What’s Merrick Garland Waiting For? (with Elie Mystal)

Subscribe to Lemonada Premium for Bonus Content


Julián and Sawyer discuss the Biden administration’s long-awaited removal of Trump’s Title 42 policy that paralyzed the asylum-seeking process at the height of COVID. They then unpack the latest from the Jan. 6th House committee’s investigation into Trump’s alleged involvement in the Capitol insurrection. Later the two welcome MSNBC contributor and The Nation’s justice correspondent Elie Mystal to talk about his new book and to offer his thoughts on Attorney General Merrick Garland’s performance.

Follow Elie online at @ElieNYC.

Keep up with Julián on Twitter at @JulianCastro and Instagram at @JulianCastroTX. Sawyer can be found on Twitter and Instagram at @SawyerHackett. And stay up to date with us on Twitter, Facebook, and Instagram at @LemonadaMedia.

Leave us a voicemail at 833-453-6662.

‘Our America’ is presented in part by the Marguerite Casey Foundation.

Click this link for a list of current sponsors and discount codes for this show and all Lemonada shows go to lemonadamedia.com/sponsors.Joining Lemonada Premium is a great way to support our show and get bonus content. Subscribe today at bit.ly/lemonadapremium.



Elie Mystal, Julian Castro, Sawyer Hackett

Julian Castro  00:13

Hey there. I’m Julian Castro,

Sawyer Hackett 

And I’m Sawyer Hackett.

Julian Castro 

And welcome to OUR AMERICA. This week we’re going to talk about the Biden administration’s decision to end Title 42, the public health order restricting asylum, as well as some of the political fallout from that decision. We’re also going to break down the latest news on the January 6th committee and the investigation into potential criminal activity from Donald Trump and his advisers surrounding the insurrection and certification of the election. And later in the show, we’re gonna welcome the nation’s justice correspondent, Elie Mystal, who I’m sure y’all have seen all over MSNBC these past few years. He’s got a new book out called Allow Me To Retort a Black Guy’s Guide to the Constitution. But first, let’s talk about Title 42. Sawyer catches up on that. Yeah, so

Sawyer Hackett

last week, the Biden administration announced that it was ending Title 42, which is the public health order suspending the US asylum system. For folks who don’t know Title 42 was first enacted under President Trump in March of 2020. At the outset of the pandemic, it was the brainchild of Stephen Miller, the policy has all but suspended the entire US asylum system at the border for two years. The Biden administration adjust the policy to allow unaccompanied minors to seek asylum but has largely kept the policy in place, you know, to the outrage of activists and some Democratic lawmakers. It’s been used to expel more than 1.7 million people, many of whom were sent back to these desperate conditions, you know, where they were killed, kidnapped, or raped. And in making the change, the CDC said that, quote, it was no longer necessary to protect public health. Although countless public health experts have long argued that it was never necessary in the first place. And initially, the CDC pushed back on implementing it. Now, of course, because there’s been this bottleneck in our asylum system for two years, we’re expecting a surge in new asylum cases at our border. This has prompted every single Republican and some Democrats to criticize the decision to end title 42. Many have argued that it’s needed to control and manage the border. Others have criticized the administration for not preparing for this decision. And some, like Senator Manchin have said that we should look at permanency for Title 42. Just to reminder that asylum is a fundamental human right recognized by every country under national and international laws. So early on, what did you make of this decision? And what do you make of the political fallout from this

Julian Castro  02:36

call, I’m glad they did it. You know, this had been something that many of us had been pushing for a long time, just to take a step back. And you mentioned a little bit of this, Title 42 never should have been put in place in the first place. This was the first time that this provision of law was ever utilized. It was the dream child of Stephen Miller, there was a racist intent here, xenophobic intent. Public Health was always just a ruse. At the beginning of this when Miller and Trump folks wanted to put it in place, the CDC actually pushed back folks will remember that they said at the time, that there was no public health justification to use this. And probably because it was like using a hatchet when you could use a scalpel, there were so many other ways to ensure that people with COVID did not come across the border and spread COVID which by the way, never happened in a significant amount. So it was a bad policy to begin with. never should have been put in place. Very surprising that the Biden administration kept it in place for so long. We’re going on about 15 months of this administration. But at the end of the day, it’s better late than never.

Sawyer Hackett 

Yeah, I mean, it really is rooted in like some of the most anti-immigrant type of sentiments out there about, you know, immigrants carrying disease, you know, into the United States, you know, that goes back hundreds of years. And you’re right. I mean, this was a policy created by Stephen Miller, and it was probably his most successful policy that he ever put in place, including I would I would lump in that category remain in Mexico. I mean, title 42 has essentially all but suspended the entire US asylum system, which has been in place for since the 1980s. And, you know, has been a write that we’ve recognized as fundamental of human existence. And we have suspended that right for two years using the pandemic, despite countless other pandemic restrictions being lifted in this process, despite every public health expert outside of the CDC saying this was never necessary. You know, the New England Journal of Medicine came out a few weeks ago and said, There was never a public health justification for this and anybody who’s telling you otherwise is lying to you. You know, you never once heard the CDC defending this policy as a public health order. You always heard them talking about it in logistical terms.

Julian Castro  04:54

I mean, that’s an important point. So you’re like you’re right. And I just want our listeners to focus on that. Every time these guys would renew it where there was an Trump Biden, the CDC would never actually get down to the nitty gritty on what the public health rationale and the details of that were. Yeah, like they knew that they couldn’t defend that policy on those grounds.

Sawyer Hackett

The Biden administration’s position on this has been completely indefensible. They not only have used Title 42, they’ve taken advantage of it, they’ve weaponized it to essentially remove bad headlines about immigration surges or caravans or whatever it is, you remember the story about Haitians about the 1000s, you know, 14,000 Haitians, or so who were along our border, Title 42 is essentially used to prevent any sort of due process for those people, you know, all of them all 14,000 were expelled, or nearly all 14,000 were expelled using Title 42. And it’s, I think it’s important to note here, while Haitians, you know, were subjected to the cruelty of Title 42, Ukrainians are getting this carve out where they can bypass, the folks who have been sitting at the border for two years waiting for this order to be lifted, Ukrainians are being put on an expedited process, you know, so that they can get asylum in the United States, but not folks who are fleeing persecution, violence, death, disaster in Central America, it’s just completely racist. And it’s really unfortunate. And I think it’s probably the one of the darkest stains on the Biden legacy.

Julian Castro  06:20

Yeah, I mean, so now we find ourselves at a point where this is going to get lifted officially on May 23. So we do have I guess, about six weeks, until that happens. And between now and then ostensibly, the administration is going to be trying to prepare for what people who understand the influx of folks from the southern border, say will be a surge of people. I’ve read numbers of up to like 15,000 or 20,000 people a day at the beginning. There are some Democrats even who have looked at this, oh, wow, what are you doing? How can you do this a few months before an election? And my answer to that is, first of all, again, this policy was an aberration that never should have happened in the first place. Secondly, as MLK said, you know, the time is always right to do what is right. And then thirdly, you knew that there was going to be a backlog of people waiting because you created a bottleneck artificially. There were 1.7 million potential asylum applications that did not get hurt because of title 42. So at least at the beginning of this, when you lift it, well, what do you expect, right? That’s gonna happen. And they need to be thoughtful about how they prepare for that just mechanically, physically on the ground operationally. And then how you message that when it does happen?

Sawyer Hackett

Yeah, and I think that that’s such an important point. And like, I think we should bookmark this conversation in history, because it’s inevitable that we’re going to get a surge at the border. I mean, it’s just completely inevitable because for two years, every single person in Central America has been locked out of even making an asylum claim at our border. And you know, all of those 1.7 million people who were returned to their respective countries, they weren’t put into a deportation process. So there isn’t an X on their record when they’re sent back. So when they come back and try and seek asylum, it’s like they have a fresh slate. Of course, there are Democrats who are criticizing lifting this for operational purposes, but they don’t want to have to deal with the surge in a midterm year. But I think that there are some Democrats critical of the administration because they didn’t have a plan in place. And I think that that’s a fair criticism. I mean, for two years, you kept this draconian Stephen Miller policy in place, and you didn’t have the resources and plan in place to prepare for a potential surge when it comes. I mean, it’s obvious, it’s obvious to anybody that this was gonna happen.

Julian Castro  08:38

Here’s the thing. You know, we are a few months away from an election. And my concern is that if Democrats get walloped in November, and hey, look, I’m an optimist. I’m hoping that we’re not and more than that, you know, I and many others are going to work so that we don’t, but if we do, you know, that there are going to be a whole bunch of these conservative Democrats, some establishment Democrats that are going to try and pin it on the lifting of Title 42 and their immigration policy. And that just gets my goat because, come on. Biden hasn’t passed immigration reform, even though he promised that, he’s barely lifting Title 42. The numbers for Democrats are in the tank far in the tank already, even when title 42 is still in place. So there are many reasons to believe that Democrats could suffer bad losses in November again, I hope they don’t but could without regard to any kind of quote unquote, progressive immigration policy. That’s just going to be an excuse that some people try and use.

Sawyer Hackett

Well, I would love your take on this because I feel like this is a perpetual issue for Democrats is treating immigration like a third rail You know, these Democrats in frontline districts, some of these vulnerable Senate Democrats, they worry about issues like this becoming, you know, the focus of their campaigns. But to me, it just seems like Democrats don’t know how to talk about immigration don’t know how to present an affirmative vision on this, like, how do you think a Democrat in one of these vulnerable states should be able to talk about what’s going to happen at the border, heading into the midterm year, heading into the midterms cycle?

Julian Castro  10:25

I mean, I think they should embrace both values, that what we stand for, right? And that this has been a nation of immigrants and asylum has been a fundamental human right. And if there’s one place in the world that stands as this beacon of hope, for people who are suffering through violence, persecution, poverty, it’s this country, and that we can both embrace that, and then also have an orderly system that handles this in a fair and just way, and maintains the security of our country. Right, you can do both of those things without giving in to the xenophobia and the tendency that Republicans have to demonize immigrants. I think that the American people want to know both of those things that you stand for something and also okay, look, every country has borders, every country manages those borders, you’re going to be a good steward of managing those borders.

Sawyer Hackett 

Yeah, that’s such an important point. And I also feel like, you know, the human beings are just lost in this conversation, like, not in our conversation, but in the political conversation about Title 42. I mean, you know, as soon as this decision was announced, every single member of the political press put out some sort of tweet about what this means for Democrats in the midterms, what this means for any potential vulnerable, Senators running in 2022. But we forget that, you know, 1.7 million people were locked out of the federal right to make an asylum claim at the border, you know, 1000s, were returned to these desperate situations, hundreds were killed, hundreds were kidnapped, raped. These are mothers, fathers, even children, who are coming to our border, who are unable to make a claim. I mean, we just don’t tell those stories. And, you know, we hear exhaustive coverage all day, you know, over the last month about these Ukrainian families who are facing desperate situations, but just across the border, this is happening. And we just closed our doors for the last two years. And I feel like we can’t leave that out.

Julian Castro  12:27

Yeah, absolutely. So, you know, it took a long time for the administration to get here to where we’re at. But my hope is that they’re preparing operationally and then also, of course, getting prepared for the political battle that’s going to happen over the summer, as you see those numbers increase, and not forgetting the values that we espouse as Democrats, and I think we should all share as Americans and not forgetting the people involved in the lives that have been hurt by this policy, and why it’s worth changing it.

Sawyer Hackett 

We also wanted to talk about the latest in the January 6 investigation and the tightening of the collar around Trump’s neck under the law. You know, as we talked about on last week’s pod, the investigations into his various criminal activity are intensifying. Last week a federal judge in a civil case found that Trump most likely committed felonies surrounding the 2020 election, obstructing the work of Congress and conspiring to defraud the United States. Judge David Carter of the Central District of California said that the actions of Trump and his lawyer John Eastman amounted to quote a coup in search of a legal theory. And he went on to say that, quote, the illegality of the plan was obvious. President Trump vigorously campaigned for the Vice President to single handedly determine the results of the 2020 election. This was a huge breakthrough for the for the congressional committee investigating the January 6 insurrection. The Justice Department has been conducting a wide-ranging investigation into the insurrection but they have not said whether they are looking at a criminal case against Trump himself. And so the January 6 committee is now looking at a criminal referral to the Department of Justice to begin that investigation. There was also reporting over the weekend that President Biden has confided in his staff that he believes Trump is a threat to democracy, and that he should be prosecuted. Article says in the New York Times that he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who’s willing to take decisive action. So this is all putting a ton of pressure on AG Garland to launch an investigation. There’s also a time crunch for the January 6 committee given that they’re supposed to issue this final report in the fall, and that the committee work will end if Democrats lose in the house. And so Julian, you know, with this collar tightening around Trump’s neck, it’s time is not really on our side here. What are your thoughts on where this goes from here?

Julian Castro  14:43

Well, I hope that Merrick Garland is listening and reading that judge’s opinion. And then, you know that New York Times article that came out over the weekend. I don’t think you could read it any other way. Then Biden and his administration sending a message to Garland right now at this time, that, hey, you need to move, you need to do something here. Biden has made a big deal of respecting the independence of the Attorney General and his office. And as far as everybody knows, he’s held to that. The article noted that he has not had a direct conversation with Merrick Garland telling him hey, you know, why don’t you pursue Trump. But the way that I read it, I mean, this was basically even next closest thing of sending a message to the Attorney General. Here’s the thing. I mean, many people have observed that, I think it’s justified for him to open up a direct investigation into Trump to follow that through with a criminal prosecution, that it is overdue, that to the extent that doesn’t happen, it emboldens Trump and all of his anti-democratic and I mean that with a small d, anti-democracy, minions, who are not held accountable and get bolder and bolder and bolder until we come to 2024 election, where they’ve put people in place at the local level, these county clerk’s, the state elections, officials, state attorneys general and then of course, run of the mill, congressional representatives and senators, who simply will not recognize anything except a win by Donald Trump as being legitimate. And that’s how you have your democracy stolen. That’s the path that we’re on. I mean, that is not a far-flung outlandish idea. The only thing that can stop that is some real accountability.

Sawyer Hackett  16:43

Yeah. And I mean, just to lay this out for folks, I mean, we’ve already referenced that district court judge essentially saying, open up an investigation right now you have the January 6 committee likely to issue this referral for a criminal case to the DOJ, you have 775 arrests related to the January 6 insurrection, and a charge of seditious conspiracy, but none of the top people have been, you know, charged with any sort of major crime, but many have defied congressional subpoenas. You have, you know, Mo Brooks turning his back on Trump, you have people like Virginia Thomas, Clarence Thomas’s wife, attempting to collude with the White House Chief of Staff in trying to overturn the election. You have Jared Kushner testifying in front of this committee. I mean, there is so much here that essentially just all fingers are pointing at Garland to do something. And it seems like at this point, if he chose ultimately to not launch at least an investigation into Trump’s criminal activity, he would be acting political. I mean, it’s almost like the independence of the DOJ and the respect for bipartisanship and not wanting to investigate, you know, someone’s predecessor or any of that. It seems like it’s swung, the pendulum has swung too far. And it gets to the point where all signs are pointing to you have to do this. And it would be a political decision, if you decided ultimately not to do this at this point. And of course, yeah, Biden. You know, I think that I read that story as clearly being a leak from folks inside the White House wanting to put the pressure on garland. But Biden has not said anything about Garland. And I think he shouldn’t but like, that’s what the White House I think wants and that’s what Congress wants. That’s what the committee wants. That’s what these district courts want, like, it just has to happen.

Julian Castro  18:23

Yeah. And, you know, hopefully, they will move forward. I mean, there’s a lot of pressure that Merrick Garland is facing, he has said that he’s building the case, on January 6, who knows how long that’s gonna take. But to go back to one of your original points, we’re on a short timeline. Because if Republicans take back the House, if they take back the Senate in November, then it’s all over, not is it all over, I mean, they’re going to turn the tables illegitimately. And run these investigations of who knows what Hillary Clinton or, you know, the folks that were trying to investigate January 6, Hunter Biden, yeah, of course of Hunter Biden of Joe Biden. They’re going to do more of the completely ridiculous types of investigations that they did a few years ago and run them out for everything they can, like fast and furious, and Benghazi and so forth. That’s their playbook. This is a legitimate investigation. This is based on something that people could see with their own eyes, that there’s ample evidence of wrongdoing here from the President on down. It needs to move forward swiftly.

Sawyer Hackett

Yeah, for sure. And we’re going to talk about this more with our guests, Elie Mystal, who is the justice correspondent at the nation who has been covering this and talking about this on MSNBC a lot lately. And so there’s just a lot of ground to cover and it feels like you know, this story is really just starting to shape up but the clock is running out. So I guess more on that with Ellie in a few minutes.

Julian Castro  20:19

Elie Mystal is The Nation’s justice correspondent covering the courts, the criminal justice system and politics. He’s also the force behind the magazine’s monthly column Objection. He’s also an Alfred […] Fellow at the type Media Center. And his first book, Allow Me to Retort a Black Guy’s Guide to the Constitution is out now. Mr. Powell is a graduate of Harvard College and Harvard Law School. And prior to joining The Nation, he was the executive editor of above the law. Mr. was also a frequent guest on MSNBC, and Sirius XM. I’m sure a lot of y’all have caught him there. And we’re happy to have him on OUR AMERICA. Elie, welcome to the show.

Elie Mystal 

Thank you so much, Secretary Castro, how are you?

Julian Castro 

I’m doing great. I you know, I missed last week, I just diagnosed with the flu out of it for several days, but I’m feeling a lot better.

Elie Mystal  21:14

Welcome back to the to the library. This is the land of the normal sickness, right? Like, I’ve got the kids going to school, and they’re gonna come home now. Now that we’re out of mass with like, all the normal diseases and people like see, this is fine. I’m like, knows, like for a year and a half. I wasn’t getting sick from my petri dishes that you said.

Julian Castro

Oh, I know, I know. I was just thankful the diagnosis was flu. So I want to start off with a conversation from your book, Allow me to Retort a Black Guy’s Guide to The Constitution. If you could just tell us a little bit about what this book is all about? And why you decided to write it at this very fascinating moment for our Constitution in American history.

Elie Mystal  22:02

Yeah, so as the title says, it’s a black guy’s guide, that’s not a guide for black guys. Right? So that’s a key kind of conceptual difference there. Right? I’m trying to talk about the Constitution in a jargon free world so that regular people can understand what this document looks like, from the perspective of a person it was designed to ignore, right? And quite frankly, designed to enslave, right, the Constitution looks a little bit different. When you know that you were not part of the initial grant of rights and responsibilities contemplated by the founding fathers. So you tend to not venerate those people quite so much when you remember that they held your ancestors in bondage against their will, and that their political document their kind of, you know, their group project, to start a new country, while short has some great ideas and ideals in it. It’s also deeply, fundamentally flawed in some key areas, and desperately needs to be improved, or reimagined, or reinterpreted, depending on which flavor you feel like. And so that’s why I wrote the book, I wanted people to kind of understand what this document really says, and really looks like, that’s at 30,000 feet, because you, Secretary Castro, because you’ve been in the trenches, there’s another kind of aspect to what I’m doing here that you’ll appreciate. And like I said, it’s a guide. And I mean, that kind of in an active sense, I’m trying to help Democrats think a little bit more deeply and a little bit more expansively about how to defend our values. In the language of the Constitution. I feel like the Republicans have generally run roughshod over the Democrats, and captured the language debate in terms of how we talk about the Constitution, how we talk about what it says how we talk about how its interpreted. And Democrats don’t do, from my perspective, a great job of fighting back and pushing back, and understanding how to get into the Republican kind of linguistic games and twisting them around on this on the self. So the book is also a real kind of trench fighting guide, in terms of like how you fight back against the Republicans in your life or in your community?

Julian Castro  24:29

Well, I mean, that’s certainly something of great utility and also interest just few months before major midterm election that could have drastic consequences for our country. I mean, so you know, for somebody that’s out there that is like, you know, banging their head against the wall because they’re like these democrats just don’t get it. Why don’t they articulate these messages better? I mean, what are the first steps in doing that?

Elie Mystal 

Yeah, well, first, we have to have a better language around what Democrats are trying to do with the Constitution. Right? Republicans have a bumper sticker, right? It’s called originalism, it’s called original public intent and the Republicans act like either you’re an originalist interpreter of the Constitution, or you are an illegitimate interpreter of the Constitution, right? They give you two choice is right. I reject out of hand the originalist approach and I need Democrats to start rejecting it out of hand, as well, the thought that we currently in 2022, live under rules and guidelines as they would be interpreted by the slavers, colonists and rapists, who founded the country is ridiculous to me. No, I do not want to go back to the original public meaning of words like cruel and unusual punishment, the people who wrote those down, engaged in cruel and unusual punishments all the time, to the enslaved people. So no, I don’t think that they have a particularly relevant moral guideline in terms of what that term should mean, in our current life. So step one is really pushing back on this idea that originalism is the only legitimate way of interpreting the Constitution, it is, at best one option, among many, right? And the second thing that I think Democrats need to do a better job of is kind of articulating our own bumper sticker, right? Like I call myself a 14th, amendment […] or ologists, right, like, whatever I’m doing, I’m taking the 14th Amendment, which guarantees equal protection and substantive due process of laws. I’m taking that and I’m looking at the entire constitution, every single clause, every single amendment through the lens of equal protection, like either equal protection is happening, or your law statute, ordinance, road sign, whatever is illegitimate, either we have equal protection of laws, or the project is a problem. And I don’t think that it’s too hard for regular people to understand that, again, I wrote the book with as little jargon as possible, I wanted it to be a readable, constitutional book, not something that kind of sits on a mountain that’s only accessible if you have a very expensive education. So I don’t think it’s too hard to articulate what I’m talking about, in a way that average Americans, average voters, average citizens can understand.

Sawyer Hackett

So to your point, you know, Republicans have used issues related to the law to democracy and especially the Supreme Court as a motivator for their base in election after election. Democrats always seem to be reluctant to do so. You know, we’re heading into a year now where we have all of this news about Clarence Thomas, and his wife, Ginni Thomas, a potential ruling gutting Roe vs. Wade, a stacked court that is looking at undermining some of these fundamental rights. Do you think that that that bumper sticker that that equal protection bumper sticker that you just laid out? Do you think that that can help change that dynamic for Democrats, where we put the courts and the law and democracy front and center?

Elie Mystal  28:04

I hope so and we need to it needs to happen. Democrats have been fighting an asymmetrical war. Republicans have single issue voters on the Supreme Court, right, you can go to a tabernacle in Utah, and find some woman who’s like, well, I don’t like Trump. I think he’s a misogynist. And he is thrice married to porn stars and what have you, but got to vote for Trump because of abortion. Right? Just say that right? You can go to a truckstop in Florida and you’ll get some guys just like I think that Donald Trump is a racist I do in my heart think is racist, but gotta vote for Republicans. So that I can keep my gun. Like, think that way? They will say that, right? You gotta Democrats, he said, like look named something you care about, right? You care about guns, you need the Supreme Court, you care about women’s rights, you need the Supreme Court. You care about LGBTQ rights. You need the Supreme Court; you care about climate change. You need the Supreme Court; you care about anything you care about. And I can tell you how you need the Supreme Court, but Democrats don’t think that way. And that’s partially because our leaders have not made that one-to-one connection for Democratic voters. I do not think the base Republican voter is any smarter than the base Democratic voter. Okay. I don’t think the base Republican voter is any better with, you know, American civics than the base Democratic voter, but I think that the kind of least common denominator, Republican politician has made a much better job of explaining what the Supreme Court is to their voters than the Democrats have. We tend to think about the Supreme Court as something that is above politics, taken outside of this political sphere. Judges kind of heads on high who just pontificate about law in a very objective sense. We don’t think about it as a trench fight the Republicans do and that’s why we’re losing the last thing I’ll say about the sore and it’s important it’s especially you know, talking with Secretary Castro here, like cuz he he’ll know this better than anybody, name for me, please. The last time a Democrat lost a presidential nomination or lost a Senate nomination of loss of Senate primary because of the Supreme Court doesn’t happen. Right. Republicans think about let’s go back to 2016. Donald Trump, he’s crazy. He’s an outsider, anti-establishment doesn’t play by the rules, except for the Supreme Court. Oh, no, no, when it came to the Supreme Court, Trump had to have that list that was given to him by the Federal society, he had to promise that he would be straight down the middle with the establishment on the Supreme Court. And then it was back to Mexicans and weightless, right? But the Supreme Court’s totally normal, right? 2020, we got everybody running, we got Secretary Castro, we got Joe Biden, we got the coffee man, we got stop and frisk, Supreme Court barely comes up. Democrats do not vote on the Supreme Court because Democrats do not lose on the Supreme Court. And that’s a huge reason why we have this asymmetrical battle for control of the Supreme Court.

Julian Castro

I mean, so much of the way that people take in what the party stand for, and of course, what individual candidates stand for is filtered through the media. And you had a column just a couple of days ago in the nation, and titled, why does the media care more about the slap than Trump’s missing call logs? And yet to many of us, it seems that the media and you make this point can drill down when they want to, but doesn’t seem to be drilling down on the panoply of constitutional violations and potential crimes of January 6, why do you think that is? And what do you think it says about our media?

Elie Mystal  32:07

I mean, we are five, six years into the Trump experience in America. And the media has still not learned how to cover it. They’ve not learned how to cover him correctly, Trump’s a way to hack the media is to flood the zone with illegality, or the potential for illegality to the point where the media gets bored covering it. And they think that they have to cover a completely made-up story on the left for a sense of fake balance and foe, both side-isms. It’s how Trump has hacked the media. And still five, six years later, the media hasn’t caught on. At some point, it’s worth asking why. At some point, it’s worth asking, are we stupid? Or is there intent behind this? Now, partially what I feel is that there is a lot of intent, especially when it comes to issues of the supreme court issues of judges and justices and legal interpretations. You think about the never Trumpers, the former Republicans or still Republicans, but the ones who were the rump of their party who are against Trump and vocally so and we accept those people, we welcome those people. Anybody who’s pro-democracy can be on my team, right? But you’ll know that those people get really quiet when it comes to the Supreme Court. Right? The same people who are willing to talk about Trump and how he’s bad and how he’s bad for American whatever, didn’t have Buddha say, when the Republicans in an unprecedented fashion, blocked the appointment, even the confirmation hearing even the argument around Merrick Garland, those were those Never Trump was there and they were they had their lips. They had their lips sealed shut when their voices could have perhaps made a difference in that party giving a fair shake to Merrick Garland. Those lips were against sealed shut when Brett Kavanaugh was legitimately accused of attempted rape and they didn’t say nothing. While he was not being investigated by his federal society friend FBI director Christopher Wray, right. Those people said nothing. When Ruth Bader Ginsburg died, and Trump hypocritically put forward Amy Coney Barrett in a record amount of time over Ginsburg’s dying wish those after an election to replace him had already started and votes were already being cast. Those Never Trump people, for the most part said nothing. And so when you look at how the media is covering things, you see that these Never Trump Republicans are kind of everywhere. Whether your network is allegedly liberal or conservative. You have got some never Trumpers in your network, you certainly have to never Trumpers behind the camera. And so not only are you dealing with people who are just outright Republican, outright are pro the insurrectionist, that covers a whole, you know, half of the media, right? Even amongst the pro-democracy, half of the media. You have a lot of people who, while they don’t like what Trump is doing, don’t want anybody to come and take to heart Have a look at people like Amy Coney Barrett, or Brett Kavanaugh or Clarence Thomas. Because the Supreme Court, the conservative bulwark against the people.

Sawyer Hackett 

So you referenced Merrick Garland, so I’d love to go a little bit deeper on this January 6th investigation. You know, from the district court’s ruling last week that Trump had likely committed felonies related to January 6, to Mo Brooks turning his back on Trump to you know, the January 6 committee weighing this potential criminal referral. It seems like all fingers are pointing to Attorney General Merrick Garland and the DOJ to launch this criminal investigation into Trump. What’s your sense of why Garland is taking his sweet time on this?

Elie Mystal  36:03

Because he was the wrong guy for the job. Look, if you want to say Garland versus Neil Gorsuch, I will vote for Garland, every day and twice on Sunday. The Supreme Court was the job. He was supposed to have this this job as America’s top prosecutor during a time of political unrest and upheaval. You see what Biden was going for? Right? You see the idea that what you wanted was an institutionalist who restore faith and the apolitical nature of the justice? Yeah, I get that we needed a Janet Reno. We needed a person who was going to go in there and flip some tables on these people, right, because that’s what Barr did. That’s what Sessions did. That’s what John Ashcroft would have done. That’s what Republicans do when they have that office. The Republicans again, here’s an asymmetry. The Republicans understand just how important the Attorney General’s office is, and doesn’t always have to be Bill Barr literally investigating his political enemies. It can be Jeff Sessions; it can be John Ashcroft. It can be people who simply take the culture war as part of the war that the DOJ is supposed to fight, right? That’s how Republicans go. Democrats were always trying to run back to just the institutional, you know, as long as he played by the rules, everything will be fine. Well, what good are, the analogy I made is the Democrats are playing chess, and they’re all like Queen […]. And they’re like very serious about this. And Republicans take the chessboard and start beating the Democrats over the head with the chessboard. Democrats are like that’s against the rules. It’s against the rules. And who’s gonna stop them? Well, the Attorney General is the person who’s supposed to stop them. When the Republicans break the rules as they have, it’s not supposed to be the House Oversight Committee. Look, I love what the select committee is doing. I think they’re doing a really good job. At the end of the day, they’re gonna write a report. They’re gonna write a memo, essentially, to file right. And that’ll get covered. But that’s not going to put a single person in handcuffs, right? It is the Department of Justice armed with the FBI that is supposed to take the lead and putting and holding people accountable for their crimes, and misdeeds. And that’s what we need Merrick Garland to do, now, in fairness to him, he says that he’s building the case from the ground up that he’s starting with the button and the people who actually assaulted the Capitol, and he’s working his way up working his way up working his way up. When he investigated Timothy McVeigh, the Oklahoma City Barber, you know, that case took three years and that didn’t leak. True. Yes, that’s possible. So it’s possible I can’t say that it’s not possible. It is possible that Garland is conducting a secret investigation that he is working double time and just nobody knows how it’s going. But that at some point, it’s gonna you know, it’s the wave is gonna crest and we’re gonna get indictments and we’re gonna get accountability for these people.

Elie Mystal 

However, I will point out a couple of things. One, the Trump people have this […] for crying and whining and moaning in the press. Every time somebody asked them a question. I kind of think that, you know, a Steve Bannon or Michael Flynn, these people Roger Stone, they were being they were being asked questions by the FBI. We would know about it on Tucker Carlson that night. Haven’t heard any of that. We’ve also seen that the Trump people the Trump cronies are going through unprecedented amounts of obstruction to hide their records over January of 6th, they’re willing to appeal it all the way to the Supreme Court. I kind of think that if the FBI had subpoenaed documents from Trump from these people, that we would have a Supreme Court case about it. So I don’t think Garland subpoenaing more documents than the select committee. I don’t think that Garland is interviewing more people than select committee. So we’re kind of going to be left with the Select Committee’s report, and maybe Garland takes that report and turns that into judicial action. But I will point out that Garland came into office with another report on his desk, the Muller report, which outlined 10 instances of obstruction of justice done by the former president United States, Donald Trump, that Muller said that he could not prosecute while he was a  sitting president. Well, Merrick Garland comes in Trump’s no longer a sitting president, does he prosecute him for those 10 obstruction of justice charges? No, no. Instead, he lets the statute of limitations lapse on the first half of those obstruction charges. So that’s all by way of saying, I think Doug Jones would have been a rare choice. I think […] would have been a better choice. I think there were lots of other ways. Joe Biden could have gone; he’s gone in this direction. And we still don’t fully know, we still haven’t seen yet if Merrick Garland is gonna make us rue the day that Biden appointed him, or if he’s gonna make me eat my words, which I will be man America only comes through. And you know, perp walks, Don Jr. I will come back on your show, and I will meet a couple and I will be the happiest wrong person in the country.

Julian Castro 

Just to go from one leading legal figure to another recently, Judge Ketanji Brown Jackson went through her confirmation hearing before the Senate Judiciary Committee, and he wrote something that I found, you know, really refreshing and neat about how stoic she was, in the face of some real racist and sexist attacks that were part of this GOP blueprint to smear her reputation. Talk to me about the takeaways from those days of hearings that she went through.

Elie Mystal

Yeah, I mean, look, there are lots of ways to think about the hearing. And part of it is just the normal GOP smear campaign that they were going to do against any democratic nominee. I mean, Democrats could have nominated Mr. Rogers, Josh Hawley would have been like Mr. Rogers spends a lot of time with kids like that is what they’re doing. They’re trying to play to their Qanon base, and there’s part of that that was going to happen, regardless. But there were other parts that I found, you know, really, really troubling the, the way that that she constantly was called to answer for things other black people have said, right? That’s just not something we do to White nominees, right. We just, you just don’t have Neil Gorsuch sitting in a chair. And someone’s like, well, this. There’s a white guy here. He wrote this article of Mein Kampf . And it says, Neil, can you can you speak to me? Nobody would do that. Nobody does that. But for Ketanji Brown Jackson, they asked her about the 1619 project because she’s a black woman and souls Nikole Hannah-Jones, they asked her about Ibram X. Kendi’s anti-racist baby book, because he’s a Black guy and she’s a Black guy. They asked her about my book […]. Ted Cruz asked her about my book. I don’t know her.

Elie Mystal 

She has to answer for things that I’ve said because she’s Black and I’m black right like the idea that you’re just gonna ask this woman to answer for other people not because of what anything that she’s said. Because she shares a race for what some other people that’s just textbook racism and the other Black people the other people of color on the on the Senate Judiciary Committee saw it right I mean, like Cory Booker, I thought was great, freshmen senator from California, I thought he was great like they got into their own when you because when you see it happen you think about the times where you’ve had to overcome that in your life, right, like, game recognize game right? And when people see what Ketanji Brown Jackson had to go through, it reminded I think a lot of people of color and a lot of women on what they’ve had to go through to get to where they’ve been, which is why I think you know what, what’s lost in all this and I so rarely get to talk like kind of actually nuts and bolts politics. I’m kind of excited. But like, what I think often gets overlooked, guys, is how useless these Republican arguments are. Right? Ketanji Brown Jackson is supported by two thirds of the American people. She’s incredibly popular justice, right. So all of this smear campaign, all of these pedophile stuff, all of this junk that they threw at her didn’t diminish her popularity with the American people and I think than a lot of times, people who are in the majority people like me, forget just how small of a rump these MAGA Qanon people are. They have so much more power than their numbers justify right? We’re dealing with a small Yes. Vocal. Yes. Connected. Yes, overpowered because of the Electoral College segments of the country, they are not the many. And so when you see Republicans doing the stuff, when you see a Ted Cruz or Josh Hawley, it’s important to remember that the they are not making a politically wise calculus. They’re simply playing and riling up a small, inert whitening and dying bass. We are the party we are the people who are speaking to the broadest cross section of American citizens with our policies and the kinds of arguments that we put forth trying to advance our values for this nation.

Julian Castro  46:10

Elie Mystal’s book, Allow Me to Retort a Black Guy’s Guide to the Constitution is out now. Elie, thank you so much for joining us.

Elie Mystal

Thank you Sawyer, thank you so much, Secretary Castro, you guys have a nice one.

Sawyer Hackett 

So thanks again to Elie Mystal for joining us on this week’s pod. As always, you can leave us a voicemail sharing the stories you care most about at 833-453-6662, and Subscribe to Lemonada Premium on Apple podcasts. We’ll see you next week.


OUR AMERICA is a Lemonada Media Original. Our Producer is Xorje Olivares, with executive producers Jessica Cordova Kramer, Stephanie Wittels Wachs and Julian Castro. Mix and scoring by Veronica Rodriguez. Music is by Xander Singh. Please help others find the show by rating and reviewing wherever you listen and follow us across all social platforms at @JulianCastro, at @Sawyer Hackett and at @LemonadaMedia. If you want more OUR AMERICA, subscribe to Lemonada Premium, only on Apple podcasts.


Spoil Your Inbox

Pods, news, special deals… oh my.