show your own work, that especially with conservatives more so than liberals, I find conservatives much more willing to admit that they might’ve been wrong about something, that they didn’t know something.

It doesn’t necessarily change their mind about how they feel about Donald Trump. I think we could talk about the big disconnect between the outcomes versus the love of the man or the belief in Trumpism, but I have had a lot of, “Oh, I didn’t know that.” And whether they went away and added it to the bank, I’m not completely sure. I know when I have been able to have an impact on colleagues, and I’ve seen that, where they’ve updated their beliefs in the way that they talk about certain issues because of information that I brought to the table.

Preet Bharara:

Yeah. The funny thing is, what often happens is, for myself, and you imagine what’s happened in the other direction, if someone is capable of opening my mind to their position, but I ultimately have the better position, that’s obviously very subjective, my position is going to get stronger because I will have heard the best arguments against my position.

And now, after that conversation with someone on the other side of that point, I’m armed better with greater ammunition, and next time I have an argument with someone less formidable than that person, I’m going to do a better job of the argument. And you can make that point in reverse, that if you are open-minded on whatever side, but we’re talking about progressives for a moment, and you pay some attention to what the other side is saying, and you watch people and you listen to people who you don’t agree with, you follow them on social media, which I do, but I have limits, they’re going to make your own point stronger. Why is it so hard for people to do that?

Jessica Tarlov:

I think, honestly, we’ve turned into a bunch of babies. No, for real. I have a four and a half and a two and a half year old, and talking to them about the difference, sticks and stones break your bones, but words will never hurt you, and to learn how to talk about feelings. My older one internalizes a lot of stuff. And we’re working on getting her to tell us about these things. This is like turning into a child therapy session, but you know what it’s like. She just started kindergarten.

Preet Bharara:

It’s a lot of overlap. There’s a lot of overlap.

Jessica Tarlov:

Yeah. It’s hard to create space for them to be themselves when themselves is just starting, and they don’t know what to do with the amount of feelings that are coursing through them, and they don’t always have the language skills to be able to express them.

But it is good prep territory, I think, for talking to people who have differing views and maybe have a viewpoint that is not rooted in reality or good data or facts or even experiences, but is a concoction sometimes of the deepest recesses of the internet. I wanted to add to your point about your arguments getting strengthened, because I definitely think that’s the case, but would say as well that one of the most important things that comes out of these discussions, especially if you are exploring them with people who might have one of these less reasonable point of views where you can’t even really trace how they got where they’re going, is that I think when you’re considering politics and why people make their political choices, that oftentimes understanding what someone is afraid of is the most important thing that you can do.

And you get that in those conversations. It starts to eke out. It could be anything from, and usually is some sort of economic impact when you’re talking about anything now in foreign policy besides people who might have a certain kind of phobia, whatever, an Islamophobia, antisemitism, whatever it might be. The way that they react to news of entanglements often is about a bottom line for them, right?

They don’t actually have some deep-seated feeling about that particular group. They just know that if the dollar’s going out the door that way, it’s not coming in my door this way, which is why the horseshoe of American politics for both sides is lining up so much, and learning to process people’s politics and the way that they see the world through what they’re afraid of has been very, very helpful for me in understanding the other side and honestly understanding other folks in this enormous tent that we’re managing on the left right now.

Preet Bharara:

I’ll be right back with Jessica Tarlov after this. So you used the word dumb earlier, and I think happily said you don’t like to call people dumb, which is something to be avoided. There are people I think who are dumb.

Point number 1 is I don’t know a situation in which It’s effective to call the person with whom you’re arguing dumb or to say their argument is dumb or to say anything about them is dumb. It doesn’t help you in any way, shape or form.

Second point, lots of liberals love to say and think that Donald Trump is dumb. I do not think Donald Trump is dumb. It also depends on what you mean by that. Are there certain topics on which he’s ignorant? Yes. Is he setting his ways on some things? Yes. But I’m sorry if a liberal thinks that a guy who cleaned Democrat’s clock a second time after being politically dead, deader than dead, as dead as you could possibly be politically, not dumb.

So my question is, putting aside certain things that you shouldn’t use, what are the kinds of arguments that you might make and that you should not make to a Trump supporter to open their mind as you put it in your book?

Jessica Tarlov:

Well, I think that casting Trump as part of a caste, caste system wise, not just a cast of characters, though it works both ways, of the whatever you want to call it, the Epstein class, the corruption class is very effective. And that’s why you see some of the top communicators, certainly on our side of the fence, like Jon Ossoff and James Talarico who have been talking about this have been able to be so effective and to bring disillusioned Republicans or moderates into their proverbial tent.

Preet Bharara:

Say specifically what it is that they do?

Jessica Tarlov:

They talk about a group of elites. They call it the corruption class or the Epstein class if you want to be going hard about that. But it opens the door for the idea that there are people of all political persuasions that are part of this group that doesn’t care about you and is rigging the game.

And once you can put a figure like Donald Trump, who you might have a super negative opinion about, but the person that you’re talking to doesn’t or has always seen what it is that they’re doing as distinct from other folks, then you can make headway. And I’ve been able to do this, especially with something like stock trading, which obviously what President Trump is doing is on another level from anybody else that would be on the list of electeds that are placing trades. But they love to talk about Nancy Pelosi.

And there’s the Nancy Pelosi stock tracker Twitter account and they talk about her freezer full of Talenti gelato and all of the ways in which she’s taking advantage. And this is how Bernie Sanders has always done politics, and it feels like it was just too early in 2016 for it to be effective enough to win the nomination, but it’s much closer to where people are today.

So I think casting Trump as part of a class system or a caste of people is very effective. Just calmly bringing up things that people might not know about, and I’m sure that you spend tons of time reading the news and scanning and there are stories that pique your interest that might not pique the average person’s interest. So being able to, after you have heard where they’re coming from, to mention these things or how a backdoor deal might have gotten Trump to make X decision that you might like.

If you want to say get over the ballroom, for instance, which I have heard a lot of, and I know that the ballroom will benefit Democratic presidents to come. I don’t know what it will be called. I doubt the Donald J. Trump ballroom. But to then bring up what’s under the hood there, who is donating to this? What might be happening? If you were so upset about Hunter Biden, let me just ask you these questions. We know about X, Y, or Z deals. We know now about Don Junior’s wedding being financed by Russians. Just putting this stuff out into the ether, but doing it calmly and in concert with being willing to call yourself out and call your own side out works very well.

Preet Bharara:

I’ve thought about this recently and the closest analogy I can come to is a circumstance that maybe a lot of people have faced where you have a very good friend who is in a relationship with someone who you think is terrible for that person.

So your buddy is dating someone you think is just not good for him or her and him or her and her or him and him. You would never take that person out to dinner and just say your girlfriend is stupid and a moron and a liar. You wouldn’t do that A, because it would shock the system and that person would immediately get up and leave or throw a drink in your face.

But you also wouldn’t let it alone because you care about your friend. But usually, there’s some middle ground. Does that make any sense? And what can we learn from that analogy about how to talk to people who support a person that we think is an abomination?

Jessica Tarlov:

It’s hardest to do that is when you also see that the person that you care about is unhappy. And that’s the tougher conversion moment because I feel like they get so dug in, especially if they feel consigned to this. And that’s why you have, in political terms, so many folks that are reticent to talk about what they’re experiencing because they feel that they have been so deceived or let down, and they are not eager to voice something like that publicly because they don’t want the onslaught from it.

And I think this is contributing to how burrowed people have been about politics the last several years, which makes a lot of sense to me, especially as we’ve been on a bit of a moral crusade about what’s right and wrong and seeing things in black and white, which I have always felt is an important part of my personality and my worldview.

But for the friend who you are trying to reach, I think similar principles stand that if you can highlight something that is good or a point of happiness or what you see in it that is a positive, that that can go a long way. That’s what I call the soft start, which is to build this connective tissue. And it can be through a humor, common purpose, recognizing what’s good in something that ultimately you think overall is not a net positive, but you can see those strands and then finding your way to a gentle conversation around the things that aren’t working.

And obviously how I would be on TV with HD lights and things like that is different than how I might necessarily massage something like this to a friend. But the principles are the same and that you do want to make people feel cared for and secure in the space so that they’re able to talk about their feelings.

And odds are with your friend if you’re going out to dinner with them and you have this level of concern that probably some of it resonates with them and that when you get them talking, they’re going to mention this stuff and then you just can’t be an asshole, which can be really hard when you get the opening.

Preet Bharara:

Well, you can’t do the, “I told you so.”

Jessica Tarlov:

No, not if you ever want them to leave or be friends again.

Preet Bharara:

But what you said was so interesting. So let’s say you have… So there are two situations to distinguish and you have to have some humility about it. So situation one is where your friend is in a relationship with someone you think is terrible for, I’ll use him because that’s the example in my head.

Jessica Tarlov:

Are they still married by the way?

Preet Bharara:

No, they broke up years ago.

Jessica Tarlov:

Oh, great.

Preet Bharara:

And I didn’t say, “I told you so.” At least I didn’t say it more than once. But hypothetical 1 is where your friend seems totally happy, and you think you know better and you need to check yourself a little bit if the person seems genuinely happy, but you’re thinking, “Well, there are going to be these incompatibilities later.” Who are you to judge someone else’s love? I don’t know. That’s difficult. But as you pointed out, if your friend is already unhappy but not so unhappy that they don’t want to leave, then your role is kind of different, and you can help your friend do the thing that makes sense to do and have a better relationship with a different person. I don’t know. This is turning into an interesting relationship show.

To me, what’s helpful about that metaphor is it puts you in the place of being someone who cares about the person you’re talking to. And a lot of these debates occur between people who assume they will hate each other or do hate each other without having met and without knowing anything about their lives, without knowing what kind of struggles they’ve had.

I see people on the left call people racist and don’t realize that they’ve adopted three African American children. People make assumptions about folks because they don’t necessarily care about them. They don’t have a reason to.

But if you begin from the proposition that you care about the person and you should care about everyone, and by the way, there’s a strategic value in caring about the person because if you care about them and it is apparent that you care about them and they believe you care about them, then you’ve made a lot of progress towards your goal, which is to open their mind. Fair?

Jessica Tarlov:

Very fair. 100% agreement about that. And it’s a little diabolical because you are creating an environment that makes it more plausible that they will change their minds and get to the place where you’ve been for a long time. You’re coaxing, lulling them into the comfort of telling us that their girlfriend’s mean actually. And she does this stuff that really annoys me, or Donald Trump is really mean, and he does this stuff that annoys me.

But something that I think is so central and that liberals miss in understanding conservatives’ attitudes about politics and also with Trump, and it floats around whenever he does something that we find inexplicable or how could they find this funny or charming? Where you say, “I guess we just have totally different senses of humor.” And this will happen sometimes. We’ll be playing a montage for The Five, like Trump at the midterm convention where he does the… And we all pray to President Trump, the best president of all time, and you got to vote, and you got to cheat like they do, and then the $5,000 bribe.

And my colleagues are laughing along, and I’m thinking what part of this could possibly be funny to you? Especially when we know that this is a person who has made it very clear that he doesn’t care by the means that he gets to winning. He would be perfectly happy actually if you would cheat and do it. And then I have to remind myself, which is a frustrating reality, but that politics is just not that serious to them.

And we treat it like a heart attack no matter what. And some of that I think is warranted because these policy choices have real implications and there are people who lose their healthcare, and there are kids in Africa who have passed away because USAID cuts have happened.

And I don’t lose any of that in thinking about how to communicate about politics. But in this instance, especially if you are trying to open a mind to a different point of view on politics or to your friend about their partner that you think it would be better served if you found someone else, meeting them at their level of seriousness gives you the best chance of getting in there.

And I have gotten that criticism. I knew with the subtitle of my book, Winning Arguments Without Losing Friends, that people would say, “Actually, I want to lose these friends. I’m better off because I don’t have these people in my life.” And I’m not here to force anyone into a relationship that they don’t want to be in.

I just wanted to give them a guide to building bravery and smarts for these conversations. But I think that we oftentimes recognize that that’s a reality about how they think about politics, but we don’t live by it, and we don’t communicate that way. And the hyperbole, like when you said we call them a racist and they have three adopted Black kids or throwing around Nazi and fascist, which they do too, but I can’t control their side of the street. I can only police mine.

Preet Bharara:

Yeah. Look, we treat politics differently. And just further what I was saying before about your friend and her relationship, it just seems to me if you think about these situations and try to find analogies in your regular non-political life, you do a better job of approaching political arguments. So, for example, there’s a lot of comedians out there and there are a lot of movies out there that purport to be comedies and not everyone likes all of them. I’m a big fan of Ted and Ted 2. That might surprise some people.

Jessica Tarlov:

No.

Preet Bharara:

Hilarious.

Jessica Tarlov:

It’s so funny. Yeah.

Preet Bharara:

It’s the funniest. But you know what? I don’t know if you know this, not everyone likes that humor. I think Adam Sandler is terrific. And there are things that other people love, and I might not like so much. And so when you apply that to Trump, I think it helps a progressive or liberal not to have an aneurysm.

Jessica Tarlov:

Yes.

Preet Bharara:

Every time Trump makes a joke and I see anchors on other networks, their heads explode when Trump says some stupid stuff, but they’re not all equal. So to me, when he talks about the things that you mentioned a minute ago, the best president ever, the expressions on the faces of the people who are commenting shouldn’t be equal to the expressions on their faces. Somebody said the worst thing that any president has ever said was when he posted that he was going to destroy a great civilization, Iran.

Jessica Tarlov:

Iran. Yeah.

Preet Bharara:

Okay. Okay. That one, your head can explode and your head should explode. Do you spend any time counseling your fellow progressives on letting some stuff go and how to prioritize outrage?

Jessica Tarlov:

By virtue of the broader conversation that we’re having about where to show up and how to show up. I talk to a lot of Democratic electeds about where’s good to go and do interviews and obviously having raging moderates, people stop by and you get a better feel for how they think questions should be answered and how effective it would be not just to a progressive audience, but a more mixed audience with some independence in it, some center left folks, maybe some moderate Republicans.

So yeah, I do talk to them about it. And you see also the frustration in them of the way that our politics works with the fundraising, the constant pursuit of another dollar, and it has a direct effect on how they see these media appearances. Are you going to come on so that you can get something for click-bait and then you can use it to fundraise off of? Or are you going to come on and show that you can actually have a conversation and build some sort of rapport and relationship with people who see the world differently, plus own a bit of real estate that you would like to partake in?

And I think sometimes people lose sight of that, that we’re oftentimes playing by old rules of who the gatekeepers are and that you get to decide who you platform and who has legitimacy. And it’s like Donald Trump, like you said, got elected again after people knew exactly who he was. They lived through the first four years of him. They saw January 6th. They saw all of the evidence brought forward in the cases against him over the course of the years that he was out of office, and they still picked that guy. So this idea of, “Oh, I don’t want to legitimize him,” he won.

Preet Bharara:

He won. We cannot talk about him.

Jessica Tarlov:

He won.

Preet Bharara:

Yes, I totally agree.

Jessica Tarlov:

And you can’t act like it’s not legitimate. The same thing with these other platforms. I don’t want to have a conversation with Candace Owens, but when you say, “Oh, I would never have her,” it’s like she has eight million subscribers or something. What do you have going for you? She has a whole cult.

Preet Bharara:

Great segue to your point and that other people make as well. If you want to make a dent in the political space, Fox is where you have to at least start. And whether it’s Fox or at least someplace where there’s an audience who’s never heard your point, hear your point. So there’s Bill Maher who… So I watch Bill Maher every week.

Jessica Tarlov:

I’ll be on Friday.

Preet Bharara:

Oh, you will?

Jessica Tarlov:

Yeah, I’m excited.

Preet Bharara:

A lot of liberals hate him, which is fine. All that’s fine. The reason I’m mentioning it is he makes this point. It’s the same point which is why maybe they were talking about it, Tarantino and Bill Maher at the beginning of this conversation at the beginning of your book. I see really conservative people go on Bill Maher, who notwithstanding what some progressives, think, Bill Maher votes Democrat, right?

He has problems with the left. Lots of people who are progressive have problems with the people way on the left. Mike Pence comes on. You name it, they go on, but he can’t get the same level of person on the left to come on the show. Why is that? And why do not as many people go on Fox? Is it your understanding that Fox wouldn’t take Hakeem Jeffries on a regular basis?

Jessica Tarlov:

No, no, he comes on.

Preet Bharara:

He comes on.

Jessica Tarlov:

He’ll do Fox Sunday. He’s done America’s Newsroom.

Preet Bharara:

Who else comes on and make the case for people going on more?

Jessica Tarlov:

Well, Abdul El-Sayed just did a very high profile interview. He did 25 minutes with Jesse Watters on the eight o’clock show on the Primetime show. And largely speaking, people are quibbling about whether his point of talking about transgender surgeries and equating to circumcision was the right comparison. But in general, it was a win for both of them, which I think is how a lot of media these days works because you can chop it up and feed it into your algorithm. So you won, and you won. But Abdul El-Sayed came on. Pete Buttigieg is a very famous-

Preet Bharara:

So he’s the best example, that one-

Jessica Tarlov:

I think he does an incredible job. Jared Moskowitz, the congressman from Florida, comes on quite regularly. Jason Crow from Colorado, Pat Ryan. There are a lot of people that do it.

Preet Bharara:

Maybe you changed my mind. I don’t have the data.

Jessica Tarlov:

Nailed it.

Preet Bharara:

And I have a data question.

Jessica Tarlov:

Buy the book people. Look, it happened.

Preet Bharara:

Because I was always given to the impression that the liberals weren’t going on Fox to the extent-

Jessica Tarlov:

It has changed.

Preet Bharara:

… that’s the other way around. So you say two very, very smart things that are probably not in conflict with each other, but I want to know how you think about them. One, and you began the interview talking about being data-driven and having facts and figures, but then you’re also very, very, very pointed and clear in saying that the data and logic don’t necessarily persuade people that stories do, narratives do. And I always say that the greatest trial lawyers in America who by definition in their job arguing to a jury are only allowed to argue facts and evidence that are screened by particular rules of evidence.

So it’s a subset of all the things that you could do on television, and yet the best ones are not listers of facts, but tellers of stories. So the question is, how do you integrate the data and the storytelling? What’s more important… How do you think about those two things because they seem to be in conflict with each other?

Jessica Tarlov:

It’s making sure that you can judge them together and also understand what the moment demands, because there are some topics where I know that if it gets too personal, then people are going to glaze over, or they’re so hardened in their personal opinion about it that it is not going to hit. And so I like to take myself most of the time out of the stories as the central character because I don’t think that I’m particularly interesting to people, frankly.

So I used my example when I was talking about the Save America Act and how many times I had to go to the DMV to get my real ID to show just how difficult it is actually to have identification that would be acceptable to vote under the terms of the Save America Act. But in general, I like to focus my stories on other people who frankly have it harder than I do.

I’ve led a very charmed life, and I’m hyper aware of that. So anytime that I’m going to talk about something as difficult as abortion, for instance, understanding it is an uphill climb and you’re not going to convert someone who believes in the pro-life position because of religion, but to talk about all of the poor women, the women of color are most vulnerable that are going to be affected by the Dobbs decision, especially the states with these trigger laws and do the same thing when you talk about immigration which is oftentimes a tough one to get through as well.

So it is the marriage between the anecdote and the averages with the emphasis on the averages that I think makes the most effective arguments. And a lot of times, there will be some story that is hyper in the media around when ICE was ravaging Minneapolis, and we all knew about what happened to Renee Good and Alex Pretty.

It is hard to get around using those kinds of examples in your argumentation, but you can add to that the data on over 70% of people that ICE is picking up having not been convicted of anything, or the fact that the constitutional rights of Americans are being violated. I find that that actually really resonates with people.

When you say, “Fine…” If you were a person who held up a mass deportation now sign, we obviously see the world very differently and I might not get through to you. But if I told you that Americans were having their rights violated, and you think back to your conservative values, what position you come from if you had a sign that said, “Don’t tread on me,” what are you going to say now?

And that’s how I think you got to this point where Donald Trump took his best issue, which was immigration and flushed it down the toilet with this insane overreach.

Preet Bharara:

And his second-best issue, no more wars.

Jessica Tarlov:

Yeah. Doing well on that too.

Preet Bharara:

And the swamp stuff and the Epstein stuff, you’re very good at this arguing, and you should write a book about that.

Jessica Tarlov:

Oh, I’ll consider it.

Preet Bharara:

I Disagree: Winning arguments Without Losing friends. Congratulations.

Jessica Tarlov:

Thank

Preet Bharara:

You. And thanks for coming on.

Jessica Tarlov:

Thank you for having me. This was wonderful.

Preet Bharara:

My conversation with Jessica Tarlov continues for members of the insider community.

Jessica Tarlov:

We actually heard what people were saying in the 2024 election and took it to heart and cleaned up our side of the street.

Preet Bharara:

To try out the membership, head to staytuned.substack.com. Again, that’s staytuned.substack.com. After the break, I’ll answer your questions about President Trump’s promise to send a $5,000 dividend to all Americans if Republicans keep control of Congress. Plus, when a government agency asks for public comments about a new rule, what happens to those comments? And can agencies just ignore them?

Now, let’s get to your questions. This question comes as a post in the Stay Tuned Substack chat from Rebecca who writes, “I have seen a lot of things put in the federal register for public comment. Almost invariably, the comments are overwhelmingly negative, but the item is adopted anyway. What is the point of public comment if it can just be ignored?”

Rebecca, that’s a great question, and I think a lot of people probably wonder the same thing. I understand why the public comment process can sometimes seem ineffective, especially when an agency adopts a rule despite widespread opposition, as you point out in your question. But it remains the case that public comments serve an important purpose and can actually shape the final regulation, not always, but from time to time. So by way of background, let’s start at the beginning.

When Congress passes a law, it often gives federal agencies responsibility for implementing it through rules and regulations. Some people think that’s responsible. Some people think that’s Congress passing the buck. But either way, to bring greater transparency and consistency to that process, Congress enacted the Administrative Procedure Act in 1946.

Among other things, that law established the government-wide notice and comment process that remains the foundation of federal rulemaking today that you’ve been asking about. So back in 1946, the law’s principal Senate sponsor, a guy named Paul McCarran of Nevada, called it, “A bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another” by federal agencies.

And so here’s how the process generally works. When an agency wants to create or amend a substantive regulation, it ordinarily publishes a notice of proposed rulemaking in the federal register. It’s kind of like speak now or forever hold your peace. Courts have said that an agency must disclose the critical factual and technical material on which its proposal depends, and it’s got to reveal enough of its evidence and methodology for knowledgeable commenters, which is not everyone, but for knowledgeable ones who comment to test its assumptions and identify possible errors.

The agency is then supposed to allow the public an opportunity to submit information, arguments, and opinions. And then after considering the relevant material it receives, the agency can revise the proposal, abandon the proposal, or publish a final rule explaining the basis for its decision. I should point out, and people make this mistake from time to time, that the comment process is not a referendum.

It’s not a veto power. An agency is not required to follow whatever positions receive the most comments, but comments can and frequently do affect the result. They may cause an agency to narrow a rule, create an exception, correct its data, or adopt a somewhat different approach. Even when the agency proceeds with the basic proposal, the final rule may look considerably different because of what commenters have identified.

An agency doesn’t have to agree with commenters, but it cannot simply disregard a significant objection that reveals a serious flaw in its reasoning because if it does, and this goes to the heart of your question, a court could step in. Here’s an example back from 1977 in a case called United States versus Nova Scotia Food Products Corporation. In that case, the FDA had adopted regulations intended to prevent botulism, which is a good thing to prevent, in smoked fish.

Commenters warned that applying the same processing requirements to every fish species lacked an adequate scientific basis and would ruin the flavor and texture of smoked whitefish, which is something absolutely a country wants to avoid.

The FDA went forward without adequately responding to those objections and without disclosing important scientific material that it relied on. And so a federal appeals court held that the regulation had been adopted arbitrarily and invalidated it as applied to the company. That’s why you continue to enjoy delicious smoked whitefish.

Now, the number of comments varies enormously from rule to rule. A relatively obscure rulemaking may receive only one or two, while a highly publicized proceeding can attract millions. For example, back in 2017, the FCC’s net neutrality proceeding.. Remember that? That proceeding generated more than 22 million comments. So a thoughtful, well-supported comment can help shape the final regulation. And if the agency fails to address it, someone could have a day in court.

This question comes as an email from Tina. Tina wants to know, “Isn’t Trump’s purported offer to give every American $5,000 if the Republicans win the midterms a bribe? I can’t see it any other way, but you guys are the legal experts. So what’s the answer?”

So this is an interesting question. People have been talking about it. And obviously the way in which Trump talks about things, lots of stuff that he does could be construed as a crime and lots of things he does and says really sound like they are a crime. Earlier this week, Joyce Vance and I on The Insider Podcast addressed this question at some length, but let me talk about it and say a few additional things here.

To begin, paying someone in exchange for that person’s vote is and always has been unlawful and can be criminal. But a broadly available campaign promise, which people make all the time, even one involving a cash payment, can be treated and looked at a bit differently. So let’s talk about it.

Under federal law, it’s a crime to offer someone money to vote, refrain from voting, or vote for or against a particular candidate. So if I say to you, “Tina, here’s $5,000, go vote for so-and-so, and let me know that you did that,” that’s getting very close to if not crossing the line into criminal activity.

And by the way, the crime is potentially completed at the point where I make the offer. It doesn’t have to have succeeded. But there’s an important distinction between that hypothetical I just gave and what President Trump reportedly said at the Republican Convention, like it or not.

Trump didn’t, for what it’s worth, offer particular voters $5,000 in exchange for their individual votes. He said adult Americans would receive $5,000 if Republicans retained control of Congress. Under the proposal, as he described it, someone would apparently receive the payment whether that person voted Republican, voted Democratic, or did not vote at all.

So as an initial matter, putting aside the particular subject matter of criminal activity or criminal prosecution that you’re talking about, we already know that a sitting president cannot be indicted, and the Supreme Court has added many layers and expanded the level of immunity the president has. So even if the analysis here was that what President Trump did was offer or attempt to offer a bribe, criminal prosecution is really off the table.

But now, let’s talk about the actual facts and law relating to the proposal. So notwithstanding the way that President Trump worded it, when you think about it in this way, the proposal looks less like a payoff and more like a campaign promise involving some government benefit. And that’s something, as you know, politicians of both parties do all the time. It’s pretty routine. They will literally say if they get elected, you vote for me or you vote for Democrats or you vote for Republicans.

We’ll enact the following policies that will financially benefit voters. That can be a tax cut. That can be a rebate. That can be a subsidy. That could be increases in programs that monetarily and financially benefit particular voters on a political promise that they will do so if they get elected.

And those obviously don’t fall within the purview of the criminal law. That’s just politics. And some of that, by the way, can cause you to think our politics is broken, and those kinds of promises should not be made, but that’s politics as we practice it and as we accept it now, and that has a consequence on the question that you asked.

But from time to time, people do raise this question, “Is a particular offer made by a politician in the nature of a bribe or not?” One pretty famous case to address this issue was decided in 1982. It’s a case called Brown v. Hartlage. In that case, a candidate for county office promised to reduce his official salary if elected, saving taxpayers’ money, which seems a bit more innocuous in some of the examples we’ve been talking about.

In any event, Kentucky treated that promise as an improper financial inducement and actually invalidated his election. Supreme Court reversed distinguishing a promise to produce a public benefit through the ordinary processes of government from a private agreement to pay particular voters for their support. That’s an important distinction that has been articulated by the Supreme Court itself.

And so applying that in these circumstances, although Trump phrased the promise in language that does sound unusually close to an electoral inducement, Republicans when you receive $5,000, I got to tell you, frankly, it’s hard to see how that would qualify, to me at least, as conventional criminal vote buying.

And by the way, just one more pragmatic and practical fact that we should all be keeping in mind in all of this. I don’t know if it would have a bearing on any legal defense of the president if there were a bribery investigation or prosecution, but it’s worth bearing in mind actually two points.

One, President Trump has made promises before along these lines and hasn’t made good on them. So as I think a Republican, I’m forgetting who said it, if you believe that Donald Trump’s going to give you $5,000, he’s got plenty of bridges to sell as well. And the second thing is he likely doesn’t even have the power to do it. Under the US Constitution, it is Congress, reminder, Congress, which holds the power of the purse, which means these payouts would likely need to be authorized by Congress, not just by President Trump.

Although in his characteristic, independent and thoughtful way, Speaker of the House, Mike Johnson, has already indicated that he would work with the president to carry it out, even though it would put about a 1.5 or $1.2 trillion hole in the budget. So to conclude, it may not be an illegal bribe, but I wouldn’t spend the money just yet.

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. You can reach me on Twitter or Bluesky @PreetBharara with the #AskPreet. You can also call and leave me a message at 833-997-7338. That’s 833-99-PREET, or you can send an email to letters@cafe.com. Stay Tuned is now on Substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That’s staytuned.substack.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The supervising producer is Jake Kaplan. The lead editorial producer is Gloria Teal. The editorial producer is Claudia Hernández. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy, and the marketing manager is Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, Stay Tuned.