“George”: A conversation with the other side

This podcast is part of the democracy group.

This is Larry Lessig. This is another episode of Another Way. This is a very different episode of Another Way. As you know, if you've been listening to this season, we've been playing out a theme of understanding the other side. My friend Frank Luntz, who had been an advisor to Republicans for the whole of his career, though not a Trump supporter, was the first in that theme. Bill Crystal, who was a right wing, who is a conservative, one of the leaders of the neocon movement, also not a Trump supporter, continued that conversation. Rob sand, who of course is a Democrat, but Democrat from Iowa. So with some perspective on what the view of non Democrats in Iowa might be, was the third in that series. This is the fourth and in some sense the most unique because I'm not going to tell you who this person is. This person is a friend, a friend who surprised me when I discovered that he was a supporter of Donald Trump. He's a prominent person in the academy, I won't say where, but you shouldn't assume it's here at Harvard. And he's willing to have this conversation about why people are supporters of Donald Trump, why he was a supporter of Donald Trump, but not willing to pay the price. Now, that might be cowardice, that might be unfair, that might be wrong. It's understandable, I think, given where we are, but not so eager to litigate whether that's right or wrong. I'm much eager, more eager, more interested in this conversation. So over the course of this next hour, more than an hour, we couldn't stop, you'll hear a back and forth trying to understand where this idea of supporting this man might have come from. And in the end, I feel like there's more to hear, there's more to say, but there's something we've made understandable. Stay tuned. As I said, we have an interesting and different guest who's not going to be named in this conversation because the conversation needs the freedom to roam in places that it might more easily roam with a cloak around it. We'll see. So I'm going to call you George. Friend. I'm going to call you George. As I've introduced you. You're someone I've known for many years and a friend for many years and a colleague who's worked with me for a couple years. And so is somebody I know and somebody who, upon tripping upon the fact that you were going to support the president in this last election, was surprised. And so the hope of this conversation is to unpack the surprise and not unpack my surprise, but unpack exactly why we're in this place where we would be surprised like this. It's not like, in my view, it's not like a normal election where things were relatively close and I could see going either way. My side of the world sees it in such black and white terms that it's just incredibly hard to understand how someone who, you know, I. And I know many would respect would come to this particular place. So obviously, we don't understand a lot. And what I'm hoping, George, is that you can help us begin to understand that. So why don't you start and. And let's see where that conversation goes.

Right. Well, Larry, thank you for having me. I've always been impressed by your work, both in the scholarly domain as well as your public facing work. And it's an incredible honor to be part of these conversations. And I think the conversations that you're convening are incredibly important at this time in our history and at this time in our politics. So I am very grateful to be here. And I think I maybe preface this by trying to take some perspective. You know, I think as somebody who's, you know, studied, I think fairly widely in both the social sciences, history and whatnot, I'm always struck by the fact that for most of human history, human beings are organized along tribal allegiances and often in tribal conflict. And it's really Only the last 300 years or so that you've seen this explosion in, you might say, cooperative possibilities, both politically and economically, technologically. And this has been an extraordinary achievement. And I think one of the concerns, one of the dangers of our present moment is that we see in all sorts of parts of social discourse, of politics, and even in the business realm or social realm, you might say, regression to more tribal times. And so I think understanding the other, figuring out where it precisely is that we disagree and the way in which those disagreements might be negotiated and resolved, and also where there's disagreements, we might find that we have to tolerate each other's disagreements and figure out the right grounds on which to do that. I think this is incredibly important. So take it. You're inviting me to explore my support for Trump, and I'll also include in my reflections my impression of many other Trump supporters views as well, because I think there was a kind of diverse coalition. In fact, one of the more surprising things about Trump's initial victory was how many people it brought out of the woodwork and how many coalitions it realigned. Like I think most lifelong Republicans. I thought Trump initially, it was a joke candidacy. I didn't think it was. It was genuine. I thought it was something that was done as a publicity stunt. And it really, you know, during the entire primary season, it wasn't something I took very seriously. And it was something, you know, when he got the nomination, then it forced a closer look at exactly what is it that he's talking about, what, you know, what are the ideas, if any, that animate this candidate? What are the policy proposals? And I have to say, it was. It remained pretty vague at the outset, but there were things that impressed me, and if I could just distill, I guess, a few of them, and we can delve deeper on any one of these. Very early in the campaign, I remember there was some gaffe Trump made or some comment that was dug up that he had on record. And of all Trump's comments, he made a lot of terrible comments, said a lot of appalling things. But this, if you understand the spectrum of those, this was a rather innocuous thing. And there were a lot of media commentators that said, ah, well, Trump must drop out. We've declared he must drop out. Of course he can't go forward. And there was a very quickly, a sort of media narrative around he must drop out, he must drop out. And Trump said, no, he just, he brushed it off. And he said, and I think in this particular case, he was right that this is a substantive list. This had no substance, substance, less critique. And he brushed it aside. And it was something that I don't think any other candidate could have done. They would have, you know, there would have been this obeisance to the media narrative. They would have tried to apologize, go back. And that was actually really interesting to see what in this very narrow instance looked like a power play by the media and Trump rebuffing it. And of course, this became a theme of his presidency. In fact, I think the most distinguishing fact of his presidency was the sort of latent war between the Trump and the media, which I think had all sorts of ramifications that we might talk about. As far as original things he was saying, I think he was one of the first people in the Republican side or on the Republican side to really critique the Iraq and Afghanistan wars. I mean, there are others that had done so from less prominence, but I thought that was an important critique within the Republican Party. He was also somebody, and you have to think back now to 2014, 15. He was somebody who called attention to China as an emerging strategic rival that the US Wasn't taking perhaps seriously enough. And then there were, you might say, a number of issues where Trump was calling attention to failures, historical failures of those who had run institutions. And, Larry, I know you've worked for a long time on the theme of institutional corruption, so you're familiar with these things, like the financial crisis, you know, failures across a number of American institutions. And some of this is, you know, rather common sense. Some of it wasn't particularly well articulated or researched. But it struck me that, and this, I think, struck a chord with a lot of people who felt themselves to not have been the winners within these particular institutions, that this person was somehow calling attention to some sort of dysfunction. So, you know, these things were all. They're interesting to me. I think they shook a lot of things up. And, you know, personally, at the end of the day, I, you know, I. Somebody who tended to be on the right for a lot of my life. And when I looked at basic policies and what might happen with regard to courts and judges and, you know, energy policy, taxes, that sort of thing, for me, it was sort of, you know, you go with your party, and I didn't see anything, although I was concerned, I didn't see anything that would necessarily disqualify Trump. Okay, so, but let's, let's. I'll stop there.

Yeah, yeah, let's separate two issues here. So first of all, let's be clear a little bit more about what you just were ending on your own background. So you have been on the rights. Considered yourself a Republican, though I have to say that I don't think we ever discussed that in the whole of our relationship. I never, you know, this was never an issue that we talked about. But you kind of considered yourself a Republican. Did you consider Donald. If we think of Donald Trump as a list of policies, did you consider Donald Trump's list of policies as Republican policies?

When you actually look at, I think, the substance of things that were in his first platform the first time around, many of them struck me as kind of boilerplate, so not necessarily that much innovative, sometimes not very detailed. But on, on major policy issues, he struck me as a, you know, even a moderate Republican, actually, perhaps not a particularly, you know, deep or certainly not a policy wonk. But I, I think on that record, you know, if you look at, for example, his appointments to the judiciary, or if you look at, actually, I have to say that I. The tax cuts, I thought were not perhaps the best structured. If you look at energy policy, if you look at trying to rein in the regulatory state. His record is, I think, a record of a somewhat moderate to conservative Republican type of record. Now, there's plenty of things that got into the Trump mix which were highly unusual, I think, historically for Republicans, and that was part of the challenge to figure out to what degree these were sincere, to what degree was rhetoric, how deep did these go? And I think there are a lot of question marks on foreign policy, a lot of lamentable rhetoric around the immigration question. So it was certainly a. There were some unusual dimensions to it, but by and large, I actually think his record was. Fits fairly squarely within a lot of Republican policy aims.

Well, I mean, okay, but his record, of course, is something that would have been carried out or carried into effect by appointees, no doubt, many, all of whom were essentially Republican. So the fact that it's certainly clear that the deregulation objective, which Brookings has cataloged, all of the regulations that were removed, was a classically Republican perspective. But you've identified things which were pretty core to the Republican Party. Free trade, the neocon fights in Iraq and in other places like that, which Trump was not. Right. So. And, you know, the thing that obviously excited me when he talked about it, not that I was ever excited about him as a candidate, but when he talked about it was money in politics. He's the first Republican to stand on a debate stage that was actually broadcast to the world and called out the corrupting influence of money and super PACs. Those were distinctive policies, but they were strikingly non traditional Republican policies. Right?

Yeah, I think in exciting ways. And if I look back at that time, I think people like Peter Thiel came out and supported someone like Trump or supported Trump because he thought he could shake things up. So there was a sort of, you know, Washington dysfunction narrative, which, you know, there's this underlying, I guess, debate between, you know, the swamp and we're going to drain the swamp. And, you know, there. There are historical shades of, I think, Republican infighting there, but it was actually exciting. And I thought that was one of the more sort of brave things Trump did was to call out the Iraq War as a massive. A massive mistake, costly in lives and money, and something that was done under bad, false pretenses and something that was continued to be executed in ways that were hard to defend strategically. Many things about Trump's campaign that shook the boat, but that could also be part of what was exciting about it. The trade thing scared me the most. I really worried very much that on the train issue, there was. The rhetoric was extremely broad and the Question was really what that would look like in detail. I'm surprised. The detail turns out is complicated. So do I think the new version of NAFTA is better than the old? Yeah, I think there were many improvements there, and I think that trade at the end was improved. But that of all was one of the things I was most concerned about at the outset, and I think the record on that is a mixed record.

Okay, so if we could agree that Trump as a list of policies, at least initially, was an interesting mix, I mean, if you're a progressive, you're not going to find it attractive, except you'll be intrigued, I think, by the rejection of Iraq war, the rejection of foreign wars, and also the money in politics stuff. And to the extent that we saw Trump pull back, resist being pushed in a Bolton like way to be much more aggressive in foreign policy, even progressives might look at that from a policy perspective and think it's okay. But if we think about Trump not as a list of policies, but as a character, do we see the character in the same way? Because my sense of the character, Donald Trump is a man unconstrained by the truth and obsessively focused, narcissistically focused on his own place and his own purpose. And of course, all politicians to some degree are. But at least from our side, this doesn't look like a normally different politician in this respect. This just seems orders of magnitude different or difference in kind. The level of dissembling and the, you know, it was never really clear whether he even understood the falseness that he was uttering. So do we at least agree that was the case, or did you hear him and not think that these things were as false as those on our side did?

There's a lot there to unpack. Let me begin by saying clearly there's something psychologically interesting or unusual about Trump, and I'm not a psychoanalyst, but I think those sorts of observations, it's hard to escape them. And in some ways that, you know, that was probably essential for him to be able to say and do the kind of things and shake things up. So I think that was an ongoing question mark. Exactly. Whether you want to call it egoism or narcissism, there's something peculiar going on there. Again, I think that's not entirely unusual amongst many of our politicians. Maybe more of a spectrum than a kind distinction. But then you use this phrase, falsehoods and things that he was saying that were false, and there are certainly things Trump said that were not true, then there were Things that were. And you saw this as sort of continuing dialectic and media coverage, sort of distinguishing, you know, jokes from rhetoric, factual assertions from hyperbole. I'd be curious, you know, maybe on the top of your mind to know what, what you felt were the falsest things or maybe the most dangerous falsehoods that Trump cracked in, because no doubt that there were. He was somebody who you could tell in his mannerism speaking, was an imprecise speaker, and he would often engage in hyperbole. He'd often engage in things. And sometimes aspects of the rhetoric were also, I think, derogatory, demeaning in all sorts of ways as well. But on the issue of falsehood, and, you know, this comes up with these, you know, discussions of fake news and back and forth, I found so much evidence from almost every political side of people trucking in manipulations of the truth, trucking in either omissions or bending the truth, and sometimes flat out, you know, flat out lies. And I have to say what struck me about Trump was not just that they, that he engaged in some of this rhetoric, but he somehow got every one of his enemies, I think, to engage in this sort of behavior to a degree that I found almost as horrifying and sometimes more horrifying. So I'd be curious, sort of off the top of your head, you know, the things that stood out to you, as when you use words like, you know, false, is it. Well, I'd be curious what, you know, what continues to, you know, when you talk about that, come to mind. And I'm curious to test that against sort of the things that come to mind when I think about how the opposition resistance presented some of its claims.

Well, I mean, there was the harmless, just ridiculous lies like I was named Michigan's man of the Year, or windmill noise causes cancer, or the head of the Boy Scouts called me to say that it was the greatest speech they'd ever had. These are just, you know, just lies and they don't matter much, but they just speak a character. But then let's talk about, you know, what's called the Big lie, which, you know, did matter a lot. And there'll be many months in jail that people spend in a consequence of the big lie. The presidential election was rigged and stolen. Now, there's just no basis for that claim in. It's not a slight lie. It's not like it was, you know, it's not like arguments about 2000 and Florida and, you know, 534 ballots. If you had counted this class of hanging chads, then Bush wouldn't have won. It's not that kind of lie. It's flat out false and it had a huge consequence. So let's just start there. Is that claim true or false?

This is a great, great place, I think, to focus the conversation, an important place. Two things I want to maybe raise. So my understanding, and clearly there's a lot of truly insane assertions made about the election coming from the right. Let me acknowledge that at the outset, my understanding of the most reasonable claims that came out were of two sorts, of which I guess one question was within a handful of states, I believe Pennsylvania was the most contentious, whether or not the process for setting up absentee ballots was constitutionally permissible. And that was an open question. And I guess, you know, it's a question at least two Supreme Court justices seem to think deserve further scrutiny. And then there was a question, as I understand it, of, I guess, signature verification and large discrepancies in a handful of states of the amount of ballots disqualified previously versus this last election. And those two things were plausible things to look into. To my knowledge. There were no smoking guns that would make us think the election was not rightly decided. I understand the interest in looking into that. And then this question is, well, how is this going to be communicated, spun, narrated? And it is an interesting sort of hypothetical to ask whether it was a bigger lie to assert that the Russians and Russian collusions determined the first election or that the second election was stolen. And what's interesting about it, and this is actually sort of, I guess a common theme of one of the things that concerns me is my worry is that the right, the far right has started to look more and more like the far left in sort of their willingness, the tactics and the ways in which they operate and the things they entertain. So I think there are slight questions about the election that deserve to be looked into, deserve to be investigated. I think it's also worth investigating any leads on Russian collusion. It is remarkable, though, to compare those two and what we increasingly know, and I suppose we'll know more soon from the Durham Report of the ways in which. It's hard to sugarcoat this, but people in government from the previous administration were instrumental in fabricating evidence against an opposition political campaign and then actually spinning this into a two and a half year investigation which it turns out there was no basis for. So again, I think there's, you know, there's interesting mirror aspects of both of these and, you know, I think tremendous excesses and, you know, lies on both sides that were played to mobilize people in pursuit of a partisan agenda. So, yeah, the, the worry is the political rhetoric and the wishful thinking. And again, it's a question of, I'm sure there are people that sincerely believe the Russian collusion narrative. I'm sure maybe Trump himself actually believed the stolen election narrative. There weren't enough responsible mediators between those messages and the population on both sides to actually, I think, moderate what should have been a healthy amount of skepticism in what is understandably a serious question of concern. But yeah, it's in many ways what the people on the right did in response to that. January 6th in particular reminds me in terrifying ways of what people on the left did the previous eight months in terms of violent protest, riots, assaults on court buildings. And that mirror image of one another, really, I think is a major cause for concern. And I think it's something that true liberals, true moderates should, you know, be vociferous at condemning.

So mirror image is a big word. I mean, you know, with respect to the Russian question, I don't actually remember anyone saying, anyone serious saying that they knew that the Russians had stolen the election. There were questions.

I would invite you to go back and look at a number of choice interviews. I mean, people like Brennan, former CIA head, I think coming very close to saying, if not verbatim, something like there is clear evidence they're aware of and it's going to come out any day now.

Well, I mean, I think that the Republican authored Senate Intelligence Committee report suggests that there was something serious there without reaching a conclusion of its ultimate effect. The fact that there was something serious there was the thing that I think people were deeply concerned about. So legitimately it should be investigated. And I think it was, you know, whether Mueller should have done it more quickly is a good question, but I think it was appropriately investigated. But there's no parallel, there's literally no legal parallel to what happened on January 6. Because even if you say, as you say that there were questions about whether there should have been a procedure in Pennsylvania done differently, even if that was true, it had nothing to do with what was supposed to happen on January 6th. Because under our law, the law says that Congress says, we promise you the states that if you have a process for dealing with contests about elections and you resolve that contest at least six days before the electoral college votes, and there's only one slate of elections that gets slate of electors that gets presented to us. If you do those three things, we promise we will count your votes, period. So on January 6th, there was nothing to talk about anymore because all three of those conditions had been satisfied. And yet to that day, the president expected and asked for and called for the vice president to ignore the law and to throw out slates of electors from at least three states to make it so that he would be a selected president. Again, that was flatly illegal. And there was nothing flatly illegal in what happened. You know, even assuming that this framing of we have, we can only talk about Trump if we talk about the parallel to some Democrat, it says, let's focus on this. That was flatly illegal. George. Right. And if it was flatly illegal, why can't you say it was just completely wrong to be promoting something that was flatly illegal on January 6, which had seemed to me a predictable effect when you had thousands of these people rallied to believe that their election had been stolen, that they would do something like they did to cause the violence and the death that consequence. That was the consequence of it.

Yeah, I have to understand, I never, it was never clear to me what this grand strategy was of president and his allies. Allies. I, I guess, I mean, I'm, I am literally guessing here that the idea was, I don't know, Cruz and Hawley, would there be some procedure that would require, I guess, give him another two weeks to do investigations and. But it, it seems to me things were long since settled by then. But I, again, I'm projecting here, but my guess is the hope, their biggest hope was to have registered an objection and have crowds outside saying, look, we're supported by the people. You know, clearly what went down was such extraordinary, unbelievable incompetence, imbecility, ludicrous. It's hard, you know, it's hard to even reconstruct what, you know, if there was a plan, what that plan was. But I should say I was worried actually when, well, when this whole, between November 4th and January 6th, as the debate developed, I was worried that your earlier work might actually come into the crosshairs. And I was worried that you yourself might have been accused of insurrection. Because my recollection, and I'm only reading this from media accounts, but it was something like, you know, there was this move after 2016 in states where the Democratic vote was clearly decided, have electors not vote the will of the people, and try to deny the presidency to the duly elected president through a kind of, I guess, loophole in the, in the way in which electoral votes were mandated. And again, it's an interesting question of its legality. I guess we know now that it's not legal. As nine Supreme Court justices ruled against it. But it does strike me again, the equivalences of. They're not equivalent in all sorts of ways, the violence being the most important one. But there was, I saw it on both sides, an attempt to do anything possible and look for loopholes within constitutional procedures to try to deny the presidency to the person who appeared to be duly elected. And. And again, the violence is a totally new ballgame here. But in terms of the legal question, I saw that both sides were extremely creative in trying to find legal constitutional loopholes to overturn elections. So again, I see more and more aspects of mirroring that disturbed me. But certainly the violence was appalling and, and something that needs to be strongly condemned.

Okay, so, but that's a fair question. Was there an equivalence? What happened in 2016 was actually, remember, of course, the predicate for the belief among some that there was a reason to explore what the elector should do, which is that Donald Trump had not prevailed in the popular vote. But that fact led many electors to ask the question whether they should do something non traditional, which is not to vote the way that they were pledged. And the question, the legal question, was whether they were entitled to do that. Now, yes, the Supreme Court has ruled that they're not entitled to do that. And we brought that case and pushed it all the way to the court because we thought it was an incredibly important question to be resolved outside of the context of a particular election. Because obviously, it's a hard question to resolve when it decides who the President will be. But the resolution of the court, at least among legal scholars, especially among originalists, was not consistent with what the power of electors was originally understood to be. Even if in some sense I'm happy with the way the result came out, I do think the electors in 2016 were not making it up. There was the tradition that insisted that they had a discretion which had been exercised, and they were trying to exercise it, and they were exercising it in a particular way. What the group, I wasn't part of the Hamilton electors group at that point. I just defended them afterwards in the Supreme Court. But what the Hamilton electors were saying was, let's find at least 37 Republican electors to join with us. And if we can find, you know, 37 Republicans and 37 Democrats who will say we're going to vote for somebody other than Hillary Clinton or Donald Trump, then it can go to the House, and the House can decide whether the person who lost the popular vote should be the president or whether somebody else should be the president. But it's a second look given this Democratic inversion, which of course was not ever expected by them to lead to the election of Hillary Clinton, because the presumption of the House, given the Republican Constitution, was they were not going to pick anybody other than the Republican, but at least give them a chance to say, should it be the person who has not won the popular vote or should it be somebody else? Now, one can argue about the plausibility of the strategy, whether it had basis in law, which it plainly did at the time. There is just no basis in law for the belief that on January 6, Josh Hawley had a right to stand on the floor of the Senate and say that anything other than confirming the electoral votes could be his vote. I mean, he could give a speech and he could say, I don't like what happened and I think there should have been a better process and we shouldn't have mail in ballots or blah, blah, whatever else he wants to do. But when he cast a vote saying he objected, there was no legal basis for that vote. And so the point, to the extent that even after the riots there were how many people in the Senate and how many people in the House, I'm forgetting the number, but an astonishing number who joined together to say they object to the certification of the vote that was nothing more than just political posturing in the face of the President's continued insistence it had no basis in law or fact. Right. And. And so I don't think it's a mirror of what might have happened before it, you know, was about the election. In that sense, it's a mirror. It's about who's going to be President. In that sense, it's a mirror. But it was an attempt to get around the procedure that was in the Constitution as opposed to the electors who are in the Constitution and historically have exercised discretion and, you know, it's never mattered except for the vice president in 1836, I think. But. But still was a move that was contemplated and allowed. This move that the Congress would reject the certified electors from the states is just plainly inconsistent with what the Electoral Count act says. They don't have the power to do that. And so that they did that they thought that they could do that seems to be something that we should be able to say is different in kind, even if it's, you know, addressing the same question,

you know, just to game this all the way out hypothetically. It does seem to me if, if you had, say, prevailed in 2016 and gotten a set of electors to decide that they would not follow the vote of their state and submit that I do think it's. It's an interesting open question, the proper response, that surely lawsuits would have been filed, but if the date approaches the date at which one has to count it. And there was this question about every. It seems to me the plain understanding of what's been going on for elections for a very long time is that electors vote their states. That seems to be the plain understanding on every, every news media outlet in the entire entirety of America, which is a rare thing for somebody, people to agree on. It strikes me that there would be an interesting question about what, what power is there to say you have a concern with the, you know, electoral, you know, vote that has been turned in. I think the challenge is that the Constitution doesn't, certainly doesn't contemplate this in either direction here. And I'm willing to acknowledge the legal argument, which I suspect you're better to make than better position to make than I am, that standing in law is not obvious at all.

But it's interesting. Let me concede one point, but then make clear one point. I am incredibly happy that the Hamilton electors. I don't know what would have happened if the Hamilton electors had succeeded. I mean, I agree that there would have been an extraordinary, extraordinary uprising of frustration among Republicans at least. And you know, maybe the same sort of thing like it happened in 2000 when for the first time in modern history, we tripped on the fact that the winner of the popular vote doesn't necessarily win the electoral college. But, you know, I agree that would have been a really, really important struggle. And I'm just kind of happy it never, in some sense, I'm happy it never happened. But actually, in 1969, Congress debated this issue directly. In 1969, a Nixon elector voted for Wallace from North Carolina. And when it came to the floor, a number of members of Congress in the equivalent of the leading up to the January 6 event, said they didn't think that his vote should be counted. They didn't think it was a regularly given vote. And under the law, it's only regularly given votes that are supposed to count. And, and Congress debated it. And what Congress said was, it's a regularly given vote because he's an elector and he gave the vote in a regular way. He wasn't bribed or coerced. So it's a regularly given vote and Congress has no right to second guess what the electorate done. Now. It didn't matter. Nixon was going to be elected regardless. So it's not like there was Any, any stake to it. But the point is, this is not the first time. This wouldn't have been the first time this question was raised. And when it had been raised, historically, the resolution was, this is just a power we've given these people, we call them electors, but that's the power like a grand jury has the power to indict or not, and a jury has the power to convict or not. The elector has the power to follow or not. And, and of course, you know, historically they're called these faithless electors. The electors, the Hamilton electors were in some sense, you know, trying to be as faithful as they possibly could be to the people who had voted for them, because they knew every one of those people would rather have someone other than Donald Trump, than Donald Trump, because they had supported Hillary Clinton. So when they were trying to engineer to bring about a result other than Donald Trump that was perfectly faithful with the people who had voted with them, it was just more complicated than the simple question, okay, Hillary Clinton got our vote, so therefore vote for Hillary Clinton. But the point is, here we are in January 6th, and let me make another concession. Leading up to January 6th, people on this podcast will know we did an enormous amount of work to map out the strategies that we thought were going on and that people had told us were going on to use legal strategies to overturn the election through interpretations of historical practice or the power of the Vice President and all sorts of things like that. And there was one scenario which we mapped out in one of our podcasts, where the Vice President, pointing to particular events in the past, asserts the power to be a presiding officer, which means that he gets to rule on open questions and Congress can overturn him, but only if both Houses agree. So if under this theory, Mike Pence had said, I see a slate of electors from Pennsylvania for Joe Biden, but I see another slate of electors from Pennsylvania for Donald Trump. And I think the vote for Donald Trump is a more authentic vote. So therefore, I will count the vote for Donald Trump. Under this theory of the Vice President's power, the Vice President's ruling is the presumptive ruling. Congress can overturn it, but only if both the House and the Senate vote to overturn it. Obviously, the House would vote to overturn it, cuz the House was controlled by the Democrats. But at least when we were thinking through it, we imagined Mitch McConnell playing a much more partisan role than he turned out to Play. And Mitch McConnell could have easily said, we're not gonna vote to overturn it. So then his ruling would Stand. Okay, but then the point about this is, I, you know, when this was leaked, when. When we were leading up to the actual vote and imagining this happening, I many times thought to myself, what should a patriot do? What should a patriot do? If Mike Pence had played that game, which clearly Donald Trump had asked him to play, and had ruled Donald Trump into a second term, I'm not sure what the right thing for a patriot and a democracy to do is. I mean, we're so quick to condemn the people who believe that the election had been stolen from Donald Trump, but if we had thought it had been stolen from Joe Biden, what should have happened? And so the point is, I think that if you push people to the edge, you will produce this kind of craziness on both sides. I think you could produce this craziness. But that points back to what's pushing us to the edge. And again, I'm struck that I've asked you to say whether you think it was just wrong to claim the big lie, because there is no basis to believe that the election should be flipped and gone the other way. And what I'm struggling with is instead of just saying, yes, it's wrong to have claimed the big lie, you want to say there's a mirror to what happened in 2016, which we can argue whether there's mirror or not. But standing alone, is it wrong for the president, in the middle of a heated political situation, to be insisting that his election was, quote, rigged and stolen when it plainly was not?

Yes. You raised two really important questions here. Let me address the last one first. So I think my position, I think the rational position on the Republican side should be, unless there's smoking gun demonstrating electoral fraud, election fraud that's documented well and very well documented before you get to January 6th, then the game's over and you have to go forward. So in light of that, yeah, I thought the rhetoric leading up in early January, the game had clearly been lost. Now, I think it's entirely reasonable to do a deep dive to try to understand everything from where the procedures were followed to whether there are discrepancies in ballot signature matching and all this. So that's entirely. It seems to be appropriate. And again, it's not like there's zero election fraud or the whole election's fraudulent. So it does seem to me like the absolutely appropriate response in Those weeks between November 4th and January 6th is do a thorough and deep dive to verify the integrity of our elections. I think some states do a better job of this than others. And I'm not sure the lessons one should draw from this last election is that, well, this may be a different conversation on issues of election security. My general impression is somebody should come out of this experience saying, you know, here are some states where I think we need a better process, and maybe the kind of reforms that Florida put in place after the hanging chad incident would be worth putting into place in other states. But, I mean, the, the ultimate answer is, yeah, unless you uncover something, a smoking gun by January 6th, then, you know, and I don't. I think reasonable people understood this, you know, the election's over and you transition power. Now, there's a second sort of suggestion from what you said, which I think is really, really interesting, which is what would have happened had Trump been reelected and would the political violence we saw on the left in the previous eight months. I can tell you, let's just say in D.C. having visited not long before January 6th, all the downtown area was boarded up, and that wasn't because of Trump protest, as they were worried about. Again, I think you're asking the right question. How do we get to this point where people on both sides are willing to deploy violence? And there is a psychology of, if you think you're in an existential threat, then you could imagine why patriots on all sides of the political spectrum would be alarmed. But the record here, and I have to say this was the most astounding thing to me in my lifetime politically in America, was the response to widespread violence in America's cities from May to roughly November, which I have to say was profoundly disheartening, profoundly scary. And I condemn the violence from January 6th. And I'm actually on record as saying they should have started shooting the Trump people when they started crossing the line, the police line, and that would have stopped it much quicker. So I, I think I'm consistent on this. But, yeah, I, I do wonder what the counterfactual would have looked like. And, but we have to be very

precise about the counterfactual. I'm not talking about Donald Trump winning. I think my view is if Donald Trump had won in the sense that he'd gotten more votes, or even if he hadn't gotten more votes, it was clear that the electoral vote was with him notwithstanding, I don't think there would have been violence. What I'm talking about is a very particular event, which is, it's absolutely clear under the law that something like the Pence game shouldn't be allowed. It violates a million things. But whatever. The point is Pence plays the game to rule himself into the vice presidency and Donald Trump into the presidency. So in the precise terms that the placards on January 6 declared the election was stolen. And so I agree. So what I'm saying is, I think that you could imagine mirroring violence, events in the face of the election being stolen. But that puts force on the question that I asked that you've, I think, agreed to. Now that it's wrong to have said the election was stolen, it's wrong to have rallied your people around the idea the election was stolen. It's fine to rally them around the idea we ought to have better election systems, which is what happened after 2000 in Florida and across the country with the federal law, to actually make it easier to have better election systems. It's fine to say we ought to be more careful in the way that we collect or distribute mail in ballots. That's perfectly fine. But there's just no doubt the election was not stolen. And when you tell people that it's, quote, stolen, you empower them, you entitle them, you obligate them if they're a patriot. And in a way that you. Which just had no basis here. And that's the Remember when we started this conversation a long time ago, I was trying to distinguish between the list of policies Donald Trump has and the character point. And I just wonder whether this lie doesn't cross the line or is there any lie that would cross the line to make it so that you would say that the character's now disqualified?

Yeah. So two important things here. This was a very close election. Right. I think it's something like 40,000 votes had been distributed slightly differently, that could have changed the outcome. So, again, I think it had gone the other way with 40,000 votes. Honestly, I don't think the rhetoric would have been much different. It would have been a rhetoric about, you know, how many Russian Facebook ads were there bought, who was colluding with whom. It was a very close election. Now, at a certain point, unless you have a smoking gun, you give up and you admit defeat and you move on. So that was, I think, clearly a mistake not to do that by January 6th. But that doesn't mean that I think one can't be rightly concerned by everything from policy changes of dubious legal value in certain states or not policy changes, but the way the elections were conducted. And I think there's going to be an ongoing debate here. And there's a voter ID stuff. There's the question of how you verify absentee ballots and that sort of thing those debates will continue to be with us. And I hope one lesson we can learn from this is that if people don't have trust in their electoral institutions, that does create a lot of problem. And both sides, I think have sown distrust. I hope we have the ability to address and there are proposals I think on each side to do this and we can debate those merits. But I think that is vitally important. It's not unreasonable for someone to say this is a very close election, very small differences could have determined it and you know, to justly, you know, wonder and again, these are so, these are such small margins. So, you know, I don't see it is an interesting counterfactual what it would have looked like on the other side. But I think we basically agree that yes, unless there's something and there wasn't documented by January 6th, the fantasies about, you know, these, these procedures to try to maintain the presidency were pretty absurd.

There were small differences in key states. Had they gone the other way, could have flipped the electoral College the other way. It's actually smaller. It's something like 26,000 votes in three states would have thrown the election into the House of Representatives. But the structural problem that has become even more central to our discussions about our so called representative democracy is that it was not a close election. It was 7 million votes between Donald Trump and Joe Biden. So it's bigger than Obama in 2008, only George Bush. I think it's even bigger than George Bush in 2004. So it's a big victory from votes. It's just the weird way our electoral college has evolved. It's extremely, extremely tenuous given the Electoral College. Now if it had gone the other way, if, you know, 40,000 votes had flipped in those three, those three states, plus one vote in Nevada had gone the other way, then yeah, I think we would have had a lot of frustration and anger on the Biden side. It's hard for me to imagine the vote that, you know, the rhetoric, the election was stolen. If it had been just the votes going the other way, certainly Joe Biden was not, would not have been pushing that kind of rhetoric. And so it's a different hypothetical from the hypothetical I'm talking about, which is literally under our law stealing the election. But it's a hard question to know exactly how it would be resisted. What's striking about the Russian thing is that I don't think there's a lot of evidence of much engagement by Russians in this round. I mean, there was plenty of evidence of engagement of Russians in the last round, before the election and after the election. So there obviously was a change in the desire to involve themselves, or maybe they succeeded in being even more invisible in their engagement. So it would have been hard to fall back on something like that. There would have been frustration. There would have been anger. But without some cheerleader at the center insisting on a fact which is just flatly false, I don't see how it spins out of control like that.

So if you look at the big picture, and I think you've said in previous podcasts, something along the lines of we're a majority Democrat country, and so isn't it wrong that you would have Republican control of the executive or legislature? And I guess in the big picture, I maybe want to push back on that a little bit and say when you look at the numbers, it's something like 25 to 30% of the population is ideologically registered Republican, Democrat, but more like 45 to 50% of the population is, you might call moderates. People who want to live their lives aren't tremendously politically engaged. They'll switch votes across aisles depending on different elections. And I think what was really striking about Trump is that he mobilized a lot of people who traditionally hadn't voted. And this, you know, this election was a record turnout. I think it was more voter turnout than a century. And so it's a 7,000 or 7 million person difference. You know, roughly, what was it, 74 to 81. And something like 5% of Republicans voted for Biden. And that's something that may not happen the next candidate. And I also think Biden was a candidate that was uniquely able, I think, to get elected against Trump. It's not clear to me that any of the other finalists actually would have won. So there's an interesting, I think, kind of meta question right now about political parties and representation to the American public. They're a great Democrat. I love John Delaney from the outset, and he got off the stage pretty quickly. There was also, I think, great Republicans. Of course, the primary process pulls people to extremes. And I do think there's a worry about how those extremes translate into our political dysfunction. And one of the concerns, talking about character, rhetoric and truth and falsity, one thing that really did disturb me, the only thing that disturbed me almost as much as the political violence of the last eight months during the Trump presidency was this sort of war with the media where I thought people on both sides acted disreputably. But I remember there was, I think, in the initial email we exchanged near the election where you had raised an interesting hypothetical or an interesting question about Trump saying something out loud when coronavirus first hit about a cruise ship off the coast. And it sounded like, and I don't remember the exact details, but, you know, Trump might have made a political calculation that could have jeopardized the lives of tens of thousands of people. And, you know, isn't this a horrible insight into the character of the man? I think you're right. That that is what was striking to me is around the same time, in fact, a few months earlier, it was well known, the controversy to which Governor Cuomo is now engaged in New York, both in the, I guess, over 10, 15,000 deaths that his policy might have caused during coronavirus with regard to nursing homes, as well as some of the sexual harassment stuff. This stuff was widely known, reported on many months in advance of the election, and yet it couldn't be covered. It could, couldn't be discussed. And there was this, and this is just one tiny example, but there were these over and over, inability to have sort of critiques of both sides. And so I saw a lot of bad behavior by the far left, by the far right. I saw the right's behavior being scrutinized, which it deserved to be. I found it frustratingly difficult to get scrutiny, you know, through large media establishments of misbehavior on the left. And actually, one of the great things about having Biden as president is now there's sort of some space to do that again. But I do think one of. One of the. There were many lessons, I guess, of the Trump era. I think one of them was the degree of illiberal convictions on both the right and the left. And, you know, I hope that this will. And there are things we're still fighting today, but I hope this will cause a resurgence of people in the middle, of moderates, of actual liberals in the classical sense, that really want to develop a society in which mutual cooperation is possible. And I think in some ways, the last four years have drawn out the worst for both sides. And I hope we're able to critique both of those sides going forward. And I think a lot of lessons have been learned with regard to Trump. I'm not sure as many have been learned with regard to the left.

Well, I mean, wouldn't we say that what Governor Cuomo is facing right now is exactly what Donald Trump should have faced? I mean, Governor Cuomo, you know, a series of women have come out and alleged inappropriate behavior with Governor Cuomo. Nobody's alleged rape the way they had alleged with Donald Trump, but, you know, inappropriate behavior. And he has this fundamental mistake which led to thousands of people dying and then lying about the mistake. You know, I've never liked Cuomo. I called Cuomo Nixon, you know, six years ago. So I have no patience for Cuomo. But what's striking to me is that you have Democrats lining up, calling for him to step aside. Both senators now, huge number of New York leaders who are calling on this, and Joe Biden just simply saying, there's an investigation, let's wait till the investigation, and then we'll make a decision. What's striking is you didn't see anything like that, right, with the Republicans and Donald Trump. And wouldn't you have wished that you had seen something like that with Donald Trump? If I take it you celebrate it, that we see it with Governor Cuomo?

I think we saw it played out on a daily basis with Donald Trump. I think there was no detail left unturned. There was no lead or rumor left uninvestigated. There were even many apparently fabricated. But what strikes me, the discontinuity between the vigor with which the press is in many ways a fourth branch of government, the vigor with which I do feel like Trump was extremely thoroughly critiqued, as is appropriate. But everything known about Cuomo was known six months before the election, or maybe four months before the election.

Well, I don't know about that. These women didn't come out till recently. But, I mean, what I'm asking is the leaders, the Democratic leaders, who are the Republican leaders who called on Donald Trump to resign

instead me resigning for.

Well, I mean, the combination of any one of these things is parallel. That was your point, right? We have the sexual assault allegations.

It strikes me that the most serious accusation is that you made a decision which caused the death of tens of thousands of people and then lied about it. And Trump, in that case, had actually not made the wrong decision. He thought aloud about the wrong decision and made the right decision. And I think there were a lot of instances like that where, you know, thinking aloud was impolitic, but the right decisions were made. It's actually interesting. The thing that will get Cuomo in, it sounds like actual trouble, is the final surfacing of these many allegations. And those I think we need to look at more on a more individual basis to see how those compare with various accusations about Trump's improprieties. But it just struck me, the. The willingness to actually report on these things. There was an extraordinary divergence, and I do think that that has left a bad taste in many people's mouths. And, you know, we're talking about 74 million Americans that voted for many for different reasons, perhaps. But at the end of the day, I don't think it's because maybe this is a, a nice way to put this. I don't think it's because they loved him so much as they feared the kind of powers that were. That Trump brought out of the woodwork. Everything from the mobs this past summer to a press that I think engaged in as much falsehood as Trump did. So I think that this is part of the. I mean, I think different sides have their narratives about this. But. But I think that there's roughly 47, 48% of America that was deeply troubled by what they saw on the other side. And again, I hope the net effect is not increasing polarization, but there might be some sanity in trying to pull both extremes back to something that would be, you know, a basis on which to conduct politics that is truthful, rational, well debated, scrutinized. And I think that's a common goal that people on both sides of the aisle could have.

Yeah, I agree with the objective. I'm not sure we're there yet, because as, as, as insistent as you are about the mirror and that this is on both sides, I'm still having trouble finding the equivalences. Right. You know, we could, we haven't delved into, because we just don't have time, but we haven't gone into the series of really critical decisions made far beyond the cruise ship decision which led to the deaths of, you know, many more than tens of thousands of Americans. We haven't talked about that. So that's why I thought you brought this up. Originally, we had perfect parallel bad decisions about a crisis leading to deaths and sexual impropriety. But one could say that the Trump flaws on both registers were much more significant than the Cuomo. And I would have said what's striking to me is the unity of Democratic leaders to say if this is true, you've got to step aside. But the more fundamental point you just made, which is something we agree on, and I just, I don't think we get to the truth by pretending that it is a perfect. You know, this is like climate change debates, like, there's two equal and opposite sides here. We didn't see leaders in the Republican Party enough of them willing to stand up. And even against the big lie, you know, there's a couple who are willing to stand up and resist on January 6, but so many others who are unwilling to do that. And given you've been willing to acknowledge that that's a big lie, would we at least agree that we've gotta be at a place where people have the courage to say what's true on both sides, but the courage to say what's true, even if it's in the face of what's got to be the biggest worse in the Republican Party for now and for the foreseeable future?

Yeah, that's, I think, very well put on the mirror theme. I think there's many Republicans and even many moderates that vehemently would like to endorse principles of free and open debate, of truthful debate. And again, one of the, I think, concerns, and again, this is just a mirror is. And the left right now has to deal with and work through wokeness and the worry today that you can say true things publicly and have your life ruined for them. You know, before we get into, you know, free speech issues about things that are controversial, there is, I think, a sort of interesting meta debate that actually transcends the Trump issue, which is a kind of an issue of, you know, what does free and open debate look like in a free society? Of all these many issues, I think I'm the. I'm least certain that we're headed in a positive direction. I think, you know, in some ways, the violence has been unmasked a bit on both sides. We're starting to get better recognition of that. You know, there's, I think, certain things that are improving. I think the latent thing which I'm perhaps most worried about going forward is the ability to conduct truthful, open, honest and comfortable, you know, debates in public without fear of having a mob to try to get you fired or ruin your life. And that's something. Again, there are mobs on both sides. But I think that ideal of honest, truthful debate that actually aims to progress in our understanding of each other and progress in some consensus about the right way to improve our government is really a worthwhile objective.

Well, certainly I agree with you that we have a serious problem in the cultural support for staying true things, especially true and difficult things to say. So there's no disagreement about that. I have one last question, and then I want to just. Thank you. So the last question is this. We've talked indirectly about the Black Lives Matters protests. You've invoked the violence of the protests. I. I'm interested in the basis for the belief. So I just, you know, if I asked you, like, what percentage of those protests, which, of course, were Incredible number inspired by the murdering of George Floyd. What percentage of them were peaceful? What's your expectation of that?

It's an interesting question whether. I mean, the vast majority, obviously, and. And not to overplay this mirror thing, I. I think there was something like 10,000 people at whatever that January 6th Trump rally was, and I think three or 400 ended up engaged in the Capitol mischief. So, again, yeah, the vast majority, peaceful. And look, the aims of Black Lives Matter, of course, really important. I think the worry is that you allow an excellent, justified cause then to be hijacked if simply invoking that, you know, as an excuse for some small, very small minority of people to burn down buildings, attack courthouses. You know, that's a problem. And I think, you know, there's an interesting issue of rhetoric here, but, of course, look, you know, what's deceptive is saying trying to divide people. You know, I think the vast majority of Americans, and this is a whole different discussion, but I actually think. And it shows in the exit poll numbers, that a lot of the narratives around Trump as racist are actually mistaken in some really interesting ways. But it's really what I saw happening during some of the Black Lives Matter debates was I think the vast majority of Americans, being people of goodwill, that want deeply to improve issues of racial justice in this country, and then a very small minority of fairly radical people, sometimes very violent people, that use that as cover to do truly bad things, and that's a problem. And being able to distinguish those two, I think, is really important. And it was frustrating. I think Boston and Massachusetts, talking to friends up there, did a very good job on. On the law enforcement side. Whereas other places, Seattle and Portland, I think, actually struck at the very foundations of civil society not being able to protect citizens. And they have crime rates now that are three times what they were a year ago. And so these are tough issues, and they require a lot of judgment. And I have to say, it disturbs me the way in which the highest ideals, some of the most important things we need to be work on, are then corrupted by, you know, small groups of people that use that cloak for very narrow, very partisan, and sometimes very destructive ends.

Yeah, we agree about that. Although, you know, the differences are important. The study that was released in September found 93% of these protests were peaceful. And that's it. Yeah. Well, okay, so. But the underlying. One could say. One should say the underlying cause has hundreds of years of frustrating in lack of progress behind it. So to the extent one says at some point there is cause for frustration, this might be such a cause as contrasted to you were in not to out too much here, but you were in Washington. And before January 6, there was also other protests which also led to violence. You know, Trump related protests led to violence. And it's hard to see the equivalence in black lives matters versus making sure Donald Trump is the next president. But let's agree these movements can always be hijacked and the hijacking is bad, but the hijacking of one is not a justification for the hijacking of another. And we should be able to say one's just flat wrong, especially when it's something as fundamental as capturing the. Capturing the White House against the law, which is technically what insurrection insurrection is. Okay, George, we've gone longer than we're supposed to go and it's obvious we could go on for much, much longer. But what I was confident of you you've demonstrated, which is that we could have this conversation and disagree and yet demonstrate that there's a capacity to disagree and continue to disagree, though with understanding and respect. And I'm grateful for that. And let's continue in whatever form to try to find a way to bridge this gap because I agree with you. We need to find a way to get to the majority again feeling empowered and not captured by fear, which is what I think is a description you've given, which I which I think is true. It is fear what causes it. We could go on for two more sessions about but. But that is. That's what's there.

Thank you so much for having me. I hope we do continue. I think we go for for many, many more sessions. But again, I think what you're doing here is so important and I wish you the best for this project and hope we'll have more opportunities to collaborate in the future.

Great. This is Larry Lessig. This is the end of this episode of the podcast Another Way. Next we'll have the genius from Princeton on the question of gerrymandering and how HR1 might address that problem. Sam Wong has been a force of nature in using math to help understand the problems of gerrymandering and why it is so important to voter equality. That episode will then be followed by another in the stream of HR1. You can find these podcasts at Equal Citizens US anotherway. And there you can find a place to give us feedback and ideas and other people you think we should talk to. And you can find a place there as well to share these podcasts because sharing them is what makes them live. I'm grateful for your support and feedback. And of course, your support of the themes in that Equal Citizens has been supporting until the next episode. Thank you for listening. This is Larry Lessig,

Sa.