00:36:48.140And everybody in his administration knows this, which is why, after the debate catastrophe, it's just unbelievably shocking that they won't tell the truth to the American public.
00:37:04.560The Democratic Party will not tell the truth.
00:47:18.260They certainly didn't say that this didn't happen, Glenn.
00:47:21.380And I think, like, if you're looking for what this case truly represents in a broader context, you've got to go back in time into May 2022 when we filed it, which was before Elon Musk bought Twitter.
00:47:36.880It's before we really started to learn the extent of all of this censorship.
00:47:41.220And when I filed it, we had some idea because you had, at the time, Jen Psaki standing at the podium gleefully saying, we're flagging this stuff.
00:47:49.960You know, so I think it's important to remember where we were at.
00:47:55.280I also think what it does, too, Glenn, is it probably shows us that there needs to be another kind of remedy for this sort of thing.
00:48:04.360Like, there needs to be, in addition to just saying, the court saying, you can't do this anymore, there need to actually be real damages here.
00:48:12.660And so that, I think, is a good segue into what we should do next in legislation that I have filed, which is twofold.
00:48:20.020So, one, on the social media companies themselves, if they're engaged in this kind of activity, because under Section 230, the legal protections they were given under the 1996 Telecommunications Act, essentially what Congress said is, okay, Internet people, platforms, you're going to be an open platform.
00:48:40.820Therefore, we're not going to hold you to the same standard, legal standard of, you know, sort of you can get sued for libel or, you know, you can get sued for any of the things that people might be able to sue CBS News or a traditional publisher for.
00:48:54.820So, they get this blanket protection because they're just supposed to be kind of an open source platform.
00:49:00.280That's not really what's happening right now, right?
00:49:02.320So, if they're found to be, if somebody sues, if Glenn Beck were to sue or something, and say, you know, this was, you know, you are censoring because it's a viewpoint discrimination or some sort of thing like that, that you lose your Section 230 protections.
00:49:18.900Do they want to be a publisher or do they want to be an open platform?
00:49:22.380The second piece, and I actually think it's maybe perhaps the most important piece for the things that you and I care about the most, which is the government's role in all of this, is that you provide a private right of action.
00:49:33.140So, you can sue an individual government actor for violating your First Amendment rights.
00:49:40.100I think that changes the incentive structure for these bureaucrats who right now think they can just sort of get away with this by labeling everything misinformation or disinformation.
00:49:49.060So, if they have something on the line themselves, it's a culture change, and that's what I'm going to be working on moving forward here.
00:49:56.720Do you think you have enough support or will in the next season of Congress and the Senate?
00:50:05.900Yeah, I think we have to take the majority, obviously.
00:50:09.200But I do think this stuff has been exposed.
00:50:11.340I was actually thinking about you last week, and so it's good that I'm on the show.
00:50:16.740I was thinking about when I think when it may have been the first time I met you, it was at an AG event, and you had that compass from Washington, right?
00:50:26.320And it had worn, I remember getting to hold it in my hand, it had sort of, you know, his thumb was on it as he's surveying property in Virginia and kind of knowing north from south.
00:50:37.840I think what's happened in the last week, if you tie it into this debate that happened last week, I think that in the largest context, when people look back, let's say 20, 30, 40, 50 years from now, I think what's happened in the last year or two, and COVID was the sort of harbinger of all this.
00:50:56.700All of the lies have been exposed now, right?
00:51:01.540Like, these are the same people who are now shocked, you know, Biden needs to be replaced.
00:51:06.840These are the same people who have lied to you about, these aren't political prosecutions, the same people that lied to you about COVID, the same people who've lied time and time again, who tell you the economy is just fine, and that look at the numbers, they're great, and you shouldn't believe you're lying on what's happening in your own life.
00:51:26.120They're the same people who lied about the Hunter Biden laptop theory.
00:51:29.860So this kind of, call it, you know, administrative state, deep state, whatever you want to call it, there's people so invested, Glenn, in Biden remaining, so they can keep doing what they want to do without any accountability.
00:52:01.420So tell me about a couple of other things.
00:52:03.300The Supreme Court has downgraded the insurrection now to trespassing.
00:52:09.480Can you go into that ruling, which is Fisher versus the U.S.?
00:52:15.420Yeah, I mean, look, I think the takeaway here is that the government was overzealous with all of this, right?
00:52:22.960And when you're dealing with criminal prosecutions, you're supposed to have, you know, the government isn't supposed to get the benefit of the doubt on a lot of this stuff.
00:52:31.940Which is why, again, I went up to Manhattan and saw that trial, the Alvin Bragg Soviet-style show trial, which is why that case, I think, is so riddled with reversible error.
00:52:44.860The judge actually, and the Supreme Court ruled on something else a couple weeks earlier, saying, you know, you actually have to have a universal agreement among the jury of what the actual crime is.
00:52:55.540Like, this seems like a very basic civil protection for people if you're going to have your liberty taken away from you, right?
00:53:03.100Like, the jury actually has to agree what the crime is.
00:53:06.800And Judge Bershon said you don't have to do that.
00:53:10.560And so that, in addition to not allowing testimony from somebody who was going to say from the FEC that this is not even a, you know, the underlying crime, I guess, that you're alleging isn't even really a crime.
00:53:21.820So I think that that was sort of an important protection.
00:53:24.140And, of course, I'll never forget coming on your show talking about the Chevron case, and you came in with some, like, very white, sexy music talking about Chevron when we were talking.
00:53:37.540Well, I was going to get to that here in a second.
00:54:02.700So we talk about turning the corner in what this can all mean, right, moving forward.
00:54:07.160So for a very long time, what courts have been able to do through Chevron deference is that if they claim something is ambiguous, if there's something ambiguous in some agency.
00:54:36.240The vast majority of these calls then when they were being, you know, if anybody was being challenged, the government won, the agency won, the bureaucrat that you never heard of won.
00:54:44.500And so even though the Congress never actually said this is what we want to have happen.
00:54:50.360So it's a very important piece of returning power back to the Article I branch, you know, where people are elected and saying we're not going to give this sort of deference to these agencies anymore.
00:55:03.980So essentially, not to get too nerdy on this stuff, it's probably something like what's referred to as Skidmore, which is they can have an opinion about it,
00:55:11.160but ultimately the court isn't going to bend over backwards and agree with the agency just because they're the, quote, unquote, experts.
00:55:20.120But this also does, and I had an op-ed last week right when this came out because we were hoping that this would happen.
00:55:25.700It does put the onus, I think, on Congress now to actually do something.
00:55:30.800And there's three things I think we should do.
00:55:33.500The first is I think we should codify saying still with these rules, if you're going to propose a new rule, pull back three first.
00:55:40.320I think that would be an important first step or maybe five or ten or two, whatever your number is, but just sort of change the culture.
00:55:46.900The second piece is we ought to have a de novo standard of review.
00:56:05.860But then, you know, opining over things that they created and then deciding that that's what's going to be moving forward, that has to end entirely.
00:56:13.880Thirdly, the RAINS Act, I think, is perhaps the most structural reform we could put into place, which is to say, if you think it's such a good idea, this rule that you're proposing, Congress has to vote on.
00:56:26.160Right. So if you want to ban gas stoves because you think it falls under some statute that nobody ever intended for that to mean, then Congress should vote on it.
00:56:37.020And then you can judge us by our votes.
00:56:38.860I think that would be a transformative kind of reform.
00:56:42.440I do think there's growing momentum for it.
00:56:44.120I think that this decision now, because it puts it more squarely, we have to we have to be more prescriptive in how we write statutes, which is a good thing.
00:56:53.820There's going to be a lot more discussion now.
00:56:55.660So I'm sort of helping lead a working group in the Senate.
00:56:59.680Those other, you know, show favorites, I'm sure Mike Lee, others will be involved in this and kind of figuring out what we should do moving forward to reign in the administrative state.
00:57:08.660Because this has given us an opening now for sure.
00:57:13.780Do we have a decision on the immunity for Donald Trump?
00:57:18.380Not yet. We have three decisions today.
00:57:20.060The only only one we've had is the probably the most boring one, which is the corner post decision, which is about a statute of limitations on challenging agency action.
00:57:27.960It's actually another good thing for fighting in the administrative state, but it is not the sexy decision.
00:57:33.140We still have the net choice decision, which is about the social media networks.
00:57:36.540And then, of course, the Trump immunity still coming.
00:57:38.520And, Eric, what is the social media network one about?
00:57:43.580That's about they can't take you off, right?
00:58:20.160But so far, there's not been anything that's reeled them in, right?
00:58:24.120They kind of just get to do this stuff and rely on the terms and conditions of their site.
00:58:28.660But actually, what was also interesting about the Missouri versus Biden lawsuit, Murphy versus Missouri, is what it ends up being, is the government was pressuring them to change their terms of service, right?
00:58:52.060But I do think that getting at, the most important thing we can do is get at the government's role in influencing what these social media companies can do.
00:59:03.480However, they do live by these protections.
00:59:05.420And I think that you either got to decide, are you going to be a platform or a publisher, and it doesn't matter to me, but you can't have your cake and eat it, too.
00:59:35.100I just want to get an idea, if maybe the senator can explain to us what this Trump immunity case really means, because it's still coming down.
00:59:45.080We have Alan Dershowitz joining us in just a second as well.
01:01:14.280So, Eric, can you tell us, and this is kind of unfair because I don't know how much you're up on the immunity case that's in front of the Supreme Court.
01:01:22.220We're expecting word on that at any time.
01:01:24.540Can you tell me what we're looking for there and what it means?
01:01:30.040And, again, I'm not dug into this case as probably as closely as I should have come in as much as I can.
01:01:34.800But I did listen to some of the oral arguments.
01:01:36.440Actually, my former solicitor, General of Missouri, John Sauer, argued this case.
01:01:40.840And John's a brilliant guy, clerk for Scalia.
01:01:42.980So, I think there's a reason why this is the last case or one of the last cases they're going to decide because it's a very difficult case for the court and one that they would probably prefer not to have to engage on.
01:01:55.140But because of Jack Smith's focus on all this stuff, they're going to have to.
01:01:59.240And it centers around there's never been a case.
01:02:02.260They've never actually had to decide this issue about whether or not a president is immune from criminal prosecution from actions taken while he's in office.
01:02:12.960And so that's really what this centers on, is Jack Smith's trying to sort of bootstrap anything President Trump did during January 6th into some sort of criminal prosecution.
01:02:24.640And I think what the court says, I don't know what they're going to do.
01:02:27.680My guess is they're going to have some sort of an opinion that sets some sort of framework for presidential immunity.
01:02:36.740It may not be entire every act is immune, but I think they're going to they ought to err on that side of it, because what the founders were really worried about when they were talking about this issue,
01:02:50.800if you read the Federalist Papers or those documents surrounding the Constitution, they actually were worried about the weaponization of local prosecutors against the president to sort of tie up the president in engaging in his official duties.
01:03:08.220So, you know, if that is if that's how if that's their worldview, Glenn, I think they're going to be very deferential to the idea that presidents to be president have to make really difficult decisions or, by the way, can't engage in political speech, which is ultimately what this case is really all about.
01:03:28.440There's a bunch of reasons why Jack Smith's case is flawed.
01:03:30.980But I do think the court's going to settle on some idea that, of course, presidents are immune from criminal prosecution based on the actions of when they're in office.
01:03:53.800I will tell you that, you know, that's why the founders put in impeachment.
01:03:58.720If the president high crimes and misdemeanors, if the president is doing something that he shouldn't, then it should go through the regular constitutional process.
01:04:08.140You cannot have a president prosecuted for actions while he's in the White House, in my opinion.
01:04:16.440And I don't mean, you know, if he's murdering somebody, impeach him and try him.
01:04:21.840But if he is doing something in his official actions, I don't think you can put him in jail.
01:04:30.520I mean, I'd love to do, you know, jail time for some of these criminals that have been in office.
01:04:36.540However, as long as it's official actions, you can't.
01:57:12.880discriminates based on characteristics such as skin color and sex.
01:57:16.320Individuals who qualify for a certain position on merit,
01:57:19.100but don't meet the discriminating entity's goal of being more diverse are passed over in favor of those who meet institutionally preferred identitarian standards.