The President & The 25th Amendment

When a monarch dies, power stays in the family. But what about a president? It was a tricky question that the founders left mostly to Congress to figure out later. Lana Ulrich, of the National Constitution Center, and Linda Monk, constitutional scholar and author of The Bill of Rights: A User's Guide, explain the informal rules that long governed the transition of presidential power, and the 25th Amendment, which currently outlines what should happen if a sitting president dies, resigns, or becomes unable to carry out their duties. 

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TRANSCRIPT

Nick Capodice: [00:00:00] Hannah we have made a lot of episodes of Civics 101 since the show started in 2017. And at any one time we've got a list of 20 to 30 different topics that were either already working on or want to do soon. And yet there are few topics we keep coming back to over and over.

Hannah McCarthy: [00:00:21] Yeah, I mean, elections and voting, those are two I can think of. Yeah, we could probably fill a dozen episodes with things about the election process, the politics of voting, of representation.

Nick Capodice: [00:00:33] Yeah, there's one topic we've talked about multiple times on the show because it keeps coming up in the news during the presidencies of both Donald Trump and Joe Biden.

News Clip: [00:00:41] Have you emailed any members.With the investigative.Branch about.The President's health or the president's decline?Do you believe he's capacitated? Well, I think that we have got to be very careful. He needs to start.

Nick Capodice: [00:00:54] It has to do with presidential power and checks on that power.

News Clip: [00:00:58] The fish stinks from the head. Plain and simple. And so I believe the president is dangerous and should not hold office one day longer.

Nick Capodice: [00:01:09] But it's not impeachment. It has to do with the responsibility of the president, the vice president, and the cabinet to ensure we have a leader who is able to do their job.

News Clip: [00:01:20] I'm not saying he's not a danger. I do believe that there's grave risk there. But we've got 13 days.

Nick Capodice: [00:01:27] We're talking about the 25th Amendment.

News Clip: [00:01:30] People inside the.Administration, people in the cabinet were whispering about invoking the 25th Amendment. It's staggering. We're not at a 25th Amendment level yet.

Nick Capodice: [00:01:47] This is Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:01:49] I'm Hannah McCarthy.

Nick Capodice: [00:01:50] And today we are going to break down the 25th Amendment. This is the amendment that lays out what happens when, for whatever reason, the president cannot perform the duties of that office. And there are four parts to this amendment. The first part deals with the line of succession. The second is about replacing the vice president. The third is about when the president declares their own inability. And the fourth, the most debated, is about the vice president and cabinet's power to declare presidential inability. So today, we're going to explore what this 25th Amendment thing is all about anyway, and why Part four especially, is not as straightforward as it seems.

Nick Capodice: [00:02:28] And to do that, we need to go back to the beginning, to the creation of the Constitution, because there was a lot of time between then and when the 25th Amendment was actually ratified in 1967, the year was 1787, a bunch of men and Whigs were crowded in a room in Philadelphia debating how our government should work. And as it is often said, it was hot. Very odd. We're talking about the Constitutional Convention. And one subject of debate was what do we do if something happens to the president?

Lana Ulrich: [00:03:11] Well, they were debating exactly how they should frame the language addressing presidential succession in the Constitution. And they went back and forth as to how to say, you know, what happens when the president becomes disabled? Should there be an election? Should there not be an election?

Nick Capodice: [00:03:27] This is Lana Ulrich. She's the vice president of content and senior counsel at the National Constitution Center.

Lana Ulrich: [00:03:34] So they finally settled on the language that is included in the original Constitution and Article two, Section one, clause six, which says in case of the removal of the president from office or of his death, resignation or inability to discharge the powers and duties of the set office, the same shall devolve on the Vice President and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and the Vice President declaring what officer shall then act as president and such office shall act accordingly until the disability be removed or a president shall be elected. And that seemed to clarify a bit as to what would happen, but it didn't answer all of the questions. And there was one delegate in particular, Dickinson, who was taking notes during the debate and sort of wrote to himself, what is the extent of the term disability and who is to be judge of it?

Nick Capodice: [00:04:29] John Dickinson, who represented Delaware at the Constitutional Convention, was a supporter of the Great Compromise. This is what gave smaller states equal representation to larger ones in the Senate and proportional representation in the House. And that word disability is very, very complicated. Throughout U.S. history, there have been deeply ingrained societal prejudices and discrimination towards people who have disabilities or require accommodations. So that word carries a lot of weight.

Hannah McCarthy: [00:05:00] So basically, the only real things the Constitution said at the time were that if something happened to the president, the vice president would take over the president's duties and that Congress was in charge of figuring everything else out, correct? Yeah.

Nick Capodice: [00:05:17] The Constitution left Congress to iron out many of the logistics of presidential succession, but it also failed to answer the question what does it mean for the president to be unable to carry out their duties? And perhaps even more importantly, who determines that the first piece of legislation that Congress passed that clarified the logistics of succession was the Presidential Succession Act of 1792, which basically laid out what would happen if both the president and vice president were unable to carry out the duties of the presidency.

Lana Ulrich: [00:05:50] And so something that is debated to this day. Now, what laws did Congress pass to help build on what was laid out in the Constitution?

Nick Capodice: [00:06:02] The first thing Congress did pertaining to that was to pass the Presidential Succession Act of 1792, which basically laid out what would happen if both the president and vice president were unable to carry out the duties of the presidency.

Lana Ulrich: [00:06:16] Under the first Presidential Succession Act. It was the president pro tempore of the Senate and then followed by the Speaker of the House.

Nick Capodice: [00:06:23] But at the time, the law still stated that whomever replaced the president would serve as, quote, acting president until the next election.

Hannah McCarthy: [00:06:32] What is the difference between acting president and just president?

Nick Capodice: [00:06:37] That's the thing. The word acting suggested that there was some distinction between the two, but those distinctions weren't actually written out. And then John Tyler came along. And as so often happens, when you put a rule into practice for the first time, you realize that your interpretation is not the only interpretation.

Lana Ulrich: [00:06:57] Right. So William Henry Harrison was the first president to die in office, and he died on April 4th, 1841. His vice president, John Tyler, basically just insisted that he became president of the United States and was not merely acting president.

Nick Capodice: [00:07:12] Right off the bat, John Tyler seemed pretty eager to move into the White House and disregard the cabinet that his predecessor had appointed. And he told the cabinet, quote, I shall be pleased to avail myself of your counsel and advice, but I can never consent to being dictated to as to what I shall or shall not do. I, as President, will be responsible for my administration. And then he basically said that if they didn't agree with that, they were welcome to resign. And some people felt that this was a misinterpretation of what it means to be an acting president.

Lana Ulrich: [00:07:46] This became known as the quote unquote, Tyler precedent. And it was pretty controversial. And not everyone agreed that the vice president automatically became president, even if the president died in office. Even former President John Quincy Adams wrote to himself, I paid a visit this morning to Mr. Tyler, who styled himself president of the United States and not vice president, acting as president, which should be the correct style.

Nick Capodice: [00:08:10] Former President Harrison's cabinet had understood that the president would only do things if the majority of his cabinet approved of them, and they expected Tyler to follow the same rule as acting president, that he would consult them, trust their judgment, and wouldn't make decisions unless they approved.

Hannah McCarthy: [00:08:26] But this wasn't Tyler's cabinet, right? These were people appointed by Harrison.

Nick Capodice: [00:08:31] Yeah, they weren't his people. And to be frank, there was no love lost there.

Lana Ulrich: [00:08:35] Yeah. I mean, I think there were some that may have agreed with his interpretation, but as you know, John Quincy Adams did not. But Tyler basically took the oath of office. He gave an inaugural speech and he moved into the White House. And so there just to quell any doubts that he was, in fact, president, they were they were silenced at that time.

Nick Capodice: [00:08:55] And this is how we end up with the Tyler precedent, where the line between president and acting president is pretty much nonexistent.

Hannah McCarthy: [00:09:05] What about those times when the president is not obviously permanently out of office either because they've died or resigned? What if the president gets sick or has an ongoing medical issue?

Lana Ulrich: [00:09:19] There were sort of unspoken norms about what would happen if, at the same time if a president became disabled. And throughout history there were many presidents who were quietly incapacitated and due to many reasons, including the fact that there was no constitutional mechanism in place, they just kind of worked quietly behind the scenes to keep his illness under wraps until the next election. I mean, this happened with Woodrow Wilson, had a severe stroke and for a long period of time toward the end of his term, he was essentially not acting as president. But basically his wife and his cabinet were just kind of acting in his stead. Yeah.

Nick Capodice: [00:09:53] And this informal behind closed doors method of the vice president, the cabinet, even the president's spouse was working well enough, even though Congress wasn't really privy to it and didn't have much power over it. There wasn't enough urgency in Congress to rally behind something like a constitutional amendment until the threat of nuclear war came along.

Lana Ulrich: [00:10:17] Right around the time of President Eisenhower, who was also ill.

News Clip: [00:10:21] Stricken with ileitis, an inflammation of the lower intestine. The 65 year old chief executive was taken from the White House.

Lana Ulrich: [00:10:27]  Which coincided with the Cold War.

News Clip: [00:10:29] Soviet Unionn Has informed us That over recent years It has devoted extensive resources to atomic weapons.

Lana Ulrich: [00:10:38] It became clear that we needed something that was a bit more formalized.

Nick Capodice: [00:10:42] Nothing really happened immediately, though. There was a proposed amendment in 1963 that would give Congress the power to determine if the president was unable to discharge their duties. But many argue that it gave Congress too much power, especially considering that Congress already had the power of impeachment.

Lana Ulrich: [00:10:59] And I think the crucial moment in time was after President John F Kennedy was assassinated.

News Clip: [00:11:05] From Dallas, Texas. The flash apparently official. President Kennedy died at 1 p.m. Central Standard Time, 2:00 Eastern Standard Time, some 38 minutes ago. Vice President Lyndon Johnson has left the hospital in Dallas, but we do not know to where he has proceeded. Presumably, he will be taking the oath of office shortly and become the 36th president of the United States.

Linda Monk: [00:11:41] And then Lyndon Johnson was in office without a vice president and he had a history of heart attacks.

Nick Capodice: [00:11:48] This is Linda Monk, constitutional scholar and dear friend of the podcast and author of The Bill of Rights A User's Guide. We have finally reached the 25th Amendment, which gives clearer rules about what to do if the president cannot carry out their duties.

Linda Monk: [00:12:03] So that's when Congress in 65 finally passed it through Congress, and then it was ratified, I believe, in 67.

Hannah McCarthy: [00:12:11] So this amendment does not come up until after we have had several presidents die or have major illnesses while in office.

Nick Capodice: [00:12:20] Yeah, And John F Kennedy's death, which made Lyndon Johnson president, put the issue of succession at the top of people's minds. The amendment was ratified in 1967. Here is Lana Ulrich again.

Lana Ulrich: [00:12:33] And so when President Nixon resigned in 1974, Vice President Ford became president under Section one.

News Clip: [00:12:40] To continue to fight through the months ahead for my personal vindication. Would almost totally absorb the time and attention of both the president and the Congress in a period when our entire focus should be on the great issues of peace abroad and prosperity without inflation at home. Therefore, I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as president at that hour in this office.

Hannah McCarthy: [00:13:19] But what if the vice president vacates the job? Because in that example, Gerald Ford was not Nixon's original vice president. He became vice president after Spiro Agnew resigned.

Nick Capodice: [00:13:42] Well, that's part two of the 25th Amendment.

Lana Ulrich: [00:13:44] So this requires the president to nominate a vice president when the office is vacant, subject to the confirmation by a majority of the House and the Senate.

News Clip: [00:13:55] Mr. Nixon has asked the Republican hierarchy to propose possible successors by tomorrow evening. His choice and many names are being mentioned tonight, will have to be approved by majority vote of each House of Congress.

Lana Ulrich: [00:14:08] So in 1973, Gerald Ford became vice president through Section two. After Vice President Spiro Agnew resigned. And then when Ford took over the presidency the next year, he invoked Section two and nominated Nelson Rockefeller to fill his vice presidential vacancy.

Nick Capodice: [00:14:26] And now we're going to get into those circumstances where the president hasn't died, but for some other reason, they are unable to do the job, either temporarily or permanently. And this is section three. Section three is about the president's responsibility to decide and disclose when they need to give their duties to the vice president. This is known as a voluntary transfer of power.

Hannah McCarthy: [00:14:49] So if the president needed a colonoscopy, for example.

Nick Capodice: [00:14:52] Exactly. Actually, most examples of this happening have to do with colonoscopies, specifically. For example, President George W Bush invoked Section three when he had to undergo colonoscopy, putting Vice President Dick Cheney temporarily in charge.

Lana Ulrich: [00:15:07] In 1985, President Ronald Reagan was also about to undergo colon cancer surgery. And so he designated Vice President George H.W. Bush to be acting president.

Nick Capodice: [00:15:18] And recently, President Biden discharged his duties to Vice President Kamala Harris.

Hannah McCarthy: [00:15:22] Because of a colonoscopy.

Nick Capodice: [00:15:24] Because of a colonoscopy.

Hannah McCarthy: [00:15:29] And this is the responsibility of the president, right? They have to be the one who says, okay, I'm going to transfer power right now.

Lana Ulrich: [00:15:35] You one would assume so. Yes. Since it's since it requires a written declaration to both transfer the power and then to resume power after the president's disability is removed. Yes.

Hannah McCarthy: [00:15:46] Isn't that interesting the way that Lana says one would assume so. I think the implication there being, as with so many wishy washy interpretations of the Constitution or.

Nick Capodice: [00:15:59] Flat out disregard of it.

Hannah McCarthy: [00:16:00] Disregard for the Constitution, the idea is, you know, this is how it has happened and might happen in the future, but anything can be done differently. And sometimes we do things differently and that can cause a constitutional crisis. So this is all voluntary.

Nick Capodice: [00:16:18] Yeah. And this is called a declaration of inability, where the president submits a notice to Congress saying presidential power is being discharged to this person, either permanently or until such and such a time. And if the president submits that, they then submit a follow up declaration when they are able to retake their duties. And this has been used, as we said, several times by different presidents.

Hannah McCarthy: [00:16:42] What about an involuntary transfer of power? Is it possible for a sitting president to be removed involuntarily without an impeachment?

Nick Capodice: [00:16:51] This brings us to the quite complicated part four of the 25th Amendment, and we're going to talk about that right after this break.

Hannah McCarthy: [00:17:00] But before we go, I have a feeling you're listening to this podcast because you want to know more about American democracy, but we don't tell you everything on the podcast. We sure don't. A lot of it gets cut in actual fact, sometimes the very best parts. But we have a place to put that. It's called Extra Credit. It's our newsletter and you could subscribe to it at our website, civics101podcast.org.

Hannah McCarthy: [00:17:26] We're back. This is civics one on one. And we are talking about what happens when the president dies, resigns, or decides they need to temporarily hand over their presidential duties to the vice president for a medical procedure or something like that. But those processes are not the reason why. About two years ago, in the beginning of 2021, everyone was suddenly talking about the 25th Amendment in terms of the vice president or the president's own cabinet taking away the president's power. Specifically, I'm talking about a lot of people wondering whether former President Donald Trump's vice president and cabinet might declare that he was incapable of doing his job, which of course, did not happen.

News Clip: [00:18:08] But in the immediate aftermath of January 6th, members of the president's family, White House staff and others tried to step in to stabilize the situation, quote, to land the plane before the presidential transition on January 20th. You will hear about members of the Trump cabinet discussing the possibility of invoking the 25th Amendment and replacing the president of the United States.

Hannah McCarthy: [00:18:36] So what does the 25th Amendment say about those situations where the removal of power might not be voluntary?

Lana Ulrich: [00:18:48] Yeah. So section three is the voluntary transfer of power. But Section four details what happens when there may need to be an involuntary transfer of power when the president, for it's assumed medical reasons, is unable to make that conscious decision, whether he's in a coma or whether he has maybe a very severe mental impairment progressed dementia. In that situation, it allows for the vice president to be the crucial decider, essentially, and working with either the heads of the cabinets, the heads of the departments and or a disability review body that Congress may establish to determine that the president is no longer able to fulfill his duties and therefore trigger Section four and the mechanisms by which to involuntarily take power away from the president.

Nick Capodice: [00:19:40] That is Lana Ulrich, again, of the National Constitution Center. And this is Linda Monk, again, constitutional scholar and author of the Bill of Rights A User's Guide.

Linda Monk: [00:19:48] We talk about disability as though it's physical disability, but I think what the controversy about President Trump is raising is whether or not the president is capable of caring. Now, maybe that's not a physical disability, maybe that's other kinds of capabilities.

Hannah McCarthy: [00:20:09] So who gets to make that call?

Lana Ulrich: [00:20:10] Yeah, under Section four, the vice president is really the the one who starts the process to determine that the president is is disabled. And then if the president has the opportunity to contest that, but then the vice president and the department heads can go back to Congress and contest the president's contesting essentially as well. And so and if they're successful, then the vice president becomes acting president.

Linda Monk: [00:20:35] The language is, is that a majority of the cabinet and the vice president have to be involved. If it starts within the executive branch, if the president doesn't go along, it goes to Congress anyway. And it has to be a two thirds vote. That's a pretty big vote.

Hannah McCarthy: [00:20:56] So this is not something the vice president or the cabinet can do without the approval of Congress.

Lana Ulrich: [00:21:02] You know, we have impeachment, and that's a political process for removing the president. And I think that the 25th Amendment contemplates some kind of of disability other than, you know, the president is, you know, maybe did something illegal, is is just not performing well. There's got to be something else there. But it's it's not ultimately up to, say, the White House doctor to make that decision. I think the vice president may certainly consult with the president's doctors and ask for an opinion. But ultimately, I think it does boil down to a political decision to actually take that step, to say, okay, we're going to invoke Section four of the 25th Amendment.

Hannah McCarthy: [00:21:42] Has that ever happened?

Lana Ulrich: [00:21:43] No, it hasn't. And it's controversial for many reasons. One being that it takes power away from a duly elected president, essentially, but the other is that it's never been invoked. So we don't really know how the procedure and the practice will play out. And there are a number of gaps that are still left open. So there's a lot of open questions under this mechanism.

Nick Capodice: [00:22:04] For example, during Ronald Reagan's presidency, some of his aides suspected he had developed symptoms of Alzheimer's that were compromising his ability to do the job.

Lana Ulrich: [00:22:14] Some of his aides had discussed that among themselves, I think especially after Iran-Contra happened.

News Clip: [00:22:20] Good evening. I know you've been reading, seeing and hearing a lot of stories the past several days attributed to Danish sailors, unnamed observers at Italian ports and Spanish harbors and especially unnamed government officials of my administration. Well, now you're going to hear the facts from a White House source and you know my name.

Lana Ulrich: [00:22:40] And they briefly discussed it. And then I think they decided to do a case study and they went the next day and spoke with with the president and sort of interviewed him. And then they decided, well, he was acting completely normal. And so they felt that it wasn't appropriate at that time to invoke Section four. But they but they had kicked the idea around.

Hannah McCarthy: [00:22:59] Why would members of the executive branch, like the vice president or the Cabinet, choose to invoke the 25th Amendment instead of handing over things to Congress for impeachment?

Lana Ulrich: [00:23:10] You know, we have impeachment. And that's a political process for removing the president. And I think that the 25th Amendment contemplates some kind of of disability other than, you know, the president is, you know, maybe did something illegal, is is just not performing well. There's got to be something else there.

Linda Monk: [00:23:28] You know, our framers were very good at putting stumbling blocks to the exercise of power. And the reason you'd want to start with any kind of removal from office, from within the executive branch is because those people are supposed to be at least by constitutional duty, most. Oil to the president. This must be a blow to the Constitution and the country first. But they wouldn't have gotten there without the president. So you think those would be the people who would be most capable of making that determination without political motivation?

Nick Capodice: [00:24:03] For example, in 2021, some members of Congress and the public called on Vice President Mike Pence to invoke the 25th Amendment because of President Donald Trump's potential responsibility in and handling of the January 6th riot on the Capitol during the certification of the election.

News Clip: [00:24:21] He may have only 13 days left as president, but yesterday demonstrated that each and every one of those days is a threat to democracy. So long as he is in power. The quickest and most effective way to remove this president from office would be for the vice president to immediately invoke the 25th Amendment.

Linda Monk: [00:24:46] Either way, it's going to come back to Congress. It's going to come back to the leadership in Congress and the vice president.

Nick Capodice: [00:24:54] But at the end of the day, that question that John Dickinson scrawled in his notes back in 1776 at the Constitutional Convention, what is the extent of disability and who is to be the judge of it is still up for debate.

Lana Ulrich: [00:25:10] Yes, it's definitely still an open question. And I think it's going to depend on maybe, you know, obviously a future situation that would call for the application of the amendment to see how it kind of plays out in real life.

Linda Monk: [00:25:23] Again, this is where I think Alexis de Tocqueville said it never ceases to amaze him how wonderful the Americans were at ignoring and avoiding the contradictions of their constitution. So oftentimes in our constitutional interpretation, it's what the political actors choose to do. And that that is part of the Constitution. It's not just supposed to be automatic words on paper. It's people exercising their judgment.

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Who gets to run for president?

What does the Constitution say about who is allowed to be president? And why is the answer to that question still a little unclear? 

Brady Carlson, host of All Things Considered at Wisconsin Public Radio and author of Dead Presidents.  explains the formal and informal rules that govern who is allowed to become Commander-in-Chief. 

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Transcript

Hannah McCarthy: [00:00:03] Nick, have you ever wanted to run for president?

Nick Capodice [00:00:05] Absolutely not.

Hannah McCarthy: [00:00:06] I think the very fact that I don't know how to tweet about anything is reason enough. You know, I can't be like I'm doing this, everybody, because that feels too self-promotional to me. It grosses me out, which is ridiculous. So I could I couldn't be a politician of any kind.

Archival: [00:00:24] If this is what the people want, then I will do that.

Hannah McCarthy: [00:00:30] Let's [00:00:30] just be straight about it. Are you considering running for president yourself?

Archival: [00:00:34] I want everybody to be absolutely clear. I'm not running for vice president. I'm running for president of the United States of America. I'm running.

Archival: [00:00:42] For president. I'm running for president. I'm running for president.

Archival: [00:00:45] I am running for president.

Archival: [00:00:46] I am running for president.

[00:00:48] Of the United.

Hannah McCarthy: [00:00:56] You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:58] I'm Nick Capodice.

Hannah McCarthy: [00:00:59] And today [00:01:00] we are talking about who gets to run for president and who doesn't.

Archival: [00:01:05] You just woke up this morning and suddenly decided to run for president.

Archival: [00:01:09] No, no, I just thought.

Hannah McCarthy: [00:01:18] So there are three qualifications a person has to meet to run for president. Now, two are pretty straightforward. One is not, and absolutely none of them have anything to do with [00:01:30] political experience, leadership abilities, or an affinity for oval shaped offices.

Brady Carlson: [00:01:36] The first one is age. You have to be 35 years or older, and that is when you take office. You can still be 34 on Election Day as long as your birthday's coming up.

Hannah McCarthy: [00:01:46] This is Brady Carlson. He's the All Things Considered host at Wisconsin Public Radio and the author of Dead Presidents An American Adventure into the Strange Deaths and Surprising Afterlives of Our Nation's Leaders.

Nick Capodice: [00:01:59] Okay, Rule [00:02:00] number one, you have to be at least 35 years old. Got it. What's the second rule?

Brady Carlson: [00:02:04] The second is a residency requirement that says you have to be an inhabitant of the United States for 14 years or more. This is mostly a carryover from the early days of the country. They didn't want someone who maybe lived in the UK up until, you know, the Constitution was ratified, suddenly taking a boat trip across the Atlantic Ocean and then saying, Hey guys, I'm here. I'm going to be your [00:02:30] new president. That said, though, there have been some questions about what exactly it means to be an inhabitant because it's not entirely spelled out in the Constitution. It says you have to be an inhabitant for 14 years. But does that mean 14 years in a row? Does that mean 14 years over the course of your life? And just the word inhabitant itself can be interpreted in different ways. Does that mean that you're physically in the United States for up to 14 years, or does it mean that you maintain a domicile like you [00:03:00] have a physical mailing address?

Hannah McCarthy: [00:03:01] For example, some of our former presidents were in the military and served overseas. That service does count toward the 14 years of inhabitant sea.

Nick Capodice: [00:03:11] But what if you were just working abroad, not as part of the military or you were living outside the U.S. for a stretch of time for some other reason?

Brady Carlson: [00:03:18] There was a question in the 20th century about Herbert Hoover.

Hannah McCarthy: [00:03:22] Hoover was a mining engineer. He studied geology in college and worked all over the world inspecting mines to figure out [00:03:30] if they were good investments or not.

Nick Capodice: [00:03:32] Hmm.

Brady Carlson: [00:03:32] He had worked overseas before he was elected president, and it was within that 14 year window. So if inhabitant meant 14 straight years of being in the United States ahead of being elected, he might have not been eligible to be president. That's obviously not what happened, though.

Hannah McCarthy: [00:03:47] The requirement of living in the United States for 14 years turns out to be less significant and controversial than the final requirement to run for president, which has to do with citizenship.

Brady Carlson: [00:04:00] Number [00:04:00] three is the most complicated qualification. So I'm just going to read it right out of the Constitution. No person except a natural born citizen or a citizen of the United States at the time of the adoption of this constitution shall be eligible to the office of President. What it means to be a natural born citizen is something that the courts have not entirely weighed in on. So it is definitely up to interpretation.

Nick Capodice: [00:04:23] So you can't run for president if you weren't a U.S. citizen from the very moment you were born. Even if you became [00:04:30] a U.S. citizen later in life.

Hannah McCarthy: [00:04:31] That's right. But the term, quote, natural born gets even more complicated because you don't have to have been born on U.S. soil to be considered a U.S. citizen from birth. You can be born a U.S. citizen if you were born abroad, so long as at least one of your parents is a US citizen. And that parent has also spent time living in the United States. And there have been several presidential candidates over the years who were born outside the United States and had their qualifications [00:05:00] for presidency called into question. Take Senator Ted Cruz, for example. He ran for president in 2016.

Archival: [00:05:07] Jobs, Freedom. Security. Cruz. I'm Ted Cruz and I approve this message.

Brady Carlson: [00:05:14] I remember being at a primary event that he had in New Hampshire during the 2016 campaign, and a guy in the audience put it to him point blank. He said, Ted Cruz, you were born in Canada. To me, a person born in Canada is not a natural born citizen of the United States, and therefore you're not eligible to be president. [00:05:30] So here's the back story. Ted Cruz was born in Canada. His mother was born in Delaware. So she was an American born person. His father was born in Cuba. At that point, he was not a citizen of the United States, but he is now. They were working in Canada at the time. And so Ted Cruz said, by virtue of having a mother who was an American citizen, he was a natural born American. And the quote he gave was, I have never breathed a.

Archival: [00:05:54] Breath of air on this planet when I was not a US citizen. It was the act of being born that [00:06:00] made me a US citizen. So under the law, the question is clear. There will still be some who try to work political mischief on it. But as a legal matter, this is clear and straightforward.

Brady Carlson: [00:06:10] Ultimately, it's a question that can be decided in the courts. Now, that's one that hasn't totally been decided in the courts. In Ted Cruz's case, there were several legal challenges to his candidacy. Most of those were turned away on procedural grounds. A few declared that basically that his explanation was good enough. But unless someone files [00:06:30] a lawsuit against you, basically your word is good enough to get you qualified. But there have been other challenges over the years. John McCain, in fact, when he ran for president, faced some legal challenges because he was born in the Panama Canal Zone. He wasn't born in a state. Mitt Romney's dad, George Romney, when he ran for president in the 1960s, he was born in Mexico to American parents and they both faced these same kinds of questions.

Hannah McCarthy: [00:06:53] One example, of course, is the challenge to former President Barack Obama's qualifications before and during his presidency. [00:07:00] However, that conspiracy theory promoted by his successor, former President Donald Trump, was not really about the nature of Obama's citizenship, but rather the legitimacy of his birth certificate in the first place, which Trump called forgery, and about Obama's dual British and American citizenship. But when it comes to the question of whether someone qualifies as a quote unquote natural born citizen, if they were born outside the United States, to a parent who is a citizen, Ted [00:07:30] Cruz is not alone.

Brady Carlson: [00:07:31] Now, like I said, the U.S. Supreme Court hasn't taken this up. So the broad understanding up to this point is essentially, if you're born in the United States, you're a natural born citizen under the birthright citizenship in the 14th Amendment to the Constitution, if you're born in some other part of the world, But one of your parents, not both, but one of your parents is an American citizen, then you're still considered a natural born citizen. My favorite story is the one when Chester [00:08:00] Arthur became president, he was vice president under James Garfield and then moved up after Garfield died. He was born in a rural Vermont, and some of his political enemies started a whisper campaign that maybe he was actually born in southern Canada rather than rural Vermont. Obviously, that didn't go too far either. But it's not a new thing for people to speak of their political opponents as the other, or maybe not quite as American as other people are.

Hannah McCarthy: [00:08:32] Now [00:08:30] this brings us to U.S. territories. We have 14 territories, but only five have people living there Puerto Rico, Guam, the US, Virgin Islands, American Samoa and the Northern Mariana Islands with the exception of American Samoa. If you were born in a US territory, you are a US citizen. American Samoans are considered American nationals, meaning they can live on [00:09:00] American land indefinitely and can apply for citizenship.

Nick Capodice: [00:09:04] But people living in US territories aren't allowed to vote in federal elections. Right?

Hannah McCarthy: [00:09:08] Right. Citizens and territories can only elect a non-voting representative in Congress and they don't get to vote for president, though they can still participate in primaries and caucuses. So though someone living in a US territory may be a citizen, they don't even get to vote for president. However, as far as we can tell, [00:09:30] they can still run for president because they are by definition, still natural born citizens.

Archival: [00:09:38] I'm asking you to stand with me to build a movement.

Hannah McCarthy: [00:09:42] In 2019, we did have a presidential candidate who was born in American Samoa, Tulsi Gabbard of Freedom, justice, equality and opportunity for all. But her parents were U.S. citizens. So this question of whether she would have been qualified because [00:10:00] of her birth in American Samoa wasn't really relevant, and she was in a similar position to those other presidential candidates who had been born outside of the US.

Nick Capodice: [00:10:08] Has there been any push to change any of those requirements, for example, to allow people who gain citizenship later in life to run for president? Because there's got to be millions of people in the US who can't run for president, even though the US citizens because they aren't, quote, natural born citizens. Under the current interpretation.

Hannah McCarthy: [00:10:28] In actual fact, a 2019 [00:10:30] study estimated that there were as many as 20 million adults who wouldn't be qualified to run for president because they were naturalized citizens rather than citizens from birth. Now, some scholars have argued that the natural born citizen rule could be considered discrimination based on someone's national origin under the Fifth Amendment. But that argument hasn't gotten much traction at this point.

Nick Capodice: [00:10:53] Well, what about a constitutional amendment, one that wouldn't restrict someone from running if they got citizenship later in life? [00:11:00] Has that ever happened? Has that been proposed?

Hannah McCarthy: [00:11:01] Yeah. So there have been a few proposed constitutional amendments like that, usually inspired by specific individuals who are ineligible to run for president. Take Henry Kissinger in the 1970s. Now, Kissinger, who was German born, was the secretary of state in the Nixon administration. And his popularity during the chaos of that time made some people start to think of him as potential presidential material, except, of course, [00:11:30] for the fact that he was a naturalized citizen.

Archival: [00:11:33] Do you think he's a political problem in the election? Do you think he is an issue? Not at all. He may have been a problem in the primary leading up to the convention, but the broad consensus.

Hannah McCarthy: [00:11:50] Among this led New York Congressman Jonathan Bingham, to propose an amendment that would allow naturalized citizens to run for president. There was also more recently, [00:12:00] a proposed amendment by Senator Orrin Hatch, sometimes called the Arnold Amendment because it was widely considered to be tied to establishing eligibility for Austrian born former California Governor Arnold Schwarzenegger to run for president.

Brady Carlson: [00:12:13] I have, in fact, perused some newsreels from the Schwarzenegger library. And that time that you took that car.

Archival: [00:12:18] Oh, that Schwarzenegger library.

Archival: [00:12:21] Yes, the Schwarzenegger Presidential library. Wasn't he an actor when.

Archival: [00:12:26] He was president?

Hannah McCarthy: [00:12:29] So far, [00:12:30] no amendment has gotten enough traction to change that requirement so that naturalized citizens can run for president.

Nick Capodice: [00:12:37] Okay. Let me run this all back to you. You can only run for president if you're at least 35 years old, if you've lived in the U.S. for at least 14 years and you are a, quote unquote, natural born citizen, a term that's still up for debate, but once you actually get the job. Hannah, I'm wondering about what it takes to keep it after that first term, because as we've seen [00:13:00] in our most recent election, just because you can be president for two terms, that doesn't mean your party and the public will support your reelection.

Hannah McCarthy: [00:13:07] You know, Brady's got some great high drama stories about this very thing. And we will talk about the performance review of the tops, all performance reviews. The reelection of an incumbent right after this.

Nick Capodice: [00:13:20] But first, we are here to remind you not of the mess you made when you.

Hannah McCarthy: [00:13:24] And we're here.

Hannah McCarthy: [00:13:25] To remind you.

Nick Capodice: [00:13:27] But first, Hannah and I just want to remind you [00:13:30] that there are no. Qualifications whatsoever you must possess to subscribe to our newsletter, Extra Credit. It's fun. It's full of facts and fancy. It comes out every two weeks and you can do it at our website, civics101podcast.org. We're back. This is Civics 101. We're talking about running for president. Hannah, we have seen from as recently as the 2020 election that the incumbent president doesn't automatically [00:14:00] get reelected. But my question is, does that incumbent automatically get nominated by their party to run for a second term? Or could the party decide, you know what, Actually, we didn't really like you and what you did. So we're going to try this with someone new.

Brady Carlson: [00:14:15] No guarantees. You got to earn it. And in fact, nobody is a better case study for that than New Hampshire's only president, Franklin Pierce. He won election in 1852. And while it was common [00:14:30] in those days for people to serve just one term, he had his eye on reelection. The only problem was he had made himself very unpopular in his own party. And so when the 1856 Democratic Party convention came around, he actually lost the nomination to another Democrat, James Buchanan.

Hannah McCarthy: [00:14:46] Pierce was an anti abolitionist, northern Democrat, and a lot of his decisions were basically like throwing lighter fluid on the political fire that eventually became the Civil War, including undoing the Missouri compromise by letting the [00:15:00] newly formed territories of Kansas and Nebraska decide by popular vote if they would allow enslavement. The resulting political conflict in Kansas was so violent that it came to be called Bleeding Kansas.

Brady Carlson: [00:15:12] He sought the nomination. He wanted to get a second term and they said thanks, but no thanks.

Hannah McCarthy: [00:15:17] Buchanan did eventually go on to win the election, but usually if an incumbent decides to run for reelection, their chances of getting the nomination are pretty good.

Brady Carlson: [00:15:27] So it's actually fairly common in U.S. history [00:15:30] for incumbent presidents to face strong primary challenges. The incumbents usually win against those challenges. A great example of that was in 1976. That was when Gerald Ford was running for a full term, and he faced a very serious challenge in the Republican primary from former California Governor Ronald Reagan. They were separated by just a handful of delegates. Reagan very much could have won that nomination. But Ford was able to hold on.

Archival: [00:16:00] Let [00:16:00] me say this from the bottom of my heart. After the scrimmages of the past few months, it really feels good to have Ron Reagan on the same side of the line.

Nick Capodice: [00:16:24] If Franklin Pierce was the exception to the norm, and incumbents who want to run for reelection usually [00:16:30] get nominated, why do we so often see those challengers from the same party? And I'm thinking of 2020 when there were three other challengers to President Donald Trump and the primary. Now, none of them did. Well, sure, but they still ran.

Brady Carlson: [00:16:45] Because in politics, the usual rules for things don't always apply. In some ways, you can actually win by losing. An example of that was in 1992, when President George H.W. Bush was running for a second term and he faced a primary challenge from conservative commentator Pat [00:17:00] Buchanan. Now, Pat Buchanan wasn't going to win that race. He wasn't in a position to take the nomination away from a sitting president, but he was able to put up a strong enough showing, especially in the New Hampshire primary, that he was able to change the course of the Republican platform.

Archival: [00:17:16] With some polls showing him slipping and real concern about Tuesday's turnout. George Bush pulled out all the stops today.

Archival: [00:17:23] So let me introduce you, a supporter and a great friend of mine, Arnold Schwarzenegger.

Archival: [00:17:29] To the message [00:17:30] to Pat Buchanan.

Archival: [00:17:31] Hasta la vista, baby.

Archival: [00:17:32] Thank you.

Brady Carlson: [00:17:35] He really wanted to have more socially conservative language in that platform and was able to get some of that into the party platform for the year.

Archival: [00:17:44] Mr. Bush refuses to utter Buchanan's name, but claims outrage over his negative tactics, having apparently forgotten how helpful his own slashing ads were in winning here four years ago.

Hannah McCarthy: [00:17:56] Essentially, Pat Buchanan criticized President Bush for not being conservative [00:18:00] enough in some of his policies. For example, he called out the president for a proposed tax hike that was in direct opposition to Bush's famous read my lips, no new taxes line. Buchanan's success in the New Hampshire primary and then his popularity elsewhere in the country meant that when President Bush was eventually renominated as the Republican candidate, the platform he was running on and the promises he was making were more conservative.

Brady Carlson: [00:18:26] Another example of that was in 1968, when Lyndon Johnson [00:18:30] was looking to win another term. But Vietnam was a very controversial issue at the time, and some anti-war Democrats ran against him in the New Hampshire primary and actually did well enough that they convinced Johnson he couldn't win another term. So he actually got out of the race, which is kind of what they were aiming for.

Archival: [00:18:47] By any political measure, President Johnson has suffered a major psychological setback in New Hampshire. Accordingly, I shall not seek and [00:19:00] I will not accept the nomination of my party for another term as your president.

Brady Carlson: [00:19:07] All of that said, though, once an incumbent gets into the general election, assuming that they do fend off all those primary challengers, they tend to do very well. So incumbency is not a universal thing, but it is a very powerful thing. Incumbents have a better shot than, say, a schlep like me.

Nick Capodice: [00:19:31] Well, [00:19:30] that is a lot on running for president here on Civics 101. Today's episode was written and produced by Christina Phillips with help from Hannah McCarthy. Our staff includes Jacqui Fulton and Rebecca Lavoie is our executive producer. Music In this episode by OTE, Jahzzar, Silver Maple, Mr. Smith, Ketsa, MindMe, Lucas Pittman, Chris Shards, Superintendent McCupcakes and Bomull. Civics 101 is a production of NHPR New Hampshire Public Radio. [00:20:00]

Hannah McCarthy: [00:20:02] And Austrian born Arnold Schwarzenegger. And Arnold Schwarzenegger. Schwarzenegger Oh, how can I say Schwarzenegger? Schwarzenegger. Former California Governor Arnold Schwarzenegger to run for president.

Nick Capodice: [00:20:23] Just say Arnold Schwarzenegger to run for president.

Hannah McCarthy: [00:20:25] Arnold Schwarzenegger. What do I say?

Nick Capodice: [00:20:28] Schwarzenegger. It's Schwartz, Schwarzenegger. [00:20:30]

Hannah McCarthy: [00:20:31] Arnold Schwarzenegger to run for president.

Nick Capodice: [00:20:33] One more time.

Hannah McCarthy: [00:20:34] Oh, my God.

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Made possible in part by the Corporation for Public Broadcasting.

Propaganda

Propaganda is a piece of information designed to make you think or do something specific. So how does it work?

Today on Civics 101, John Maxwell Hamilton (professor and author of Manipulating the Masses: Woodrow Wilson and the Birth of American Propaganda) and Jennifer Mercieca (professor and author of Demagogue for President: The Rhetorical Genius of Donald Trump) take us through the Federalist Papers, the Committee on Public Intelligence, the Four Minute Men, amygdala highjacking, and the myriad ways propagandists  take advantage of our best intentions to achieve a result. 

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Transcript

Nick Capodice: [00:00:04] What did you say your favorite card was again?

Hannah McCarthy: [00:00:06] Six of diamonds.

Nick Capodice: [00:00:08] Thought you said the Jack of Hearts

Hannah McCarthy: [00:00:09] No I didn't say the Jack of Hearts.

Nick Capodice: [00:00:13] All right, I'm gonna do a, um. A magic trick. Do me a favor. Uh, cut that deck anywhere you want.

Hannah McCarthy: [00:00:18] Okay.

Nick Capodice: [00:00:18] Now, I'm going to, um, just leave these here until the end of the recording. I'm not going to touch them. All right. Okay. This, by the way, is one of the first tricks I ever learned. And for anybody out there listening, I'm a terrible, [00:00:30] terrible magician. But this is a technique called a force.

Hannah McCarthy: [00:00:34] What's a force.

Nick Capodice: [00:00:35] A force is when someone, like, takes a card believing that they had a choice, but they don't. I told you to cut the deck randomly and you take the card you cut to, but I'm forcing you to take the card I want. Choice is an illusion here, Hannah. And it doesn't just happen with cards.

[00:00:54]

Archival: [00:00:55] Interesting stories about dead people voting. Wow. Amazing. What free and [00:01:00] fair elections we all have confidence in.

Archival: [00:01:01] Sharing of.

Archival: [00:01:02] Biased.

Archival: [00:01:03] And false news.

Archival: [00:01:04] Has become all too common on social media.

Archival: [00:01:06] I think it was one of the coldest Julys we've had in. So while while I don't know if that's going to really fly with climate change...

Nick Capodice: [00:01:22] you're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:01:28] I'm Hannah McCarthy.

Nick Capodice: [00:01:28] And today we are talking [00:01:30] about propaganda.

Jennifer Merceica: [00:01:32] Propaganda is compliance gaining. It's a kind of force.

John Maxwell Hamilton: [00:01:36] Essentially propaganda is the an effort by someone to get you to think what they want you to think. Every time a king put on a robe, an ermine robe, it was an act of propaganda.

Jennifer Merceica: [00:01:49] It's persuasion without consent. It denies people their free will. It denies people their ability to consent or choose to believe [00:02:00] what you have compelled them to believe. And it's anti-democratic and it's a lot easier than persuasion.

John Maxwell Hamilton: [00:02:06] My name is John Maxwell Hamilton. I'm a professor at Louisiana State University and a scholar at the Woodrow Wilson International Center for Scholars in Washington, DC.

Jennifer Merceica: [00:02:14] My name is Jennifer Mercieca, and I'm a professor at Texas A&M University. I teach classes in political communication, propaganda and the dark arts of communication.

Hannah McCarthy: [00:02:28] Hold on. Jennifer's class is called The [00:02:30] Dark Arts of Communication.

Nick Capodice: [00:02:31] It is it explores propaganda, demagoguery and how our brains process information and how those natural processes lead to cognitive weaknesses that are exploited by dark arts techniques. And yes, that includes compliance gaining, which is forcing someone to act in a particular way.

Hannah McCarthy: [00:02:50] All right. I got to learn all about that. But first, can we just get a textbook definition of propaganda?

Nick Capodice: [00:02:56] Absolutely. Propaganda is a piece of information [00:03:00] designed to get people to think or act in a certain way. But John's got a better definition than that.

John Maxwell Hamilton: [00:03:06] There's a wonderful definition that was done at the end of World War One. The Encyclopedia Britannica had no definition for propaganda in 1911. At the end of the war they had a very long one. And the reason for that was that they had not anticipated putting out a new edition of the Encyclopedia Britannica for some years. But the war changed everything. And one of the things that [00:03:30] changed was propaganda. And they had a British author who had been a propagandist write a wonderful essay on propaganda. And I read it to you because it's a superb definition. Those engaged in propaganda may genuinely believe the success will be an advantage to those who they address, but the stimulus to their action is their own cause. The diferencia of propaganda is that it is self [00:04:00] seeking, whether the object be worthy or unworthy intrinsically or in the minds of its promoters.

Hannah McCarthy: [00:04:06] Let me try to say that another way so I can make sure that I understand it. People who make propaganda may feel they're doing something good for everyone, but what makes it propaganda is that it has a goal to fulfill regardless of whether the person creating it thinks it's good or bad. I think the closest thing in my mind is advertising, right? Like your [00:04:30] goal is to sell toothpaste. So you make commercials saying this toothpaste is amazing, right?

Nick Capodice: [00:04:36] And it can be amazing toothpaste, but that is irrelevant. You may think it tastes like chalk, but if you're hired to make an ad for it, you're not going to put that in it. And I want to be clear. Propaganda is not the same thing as just persuading somebody of something.

Jennifer Merceica: [00:04:52] Persuasion is an invitation. You invite someone else to think like you do to value the same values that [00:05:00] you value in the same way to remember or forget history. And you acknowledge that that person has free will. They have a mind of their own, and they may choose to change their mind and agree with you. But then again, they may not. Persuasion is really hard. It's very difficult to get someone to change their mind. We know that if people are invested in a topic, if they're knowledgeable about a topic, then they're very resistant to changing their [00:05:30] opinions.

Hannah McCarthy: [00:05:31] But as Jennifer said, compliance gaining is different.

Nick Capodice: [00:05:34] It is. And it's a lot easier to do than persuading someone to change their mind. We're going to touch on other kinds of propaganda, but today I really want to focus on governmental propaganda. Not toothpaste, but policy.

Hannah McCarthy: [00:05:48] When I think of propaganda in America, the first thing that comes to mind are like World War posters, right? Uncle Sam saying, "I want you" depictions of the U.S. and our allies [00:06:00] being these heroic figures versus the grotesque, often racist interpretations of various enemies as beasts. But are there any examples of it from earlier in US history?

Nick Capodice: [00:06:11] Oh, absolutely. Jennifer said that a document near and dear to our hearts could be viewed as propaganda.

Hannah McCarthy: [00:06:19] Which one?

Jennifer Merceica: [00:06:20] Perhaps the most important example of propaganda in that sense in the founding generation, the founding era is [00:06:30] the Federalist Papers.

Hannah McCarthy: [00:06:32] Oh, yeah, I can see that. It's 85 essays selling people our proposed constitution.

Jennifer Merceica: [00:06:37] The Federalist Papers were written with one purpose, which was to get the citizens of the state of New York to agree to adopt the Constitution. And there was a lot of anti federalist sentiment in New York. And so they wrote the Federalist Papers as a joint project, but also as a propaganda [00:07:00] campaign.

Nick Capodice: [00:07:01] They, by the way, refers to James Madison, Alexander Hamilton and sort of John Jay, who didn't even use their real names on these papers. They wrote them under the pseudonym Publius.

Jennifer Merceica: [00:07:12] And they even talked about it during the Constitutional Convention, when they talked about how they would get the Constitution ratified and the method by which they would ratify the Constitution. They said very explicitly, if you understood how to read what they were saying, that [00:07:30] experience will dictate public opinion, that we will lead., We will lead the others to adopt this thing. And so they wanted it to have the approval of the public because they thought that was necessary for the legitimacy of the new government. But they also wanted to make sure that they led the public to approve it. And so the whole ratification of the Constitution is a fascinating propaganda campaign.

Nick Capodice: [00:07:59] And [00:08:00] we think of these essays, the Federalist Papers, as their own thing. But the Federalists, the ones who are pushing the new Constitution, had lots of tools at their disposal to make that happen.

Jennifer Merceica: [00:08:11] It's part of this whole public relations propaganda campaign that was run by the Federalists. So counties and in some states they elected people and they gave them binding instructions. So we will elect you to the state ratifying convention as long as you agree to vote [00:08:30] no. And then they voted yes. Or newspaper editors refusing to publish anti-federalist news articles or opinions. And if they did publish one anti Federalist one, they would publish five responses to it. Or the people who control the Postal Service were federalists. And so they would disappear letters that urged anti-federalist sentiment.

Nick Capodice: [00:08:58] And there are more examples of possible early [00:09:00] American propagandists, including Thomas Paine and Samuel Adams, selling the revolution itself. Sam Adams produced an event every year called the Boston Massacre Oration, reminding everybody what happened on that day. This guy pushed that war.

Hannah McCarthy: [00:09:17] Wow.

Jennifer Merceica: [00:09:18] Some people even think that he stood behind a tree in the Battle of Lexington and fired the first shot to get like the war going as an agent provocateur.

Nick Capodice: [00:09:30] Look, [00:09:30] last quick thing about Sam Adams. He wrote Pro Revolution articles under no fewer than 25 different pseudonyms. And Thomas Paine wrote the pamphlet Common Sense to persuade people to support the revolution. There were plays, op eds, public orations, catchy slogans.

Hannah McCarthy: [00:09:49] Like No Taxation without Representation.

Nick Capodice: [00:09:51] Yeah, or liberty or death. It was an onslaught. However, providing information is just one side of propaganda. [00:10:00]

John Maxwell Hamilton: [00:10:00] The other side of propaganda that we have to keep in mind is that propaganda is also the suppression of information. You want to get people to think things by telling them what to think, and you want to keep them from thinking about things that get in the way of your message. So John Adams is president passed the Alien and Sedition Acts, which put some journalists out of business as an effort to suppress information that he didn't like. So, sure, we have lots of examples historically.

Hannah McCarthy: [00:10:27] So propaganda has been a part of this country pretty [00:10:30] much since the founding, Right. But we didn't use that word until much later. I mean, when did propaganda become propaganda?

Nick Capodice: [00:10:40] Well, I'll tell you about that. And the posters and the movies and the fascinating story of the four Minutemen right after this quick break.

Hannah McCarthy: [00:10:48] But first, if you want a little something that may or may not be full of propaganda at any one moment, yeah, then you want our newsletter. It's where we put everything that doesn't make it into these episodes. It's actually just very [00:11:00] fun. It's one of the few enjoyable things you can find in your inbox every other Thursday, and we're not trying to sell you anything You can subscribe at our website, civics101podcast.org.

Hannah McCarthy: [00:11:14] We're back here on civics 101, and we are talking about propaganda. Nick, was there sort of a defining era that established the new American propaganda?

Nick Capodice: [00:11:25] Yeah. Here is John Maxwell Hamilton again. He is the author of Manipulating the Masses, [00:11:30] Woodrow Wilson and the Birth of American Propaganda.

John Maxwell Hamilton: [00:11:33] What Changes with World War One is a recognition of the importance of public opinion, the rise of mass literacy and the rise of mass publications, which meant people began to be able to more readily come to their own conclusions based on third party writing and thinking. And a third party not being your neighbor, but being someone who was a punitive expert. The reaction of the government had to be, Then how do we control that? [00:12:00] When the war came in April of 1917, even before the law was passed for conscription, Wilson a week later created something called the Committee on Public Information.

Nick Capodice: [00:12:15] The Committee on Public Information. The CPI.

Hannah McCarthy: [00:12:19] A committee?

Nick Capodice: [00:12:20] Yeah.

Hannah McCarthy: [00:12:21] What branch was it under?

Nick Capodice: [00:12:22] It was under the executive branch. And it's an independent agency.

Hannah McCarthy: [00:12:25] So like the EPA or the FCC, the Fed, etc.. [00:12:30] Right. It's still around?

Nick Capodice: [00:12:32] Nope. It only lasted until 1919, but it had a massive effect in those two years.

Hannah McCarthy: [00:12:39] What was the CPI doing?

Nick Capodice: [00:12:42] Well, their initial goal was to censor information that they thought could pose a risk to national security. But bills giving them that power to censor never passed in Congress.

John Maxwell Hamilton: [00:12:52] But it had all kinds of referred authorities to censor because it worked with some censoring organizations like the post Office.

Hannah McCarthy: [00:12:58] The post office censored [00:13:00] the mail?

Nick Capodice: [00:13:00] Oh, they did. You could be fined for sending anti government anti war or even anti liberty bonds mail. And while the CPI didn't explicitly censor, they took a different tack.

John Maxwell Hamilton: [00:13:12] It became very aggressive about providing information and it did it with every means of communication possible. Posters, ads, a news service. The list goes on. Movies. And so they they were providing messages to the public continuously.

Hannah McCarthy: [00:13:27] They made their own movies?

John Maxwell Hamilton: [00:13:29] Yeah, they [00:13:30] produced their own movies. They also vetted movies. Now, they couldn't censor movies in the United States per se, but movie theaters were very worried about being shut down because there were lots of savings programs in the war. For example, you don't want to heat certain facilities because you want to save coal. So the movie theaters saw themselves being very vulnerable. So they would they would allow the CPI to opine on movies they were showing because they wanted to be on the right side of the government. This is an [00:14:00] example of the referred authority they had. They also wanted to be able to export movies because that's how they made money. This is the beginning of the United States having a very strong influence on foreign movie production. That's why our movies tend to go abroad.

Nick Capodice: [00:14:13] The head of the CPI was a man named George Creel, who referred to their work as, quote, the world's greatest adventure in advertising. And they advertised the heck out of the war. Ad executives, journalists, actors, directors, [00:14:30] artists, famous artists like N.C. Wyeth. All of them worked in the committee to sell the war to the American people. But the biggest, possibly most effective arm of the CPI was a group of 75,000 volunteers called the Four Minute men.

Hannah McCarthy: [00:14:48] All right, Who were the Four Minute Men?

John Maxwell Hamilton: [00:14:50] The Four Minute Men was a brilliant idea, which was that during the changing of movie theater, films, reels, leading citizens in whatever community you happen to be in would [00:15:00] stand up and say something that they wanted the audience to think or do. In the case of doing, for example, they would get up and say, You need to donate binoculars to the Navy. The Navy didn't have enough binoculars, so and thousands of binoculars were donated. Another case of doing would be to buy Liberty Bonds to support the war.

Nick Capodice: [00:15:20] They were everywhere, Hannah. They weren't just at the movies. You'd take your kids to a Boy Scout meeting, or you'd go to a church and somebody you know, a member of your community [00:15:30] stands up and says, Before we start today, I just want to thank all the folks out there who mailed a candy bar to their boys on the front last week. You go to a county fair and there's a guy dressed up like Uncle Sam, and he's telling you to buy war bonds. There's a mandatory all staff meeting at work where someone just stands up and waxes poetic on the pride he felt registering for the draft. You can't go about your day without being told how important you are to the war effort.

Hannah McCarthy: [00:15:58] So were these people [00:16:00] government employees?

Nick Capodice: [00:16:01] No, no. I mean, they worked for the government, but they were volunteers. They were not paid.

Hannah McCarthy: [00:16:04] That is fascinating, right, that you have these people who you trust in your circle, in your community, giving these four minute speeches. On behalf of the government.

Nick Capodice: [00:16:15] Yeah, And not just people in your community. Also famous people like Charlie Chaplin or Douglas Fairbanks Jr. These four minute men were everywhere. And to your point about, you know, it's in your community, there were four minute men who gave speeches in Yiddish, Sioux, [00:16:30] Dutch, a dozen other languages, and they sounded inspired. They sounded improvisational.

John Maxwell Hamilton: [00:16:37] They appeared to be local and they appeared to be spontaneous. But in fact, they were highly scripted by Washington. They had themes every week. They were given instructions of what they were supposed to say. They could improvise, but they were given a they were given a very clear mandate and they were monitored.

Hannah McCarthy: [00:16:53] There were people secretly monitoring your seemingly improvised speech.

Nick Capodice: [00:16:58] Got to make sure you stay on message, McCarthy [00:17:00]. And the four minute men got instructions every week, like this week's theme is buy war bonds. And don't say phrases like We all have to do our part that's hackneyed and doesn't have meaning anymore. And at the same time, members of the CPI were always looking out for journalists and activists who got in the way of their messaging.

John Maxwell Hamilton: [00:17:22] And maybe this is a lesson for people who care about democracy. Political leaders like to find ways to [00:17:30] fence back information that they don't like. In the case of Trump, the phrase that he used was fake news.

Archival: [00:17:36] Because they are the fake, fake, disgusting news.

John Maxwell Hamilton: [00:17:41] In the case of the CPI, they had a phrase called enemy talk. And they actually ran a syndicated column called Enemy Talk. And the idea was these are things that you shouldn't believe in, the things that enemy wants you to believe. And then if you hear somebody saying this kind of thing and they have real examples, [00:18:00] that's because the enemy planted it.

Hannah McCarthy: [00:18:02] So earlier, Jen said that compliance gaming is easier than persuasion. And this, I think, is a pretty clear example. If someone says something you don't like, it is not hard to counter with. Yeah, well, that sounds like enemy talk.

Nick Capodice: [00:18:17] Yeah. Get that guy.

John Maxwell Hamilton: [00:18:21] Well, I think the lesson for all of us needs to be and it's a bipartisan lesson when we hear people telling us that something shouldn't be talked about or thought [00:18:30] about or a blanket phrase that tries to negate a classification of information, our antenna should go up. Because it's a shortcut to appeal to our emotions.

Nick Capodice: [00:18:41] World War One ended on November 11th, 1918. The committee was disestablished a year later. But before we make the jump to modern day propaganda, John told me that his intent in studying the CPI was not to demonize the people who worked in it.

John Maxwell Hamilton: [00:19:00] So, [00:19:00] you know, the story of the CPI really is a story of good people doing bad things. But the people who were in the CPI were largely reformers. In fact, they were all reformers. They were progressives who wanted a better country and had been using their talents to make improvements. But the seductive nature of propaganda being what it is, they started taking shortcuts in our democratic procedures and decided it was better to get people to believe the right thing [00:19:30] than to promote debate.

Hannah McCarthy: [00:19:31] So, Nick, the four Minute men approach is not, as far as I know, happening today. Nobody is standing up right before a Marvel movie to expound on inflation or student loan forgiveness.

Nick Capodice: [00:19:44] Yeah. And also, we're not going places. We don't gather in sort of public venues as much as we used to even before COVID. But it's still happening to us whether we like it or not. Both John and Jennifer said that one character trait of propaganda is that it is [00:20:00] non-consensual and it's not necessarily the government trying to sell us on a war. It's political parties selling us policy, it's companies selling us their product, you name it. And now that we live in a digital world alongside our analog world, we are very, very vulnerable. Here's Jennifer Merceica again, author of Demagogue for President The Rhetorical Genius of Donald Trump. And she's going to lay out three vulnerabilities that propagandists exploit.

Jennifer Merceica: [00:20:29] Propagandists [00:20:30] are really, really good at exploiting vulnerabilities, whether it's vulnerabilities and information or vulnerabilities in terms of how our cognitive processes work. So most of our information that our brain receives is processed cognitively without us knowing.

Nick Capodice: [00:20:49] Our brain processes things in different ways. So there's like the quick instinctive reaction, and then there's the more plodding, deliberative consideration. And Jen said to be aware, when [00:21:00] you're receiving information that appeals to first impressions, that that makes you respond immediately.

Jennifer Merceica: [00:21:06] There are strategies that applications use and platforms. There are people on the Internet who talk really fast, and there's a reason why they do that. There's a reason why memes are so successful. It's very difficult to get people to think about what you want them to think about. You know, it's cognitively taxing and we are cognitive misers. And so the [00:21:30] peripheral route to persuasion is that system. One approach which says, you know, people will use heuristic cues to decide things and they won't even be aware that they're deciding something.

Nick Capodice: [00:21:46] A second technique that Jennifer pointed out is called amygdala hijacking, taking advantage of how our brains process fear.

Jennifer Merceica: [00:21:56] If you were watching the news during the George Floyd protests, [00:22:00] you might have seen images of looting or burning cars or destruction or whatever.

Archival: [00:22:06] Chaos in America, violent clashes erupting across the country. One person shot and killed at a Black Lives Matter protest in Austin, Texas.

Jennifer Merceica: [00:22:16] And those images would be playing continuously any time they talked about those protests, whether or not any of those images were relevant to that protest or that day's news. And so [00:22:30] what we know is that most and I mean a great majority, 93 to 94% of those protests were peaceful. No violence at all. But the perception that people have is that they were incredibly violent. And that's because of the way that the media cultivate reality. They're going to show the most dramatic footage they have of the protest they're going to show, especially if they're against the protests. They're going to show what looks violent, what looks scary, that's going to draw people's attention. [00:23:00] And your brain isn't analyzing the information critically as you're watching the news, Right? You are influenced by scary, stressful music. You are you are influenced by the stressful tone of voice. Your amygdala gets hijacked by conspiracy theory and by threats, by scary pictures that are run continuously on a loop. And that is all processed pretty cognitively. So you might not even realize [00:23:30] that your heart is racing and why, but you have a really bad perception of what those protests are like.

Hannah McCarthy: [00:23:39] How do you counter amygdala hijacking?

Nick Capodice: [00:23:42] Jennifer says, Just notice it. Notice how your body is feeling when you watch certain news pieces and if your heart is racing, you can stop if you want to. But even that can be kind of hard.

Jennifer Merceica: [00:23:57] It's in a way even addicting [00:24:00] because you're like, What should I be afraid of? I got to turn on that TV channel to find out. And then it keeps you there on the edge of your seat. And it, and you stay through the commercials, right? I gotta and see what's going to happen. What's the scary thing?

Nick Capodice: [00:24:15] And the third vulnerability that propagandaists capitalize upon goes back to what we were saying about sort of the public sphere, our need for social connections.

Jennifer Merceica: [00:24:25] Human beings absolutely have to be around and connected to [00:24:30] other people. Fundamentally, we will go mad if we are not you know, we we have right now a a crisis of loneliness where people claim that they don't have any friends, they don't they don't feel connected to society. All of that creates distrust. The less social interaction we have with others, the less we trust others. It's a social glue, right? It's a social lubricant. [00:25:00] It allows for the government to remain trusted and stable. We have a crisis in distrust in government right now, and so our connections are absolutely necessary. They're crucial to us as human beings, and they're crucial to society, but they're also very, very easily exploited. Right. Our need to connect makes us polarized, right? Because you create this sort of in-group versus this outgroup and you say, I'm going to do [00:25:30] whatever I can to protect the group. Our connections online make us targets. They make us nodes in the propaganda game.

Hannah McCarthy: [00:25:38] Something that is particularly nefarious about propaganda is that it appeals to positive character traits.

Nick Capodice: [00:25:45] What? What do you mean?

Hannah McCarthy: [00:25:46] Like our love of country or our desire to make the world a better place? Or most often it seems the need for things to be fair. And just. Now those are good feelings and [00:26:00] propaganda sort of touches our hard wiring. It can take good intentions and turn them into bad actions. So how do we change it? I get Jennifer's point that we have to first know when we are being exploited and then turn it off. But isn't there a better solution? Are people in power in this supposed beacon of democracy, the United States capable of doing anything to stop propaganda?

Nick Capodice: [00:26:28] John says, As of right [00:26:30] now, not really.

John Maxwell Hamilton: [00:26:32] We need better laws and we need better enforcement and better supervision, and we don't have it. And so as a result, the power of the White House grows and grows because the number of tools they have, social media tools, for example, are now growing exponentially, while the number of journalists who actually cover government legitimate journalists is decreasing. And so the balance of power is changing. And that's a problem. [00:27:00] It's a big problem.

Hannah McCarthy: [00:27:02] I mean, this makes me think of the fact that more and more often, most of us are not getting our news directly from the news outlet, but it's being pushed to us on social media like things that are suggested. Hey, you might like this on Instagram, right?

Nick Capodice: [00:27:15] Or YouTube or Twitter.

Hannah McCarthy: [00:27:16] Or Facebook or TikTok.

Nick Capodice: [00:27:17] Always Tick tock.

Jennifer Merceica: [00:27:19] Tick Tock is so good at figuring out who you are and what you believe and what you want to be exposed to, that it's essentially a confirmation bias [00:27:30] machine. Everything about that algorithm is designed to feed you information that you already agree with and not to feed you any information that you don't agree with. So that's a problem.

John Maxwell Hamilton: [00:27:48] And and in a world where the government has so much information, power, propaganda, power, we have to be prepared to think critically about the people we like because of the [00:28:00] potential of bias and not let ourselves be led down a path simply because it sounds good or appeals to something that we actually already believe but maybe needs more scrutiny.

Nick Capodice: [00:28:12] All right, Hannah. Look at your card. Ns How did I do it?

Hannah McCarthy: [00:28:21] Nine of diamonds! It was on top of the stack.

Nick Capodice: [00:28:23] You got it. Well, you know what?

Nick Capodice: [00:28:23]  Today [00:28:30] on Civics one on one. This episode is made by me Nick Capodice with you, Hannah McCarthy. Thank you.

Hannah McCarthy: [00:28:37] Thank you. Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer.

Nick Capodice: [00:28:43] Music in this episode by Francis Wells, Czar Donic, The New Fools, Luella Gren, Arc de Soleil, Emily Sprague, Poddington Bear, Scott Holmes, Cooper Canell, Chris Zabriskie, the Grand Affair, and George M. Cohan

Hannah McCarthy: [00:28:55] Civics one One is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Post-Presidency Perks: What do former presidents get when they leave office?

What does a person get after the U.S. presidency’s over and done with? We answer a question from listener Patrick, who asks if former presidents get anything special. Do they ever, and we lay out the perks of having once held the highest office in the land.

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Transcript

Hannah McCarthy: [00:00:02] You know, I once read that the cast of Ocean's 11 would check into hotels with the last name president. So if they got a wake up call or whatever it would be for Mr. President.

Nick Capodice: [00:00:12] Table for 11 for Mr. President.

Hannah McCarthy: [00:00:14] Although, frankly, I feel like a table for Mr. Clooney and Mr. Damon would probably get you further. This is civics one on one. I'm Hannah McCarthy.

Nick Capodice: [00:00:27] I'm Nick Capodice.

Hannah McCarthy: [00:00:28] And today we are looking into [00:00:30] what exactly it means to carry that honorary president around. But you know, for real, like, what do you get being Mr. President, even after you leave the White House in your rear view? But credit where credit is due. This question did not come from us.

Mary Ellen Wessels: [00:00:48] Hi, I'm Mary Ellen Wessels. I teach middle school civics at Gate City Charter School for the Arts in Merrimack, New Hampshire. One of my students, Patrick, asked me a great question that I really didn't know the answer to. [00:01:00]

Patrick: [00:01:01] Does a former President have any special privileges like bodyguards or free stuff, Things like that?

Hannah McCarthy: [00:01:09] It turns out, Patrick, that there is a whole act of Congress that takes care of this entire question. But first, I have to get something out of the way. Once a president, always a president is a president president for life.

Nick Capodice: [00:01:26] Well, it's like pretty specifically not [00:01:30] how it works.

Hannah McCarthy: [00:01:31] And yet.

Archival: [00:01:32] Well, Mr. President, what do you think of that fellow compared to the politicians you see these days? Well, that's one of the first times I've ever seen myself on television, as I was telling you before the show began. I simply have a phobia about that.

Archival: [00:01:44] But President Carter, Mrs. Carter, it is so wonderful to see both of you. Thank you for talking with us. 75 years of marriage.

Archival: [00:01:53] And you will hear President Clinton, one of only two presidents in U.S. history, to face impeachment, tell how he considers [00:02:00] that a badge of honor. Please welcome President George W Bush.

Archival: [00:02:05] Hello, Mr. President. Thank you.

Hannah McCarthy: [00:02:10] This is the first thing I want to get to, Nick. Does the president keep their title when they leave office?

Nick Capodice: [00:02:17] I think they do, don't they? Like you always see it in the news. President Carter. President Nixon. It's never just removed. They don't just say Barack Obama.

Hannah McCarthy: [00:02:25] So here's the story, because it's not only former presidents who [00:02:30] are addressed and referred to as their former job, it's also former senators as Mr. or Madam Senator, former Cabinet secretaries as Mr. or Madame Secretary. However, Nick, there is no federally mandated in writing rule that a former president continues to be addressed as such or formally retains their title. This is a tradition slash propriety thing. It is simply a show of respect.

Nick Capodice: [00:02:59] But in [00:03:00] terms of what these individuals are called on a daily basis, I feel like most people default to the traditional way of doing things.

Hannah McCarthy: [00:03:07] They do indeed. However, I wanted a little bit more of a hard and fast answer. So allow me to introduce you, Nick, to the Protocol School of Washington.

Archival: [00:03:18] You will learn programs such as how to succeed in the international arena, dine like a diplomat, and outclass the competition. These programs give you the tools to teach international.

Nick Capodice: [00:03:29] I want to learn [00:03:30] how to dine like a diplomat. What is the protocol School of Washington? I feel like I need to go there.

Hannah McCarthy: [00:03:36] It's a place that teaches people basically super high level business and government etiquette and also just regular.

Nick Capodice: [00:03:45] Etiquette like which spoon to use walking around with a book on your head, that sort of thing.

Hannah McCarthy: [00:03:49] I think probably that is a part of it, but also how to not horribly insult that particular shah during tea. But the protocol school's take on [00:04:00] it is that for jobs that are only held by one person at a time like the governor of a particular state or, you know, the president of the United States of America, it is not respectful to the current officeholder to address the former office holder with the same title, but with jobs that more than one person holds, like senator, Admiral, etc. that person should be addressed by [00:04:30] their former title.

Nick Capodice: [00:04:31] That is some very specific protocol.

Hannah McCarthy: [00:04:33] But actually it does make sense. The idea is partially a respect thing and partially that a president, unlike, say, a general or a doctor, has not achieved some kind of lasting rank. After Eisenhower left office, he was General Eisenhower again.

Nick Capodice: [00:04:54] What are we actually supposed to call the former president?

Hannah McCarthy: [00:04:57] Yeah. So both according to the protocol [00:05:00] school in Washington and I found another set of guidelines by the US Embassy in the United Kingdom, The answer is the honorable.

Nick Capodice: [00:05:10] The honorable, like the honorable Ronald Reagan, the honorable Martin Van Buren.

Hannah McCarthy: [00:05:18] Which actually sounds closer to royalty than the alternative, don't you think? Yeah, which would probably not thrilled George Washington, who specifically wanted a title that could have a mr. [00:05:30] before it to avoid any comparison at all to a monarch.

Nick Capodice: [00:05:34] Hey, Mr..

Hannah McCarthy: [00:05:35] Anyway, such is the strange world of etiquette, and people are going to keep calling the former president, President So-and-so. But I have said my piece. So let's get to that post-presidency life. And I want to start with money. I'm going to talk about what the government legally owes a former president. But that isn't the sum total [00:06:00] of what a former president typically gets. If you become Nick, one of the most famous people on the planet, you tend to stay pretty famous even after you leave the job that skyrocketed you. And that means a lot of people want to hear what you have to say.

Nick Capodice: [00:06:21] Yeah. So as a quick side note, George H.W. Bush was my commencement speaker in high school in 1997.

Hannah McCarthy: [00:06:28] That will forever be amazing [00:06:30] to me.

Nick Capodice: [00:06:30] And it's kind of strange because George H.W. did not actually attend the school that I went to. So what the heck was he doing speaking at my graduation?

Hannah McCarthy: [00:06:40] Well, that's actually quite the easy answer. A former president as a commencement speaker, they do it all the time. And it's not just commencements. They speak to private businesses at corporate events. They speak at charity events. And why do they do this, Nick? Because they can make you pay.

Archival: [00:07:00] You [00:07:00] want me to talk about leadership? I can't even get on the stage. I felt very relieved when I told them that I was going to give this speech on the gold standard and the international balance of payments. It only takes about 50 minutes. Hello, Stanford. They all send me. It is great for me and my appreciation. All of you here in this room for your warm welcome. And [00:07:30] those outside have made me feel very much at home.

Nick Capodice: [00:07:38] How much are we talking?

Hannah McCarthy: [00:07:39] Well, Bill Clinton is the speech maker to end all speech makers. He is said to charge between a quarter and a half a million dollars per speaking engagement.

Nick Capodice: [00:07:48] Holy cow.

Hannah McCarthy: [00:07:49] He speaks a lot.

Nick Capodice: [00:07:51] My gosh.

Hannah McCarthy: [00:07:52] Barack Obama reportedly keeps it at 400 grand as his nominal fee for speaking engagement. Ronald Reagan [00:08:00] reportedly accepted $1 million once for a speaking engagement in Japan. That got him into a lot of trouble at the time because U.S. relations with Japan were not doing so hot. Jimmy Carter does not accept many fees. Every once in a while, Jimmy Carter will go for it, because that's not really his M.O. if you know Carter. Right. And when he does accept a fee, he tends to donate it.

Nick Capodice: [00:08:22] Oh, but overall, the point you're making is you can easily become a millionaire if you're not already by just talking to people [00:08:30] who have money to burn.

Hannah McCarthy: [00:08:32] It is that simple, though. You are probably going to get heat for that burn. People were not very happy that Obama accepted some of those $400,000 fees from Wall Street firms, for example. There is a pretty big ethical question around all of this. Fortunately, you have another option. You can write one or several books and make millions of dollars on sales, which former presidents pretty much always do. Jimmy Carter has written 30, [00:09:00] 30 books.

Nick Capodice: [00:09:01] 30. And it's unfortunate that our book did not result in earning millions of dollars as well. Maybe you and I should write 29 more.

Hannah McCarthy: [00:09:09] Maybe we should.

Nick Capodice: [00:09:10] Write. Let's say a former president doesn't do any of that. What do they get without even trying without going out and giving speeches?

Hannah McCarthy: [00:09:17] You mean aside from the trying they did to become and be president?

Nick Capodice: [00:09:21] Yeah, aside from that little thing.

Hannah McCarthy: [00:09:25] Well, we've got a little something called the former Presidents Act.

Nick Capodice: [00:09:29] Okay. Now we're getting to [00:09:30] the point.

Hannah McCarthy: [00:09:30] Yeah, it was passed in 1958. It's a federal law originally with the subtitle to provide retirement, clerical assistance and free mailing privileges to former presidents of the United States and for other purposes, free mailing privileges. Heck, this is called franked mail. Franked mail. This is something that has been around in the US federal government for a long time, and it basically means that you can just sign a piece of mail instead of putting a stamp on it. [00:10:00] But apparently it was widely abused for quite a while because it's not just for former presidents and for a long time it wasn't. But Congress members had it and they would loan their friends and family their franking privileges. There's a legend that one senator franked his horse's bridle and sent the animal home on the government's dime. And that is why the franking privileges disappeared for a while. But they came back eventually with some restrictions.

Nick Capodice: [00:10:29] All right. I have a lot of questions [00:10:30] about franking, but I'm going to stick to the topic at hand. The president didn't get franking privileges until 1958.

Hannah McCarthy: [00:10:37] Frankly, Nick? No, reportedly and I do mean reportedly, because, Nick, do I have a bombshell coming for you? Harry Truman could not afford to pay for his deluge of correspondences when he left the presidential office. The former president's act was passed five years later than that whole time Truman had spent bemoaning how [00:11:00] broke he was post-presidency. Truman's public complaints about being so broke are reportedly part of the reason why Congress finally passed the FPA.

Nick Capodice: [00:11:10] And as the bombshell that Truman was broke.

Hannah McCarthy: [00:11:13] Oh, no.

Nick Capodice: [00:11:14] All right. I'm going to accept the thrill of anticipation in the meantime. But I'd like to know, was Truman the first president to be like, hey, I haven't a penny to my name. And it's all because I devoted myself to this country for years on end. [00:11:30]

Hannah McCarthy: [00:11:30] He may have been the first to make such a big thing about it. Truman insisted he would not leverage his name or his influence for money, while also noting that he had to take a loan to pay his bills after he left office. There simply was no pension for presidents prior to 1958, and there are a handful of stories of presidents leaving the White House only to have to move in with family because they were in such dire straits. Thomas Jefferson spent pretty much his entire adulthood in debt, and that did not change when he left office. Though [00:12:00] he lived a comfortable life facilitated by enslaved people at Monticello and reportedly died feeling just fine about himself. Ulysses S Grant, on the other hand, just barely managed to sell his memoirs before his death with the help of Mark Twain, actually to ensure that his family would not be saddled with his poverty when he died.

Nick Capodice: [00:12:20] But some presidents were real rich, though, right?

Hannah McCarthy: [00:12:23] Oh, yeah. George Washington. Andrew Jackson. Theodore Roosevelt. Really? Super [00:12:30] duper loaded.

Nick Capodice: [00:12:31] Yeah, loaded. But eventually Congress said, okay, enough's enough. Let's make sure former presidents don't die utterly broke.

Hannah McCarthy: [00:12:39] That's right. So in addition to the mail franking, the 1958 Act provided an annual pension equal to the pay received by an executive cabinet secretary. Today, that is $219,000.

Nick Capodice: [00:12:54] It's not too bad. In other words, barring extenuating circumstances, former [00:13:00] presidents should be totally fine, financially speaking.

Hannah McCarthy: [00:13:04] Yeah, exactly. One provision, however, in the ACT, former presidents will not be provided that pension if they take an appointed or elected role in the federal government or Washington DC that pays a true salary.

Nick Capodice: [00:13:18] Which former presidents don't really do. As far as I.

Hannah McCarthy: [00:13:20] Know, they really don't. I mean, once you reach the top, you know.

Nick Capodice: [00:13:23] And you said this act provides for clerical assistance, what does that mean?

Hannah McCarthy: [00:13:29] All right. So [00:13:30] just because you leave the highest office in the land, that does not mean that you stop needing a staff. There's a lot to do. You need to establish a library. You need to write about what it was like to be president. You have to deal with tons of mail. Thank goodness it's franked. You have to attend events. You are a public person for the rest of your life.

Nick Capodice: [00:13:53] I've always wondered what it would be like to be the kind of person who could say, you know, my people will be in touch.

Hannah McCarthy: [00:13:58] Yeah, This act pretty much [00:14:00] guarantees that the president has taxpayer funded people forever or person, depending on how much you choose to pay them. The act provides $96,000 a year for staff who, quote, shall be responsible only to him, him being the president.

Nick Capodice: [00:14:16] So following the Constitution rules here, the president is a quote. Him. Yep.

Hannah McCarthy: [00:14:23] And there's more where that came from. Also, when it comes to paying for staff members for the first 30 months after a president leaves office, [00:14:30] they get way more than that 96 grand. They get 150,000 total to pay for staff.

Nick Capodice: [00:14:36] And I guess the idea behind that is you have a lot more responsibilities that are really intense immediately after you leave office before you become comfortably a former president resting on your laurels, painting self portraits in the bathtub.

Archival: [00:14:49] From what I read, sir, it sounds as though you were ready to dismiss the idea of W as an artist, but you changed your mind.

Archival: [00:14:56] I was sure I would hate them, but there was something kind of innocent, sincere [00:15:00] also that was so strange to see a man who had seen the entire world paint himself alone in a bathroom in the bathtub naked.

Hannah McCarthy: [00:15:11] You know, those George W Bush self portraits were actually leaked after an email hack. He did not intend for us all to see those.

Nick Capodice: [00:15:18] I did not. I did not know that I actually quite enjoyed his work.

Hannah McCarthy: [00:15:21] Too, honestly. Now, one thing about the staff pay we're talking about there are caps on what any one presidential staff member can make [00:15:30] based on the executive branch pay schedule. So I was like, What's that? I looked up the executive branch pay schedule currently from level one to level five NEC, nobody is making less than 165,000 a year.

Nick Capodice: [00:15:45] So basically, Hannah, we should hang up our headphones and start looking at a career in civil service.

Hannah McCarthy: [00:15:49] If either of us is going to be Secretary of Defense, we've got to get working on it now. But why not dream Also weird provision in this pay thing? The act specifically says that the pay cap does not apply [00:16:00] to independent contractors who help with record transfers to the National Archives or to the presidential libraries.

Nick Capodice: [00:16:08] Now, we won't go down this rabbit hole in this particular episode, but I think concern about the management of records for our most recent former president tells us just how important and valuable the federal government considers them. So that checks out.

Hannah McCarthy: [00:16:23] Actually, I think so, too. There's a reason why they they're willing to put so much money towards record management, right?

Nick Capodice: [00:16:29] Yeah. [00:16:30]

Hannah McCarthy: [00:16:30] All right. Moving on. We've got the pension, the clerical staff. What else does a former president get? Quote, suitable office space, appropriately furnished and equipped.

Nick Capodice: [00:16:40] What's the budget for suitable office space?

Hannah McCarthy: [00:16:42] Well, apparently, sky's the limit because the act does not even attempt to set a cap on the cost of a physical office.

Nick Capodice: [00:16:48] But tell me you looked into it.

Hannah McCarthy: [00:16:49] Oh, I looked into it because, by the way, Nick, a lot of this is made public by the General Services Administration because it's our taxpayer money that's being spent here. So they don't break it down by individual [00:17:00] president. I found some other research that tried to do just that. Bill Clinton's New York office, the rent was reportedly 429,000 a year in 2021. That same year, George W Bush's Texas office was 434,000 a year.

Nick Capodice: [00:17:16] The rent to these places have pools.

Hannah McCarthy: [00:17:19] To be fair, Nick, neither one of us, to my knowledge, has attempted to rent office space in a major metropolitan area, so I have no idea if this is reasonable or [00:17:30] not. But it is not like a former president can say, Well, I'll be taking over the entirety of the Ritz-Carlton in Manhattan for my office space. I mean, I suppose they can try, but the administrator of General Services gets to decide what's appropriate. There's no cap on how much can be spent. But there is a person saying $4 million a year is a little outrageous. All right. Other costs, we pay their office phone and utility bills. [00:18:00]

Nick Capodice: [00:18:00] Former president, you can't even cover your own phone bill.

Hannah McCarthy: [00:18:03] The total requested budget for 2022 from all of the former presidents together for communications and utilities was $216,000. Now, there is also a budget line item for transportation of things, of things which was appropriated for reasons I will probably never know, eight grand in 2021 to move things. And [00:18:30] yet nobody requested a thing. Transportation budget for 2022.

Nick Capodice: [00:18:34] I'm already way over budget on thing transportation that. Sierra. Hannah Yeah.

Hannah McCarthy: [00:18:38] It's pretty much your one vice.

Nick Capodice: [00:18:39] All right, I have to ask you something here.

Hannah McCarthy: [00:18:41] All right?

Nick Capodice: [00:18:42] Because I feel I have waited long enough.

Hannah McCarthy: [00:18:44] Sure.

Nick Capodice: [00:18:45] You hinted and you've been hinting before we even track this episode, Hannah, that you have some big old Harry Truman bombshells.

Hannah McCarthy: [00:18:53] Yes. Okay. Right. So, very importantly, Congress found Harry Truman's supposed [00:19:00] financial straits convincing enough to finally pass what they'd been chewing over for a while. The former president's act. Poor Harry. Right, Right. Wrong.

Nick Capodice: [00:19:12] Wrong.

Archival: [00:19:13] Do you think it's appropriate for a former president to have to go about raising funds in order to house his official favor? Well, no. And I'll give you my viewpoint on the subject. And if you've got the time for it and the reason why it had to be done.

Hannah McCarthy: [00:19:28] There's this law professor and journalist [00:19:30] named Paul Campos, who did a bunch of research at none other than the Harry Truman Presidential Library. Read Truman's own account of his finances and found that the same guy who went on TV and told the American public that former executives are, quote, allowed to starve was worth about $650,000 at the end of his presidency.

Nick Capodice: [00:19:54] That's amazing. 650 [00:20:00] grand. Okay. I know you hate to do this, but can we just talk about, like, adjusting for inflation, how much that would be?

Hannah McCarthy: [00:20:08] Yes. Even though it's kind of meaningless. Adjusted for inflation, that would be about $6.6 million today.

Nick Capodice: [00:20:15] That's not really starving money.

Hannah McCarthy: [00:20:17] In the five years between leaving office and the 1958 act. Harry Truman's net worth crested a million a million in the fifties.

Nick Capodice: [00:20:27] But didn't Harry Truman have, like this hat shop [00:20:30] that sunk him financially?

Hannah McCarthy: [00:20:31] So this is the interesting thing about Truman. Yes. Truman Co ran a haberdashery in Kansas City, Missouri, from 1919 to 1922 when a recession sank the store. It took him a decade to pay down that loss. Harry Truman spent most of his career completely broke. He was also the first president to have a no questions asked, $50,000 a year untaxed expense account. That account became [00:21:00] taxable during Truman's own presidency, but he did not report it. Mr. Paul Campos His best guess is that Truman pocketed most of that cash.

Nick Capodice: [00:21:11] There's always money in the hamburger stand. There's always money in the bowler's stand. There's always money in the pork pie. Stetson stand. What? What's the funnier hat? Because let's see. What. What do you call the trilby? There's always money in the trilby stand.

Hannah McCarthy: [00:21:23] What's a trilby?

Nick Capodice: [00:21:25] It's like, I don't know. In my mind, they all kind of look like bowlers. [00:21:30] I'm going to stop saying hat names. This whole story kind of really has turned Truman in my mind to sort of a man of mystery.

Hannah McCarthy: [00:21:37] Whatever the reason for misleading Congress, he did secure pensions for all former presidents, including himself, although he was the only living former president at the time. And I'm going to tell you what else he secured after this quick break.

Nick Capodice: [00:21:52] But before the break, if you do want to help our book, sell a million copies, it's called A User's Guide to Democracy How America Works. It's Fun. It's illustrated [00:22:00] by New Yorker cartoonist Tom Toro. And you can find it wherever your books are sold.

Hannah McCarthy: [00:22:09] We're back. You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:22:11] I'm Nick Capodice.

Hannah McCarthy: [00:22:12] And today we are answering a question from listener Patrick, who asks,

[00:22:17] Does a former president have any special privileges like bodyguards or free stuff, things like that?

Nick Capodice: [00:22:25] And we answer.

Hannah McCarthy: [00:22:27] And we answer. So I covered the pension, the staff, [00:22:30] the office expenses, the strange case of Harry Truman's big lie. Next comes the widow O.

Nick Capodice: [00:22:36] Once again, Hannah, I feel like the language is going to have to be changed at some point.

Hannah McCarthy: [00:22:41] It's the 21st century lawmakers. We sent William Shatner to actual space. You know, maybe not a man might be president one day. Just saying. Widows of former presidents get $20,000 a year until they die, unless they remarry before they turn 60, which I think is tied to the fact [00:23:00] that widows in the US don't receive survivor Social Security benefits if they remarry before 60. The same goes for the survivors of fallen military spouses, and there are a lot of lawmakers out there who think that this whole remarrying penalty is outdated and totally unreasonable. But I digress. They actually have the same provision about not getting pension if they hold federal office or Washington, D.C. office. Now, moving on, the act next and this is important defines, [00:23:30] Nick, what a former president is and what a former president is, is someone who, number one, was president of the United States.

Nick Capodice: [00:23:39] Got it.

Hannah McCarthy: [00:23:40] Number two, was not removed from office via impeachment.

Nick Capodice: [00:23:44] Okay. I'm glad you clarified that. I was going to ask.

Hannah McCarthy: [00:23:46] Now, you know, and number three does not currently hold the office of president.

Nick Capodice: [00:23:51] Right. Because former.

Hannah McCarthy: [00:23:53] Precisely. All right. Almost done here. Final thing.

Nick Capodice: [00:23:57] Secret Service. I've been waiting for this.

Hannah McCarthy: [00:23:59] Patrick asked about [00:24:00] bodyguards. Here they come. There's a pretty interesting provision in the former Presidents Act itself. But first, Nick, we need to take a look at the US Code, aka the compendium of general and Permanent federal Law.

Nick Capodice: [00:24:13] Just when you think you've gotten away with not making an episode about it, the US code shows up and reminds you it's got something to say.

Hannah McCarthy: [00:24:22] And what it says about Secret Service is that a former president and their spouse are authorized to have Secret Service protection for their lifetime. [00:24:30] Unless and here's that language about remarrying again. If that spouse remarries, they don't get Secret Service protection anymore, which, you know, kind of gives me pause because you don't stop being a prominent public figure and a former civil servant when you remarry. Right. You're still that person. It's just interesting to me. The Secret Service is also authorized to protect the children of the former president while they're under the age of 16.

Nick Capodice: [00:24:57] Okay. Well, I would I would like to ask you keep saying is authorized [00:25:00] to. So that doesn't mean that they have to.

Hannah McCarthy: [00:25:05] And that's where we come back to the former president's act, because that lifetime protection is something you can opt into or out of. If for some reason the former president and their spouse turns down that Secret Service protection, or if for some reason that US code provision expires like Congress doesn't renew it or something, the former president's act will provide up to $1,000,000 a year for that [00:25:30] former president and up to half a million dollars a year for that spouse, for security and travel related.

Nick Capodice: [00:25:36] Expenses and travel related.

Hannah McCarthy: [00:25:39] Expenses. That is what it says. And no, it does not specify what those are.

Nick Capodice: [00:25:44] To me, this is the most interesting provision because, you know, do you opt to go with this agency that has a long track record of protecting presidents, or do you gamble on doing it yourself with a million and a half or fewer bucks?

Hannah McCarthy: [00:25:58] Apparently, Nixon declined Secret [00:26:00] Service protection after being out of office for 11 years, saying that he wanted to save the taxpayers money. And I'm just not sure if he got any supplementary funds for protection after that. And by the way, the lifetime part of Secret Service protection was put on hold for about a decade in 1994 to save money. Congress was thinking like, after you've been out of office for ten years, you don't need Secret Service protection anymore. But in 2013, Obama signed the lifetime part back into law. The thinking there was like post-9-11. [00:26:30] The world is very different, you know.

Nick Capodice: [00:26:33] And also the former presidents are helping, you know, up and coming presidents campaign a lot. So they're always in the political sphere. Now, I'd like to ask how much Hannah and total former presidents cost us, the taxpayers?

Hannah McCarthy: [00:26:48] Well, that Secret Service cost aside, because that's a separate budget. A 2020 estimate put the total for all the former presidents at around $4 Million a year.

Nick Capodice: [00:27:00] You [00:27:00] know, that's not nothing.

Hannah McCarthy: [00:27:02] It's not nothing. But I think the question is less what it costs the taxpayer and more. Does the former president need all of this money, all of these provisions, when you can rake in $400,000 for an hour of speaking at a business retreat? Does the federal government need to pay for your office space?

Nick Capodice: [00:27:36] It's [00:27:30] tricky, right? Because you don't have to make 400 grand for talking. You just can if the people want it enough.

Hannah McCarthy: [00:27:45] Right. And an important unofficial role that former presidents also play is that of diplomat. It goes hand in hand with remaining famous and in-demand. Former presidents advocate for policy. They meet with important people. And [00:28:00] you don't want them doing that without a decent office. The presidency comes with perks even after it's over. That's just the way we do it.

Nick Capodice: [00:28:09] One last question before we go. To be president is to know information. Right? Like pretty much the biggest, sometimes most secret information that there is. Do former presidents ever get kind of newly released big information also?

Hannah McCarthy: [00:28:29] Do they ever. [00:28:30] I'm glad you asked. Providing a former president with intelligence briefings is a tradition that has a little bit to do with courtesy. You know, looping a former leader in on what's going on now and a little to do with current presidents seeking advice from someone who had the job before them and came to understand how the country and the world works. And that makes sense. You know, Jimmy Carter gets them, Bill Clinton gets them, George W Bush gets them, Barack Obama gets them.

Nick Capodice: [00:28:57] So that's all living former presidents except for one. [00:29:00]

Hannah McCarthy: [00:29:00] Yeah. The current president gets to determine if a former president receives these briefings. And President Joe Biden determined that there was no need to provide them for former President Donald Trump.

Nick Capodice: [00:29:11] Which I guess is a good reminder of why we should technically call only one person President so-and-so. There is only one person in charge at a time.

Hannah McCarthy: [00:29:20] Only one person with access to the White House bees.

Nick Capodice: [00:29:22] Beads?!

Hannah McCarthy: [00:29:25] Under Obama the White House carpenter installed a beehive and now there's White House honey bees. [00:29:30]

Nick Capodice: [00:29:31] Well, I feel like all that honey is going to the former presidents. There's always been White House honey.

Hannah McCarthy: [00:29:42] Okay, Patrick, I hope that answers your question. If you, dear listener, have questions of your own, do as Patrick did. Ask us to send a voice memo or email to Civics 101 at npr.org. This episode was produced by me, Hannah McCarthy, with help from Nick Capodice. Christina Phillips is our senior producer. [00:30:00] Jacqui Fulton is our producer, and Rebecca Lavoie is our executive producer.

Nick Capodice: [00:30:03] Music In this episode by Duke Harrington, Sven Linde, Val Flying, Xavier Roussin, Spring Gang, Pro Reese, Mary Riddle and Daniel Friedell.

Hannah McCarthy: [00:30:11] And if you just can't get enough of that civics one on one goodness in your life, don't forget to subscribe to our newsletter. Extra Credit. You can do that at our website, civics101podcast.org.

Nick Capodice: [00:30:20] Civics 101 is the production of NHPR New Hampshire Public Radio.

Hannah McCarthy: [00:30:29] They're [00:30:30] willing to put so much money towards records management. Towards records, man. Towards records management. Whoa. Wow.

Nick Capodice: [00:30:37] You trying to make a gag reel for the credits?

Hannah McCarthy: [00:30:39] Stop it. There's a reason that they put so much money towards record management, right?

Nick Capodice: [00:30:44] Yeah.

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Made possible in part by the Corporation for Public Broadcasting.

The White House Press Corps & The Press Secretary

The White House Press Corps  wasn't always such an organized bunch. In this episode, we'll dive into the history and evolution of reporters in the White House. Plus, the how the role of Press Secretary was created, how it's evolved, and how the relationship between POTUS and the press has shifted over the centuries. 

Guests:

NPR's Scott Horsely and Mara Liasson

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Transcript:

Archive: There will be a new secretary of agriculture by the end of the year. I don't know that it'll be tomorrow. It may happen next week as he makes a decision.

Archive: I once I say that you guys will put something in a newspaper. I hate that. Unlike today. Unlike today, where there was nothing in there, it's very tough to down. Well, no, I think he's expected to take quite a bit of it down. But what was the question?

Archive: And my question, can you deny, Dana, that the White House was astounded by this when only 11 years ago Senator Kerry declared Clinton's an unusually good liar? Unusually good?

Archive: I'm not going to comment.

Archive: No comment.

Archive: What's your second one.

Hannah McCarthy: Nick? There's a select group of journalists whose whole job is to cover one of the highest offices in the land and what's going on behind its closed doors. They're called the White House press corps. And they are among America's most important free press guardians, ensuring citizens have access to information about their government.

Archive: My question is, why did you really want to go to war? From the moment they stepped into the White House, from your cabinet, former cabinet officers, intelligence people, and so forth. What was your real reason? You have said it was the oil price for oil. It hasn't been Israel or anything else. What was it?

Hannah McCarthy: And the White House needs the press corps to get the executive branch issues and proposals in front of the public. But the relationship between those select journalists and the White House can be combative.

Archive: Yeah, I think your premise, and I'll do respect to your question and to you as a lifelong journalist, that, you know, I didn't want war to assume I wanted war is just is just flat wrong, Helen. And I'll do respect. Hold on a second, please. Excuse me. Excuse me.

Hannah McCarthy: Because it's the job of the press corps to hold the executive branch accountable to the people. So how do they get the job done? This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And today we are talking about the history and role of journalists in the White House, including the media's unique relationship with the executive branch and what it's like to report on the highest authority in the land. We're also going to take a look at the role of the White House press secretary, who often has to act as a gatekeeper between the president and the media.

Scott Horsley: The founders were very much aware of the importance of a free press and the watchdog function that we play.

Hannah McCarthy: This is Scott Horsley. He is a former senior White House reporter for National Public Radio. Scott covered the White House for ten years during both the Obama and the Trump administrations. He spoke with Civics 101 back in 2017.

Scott Horsley: And we see our role as being the eyes and the ears of the American people who can't physically be there and don't have the time to be there in a watchdog role for themselves. So we're there watching for all the people who want to know what the president and his team are up to.

Hannah McCarthy: A free press is so integral to a functioning government that you can think of it as a kind of fourth branch.

Nick Capodice: Now, of course, there isn't actually a fourth branch of the government, but calling the press the fourth branch illustrates that the press is, or at least at its best, can be a powerful check on authority. It's also sometimes referred to as the Fourth Estate.

Hannah McCarthy: Do you know where that term comes from? The Fourth Estate?

Nick Capodice: No.

Hannah McCarthy: So back in the 18th century, you had these three sort of societal categories that were called estates rights. You had nobility, the people in power, clergy people also kind of in power. And then you had the people, you had the commoners. And this essayist at the time describes the press, this increasingly powerful entity that was writing about these other three estates as the fourth estate. Isn't that interesting?

Nick Capodice: Yeah. And when we hear that term today, it's generally referring to the news media as a watchdog. So the media helps hold the executive office accountable for their actions. But I want to know, has the White House always been accessible to journalists? Could a reporter walk into John Adams's office and speak to him and his officials?

Hannah McCarthy: No, no. For a long time, the press could not go into the West Wing unless they were invited. During most of the 1800s, reporters weren't anywhere close to a fixture at the White House. There was no designated time and place for reporters to ask questions of the president or of other White House officials. During Abraham Lincoln's administration, for example, it was said that reporters would assemble on the lawn below the windows of Lincoln's second-floor White House office to try to get a scoop.

Nick Capodice: What kind of scoop?

Hannah McCarthy: Anything worth reporting on, like the Civil War, the death of Lincoln's young son, Willy or, you know, just the politics of the day.

Nick Capodice: They would just hang out there on the lawn with notepads, just hoping to catch some juicy bit of news?

Hannah McCarthy: It was their only option. They had no designated space inside the White House.

Nick Capodice: So how did they communicate with anyone? Did they just try to flag people down who are going in and out of the White House.

Hannah McCarthy: That is exactly what they would do. They would wave down visitors to try to find out what went on during their meetings with the president. And this is how things went basically from Lincoln all the way to William McKinley. And then Nick, during President Grover Cleveland's second term in office in 1896, a reporter for the Washington Evening Star named William Price started a column called At The White House. Price interviewed people about their business as they were going in and coming out of the White House at the North Portico. And his column was a big hit. Now, because of Price's columns' popularity, other news outlets decided to do the same thing, to station their reporters in the same place and to get the same news. So eventually you had this crowd. Now, Ida Tarbell, who was a pioneer in American journalism, wrote that the waiting spot became known as Newspapers Row. She said, quote, "Here they gather by the score on exciting days and in the shadow of great white pillars, watch for opportunities to waylay important officials as they come and go."

Nick Capodice: Ida Tarbell, the famous Muckraker, which is a term, by the way, from the Progressive era to describe investigative corruption, revealing reporters. When did journalists finally get inside the executive mansion?

Hannah McCarthy: Well, there's probably an apocryphal story that Theodore Roosevelt showed mercy on a group of wet, soggy reporters who were huddled together on the lawn during a rainstorm. He invited them in to dry off, and then he just couldn't get rid of them after that.

Nick Capodice: Well, this sounds like Roosevelt was maybe interested in making the press like him.

Hannah McCarthy: Well, this is an important point. And again, this is Teddy Roosevelt. It was kind of his M.O. to use the press to his advantage. And he was not the only president to figure that out. But we'll get to that later. And contrary to that fun Teddy Roosevelt story, by the way, it was actually the President McKinley administration that first let reporters into the White House at the beginning of his first term in office. Mckinley provided reporters a table outside of his private secretary's office because there was an increased presence of reporters waylaying White House visitors outside. But it was Teddy Roosevelt who created the first dedicated office space for the press. It was a small area. It had a telegraph and a telephone room. And for the reporters, this was a welcome change compared to having to physically sprint or, you know, if they're lucky, ride on a bicycle across town to their editor's office with stories for the day.

Nick Capodice: God, he had to be in good shape to be a reporter back then. But why did Teddy Roosevelt do this? Why did he give reporters an office and all these amenities?

Hannah McCarthy: Well, one reason is that the newspaper business in the US at the time was growing really rapidly. And all of these papers are competing for readers, Right? So they're investing more and more in covering the news. Basically, it was a newspaper boom.

Nick Capodice: Which, by the way, is not something you hear a lot these days.

Hannah McCarthy: No, it is not. But back then, you had a hunger for more news. And luckily, upgrades to printing press technology meant that newspapers could print more pages. So the White House became this steady source of stories, and that helped improve circulation. Some of the more popular papers even put out more than one edition daily, so they constantly needed fresh quotes. And Nick, as the newspaper industry grew, so did its power and influence. And President Teddy Roosevelt was a savvy PR guy. He knew how to bolster his public image.

Archive: Political parties exist to secure responsible government and to execute the will of the people.

Hannah McCarthy: And he took advantage of the media's influence. And one significant development during the Teddy Roosevelt administration was that the president would personally meet with reporters and let them interview him. This was a precursor to the presidential press conference, and it was very informal. These meetings came to be known as seances.

Nick Capodice: Seances. Like summoning ghosts. Seances.

Hannah McCarthy: Yeah, but they did not actually try to summon the dead. However, what did occur in these so called séances was pretty bizarre.

Nick Capodice: What kind of bizarre?

Hannah McCarthy: Well, picture this: right at 1 p.m. almost every day, Roosevelt would have a handful of reporters brought into a reception room. A Treasury Department messenger who doubled as a barber would lather the president up and give him his mid-day shave.

Nick Capodice: While he was talking to reporters. It's like something out of the Untouchables. It's like a power move.

Hannah McCarthy: Yeah, exactly. And the president actually did a lot of entertaining during these meetings. He would give the reporters gossip and tell them anecdotes.

Nick Capodice: Right. So this is less like hard-hitting journalism and more like chummy schmoozing.

Hannah McCarthy: Yeah. And Roosevelt knew reporters by their first names. He would ask about their families. He would invite them as his guests to parties. And eventually, Roosevelt would let the reporters ask him whatever questions they had. But he was really calculating. He would only invite reporters into the so-called seances if he thought they would write good things about him and if he didn't like a reporter's line of questions, that reporter, Nick, would be permanently banished from the White House.

Nick Capodice: Banishment is not conducive to a free and fair press.

Hannah McCarthy: Indeed, it is not. These seances controlled the press narrative about Roosevelt completely. Virtually no news came out of the White House unless the president approved it. So even though the press now had their toe in the White House door, holding the executive branch accountable was another story entirely.

Nick Capodice: It sounds like Teddy Roosevelt was using the press corps to his advantage instead of the other way around, like he was the one holding the strings.

Hannah McCarthy: Reporters were essentially subject to his whims. And then the next president, William Howard Taft, did not want to spend his time talking to the press, so he just refused to meet them.

Nick Capodice: So when did this shift - when did press access become more formalized?

Hannah McCarthy: That would be during the Wilson administration. When Woodrow Wilson ran for office, he and the other leading candidates were working closely with the press because that was an expedient way to get their platforms out to voters. So when Wilson came into office, the press expected that close relationship with him to continue, and Wilson set up a talk with reporters. He thought it would be a little meet and greet to get to know the D.C. press. But 125 journalists showed up in his office expecting a little bit more than a chat.

Nick Capodice: Wow.

Hannah McCarthy: And the next week, when Wilson held a second meeting with reporters, the administration was more prepared. They had everyone assemble in the East Wing. And to the dismay of the press, Wilson shared his vision for their meetings. He said, quote, Please do not tell the country what Washington's thinking for that does not make any difference. Tell Washington what the country is thinking.

Nick Capodice: Well, so he was saying he did not want the press to report what was happening at all in the executive mansion.

Hannah McCarthy: Not unlike Roosevelt. Wilson very much wanted to control what the media was reporting. But things actually started to go off the rails rather quickly. Only four months after they started, President Wilson vowed to end these meetings with reporters altogether, in large part because he was offended that tabloids had printed stories about his daughters. He called them, quote, contemptible spies, the newspapermen, contemptible spies.

Nick Capodice: What sort of stories about his daughters?

Hannah McCarthy: They were writing stories about their dating lives and their plans for marriage.

Nick Capodice: Well, I can see how that would be infuriating for a father and a president. So what did he do?

Hannah McCarthy: Well, he called a meeting of the press and he said he was going to speak to them as Woodrow Wilson and not as the president. He is quoted as saying, "On the next offense, I shall do what any other indignant father would do. I will punch the man who prints it in the nose."

Nick Capodice: Holy cats.

Hannah McCarthy: Yeah, I know. And then the final straw came when the New York Sun printed some remarks about Mexico that were supposed to be off the record. And once again, Wilson was like, I am ending these meetings altogether. And this left reporters in a difficult position. They obviously did not want to be locked out of the White House again, scrounging for secondhand information.

Nick Capodice: Yeah, shivering in the rain.

Hannah McCarthy: Yeah. Speaking of shivering in the rain, remember that columnist William Price?

Nick Capodice: Yeah. This is the guy who would waylay White House visitors in newspapers row.

Hannah McCarthy: That's the guy he worked for The Washington Evening Star in response to Wilson's threat to shut out the press, William Price and ten other reporters banded together in 1914 and established the White House Correspondents Association or the WHCA.

Nick Capodice: Okay, okay. I know what the White House Correspondents Association, they host the fancy White House Correspondents Dinner where everybody dresses up like they're going to the Oscars and the US president gets to do a comedy bit.

Archive: I won't lie about it. Look, this is a tough transition. It's hard. Key staff are now starting to leave the White House. Even reporters have left me. Savannah Guthrie, she's left the White House press corps to host the Today Show. Norah O'Donnell left the briefing room to host CBS this morning. Jake tapper left journalism to join CNN.

Hannah McCarthy: Yeah. That dinner is actually a big fundraiser for the association. The WHCA's first order of business when it was established was to put pressure on Wilson to continue his relationship with the press and ensure credentialed reporters could access the White House without impediment.

Nick Capodice: And that word credentialed. What does it mean to be a credentialed reporter?

Hannah McCarthy: It's a good question. To be credentialed is to have a press pass. It's a form of identification that journalists use to get into restricted areas like the briefing room. And today, more than 100 years later, journalists still have to acquire credentials to be able to access the White House. They usually apply for press credentials with the White House press office. And there are actually different kinds of press credentials.

Nick Capodice: Like with varying levels of access and such.

Hannah McCarthy: Sort of. Reporters can apply for a day pass, which can be a hassle. If you are reporting on the White House. The next step up is a six-month pass. And then finally, there's the so-called hard pass, which is a long-term press credential. But getting a hard pass is no easy feat. It can take several months because of the stringent requirements and thorough background investigations by the Secret Service.

Nick Capodice: Why all this stringency for getting access?

Hannah McCarthy: Well, the idea when this all started was that requiring credentials would help prevent tabloids from making their way into the White House and printing sensitive information.

Nick Capodice: Tabloids like the stuff I see at the grocery store, flying dog hit me in the head, that sort of thing?

Hannah McCarthy: No, this is the precursor to that kind of tabloid. I'm talking about sensational newspapers. These papers printed what was known as yellow journalism. Some scholars call this the original fake news. A pretty infamous example of this involves the coverage of the sinking of the USS Maine, which was a battleship. Have you heard of this?

Nick Capodice: The SS Maine blew up while it was docked outside of Havana, Cuba, in 1898. And to this day it is debated as to why it blew up.

Hannah McCarthy: Well, these tabloids, and that includes papers like the New York Journal, owned by William Randolph Hearst, as in the famous newspaper baron. They rushed to print saying that the ship, the USS Maine, was destroyed by Spain. And some say this actually contributed to sparking the Spanish-American War.

Nick Capodice: I can now see why requiring credentials was the first thing the White House did.

Hannah McCarthy: And having credentials also help to keep things somewhat collegial in this high-pressure atmosphere.

Nick Capodice: So you're referring to decorum?

Hannah McCarthy: Yeah, basically common courtesy. You know, don't talk over other reporters in the middle of a question. You get one question and a follow-up question, not unlimited questions, that kind of thing.

Nick Capodice: And when reporters aren't collegial, does the WHCA kick them out?

Hannah McCarthy: No, the WHCA doesn't kick anyone out for having bad manners. That is actually up to the Secret Service. But the WHCA does strongly advise members to be respectful.

Nick Capodice: I guess it's not as much of a free for all as it could be, but I will say it feels like it can get pretty intense in those briefings and conferences. But I want to get back to President Wilson. How did forming the WHCA go over with him?

Hannah McCarthy: He wasn't terribly keen on the press afterward, but Wilson did ultimately realize the power of the press. He said, quote, "The public man who fights the daily press won't be a public man very long." So the meetings with the press continued. But they were off the record unless explicitly stated otherwise.

Nick Capodice: What about Wilson's successor? Did Warren G. Harding continue communicating with the media in the same way he did?

Hannah McCarthy: He did. President Harding actually hired a speechwriter to help him polish up his twice-weekly press meetings. And this job, Nick, that speechwriting position that eventually evolved into the modern-day White House press secretary. And we're going to talk about that right after the break.

Nick Capodice: But before the break, quick. Wait, don't go. We have a new thing at Civics 101, that we love dearly. Two things, really, Civics 101 trivia and a wordle. You can answer eight questions related to our most recent episode at Civics 101 or try our civic-themed wordle at Civics 101 wordle dot com.

Nick Capodice: We're back. We're talking about the relationship between the press and the president and hand. I believe you were just about to tell me about the White House press secretary. What is their job? What do they do?

Hannah McCarthy: The press secretary is a part of the communications team that handles messaging for the executive branch. Now, this is an excellent time to bring in our next guest.

Mara Liasson: The job of the press secretary is to communicate the president's agenda, to answer questions from the press. And beyond that, every press secretary has defined the job a little bit differently.

Hannah McCarthy: This is Mara Liasson, the national political correspondent for NPR. We spoke to her in 2018.

Nick Capodice: It was such a pleasure talking to Mara. She has covered five administrations from Bill Clinton all the way up to Joe Biden.

Hannah McCarthy: Yeah. And in that time, she has gone through plenty of press secretaries.

Mara Liasson: Mike McCurry, who was Bill Clinton's press secretary, was famous for saying his job was to be as truthful as possible and as helpful as possible to the press, while also trying to communicate his boss's agenda and put it in the best possible light.

Nick Capodice: So the press secretary is the administration's spokesperson.

Hannah McCarthy: Essentially, but the press secretary also serves as the liaison between the White House and the media. They facilitate access to information and resources, and this is usually accompanied by the daily press briefing.

Archive: Looking ahead, the president will visit Mississippi on Saturday, where they are celebrating the state's bicentennial 200 years of statehood. To mark the occasion, the president will participate in the grand openings of the Museum of Mississippi History and the Mississippi Civil Rights Museum.

Mara Liasson: That's Sarah Sanders standing in the briefing room. We've had many different press secretaries use the briefing in different ways in past administrations. They stood there until all the questions were finished. Sometimes it could be as long as an hour. Sometimes she eats up a lot of time at the top by reading from prepared remarks, making some announcements.

Hannah McCarthy: There was famously a great deal of turnover during Trump's presidency. The dynamics between the press corps and Trump's press secretaries were often volatile, and each press secretary coped with the jobs challenges differently. Sarah Sanders once baked a chocolate pecan pie for April Ryan, a correspondent she had a contentious professional relationship with. But not all press secretaries try to sweeten the pot that way. Mara said some actually embrace an antagonistic role.

Mara Liasson: Other press secretaries have seen their job as more as a combatant, as pushing back against the press, demonizing the press, kind of using the press as a foil. And the communication part, the explaining the administration's agenda has been secondary to those press secretaries. So it just depends on the president and the administration.

Archive: I literally stand at this podium and opened a briefing a couple of days ago about the president expressing his condolences. I literally opened the briefing about it. So for you to sit there and say, I know. So why are you asking why he didn't do it when I literally stood here and did it? Statement. I don't understand what your clients comment were about that the president doesn't have time to tweet about everything, right? He's tweeting about this, right? He's not tweeting about something else. I came out here and actually spoke about it and said the president spoke this time. What are you you're equating me addressing the nation here in a tweet? I don't I mean, that's the silliest thing I've ever heard. This is silly. Thank you. You've asked your question.

Hannah McCarthy: I asked Mara, what does it take to do this job? What are the unwritten qualifications of a good White House press secretary?

Mara Liasson: An iron stomach and a thick skin, somebody who's unflappable, generally, someone who has a pretty even demeanor.

Nick Capodice: But has it always been this way, though? Like have the press secretary and the media always walked this line between courtesy and contentiousness?

Hannah McCarthy: Not always. There wasn't always the kind of posturing you see now, because the press and the administration didn't have anything to gain by being snippy with each other. Then in 1955, the press secretary for President Eisenhower, James Hagerty, made an announcement that dramatically changed this dynamic.

Archive: We want to bring the president and his words and deeds as closely as we can to the people in the home and the people in the theaters. So what we are planning at the present time and we will work out the details later, is to have a press conference or an informal talk by President Eisenhower at least once a month for the newsreels. And that way, the message the president is going to give the news of his administration will be brought directly to the people in the theaters and in the homes throughout this country.

Nick Capodice: Is Hagerty talking about the presidential press conference or the daily briefing?

Hannah McCarthy: At this time, he was talking about the presidential press conference. But you do bring up a good point. I'll let Mara take this one.

Mara Liasson: There's many different ways that the president and the press secretary communicate with the press. The most famous is a presidential press conference where it's formal. The president stands there and takes questions from reporters. Most presidents did a lot of those.

Hannah McCarthy: Mara told us that unlike most presidents, President Trump was not a fan of the formal press conferences. She described how he would answer questions and what they call pool sprays.

Nick Capodice: Pool sprays.

Mara Liasson: Where a small group of reporters is ushered into the Cabinet Room or the Oval Office. And he's meeting with someone or he's signing something and he answers a few questions on the fly or he's going out to the helicopter or he's coming out of Air Force One. So he interacts with the press that way. Then there's the Foreign Leader press conference, which under Trump, has become what's known as two and two. Each leader takes two questions from their own press corps. So the president answers two questions from American reporters. And then the foreign leader calls on two of the traveling press corps that has come with him from his country. Then there's the press briefing, which happens every day.

Hannah McCarthy: And that brings me back to Dwight Eisenhower's press secretary, James Hagerty. Hagerty was unfiltered about his reason for wanting to get the president on the screen. He wrote in his diary, quote, To hell with slanted reporters. We'll go directly to the people who can hear exactly what the president said without reading warped and slanted stories. So the purpose of filming news conferences was for the president to reach the people directly without the filter of newspapers or editorializing where the media can pick all of their comments apart. And this was a massive shift. And there was another big shift in 1995, when President Clinton's press secretary, Mike McCurry, decided to open up another press event to a nationwide audience.

Mara Liasson: I guess the biggest sea change for me was when the daily press briefing was televised. There are many press secretaries who have come to regret that because it does lead to grandstanding by some reporters and it's less useful and more of a confrontation.

Archive: Terry, you said this morning the president did not have an improper relationship with his former intern. What do you mean by an improper relationship?

Archive: I'm not going to parse the statement. You all got the statement I made earlier and it speaks for itself. No relationship, proper relationship. I'm not going to parse the statement. You've got the statement I made earlier, and it speaks for itself.

Archive: Its definition of what an improper relationship means.

Archive: I'm not going to...

Speaker7: That statement is where we are. And that's what I'm saying. That's what I said. Claire, I'm just not going to parse the statement for you. It speaks for itself. Mike, Wolf BLITZER.

Hannah McCarthy: Scott Horsley said that once they put it on camera for all the gains in transparency and civic education, it turned the daily briefing into less of an exchange of information and more of a kind of performance art. Because the press secretary isn't just the spokesperson, they're also kind of the hype person.

Nick Capodice: Hype person. Like, what do you mean?

Hannah McCarthy: Sort of the head of spin for the administration? They talk up the president and try to show the administration in the best light possible. Keep in mind, the press secretary is just one role in the White House's huge communications office, but they are the most public-facing person. They often highlight positive developments and downplay negative news. They also often work with other government officials and agencies to coordinate messaging and ensure that the administration presents a unified front to the public. And while this PR spin might be intended to color the reporting of the press corps, journalists have a job to do, and they are not stenographers. They fact-check. They follow up.

Scott Horsley: Our role is not simply to write down what the president or his spokespeople say and then pass it along unfiltered or uncritically. It is to probe and to examine and to also hold it up to other pieces of evidence. You know, if Sean Spicer comes out and says this is the largest crowd to ever witness a presidential inauguration in history, period.

Archive: This was the largest audience to ever witness an inauguration period.

Scott Horsley: It's our duty to say, well, here are some other pieces of information that contradict that in this case, flatly disprove what the press secretary said.

Hannah McCarthy: By the way, after resigning from the Trump administration, Sean Spicer admitted that he had been lying about the crowd size at the inauguration.

Archive: There were times where I screwed up. There's no question about it. I've said this before. I mean, the inauguration, you brought it up. I would say that's first and foremost.

Scott Horsley: There are lots of cases that are not as black and white as that, where, you know, the administration will argue that X, Y, Z has happened in the economy. And, you know, you might say, well, that is either because of or in spite of or partly because of and partly in spite of some action that the administration has taken. So it is part of our role is to certainly listen to what they have to say, hear them out, but also challenge, probe and introduce other information. Try to provide context, try to provide meaning.

Hannah McCarthy: We asked Mara Liasson if members of the White House ever withhold information from the press secretary. So the press secretary doesn't have to conceal information or share disinformation or even lie during a briefing. And Mara said that kind of concealment happens all the time. That's what you call plausible deniability.

Mara Liasson: Better to be out of the loop than to be saying something that turns out to be false. You know, there's so much discussion now, the truth doesn't matter anymore. Objective facts don't matter.

Hannah McCarthy: But credibility does matter. When the president, for example, asks Americans to sacrifice because of something that they have decided is important to do, they have to have credibility for that. Or, you know, when the president is asking U.S. allies to follow the United States in some kind of endeavor or military action, credibility is important. And if you're cavalier with the facts, there might come a time when nobody believes you.

Nick Capodice: It's like crying wolf, right?

Hannah McCarthy: Yeah.

Nick Capodice: Well, to that end, how often does the press push back on the press secretary? Do they ever stand up and say, oh, actually, secretary, that is incorrect.

Hannah McCarthy: It does happen on occasion.

Mara Liasson: She'll generally say something like, well, this is what he believes. She'll find some kind of safe lily pad to a light on where she can say something that's technically accurate because no press secretary wants to flat out lie to the press.

Archive: What led you in the White House to believe that he had lost the confidence of the rank and file of the FBI? When the acting director says it's exactly the opposite?

Archive: Well, I can speak to my own personal experience. I've heard from countless members of the FBI that are grateful and thankful for the president's decision. And I think that, you know, we may have to agree to disagree. I'm sure that there are some people that are disappointed, but I've certainly heard from a large number of individuals, and that's just myself. And I don't even know that many people in the FBI.

Nick Capodice: So the press secretary wants to be diplomatic and have plausible deniability with the press. And I assume that the press wants to have a relationship that will keep the press secretary calling on them to ask questions in the briefing room. But what kind of relationship does the White House press corps want to have with the commander-in-chief directly? Because I remember things got pretty heated when Donald Trump was in charge, like the rather famous repeated sparring between he and Jim Acosta from CNN.

Archive: Since you're attacking us, can you give us a question? Since you're Mr. President-elect, go ahead, Mr. President-elect. Since you are attacking our news organization now, can you give us a chance? You're organization. You are attacking our news organization.

Hannah McCarthy: Yeah, that relationship was tense. It came to a head. During a press conference when Acosta attempted to ask Trump a question about the president's alleged ties to Russia.

Archive: Honestly, I think you should let me run the country. You run CNN. And if you did it well, your ratings. Let me ask you if I may ask the question, Mr. President, if I may ask one question. Are you worried That's enough. That's enough. President That's enough to ask one of the other folks. That's enough. Pardon me, ma'am. I'm Mr. President. That's enough. Just sit down, please.

Hannah McCarthy: The White House then revoked Acosta's press pass after he attempted to confront Trump about the administration's controversial migrant policy. Cnn filed a lawsuit over that revocation and then later dropped it after a judge ordered the White House to temporarily restore Acosta's press pass. And Acosta agreed to abide by the new rules. Just asking one question at a time. Here's Scott Horlsey again.

Scott Horsley: We're not supposed to just be tools of the White House, but on the other hand, it doesn't have to be ugly. It doesn't have to be hostile. It can be businesslike.

Hannah McCarthy: And, you know, the Trump administration was famously outspoken in its media criticism, but every administration has had tricky interactions with the press corps.

Scott Horsley: We certainly had adversarial relations at times with the Obama administration. I spent part of that time serving on the Correspondents Association, which is sort of the liaison between the working press and the White House. And we certainly had complaints about usually restrictions on, you know, what press access might be to the president or his aides or, you know, the terms under which information was distributed.

Hannah McCarthy: Pushing for more access kind of goes hand in hand with journalism. And at the same time, the White House staff is carefully trying to control their message.

Nick Capodice: All right. Back to the journalist's side. What's a typical day like for a typical White House press reporter?

Scott Horsley: Well, there's no such thing as a typical day. Every day is different. And certainly the opening days of any administration are particularly interesting and volatile. And at some point, that kind of opening frenzy will, we hope, settle down just a little bit. And then it's you know, there's a rhythm of the president doing kind of public events where he's making a statement, meeting with people on camera, sort of trying to make a point through his persona.

Hannah McCarthy: In today's 24/7 news cycle, covering the White House for a major news outlet is not a one-person job.

Scott Horsley: During the Obama administration, we had three of us who covered the White House. We've upped that a little bit to have four of us covering the White House. So not all of us show up every day. Maybe one of us will be there physically at the White House. Another one might be out in the country somewhere talking to voters. One of us might be back at headquarters monitoring executive orders that the president's put out. So there's a lot to keep an eye on, but one of us is certainly there.

Mara Liasson: I used to say that the exciting part of the job starts when you walk in the gates off of Pennsylvania Avenue and the and it ends when you walk in the door to the White House, because a lot of times the life of a White House correspondent is like an animal in the zoo. You're in a cage and you can't really go anywhere you want or walk around. And occasionally they open the door and they throw in a piece of red meat, a little bit of news. They shut the door and then they run like the zookeeper.

Hannah McCarthy: And journalists aren't always confined to the White House. They need to be available at the drop of a hat to go anywhere the commander-in-chief is. And they frequently travel with the president.

Archive: Everybody, everything good press conference, good. I think it was great.

Nick Capodice: Really good. Sounds kind of fun and exciting.

Hannah McCarthy: It's not always glamorous. There's a lot of waiting around for the president and conference rooms and airplanes and then kind of strange things happen. Like when a plane carrying journalists to cover President Biden's first trip abroad was grounded by a swarm of cicadas.

Archive: Cicadas. Last night, the AP's Jonathan Lemire tweeted, quote, The White House press charter flying from Dulles to Europe ahead of President Biden has been delayed for hours due to mechanical issues caused by cicadas.

Hannah McCarthy: Eventually, White House aides found another plane for reporters to make it overseas. But in the meantime, to keep the press corps comfortable, the White House ordered pizza and booked rooms at the airport hotel where journalists tweeted about the incident from the bar.

Nick Capodice: That actually doesn't sound too bad.

Hannah McCarthy: Last thing, Nick. You know how we talked about introducing television cameras into the White House press briefings and how that kicked off a whole new era of presidential news coverage?

Nick Capodice: Yes, I do.

Hannah McCarthy: Both the media and the government have continuously adapted to technological advances like televised press conferences and the advent of social media. Nick is no different. Technology changes how a president can interact with citizens.

Nick Capodice: Yeah, I've seen different White House administrations turning to social media to convey their messaging. So when did that whole thing take off?

Hannah McCarthy: It's hard to pinpoint an exact moment, but there certainly is a memorable one that took place on May 18th of 2015.

Archive: The president did not have his own official Twitter account. So now tweets from at parties will come directly from President Obama himself. A huge hit, as you can imagine. It was trending as soon as he sent out this tweet. "Guys. Hello, Twitter. It's Barack." Really? Six years in and they're finally giving me my own account.

Nick Capodice: So how does the president of the United States being able to tweet affect press coverage of the White House?

Hannah McCarthy: When the president tweets something, they're essentially circumventing the media, making statements and potentially shaping public opinion without having to answer questions about that statement. And it's fair to say this diminishes the press corps power to hold the administration accountable for statements of all kinds, including important policy decisions. But whether or not this is a new phenomenon is not something everyone agrees on.

Scott Horsley: That's not absolutely new. You could say that Franklin Roosevelt's fireside chats were a way to reach out directly to the American people on the radio without having to go through the newspaper reporters who dominated the press corps at that time.

Archive: My friend, I want to talk for a few minutes with the people of the United States about banking, the talk with the comparatively few who understand the mechanics of banking.

Nick Capodice: So in the beginning of the episode, Hannah, you said that the White House needs the press corps to get its message in front of the people. But we have seen instances throughout history where that's not always the case. There were those fireside chats from FDR on the radio. Presidents Obama, Trump and Biden are on Twitter and they tweet a lot. And I just saw that Joe Biden is on Instagram. So how does the press corps stay relevant when presidents can just go around them? Or as was the case during long stretches of the Trump administration, just stop holding press briefings altogether?

Hannah McCarthy: Well, I think that even as the White House finds new ways to communicate, the media finds new ways to hold power to account, think about how things like data, tools, social media platforms and encrypted communication apps have been game changers when it comes to journalism pertaining to the most powerful people in this country. But it's also important to remember that while it's the press's job to interrogate the White House and push back on its spin, they can ultimately only do so much because at the end of the day, you can have the best reporters in the world covering the president, but the people are still going to make up their own minds when they read about it. That does it for this episode. It was produced by Jacquie Fulton with executive producer Rebecca Lavoie. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: We're the co-hosts of the show. Christina Phillips is our senior producer.

Nick Capodice: Music In this episode by Lenon Hutton, 91 Nova, Paddington Bear, Hedgehog. Wallace Peerless. Cirque La Nouvelle CALLISON, Jules, Gaia, Tigran Viken, El Flaco Collective, Jerry Lacy and EP Hartman.

Hannah McCarthy: If you liked this episode, there's a lot more where this came from. You can find our entire archive at civics101podcast.org. And while you're there, ask us a question. There's a really good chance we will make an episode to answer it for you.

Nick Capodice: Civics 101 is the production of NHPR New Hampshire Public Radio.

Are We A Democracy? Or A Republic?

There's a complaint we get pretty often around here, that our tagline contains the word "democracy," but the United States is *actually* a republic. So...do we need to make a change? We dig into that question and a whole lot more on this episode.

Guests:

Juliet Hooker: Royce Professor, Teaching Excellence in Political Science at Brown University

Paul Frymer: Professor of Politics, Princeton University

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Transcript:

Washington Journal Archive: And that's New Hampshire Public Radio's Civic 101 podcast. And these are its co-hosts and producers, Hannah McCarthy and Nick Capodice. Thank you so much for being with us here this morning.

Hannah McCarthy: It's a pleasure to be here, Jesse. Thank you.

Nick Capodice: You remember this?

Hannah McCarthy: Oh, yeah, I remember this.

Nick Capodice: You want to just tell everyone real quick what it was?

Hannah McCarthy: Yeah, sure. In November of 2021, Nick and I were on Washington Journal on C-SPAN, talking about our show. And I remember very clearly, Nick, when they opened the phone lines.

Washington Journal Archive: Let's talk to James, who's calling from Port Angeles, Washington. James, good morning.

Washington Journal Archive: Good morning, Jesse. Are you guys there?

Washington Journal Archive: We're here. Go ahead, James.

Washington Journal Archive: Yeah. Being bipartisan, you guys from New Hampshire. How do you keep your own opinions to yourselves on your show? I know you're just working on..

Nick Capodice: And I want to play one caller's specific beef with us, and he's not alone.

Washington Journal Archive: Let's talk to Murph, who's calling from Germantown, Tennessee. Murph, good morning.

Washington Journal Archive: Thank you for taking this call. I have a bone to pick with your two guests. I taught American government and civics for 22 years in an American public school classroom in Tennessee. The United States of America is not a democracy. It never has been. Never will be. It is a republic. And we pass laws and govern ourselves through our elected representatives and a rule of law. Do you want to investigate a democracy? I suggest you look at the Democratic Republic of the Congo or the former Soviet Union who allowed people to vote, but they only had one choice. I find your efforts outstanding because of the ignorance of the average American citizen and truly wish you well in this endeavor. But I challenge you to scour the Federalist Papers. Hamilton, Jefferson, Madison, to find the word democracy anywhere. Thank you so very much. And you too. Take care. Have a great Thanksgiving and a merry Christmas.

Washington Journal Archive: Who wants to take that on?

Nick Capodice: If you're listening to Civics 101 I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today in our podcast refresher course on the basics of how our democracy works, we're interrogating those exact words. Are we wrong to refer to the US as a democracy? What did the framers of our Constitution intend for us to be? And while we're at it, how democratic are we anyways?

Juliet Hooker: You know, the word democracy, of course, goes back to ancient Greece and to the city states that, you know, that first pioneered this form of politics.

Nick Capodice: This is Juliet Hooker.

Juliet Hooker: I'm the Royce professor, teaching excellence in political science at Brown University.

Hannah McCarthy: Now, when Juliet is talking about ancient Greece, is she referring to Athens, to Athenian democracy?

Nick Capodice: Yes, she is. This is the very first known democracy in human history.

Juliet Hooker: In political theory and political science, we understand democracy as a form of government in which the people have the authority to rule, to deliberate and make decisions about policy, and they can do so directly. This is called direct democracy, right? In the Athenian city states, they were small enough that it was direct.

Nick Capodice: The word democracy comes from demos, meaning people and kratos, meaning power men who had undergone mandatory military training were obliged to participate in the assembly in Athens, where elected officials proposed laws and everybody voted by a show of hands.

Hannah McCarthy: Obliged, as in they had to vote.

Nick Capodice: Yeah, they had to. If they didn't, they could be fined and sometimes marked with red paint. And there was a whole set of rules about who could be one of those elected officials who propose all the laws in the first place, which is fascinating, but I can't get into it all here. I do need to throw in some quick fun etymology, though, when they would vote on whether or not to expel someone who is dangerous to the country, they'd use broken pieces of pottery called ostrakon to cast their ballot. And that is where we get the word ostracize.

Hannah McCarthy: They actually knew that, Believe it or not.

Nick Capodice: I had a feeling you would.

Hannah McCarthy: All right. So I do want to get to America and its founding, but there is a bit of a problem here in Athens. We think about this being an example of pure democracy, direct democracy. But it was only men who could vote.

Nick Capodice: Yeah. Absolutely. We are not including women when we talk about this democracy, we are not including enslaved Greeks. Roughly, only about 30% of the Athenian population could participate in the democratic process. So that's our starting point. And about 2000 years later, 55 men were debating how to design the system we use in the US today.

Juliet Hooker: Certainly at the time of the founding, I think there has become something that people bat about in contemporary debates. The word that people often use was republic, because at that time the issue was gaining independence. The idea was to be not to be part of this monarchical empire anymore, but to be a republic. But it is also the case, I think there's certainly a question about that. Scholars of American political development have thought about whether the extent to which, for example, the founders were committed to a vision of, let's say, equal democracy.

Nick Capodice: And like in Athens, we weren't a truly inclusive democracy.

Juliet Hooker: It was restricted, right? It didn't apply to everyone, primarily in terms of who could participate fully as a citizen to propertied white men. So women were excluded, certainly until after the Civil War and emancipation and the amendments granting citizenship to black men.

Hannah McCarthy: Black people were excluded.

Juliet Hooker: Indigenous people also as a matter of law. Up until the 1960s, the US was not a full democracy because it was not really possible for African Americans to participate in the South. So even just as a matter of just the basic functioning of democracy up to then, what is it now? 60 years ago, the US was not a full democracy.

Hannah McCarthy: Yeah, this is very important. There's sort of a sliding scale of democracy in America. We've constantly shifted. Who is allowed to participate in the political process?

Nick Capodice: Yes, as Juliet said, until 1790 it was only white men who owned property who could vote. And we think about the big laws or amendments that changed then like the 15th and the 19th Amendment or the Voting Rights Act of 1965. But throughout history, there were myriad laws that states passed with racial, religious, or gender restrictions explicitly prohibiting groups of Americans from voting.

Hannah McCarthy: Okay, we have talked about the history of the word democracy. Let's talk about the other one that Juliet mentioned, the Republic.

Nick Capodice: Yeah. So we're swapping out Hermes for Mercury and Poseidon for Neptune because we're going from Greece to Rome.

Hannah McCarthy: Is that your go-to Roman music bed? Yep. It's Roman all over the place.

Nick Capodice: Race publica a system for the public. Now, at first blush, Hannah, the Roman Republic looks a lot like us. There's a Democratic forum and there's a Senate and officials representing the people, not the people themselves, make all the decisions. But the senators who wrote and passed all the laws were not elected. They were from the richest, most aristocratic families in Rome. And at the very top were two consuls, which the Senate elected.

Hannah McCarthy: Now, if the Senate and the councils did all of the law passing, what was the purpose of the forum?

Nick Capodice: Well, the forum didn't have a lot of power. It was a place for speeches and elections of lower-level offices. But honestly, the appointed Senate, they ran the whole thing.

Hannah McCarthy: So the forum was a placation?

Juliet Hooker: Yeah. It's like go talk about it in the forum. And we the Senate who weren't even elected, we'll think about it real hard.

Hannah McCarthy: Okay, So we in America are a little like the Athenian democracy and a little like the Roman Republic. Nick which of those words, democracy or republic represents us better?

Nick Capodice: I will let you know the answer to this, Hannah in my opinion, but more importantly, the opinion of the framers and of our guests on the show right after this break. But first, if you want to know more about consuls, censors, preachers, patricians and plebeians, that's the stuff that we put in our biweekly newsletter, Extra Credit. Check it out at our website, civics101podcast.org.

Hannah McCarthy: We're back. We're challenging our show's tagline today on Civics 101, where we refer to ourselves as a democracy. Now, Nick, at the top of the show, you played a clip from a former civics teacher who asked us to scour the texts of the framers to find the word democracy. Did you do that?

Nick Capodice: I did, and I did. First off, though, you know that famous exchange that may or may not have happened between Elizabeth Powell and Benjamin Franklin?

Hannah McCarthy: Is this the one where she said, well, doctor, what have we got? Or a republic or a monarchy?

Archive: Greetings from Philadelphia. My name is Franklin, Benjamin Franklin. As I was coming out of the building one day, a woman said to me, Sir, what have you given us?

Archive: And I looked at her and I said, Madam, we have.

Archive: Given you a republic if you can keep it.

Nick Capodice: And it's likely that he said that or something to that effect, because it appears in the notes of James McHenry from the Constitutional Convention. However, another quote attributed to him is, quote, "Democracy is two wolves and a lamb deciding what to have for lunch." There is no evidence whatsoever that Franklin said that or anything like that. The first use of that quote that I could find was from 1990. And also, by the way, people didn't use the word "lunch" until the 19th century. But back to the main point, did early political minds refer to democracy? If I do scour the founding documents for that word, will I find it? Yes. Yes, Hannah, They most certainly did.

Hannah McCarthy: Who did?

Nick Capodice: Well, here we go. In Federalist 14, James Madison used the word democracy five times just in that essay alone. Now, to be fair, he was using the word to explain how the Democratic Republic is different from a, quote unquote, pure democracy. He said that while direct democracy, the people making all the decisions can be used in a small area. It cannot be used for a whole nation. John Adams used the expression representative democracy to describe our system. So too did Thomas Jefferson in 1815. And then we have two early, early Supreme Court justices. First, James Wilson, who helped write the Constitution. He said that there are three forms of government, quote, monarchical aristocratic rule and democratic rule, end quote. And later, Judge John Marshall.

Hannah McCarthy: The John Marshall.

Nick Capodice: The man himself, Justice Marshall, expounded on the maxims of democracy without ever even using the qualifier of representative before it. And I've been talking a lot about the Constitution here, Hannah, but we also have to mention that when we were getting started as a nation before the Constitutional Convention, we were even a little bit more democratic.

Juliet Hooker: You know, it is thought that the Articles of Confederation were more "small d" democracy.

Nick Capodice: This is Paul Frymer. He's a professor of politics at Princeton University.

Paul Frymer: It was focused a little more populist, rooted in local governments. The 1780s were seen as a disaster, you know, and the various ways in which farmers and other groups avoided paying back debts and the like. It was thought to be generally chaotic. The government felt it needed more stability. And when you read something like Federalist Ten by James Madison, the tyranny of the majority and the belief that we need checks and balances, that was all to check democracy, to check broader populism, to put governance more in the hands of elites. That's pretty clear. They aren't all in agreement on that. But certainly the overall tone of the Constitution, the Federalist Papers, skews in that direction.

Hannah McCarthy: Just a fast refresher here. The Articles of Confederation was the name of our first governing document. It basically outlined 13 different countries, a.k.a. the colonies, with a very loose bond, binding them together.

Nick Capodice: Right. A firm league of friendship, almost no federal government, no chief executive, and Hannah, they were a disaster. Rewriting the articles was the initial goal of the Constitutional Convention.

Hannah McCarthy: And this goes back to the notion of a sliding scale of democracy, doesn't it? We started a little more democratic, and then we reined in the will of the people a little bit when we ratified the Constitution. Does Paul think that right now we can refer to America as a democracy?

Paul Frymer: Yeah, I think we aspire to be a democracy. That's important. We have enough procedures that require a certain form of democracy. Electoral College aside, the presidential election is largely a majority vote that's meaningful. Most of our elections are majority elections. And we have procedures, you know, civil liberties, due process. These are all important rights of democracy and due process that are really critical. One, that you can't just be thrown in jail without without trial or some cause. Again, you can we have political prisoners. We have huge incarceration rates. We can raise qualifications on all this. But there's an aspiration to a democracy. And I think there's enough procedures that we qualify to be a democracy.

Hannah McCarthy: I just want to pivot here. I'm so curious. How do we appear in the eyes of others, like people from other countries? Do others refer to the United States as a democracy?

Nick Capodice: They do indeed. We are on the list.

Hannah McCarthy: Oh, I know that list.

Nick Capodice: Yeah. No discussion of democratic principles would be possible without it. The Democracy Index. This is courtesy of the Economist Intelligence Unit. This index comes out every year. What it does is it ranks every country in the world on its democracy. It uses 60 indicators to measure where a country stands on the scale from full democracy all the way down to authoritarian regime. Paul told me that these indices aren't perfect. They came out after the Cold War. They are quite capitalist-driven, but people pay attention to them. And the most recent index at the time of this recording is from 2021.

Hannah McCarthy: How well did we do on that most recent one?

Nick Capodice: Not that well. The US ranked 26th in the world when it comes to democracy and we are in the category of, quote, flawed democracy. 31% of the world's countries are in that group.

Hannah McCarthy: Who is number one?

Nick Capodice: Norway, New Zealand and Finland. It was a three-way tie with a perfect ten.

Hannah McCarthy: And then last place.

Nick Capodice: Afghanistan.

Hannah McCarthy: Now 26th place for a country that regularly champions itself as being the ultimate democracy. Right. That's kind of shabby. I mean, have we done better in the past?

Nick Capodice: We have. We are at a 7.85 out of ten now. In 2006, we were at 8.6, six out of ten. And this brings me to something Paul mentioned, a recent trend of people saying that we are becoming less democratic now than we were hundreds of years ago.

Paul Frymer: I am often annoyed by some of the current discourse that the United States is less of a democracy today than we were. I don't know. I think since they first started doing these index tests, going back to the 1840s, and my response to that is that that's completely nonsense. What do we mean by a democracy? Obviously, we had slavery, we had Jim Crow, we had allowance of racial discrimination, legal, racial, racial discrimination until 1964 with the Civil Rights Act, our political party. So separating from that, our political parties are hardly as democratic as they are today. 19th, early 20th century, you had party ballots where you received the ballot. It wasn't private. You had to vote for that party. A lot of times the people stared at you when you requested a ballot. Parties were corrupt. We talk about elections, the election outcomes. We have in history lots of examples of corruption. That's not to say we're a great democracy now, but we really want to inquire what we mean. When have we ever really been a democracy? Maybe that would be the question I'd ask.

Nick Capodice: If we're talking about democracy now in America, one of the factors we've got to take into account is the Voting Rights Act of 1965, which outlawed voting laws and practices that discriminated against voters, Black voters in particular, was frankly gutted in 2013 and the Supreme Court decision and Shelby v Holder.

Archive: And at least for now, Jake, the bottom line is that these southern states, largely southern states that had these special requirements that the federal government imposed in that 1965 Voting Rights Act, they are no longer going to have to deal with that, at least for the time being, unless Congress takes special action. And as I said, I don't anticipate that special.

Nick Capodice: This was the Supreme Court ruling that places with a history of discrimination no longer need clearance from the federal government to change voting laws. And if you want to know more about it, we did a whole episode on the current state of the 1965 Voting Rights Act. I'm going to put a link to it in the show notes.

Hannah McCarthy: All right, Nick. So where does that leave us? How does our tagline fair? Are we a democracy?

Nick Capodice: Well, this answer is a two-parter. And in the first part, I want to say that I feel that it is fair to refer to the United States as a republic, and not because it was written into the Pledge of Allegiance over 100 years after the Constitution was ratified that somebody put in there and to the republic for which it stands. But I think it's fair because the U.S. is a republic. We elect people to write and pass laws. We don't do it ourselves all the time. And part two, it is absolutely fair to refer to the United States as a democracy. It's a representative democracy. We vote. We choose those officials, unlike ancient Rome, and we even have vestiges of that pure democracy we talked about earlier. Lots of states have initiatives, ballot measures where the people can propose laws and vote on them. And from a very personal standpoint, I think that this "don't call us a democracy" rhetoric is nonsensical. It's meaningless. I read a quote about this the other day where someone said it's like they're toddlers screaming, "the ball isn't green, it's round." We are a republic. We are a democracy. We've done better and we've done worse. But what's most important to me is something Juliet Hooker said when I asked her what to do when we feel that democracy is under threat.

Juliet Hooker: I think maybe it's this is not to minimize the current threats to democracy, which are very grave, but to say maybe it would be helpful if we recognize that democracy has always been under threat because democracy isn't this thing that you achieve and then you're perfectly democratic and there's no work left to do. It's an ideal you're always trying to put into practice. It's a way of living in concert with others. Also moving beyond a notion that there are only two sides to any issue and recognizing that there are multiple perspectives. And how do we reframe political and policy debate so that that is recognized and thinking about why people have been disillusioned with democracy and why some people are also invested in it. So what are the sources of democratic faith? And also why are the thinkers, movements, activists who also can test democracy? What are the things that it hasn't done well that lead people to despair?

Nick Capodice: That is it for today on Civics 101, the podcast refresher course on the basics of how our democracy works. Murph, I hope you hear this. Write us with your thoughts. This episode is created by me. Nick Capodice with you. Hannah McCarthy.

Hannah McCarthy: Thank you. Thank you. Our staff includes Jackie Fulton. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer.

Nick Capodice: Music In this episode by Asura The Grand Affair. Ryan Kilkenny. Gabriel Lewis Vanilla. Howard Harper. Barnes IO, Blue Bluedot Sessions, Divided, Cushy Max Hansen, and the inimitable Chris Zabriskie.

Hannah McCarthy: Civics 101 is a production of NHPR - New Hampshire Public Radio.

Nick Capodice: OUTTAKE: He said that there are three forms of government, quote, monarchical. Monarchical, monarchical, aristocratic, aristocratic all. Quote monarchical, aristocratic and democratically.

American Myths Part Two: Progress

There are three American myths that define "Americanness." The frontier, the melting pot and the "self-made man." They're concepts that define how we are to think about transformation, progress and possibility in America. They also rarely hold up. Heike Paul, author of The Myths That Made America, is our guide to the stories we tell about how it is in this country (even when it isn't.)

American Myths Part 2.mp3: Audio automatically transcribed by Sonix

American Myths Part 2.mp3: this mp3 audio file was automatically transcribed by Sonix This transcript may contain errors.

Hannah McCarthy:
You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And this, my friends, is part two of a two-parter on American Myths. You can listen to it all by its lonesome, of course, but I strongly recommend you go back and give part one a listen. Get to know our desperately clung to origin stories. In this episode, we're going to talk about three myths for America's future, for progress, for transformation, all of which are laid out so very beautifully in a book called The Myths That Made America by Heike Paul, a professor of American studies at Friedrich Alexander University in Bavaria. So quickly, what are we about to learn today? That would be the frontier myth, the melting pot myth and the myth of the self-made man. Myth number one.

Archival:
Lovely Lady Liberty with her book of recipes. And find this one she's got.

He's the great American melting pot. American melting pot. The great American melting pot.

Heike Paul:
We have various versions of the melting pot today. When we think melting pot. We find it often a faulty model because it means that we get rid of difference. And we've been cultivating difference and we've been respecting difference. And we think melting means. Erasure means getting rid of or it means pretending that differences do not exist. So in this in this dominant logic, melting pot has become equated with a kind of a more oppressive idea of Americanness of American identity.

Nick Capodice:
Just for those of you out there who haven't heard the term the melting pot of America, this is the concept that in the United States, all these varied cultures and traditions come together and assimilate into one slurry, one mono culture, one homogenous America. And this expression has come under a lot of scrutiny, specifically in the last 40 years. Some Americans see it as a core to who we are, and others, you know, see it as a kind of a violent idea, the elimination of others essence in order to be one harmonious America and to bring up Henry Ford here because he used to have all his new employees at the Henry Ford plant where all of their, quote unquote, like, you know, ethnic clothing and doing the dances and playing the music and they would get into an actual melting pot. Henry Ford had a giant pot and you would kind of climb in behind it and had steam coming out of it. And you would come out in a Ford uniform. You had assimilated into being an American.

Hannah McCarthy:
But what I didn't know, Nick, is that when the term was in its heyday in the early 20th century, in part because there was a play by a Jewish immigrant Zionist called The Melting Pot, that this term melting pot was actually kind of between two comparatively radical ideas. One of those ideas was cultural pluralism.

Nick Capodice:
What is cultural pluralism?

Hannah McCarthy:
That's very basically just the coexistence of multiple cultures in one place, like multiple perspectives and practices.

Nick Capodice:
What's interesting to me is that sort of a modern day notion of the melting pot is not how everybody is smashed together and becomes this one homogenous thing, but all these people sort of spice the soup of the pot like we as Americans become better because different cultures are added to the stew or salad or whatever, you know, analogy you prefer.

Hannah McCarthy:
Yeah, and we'll get to a version of that in just a second here. But that idea of cultural pluralism, right, of all of these cultures existing, while you could say a lot of people ostensibly understand that and are kind of with it today and it pretty much rejects the melting pot as a melter, it was a little too advanced in the 19th century. It was too radical. People couldn't quite agree on that. But then there was another extreme, and these were people who in the 19th century rejected the idea of the melting pot, but not for the reasons that a lot of people reject it today.

Heike Paul:
Voices that went into saying that we cannot have immigration at all or we should not have difference in this country, we should not cultivate it, and we should not get rid of it by melting, but we should get rid of it by, you know, things like eugenics, even, you know, we should be very selective whom we let into the country. And then we need to make sure that our white stock of white majority does not diminish or does not disappear.

Hannah McCarthy:
Heike pointed out, by the way, that this particular point of view did not entirely go away, and in fact, it has experienced a renaissance.

Heike Paul:
So the anxieties around that time in the early 20th century are very current as well. I guess, you know, so the revival of ethno nationalism and all of that, I think that comes straight out of the playbook of the eugenicists at the beginning of the 20th century.

Hannah McCarthy:
But then Heike talked about another concept that can be found in the melting pot. I hadn't heard this one, and I think it's a lot closer to what you were describing, Nick.

Heike Paul:
This idea of trying to to move towards each other, trying to have a melting of the minds or having have kind of a meaningful exchange, you know, can do without it. Of course, you know, at the level when it becomes existential, we may want to reject it.

Hannah McCarthy:
In other words, overcoming the distance between us without destroying the differences between us. But it's kind of a high minded concept and not exactly easy to nation build on that idea. So instead, we have the more direct idea of the melting pot. In her book, Heike talks about the fact that E Pluribus unum, out of many, one has effectively become the tagline of the melting pot. This idea that in America you shed your old skin, you climb into foreheads, melting pot, you take off the clothes of your homeland and you have a new homeland. Your various backgrounds assimilate into a single new American race.

Nick Capodice:
Basically turning the United States from a country of immigrants into a country of one type of people.

Hannah McCarthy:
Which is what makes it one of those transformation future blueprint myths. Another blueprint myth that we sketched out. That's the frontier myth.

Heike Paul:
So the frontier myth, I think, is one of the most well known myth of of American in American history. I think for some people, it is the super myth of the one that transcends all the others because it connects so well to certain historical figures. You know, Columbus, the cowboy, the settler. You know, so the frontier myth really is kind of a very, very much kind of an overarching story, which had Slotkin is one person who says that this is the master myth of America. This is this is all we need to know. It's the frontier. And then we can explain pretty much everything about about Americans.

Nick Capodice:
What's interesting about the frontier myth, and I'm just postulating here, it's kind of like a catchall for all the other ones we've talked about so far. The promised land, the harmonious land grab, the birth of a new nation, transforming everything that's different or quote unquote, unsettled into capital a America.

Heike Paul:
Of course, it is a myth rooted in the late 19th century that is using an idea of geographical determinism, namely the settling of America from the East to the West, mostly by Europeans, and the transformative processes they undergo in that kind of very idealized setting that this is Americanness is produced by certain kinds of encounters that happened happen when you're moving westward. Right. And so this is the idea of the frontier, as this line, Turner calls it, the thin line between civilization and savagery. And of course, both of these terms, civilization and savagery, are completely overdetermined, highly loaded, highly charged.

Hannah McCarthy:
Now, the West, as this important foundational, mythic idea, was really formally set in stone by this guy named Frederick Jackson Turner. He was an historian in the early 20th century.

Heike Paul:
In Turner's version, there is this idea of this experience of being alone on the frontier, having to secure your own survival, having to adopt certain skills to survive, showing off your individual expertise and aptitudes in the process. You know, that's all what what goes into the Americanness that Turner then constructs now. And he's very worried at the end of the 19th century because he says, you know, we've reached the West, we are now at the Pacific from sea to shining sea. So what will happen to us as Americans when we no longer have the frontier experience? And there is some anxiety in his wording about the end or the closing of the frontier. And of course, that many more recent scholars have pointed out that this is the beginning of sort of the empire abroad US influence US interventions outside of the North American continent.

Hannah McCarthy:
Late 19th century. That is when we started messing around in Latin America, in part to prevent European powers from sneaking in and benefiting financially so that we could sneak in and benefit financially. And that is a whole episode. But the timing is pretty interesting, isn't it? Because it was so important to us that we had this perceived unsettled west, this land that would satisfy Manifest Destiny, that we had somewhere to go and spread what we are.

Nick Capodice:
And here comes the Promised Land myth again, right? I mean, literally, it's like the Puritan. We are ordained by God to take all this and impose ourselves on it for the benefit of everyone.

Hannah McCarthy:
Right? And so once the West was one, we set our sights on spreading the West. This concept further out. It's the bedrock for justifying bringing Americanness to any nation that's on momentarily unsteady footing, or that we see ourselves as more powerful than okay. Next, we've got one last myth coming up. But first, we're going to take a quick break.

Nick Capodice:
But before we do, Hannah, we must remind our listeners that we have a newsletter. It's fun. It comes out every week. It's called Extra Credit, and it's full of the stuff that didn't make it into our episodes. And it gives Hannah and I an excuse to kind of goof around a little, you.

Hannah McCarthy:
Know, which is all we really want to.

Nick Capodice:
Do. Oh, we want to do in the first place. You can sign up at our website, civics101podcast.org.

Hannah McCarthy:
Okay, We're back. And you're listening to part two of a two parter on American Myths from Civics 101. We're speaking with Heike Paul, author of The Myths That Made America. And myth number three, The Final Future Myth.

Archival:
Yes, sir. In my case, an accident of birth. But you, sir. You're a self-made man.

Heike Paul:
The self-made man is about social mobility. Upward mobility. Right. Vertical rather than horizontal. And in this process, he usually is depicted as somebody deserving. He earns what he gets, and he becomes a successful entrepreneur. And the shorthand, of course, is the from rags to riches narrative that you can start at the bottom of the social ladder and work your way up to become at least middle class, but mostly upper middle class or even kind of upper class successful individual in America. And so the idea I think that is connected to this particular myth is to say that the US is a classless society.

Hannah McCarthy:
And Heike also explained that this contrasts to Europe, right? Because Europe is based on a feudal system with an aristocracy. And then you have the indentured servants or the farmers or the clerks. And the US wants to caste itself in a very different light. You can own land and property and make your own way. And your future is not decided by your birth or situation.

Nick Capodice:
Pull yourself up by your bootstraps. Mccarthy.

Hannah McCarthy:
The thing that really gets me about the self-made man myth is that everyone uses it. You hear the kind of jokey like, Oh, she was born on third base, but she thinks she had a triple, right? The idea they are being like someone is born into wealth and privilege, but they think their wealth and privilege is because of what they did right. They worked so hard for it. And then what that does is that it totally erases the socioeconomic context that a person is born into.

Nick Capodice:
It also tells this lie that everybody's responsible for their own success, right? That that money, location, whiteness, family history, community, none of that is the reason for achieving the American dream. It's all because of you. What you all by yourself do.

Heike Paul:
Emphasizing individuality as the myth of the self-made man does also leads to the idea that there is a fair chance for everyone, and you just need to take that chance and make something out of your life. It also, in doing so, it places very little emphasis on the idea that you are part of a collective, where you share solidarity, where you care for each other, and where you help and support each other.

Archival:
Well, I think that every day we are benefiting from someone helping us. That's why I said earlier, there is no such thing as a self-made man. I mean, when you think about it, you're born and you need your parents to raise you. You need your teachers to teach you. You need your coaches to do sports.

Heike Paul:
In the dominant version of the myth of the self-made man, we have a strong sort of subtext of social Darwinism that means that you don't try hard enough if you don't become successful or you are in some other way deficient or unwilling. And that hampers your success and your achievement. The idea of the self-made man. I think we can trace it back to Benjamin Franklin, who makes a very interesting connection. He says, If we all strive, we strive for our individual success and we also contribute to the public good. There is no contradiction for Benjamin Franklin in his worldview. If you succeed on your own, then you can also help make the community strong. Of course, in more recent variations we've seen that this is not really how it works, that in in a context where there is individual striving, there is competition. Not everyone is working towards the same common good, but there will be winners and there will be losers.

Hannah McCarthy:
And of course, there's one really glaring problem with all of this, with the discomfort of the winners and the losers, and that is that we live in a capitalist country and world. You must have winners and losers. That's part of it.

Nick Capodice:
You know, for our whole history, a lot of people in America have been really uncomfortable with the concept of losing.

Hannah McCarthy:
Yeah, And if people have lost so their fault, right? It's like, God, you really you really you didn't take this opportunity. You blew out. You blew.

Nick Capodice:
It. Really blew it. You had your shot and you blew.

Hannah McCarthy:
It.

Nick Capodice:
Right? For years, you've been carrying around that pistol and you waste your shot. He didn't waste it. That was my Orlando Bloom. So between part one and part two, we've got our seven myths.

Hannah McCarthy:
We've got our seven myths. Christopher Columbus, Pocahontas, Puritans, Pilgrims and the Promised Land. The Founding Fathers, the frontier, the melting pot, and the self-made man.

Nick Capodice:
Can I ask the unanswerable question?

Hannah McCarthy:
That is my favorite kind.

Nick Capodice:
As Heike was sort of ticking through these the holes and the falsehoods and the imaginary fairy tale of all of them. It's so clear when she says it. And yet, Hannah. Even if we intellectually understand that. These myths are still part of our culture today. So basically, my question is. Why?

Heike Paul:
I think this myth are persistent because we encountered them in various ways, in various forms and through various senses, and we encounter them through narratives that can be very powerful narratives. We encountered them in visual iconography, also very powerful, and we encounter them through cultural practices. So like holidays also these would be cultural practices. They also are emotionally charged for us. So I think the emotional dimension, the visual dimension, the narrative, the practical cultural practice, these are all dimensions that are tied together and it is very difficult to unlearn these kinds of things.

Hannah McCarthy:
I mean, be honest, Nick, listening to all of these myths, was there any part of you that feels an attachment to any part of them?

Nick Capodice:
Absolutely. I mean, I would joke about it all the time. 1776 is one of my favorite movies ever, but it is a big ole myth and there's some comfort in these myths, you know, and I know you're not busting these myths today, Hannah, but it sort of feels like something's kind of taken away when you're just told, Well, this is why we do things this way.

Hannah McCarthy:
Well, Heike has got a pretty interesting take. That to me. Almost sounds like new mythmaking for us to find a way to attach ourselves emotionally through holiday celebration, for example, to practices and beliefs that are better for our culture, that are better for our Americanness, maybe based more in truth, even if that truth is not the kind that warms the cockles of your heart.

Heike Paul:
I think we need to unlearn some of the ways that we react to the narratives. We need to learn to maybe cultivate different kinds of cultural practices, and we also need to be more critical of the iconography. The hardest part, though, I think, is unlearning to be emotionally attached. I think that's something that is more difficult to to achieve this kind of disengagement. Unlearning, yeah. Distancing yourself from certain kinds of effects that can be nostalgic, you know, can be childhood memories of an Independence Day parade. It can be the smell of a certain kind of food. It's very difficult to disavow that or even ask people to disavow it. So I think this is why the perseverance is so phenomenal, even though we can see all of the cognitive dissonance with those myths. What helps, I think, is to have at least kind of some sort of reflexive. Um, detour. You know, like you said, this is a holiday so and so, and, you know, I see whatever, you know, is implied by these kinds of facilities and maybe, you know, let's try to change the narrative or let's, you know, do this, tell it differently.

Hannah McCarthy:
I think it's important to acknowledge that emotional connection because that's part of the point, isn't it? Nick, you brought up your feelings about the founding fathers who know we're not this perfectly harmonious, homogenous group, but at the same time, casting them in a glimmering light does give us something to rally around to be patriotic about. And that is important. You can see how that builds a nation. But to hike his point, What if we had other things? We need our stories. We need our myths. But what if we changed the stories we tell? That does it for part two of this two parter. Oh, yes, it's in two parts. And if you haven't listened to part one on the Origin Myths of America, I warmly recommend you do so right now. This episode was produced by me and McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer, and Rebecca Lavoie is our executive producer. Music In this episode by Chris Zabriskie, Simon Matthewson, Young Karts, Stucco, Gray, Jakarta Riddim, Fabian Tel Dylan sits and spring game. You can check out our entire catalog at our website, civics101podcast.org. And while you're there, ask us your questions about America, be it the truth of the matter or the myth. Submit your question and we might just make an episode to answer it. Civics 101 is a production of NHPR New Hampshire Public Radio.

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American Myths Part One: Origins

We take a closer look at four well-worn stories: that of Christopher Columbus, Pocahontas, the Pilgrims and Puritans and the Founding Fathers and ask what is actually true. They're our foundational origin myths, but why? And since when? Author Heike Paul, author of The Myths That Made America, is our guide.

American Myths Part 1.mp3: Audio automatically transcribed by Sonix

American Myths Part 1.mp3: this mp3 audio file was automatically transcribed by Sonix This transcript may contain errors.

Hannah McCarthy:
Hi, Nick.

Nick Capoodice:
Hey, Hannah.

Hannah McCarthy:
And hello listener. You're listening to Civics 101 and its story time. And actually, this is going to be an episode in two parts Part one America's Origin Stories. More specifically, America's origin myths.

Nick Capoodice:
Do we have myths?

Hannah McCarthy:
Oh, Nick, we are myths.

Nick Capoodice:
Okay. I'm very excited for this, in part because my older son right now is absolutely obsessed with Greek myths. And it's Greek above all else. Like other myths don't even come close to cutting it. He sees Greek myth as the truest myth.

Hannah McCarthy:
Okay, this is very interesting because, Nick, what's a true myth like truth is not the point of myth. The point of myth is to create morals and principles and power dynamics and cultural practices, which is not necessarily to say that myths are about lying. They're just about finding the strongest story to build a world around. And mind you, myths are important. We do need them. But sometimes the question is how long do we need them for?

Heike Paul:
Let's start with this idea of a myth. You know, when you look at what is a myth, a myth is something that tries to create kind of a larger framework, a larger meaning, maybe kind of a spiritual dimension even. And you do this by mythic narratives. Of course, those myths that I discuss are modern myths, if you will. They are not classical myths. They don't go back to antiquity. So these are modern myths that provide ontological security and that eliminate contingency.

Hannah McCarthy:
This is Heike Paul. Anyone who reads our newsletter knows that I recently discovered her wonderful book, The Myths That Made America. And I devoured it. And Heike, as you may guess, is not herself American. She's a professor of American studies at Friedrich Alexander University in Bavaria.

Heike Paul:
I think there's always this fascination with the US as this very strong. At least we used to think that way. Very strong, imagined community that likes to display the flag all over the place, you know, that is into civil religion, the Pledge of Allegiance. I mean, these are things that, for a German, are very strange.

Hannah McCarthy:
And before we dig into this American strangeness, I have to say that, like his book is nuanced and it's deep and it's really good. And, Nick, I'm not going to do a justice. I can't There is so much more going on. And if you read it, I believe that you will get a complete picture. And also it's open source on JSTOR store. So if you can, I encourage you to indeed dig deeper. But what we're going to do today is take a look at the seven myths that she lays out and why on earth they exist and why they matter and how we've used them. So the big why.

Heike Paul:
When I speak to my students about this idea of an imagined community, I always tells them, you know, when you have a romantic relationship with somebody, then you constitute a collectivity. This collectivity needs to be nourished. You know, this is why you always tell each other stories about when you met the first time, what was it that got you interested in this other person? You have an anniversary. You know, you had you do things that that binds you together to eliminate contingency and to make you, you know, convinced that it could be no other person that you're with. No one else would take all the boxes. Right. So any collectivity needs to create this kind of meaning. Right. And so, like, if you are a couple, of course you know each other. If you're your family that gets larger. And a nation, any modern nation state also needs to do that.

Nick Capoodice:
Eliminate contingency.

Hannah McCarthy:
Yeah. In other words, if you have a shared agreed upon collection of stories and beliefs, then you're less likely to have to plan for potential issues in the future, like you're already agreeing. So a partnership needs that and the nation needs that. And these myths that we're about to talk about, they really start to emerge as the country is hitting a fever pitch of immigration in the 19th century.

Heike Paul:
And I think here with the emergence of the modern nation state in the 19th century, we also see the emergence of these kinds of modern myths that are connected to the nation or the nation state and that stabilize the nation state as an entity that is not questioned every other day within Europe. And you think of the emergence of the modern nation states in France or Germany or wherever. Of course, there was this reach back to one's own history, right? You would go back to the Middle Ages or maybe even antiquity. But there was a sense that, you know, something has happened in that place that you could feed into this national mythology. In the US, of course, we all know there were communities living in North America and the Americas at large, but the native perspectives were not the ones that were fed into the foundational mythology. For for a long time, I would say quite the contrary, sort of the native presence is really an exception.

Nick Capoodice:
Okay, so we needed some collective history, but we didn't want it to have anything to do with the people who were here already, who had a long history.

Hannah McCarthy:
With one notable exception, and we will get to that. But yeah.

Heike Paul:
There was a more conscious process, I would say conscious selection process also by a kind of an intellectual elite at the time of the founding. And it was kind of a balance that needed to be created between, on the one hand, borrowing from highly considered European tradition and sources, but on the other hand making sure this is not who we are, we are not Europeans. We are Americans. And so this is maybe a second dimension of why this is so interesting in the United States. You know, this balancing out of foreign influences with kind of a making it new aspect energy, but at the same time really obscuring the indigenous roots.

Hannah McCarthy:
So in her book, Heike covers seven myths in total. But like I said, this is an episode in two parts. So part one, we're going to talk about the four origin myths. Part two we will take on the three myths that laid the groundwork for America's future. So the origins we've got the stories of Christopher Columbus, Pocahontas, the Pilgrims, Puritans, and the Founding Fathers. Heike calls these:

Heike Paul:
The VIPs of American beginning.

Hannah McCarthy:
Speaking of the VIPS of American beginnings.

Heike Paul:
Yeah, with Columbus, the one thing that we need to be aware, I think, and that's also very funny, is that for being like the first great national hero of the United States, he was somebody who had never set foot on the territory that now is the United States, right? He only got as far as the Caribbean, never even made it to the south of Florida. And so that's kind of a paradox, of course, that you have here. This guy, he's Italian. He sails for the Spanish crown, he visits the Americas. He doesn't know where he is. You know, he doesn't even think that he is in the Americas. He thinks he's on the back side of India, also dies, not finding out that he's not in India, but he's not even touching US American territory. And so many scholars have pointed that out. Of course, I was not the first to point that out. When you have just to see the way that not Columbus discovered America, but that, in fact, I think this is Claudia Bushman, who says America discovered Columbus at some point to make him out sort of a larger than life national hero at a time when they needed one. Right. And so why did they need one? Okay. So it was in the late 18th century.

Nick Capoodice:
Late 18th century America, a.k.a the time of the Constitutional Convention. We finally are our own thing.

Heike Paul:
There was not a tradition to hearken back to in the United States, not the kind in any case that was desired. There was this strong conflict, of course, with the British War, Revolutionary War, War of Independence. You didn't want to really take recourse to the fact that there was a lot of Britishness in the new world. So you had to pick somebody who was not British, and so you picked Columbus.

Nick Capoodice:
So these revolutionaries were desperate for something, anything historical to cling to, and it couldn't have anything to do with the millennia of existing human history that was already here in this country. So they pick someone who technically has nothing to do with what was about to be the United States.

Hannah McCarthy:
Oh, Nick, you mean with what was about to be Columbia?

Nick Capoodice:
All right. Right. We talked about this in another episode. We didn't call ourselves America. We were Columbia back in the day. That's because of Christopher Columbus. And then, of course, we have Washington, D.C., the District of Columbia and towns called Columbus everywhere. Wait, hold on. Columbia University.

Hannah McCarthy:
As in formerly Kings College. Oh, yeah. That's all. Christopher Columbus, or I should say Cristoforo Colombo, because Christopher Columbus is not an Italian name. Right. But he is an Italian man in the US. The man, Christopher Columbus, was revered. But then the idea that he came to represent just became this like, separate, glorious thing. You see these portrayals of America as this sort of goddess woman Columbia, you know what I'm talking about, Like in the painting of Manifest Destiny. Right, right, right, right. With the woman laying out the power lines like that's Columbia. Yeah.

Nick Capoodice:
She was our pre Uncle Sam.

Hannah McCarthy:
Uncle Sam. Yeah. Yeah, exactly. So why the man, Christopher Columbus? To begin with.

Heike Paul:
Columbus was not only not British and therefore made a good national hero for Americans, he was also somebody who was a little bit troubled by the fact that he had to sail for a queen who was not forever grateful to him. Quite the contrary. He was incarcerated. You know, he, you know, became this kind of tragic figure in canonical accounts in any case. And so here you had like this larger than life adventurer and explorer who then also became the victim of a monarch was not appreciated. And so, yes, let's take Columbus. And you could at this point, you could use him to to engage with this idea of conquest crossing the continent westward. You could just be those who would successfully continue Columbus Quest to India, you know, one step further. And that would then also nicely tie in with. The frontier narratives with Manifest Destiny, you know, everything kind of could be sensibly connected to the worship of Christopher Columbus.

Nick Capoodice:
And in the soon to be independent United States, I assume the whole conquest thing was really useful when it came to sanctifying our tendency to oppress and enslave.

Heike Paul:
When you see early visual representations, you will always see that there is this immense hierarchy between a figure like Columbus and his his cross, you know, superior religiosity closed, fully closed, ornamental. And then there's always not really individual people that he meets upon arrival. They always the groups of natives, you know, they're not individualized. And there are usually naked. They're depicted as much smaller than Columbus in the images. And they also depicted as being in or being oppressed, frightened, but obviously accepting this figure of this authority of the white explorer.

Hannah McCarthy:
And then, Nick, and this is really important not just to this American myth, but to all of the myths that Heike talks about in her book, The shifting populace of the United States shifted the myth itself.

Heike Paul:
For all the reasons that he was so practical as a hero for early America. I think in the 19th century we can see that there were also some who felt that maybe he was not the right kind of guy to represent the American nation, for one thing, because it was discovered or people remember that after all, he was Catholic.

Nick Capoodice:
Why is that a problem?

Hannah McCarthy:
Well, Catholic immigrants in the 19th century experienced a good deal of stigmatization and discrimination as immigrants from Ireland and Italy streamed in, Protestant America in particular became suspicious of Catholics. So Columbus is a Catholic, just like these immigrants. They don't love that. But what ended up happening is that some Irish and many Italian immigrants in particular began to think of Columbus as a kind of founding father. He was Italian. He was credited with being the first one here in America, etc., etc..

Nick Capoodice:
So when was the turnaround Like? What point did people finally take a look at the whole picture and start talking about how Christopher Columbus was in fact a murderer and an enslaver and he might not be the best choice as the representative of a country who is trying to wrestle with its own past atrocities.

Heike Paul:
With the 20th century major revisionism taking place around the 1992 anniversary, quote unquote, of the quote unquote discovery. So what do you do? 500 years after Columbus landed in the Caribbean, what is there to celebrate?

Hannah McCarthy:
It was actually during this quincentennial that states started sheepishly backing away from the nationwide devotion to an unsavory historical figure who never actually came here to begin with. That's when you started to hear about Indigenous People's day being celebrated in place of Columbus Day.

Nick Capoodice:
I think the first time I started to hear about this was when I read this book Lies My teacher told me, But what you've been telling me is is true. Like he wasn't here, he was a bad guy. And yet there is so much resistance to that shift away from Columbus.

Archival:
It is Columbus Day, if you didn't know. But several cities across the country will celebrate Indigenous Indigenous Peoples Day instead. Indigenous. Some far left groups like Antifa are...

Hannah McCarthy:
Calling for violence yet. Well, Christopher Columbus was actually taken in by the Irish and especially the Italians who were predominantly Catholic.

Nick Capoodice:
Absolutely. I think we had a Columbus bust in our house growing up.

Hannah McCarthy:
Oh, wow. Okay. Because that was the connection that these immigrants had to America's founding. Their legitimacy and their patriotism all wrapped up with a nice, neat little bow in one historical figure and in part two of civics one and one on American myths. I'm going to come back to that point, Nick, of why it's so seriously hard to let go of all of these myths. But for now, origin myth number two, Pocahontas.

Heike Paul:
Even though we still see her as this wonderful woman, enticing, attractive, exotic as the object of a romantic affair, of romantic desire. We know now, of course, you could have done all along that. Of course, she was not romantically infatuated with John Smith because she was, I don't know, seven, nine, 11. I don't know. She was she was a child and he was in his mid to late thirties.

Hannah McCarthy:
Also, Pocahontas, not her formal name. Her formal name was Amonute. Pocahontas was a nickname. So a major part of the Pocahontas story is the part about her being a quote unquote, "Indian princess." She's the daughter of Powhatan, chief of the Algonquin Nation, and the leader of a very strong coalition of tribes. When Captain John Smith and others came from England to Jamestown, Virginia.

Heike Paul:
And so there is an encounter. Pocahontas is a little girl. John Smith is a man in his thirties. They meet I guess we know that they met the Smith falls out of favor or not? I mean, it goes back and forth, but then he feels like he's being captured by Powhatan and he is supposedly about to be executed. And in his own retelling of what happened, it is Pocahontas who falls, jumps into the arms of Powhatan to say, No, please, I love him, don't kill him. That is the official version. And then John Smith says, You know, she saved my life because she is madly in love with me as women all over the world. Because we know from his trip to Turkey and the other places that always women fell in love with him and saved him. And that's his that's his story all along.

Nick Capoodice:
John Smith is like, Women are obsessed with me everywhere I go.

Hannah McCarthy:
It's in his journals, man. Oh, by the way, here's another major part of the Pocahontas story. We don't have anything that she wrote. It's all just accounts from other people in her life. So John Smith writes that he's about to be executed and Pocahontas saves him. You may have seen the fairly well known drawing. It's from the 1600s. It shows Pocahontas throwing her body over John Smith to prevent the executioner's blow. Alternatively, you may have seen the 1995 Disney classic animated film Pocahontas, in which the exact same scene happens.

Nick Capoodice:
Still haven't seen it.

Heike Paul:
But I was writing the book actually. I still had students young enough to have been in the Disney craze when the film came out. And then then we had one session where everyone brought their Pocahontas Barbies.

Hannah McCarthy:
Full disclosure, I had the Pocahontas Barbie.

Nick Capoodice:
You didn't.

Hannah McCarthy:
I did.

Nick Capoodice:
Where is it?

Hannah McCarthy:
I don't know where it is now, man. Anyway, back to the supposed rescue.

Heike Paul:
Now, in light of ethnographic and anthropological scholarship, we now tend to read the rescue scene. Not as a rescue scene at all. We tend to read it as a scene of adoption. There are a number of scholars who are quite established who have convincingly argued that what is happening here is that Smith is adopted into the tribe of the Algonquin and that Pocahontas is given the role of being kind of the special mediator, of being kind of a special relation to him, but not in a romantic way at all.

Nick Capoodice:
All right. So not only was Pocahontas a child who most certainly was not madly in love with Captain John Smith, she also never dramatically saved his life.

Hannah McCarthy:
No, it was more like an elaborate ceremony to improve interrelations that John Smith totally misinterpreted.

Heike Paul:
He's wounded. He goes back to England. Pocahontas thinks he's actually dead. You know, she nobody tells her that he has left. You know, she thinks he has died within the conflict between the natives and the English. She's taken captive. She's held in captivity by the English. And then she's basically forced, coerced or whatever to marry John Rolfe to settle interracial relations in the colony. And she does that. She marries son. She has a son with him. They go to England to promote the colony. This is a big promotion thing, you know, And I want to get more resources. They need more people. So they go to London. Saw her off as lady Rebecca, as is most famous. Famous portrays when she looks like she's, in fact not Indian at all or not native. And as Lady Rebecca, she is having an audience at the court. She catches the virus, after all, she's sick and then she dies and is now buried in Gravesend in south of England. She never makes it back on the ship to go home.

Hannah McCarthy:
And Heike pointed out that when you see etchings or images of Pocahontas, of humanity post marriage to John Rolfe, she's portrayed as someone who appears a lot closer to a white woman than anything else. I mean, they called her Lady Rebecca.

Nick Capoodice:
Hmm.

Hannah McCarthy:
She was this figure used to represent unity, cohesion, defense of the white colonizer. Harmony.

Heike Paul:
So Pocahontas is made out to be this exceptional figure because she, again, in the colonial mindset, was the first one to see how important the English were and how attractive and.

Hannah McCarthy:
How.

Heike Paul:
How much of the future was the English in America. And so in the 19th century, again, there is this concoction of this romantic plot between her and John Smith. Sometimes it's just like really one author who writes about it, and then it is carried over by other authors. And it's, you know, it becomes this tradition. But then when you go back to the source, you see what nonsense this actually is. But it has given us volumes and volumes of trashy romance novels.

Nick Capoodice:
So basically there's this completely false alternative narrative about things somehow being good. Some love story at the center of important relationships between the Jamestown settlers and the Poulton, Even though it didn't happen.

Heike Paul:
Since this could not take place, this utopian scenario did not evolve. That also then gave white settlers a reason or legitimacy or justification just to have it any other way.

Hannah McCarthy:
In other words, because Pocahontas represented both settler and trans-Atlantic romance and unification, which she did not. This kind of takes care of the problem of the displacement and worse of indigenous people. And we have two more origin myths coming your way. But first, we're going to take a quick break.

Nick Capoodice:
But before we go, Hannah, I'm willing to bet whatever newsletter comes after this episode will be essentially what would happen if anyone out there asked you a question about this book?

Hannah McCarthy:
In other words, 3 hours of slightly free form stream of consciousness gushing about American myths?

Nick Capoodice:
Yes, my current one I'm typing up now is about black licorice. So but all the stuff that Hannah and I write is compacted to fit in our newsletter, which you really should subscribe to. It's just good stuff and we don't try to sell you anything.

Hannah McCarthy:
And I will tell you about the early days of American History scholarship and how it defined basically everything we learned for like well over 100 years.

Nick Capoodice:
You can subscribe to that newsletter, Extra credit at our website, civics101podcast.org.

Hannah McCarthy:
We're back. You're listening to Civics 101. And in part one of this two parter on American Myths, I'm speaking with Heike Paul about her book, The Myths That Made America. We're talking about the origin stories held so near and dear and sometimes less near and dear. Moving on to the third origin myth that Heike covers the Pilgrims, the Puritans, and the Promised Land.

Heike Paul:
Here we have, I think, a myth that is clearly steeped in kind of a religious experience or that is using religious experience to talk about a secular dimension or secular development. So the Promised Land, of course, is a a topos that we take from the Old Testament. It's the narrative of the exodus. So actually quite early in the Old Testament and the Exodus story is about the Israelites escaping bondage and slavery in Egypt, crossing the wilderness, crossing the Red Sea, and then finding their utopia or their home or their own sort of territorial sovereignty. And so in the midst of the promised land, the exodus part is always the nice part to tell. Everyone likes to tell that part. It's about the Mayflower. It's about escaping British oppression, it's about religious toleration, and it is about finding freedom for religious practice elsewhere in the United States and Massachusetts Bay. Of course, from the beginning there is conflict in the colony. And then, of course, there's also conflict with those who are already there living there, namely the Native Americans. The idea of the promised land is giving a religious dimension to the narrative of settler colonialism. Again, it makes it less contingent. It makes it justifiable. It makes it legitimate because it's been ordained by God himself. It is a contract, as it is often called. A covenant between God and the worshipers. And God is rewarding the worshipers with the land that He brings them to. So that would be the straightforward narrative of the Pilgrims and the Puritans. This has gone down the centuries also as a narrative of a land grab, as a narrative of extermination, as a narrative of being extremely narrow minded, in fact, talking about religious toleration. Right.

Hannah McCarthy:
See religion and God, not unlike the exact way they had been used by the monarchy of England for forever ordained and justified Puritan takeover and condemnation of everything that wasn't Puritan and all under the guise of liberty, right? Religious liberty. And you might say, well, how is that tied to modern America?

Heike Paul:
Well, Hannah.

Hannah McCarthy:
Yes, Nick.

Nick Capoodice:
How is that tied to modern America?

Heike Paul:
I think this whole idea of civil religion is linked to the to the Puritans.

Nick Capoodice:
What does she mean by civil religion here?

Hannah McCarthy:
This is the concept that even though America doesn't have an actual sectarian national religion, we do have collective beliefs and rituals and iconography. So that is what we refer to as civil religion.

Heike Paul:
Of course, we have other elements of religious connotations that we find in civil religion. God bless America and God we trust. I mean, these are things that are also quite striking for a secular nation state. And when you have an outside perspective, this may be puzzling, you know, because Americans always find it strange that, you know, in Bavaria we have lots of religious holidays in the calendar and we're a secular nation. Why do you have religious holidays? You know, and then, you know, I point out, yeah, but you have in God, we trust on every corner.

Hannah McCarthy:
So moving forward in time, you can tie God to this idea of America as utopia, as a biblical promised land. And then that becomes a useful myth to, for example, empower people who were brought here against their will, who were enslaved. Post emancipation. This idea could, you know, reinforce what the formerly enslaved were owed here in the promised Land and then jump ahead again. Look at the immigrants whose transition to America was an exodus to the city on the Hill.

Nick Capoodice:
Real quick, out of curiosity, I understand that this idea of the promised Land is this really powerful image. And God has always, always been a useful justification for all sorts of power moves. But why the Puritans and why this like why this Massachusetts centric creation story about what America is? Why is it these folks in hats with buckles on their shoes shooting turkeys? Why is it that the Puritans get the first Americans ever prize?

Hannah McCarthy:
Apparently, Nick, a big part of it is that they just wrote prodigiously, like talk about not having any of Pocahontas writings. We have gobs of Puritan writing.

Heike Paul:
Just by the sheer amount of text production they did. They made sure that they had a lasting grip on whoever came after them.

Hannah McCarthy:
All right. Fourth and last origin myth. You know who's coming, Nick?

Nick Capoodice:
Who?

Heike Paul:
So we move on to the Founding Fathers.

Archival:
For God's sake, listen.

Hannah McCarthy:
To one big, happy, harmonious group of dads.

Heike Paul:
No matter where you make the cuts and who's in and who's out, there's always this idea, you know, Thomas Jefferson, Madison and, of course, Washington representing Virginia or the South at the founding moment. And then there are people like Franklin or John Adams or who are more representing the North. And then we can see that it's really hard to make them out as a group because they were so different from each other and they were not really kind of a harmonious group to to steer those colonies and to make them into one homogenous nation. Right? So from the beginning, the closer you look at them, the more you will see that they had lots of issues with each other. I mean, I think Adams and Jefferson probably hated each other.

Hannah McCarthy:
I did want to point out that the conversation about the Founding Fathers, those revered and utmost principled men who bestowed upon us the greatest government foundation known to man, has thankfully shifted in part to an acknowledgment of their flaws, failings and contributions to and participation in enslavement.

Heike Paul:
And I think that the myth of the Founding Fathers has evolved because of these debates, has evolved a lot, you know, So I think that's very important to see them not no longer as these figures of progress, enlightenment, independence and so forth, but to see them really as representatives of all of the cognitive dissonances of the time that they were living in still.

Nick Capoodice:
Hannah there is an almost worshipful reverence for these men who penned the precious documents at the center of American life.

Heike Paul:
I think that with regard to the foundational documents and the so called authors of that documents, there is a lot of mythologizing. Right. Pauline Mayer. She refers to the foundational documents as American scripture, as kind of the Bible of Americans. And when you go look at them at the archives, National Archives, that is the sense that you get. I remember that the first time I went there, I, I was asked to get rid of my chewing gum. I was asked to stand straight in a row. And I was really disciplined. Right. Disciplined not only for security reasons before I could enter this hall, you know, dimly lit and bow in front of the shrine that held the Declaration of Independence. And to me, this was really strange, you know, But I remember the chewing gum thing. So, yeah, I was disciplined into kind of a right kind of person to be able to visit this document. So it's a document, but of course, it's also the people it's about they were self-consciously stylizing themselves and each other with regard to the foundational role that they played in the creation of the United States.

Hannah McCarthy:
The founding Fathers, or importantly, framers, as you'll often hear us refer to them on this show, because to make his point, the father thing is part of the myth. Our personifications of American patriotism, of the establishment of an independent nation and rebirth through revolution of a homogenous group coming together to foster and facilitate a new world in the new world to perform a near miracle. Of course, they were in actuality, statesmen, politicians who disagreed, who enslaved people who represented the cultural and economic elite, who in this part, Nick, I had honestly never considered, but of course, who lucked into a fortunate confluence of events.

Heike Paul:
When we think of a miracle, then I think it really the miracle is really the coincidence of so many different things that happened that made this possible. Maybe, yeah, this is really retroactively inventing a position of power and authority to speak and to utter performatively we the people right at the moment, they utter it. They are not authorized. But then with the sort of retroactively installing themselves at the seat of power, it kind of makes sense.

Hannah McCarthy:
By the way, do you know when the term Founding fathers was first used?

Nick Capoodice:
I don't. Do you?

Hannah McCarthy:
I do. It was used by at the time, Senator Warren G. Harding at the 1916 Republican National Convention in a speech of his.

Nick Capoodice:
Wow. So, like, right before our involvement in World War One.

Heike Paul:
Mm hmm.

Hannah McCarthy:
So, Nick, that takes care of, like, a for origin myths for America. And there are three more where that came from. In part two, America's Progress and Future Myths, which I warmly recommend you listen to right now. This episode of Civics one two, one was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer. Rebecca Lavoie is our executive producer. Music In this episode by Lobo Loco 91Nova, Casa, Kick Osamayo, Marxist. Howard Harper Barnes, Chris Zabriskie, Tigran Viken, Gregor Quendell, Timothy Infinite and Sara the Illstrumentalist. You can check out everything we've ever made at our website, civics101podcast.org. And while you're there, if you like what you hear, consider making a donation. We are, after all, public. Very public radio. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript

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Made possible in part by the Corporation for Public Broadcasting.

Host v Host: A Battle of Wits

Senior Producer Christina Phillips puts Nick and Hannah to the test in this trivia face off! Play along as our co-hosts prove their mettle (and also don't) and learn a little something while you're at it. Featuring Nick as Christopher Walken... with apologies to Mr. Walken.

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Transcript

Christina Phillips: I remember the first time I tracked with you, Nick, I just would like. Like, can you back away from the microphone? I was like, Why are you.

Nick Capodice: Are you in a cemetery? Here's a fun piece of trivia.

Hannah McCarthy: Are you in a...Oh, this is a piece of trivia I know.

Nick Capodice: This is for our listeners. Christina, do you know how to. To make sure you spell cemetery properly?

Christina Phillips: No, but I would love to know.

Nick Capodice: They're so scary. You go "eeee" all the way through it.

Christina Phillips: It's not "tary?"

Nope.

Hannah McCarthy: No, [00:00:30] it's an e.

Nick Capodice: You go "ee" all the way through. All the way through.

Hannah McCarthy: You want to hear something really embarrassing? You know what else is e all the way through? Competent. You know who has to check her spelling on competent every time she writes it? This incompetent, This person right here.

Nick Capodice: Incompetent co-host

Christina Phillips: Oh, I feel like I. My spelling is so bad now, and it's just.

Hannah McCarthy: Hello. Hello, everyone. You are listening to Civics 101. I'm Hannah McCarthy. [00:01:00]

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this is another installment of the thing where our senior producer Christina, betrays what we do not know about American government and history.

Nick Capodice: In other words, it's time for Civics 101 trivia. I'd actually say that's one of the great privileges of being the host of civics one. On one hand, we can readily admit to not knowing anything.

Hannah McCarthy: And not knowing things. We we do. Do not know. We do not know a lot of things. Time to find out which of those our whole audience will learn the dark [00:01:30] truth of today Nick.

Nick Capodice: So without further ado, senior producer Christina Phillips takes it away and makes us squirm because actually the other secret is that we wish we knew everything.

Hannah McCarthy: Let's do this.

Christina Phillips: So our first question is about the Reconstruction era, which, to give you a little background to begin in the 1860s, during and after the Civil War, and from 1861 to 1875, Republicans controlled both the House and the Senate. Lincoln's assassination in 1865 [00:02:00] made his Democratic VP, Andrew Johnson, the president, and at the time the Republican Party was the party of Reconstruction, while the Democratic Party, especially Southern Democrats, were opposed to most any kind of civil rights legislation for people who are formerly enslaved. So this first question is for you, Hannah. Oh, boy, it is multiple choice. Johnson vetoed 23 bills. And from our episode on vetoes, we know that Congress can override a president's [00:02:30] veto only if two thirds of the House and two thirds of the Senate vote to override it. How many of these vetoes did Congress override? Five. Ten. 15 or 20.

Hannah McCarthy: Just because it was like an entirely radical Republican Congress at the time.

Hannah McCarthy: The White House page for Andrew Johnson. I'll never [00:03:00] forget this because the White House has a page for every president and for Andrew Johnson. They call him unfortunate. Like he was apparently actually like competent politician, but his presidency was unfortunate. But I'm going to venture that they overrode 20.

Christina Phillips: You are close. 20, I think would be sort of incredible because the override rate is so low.

Nick Capodice: Is it ten?

Christina Phillips: It is 15.

Nick Capodice: So [00:03:30] that's still a lot.

Hannah McCarthy: It is a lot.

Christina Phillips: It's a lot, especially considering that there's so few veto overrides. Yeah. Two thirds of the House and the Senate is a really hard thing to achieve. They really did not like Johnson. Oh, they did not. Here's some of the things that Congress ended up doing when they overruled Johnson's vetoes. They include passing legislation that reduced Johnson's control of the Army, ordering a military to call the elections in the South and reasserting Congress's control of reconstruction. [00:04:00] Basically legislation that said, no, no, we are in charge of reconstruction, not you. The president, and prohibited Johnson's power to remove Cabinet officers without the Senate's consent. Nick. This question is for you.

Nick Capodice: I'm ready for it.

Christina Phillips: Of these bills that Congress passed that Johnson had tried to veto and failed to veto, there was one that he chose to completely disregard and he did it anyway, and that ended up getting him impeached. So which [00:04:30] one was it? Was it the bill that reduced his control over the Army? The bill that ordered the military to call elections in the South? The bill that reasserted Congress's control of reconstruction? Or the bill that prohibited Johnson from removing Cabinet officials without the Senate's consent.

Nick Capodice: Hoo. I think it's the first one of the last one. And I'm going to go with the first one about whether or not he could remove people in the Army.

Christina Phillips: Yeah. So that one was reducing his control over [00:05:00] the army.

Nick Capodice: Right. That's the one.

Hannah McCarthy: Which no president. Well.

Christina Phillips: That's very true.

Nick Capodice: That's my guess.

Christina Phillips: It's a good guess. It is not the correct guess. Yes. So Congress had passed legislation saying that for Johnson's term he could not remove members of his own cabinet without Senate's consent, and he did not like that. So he eventually fired his secretary of war, who refused to step down because he was like, no, Congress has to approve this. Right. [00:05:30] And so Congress voted to impeach him. Ultimately, the impeachment was unsuccessful, but not without many, many, many angry speeches by Republicans and some Democrats about Johnson's failure to lead. So Johnson takes the record for the president to have the most vetoes overridden by Congress. But there are two presidents who each had 12 vetoes that were overridden by Congress. Hannah First, I'm going to give you some clues. You tell me. The President. All right.

Hannah McCarthy: I'll try my best.

Christina Phillips: This president owned a haberdashery, [00:06:00] was responsible for the secret establishment of the NSA and has haunted nearly every topic I've covered on the show.

Hannah McCarthy: Well, I was going to say LBJ.

Christina Phillips: No, it was not LBJ.

Nick Capodice: Is it Eisenhower?

Christina Phillips: No, it's Truman.

Nick Capodice: Oh, Truman. And I knew it was Truman.

Christina Phillips: Truman. Man of the Truman Doctrine. He delighted in using his emergency powers, helped establish NATO.

Hannah McCarthy: Of course. Truman.

Christina Phillips: Yes, that is Truman. Next question. [00:06:30] This is for Nick. This president ascended from Congress rather quickly, all the way up to the presidency. He was responsible for a cabinet reorganization known as the Halloween massacre. And he played football in college. He started in Congress. He ended up as the president.

Nick Capodice: I'm trying to think of the really handsome one who played football in college, which I think might have been Eisenhower. No, but this but this question about how they weren't. They were they didn't win the Electoral College. So.

Christina Phillips: Yeah, [00:07:00] he never had to He was never nominated for vice president or president before he became president.

Nick Capodice: So is this someone who became president because somebody else died?

Christina Phillips: He didn't die.

Nick Capodice: Uh huh. Who resigned.

Christina Phillips: Hmm.

Nick Capodice: Nixon resigned.

Christina Phillips: Nixon did resign.

Archival: To leave office before my term is completed as abhorrent to every instinct in my body.

Christina Phillips: And it's not Spiro Agnew.

Nick Capodice: Gerald Ford.

Yes. Okay. [00:07:30] Gerald Ford. Gerald. He played football in college. Yeah, he did.

Nick Capodice: I think a couple of them played football.

Archival: My fellow Americans, our long national nightmare is over. Our Constitution.

Hannah McCarthy: not feeling so hot after that one Nick.

Nick Capodice: Nick, I believe the score.

Hannah McCarthy: You know, we know the score

Nick Capodice: unless I am wrong and I am never wrong.

Hannah McCarthy: You know, you were you were wrong with that Johnson question.

Nick Capodice: The score is 1 to 0 me in the lead.

Hannah McCarthy: Tides can shift, my [00:08:00] friend.

Nick Capodice: Round two. Here we go.

Christina Phillips: We're going to talk about voter turnout and voting requirements. The first question is for you, Hannah. It is multiple choice.

Hannah McCarthy: Okay.

Christina Phillips: So this state takes the title for the highest voter turnout in the 2018 midterm election, with 65% of eligible voters casting ballots. It is also called the land of 10,000 Lakes, claims milk as its state drink and ice hockey as [00:08:30] its state sport.

Hannah McCarthy: Do we have state drinks?

Christina Phillips: We do. I have a whole thing about this, so. Is it Massachusetts, Michigan, Minnesota or Missouri?

Hannah McCarthy: The land of 10,000 lakes. Minnesota.

Christina Phillips: Yes. It is. So Minnesota was one of the earliest adopters of same day voter registration. Yeah. Amazing. Yeah.

Nick Capodice: I was thinking it [00:09:00] would probably be a state with a smaller population than some of those bigger states because it's easier to get a higher percentage with fewer people. Right.

Christina Phillips: Yeah. And I will say the Midwest is in general, there's higher turnout in the Midwest from what I could see. They also have been promoting for a long time absentee voting in early voting. So Minnesota has a lot of really easy ways to show up and vote. Other states that had high turnout in 2018 included Colorado, Montana, Wisconsin and Oregon. And by the way, Minnesota has over 11,000 lakes. So [00:09:30] it's sort of a misnomer. And 22 states claim milk as their state drink. So that was a trick clue.

Hannah McCarthy: I wonder if big milk is behind that.

Christina Phillips: Hmm, that's a good question. Some states don't have a state drink at all, but some are are very much in the milk camp.

Hannah McCarthy: We're the only animal that drinks another animal's milk. You ever think about that?

Christina Phillips: Is that true? It's pretty.

Hannah McCarthy: Flippin strange.

Nick Capodice: Cats drink cow's milk.

Christina Phillips: Well.

Hannah McCarthy: Not naturally. You know, we give them you give a cat a thing, a cow's milk. [00:10:00] But it's not like cats were seeking out domestic cows.

Nick Capodice: Just surreptitiously under cover of darkness, assaulting their udders in the dead of night.

Hannah McCarthy: Although I suppose naturally is a is not a what uses that adjective.

Nick Capodice: Because we are natural.

Hannah McCarthy: Right? Nothing we do, right?

Nick Capodice: Nothing we do is unnatural because we are nature.

Christina Phillips: Moving on. Next question. This is for you, Nick.

Nick Capodice: Ready for the dance.

Christina Phillips: It's also multiple choice. The state has the lowest voter turnout in the 2018 [00:10:30] midterm election at just 39.3%. It's the only state that is completely free of rabies, and it has more endangered species than any other state. Is it New Mexico, Wyoming, Alaska or Hawaii?

Nick Capodice: If it's completely free of rabies. That lends me to think of Hawaii. And there's lots of endangered animals in Hawaii, but mostly [00:11:00] birds, I'd imagine, because it probably split apart from Pangea so early, it doesn't have a lot of land mammals.

Hannah McCarthy: I would encourage you to think about the fact that birds aren't doing so hot.

Nick Capodice: That's true. I'm going to go with Hawaii.

Christina Phillips: You are correct, Hawaii. So in 2020, Hawaii sent out mail in ballots to every registered voter. And the voter turnout for the 2020 election was much higher. It was around 57% as opposed to 2016, where it was only 43%. So one thing that we do [00:11:30] know from Hawaii is that that mail in ballot initiative in 2020 really did boost turnout by a lot more than it did on a national average, which nationally voter turnout increased seven percentage points between the two presidential elections.

Nick Capodice: Good on you, Hawaii.

Christina Phillips: Yeah. Speaking of mail in ballots and absentee voting, we know 2020 was a record year for voter participation and a record year for the number of people who voted absentee. [00:12:00] So the average in 2020 absentee ballot rejection rate was 0.79%. So not very high under 1%. Only three states rejected greater than two and one half percent of ballots. I'm going to give you four states. I want you to tell me the state that did not reject that many. And this question is for you, Hanna. Okay.

Hannah McCarthy: So you're going to list four states. Three of them are going to be higher objectors, and one of them is going to be a low register. Yes. Okay.

Christina Phillips: Arkansas. [00:12:30] Georgia. New Mexico. New York.

Hannah McCarthy: Och, I'm going to say New York.

Christina Phillips: It's not New York.

Christina Phillips: So, again, this is the reason I wanted to ask this question is because there's not a lot of obvious reasons. There's not a really good like federal way to track how absentee ballots are going. So the states that had the highest rejection rates were Arkansas, New Mexico and New York. They were the only three states [00:13:00] that had more than two and a half percent of absentee ballots rejected. The vast majority of states had under 1%. States are not required to report why their absentee ballots are rejected, and every state has its individual regulations for election officials. So it is hard to know why absentee ballots are getting rejected. And also in several of these states, it was one county or two counties that had really high rejection rates. Other parts of the state were much lower.

Hannah McCarthy: Was it like Manhattan [00:13:30] people writing in like Batman and whatever?

Christina Phillips: I don't know. I did not look at the actual breakdown in the map. But the this study that I'm talking about is from MIT. They did come up with a few reasons that your ballot may be rejected, some of the most common reasons. So, Nick, this question is for you. It's multiple choice. In 2020, what was the most likely reason an absentee ballot was thrown out? Was it Sharpie bleed through a [00:14:00] mismatch signature, meaning the signature on your ballot did not match the signature the state had on file, a missing signature, meaning you didn't sign the ballot or didn't sign it in the right place, or you had the incorrect date.

Nick Capodice: You had to put the date down? Let me think.

Christina Phillips: I'm not saying anything.

Nick Capodice: My signature has changed so much since I got my first checkbook at the ripe age of nine.

Hannah McCarthy: I basically try out a new signature every time I have to sign my name [00:14:30] this morning. And I was like, How's that? That's a good one, right?

Nick Capodice: I know I used to put a little smiley face and the number two under my name as a little trick. If someone tried to forge my checkbook from my Paper Boy account. Anyway, I'm going to guess mismatched signatures.

Christina Phillips: You are correct. It is mismatched signatures.

Nick Capodice: I'm gettin all the easy ones McCarthy.

Christina Phillips: Here's the thing. Mismatched signatures comparing the signature that you submit on your ballot with the signature that the election officials have on file. So the signature that you [00:15:00] gave when you register to vote, for example, this could be when you registered on like over mail or it could be when you registered a year ago. So the way that they evaluate if your signature matches or not, it's depends on the election official. It depends on the state, it depends on the county. But that is the most common reason some states do have laws on the books that require them to notify people if their absentee ballot has been rejected and give them the opportunity to correct [00:15:30] it. Other states do not. So in many of these states, when an absentee ballot is initially rejected, they're able to correct it because they reach out to the person and say, hey, you know, we had an issue either come vote in person or we're going to figure out a system for you. Not every state requires that. So if you vote absentee, be aware of that and check to see if your what your state's local laws are about absentee ballots, what kind of pen to use, what kind of pen not to use. If you can track your ballot and [00:16:00] if your state will contact you if it doesn't end up going through. So that's that. The score now, I believe, is two Nick, zero Hannah.

Hannah McCarthy: No, I have one. One. Yes.

Hannah McCarthy: I've one point.

Nick Capodice: I actually have 3 points.

Christina Phillips: I don't know.

Nick Capodice: I have Hawaii.

Hannah McCarthy: Oh yeah. And Nick has three.

Nick Capodice: So that's 3 to 1.

Hannah McCarthy: Slow [00:16:30] and steady wins the race, man.

Nick Capodice: You remember how the other day you were talking about how much you learned to be a good loser to that friend of ours?

Hannah McCarthy: Yeah, well, my ability to lose well is surpassed only by my ability to selectively forget things.

Nick Capodice: All right, Hannah. Round three coming in hot.

Hannah McCarthy: Wait

Nick Capodice: One cannot delay the inevitable.

Hannah McCarthy: Unless it is to remind everybody of our very wonderful, very bright and interesting and never spammy newsletter called Extra Credit.

Nick Capodice: It's a good point. We can [00:17:00] always throw that in.

Hannah McCarthy: I've got like three newsletters that I subscribe to that I ever bother to click on in my inbox. And let me tell you something, this is one of them. The Civics 101 Extra Credit newsletter is one of them, and I already know most of the content.

Nick Capodice: Because you wrote it. Hannah.

Hannah McCarthy: Well, I do like to read my own writing. It's one of my my worst ego things, but it's also just good stuff that we put in the newsletter, right? It's civic stuff that Nick and I discover over the course of a week or a month, or just like one [00:17:30] strange night clicking wildly through Reddit. And it is always worth a read. You can subscribe at our website, civics101podcast.org. Now we can take a break.

Nick Capodice: We're back. We're playing Civics 101 trivia. And I am kind of trouncing Hannah at this point.

Hannah McCarthy: for now.

Nick Capodice: But there's many a slip twixt the cup and the lip. No more dawdling. Let's get back to it.

Hannah McCarthy: Round three, here we come. [00:18:00]

Christina Phillips: So the next category is campaign slogans. The good, the bad and the fake. Are you ready for this?

Nick Capodice: I'm ready.

Christina Phillips: Do you guys have favorite campaign slogans over the years?

Nick Capodice: I like Tippecanoe and Tyler, too.

Hannah McCarthy: I like Ike. Oh, it's one of my favorites.

Nick Capodice: Do you ever hear the song for I Like Ike for that ad, It's like, I like you like I like you like like I like like everybody likes Ike for president.

Christina Phillips: I think there is a song for the Tippecanoe and Tyler, too, as well.

Hannah McCarthy: There is.

Archival: ...Tippecanoe [00:18:30] and Tyler, too. For Tippecanoe and Tyler too. And with them will be little Van Van, Van is a used up man.

Christina Phillips: So I ended up on a very, very deep rabbit hole. I have no idea why I don't remember what episode I was working on, where I ended up in this rabbit hole, but I ended up in a rabbit hole reading about all these campaign slogans over the years. And the takeaway I had was that there was seemed to be no rules about this. So some of them could be about policy, like Abraham Lincoln's. The union [00:19:00] must and shall be preserved. That was one of his campaign slogans. Very literal. That's a long slogan. Yeah. It's not the longest that we're going to talk about. They can be about the person. So Gerald Ford's. He's making us again. I think that might capital us.

Nick Capodice: He's like, making us us again. Making the US again.

Christina Phillips: Well, now I need to look it up because I think it is.

Nick Capodice: It's Gerald Ford again.

Hannah McCarthy: Yeah he's making us. Us would Yeah that would make.

Nick Capodice: He's making us us again.

Christina Phillips: He's making us proud [00:19:30] again. I just didn't left out proud. So Gerald Ford, he's making us proud again. Again, again. There's other ones that are sort of vaguely inspirational, like McCain's 2008 slogan, Reform, prosperity and peace. Right. So there's the whole gamut of campaign slogans. So for the next round of questions, I'm going to give you the year. And the slogan, And I want you to tell me if it's a Republican candidate, a Democratic [00:20:00] candidate, or if it's fake. Okay. So the first one to you, Nick, 2012, the slogan is middle class first.

Nick Capodice: Wow.

Christina Phillips: Republican, Democrat or fake?

Nick Capodice: I can't believe somebody would actually put that on their middle class first. If it was, I'm assuming it would be.

Hannah McCarthy: From what I've learned of the great American myth, it's that most Americans classify themselves as the middle class.

Nick Capodice: I saw a chart about that yesterday. Hannah. Yeah, it was like everybody thinks they're middle class from $5,000 [00:20:30] a year to 125,000 a year. Anyhow, I'm going to guess fake Christina.

Christina Phillips: It is not. It is Democrat. It's Barack Obama.

Nick Capodice: Oh, my God. I can't believe I screwed that up.

Christina Phillips: And I should say that all of these are slogans that for actual candidates, not primary candidates. Yeah, whatever. That word is.

Nick Capodice: Cool. I'm ashamed that I got that one wrong.

Christina Phillips: Yeah, that one stood out to me because he had so many other great ones. This is, you know, hope and there's just so many great Barack Obama ones. This is middle class first. [00:21:00] That's it. So that is a no Nick. Hannah? Yes. 2004. Okay. A safer world and a more hopeful America. Republican, Democrat or fake?

Hannah McCarthy: 2004. I'm going to say it's. I must say it's real.

Christina Phillips: Mm hmm.

Hannah McCarthy: And I'm going to say Republican.

Christina Phillips: Yes. This is George W Bush's reelection [00:21:30] slogan, A Safer World and a more hopeful America, which I have never seen on a sign, I imagine it had to be kind of squished. All right, Nick. Things are going to get a little harder. 1932.

Nick Capodice: Okay.

Christina Phillips: We are turning a corner. Republican, Democrat or fake.

Nick Capodice: You're turning a corner.

Nick Capodice: 1932 I'm thinking about it. It's depression [00:22:00] related. And I'm going to say Democrat.

Christina Phillips: No, those as a Republican, it was Hoover, running for reelection. All right, Hannah, 1936. New Deal. Try No deal. Republican, Democrat or fake.

Hannah McCarthy: You could have come up with this.

Nick Capodice: Oh, it.

Hannah McCarthy: Would be rather clever if you did. I'm [00:22:30] going to say fake.

Christina Phillips: It is fake.

Nick Capodice: I was like, Why isn't she saying Republican? Why isn't she? And then she was right. You were right.

Christina Phillips: I will say it's better than what existed. So Roosevelt's Republican challenger, Alfred Landon. This was his slogan, Defeat the New Deal and its reckless spending. So I'm sorry, but New Deal or No deal is much better, in my opinion.

Hannah McCarthy: People were depressed enough as it is. [00:23:00] I mean, come on.

Christina Phillips: It just feels like a.. Defeat The New Deal. And it's reckless spending. All right, Nick.

Nick Capodice: Yo, yo.

Christina Phillips: Next question for you. Yo, yo, yo. 1980. Are you better off than you were four years ago?

Nick Capodice: Oh, yeah. This is a famous one.

Christina Phillips: Republican. Democrat.

Nick Capodice: Let me just I'm trying to think of the specifics of it. Are you better off than you were four years ago? It's 1980. Jimmy Carter, Somebody [00:23:30] who opposed Jimmy Carter. Jimmy Carter didn't say, Are you better off than you were four years ago? Jimmy Carter was a Democrat. I'm going to say Republican.

Christina Phillips: Correct. Sorry. The long and winding road, great powers of deduction. So that was a Ronald Reagan.

Nick Capodice: Yeah, that was That was one of his first ones, right?

Christina Phillips: Yep. Yep. And he beat Jimmy Carter.

Nick Capodice: Sure did.

Christina Phillips: Are you better off than you were four years ago? It's an it's a loaded question, Hanna. 1948. Move toward a new world order. [00:24:00] Republican, Democrat or fake.

Hannah McCarthy: Democrat?

That's fake. This is a line from Eminem song Lose Yourself.

Hannah McCarthy: In my defense, I wasn't cool enough to listen to Eminem. So how would I know that?

Christina Phillips: I only know all the lyrics to Eminem's Lose Yourself because in typing class in seventh grade, we had to type out all the lyrics, which is an interesting choice for a seventh grade class.

Hannah McCarthy: Shocking choice.

Nick Capodice: better than Mario teaches typing.

Christina Phillips: Yeah, it was. I mean, I. [00:24:30]

Hannah McCarthy: Stand by Mavis Beacon.

Nick Capodice: I also stand by Mavis Beacon

Christina Phillips: I stand by Eminem's lyrics.

Hannah McCarthy: So that's very funny Christina.

Christina Phillips: Yeah. So here's an actual slogan for Democratic candidate Harry Truman. I'm just wild about Harry.

Nick Capodice: There's something about Harry.

Christina Phillips: All right Nick. 1992. Don't change the team in the middle of the stream.

Nick Capodice: I forgot who it was. Well, if it's don't change [00:25:00] the team in the middle of the stream, then it's got to be who won in 90.

Christina Phillips: 92.

Nick Capodice: 92. But if you don't want to change the team, you have to keep with the one dance with the one that brung ya. 1988. Hold on a second. George Herbert Walker Bush.

Christina Phillips: George H.W. Bush.

Nick Capodice: Don't change the team in the middle of the stream. Not really known as sort of the best, the best stringer together of fun phrases. George Senior wasn't.

Christina Phillips: Yeah. Yeah. [00:25:30]

Hannah McCarthy: I believe that puts me at a whopping three pointeroos

Nick Capodice: I believe that puts me at 5, 5 pointeroos

Hannah McCarthy: Did you know that until I finally went to England, where the signs all over the subway system, the the tube, the metro [00:26:00] say mind the gap. They mean like the gap between the train and the platform up until that point. And I was like 12. I thought that mind the gap, which you sometimes see on like T-shirts, was just a really cool band.

Nick Capodice: Isn't it?

Hannah McCarthy: What is that band? It must be like a band from the nineties. Yeah, I'm sure it is a band name, you know.

Nick Capodice: But what are we on Hannah, round four?

Hannah McCarthy: Yeah, we're on round foyr 5 to 3. Nicholas Capodice

Christina Phillips: 5 to 3.

Hannah McCarthy: Doing a little [00:26:30] better. That's my campaign slogan.

Nick Capodice: Doin' a little better. McCarthy for President. Paid for by the Irish-Americans for Irish Irish-American Foundation.

Hannah McCarthy: I never promised you a rose garden. McCarthy For president.

Nick Capodice: Deal with it. I would love to come up with a campaign slogan for you. It ain't all bad.

Christina Phillips: She'll do it on time.

Nick Capodice: You should see the other guy. Hannah McCarthy for president.

Christina Phillips: All [00:27:00] right. So the final scores right now, Nick has five. Hannah, you have three. Last round, this or that.

Hannah McCarthy: You can get with this or you can get with that

Nick Capodice: You can get with that.

Hannah McCarthy: Sorry.

Christina Phillips: That's fine.

Hannah McCarthy: It's such a fun music video. Do your Christopher Walken.

Nick Capodice: He does. He he was in that.

Hannah McCarthy: He's in the music video for that. Well, it's in the Weapon of Choice music video by Fatboy Slim, who samples the fairly famous black sheep song they were referencing here. But whatever. I'm [00:27:30] just free associating.

Nick Capodice: What do you want him to say?

Hannah McCarthy: I want him to answer this next trivia question. Nick, is it Nick or is it me

Christina Phillips: Starting with Hannah.

Hannah McCarthy: Okay, You can. After that, you have to do a Christopher Walken.

Nick Capodice: All right, I'll do my best.

Christina Phillips: Okay, So earlier this year, Nick, you did a whole show on committees.

Nick Capodice: I did.

Christina Phillips: Yeah. Do you want to tell us just briefly, what's your favorite thing about committees?

Nick Capodice: My favorite thing about committees is that they are the most maybe the most important thing. When I did this episode, I went away being like, everyone, [00:28:00] forget everything about anything. Forget parties, forget platforms, Forget the Supreme Court. None of it matters. Committees are the only thing that matters. And I really kind of I mean, I think the rest does matter. But committees are super important and they determine people's what they determine what our elected representatives do. So I think everybody should go listen to that episode.

Christina Phillips: Yes, they definitely should. We're going to talk about a much less important thing that is committee adjacent and that is caucuses.

Hannah McCarthy: Oh, [00:28:30] caucuses. Oh, yes.

Christina Phillips: So caucuses are a group of like minded legislators who work together to educate their peers about things that are important to them. And I when I was looking at caucuses, I saw a lot of things where the description of the caucus was educate fellow legislators. So now I imagine that there's just slideshows happening all the time that, you know, I'm going to teach you about this thing today, and I can't even predict what the attendance is for those. But anyway, while there is a limit to [00:29:00] how many committees someone can serve on, there seems to be no such limit on caucuses.

Hannah McCarthy: Because they're made up.

Christina Phillips: Yeah, I came across one representative who is on could you not? 41 caucuses.

Nick Capodice: Wow.

Christina Phillips: The list just kept going and going and going. I don't even think I talk to 41 people in a month. I can't imagine being on 41 different caucuses. But that being said, for this round of this or that, I am going to give you a word. That [00:29:30] word is either the name of a caucus that currently exists in our House of Representatives or an official jelly belly jelly bean flavor.

Nick Capodice: Great.

Hannah McCarthy: Okay, I can do this. Ready? Yeah.

Christina Phillips: All right, Hannah, the first one is for you. Is this the name of a House caucus or a jelly belly jelly bean flavor? Maple.

Hannah McCarthy: Caucus?

Christina Phillips: Yes,

Nick Capodice: Well done.

Christina Phillips: There are three people on this caucus. They are from New York, [00:30:00] New Hampshire and Vermont. So Maple caucus. I could find no information about this caucus. But I can guess being from New Hampshire, I.

Nick Capodice: Think that caucus just has pancakes once a year.

Hannah McCarthy: Yeah.

Christina Phillips: All right, Nick. Yeah.

Hannah McCarthy: Who's who? Who are you, sir? Oh.

Christina Phillips: Nick, as requested answer this as Christopher Walken. Name of a House caucus or a jelly belly jelly bean flavor? Wine.

Nick Capodice: I would think that the creators of jelly bellies [00:30:30]...to sell. The children wouldn't have an alcoholic drink. But then again, I'm going to say caucus.

Christina Phillips: It is a caucus, but there is an entire cocktail line of jelly bellies.

Hannah McCarthy: I'm not surprised tall.

Nick Capodice: pina colada, probably.

Christina Phillips: There is a pina colada. There's a gin and tonic and a moscow mule, I think. Hmm. Hmm. Hmm. So this caucus was, [00:31:00] according to the website, founded with the idea that members of Congress could benefit from learning more about the challenges of growing grapes and making wine.

Nick Capodice: Yeah, we all could benefit from learning more about that.

Christina Phillips: Okay, Next question. Hannah? Yes. How is caucus or jelly Belly jelly bean flavor. Sausage? Hmm.

Hannah McCarthy: Jelly belly.

Christina Phillips: Correct? Yes. [00:31:30]

Nick Capodice: There is no sausage flavor.

Christina Phillips: There is a sausage.

Hannah McCarthy: There are other there are flavors that really shouldn't be flavors.

Christina Phillips: Mm hmm.

Nick Capodice: And these aren't even, like, rip off Bernie bodies.

Christina Phillips: No, this is from the Jelly Belly website. I went. I was fully official.

Hannah McCarthy: Jelly Belly made those Harry Potter jelly beans.

Christina Phillips: Oh, yes. Which I'm going to stop you there because I cannot confirm or deny if there are more from that list. So. Nick Yeah. House caucus or jelly belly jelly bean flavor. Cut flower F-L-O-W-E-R [00:32:00]

Nick Capodice: I'd much rather have a wad of dough in my mouth as a jelly belly. Let me guess. Cut flower. If it was a caucus, it would be sort of this fun rose society. And if it was a flavor, it would be for the sort of the erudite, Turkish delight loving person. So I'm going to say it's a jelly belly flavor.

Christina Phillips: It's a caucus.

Nick Capodice: Do they like flowers?

Christina Phillips: The congressional cut flower [00:32:30] or flower caucus? I saw it said both ways, was created to help address, support and represent the economic interests and opportunities facing America's flower farmers.

Nick Capodice: Oh, well.

Christina Phillips: All right. Next question is for you. Hannah House Caucus are Jelly Belly jelly bean flavor. Dirt.

Hannah McCarthy: Jelly Belly.

Christina Phillips: It is Jelly Belly in line with those other weird ones like sausage. There is a soil caucus, though. [00:33:00]

Hannah McCarthy: Yeah.

Christina Phillips: Yeah, but.

Nick Capodice: If you mix them together like a dirt sausage, one on the left cheek, one on the right.

Hannah McCarthy: The most upsetting thing about Jelly Belly is how chillingly accurate a lot of their flavors are.

Christina Phillips: Mm hmm. All right, Nick. Next one is for you. House caucus are Jelly Belly jelly bean flavor. Chicken.

Nick Capodice: Oh, that's a good one. That is good. We've already had sausage, and I'm going to go with caucus. I feel like the chicken caucus [00:33:30] is people who care about big chicken.

Christina Phillips: You are correct. It is the caucus that cares about baked chicken.

Nick Capodice: Oh, good.

Christina Phillips: All right.

Hannah McCarthy: Hannah. Yes?

Christina Phillips: House caucus are jelly bean flavor. Bourbon.

Hannah McCarthy: I'm going to say caucus.

Christina Phillips: You are correct. It's done. Yes, it is Kentucky.

Nick Capodice: I'd like to pay tribute to the spirit of Kentucky, literally. Bourbon whiskey. That was an actual.

Hannah McCarthy: Here's hoping thats a Kentucky accent somewhere.

Christina Phillips: Exactly what I was [00:34:00] thinking.

Nick Capodice: Bourbon. Whiskey. Bourbon. Bourbon. Whiskey.

Christina Phillips: And do they bring free samples to their presentations? I must know.

Hannah McCarthy: Hundo percent

Christina Phillips: if has a caucus presentation they want to send me please to. I am very invested.

Nick Capodice: What is also a rye caucus? I'd hope there would be.

Christina Phillips: I don't remember seeing one.

Hannah McCarthy: But it spelled w r y.

Nick Capodice: Wry comment.

Christina Phillips: Ok last one Nick House [00:34:30] caucus are jelly belly jelly bean flavor. Dead fish.

Nick Capodice: I feel like if there is a truly gross jelly belly, then it would be the dead fish and it'd be like a birdie body. Buffy Harry Potter growling Whatever her name is thing I'm going to say Jelly Belly for fun.

Christina Phillips: It is a jelly belly.

Nick Capodice: Is it one of those Bernie bots, birdie.

Christina Phillips: Bots, every flavor of beans and.

Nick Capodice: They mean every flavor.

Christina Phillips: It is a jelly belly flavor from [00:35:00] birdie bots. Every flavor of Bean's collection, which also includes soiled or dirty bandage. I can't remember booger vomit. And there's one that's I think banana belongs there.

Nick Capodice: I think.

Christina Phillips: See, I like the weird flavors. I like banana.

Hannah McCarthy: Have you ever tried vomit? I've always been too afraid.

Christina Phillips: No, I have not. Have you? No, no, no.

Nick Capodice: Keep that off. That's true.

Christina Phillips: I have tried the grass flavor.

Hannah McCarthy: Grass is fine. I actually kind of like.

Nick Capodice: I ate grass [00:35:30] all the time.

Christina Phillips: The jelly bean or the.

Nick Capodice: Actual substance.

Hannah McCarthy: Jelly bean.

Nick Capodice: As a child, I used to eat grass a lot?

Christina Phillips: Did you have digestive issues?

Nick Capodice: No. No. It just runs in the family.

Hannah McCarthy: Like you're pica.

Christina Phillips: It's because dogs eat grass when their stomachs are upset.

Hannah McCarthy: You probably have pica is usually a sign of nutritional deficiency.

Christina Phillips: You know, Or anemia. Yeah. Well, what is your flavorite? favorite flavor?

Nick Capodice: We can run for office on that campaign.

Hannah McCarthy: I know what Nick's favorite flavor is.

Christina Phillips: What [00:36:00] is it?

Hannah McCarthy: Black licorice. I bought him a whole thing of those were Jelly Belly brand, by the way.

Nick Capodice: Yeah, they were. They were also gone in about 5 minutes.

Hannah McCarthy: I can't. I've never seen anyone consume anything so quickly as Nick eating black licorice.

Nick Capodice: Oh, so horrible.

Christina Phillips: Which brings our score up to 8 to 7. [00:36:30] Nick, you have won. That's very, very convoluted.

Hannah McCarthy: I learned a lot. I learned.

Nick Capodice: A lot. A lot. Christina, thank you for this. This is a lot. A lot of fun. Yes.

Hannah McCarthy: Thank you.

Christina Phillips: Well, thank you for doing it with me.

Hannah McCarthy: And thank you for being here also. Mr. Walken.

Nick Capodice: It's my pleasure talking a lot about confectioneries and caucuses. That's kind of a B-level Walken. But, you know, you got to be in the right frame of mind. You can't just walk in and do it. Oh. [00:37:00]

Hannah McCarthy: Well, everybody, I guess now you know that I know a lot about jelly beans, so you're in really good hands. Also, I looked into it and I was only kind of correct about the milk thing. Apparently some birds will actively go after another animal's milk. And on Ysleta Guadalupe in Mexico, cats skim milk off elephant seals, which is just amazing. [00:37:30] Also, from what I have seen on the Internet, this is a big debate that gets some people really, you know, riled up. So I am sorry for hitting that hot milk button. This episode was written by Christina Phillips ever keeping us on our toes and produced by me, Hannah McCarthy, with help from Nick Capodice Who won by one point just one. Jacqui Fulton is our producer. Rebecca Lavoie is our executive producer. Music In this episode by Liz Dilating Times, Derek Stevens, Alexander [00:38:00] Kaufmann Ross, who wrote Tippecanoe and Tyler too in 1840. And get this, Irving Berlin as in White Christmas and God Bless America. Irving Berlin, who wrote I Like Ike. It was originally called They Like Ike and Berlin followed it up with I still like Ike and Ike for four more years. This is just a trivia packed episode, but we are more than a trivia show, everybody. And if this is your first civics one on one episode, I urge [00:38:30] you run. Do not walk to Civics101podcast.org to hear what we usually do. You can listen to our whole gigantic episode list there as well as find great teacher resources and you can contact us with your questions about American democracy. Civics 101 is brought to you by NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Civics 101 Presents: Future Hindsight on the Asian American Vote

This is a featured conversation from Future Hindsight, a podcast with a simple premise: civic participation is essential to a functioning democracy. So how do we do it? In this episode, host Mila Atmos speaks with Sung Yeon Choimorrow,  the executive director of the National Asian Pacific American Women’s Forum, about Asian American stereotypes, changing the narrative about who Asian-Americans are, and activating Asian communities to take civic action.

You can find so many more conversations that span the civic world at futurehindsight.com.

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Transcript

Check back soon.

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Made possible in part by the Corporation for Public Broadcasting.

Nina Totenberg Live On Stage

In September 2022, Hannah McCarthy sat down with NPR Legal Affairs Correspondent for a show called Writers on a New England Stage. This is an excerpt from their conversation. Nina discusses her new book, Dinners with Ruth, focusing on her career as a journalist and her relationship with late Supreme Court Justice Ruth Bader Ginsburg. You can catch the whole conversation at nhpr.org.

NinaTotenberg.mp3: Audio automatically transcribed by Sonix

NinaTotenberg.mp3: this mp3 audio file was automatically transcribed by Sonix This transcript may contain errors.

Hannah McCarthy:
In September of 2022 for a program called Writers on a New England Stage, a partnership between New Hampshire Public Radio and the Music Hall in Portsmouth, New Hampshire. I got to step on stage with National Public Radio's legal affairs correspondent Nina Totenberg. Nina had just written a book about her experiences as a journalist, especially covering the Supreme Court and perhaps most importantly, forming a lifelong friendship with the late Supreme Court Justice Ruth Bader Ginsburg. That book is called Dinners with Ruth. I want to share a part of that conversation with the civics one on one audience, because, come on, how often do you get this close to someone who gets that close to the Supreme Court? So here I am with Nina Totenberg at the Music Hall in Portsmouth, New Hampshire, for writers on a New England stage. Thank you. And Nina, thank you so much for being here with us tonight.

Nina Totenberg:
It's really my pleasure. And I hope everybody gives to their local public radio station.

Hannah McCarthy:
Now, I know that when you first started covering the Supreme Court, it was not considered important enough to be your full time job.

Nina Totenberg:
Well, when I first was assigned to cover the Supreme Court in my earlier days, I had many other jobs in print first. And then when NPR hired me, we had only one news program, and it was an hour and a half. It was all things considered in the evening and started at five, not four. And my beat was the Supreme Court, the Justice Department, the House and Senate Judiciary Committees. Any major legal scandal that broke or and live hearings that covered those kinds of things. Confirmation hearings, of course, and the intelligence community. Oh, and I covered presidential and vice presidential campaigns a little bit also.

Hannah McCarthy:
Yet you made the conscious decision to carve out a space for yourself covering the Supreme Court. Can you talk about what that was like? You're especially as a young journalist, a woman, a non-lawyer. How did you approach covering the Supreme Court?

Nina Totenberg:
Well, when I first got assigned to cover the court, I worked for the the late Great National Observer, which was a weekly publication published by Dow Jones, which at the time also owned The Wall Street Journal. And it was a weekly. And that made it much, again, much easier in the sense that I had time to do research and I would call anybody any time, anywhere to ask any question. There's one good thing about being young as a reporter. You're you understand that if you're going to do anything, you just have to be willing to ask any question at all. And if it's a stupid question, so be it.

Hannah McCarthy:
Speaking of questions, it's 1971. You were covering a case called Reed V Reed, and you discover that someone named Ruth Bader Ginsburg had written a brief for the ACLU for this case that was supposed to go before the Supreme Court. And you see that this woman's number is right under her name at Rutgers University. And you call this professor up. She's a law professor at Rutgers. And that conversation is one that Ruth Bader Ginsburg would look back on and say, you know, that was our first conversation and we have been dear friends ever since. What about that conversation? Compelled Ruth to look back and say that was the beginning of that dear friendship?

Nina Totenberg:
Well, certainly it was the beginning, but we weren't dear friends yet. She probably thought this this girl is asking me dumb questions, but she never treated any of my questions as dumb. And that day I really didn't understand the the point she was making in the brief that women were covered by the 14th Amendment guarantee to equal protection of the law, because, after all, women didn't even have the vote when the 14th Amendment was enacted. And she spent an hour answering my questions and explaining to me what I needed to know, which basically boiled down to the 14th Amendment covers all persons and women are persons.

Hannah McCarthy:
And you were compelled to continue to call her back over and over again. I know. Well, anybody.

Nina Totenberg:
Who would spend that kind of time with me, somebody was completely new on the beat. And it was just the beginning of what became her battle and the the architecture that she wrought to build the fight for women's rights in the courts. So I understood that this was somebody I should be in touch with and talk to regularly. And eventually we met. We met at a very boring conference. And it was so boring that we left and went shopping. And I don't remember anything about the shopping, but I do remember a lot about that afternoon. So it was a friendship that grew slowly. I mean, she lived in New York then, so I didn't see her very often, but eventually she moved to Washington when she was appointed to the Court of Appeals. And we became closer and closer friends over the years, until the last couple of years of her life, we were incredibly close because she needed me at that point. There were earlier times when I needed her in my personal life, and she always stepped right up to the to the plate. And so my husband and I stepped up to the plate for the last part of her life.

Hannah McCarthy:
I'd love to talk a little bit about that. You've described Ruth as being consistently stoic and internal and in utmost control, and that it took you a very long time to find that you had, in fact, become intimate friends, friends who needed one another. What was it that led you to see that? When did you truly know how close you had become?

Nina Totenberg:
It's a really good question, and I'm not sure I can answer it fully. I do remember that when she turned 50, her husband made a book of. Letters that he asked her friends to write to her and. I was quite surprised. He asked me because I didn't realize I was that. Not much of a friend to her. And so when I was writing the book, I didn't have a copy of the letter. And my impression always was that it was a really pretty stupid letter. But I called up her daughter and asked her if she had that book. And she did. And she sent me the letter. And to my really great surprise, it was a pretty good letter. But I did sign the letter for some unknown reason. To me, maybe I thought she knew more than one. Nina. I signed it.

Hannah McCarthy:
Nina Totenberg And there's one piece of advice that Ruth passes on to you that I believe she received from her father in law, which was, as she is considering becoming a lawyer herself. He says to her, essentially, if you can do it, you'll do it. And if you can't, you can't. And and she from there on out would always ask herself, well, is this worth it? And if I answer yes, I will proceed and do it. And I wonder if you have applied that same piece of advice to your life.

Nina Totenberg:
I think so. You know, you do things that you have to in a in a job. Some things you're thrilled to be able to do and other things just go with the territory. And I don't think it it's that different for a Supreme Court justice even, and that it's a very good piece of advice her father in law gave her her mother in law gave her even better advice, I think, on the day of their wedding. Her mother in law sat her down. By then, Ruth's mother was had died quite a few years earlier, and she sat her down and she said, Ruth, I want to give you the secret to a happy marriage and successful marriage. And Ruth said, What's that? And she said, It always pays to be a little deaf. And Ruth always said that that was true on the court as well.

Hannah McCarthy:
I love that one of your takes of the relationships on the Supreme Court is that it's a little bit like a marriage that's not doing so well, that if you decide to stay inside of it, you find a way to communicate, even if you disagree.

Nina Totenberg:
Yes, I think that's that's right. I don't know how well they're doing at the moment, but and my sense is they're doing less well than usual. And that goes not just because just liberals versus conservatives. I think the conservatives are not getting along all that well either because they have different ideas about how to interpret the Constitution, how to interpret statutes. They they don't always agree about that. And what they, of course, would like is a lot of they would like a place in the sun, each of them. And that means that things don't always go. Smoothly, I guess you would say.

Hannah McCarthy:
Now, I want to sort of pivoting back to your career a little bit. You've got a lot of good journalism stories throughout this book, including one in which you end up with a retaliatory FBI file because of a profile on Hoover. But, you know, after telling what is a great anecdote and admittedly funny you say, you know, now this is funny to think back on, but I, I worked really hard in journalism. I worked really hard in my career. And I wonder in particular how that hard work ethic applied to reporting on a court, which to so many people is obscure, is, as you call it, the Marble Palace. How did keeping your nose to the grindstone push your way through those doors?

Nina Totenberg:
Well, first of all, it was fascinating to me. I was never I've never been bored covering the Supreme Court. I'm occasionally bored reading legal briefs because they go on and on and on and on. But the cases are not boring. And in fact, I sometimes have to say to myself, All right, you're going to have to skip that one. It's interesting to you, but it will not be interesting to most people, at least in the argument stage may be when it's decided. So you have to sort of triage what you're capable of writing about and what people are willing to pay attention to. Even when I was younger, I was you know, I was almost always until I went to work at NPR, the only woman every place I worked, or one of two women. And even when I was covering the court for NPR, there were when I first started covering the court, there was one other woman. Eventually then she retired and there was, you know, Linda Greenhouse was the, you know, covered the court quite a bit later than I started covering the court. But I was thrilled when she was there. Now, there are just as many women covering the court as there are men, but that was not true for a very long time. And it was and I wasn't a lawyer, so all I could do was work really hard to make sure I didn't embarrass myself and that I could earn something of a reputation for doing good work.

Hannah McCarthy:
And now this book is peppered with dinners. Dinners with Ruth. Yes, but also dinners with your friends and dinners with justices.

Nina Totenberg:
And where are my friends other times? Who are.

Hannah McCarthy:
Your friends? Absolutely. But here's what I mean to say. What what compelled you? What gave you the confidence the first time you ever invited a Supreme Court justice over for dinner? As a young reporter.

Nina Totenberg:
I have no idea. When I when I went back and I thought about it and I thought, who was the first justice I ever invited for dinner? And it was Lewis Powell, who was a very distinguished Southern gentleman in his sixties, maybe even a little older. But when I invited him to dinner, probably his sixties and his wife, Joe, probably it was because Joe had been so nice to me and had treated me like a. As they say in Guys and Dolls. A poison. And. And so for some ungodly reason, I called up Justice Powell, and I asked if he and Joe would come for dinner. I was single. I was in my twenties. I. I had a little house I bought that was 13 feet wide. I had another invited another couple. And I can't remember who they who it was. I made the dinner and served the dinner. And I don't I mean, I'm amazed that they said yes, they came. And you would have thought that I was dining. You know, they were dining at Buckingham Palace. The way they treated me, it was incredibly gracious of them. He he was always very generous with his time. He, like other members of the court, were happy to eat lunch or dinner with me and. Not to talk about what they were doing at the time, but how they did it, how they ran their chambers, how they thought about things, how they approached them. I mean, I remember a lunch I had with Justice Scalia when he was first on the Supreme Court.

Nina Totenberg:
I had known him for a good ten years before that. And I said, So what's different? He'd been on the Court of Appeals. I said, So what's different from the Court of Appeals? And and it was very interesting. What he said was different. He said, well, there are a whole bunch of subjects that I have not given any thought to that don't come before the U.S. Court of Appeals for the District of Columbia. I've never I've never even thought about the 11th Amendment. Death penalty cases, by and large, don't come to the to the court. And there were several other things. And I just had never even thought about that. And and he said, So I really have to think about them and think what I think for the first time. Of course, after a while, justices sort of know what they think about how to interpret this or that or the other thing. But situations change. In the early days when I covered the court, most of the cases were about civil rights and and about the draft. Actually, there were a lot of big cases about the draft. Those cases don't those kinds of cases don't come up. They're different civil rights cases now. And there are all kinds of cases about now about that people are just starting to think about in a different way, about the First Amendment and technology and social media and the protections under the statutes, subjects that the court deals with change over time, not just the personnel.

Hannah McCarthy:
You're listening to an edited version of my conversation with Nina Totenberg, NPR legal affairs correspondent and close friend of the late Ruth Bader Ginsburg. We'll get right back to it after this break. But first, there is so very much that does not make it into the average Civics 101 episode. Luckily, you don't have to miss any of it because our team puts it all together in the civics one on one newsletter. Extra Credit. You can subscribe at our website, civics101podcast.org. It's where all of the fun and or wildly tangential stuff goes that our executive producer, Rebecca Lovejoy, rightfully makes us cut from our episodes. Again, don't miss it. It's really good stuff. It's one of my favorite parts of our job Civics101podcast.org and subscribe to extra credit. We're back and you're listening to a special episode of Civics one on one. I'm sharing part of my conversation with NPR legal affairs correspondent Nina TOTENBERG. Recorded for a live event called Writers on a New England stage at the Music Hall in Portsmouth, New Hampshire. And I asked Nina, essentially, what were conversations like with members of the court when she was not operating as a journalist?

Nina Totenberg:
I think that most of the members of the court lead. Relatively, relatively isolated lives. They don't call it, you know, the ivory tower for nothing. And some more than others, like social interaction and not just to talk about. Law, but to have friends and to talk about. Music and theater and maybe what's going on in in sports, I mean, all kinds of things like that. I guarantee you, Justice Ginsburg did not want to talk about sports, however.

Hannah McCarthy:
Even though she was quite a sporting woman.

Nina Totenberg:
Oh, yeah. She was very she was quite the athlete. She was, you know, she golfed. She even went skydiving once. And Scalia said, I think it was in Italy someplace. And he said he saw her up there, this little bit of a thing, and he wondered how she was ever going to get down.

Hannah McCarthy:
I had no idea. I'm utterly terrified of skydiving, so.

Nina Totenberg:
I would not even. It wasn't. It wasn't not skydiving. It was parasailing. It was worse. Okay.

Hannah McCarthy:
I want to pivot for just a moment to an audience question here. In the early years at NPR. What was it like for you, for Cokie, for Susan, and for Linda working in a male dominated newsroom?

Nina Totenberg:
It wasn't a male dominated newsroom. It was a female dominated newsroom. And I have and I have often said that the reason was that it was it was so different from any other place I'd ever worked. And the reason was that they paid so little. No man would take most of those jobs. And, you know, there was a there came a time when we were so. Relatively powerful within the structure of NPR, within the news structure that some of the guys referred. Cokie, Linda and I sat in a corner and we managed to commission a really old couch from somewhere else and put it in there so that other women would come and we would talk if there was an issue. And they were. And some of the men in the newsroom referred to it as the fallopian jungle. I always thought it was something of a compliment.

Hannah McCarthy:
So despite your dominance as women of this newsroom, you you still regularly benefited from the the support and the promotion of this sisterhood in the same way that Ruth Bader Ginsburg did from Justice O'Connor. Can you describe a bit what it was like to support one another, especially when sexism and misogyny were main stage in the workplace?

Nina Totenberg:
I never thought of it as misogyny. It was, but I never thought of it that way. I mean, because misogyny suggests you don't like women. Most of the men I knew liked women. They just didn't think that we should compete with them on an equal platform. And most of the men I encountered in the early years of my life in Washington did not consider me or any other woman that I knew as a person to be reckoned with. They. And they did that at their peril because they said very stupid things. And we quoted them. But also, you know, I mean, you just had to deal with the fact that the sexism was, by today's standards, insane. I mean, nobody would dare, for the most part, do what members of Congress did, and you had to figure out a way to deal with it. So I would get catcalled in the speaker's lobby when I would walk through and I would just ignore it. Or if sometime I had a very good source, a senator, who really was very helpful to me. And then one day I realized that he was pretty soon going to make a pass at me, and I had to figure out a way to deal with it. And I said to him, Oh, Senator, you remind me so much of my father.

Hannah McCarthy:
I read that, I thought I have to take a page out of this book.

Nina Totenberg:
Yeah.

Hannah McCarthy:
And. And can you just can you describe how how you and Cokie and Linda really did support one another, how you made sure that any attempt to keep women down was skirted by your efforts?

Nina Totenberg:
I remember at some point Mara LIASSON was off on a fellowship. And, you know, she came to NPR and she was in the beginning, she was a newscaster. And then I think she had just begun a little bit to cover Congress. And I can't remember the chronology of this, but she goes off on this fellowship and she's in Europe and they post a White House correspondents job. And I knew she would apply for that job if she were there, but I didn't know where she was. And I spent the better part of a day tracking her down in Germany. And I said, they've just posted this job. They'll undoubtedly close it because you're gone for a couple of months. They'll close it before you come back. You fax me because this was the still the day you fax me your application. And I will take it to the vice president for news, who was, of course, a man. And that way they couldn't just ignore her.

Hannah McCarthy:
I know this is a question you have been asked many times. Many people prior to my conversation with you said, Are you going to ask this question? How can you balance a close friendship with a Supreme Court justice of which you had a handful and fair and even reporting on the Supreme Court? I don't want to know the answer to that question. I want to know, is it possible to do the kind of reporting that you did without close intimate relationships with the individuals?

Nina Totenberg:
I'm not sure. I think my reporting was overwhelmingly enriched by knowing a large number of Supreme Court justices and knowing them more than that person sitting up on the bench. And I've always I get this. You know, Justice Ginsburg was definitely my closest friend and my longest friend. I, I knew her actually longer than Cokie and Linda, but I had other friends on the court who I knew for for a long time before they were on the court. Some more and more closer friends like Scalia and others were lesser. So like justice then Chief Justice Rehnquist, who I knew in the Nixon administration. So I had lots of friends on the court. And I'm always interested that people ask me about my. Liberal friend. Justice Ginsburg And they don't ask me, How could you be friends with Scalia? I could be friends with both of them because they were both, frankly, rather lovable people on a personal basis. And knowing them as a reporter enriched what I did for a living and knowing them on a personal level enriched my personal self.

Hannah McCarthy:
Now, I know you ask the question in your book. Could a a Ruth Nino, as he's affectionately called, relationship happen today? Could a relationship between Scalia and yourself happen today? And what does the answer to that question tell us. What is your answer to that question?

Nina Totenberg:
I don't actually 100% know. I do have conservative friends who who are judges and a couple who are now or in the past have been justices. But. I never have expected that I could be 100% objective. I don't think anybody can be objective. We all have personal opinions, but what we do is a trade. I mean, I know people would like say, oh, journalism to profession. It's also a trade and a craft. And part of that trade is to be fair. And if you write a piece, you really want to get all the basic viewpoints in. And if you don't do that, you're shortchanging your readers and listeners and you're shortchanging yourself as a professional.

Hannah McCarthy:
Now, an audience member asks if you know of any current cross ideology friendships on the Supreme Court, anything like Ginsburg's and Scalia's?

Nina Totenberg:
No, I don't. But. This is a pretty overall new court. And I know that, for example, Justices Gorsuch and Sotomayor actually have gone out of their way to try to build some sort of a personal bridge. They do that through they both work on Justice O'Connor's. It's called I civics, which is to promote civic education. And I'm not sure how successful they've been beyond that. But you got to start somewhere. And this is a court that is certainly the most conservative court that I've ever covered. But it's also remarkable in a different way. It's it's probably the most conservative court in 90 years, but it is totally different from any court I've ever covered because it has no center. There always were one, two or three justices who from time to time moved to one side or another in ideological battles. And that is no longer true, by and large. The chief justice very occasionally does. Not side with the other five conservatives to the extent that he doesn't want to go as far as they do. But beyond that, there is no center, and that makes this a very different court.

Hannah McCarthy:
And I wonder with a court where you have justices whose homes are patrolled for fear of violence against their families, who are issuing decisions behind barricades, are relationships like those that you have had with members of the court possible today between journalists and Supreme Court justices?

Nina Totenberg:
I guess we'll find out. I mean, I do have some. Some members of the court who I think of as friends, they're not as close friends as I. The relationships are not as close as my relationship with Justice Ginsburg or Justice Scalia or Justice Powell or Justice Brennan, for that matter. But. They haven't been there that long. When Justice Stevens retired, I remembered covering his confirmation hearing. So I have been there a very long time. So give me a little time.

Hannah McCarthy:
I do want to ask about a moment with Ruth. She had been in the hospital and she hadn't explained to you much about why she was there, what she was ill with. And when she came out, she said, Well, Nina, I didn't want you to feel trapped between your your commitment to your your job as a journalist and your friendship with her. And then you tell us that in the last 18 months of her life, you chose friendship. What did that mean practically for you?

Nina Totenberg:
What it meant was that my husband, David, was Justice Ginsburg's medical confidante, and I knew that they had confidential conversations, and I knew that I didn't actually even want to know what they were because I would be obligated to report them if I knew. But for 18 months. I knew that her health was precarious. I for a long time thought she might. As she had so often before be able to. Conquer cancer and live as long as she wanted to live, which was definitely past the 2020 election. And I guess in the last couple of months I came to realize that was. Unlikely, although you could never be sure. I mean, we've all known people who we thought were going to die very soon and they didn't. And the one thing I could see with my own eyes was that her brain power was the same. She was often frail, but her brain was not.

Hannah McCarthy:
You describe a court greatly changed over the past ten years and especially recently. And yet you affirm that, like Ruth, you were optimistic. I wonder, do you feel that way today? Do you feel optimistic about the court, about the work that you'll be able to do reporting on it?

Nina Totenberg:
Well, I'll be able to do reporting on it unless I get deathly ill or somebody poisons me. But for a time anyway. But I don't actually know what's going to happen to the court. I think it's a very perilous time for the court and it has, at least for now, lost a good deal of the faith that people had in it, due in large part to the abortion decision. And one decision is not going to end things for the court's cachet, so to speak. But even a decision is important as the Dobbs case. But as I said, this is a court that is more conservative than any other court, I think probably in 90 years. And that runs the gamut from social issues to technology issues to issues of. Some people say weaponizing even the First Amendment to issues involving regulation and all kinds of other things that we don't have time to talk about tonight. And I think that the justices, as I said earlier, don't exactly love each other at the moment and that it's a very perilous time for the group of them as a court. And I don't know where it's going.

Hannah McCarthy:
This has been an excerpt from my conversation with Nina Totenberg, legal affairs correspondent for NPR, longtime Supreme Court reporter and friend of the late Ruth Bader Ginsburg, who in part inspired Totenberg's 2022 book Dinners with Ruth. This conversation was recorded live before an audience at the Music Hall in Portsmouth, New Hampshire, for writers on the New England stage. A longer version of this conversation will be available at nhpr.org. And a big thank you to everyone who helped put that show together. The musical executive director, Tina Sawtelle, New Hampshire Public Radio president and CEO Jim Schachter, New Hampshire public radio producer Sara Plourde, the Music Hall production manager, Zhana Morris, The Music Hall Live Sound and recording engineer, Ian Martin, musical director and band Bob Lord and Dreadnaught and the Music Hall literary producer Brittany Wasson. This episode was produced by me, Hannah McCarthy. Nick Capodice is my co-host. Christina Phillips is our senior producer. Jacqui Fulton is our producer, and Rebecca Lavoie is our executive producer, producer, designer and all around great things person. Sara Plourde helped produce the show at the Music Hall. Music in this episode by the writers on a New England stage is produced in partnership with the Music Hall in Portsmouth, New Hampshire, and New Hampshire Public Radio, the production house of none other than Civics 101.

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Transcript

Hannah McCarthy: This is Civics 101, I’m Hannah McCarthy. In September of 2022 for a program called Writers on a New England Stage, a partnership between New Hampshire Public Radio and the Music Hall in Portsmouth, New Hampshire. I got to step on stage with National Public Radio's legal affairs correspondent Nina TOTENBERG. Nina had just written a book about her experiences as a journalist, [00:00:30] especially covering the Supreme Court and perhaps most importantly, forming a lifelong friendship with the late Supreme Court Justice Ruth Bader Ginsburg. That book is called Dinners with Ruth. I want to share a part of that conversation with the civics one on one audience, because, come on, how often do you get this close to someone who gets that close to the Supreme Court? So here I am with Nina Totenberg for writers on a New England stage. Thank [00:01:00] you. And Nina, thank you so much for being here with us tonight.

Nina Totenberg: It's really my pleasure. And I hope everybody gives to their local public radio station.

Hannah McCarthy: Now, I know that when you first started covering the Supreme Court, it was not considered important enough to be your full time job.

Nina Totenberg: Well, when I first was assigned to cover the Supreme Court in my earlier days, I had many other jobs [00:01:30] in print first. And then when NPR hired me, we had only one news program, and it was an hour and a half. It was all things considered in the evening and started at five, not four. And my beat was the Supreme Court, the Justice Department, the House and Senate Judiciary Committees. Any major legal scandal that broke or and live hearings that covered those kinds of things. Confirmation hearings, of course, and the intelligence community. [00:02:00] Oh, and I covered presidential and vice presidential campaigns a little bit also.

Hannah McCarthy: Yet you made the conscious decision to carve out a space for yourself covering the Supreme Court. Can you talk about what that was like? You're especially as a young journalist, a woman, a non-lawyer. How did you approach covering the Supreme Court?

Nina Totenberg: Well, when I first got assigned to cover the court, I worked for the the late Great National Observer, [00:02:30] which was a weekly publication published by Dow Jones, which at the time also owned The Wall Street Journal. And it was a weekly. And that made it much, again, much easier in the sense that I had time to do research and I would call anybody any time, anywhere to ask any question. There's one good thing about being young as a reporter. You're you understand that if you're going to do anything, [00:03:00] you just have to be willing to ask any question at all. And if it's a stupid question, so be it.

Hannah McCarthy: Speaking of questions, it's 1971. You were covering a case called Reed V Reed, and you discover that someone named Ruth Bader Ginsburg had written a brief for the ACLU for this case that was supposed to go before the Supreme Court. And you see that this woman's number is right under her name at Rutgers University. And you call this professor up. She's a law [00:03:30] professor at Rutgers. And that conversation is one that Ruth Bader Ginsburg would look back on and say, you know, that was our first conversation and we have been dear friends ever since. What about that conversation? Compelled Ruth to look back and say that was the beginning of that dear friendship?

Nina Totenberg: Well, certainly it was the beginning, but we weren't dear friends yet. She probably thought this this girl is asking me dumb questions, but she never [00:04:00] treated any of my questions as dumb. And that day I really didn't understand the the point she was making in the brief that women were covered by the 14th Amendment guarantee to equal protection of the law, because, after all, women didn't even have the vote when the 14th Amendment was enacted. And she spent an hour answering my questions and explaining to me what I needed to know, which basically boiled down to the 14th Amendment covers all persons and women are persons.

Hannah McCarthy: And [00:04:30] you were compelled to continue to call her back over and over again. I know. Well, anybody.

Nina Totenberg: Who would spend that kind of time with me, somebody was completely new on the beat. And it was just the beginning of what became her battle and the the architecture that she wrought to build the fight for women's rights in the courts. [00:05:00] So I understood that this was somebody I should be in touch with and talk to regularly. And eventually we met. We met at a very boring conference. And it was so boring that we left and went shopping. And I don't remember anything about the shopping, but I do remember a lot about that afternoon. So it was a friendship that grew slowly. I mean, she lived in New York then, so I didn't [00:05:30] see her very often, but eventually she moved to Washington when she was appointed to the Court of Appeals. And we became closer and closer friends over the years, until the last couple of years of her life, we were incredibly close because she needed me at that point. There were earlier times when I needed her in my personal life, and she always stepped right up to the to the plate. And so my husband and I stepped up to the plate for the [00:06:00] last part of her life.

Hannah McCarthy: I'd love to talk a little bit about that. You've described Ruth as being consistently stoic and internal and in utmost control, and that it took you a very long time to find that you had, in fact, become intimate friends, friends who needed one another. What was it that led you to see that? When did you truly know how close you had become?

Nina Totenberg: It's a really good question, [00:06:30] and I'm not sure I can answer it fully. I do remember that when she turned 50, her husband made a book of. Letters that he asked her friends to write to her and. I was quite surprised. He asked me because I didn't realize I was that. Not much of a friend to her. And so when I was writing the book, [00:07:00] I didn't have a copy of the letter. And my impression always was that it was a really pretty stupid letter. But I called up her daughter and asked her if she had that book. And she did. And she sent me the letter. And to my really great surprise, it was a pretty good letter. But I did sign the letter for some unknown reason. To me, maybe I thought she knew more than one. Nina. I signed it.

Hannah McCarthy: Nina TOTENBERG And [00:07:30] there's one piece of advice that Ruth passes on to you that I believe she received from her father in law, which was, as she is considering becoming a lawyer herself. He says to her, essentially, if you can do it, you'll do it. And if you can't, you can't. And and she from there on out would always ask herself, well, is this worth it? And if I answer yes, I will proceed and do it. And I wonder if you have applied that same [00:08:00] piece of advice to your life.

Nina Totenberg: I think so. You know, you do things that you have to in a in a job. Some things you're thrilled to be able to do and other things just go with the territory. And I don't think it it's that different for a Supreme Court justice even, and that it's a very good piece of advice her father in law gave her her mother in law gave [00:08:30] her even better advice, I think, on the day of their wedding. Her mother in law sat her down. By then, Ruth's mother was had died quite a few years earlier, and she sat her down and she said, Ruth, I want to give you the secret to a happy marriage and successful marriage. And Ruth said, What's that? And she said, It always pays to be a little deaf. And Ruth always said that that [00:09:00] was true on the court as well.

Hannah McCarthy: I love that one of your takes of the relationships on the Supreme Court is that it's a little bit like a marriage that's not doing so well, that if you decide to stay inside of it, you find a way to communicate, even if you disagree.

Nina Totenberg: Yes, I think that's that's right. I don't know how well they're doing at the moment, but and my sense is they're doing less well than usual. And [00:09:30] that goes not just because just liberals versus conservatives. I think the conservatives are not getting along all that well either because they have different ideas about how to interpret the Constitution, how to interpret statutes. They they don't always agree about that. And what they, of course, would like is a lot of they would like a place in the sun, each of them. And that means that things don't always go. Smoothly, [00:10:00] I guess you would say.

Hannah McCarthy: Now, I want to sort of pivoting back to your career a little bit. You've got a lot of good journalism stories throughout this book, including one in which you end up with a retaliatory FBI file because of a profile on Hoover. But, you know, after telling what is a great anecdote and admittedly funny you say, you know, now this is funny to think back on, but I, I worked really hard in journalism. I worked really hard in my career. [00:10:30] And I wonder in particular how that hard work ethic applied to reporting on a court, which to so many people is obscure, is, as you call it, the Marble Palace. How did keeping your nose to the grindstone push your way through those doors?

Nina Totenberg: Well, first of all, it was fascinating to me. I was never I've never been bored covering the Supreme Court. I'm occasionally bored reading legal briefs because they go on [00:11:00] and on and on and on. But the cases are not boring. And in fact, I sometimes have to say to myself, All right, you're going to have to skip that one. It's interesting to you, but it will not be interesting to most people, at least in the argument stage may be when it's decided. So you have to sort of triage what you're capable of writing about and what people are willing to pay attention to. Even when I was younger, I [00:11:30] was you know, I was almost always until I went to work at NPR, the only woman every place I worked, or one of two women. And even when I was covering the court for NPR, there were when I first started covering the court, there was one other woman. Eventually then she retired and there was, you know, Linda Greenhouse was [00:12:00] the, you know, covered the court quite a bit later than I started covering the court. But I was thrilled when she was there. Now, there are just as many women covering the court as there are men, but that was not true for a very long time. And it was and I wasn't a lawyer, so all I could do was work really hard to make sure I didn't embarrass myself and that I could earn something of a reputation for doing good work. [00:12:30]

Hannah McCarthy: And now this book is peppered with dinners. Dinners with Ruth. Yes, but also dinners with your friends and dinners with justices.

Nina Totenberg: And where are my friends other times? Who are.

Hannah McCarthy: Your friends? Absolutely. But here's what I mean to say. What what compelled you? What gave you the confidence the first time you ever invited a Supreme Court justice over for dinner? As a young reporter.

Nina Totenberg: I have no idea. [00:13:00] When I when I went back and I thought about it and I thought, who was the first justice I ever invited for dinner? And it was Lewis Powell, who was a very distinguished Southern gentleman in his sixties, maybe even a little older. But when I invited him to dinner, probably his sixties and his wife, Joe, probably it was because Joe had been so nice to me and had treated me [00:13:30] like a. As they say in Guys and Dolls. A poison. And. And so for some ungodly reason, I called up Justice Powell, and I asked if he and Joe would come for dinner. I was single. I was in my twenties. I. I had a little house I bought that was 13 feet wide. I [00:14:00] had another invited another couple. And I can't remember who they who it was. I made the dinner and served the dinner. And I don't I mean, I'm amazed that they said yes, they came. And you would have thought that I was dining. You know, they were dining at Buckingham Palace. The way they treated me, it was incredibly gracious of them. He he was always very generous with his time. He, like other members of the court, were [00:14:30] happy to eat lunch or dinner with me and. Not to talk about what they were doing at the time, but how they did it, how they ran their chambers, how they thought about things, how they approached them. I mean, I remember a lunch I had with Justice Scalia when he was first on the Supreme Court.

Nina Totenberg: I had known him for a good ten years before that. And [00:15:00] I said, So what's different? He'd been on the Court of Appeals. I said, So what's different from the Court of Appeals? And and it was very interesting. What he said was different. He said, well, there are a whole bunch of subjects that I have not given any thought to that don't come before the U.S. Court of Appeals for the District of Columbia. I've never I've never even thought about the 11th Amendment. Death penalty cases, by and large, don't come to the to the court. [00:15:30] And there were several other things. And I just had never even thought about that. And and he said, So I really have to think about them and think what I think for the first time. Of course, after a while, justices sort of know what they think about how to interpret this or that or the other thing. But situations change. In the early days when I covered the court, most of the cases were about civil [00:16:00] rights and and about the draft. Actually, there were a lot of big cases about the draft. Those cases don't those kinds of cases don't come up. They're different civil rights cases now. And there are all kinds of cases about now about that people are just starting to think about in a different way, about the First Amendment and technology and social media and the protections under the statutes, [00:16:30] subjects that the court deals with change over time, not just the personnel.

Hannah McCarthy: You're listening to an edited version of my conversation with Nina TOTENBERG, NPR legal affairs correspondent and close friend of the late Ruth Bader Ginsburg. We'll get right back to it after this break. But first, there is so very much that does not make it into the average Civics 101 episode. Luckily, [00:17:00] you don't have to miss any of it because our team puts it all together in the civics one on one newsletter. Extra Credit. You can subscribe at our website, civics101podcast.org. It's where all of the fun and or wildly tangential stuff goes that our executive producer, Rebecca Lovejoy, rightfully makes us cut from our episodes. Again, don't miss it. It's really good stuff. It's one of my favorite parts of our job Civics101podcast.org and subscribe to extra credit. We're [00:17:30] back and you're listening to a special episode of Civics one on one. I'm sharing part of my conversation with NPR legal affairs correspondent Nina TOTENBERG. Recorded for a live event called Writers on a New England stage at the Music Hall in Portsmouth, New Hampshire. And I asked Nina, essentially, what were conversations like with members of the court when she was not operating as a journalist?

Nina Totenberg: I think that most of [00:18:00] the members of the court lead. Relatively, relatively isolated lives. They don't call it, you know, the ivory tower for nothing. And some more than others, like social interaction and not just to talk about. Law, but to have friends and to talk about. Music and theater and maybe what's going on in in [00:18:30] sports, I mean, all kinds of things like that. I guarantee you, Justice Ginsburg did not want to talk about sports, however.

Hannah McCarthy: Even though she was quite a sporting woman.

Nina Totenberg: Oh, yeah. She was very she was quite the athlete. She was, you know, she golfed. She even went skydiving once. And Scalia said, I think it was in Italy someplace. And he said he saw her up there, this little bit of a thing, and he wondered how she was ever going to get down.

Hannah McCarthy: I [00:19:00] had no idea. I'm utterly terrified of skydiving, so.

Nina Totenberg: I would not even. It wasn't. It wasn't not skydiving. It was parasailing. It was worse. Okay.

Hannah McCarthy: I want to pivot for just a moment to an audience question here. In the early years at NPR. What was it like for you, for Cokie, for Susan, and for Linda working in a male dominated newsroom?

Nina Totenberg: It wasn't a male dominated [00:19:30] newsroom. It was a female dominated newsroom. And I have and I have often said that the reason was that it was it was so different from any other place I'd ever worked. And the reason was that they paid so little. No man would take most of those jobs. And, you know, there was a there came a time when we were so. Relatively powerful within [00:20:00] the structure of NPR, within the news structure that some of the guys referred. Cokie, Linda and I sat in a corner and we managed to commission a really old couch from somewhere else and put it in there so that other women would come and we would talk if there was an issue. And they were. And some of the men in the newsroom referred to it as the fallopian jungle. I always thought it was something of a compliment.

Hannah McCarthy: So [00:20:30] despite your dominance as women of this newsroom, you you still regularly benefited from the the support and the promotion of this sisterhood in the same way that Ruth Bader Ginsburg did from Justice O'Connor. Can you describe a bit what it was like to support one another, especially when sexism and misogyny were main stage in the workplace?

Nina Totenberg: I [00:21:00] never thought of it as misogyny. It was, but I never thought of it that way. I mean, because misogyny suggests you don't like women. Most of the men I knew liked women. They just didn't think that we should compete with them on an equal platform. And most of the men I encountered in the early years of my life in Washington did not consider me or any other woman that I knew as a person to be reckoned [00:21:30] with. They. And they did that at their peril because they said very stupid things. And we quoted them. But also, you know, I mean, you just had to deal with the fact that the sexism was, by today's standards, insane. I mean, nobody would dare, for the most part, do what members of Congress did, and you had to figure out a way to deal with it. So I would get catcalled [00:22:00] in the speaker's lobby when I would walk through and I would just ignore it. Or if sometime I had a very good source, a senator, who really was very helpful to me. And then one day I realized that he was pretty soon going to make a pass at me, and I had to figure out a way to deal with it. And I said to him, Oh, Senator, you remind me so much of my father.

Hannah McCarthy: I [00:22:30] read that, I thought I have to take a page out of this book.

Nina Totenberg: Yeah.

Hannah McCarthy: And. And can you just can you describe how how you and Cokie and Linda really did support one another, how you made sure that any attempt to keep women down was skirted by your efforts?

Nina Totenberg: I remember at some point Mara LIASSON was off on a fellowship. And, you know, she came to NPR and she was [00:23:00] in the beginning, she was a newscaster. And then I think she had just begun a little bit to cover Congress. And I can't remember the chronology of this, but she goes off on this fellowship and she's in Europe and they post a White House correspondents job. And I knew she would apply for that job if she were there, but I didn't know where she was. And I spent the better part of a day tracking her down in Germany. And I [00:23:30] said, they've just posted this job. They'll undoubtedly close it because you're gone for a couple of months. They'll close it before you come back. You fax me because this was the still the day you fax me your application. And I will take it to the vice president for news, who was, of course, a man. And that way they couldn't just ignore her.

Hannah McCarthy: I know this is a question you have been asked many times. Many people prior to my conversation with you said, Are you going [00:24:00] to ask this question? How can you balance a close friendship with a Supreme Court justice of which you had a handful and fair and even reporting on the Supreme Court? I don't want to know the answer to that question. I want to know, is it possible to do the kind of reporting that you did without close intimate relationships with the individuals?

Nina Totenberg: I'm not sure. I think my reporting was overwhelmingly enriched by knowing a [00:24:30] large number of Supreme Court justices and knowing them more than that person sitting up on the bench. And I've always I get this. You know, Justice Ginsburg was definitely my closest friend and my longest friend. I, I knew her actually longer than Cokie and Linda, but I had other friends on the court who I knew for for a long time before they were on the court. Some more [00:25:00] and more closer friends like Scalia and others were lesser. So like justice then Chief Justice Rehnquist, who I knew in the Nixon administration. So I had lots of friends on the court. And I'm always interested that people ask me about my. Liberal friend. Justice Ginsburg And they don't ask me, How could you be friends with Scalia? I could [00:25:30] be friends with both of them because they were both, frankly, rather lovable people on a personal basis. And knowing them as a reporter enriched what I did for a living and knowing them on a personal level enriched my personal self.

Hannah McCarthy: Now, I know you ask the question in your book. Could a a Ruth Nino, as he's affectionately called, relationship happen [00:26:00] today? Could a relationship between Scalia and yourself happen today? And what does the answer to that question tell us. What is your answer to that question?

Nina Totenberg: I don't actually 100% know. I do have conservative friends who who are judges and a couple who are now or in the past have been justices. But. I [00:26:30] never have expected that I could be 100% objective. I don't think anybody can be objective. We all have personal opinions, but what we do is a trade. I mean, I know people would like say, oh, journalism to profession. It's also a trade and a craft. And part of that trade is to be fair. And if you write a piece, you really want to get all the basic [00:27:00] viewpoints in. And if you don't do that, you're shortchanging your readers and listeners and you're shortchanging yourself as a professional.

Hannah McCarthy: Now, an audience member asks if you know of any current cross ideology friendships on the Supreme Court, anything like Ginsburg's and Scalia's?

Nina Totenberg: No, I don't. But. This is a pretty overall new court. [00:27:30] And I know that, for example, Justices Gorsuch and Sotomayor actually have gone out of their way to try to build some sort of a personal bridge. They do that through they both work on Justice O'Connor's. It's called I civics, which is to promote civic education. And I'm not sure how successful they've been beyond that. But you got to start somewhere. [00:28:00] And this is a court that is certainly the most conservative court that I've ever covered. But it's also remarkable in a different way. It's it's probably the most conservative court in 90 years, but it is totally different from any court I've ever covered because it has no center. There always were one, two or three justices who from time to time moved [00:28:30] to one side or another in ideological battles. And that is no longer true, by and large. The chief justice very occasionally does. Not side with the other five conservatives to the extent that he doesn't want to go as far as they do. But beyond that, there is no center, and that makes this a very different court.

Hannah McCarthy: And I wonder with a court where you have justices whose [00:29:00] homes are patrolled for fear of violence against their families, who are issuing decisions behind barricades, are relationships like those that you have had with members of the court possible today between journalists and Supreme Court justices?

Nina Totenberg: I guess we'll find out. I mean, I do have some. Some members of the court who I think of as friends, they're [00:29:30] not as close friends as I. The relationships are not as close as my relationship with Justice Ginsburg or Justice Scalia or Justice Powell or Justice Brennan, for that matter. But. They haven't been there that long. When Justice Stevens retired, I remembered covering his confirmation hearing. So I have been there a very [00:30:00] long time. So give me a little time.

Hannah McCarthy: I do want to ask about a moment with Ruth. She had been in the hospital and she hadn't explained to you much about why she was there, what she was ill with. And when she came out, she said, Well, Nina, I didn't want you to feel trapped between [00:30:30] your your commitment to your your job as a journalist and your friendship with her. And then you tell us that in the last 18 months of her life, you chose friendship. What did that mean practically for you?

Nina Totenberg: What it meant was that my husband, David, was Justice Ginsburg's medical confidante, and I knew that they had confidential conversations, and I knew that I [00:31:00] didn't actually even want to know what they were because I would be obligated to report them if I knew. But for 18 months. I knew that her health was precarious. I for a long time thought she might. As she had so often before be able to. Conquer cancer and live as long as she wanted to live, [00:31:30] which was definitely past the 2020 election. And I guess in the last couple of months I came to realize that was. Unlikely, although you could never be sure. I mean, we've all known people who we thought were going to die very soon and they didn't. And the one thing I could see with my own eyes was that her brain power was the same. She [00:32:00] was often frail, but her brain was not.

Hannah McCarthy: You describe a court greatly changed over the past ten years and especially recently. And yet you affirm that, like Ruth, you were optimistic. I wonder, do you feel that way today? Do you feel optimistic about the court, about the work that you'll be able to do reporting on it?

Nina Totenberg: Well, I'll be able to do reporting on it unless I get deathly ill or somebody [00:32:30] poisons me. But for a time anyway. But I don't actually know what's going to happen to the court. I think it's a very perilous time for the court and it has, at least for now, lost a good deal of the faith that people had in it, due in large part to the abortion decision. And one decision [00:33:00] is not going to end things for the court's cachet, so to speak. But even a decision is important as the Dobbs case. But as I said, this is a court that is more conservative than any other court, I think probably in 90 years. And that runs the gamut from social issues to technology issues to issues [00:33:30] of. Some people say weaponizing even the First Amendment to issues involving regulation and all kinds of other things that we don't have time to talk about tonight. And I think that the justices, as I said earlier, don't exactly love each other at the moment and that it's a very perilous time for [00:34:00] the group of them as a court. And I don't know where it's going.

Hannah McCarthy: This has been an excerpt from my conversation with Nina TOTENBERG, legal affairs correspondent for NPR, [00:34:30] longtime Supreme Court reporter and friend of the late Ruth Bader Ginsburg, who in part inspired Totenberg's 2022 book Dinners with Ruth. This conversation was recorded live before an audience at the Music Hall in Portsmouth, New Hampshire, for writers on the New England stage. A longer version of this conversation will be available at npr.org. And a big thank you to everyone who helped put that show together. The musical executive director, Tina Satel, New Hampshire Public Radio president and CEO Jim [00:35:00] Schachter, New Hampshire public radio producer Sara Plourde, the Music Hall production manager. Gina morris The Music Hall Live Sound and recording engineer. Ian Martin, musical director and band Bob Lord and Dreadnought and the Music Hall literary producer Brittany Wasson. This episode was produced by me, Hannah McCarthy. Nick Capodice is my co-host. Christina Phillips is our senior producer. Jackie Fulton is our producer, and Rebecca Lovejoy is our executive producer, producer, designer and all around great things person. Sara Plourde [00:35:30] helped produce the show at the Music Hall. Music in this episode by the writers on a New England stage is produced in partnership with the Music Hall in Portsmouth, New Hampshire, and New Hampshire Public Radio, the production house of none other than Civics. One, two, one.

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Taking The Fifth: When What You Say Could Be Used Against You

What does "taking the Fifth" mean? If you've been suspected of a crime, how and when do you use your rights under the Fifth Amendment?

The Fifth Amendment's self-incrimination clause says that no person "shall be compelled in any criminal case to be a witness against himself." Basically, it means that the government, or law enforcement, can't force you to talk to implicate yourself in a crime. However, what that looks like in practice... is a little more messy.  When do you have a right to remain silent? When do you become a suspect? What does compulsion look like? Can your silence be used against you? 

We talk about how the Supreme Court has interpreted these questions, and how to exercise Fifth Amendment right when you are interacting with law enforcement, with Tracey Maclin, a professor of Constitutional law and Constitutional criminal procedure at the University of Florida's Levin School of Law, and Jorge Camacho, a clinical lecturer on law and policing at Yale University, where he is the policy director of the Yale Justice Collaboratory. 

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Transcript:

Clip: The department was forced to drop the charges because you forgot to read him his Miranda rights. What possible reason is there for not doing the only thing you have to do when arresting someone?

Nick Capodice: Hannah. Name me one thing you can count on seeing. And just about every movie or TV show that has anything whatsoever to do with crime.

Hannah McCarthy: Bad station coffee. Or, like, good cop, bad cop. Right. You have the right to remain silent. Miranda rights, right? Yes.

Clip: I did read him as I did a version of that. Do you even know the Miranda rights? Yes. Let's hear them then.

Nick Capodice: This Miranda warning is the way that most people understand their right under what is called the self-incrimination clause of the Fifth Amendment. The actual language of the clause is this: A person shall not, quote, "be compelled in any criminal case to be a witness against himself."

Hannah McCarthy: I feel like I plead the Fifth is a part of this, right? I'm actually really excited to talk about this because I think I know on a basic level that if law enforcement arrests someone, they tell the person that that person has the right to remain silent and the right to an attorney. But I don't really know why or how that's supposed to work or in what situations that applies, what the consequences might be. There seem to be a lot of what ifs here, is what I'm saying.

Nick Capodice: I think you might know where I'm going here, Hannah. While we as a public may think we understand what it means to not incriminate yourself, the legal interpretation is a lot more complicated. And in order to understand what that means, we can't just talk about the Miranda warning because that is only a tiny piece of how the self-incrimination clause works. So that is why today we are talking about the Fifth Amendment, but we're not talking about the whole Fifth Amendment. Hannah, we're going to talk about this one clause, the most famous one in the fifth, the self-incrimination clause. It is less than a sentence, but textbooks worth of history.

Jorge Camacho: It becomes complicated when you realize that virtually every word in that sentence is subject to interpretation.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today on Civics 101, we're going to talk about the self-incrimination clause of the Fifth Amendment. When it applies, when it doesn't, and why The answers to these two seemingly simple questions are not so simple after all.

Clip: So do you read Miranda as saying that there cannot be questioning unless the judge says, You know, I don't really want to answer that question. What if he said, Do you want to remain silent? So what if a person says, I'm not waiving, but I'm not saying that I so let's say he's answering the questions. All of a sudden he gets a particular question and he says, you know, I think there are several questions around what if there was no interrogation?

Clip: It's important to have a clear rule here because.

Clip: Invocation does effectively sound like a.

Clip: Clear rule.

Nick Capodice: Before we jump into this one clause, Hannah, we are a show about the basics of how our democracy works. So we'd be remiss if we didn't quickly go through what the whole Fifth Amendment says. So, Hannah, would you do the honors and read the amendment for me?

Hannah McCarthy: Yeah, sure. No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when an actual service in time of war or public danger. Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation. That's a lot of clauses.

Nick Capodice: Sure is. It's a lot. And to put it as simply as possible, you have a right to a trial by jury. With the exception of military cases, you can't be punished for the same crime twice. With some exceptions, you can't be forced to implicate yourself in a crime. You must be treated fairly under the law. And the government can't just take your property for its own use without paying you for it.

Hannah McCarthy: You're already saying things like, with some exceptions in most circumstances, which tells me that there is a lot of potential for interpretation throughout this whole amendment.

Nick Capodice: And I'm trying to avoid a five hour episode for everyone's well being.

Hannah McCarthy: Okay fair. When it comes to how the Constitution is put into practice, there is a narrow interpretation and then there are broader interpretations, like, for example, a narrow interpretation of the rule that a paper is due at midnight would be that you can only submit that paper at midnight, no earlier, no later at midnight, as opposed to how most of us would interpret it, which is just get the paper done any time before midnight. Can we start with what the Supreme Court and lawmakers might see as the most narrow interpretation of this idea that a person cannot be, quote, compelled in a criminal case to be a witness against himself?

Jorge Camacho: In a very narrow sense. That clause just basically means you can't be called to the witness stand at a trial where you're the criminal defendant and be required to testify in that trial.

Nick Capodice: That's Jorge Camacho, a clinical lecturer at Yale Law School and the Yale Justice Collaboratory.

Hannah McCarthy: So if you've been charged with a crime, you can't be forced to sit on the stand and talk to the prosecutors. You can do that, but you can't be forced to.

Nick Capodice: Yeah. And when we were talking about crime, we specifically mean when a law has been broken, we're not talking about civil cases or a dispute between two people or groups. The two sides here are the law. That's the government and you and also the Fifth Amendment only applies to testimonial evidence.

Tracey Maclin: Well, what does that mean? That means that it has to relate to or concern communications coming from the person's mind.

Nick Capodice: This is Tracey Maclin. He's a professor at the Levin School of Law at the University of Florida, where he teaches constitutional law and constitutional criminal procedure.

Hannah McCarthy: What does he mean when he says communications coming from your mind?

Nick Capodice: It might be easier to understand that by talking about what doesn't count as testimonial evidence, meaning physical evidence.

Tracey Maclin: Physical evidence is not testimonial within the meaning of the Fifth Amendment because it doesn't relate to the workings of your mind. It's just about your body. So forcing blood from you or forcing you to stand in a lineup to forcing you to say, put the money in the bag, compelled handwriting or voice exemplars are not are not testimonial within the meaning of the Fifth Amendment. And then finally forcing you to put on a piece of clothing.

Hannah McCarthy: Okay. But that narrow interpretation where the self-incrimination clause only applies to testifying on the stand doesn't account for everything that happens before a trial. Like when law enforcement interrogates you after arresting you. And yet we still have the Miranda warning, which says that, quote, You have the right to remain silent. So I'm guessing that this narrow interpretation is pretty obsolete.

Tracey Maclin: But the problem with that interpretation of the Fifth Amendment, it makes no sense because when the Fifth Amendment was placed in the Constitution in 1791, criminal defendants couldn't testify because they were considered to be biased, which they obviously were. So I think the language itself is set out in a broad manner. Now, you could use the language to say, well, only when. Only when a person is actually put on trial and forced to take the witness stand, do you trigger the Fifth Amendment. That's not how we interpret it, and that's not how the court has interpreted the clause for a very, very long time.

Nick Capodice: And that broader interpretation of when the Fifth Amendment is, as Tracey says, triggered, is basically the rest of this episode. But before that, I want to quickly talk about why the framers wanted this right enshrined in the Bill of Rights in the first place. Like so many other things, it all goes back to how the framers resisted recreating the kind of tyrannical government they saw as problematic in England.

Tracey Maclin: In the 16th and 17th century. The self-incrimination clause, what we often refer to as the Fifth Amendment, was designed to protect religious and political dissenters who were called before judges and sometimes legislatures and questioned about their religious beliefs or their political beliefs.

Jorge Camacho: The framers of the Constitution, where this protection is written, were concerned with abuses, abuses of power by the state against individual citizens and individual residents of a country. They were concerned with kind of the the history of abuse that they had seen, especially in England over the course of many centuries, where the crown, the government in England would often use its power in an ultimately unfair way and oftentimes abusive way against individuals, including, for example, forcing those people to offer incriminating evidence against themselves in trials where they're the defendant and they're the ones subject to punishment.

Hannah McCarthy: All right. So this clause is vague. And we've agreed that over the course of history, it is not limited to testifying in a trial. So when does this right to not incriminate yourself actually apply? Does it start the moment law enforcement says you're under arrest?

Nick Capodice: Yeah, This is where the clause starts to get messy. Meaning the way the Supreme Court has interpreted the clause is messy. So let's start with that question of when this Fifth Amendment right kicks in is triggered or in legalese, attaches. Looking at the language of the self-incrimination clause, we mean the point at which you could argue the government is, "compelling you."

Jorge Camacho: I think the clearest answer we have so far, which is still not very clear, is that the right attaches whenever your interactions with the state or with law enforcement specifically become adversarial. What that usually means is that once it's clear to the state that they view you as an adversary, like being a criminal suspect in a case, then your right against self-incrimination certainly attaches, then.

Nick Capodice: This is the point where you start being seen as a suspect. Law enforcement thinks you may have committed a crime. And the reason we have the Miranda warning in the first place is because up until 1966, law enforcement didn't necessarily need to notify you of your right not to speak with them or your right to have legal counsel.

Jorge Camacho: Yeah. So the case that really brought the Fifth Amendment and the self-incrimination clause to the modern era was Miranda versus Arizona. This is a 1966 Supreme Court case, which, again, if you've watched any police procedural in the last 50 years, you've seen you've heard some version of the following. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you can't afford one, one will be provided to you free of cost. This is a set of warnings that the Supreme Court has mandated all police officers to say to provide to anyone that they are about to interrogate in a custodial setting.

Hannah McCarthy: A custodial setting, meaning the police have taken you into custody.

Nick Capodice: Right. In 1963, police suspected that a man named Ernesto Miranda had committed a kidnaping and a rape. So they arrested him and interrogated him for 2 hours and eventually got a written confession. The police officers admitted they hadn't told Miranda about his right to have an attorney present during interrogation, but the confession was still used in his trial and he was found guilty. Miranda then appealed, saying that law enforcement had never informed him of his rights to remain silent or his right to an attorney, meaning his confession wasn't voluntary.

Clip: But the question is, is not so much whether he should have a lawyer in the station house with him sitting beside him during interrogation or whether he could telephone, but whether the state is constitutionally obliged to advise him that he has a right to consult an attorney before being questioned.

Nick Capodice: The Supreme Court decided that Miranda was correct. A prosecutor cannot use testimony by a defendant unless law enforcement had informed that person. Of their right to remain silent and their right to an attorney. And they took it a step further by saying that the prosecutor had to prove that the person had voluntarily waived those rights.

Tracey Maclin: Prior to Miranda, police officers would arrest people sometimes on their rights, but sometimes not tell them their rights. And they would say things to them that would suggest that the person would be much better off speaking than not speaking. This is an instance in which the Supreme Court said that where you're under arrest and where you're interrogated, the government has to inform you of your right to remain silent and the knowledge that if you do speak, it can be used against you. So that that was that was a situation where the Supreme Court, if you will, draw a line in the sand and said this is compulsion. And it was a very I don't want to say radical, but it was it changed the approach that police officers and detectives specifically had to take when they interrogate people.

Hannah McCarthy: Okay. That makes sense, because that's a pretty clear instance of when your interaction with law enforcement has become adversarial. But once you're in custody, does that mean you just don't have to answer questions like, what if law enforcement is just talking to you casually but not doing something that sounds or looks like they're interrogating you?

Nick Capodice: I think you know what I'm going to say about this, Hannah?

Hannah McCarthy: That it's up for interpretation.

Nick Capodice: Yeah. There have been a number of Supreme Court cases where the main question essentially is what counts as an interrogation and what doesn't.

Jorge Camacho: So, for example, if I ask you a question in a custodial setting and you are, it's clearly that this is a custodial situation. Yes, that almost certainly constitutes interrogation. You're not free to leave. You are my suspect in this case. I'm asking you a question about that case. That's interrogation. But let's say, for example, I don't ask you a question. I just make a comment. I make an observation. And you, after hearing that comment, respond, does that constitute interrogation? I didn't ask you anything. I just said something and you responded to it. The court has struggled with that question. Again, some justices say, well, yes, that can and should be interrogation, because if it's a statement intended to elicit a response from the suspect, then how could it not be interrogation? In other scenarios, however, it may not be considered interrogation.

Hannah McCarthy: What does this look like in real life?

Nick Capodice: One example I'm going to give you is the Supreme Court case, Rhode Island v Innis 1980.

Jorge Camacho: In this case, a man named Thomas Innis was arrested after being accused of robbery by a taxi driver. Mr. Innis was informed of his Miranda rights by the police officers. He exercised his right to remain silent and requested a lawyer. So it was clear that no interrogation could follow before he at least saw his lawyer.

Hannah McCarthy: So if someone says, I want to speak with an attorney, then law enforcement is not supposed to question them.

Nick Capodice: Right. And technically, the officers did not question Innis.

Jorge Camacho: As Mr. Innis was being transported. Officers who were in the car with him started talking to one another with Mr. Innis in the back seat. Even though Mr. Innis had been arrested for this robbery, they couldn't find the gun that he had used in the robbery. Presumably he had discarded it in order to evade having the gun on him. When he was found, one of the officers made a comment within earshot of Innis in the back seat that he wanted to get the gun out of the way because the kids in the area of the school could find it. Upon hearing this, Innis then led the officers to an area near some rocks and pointed them in the direction of the gun where it was recovered and used in evidence against him at his trial. And it's later contested the the admissibility of that gun at trial.

Hannah McCarthy: So what did the Supreme Court decide?

Jorge Camacho: The majority of the court held that this wasn't interrogation, that the officers speaking to themselves, even if they knew that Innis could hear them, and even with the kind of obvious understanding that anything that they might say to one another could elicit a response from him that was not interrogation.

Nick Capodice: Essentially, the Supreme Court said that even though the officers had arrested Innis, informed him of his rights and he had requested an attorney, they could still speak about the crime in his presence without violating his Fifth Amendment right. Requesting an attorney is a way to clearly invoke your Fifth Amendment right to remain. Remain silent and to signal your plan to do so. But that doesn't mean police officers have to remain silent or stop talking to you.

Jorge Camacho: Yeah. So they're saying that the conversation between the two officers about how it'd be a terrible shame if a little girl found this gun and shot herself, that that statement was not interrogation, because in part it wasn't directed at Innis and because it's not necessarily the case that that statement, even if heard by Innis, would prompt any kind of response from him or that he would know to respond to it. It's certainly a play on Innis conscience, an attempted play at his conscience in order to get him to direct them to where the gun is. But it's not as clear as simply asking him, Innis, where is the gun? Can you point us to it? It's less than that. And so it's therefore not interrogation in this case.

Hannah McCarthy: All right. What I'm hearing is that if you have been read your rights, basically anything you say could be held against you, even in a situation where you've invoked your right to remain silent and requested an attorney.

Nick Capodice: Yeah. And it's worth noting here that this case, like Miranda, was pretty controversial, even though the justices agreed on the fact that the Fifth Amendment protects you from being compelled to speak under interrogation. This decision still caused controversy among justices about the definition of interrogation itself.

Jorge Camacho: This decision elicited a very sharp dissent by Thurgood Marshall, who called out the court for kind of the inexplicable nature of their of their holding. And he said, I am substantially in agreement with the court's definition of an interrogation, but I'm utterly at a loss to understand how this standard, as applied to the facts before us, can rationally lead to the conclusion that there was no interrogation. So he's saying we're all on the same page about what constitutes an interrogation. We agree on what that formula or definition is. So why is it that we're coming to two complete different conclusions about whether or not this was an interrogation? In Justice Marshall's view, he had the understanding that any statement you make to someone in custody that you can naturally assume is going to elicit a response from them is interrogation. It's a form of questioning. But here we have the Supreme Court, a majority of the Supreme Court saying, no, it's not an interrogation.

Nick Capodice: My take on what Marshall is acknowledging here is the authority that law enforcement has when they've taken a person into custody. The fact that there is an inherent power dynamic there that must, in his view, be considered when deciding if a person feels compelled to speak whether or not the police are asking questions about a crime. And actually, back to when Miranda was decided, there was criticism from legal scholars that Miranda itself didn't more clearly define what law enforcement could and could not do when they've placed someone in custody beyond informing them of their rights.

Tracey Maclin: The Supreme Court could have said that fact was urged by the ACLU to say police should not be allowed to interrogate anybody who's under arrest until they've had a chance to speak with their lawyer. Because if you really want to protect the Fifth Amendment right, you need to see your lawyer who will tell you in no uncertain terms or a lawyer, he or she will tell you under no circumstances do you talk to the police. No circumstances. But Miranda didn't go that far. They were urged to go that far. And frankly, I think they should have gone that far. But they didn't go that far because they didn't want to choke off interrogation entirely. They wanted to put the ball in the court of the arrestee. And I think it's fair to say that Chief Justice Warren and the majority thought that once these warnings are given to most people, they will invoke their rights and they won't talk. Well, it turns out that the Supreme Court, if this was part of their calculus, miscalculated. 80% of people who are arrested and given Miranda warnings, waived their rights and talk to the police.

Hannah McCarthy: 80% seriously.

Nick Capodice: That is according to a study from 1991. And there are a number of reasons why people might talk to police even after being read their rights, for example, they might not fully understand their rights. There are barriers due to any number of reasons, everything from their lack of familiarity with the law to their age, language skills, level of cognition. And the Supreme Court has given law enforcement a lot of freedom to do everything in their power to get you to waive those rights, including deception and appealing to your emotions. And we're going to get to all of that right after this break.

Hannah McCarthy: But just before the break, we have a fairly new development here at Civics 101. We have a quiz paired with every weekly episode that you can find at civics101quiz.com. It's basically a great way to see what you learn by listening to our Civics 101 episode or a really good excuse to listen again. Again, you can find that at civics101quiz.com.

Hannah McCarthy: We're back. This is Civics 101. And we're talking about the self incrimination clause of the Fifth Amendment. And we were just discussing the fact that, according to Tracey Macklin, 80% of people waive their Fifth Amendment rights to not self incriminate, meaning they decide to speak with police while they are under suspicion of a crime without an attorney present. Nick, what has the Supreme Court said about what law enforcement can or cannot do to get you to waive those rights?

Nick Capodice: Well, one interpretation comes from a case called Berghuis v Thompkins. In 2010.

Tracey Maclin: Thompkins was arrested for murder. He was given his Miranda warnings. He was also told that he could invoke his rights at any time. And he was then asked to decide, as some suspects are, to sign a form acknowledging that he had been given his rights. He refused to sign the form. Okay. But he didn't invoke. He never said, I don't want to speak with you or I want to remain silent. I want to see my word. He just sat there silent, and he sat there silently for 2 hours and 45 minutes. At one point, he may have commented that the chair was uncomfortable and he was asked if he wanted a peppermint or something along those lines, and he said no.

Hannah McCarthy: So he didn't sign the form saying that he had been read his rights, but he also did not talk to police.

Nick Capodice: Right. And since we're talking about laws here, we're going to be really specific for the record. There is some disagreement on exactly how long he was interrogated for. Case law says 3 hours. You'll hear Tracey refer to it as 2 hours, 45 minutes. And in the oral arguments in front of the Supreme Court, justices say two and a quarter hours.

Tracey Maclin: Finally, after 2 hours and 45 minutes, he was asked by one of the detectives whether he believed in God, which Thompkins replied that he did. And then he was asked. And at this point, as I started welling up a little bit in tears, he asked, Do you pray to God? And he said, Yes, I do. And then the detective asked him, Do you pray to God to forgive you for shooting down that boy? And Thompkins answered that he did, and he looked away. And then there was no more no more comment statements from Thompkins. The state took those statements. Do you believe in God? Do you pray to God? And then, of course, the final statement, which was the one that was terminated, do you pray to God for forgiveness for shooting down that boy? That was incriminating. And they used that at his trial and he was convicted of murder. And Thompkins said, well, I had asserted my right to remain silent by being silent for 2 hours and 45 minutes. So you shouldn't be allowed to use that statement. And additionally, Thompkins argued that they never got a waiver. They never got a waiver from me after giving me my Miranda rights. Now, the Supreme Court had two responses. First, they said, no, you didn't remain silent.

Clip: Do we have any case that says that two and a quarter hours is too long? No. And in fact, there can't be a waiver after two and a quarter hours.

Clip: No, there's no case.

Clip: And therefore, there's no clearly established Supreme Court law that two and a quarter hours is too long.

Hannah McCarthy: Okay. But what about the waiver? He never signed the waiver that says, yes, I was read my rights.

Tracey Maclin: And then with respect to the question about the waiver, now, again, police detectives had been trained that in order to get a statement from a guy, you've got to give them a word of warnings and also get a waiver. And that is what the Supreme Court had said back in 1966 when they decided Miranda, and that was how much of the lower court approached this issue. Well, the Supreme Court said that the statement, his response, yes, would ask, do you pray to God for forgiveness for shooting down that boy, that act as both an incriminating statement and the waiver in and of itself? And so by answering that question in the affirmative, not only do you incriminate yourself, but you also waived your rights. Now, Thompkins was a 5-4 decision, some would say. I would say that it turns the Fifth Amendment generally and Miranda Doctrine specifically on its head, because Thompkins remained silent for 2 hours and 45 minutes. But the upshot of Thompkins, as far as the Supreme Court is concerned, if you want to remain silent, you better speak, which is a little counterintuitive, particularly to people who don't understand the law and aren't able to do the mental gymnastics that lawyers and law professors do.

Hannah McCarthy: So what I'm getting from this is that at any point when you are in custody, you could waive your rights even implicitly. And that law enforcement really wants you to do that and can sit there with you or talk to you or ask you questions to try to get you to waive them by opening up.

Tracey Maclin: And certainly the police officers are not going to act in your best interests, police officers generally, and certainly detectives, because there's mostly detectives who are doing these interrogations. Their job is to get a statement from you. They may pretend and act as if, well, we're there for your best interest. No, they're not. They are there to get a statement from you or to get you to incriminate yourself, whether you're guilty or innocent.

Nick Capodice: And law enforcement has been given a lot of latitude on how they might go about getting statements from people in custody.

Hannah McCarthy: So is law enforcement allowed to lie to you?

Nick Capodice: Again, this has been interpreted differently in different cases. But essentially, yes. Yes, they are.

Jorge Camacho: There's a lot of criticism of police interrogation techniques and, you know, things like the good cop bad cop routine and whether or not those tactics are coercive to the point of overcoming someone's will and making their statement involuntary under the Fifth Amendment. One of the tactics that Supreme Court has recognized as being permissible, as what they allow to happen, is lying. Police officers are allowed to lie. They're allowed to within within certain bounds, but very few bounds. They're allowed to play on your sympathies. They're allowed to kind of use your silence against you in a psychologically manipulative way. So, for example, let's say I'm a police interrogator and I have a suspect in front of me who has not answered a single question that I'm asking despite my attempts to get them to respond. And I say, hey, listen, I understand that you may not want to talk to me right now, but put yourself in my position right now. Let's say you're the interrogator and you know that I know something about this crime, but I'm just not telling you. What does that make me look like to you? That makes me look suspicious, right? So you understand if I see you as suspicious. Right. But let's say you didn't have anything to do with this, then there's no harm in you. Just answering my questions, and then person responds. And once you get that rapport going, once you get that correspondence going, it can be very, very hard to resist the interrogation tactics of a trained police interrogator. And the Supreme Court has said, well, they didn't do anything to overcome your will. Yes, they may have convinced you to start talking. And yes, while you started talking, you may have made an incriminating statement. But that's not against the Constitution. The Constitution doesn't prohibit that. That can make it really, really, really difficult for you as the person being subjected to interrogation. You can make it difficult for you to know whether or not what the police is doing is proper or improper, whether or not your rights are being violated or respected. And again, for courts, it's oftentimes no clearer for them either.

Nick Capodice: Not to mention the fact that a lot of people are not necessarily legal experts. And aside from reading you your Miranda rights. Law enforcement isn't required to clarify what is and what is not within the bounds of those rights. Furthermore, requesting to speak to an attorney isn't as simple and straightforward as it might seem.

Tracey Maclin: Well,  you have a right to consult with a lawyer after you've been under arrest. But if you ask for a lawyer. Most police departments are not going to give you a lawyer because they don't have counsel standing by, sitting in the back room waiting to advise people. So if you if you're arrested, you're given your Miranda warnings, you ask for a lawyer, they're going to shut it down. And you're going to eventually get to be in front of a judge and the judge is going to appoint you a lawyer if you're indigent.

Nick Capodice: And if you can afford a lawyer, at least in the eyes of the court, you still need to find one and pay for their services.

Hannah McCarthy: To that point on TV and in movies, we see it all the time when someone is arrested and they say, I want to speak to an attorney. And law enforcement might say something like, Why do you need a lawyer if you're innocent? There's this idea that by not speaking to law enforcement, by asking for a lawyer, it makes it look like you're guilty. Can your choice to remain silent or your request for a lawyer be used against you in a court?

Nick Capodice: Well, I got a case just about this. Hannah. Griffin v, California, 1965. The Supreme Court addressed the question of whether the fact that you invoked your Fifth Amendment rights after being arrested can be used against you in trial.

Tracey Maclin: Griffin was a case in which Mr. Griffin was tried for murder. He was the last person to have seen the victim, and Griffin didn't testify. And so the prosecution or the prosecutor said to the jury, well, we don't know what happened to the victim, but we do know that the last person to see the victim alive was the defendant, Mr. Griffin. But Mr. Griffin won't take the stand and tell us what he knows about the victim and what may or may not have happened. And so you should draw an adverse inference. In other words, you should infer some degree of guilt by the fact that Griffin refused to tell us what he knows. Supreme Court said that's compulsion. That's compulsion within the meaning of the Fifth Amendment because it's kind of damned if he does, damned if he doesn't. Because if Griffin were to take the stand, he would be forced to answer questions on the cross-examination, which probably would have incriminated. But if he chooses not to take the stand, if he chooses to rely on the right that the text of the Fifth Amendment gives him, he still being incriminated is still going to be used against him. In this case, the incriminating evidence is the prosecution asking the jury to draw an adverse inference, in other words, to infer his guilt. That's substantive evidence of guilt. So it's damned if he do, damned if he doesn't. Supreme Court said in Griffin that that was compulsion within the meaning of the Fifth Amendment.

Nick Capodice: However, this doesn't necessarily apply if you haven't yet been taken into custody. For example, the police asked to speak with you about a crime as a witness or to gather more information and you volunteer to talk with them. This much more recent interpretation is found in Salinas, v, Texas, from 2013, where law enforcement suspected that a man named Salinas had committed a murder, but they didn't have enough evidence to arrest him. So they asked him to just come down to the station to have a chat. And in that instance, there wasn't a clear compulsion because he came voluntarily. And by the way, Tracey says, you don't have to do this and it's wise not to do so.

Tracey Maclin: Foolishly, Salinas went down to the police station. He went there voluntarily. He wasn't it wasn't under arrest. He wasn't being detained. He wasn't told he must come down to the police station. But he went there voluntarily and they peppered him with a few questions that weren't related to the murder. And then one of the detectives said to them, well, if we take that gun that your father gave us and we run a ballistics test on it, will it show that this was the gun, this was the weapon that was used to kill the victims? At that point, Salinas shut up. He looked down and kind of shuffled his seat, but he refused to answer the question. And the police let him go. He was eventually tried for murder. And at the first trial, the jury hung. At the second trial, the prosecution did something that they didn't do at the first trial. And what they did was they put the officer on the stand and they asked him about Salinas' reaction to the question with respect to the ballistics test. And the officer said, well, he wouldn't answer that question. He remained silent. And then the prosecutor, she argued to the jury during her summation that an innocent person would have answered that question. And an innocent person would have said, Well, of course not that the ballistic test is not going to come back and say that this was a rifle. I didn't do it. Well, this time Salinas was convicted and he appealed his case to the Supreme Court of the United States. And the question was, can a prosecutor use a person's silence as substantive evidence of guilt? It's kind of similar to the question we discussed earlier with Griffin when we we talked about whether or not a prosecutor should be able to tell a jury that a person's refusal to testify is incriminating. The Supreme Court decided, well, we're not going to decide that question because we think Salinas never invoked his right to remain silent. Simply remaining silent is not the same thing as invoking the Fifth Amendment.

Clip: You're giving this Miranda not Miranda custody. Not custody. Gray area. That's what you're arguing. You want a gray area opinion to be written? No, I don't want it.

Tracey Maclin: And the Supreme Court upheld the conviction that said Salinas had never invoked his right. So, no, his Fifth Amendment rights weren't violated when the prosecutor did what she did. And the detective testified as to how I described it.

Hannah McCarthy: To clarify, because I want to be sure I completely understand. It is not really clear when your Fifth Amendment rights come into play, when you have not been arrested or charged with a crime.

Nick Capodice: Right. And Tracey says in those situations, you do not have to talk to law enforcement and you probably shouldn't because there's a really good chance you may end up incriminating yourself. And if you do decide to speak with them voluntarily and then suddenly stop, that could potentially be presented in trial later on as a presumption of guilt.

Jorge Camacho: The takeaway largely has been if you're going to assert a right, you have to do so clearly and unequivocally. The court is much more hesitant to accept the notion that you can implicitly exercise a right. But again, there are some justices who think that it's the correct view and others who think that it's incorrect and that the court should recognize the ability to implicitly exercise your constitutional rights. These are questions that courts struggle with. These are questions that police officers struggle with. These are questions that lawmakers struggle with because it's really hard to know in the moment when that line is where you've crossed into Miranda territory or where you're still kind of in pre Miranda territory. Because what the court has effectively said is that when you are examining the conduct of police officers and when you're examining, for example, the voluntariness of a statement, you can consider every circumstance. It's called the totality of the circumstances test, which means consider everything and then try to strike a balance one way or another. That tells you either, yes, this is on the up and up or no, this isn't. And the statement has to be excluded. Clearly not a scientific test, not one that even reasonable, rational, intelligent people can apply and uniformly arrive at the same conclusion for. And it's the best that we have so far, or at least the best that the Supreme Court has been able to come up with so far.

Hannah McCarthy: What about if you're asked or subpoenaed by the government to testify in an investigation that is not directly about whether or not you've committed a crime? For example, congressional investigations where government officials in this case, Congress people are questioning people but aren't able to file criminal charges themselves.

Clip: Do you plan to continue to assert your Fifth Amendment rights? Is that your plan? Is that your plan?

Clip: Advice of counsel. I respectfully refuse to answer and assert my Fifth Amendment privilege.

Jorge Camacho: Going back to the text of the Fifth Amendment right when we when we focus on the part that talks about a criminal case, that protection applies or can apply whenever the person interrogating you or questioning you has at least the potential to commence some type of criminal case against you. So that's an instance where you don't have a police officer in front of you. You have a congressperson or a congressional staffer asking you questions.

Nick Capodice: It's true that throughout history this clause has resisted a clear interpretation, in part because the clause by nature is about the dynamic between individual liberty and law and order.

Hannah McCarthy: And what's at stake here when we're talking about how civilians experience the law is freedom. The consequence of self incrimination could be incarceration and in some cases execution.

Jorge Camacho: Yeah, what I think a lot about is the tension that's inherent in the Fifth Amendment, the fact that we recognize that police interrogations are really just interrogations by the government generally are fraught with power imbalances and that we're interested in protecting against that power imbalance. We want David to be well equipped against Goliath, but at the same time, we don't want to hamstring Goliath from doing the job that Goliath has to do. So, for example, yes, we are aware that, for example, police officers can be abusive in their power, that they can beat suspects, that they can psychologically manipulate suspects. And we may not like that and we may protect people against that for good reason. At the same time, the police perform of an important function. They investigate crimes and they are tasked with finding offenders and bringing them to justice. So what's the balance that we're willing to accept between protecting someone's rights while also giving the police enough leeway to do the job that we've put on their shoulders to do? That's an issue that we've struggled with for a long time. We continue to struggle whenever the political winds change, either from being ardently pro-reform to ardently pro law enforcement. You can expect similar changes in how we interpret these cases. And you can expect the Supreme Court to shift winds as well. What that means is that we're probably no closer to finding a conclusive answer on this question now than we were 100 years ago. But that's not to say that we won't at some point find a solution.

Nick Capodice: As for where that leaves us now, Tracey offered this.

Tracey Maclin: Well, when you've come under the suspicion of law enforcement, the police do not have your best interest in mind. The only person that has your best interest in mind besides yourself is your attorney. Defendants, suspects, they are not required to help the government make its case. You have the right not to help the government. You can help the government if you wish, and that's fine. But standing on your right to remain silent, there's nothing wrong with that. And that shouldn't be seen as a bad thing. It's enshrined in the Constitution.

Oaths

From the Presidential Oath of Office to the Oath of Allegiance to sworn testimony, Americans take an awful lot of oaths. Today we explore the history of oaths in the US, the linguistic tinkering that's happened to oaths of office over the last few centuries and the repercussions of breaking an oath.

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Transcript

Archival: All members will please rise. The chair will now administer the oath of office. All members will raise their right hand.

Nick Capodice: All right, Hannah.

Hannah McCarthy: All right, Nick.

Nick Capodice: Raise your right hand. Do it. All right, you bumped the mic. Repeat after me.

Hannah McCarthy: Repeat after me.

Nick Capodice: No, not that part.

Hannah McCarthy: No, not that part

Nick Capodice: I, Hannah McCarthy.

Hannah McCarthy: I. Hannah McCarthy.

Nick Capodice: Do solemnly swear.

Hannah McCarthy: Do solemnly swear.

Nick Capodice: To record this episode about oaths. [00:00:30]

Hannah McCarthy: To record this episode about oaths

Nick Capodice: I do this without reservation.

Hannah McCarthy: I do this without reservation.

Nick Capodice: And of my own free will.

Hannah McCarthy: And of my own free will.

Nick Capodice: I'm going to try and have a good time.

Hannah McCarthy: And I'm going to try and have a good time.

Nick Capodice: I was going to have you say, so help me God, but I'm going to be talking about that quite a lot today. So who else can help you for this episode?

Hannah McCarthy: I pretty much do everything Jessi Klein tells me to do.

Nick Capodice: So help me, Jessi Klein.

Hannah McCarthy: So help me, Jessi Klein.

Archival: Unmistakable snapshot of American [00:01:00] democracy. One American, a 35 word oath…

Archival: On oath, do solemnly swear or affirm. And I will discharge. So help you God. So help me God.

Nick Capodice: You're listening to Civics. One, two, one. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're going to do a quick episode about Oaths

Hannah McCarthy: Oaths

Nick Capodice: Oaths.

Hannah McCarthy: Oaths. This is kind of a broad category, don't you think?

Nick Capodice: You're not wrong there. And I'm going to talk about the more general history of oath, taking an oath, keeping with no references [00:01:30] to Breanne of Tarth's sword.

Hannah McCarthy: You could put it in the credits, though.

Nick Capodice: Definitely Game of Thrones jokes in the credits. But today we are talking about swearing in front of people that you're going to do something, oaths of office, and it's not just the president who takes one. We're also going to talk about the oath of allegiance, affirmation, which is very different and very important, and possibly the most uttered oath in America.

Archival: Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth? Certainly. What am I going to lose?

Hannah McCarthy: I know you're going to ask me to step into the DeLorean, so [00:02:00] let's have it. How far back did we start taking oaths?

Nick Capodice: You know, there's that bit. They should have called it back to the past because that's what they actually did. But anyways, Mecum Veni Hannah, we're going to ancient Rome. Oaths to various deities were present in many religions, from Judaism to ancient Greeks. But one of the very first oaths to a governmental institution was the sacramentum in ancient Rome

Hannah McCarthy: Sacramentum, is this where we get the word sacrament?

Nick Capodice: It [00:02:30] is. These oaths were made to institutions, but also made before a god. Soldiers had a military sacramentum where they'd swear to, "faithfully execute all that the emperor commands that they shall never desert the service and that they shall not seek to avoid death for the Roman Republic." Gladiators had a much more brutal oath, which I'm not going to get into here, and everyday workaday Romans would use it during legal proceedings. Anyways. As centuries went on, kings [00:03:00] took oaths when they were coronated oaths to rule justly and fairly, and other people took oaths of fealty to those kings.

Hannah McCarthy: And you said these oaths were made before a god. Were they always religious, like God or whatever deity you worshiped was invoked and watching?

Nick Capodice: Yeah, they were watching you. And you might be able to tell where I'm going here. People who took public office in England and interestingly, anybody who went to go study at a university had to take an oath that upheld [00:03:30] the Church of England and that the reigning monarch was the supreme governor of the church. And this posed a little bit of a problem for a group of people who had no king or Supreme Church.

Hannah McCarthy: I know who those people are. It's us.

Nick Capodice: When we were gasping our first breaths as a new nation independent of the British Crown, we were casting aside the trappings of monarchy, and in addition to no more kings, the framers [00:04:00] enshrined no more national church. But we kept and still keep to this day the tradition of swearing an oath of office.

Hannah McCarthy: So we stopped swearing to a God or the head of a church. Who did we swear to?

Nick Capodice: Instead, we swear to uphold a document.

Archival: The people of the United States are governed by the rule of law, a body of law that rests on a single document, the federal constitution.

Nick Capodice: And that brings us to our first oath, the oath of office of the president. [00:04:30] There are three oaths mentioned in the Constitution, but this is the only one the framers bothered to spell out. The exact words are an Article two Section one "before he entered on the execution of his office. He shall take the following oath or affirmation. I do solemnly swear or affirm that I will faithfully execute the office of President of the United States and will, to the best of my ability, preserve, protect and defend the Constitution of the United States."

Hannah McCarthy: So help me God.

Nick Capodice: No.

Hannah McCarthy: That's not in there.

Nick Capodice: It is not. [00:05:00] And this was a rabbit hole for me, Hannah, albeit a fascinating one. I have never seen so many websites with the phrase now it has been contested and historians disagree whether, for example, historians do not agree on whether or not George Washington finished his oath with So Help Me God. The first published account to say he did was 65 years after the inauguration. There are, however, three separate accounts William Duer, Morton Quincy and [00:05:30] some anonymous writer of a newspaper op ed that say he kissed the Bible after he took the oath. Moving along. There's also an argument about whether or not Abraham Lincoln said so help me God. Some have evidence he did say it in 1865. While there's contrary evidence of a minister who wrote to Lincoln to request, he say, So help me God. And the pastor said Lincoln's reply was, "But God's name was not in the Constitution and he could not depart from the letter of that instrument."

Hannah McCarthy: All that aside, [00:06:00] presidents have said, So help me God for as far back as I can remember.

Nick Capodice: Me too. The first Ironclad published in several accounts usage of So Help Me God was Chester Arthur in 1881. And we know for certain, as in we have the audio that every president since Franklin Delano Roosevelt has so far ended with that line.

Archival: So help me God. So help me God. Help me God. So help me God. So help me God. Congratulations, Mr. President.

Hannah McCarthy: Okay. Now, I have to ask you a question about [00:06:30] this distinction that is made that has always kind of confused me, that constitutional clause. Swear or affirm. What is the difference between the two?

Nick Capodice: I am so glad you asked. There are some religions, such as Quakerism, that do not endorse swearing on anything religious that you're going to tell the truth and every president may choose to affirm instead of swear. Same oath, no bible. That said, we have one and only one [00:07:00] president so far who has opted to affirm instead of swearing on a Bible.

Hannah McCarthy: Who was it?

Nick Capodice: Franklin Pierce from our very own New Hampshire opted to affirm his oath on a book of law.

Hannah McCarthy: Was he a Quaker or was he just not very religious or something?

Nick Capodice: We may never know the reason why. He wasn't a Quaker. He was Episcopalian, but he wasn't baptized until a few years before he died. He, frankly, was in a tough spot when he was inaugurated. If you recall, his son had just been killed in a horrible, tragic railroad [00:07:30] accident. But whatever his reasoning was, he didn't swear. He affirmed. Now, there have been Quaker presidents, but they have all sworn on a Bible, including Herbert Hoover and Richard Nixon.

Hannah McCarthy: Nixon was a Quaker?

Nick Capodice: Yeah, I know. Right? Did you know that?

Hannah McCarthy: Did he know that? Okay. So that's one big oath out of the way. What other oaths do we have in our system?

Nick Capodice: We've got a few and we're going to get into those [00:08:00] as well as what happens when those oaths are broken right after this quick break.

Hannah McCarthy: But first, we've got a new quiz. It's great. Every Thursday, Civics 101 has an eight question quiz on our newest episodes to test your trivia skills. You can play it at Civics101quiz.com

Nick Capodice: We also have a wordle. That's right, a wordle. We have a new one every single day. Based on that week's episode, you can play it at Civics101wordle.com

Hannah McCarthy: Okay. [00:08:30] We're back. We're talking about swearing.

Nick Capodice: The only swearing you're going to hear on our podcast, dadburnit. And next, it's not just the president who has to take an oath of office. It's members of the House and the Senate. Now, unlike the president, the words are not written in the Constitution, but they were written in the very first act of Congress in 1789.

Hannah McCarthy: The very first is and the very first thing to come across George [00:09:00] Washington's desk to be signed.

Nick Capodice: Yes. Chapter one, section one. Chapter two, by the way, started with duties and taxes on imports, Jamaican rum at $0.10 a gallon by the by. But the oath they came up with was this "I a B, that's first name last name, do solemnly swear or affirm that I will support the Constitution of the United States.

Hannah McCarthy: So help me God.

Nick Capodice: No, no. So help me God. That came later in 1862

Hannah McCarthy: 1862 So we're talking like civil [00:09:30] war years. Does this have to do with the Civil War?

Nick Capodice: It does indeed. President Lincoln and all of his supporters rewrote the oath of office for all members of Congress to include, and I'm taking chunks of it here because it's very long, "solemnly swear or affirm that I have never voluntarily borne arms against the United States, that I have voluntarily given no aid, countenance, counsel or encouragement to persons engaged in armed hostility thereto, that, I [00:10:00] have not yielded a voluntary support to any pretended government authority, power or constitution within the United States, hostile or inimical thereto."

Hannah McCarthy: So a very thinly veiled anybody who has supported in the past or is supporting now the Confederacy cannot take this oath.

Nick Capodice: Yeah, they can't take the oath, which means they cannot hold office. This was called the ironclad oath, and initially it was proposed that all voters had to take it too. But Lincoln himself vetoed that in 1864, [00:10:30] realizing that would ensure a nation where very few southerners could engage in the democratic process and that's going to stall reconstruction. But this oath resulted in a Republican anti-slavery, biracial legislature in the South. For the first time. Now, Congress began to remove a lot of that 1862 language in the Andrew Johnson administration after Lincoln was assassinated. And it was all pretty much gone by 1870. However, some vestiges remain from that rewrite, [00:11:00] specifically this part swearing to defend the Constitution of the United States against all enemies, foreign and domestic. That I will bear true faith in allegiance to the same that I take this obligation freely without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I'm about to enter.

Hannah McCarthy: So help me God? Is this the time?

Nick Capodice: This is it, Hannah. So help me God.

Archival: So help you God. Congratulations. You're now members of the 114th [00:11:30] Congress.

Nick Capodice: This oath I just rattled off is called the Constitutional Oath. All new incoming members of the House of Representatives and the new third of the Senate coming in must take it at the beginning of each congressional session.

Hannah McCarthy: All right. We've got executive. We've got legislative. Is there any difference for the judicial branch?

Nick Capodice: Yeah. And I'm going to make it quick because I've gone on a bit here. Supreme Court justices have to take a double oath. First, [00:12:00] they've got to take the constitutional oath that Congress takes. And then they take a second one, which is interesting. It says, I will, "administer justice without respect to persons and do equal right to the poor and the rich. And that I will faithfully and impartially discharge and perform all the duties incumbent upon me. Associate Justice, Chief Justice, whatever...

Archival: Under the Constitution.

Archival: Under the Constitution.

Archival: And laws of the United States and.

Archival: Laws of the United States.

Archival: So help me God.

Archival: So help me God.

Hannah McCarthy: All right. What [00:12:30] about people other than elected and appointed government officials? Do everyday people, American citizens, swear any oaths on a regular basis?

Nick Capodice: Well, there is something that about 50 million people say on a daily basis that sounds a heck of a lot like one.

Hannah McCarthy: is the Pledge of Allegiance an oath?

Nick Capodice: Not technically. And maybe I was cheating a bit there. I mean, the Wikipedia page calls it one. You can call it an oath to the flag and the republic, but [00:13:00] you're not swearing or affirming on anything when you take the Pledge of Allegiance.

Hannah McCarthy: By the way. Nick and I love talking about the pledge. We did a whole episode on the history of it and the flag and the Supreme Court decision surrounding them both. We will put a link to it in the show notes. Check it out.

Nick Capodice: One of my favorite facts about the pledge are that the indivisible part was added after the Civil War. And this is not unlike the ironclad oath. It's like indivisible, looking at you, Confederacy. And since we talked about religion a few times already. [00:13:30] Hannah, do you remember when under God was added to the Pledge?

Hannah McCarthy: It was fairly recent, wasn't it? I can't remember what year, but like not that long ago.

Nick Capodice: 1954. However, there is an oath of allegiance. It is required by law that anyone wishing to become a citizen of the United States take it. And it is usually performed at naturalization ceremonies, [00:14:00] sometimes not always, but sometimes followed by a screening of a patriotic music video of Lee Greenwood's God Bless the U.S.A..

Archival: How about that? Are you proud to be an American? Yes. All right.

Hannah McCarthy: What's the wording of the Oath of Allegiance? Is it pretty similar to the constitutional oath?

Nick Capodice: Yeah, a little bit. You declare an oath or solemnly affirm to defend the Constitution and the laws of the United [00:14:30] States. But then you must renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen.

Hannah McCarthy: Potentate.

Nick Capodice: Potentate. Also, there is a provision at the end that when required you will bear arms on behalf of the United States, perform noncombatant services in the armed forces, and perform work of national importance under civilian direction. There is a So [00:15:00] help me God, but you are allowed to stay silent at that part, if you wish.

Hannah McCarthy: And you have got to take this oath.

Nick Capodice: You've got to take it if you want to be a U.S. citizen, unless you're under 14 years old.

Hannah McCarthy: Just out of curiosity, what if you're opposed to war? Do you have to say the part about bearing arms on behalf of the United States?

Nick Capodice: You have to say it unless you qualify for a religious modification. And it's this part not as much the denouncing of allegiance to a foreign country that has caused some legal scuffles in the past. You know, Aldous Huxley.

Hannah McCarthy: As [00:15:30] in Brave New World, Aldous Huxley.

Nick Capodice: Yeah, he had "soma" problems with the military service part. He refused to say it, and he was denied U.S. citizenship even though he lived here for 13 years.

Hannah McCarthy: Now, there's an oath, Nick, that you teased at the very beginning of this episode. Give me the truth, the whole truth, and nothing but the truth.

Archival: Hold up your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God? Yeah.

Hannah McCarthy: Is that my Cousin Vinny?

Nick Capodice: Very good Hannah nice catch. You know, I've talked [00:16:00] to a few law professors who say that movie, My Cousin Vinny, is the most accurate portrayal of courtroom procedures in pop culture, specifically when it comes to cross-examination of a witness. Anyways, that is called sworn testimony, and you can opt to say, instead of so help me God, under pains and penalties of perjury.

Hannah McCarthy: It's interesting. It's the first time so far that an oath includes what happens if you break it because it is against the law [00:16:30] to lie under oath in a courtroom. There will be penalties.

Nick Capodice: The oath you take in a courtroom is an acknowledgment that you understand it is a criminal act to intentionally lie on the witness stand. And if you're found guilty of doing this, this is called perjury. You can be punished with fines and prison time.

Hannah McCarthy: But how common is it that someone's actually caught and punished with fines and prison time?

Nick Capodice: Good point. It is relatively rare because it can be hard to prove. More often perjury is used as a tool. [00:17:00] It's like this implicit threat, this sword of Damocles that will ensure people tell the truth in a courtroom.

Hannah McCarthy: I think my last question about oaths is tied to this. The breaking of an oath. Like, sure, you can be sent to jail for lying in a courtroom. But what about all the other oaths that we've talked about? What happens if a president or a senator violates their oath of office?

Nick Capodice: Well, nothing really.

Hannah McCarthy: Nothing at all.

Nick Capodice: Like, I'm not going to speak [00:17:30] to the spiritual effects. That's your business, Senator. But as far as I can tell, no elected or appointed official has ever been punished in a legal sense for violating their oath of office. Because and here's the thing. Oaths are not legally binding. Pledges either. They're not a contract. You can be punished for doing things that run contrary to the oath, like committing conspiracy or [00:18:00] treason or giving false testimony. You're guilty of lying, not breaking your oath.

Hannah McCarthy: But you do on occasion hear, you know, President X has broken their oath of office by doing this, that or the other thing.

Nick Capodice: Yeah. You can be impeached or expelled for this, that or the other thing, but not for the oath violation. Do you know how many reps and senators have been expelled from Congress in the United States so far?

Hannah McCarthy: I don't.

Nick Capodice: 20 out of the 12,000 odd people who have served in Congress. And 17 [00:18:30] of those 20 expulsions were due to their support of Confederate states during the Civil War.

Hannah McCarthy: So if oaths don't really mean anything, if they don't really have any teeth.

Nick Capodice: Legally.

Hannah McCarthy: Legally, why do we take them?

Nick Capodice: I can't really say. Hannah, you might as well ask why the ancient Greeks or the Romans took them, or why officials from New Zealand to Pakistan to Brazil take oaths. Even before our founding [00:19:00] people asked that question. Noah Webster of Dictionary fame, He said that oaths were a badge of folly, borrowed from the dark ages of bigotry, and that was in 1787. Now, others say that it is a crucial part of our system. It makes our officials proclaim that they serve the Constitution, not some sort of supreme leader. And again, outlining the oath was the very first thing our Congress did.

Hannah McCarthy: I will admit, any time I [00:19:30] had, like, a kid club, I would always devise some oath. You know, I was like, this. This will give this weight. This will take it from just things that kids are doing to something real.

Nick Capodice: Were you ever in the Girl Scouts?

Hannah McCarthy: Duh.

Nick Capodice: How did it go?

Hannah McCarthy: Hold on. On my honor, I will try to serve God in my country to help people at all times and to live by the Girl Scout law.

Nick Capodice: I got kicked out of the Cub Scouts after one day when I was six years old. I don't know what I did.

Hannah McCarthy: So how are you going to end [00:20:00] this?

Nick Capodice: Well, thankfully, Hannah, unlike oaths, our episode conclusions are not predetermined.

Hannah McCarthy: So a Game of Thrones joke, then?

Nick Capodice: Why can't George R.R. Martin use Twitter?

Hannah McCarthy: All right. Why can't he?

Nick Capodice: To tell a story he requires more than 140 characters.

Hannah McCarthy: Oh, okay. Yeah. Although I do think it's. It's 280 characters.

Nick Capodice: Now. Well, the joke still works with that number. What's Breanne made of?

Hannah McCarthy: Metal.

Nick Capodice: Tarth. You [00:20:30] get it?

Hannah McCarthy: It? Yeah. Maid Of Tarth.

Nick Capodice: Yeah.

Hannah McCarthy: Yeah.

Nick Capodice: Why is Caitlin Stark like a breakfast cereal?

Hannah McCarthy: I don't know why.

Nick Capodice: She's Raisin' Bran!

Nick Capodice: That's it for oaths. Thanks for letting us swear to you. Jessi Klein. This episode was made by me. Nick Capodice. With you. Hannah McCarthy. Thank you. Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer.

Hannah McCarthy: Music in this episode by Anitek, Bisou, Derek Stephens, Rambutan, the Grand Affair, Max Anson, Ooyy, Howard Harper Barnes, Phillip Ayers, Jesse Gallagher, and Chris Zabriskie. [00:21:00]

Nick Capodice: Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Federal Courts: The Trial of the Chicago 7

In 1968, a raucous Democratic nominating convention was overshadowed only by the shouts outside to end the war. This is the story of how eight different protestors from very different walks of life ended up before an increasingly indignant judge and walked away scot-free -- but not before putting on a good show. 

Our guests are Victor Goode of CUNCY School of Law, Jeet Heer, national affairs correspondent for The Nation and Jeanne Barr, history teacher at the Francis W. Parker School in Chicago.

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Transcript

Note: the following transcript was machine generated and may contain errors.

Hannah McCarthy: [00:00:02] By 1968, a lot of Americans were asking the same question.

Lyndon Baines Johnson: [00:00:07] It's just something that I don't understand why.

Lyndon Baines Johnson: [00:00:16] Why Vietnam?

Hannah McCarthy: [00:00:21] And a lot of Americans had had enough.

Archival: [00:00:25] If you're here for peace, let me hear you say peace. You want peace?.

[00:00:29] Let's [00:00:30] get it.

Hannah McCarthy: [00:00:35] I mine in April of that year under the controversy and cloud of the Vietnam War. With the conflict still going strong, with tens of thousands of Americans and millions of Vietnamese dead and a slipping approval rating and a barely won primary victory, incumbent President Lyndon Baines Johnson made an announcement.

Lyndon Baines Johnson: [00:00:58] I shall not seek [00:01:00] and I will not accept the nomination of my party for another term as your president.

Nick Capodice: [00:01:09] And Johnson is one of only six incumbent presidents to not run for reelection so far.

Hannah McCarthy: [00:01:15] Giving a deeply divided Democratic Party about six months to come up with a candidate before the August Democratic National Convention and the protesters plenty of time to prepare.

Archival: [00:01:27] Well, how much is it worth to you to call it off? Call [00:01:30] off what? A million, would you have done it for a million. The revolution? Yeah. What's your price? My life.

Hannah McCarthy: [00:01:48] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:50] I'm Nick Capodice.

Hannah McCarthy: [00:01:50] And today, as part of our series on federal court cases, I've got a little piece of theater for you called The Trial of the Chicago Seven.

Archival: [00:01:59] Defendants in the trial [00:02:00] say its outcome could decide the future of free dissent in the United States.

Archival: [00:02:05] I think we're being tried with carrying a state of mind across the state border. We're doing quite well. I think we win every single day but the last if it wasn't for the law, we'd win hands down. Because you've seen that case, that's all. Never Neverland of insanity that only the US government and city of Chicago can dwell in.

Nick Capodice: [00:02:24] And that reporter there said it could decide the future of free dissent. Is the Chicago Seven [00:02:30] a trial about protest?

Hannah McCarthy: [00:02:31] Yes. No, not officially, but yes. Officially, though, it was a trial about conspiracy to incite riots. Unofficially, a lot of people say it was a trial about making an example of some very loud dissenters who flooded into Chicago during the August 1968 DNC, the Democratic National Convention.

Archival: [00:02:52] I mean, everybody is allowed to do their thing. If some people storm the amphitheater, they storm the amphitheater. Some people want to swim naked [00:03:00] in the lake. They swim naked in the lake. Other people want to go and tell the cops what we're doing. That's good. The cops want to come down and beat our heads. That's it. I mean, it's all conceived as a total theater with everyone becoming an actor.

Nick Capodice: [00:03:22] All right, let's get into it.

Hannah McCarthy: [00:03:23] Let's shall.

Victor Goode: [00:03:28] Ok. I'm a recently [00:03:30] retired professor of law at the City University School of Law. But prior to that, I was the national director of the National Conference of Black Lawyers.

Hannah McCarthy: [00:03:39] This is Victor Good.

Victor Goode: [00:03:40] I was in Chicago in 1968 because I was an undergraduate at Northwestern University. The people that I was talking to and listening to knew that something bad was about to happen. And we knew the Chicago Police and many of my classmates said, look, these kids coming [00:04:00] in from out of town don't know what they're about to get into.

Nick Capodice: [00:04:03] I have an ill divining soul here, Hannah.

Hannah McCarthy: [00:04:05] Yeah, conflict is coming, and I'm going to get to those kids coming in from out of town in just a minute here. But Victor reminded me of how the country was doing at this time.

Victor Goode: [00:04:17] Of course, John Kennedy is assassinated in 1963.

Archival: [00:04:20] From Dallas, Texas, the flash apparently official. President Kennedy died at 1 p.m. Central Standard Time.

Victor Goode: [00:04:29] Lyndon Johnson, [00:04:30] the vice president, assumes the presidency at.

Archival: [00:04:33] At 2:38 in the forward cabin of Air Force One. A necessary ceremony.

Archival: [00:04:39] You solemnly swear.

Victor Goode: [00:04:40] And he finishes Kennedy's one year, his final year term.

Nick Capodice: [00:04:45] And Johnson ran again, right?

Hannah McCarthy: [00:04:47] Yeah. Johnson overwhelmingly won his bid for a proper four year presidency.

Lyndon Baines Johnson: [00:04:51] I know that this is more than a victory of party or person.

Victor Goode: [00:04:58] So Johnson begins a number [00:05:00] of initiatives. Great Society is what he call it Great Society programs. But Johnson also begins to escalate the war from 65 to 68. American troop deployment reached, I think, close to five or 600,000 troops. So it was a massive escalation of the war.

Hannah McCarthy: [00:05:21] And to be clear, a lot of the American public were not thrilled by this.

Victor Goode: [00:05:25] Despite the fact that antiwar protests were beginning [00:05:30] in 65, 66, 67, the government was going in the opposite direction. And the government, of course, was led by the president and his party, the Democratic Party. And so with the Democratic Convention in Chicago, all the antiwar groups said this is a time for us to send a message, especially at the point of the election, that we want peace, we want an end to the American involvement in Vietnam.

Hannah McCarthy: [00:06:08] 1968, [00:06:00] everything is coming to a head.

Jeet Heer: [00:06:11] 1968 was the year when everything was falling apart in America.

Hannah McCarthy: [00:06:16] I'm bringing in another guest. Please meet Jeet Heer, national affairs correspondent for the Nation.

Jeet Heer: [00:06:22] It began with the sort of Tet Offensive, which was an American military victory, but not really a sort of Pyrrhic victory, because the very fact [00:06:30] that the Viet Cong got so close to actually taking over that attacked the American embassy really meant that, like, you know, people woke up to the fact that they had been lied to about the Vietnam War.

Nick Capodice: [00:06:42] And I suppose it didn't help the government's case that this was our first televised war. Like Americans were in their living rooms at night watching this war go down.

Archival: [00:06:51] The walls of houses. Ricochet... These Vietnamese Marines are spearheading the assault.

Jeet Heer: [00:07:01] Adding [00:07:00] to the fuel to the fire, Martin Luther King jr. comes out against the war. Very hard decision because he is obviously very appreciative of what the Johnson administration was doing on civil rights. But the war got so bad and then King being assassinated, Robert Kennedy being assassinated, leading to the convention, which is going to be a sort of coronation for Hubert Humphrey. Various anti war forces and radical forces decide to make the convention a real spot for political protest.

Hannah McCarthy: [00:07:29] This [00:07:30] is important to remember the people who showed up to protest in Chicago in 1968 were there primarily to call upon the delegates and politicians of the DNC to propose a resolution to end the war. And the Democrats at the convention, by the way, were intensely divided on the subject. Also, it is worth noting that Chicago had been the scene of deadly rioting months earlier following MLK Jr's assassination, during which Mayor Daley [00:08:00] gave the police the authority to shoot, to kill or maim arsonists and looters. Many politicians wanted to move the convention to Miami, but Daley insisted he would keep things peaceful. So before we get into what went down, I want to establish who is actually organizing and showing up to protest because the leaders of some of these movements are going to end up becoming the Chicago Seven. Primarily the Yippies and the MOBE. First, [00:08:30] allow me to introduce the Yippies.

Jeanne Barr: [00:08:33] The most vividly imaginative, creatively obvious where the Yippies.

Hannah McCarthy: [00:08:38] This is our third guest, Jeanne Barr, teacher and chair of the Department of History and Social Studies at the Frances W Parker School in Chicago.

Jeanne Barr: [00:08:45] This is the Youth International Party, which had been formed. As you know, today's audience might think of it as almost like a mockumentary in the vein of Spinal Tap or Best in Show.

Archival: [00:08:59] See, I can. [00:09:00] I could hold you off forever just by using theatrical techniques. Oh, sure. You see.

Jeet Heer: [00:09:08] These are kind of a theatrical street performers. They were sort of real pioneers of something that we see much more commonly now, sort of politics as street theater, politics as mass entertainment. But as an example, to mock the convention, they nominated their own alternative candidate, Pigasus, a pig to be president.

Archival: [00:09:28] Why [00:09:30] did you decide to become a candidate?

Jeanne Barr: [00:09:37] But these guys were very serious political actors, and they were using the mechanisms of politics as theater and theater as politics, and showing just the absurdity that was present in the military industrial complex, in modern racism, in solidarity with the civil rights movement, but definitely with their own agenda.

Hannah McCarthy: [00:09:58] The Yippies are led by [00:10:00] two wildly enigmatic people. There was Abbie Hoffman.

Jeanne Barr: [00:10:04] Abbie Hoffman organized an event where he rained dollar bills down on the stock market back in the days when they used to, like, be down on the floor shouting at each other. And the traders were just grasping for the money. And it created this visual of these traders grasping for money that was sort of indelible. You know, they took photos and those pictures went out. So it was sort of like really early propaganda in the vein of using television and media long before digital [00:10:30] media of the way that we know it now.

Hannah McCarthy: [00:10:32] And the other leader, that would be Jerry Rubin.

Jeanne Barr: [00:10:35] Jerry Rubin is the Berkeley Free Speech Movement. He organized protests at the Pentagon. They would march to the Pentagon famously, and they got way more people than people realize. You know, that was one of the visible moments of, you know, using the tactics of the civil rights movement to get the bodies into the street and show the visible signs that they were not alone. And then people who feel like they are alone start to recognize, like, oh, you know, there's other people who have my point of view and a movement is formed. He later [00:11:00] famously tried to levitate the Pentagon levitating the evil spirits out of the Pentagon. And there's Jerry Rubin, running back and forth between the thousands of people out there levitating the Pentagon, which he said had been possessed by speeches.

Archival: [00:11:13] The task of writing and conducting the actual ritual of exorcism fell to Ed Saunders of the New York group The Fugs. He invoked a wide variety of forces... In the name of Zeus and the name of Anubis, God of the dead in the name of Seabourn Aphrodite. [00:11:30]

Hannah McCarthy: [00:11:30] So that is the Yippies, the other major movement who organizes to go to Chicago. That would be the MOBE.

Jeanne Barr: [00:11:38] We should talk about the MOBE. Dave Dellinger is they sort of characterize him as the granddaddy. I think of him as one of the hearts and souls of the peace movement of the 20th century.

Hannah McCarthy: [00:11:50] Dave Dellinger, by the way, is of a different generation than a lot of the people who showed up to protest in '68. In contrast to the mostly young crowd, Dellinger [00:12:00] was in his fifties and he'd been antiwar since World War Two, which back then was not the most popular of positions.

Nick Capodice: [00:12:09] And Dave Dellinger, is he the MOBE? Does he call himself that?

Hannah McCarthy: [00:12:13] I'm sorry. I can see how that was confusing. No. The MOBE is shorthand for the National Mobilization Committee to end the war in Vietnam. Its members included Dellinger, Dr. Martin Luther King Jr, Coretta Scott King and Dr. Benjamin Spock.

Nick Capodice: [00:12:28] Dr. Spock is in like the baby [00:12:30] guy.

Hannah McCarthy: [00:12:30] Yeah, the very same.

Archival: [00:12:31] The easiest thing in the world for a doctor or for a doctor. Writing a book is to scare the bejesus out of people. And the previous books on child care all were along the general lines, Look out, stupid. If you don't do exactly what I say, you'll kill your child, or at least make your child very sick.

Nick Capodice: [00:12:47] As a quick aside, everyone. Dr. Spock's baby and child care was literally the only baby book my parents owned. This guy revolutionized the idea of how we parent.

Hannah McCarthy: [00:12:58] Yeah, pro babies, and [00:13:00] antiwar. So. All right, here we are. We're in Chicago. And there's a Chicago office of the mob that is overseeing this major protest planning. And it was headed by two paragons of youth protest. First, Tom Hayden. He'd been a leader of the Students for Democratic Society, a huge national activist organization.

Jeanne Barr: [00:13:20] There were a lot of student groups. This was maybe the Uber student group, or at least Tom Hayden would like you to think so. They organized much of them at the University of Michigan, and a lot of it was their [00:13:30] protest that kind of the same what we might call the dead white man canon was being sort of, they thought, shoved down the throats of students who wanted different teachers and different voices and different resources. Most campus professors were white. Most of them were male. Not all, but there was a certain liberal bent in their politics, but not necessarily in their representation. And so this was confronted. Hayden was a big part of this.

Hannah McCarthy: [00:13:56] Tom Hayden's right hand man was Rennie Davis, who, by the way, [00:14:00] when you look at pictures of these guys together, especially if proudly unshaven, Abbie Hoffman or Jerry Rubin are around, Rennie stands out as this clean cut, bespectacled son of a Truman administration economist, which he was, but he was also the real deal and apparently a master organizer and recruiter for the movement.

Nick Capodice: [00:14:21] All right. I want to do a quick recap. I've got five so far, Abbie Hoffman, Jerry Rubin, Dave "the MOBE," Dellinger, Tom Hayden and the bespectacled Rennie Davis. [00:14:30]

Hannah McCarthy: [00:14:30] Yeah, those. Were the major organizers of the DNC protests, the MOBE and the Yippies. The way I feel, I should point out, the MOBE was kind of organizing one protest while the Yippies were organizing another. Specifically, they were organizing the Festival of Life.

Archival: [00:14:49] The Democratic Party represented death. So the Yippies decided to hold a festival of life during the Democratic convention with free concerts, workshops [00:15:00] in Parks, Yippie Olympics, a week long, joyful presentation of an alternative lifestyle.

Hannah McCarthy: [00:15:09] Which advertised, according to the Chicago Sun-Times, Come All You Rebels, Youth Spirits, Rock Minstrels, Truth Seekers, Peacock Freaks, Poets, Barricade Jumpers, Dancers, Lovers and artists. We are there. There are 500,000 of us dancing in the streets, throbbing with amplifiers in harmony.

Nick Capodice: [00:15:28] And by contrast, is [00:15:30] the mob doing a more like stereotypical protest with speakers and lectures and that sort of thing?

Hannah McCarthy: [00:15:36] Yeah, it was just. It was a little.

Nick Capodice: [00:15:39] No peacock freaks.

Hannah McCarthy: [00:15:40] No peacock freaks.

Nick Capodice: [00:15:42] So slightly different approaches towards the same problem.

Hannah McCarthy: [00:15:45] Yeah, you could say that.

Nick Capodice: [00:15:46] All right. And you said that the leaders of these groups, the Yippies and the MOBE, eventually would become the accused in the Chicago seven trial. But again, I counted five. So who were the other two?

Hannah McCarthy: [00:15:57] Okay, the other two. You had John [00:16:00] Froines and Leigh Weiner. These guys are considered the kind of forgotten defendants of the Chicago seven trial. They were not movement leaders. They were professors. And they weren't even given the exact same charges as the others. Some who have analyzed the trial suspect that what was going on with them is that the government brought them in as a warning to other academics who might consider joining in on protest. So that's hour seven, right? But actually, Nick, there is one more critical [00:16:30] defendant because the Chicago seven, it was originally the Chicago eight. Here's Victor Goode again.

Victor Goode: [00:16:39] The Black Panther Party was brought in even though the Black Panther Party was not a major factor in those demonstrations. They went after Bobby Seale because the Black Panther Party had voiced their support for the demonstrations.

Hannah McCarthy: [00:16:53] Bobby Seale, co-founder of the Black Panthers, a revolutionary group originally devoted to protecting black Americans from [00:17:00] police brutality. It then grew to become a nationwide Marxist black power movement.

Victor Goode: [00:17:05] The Black Panther Party was not active in the antiwar movement. The Black Panther Party, of course, had their own platform in their own program.

Hannah McCarthy: [00:17:15] Still, the Black Panthers realized that the same government forces that were trying to shut down the antiwar movement were trying to shut down the Black Panther Party.

Victor Goode: [00:17:23] So they believed in coalition work. And so they said, look, you know, we support you guys [00:17:30] because you folks are trying to change the government that's trying to oppress us, not trying to, but has been oppressing us for four decades. So they supported the struggle without actually being an active participant in the entire planning process.

Nick Capodice: [00:17:46] But Bobby Seale is not a member of the final Chicago seven.

Hannah McCarthy: [00:17:50] That's right. He is at a point removed from the case.

Nick Capodice: [00:17:54] Hannah?

Hannah McCarthy: [00:17:54] Yes, Nick.

Nick Capodice: [00:17:55] I think it's time we've got our defendants. And how did they end up being [00:18:00] in a federal trial?

Hannah McCarthy: [00:18:01] That's coming up after the break.

Nick Capodice: [00:18:03] But real quick, listeners, I know for a fact that this episode is half as long as Hannah wanted it to be. If you want to see the stuff that didn't make it in all the fun side ephemera and trivia, just head on over to our website, civics101podcast.org and subscribe to Extra Credit. It's free. It's fun. You're going to love it.

Hannah McCarthy: [00:18:24] We're back and we're talking about the trial of the Chicago Seven, nay eight. [00:18:30]

Nick Capodice: [00:18:30] Now, at the top of the episode, Hannah, you said that this was a trial about conspiracy.

Hannah McCarthy: [00:18:34] Correct. Most of the defendants were brought up on the charge of conspiracy to incite a riot.

Nick Capodice: [00:18:40] But it's also kind of a case about protest.

Hannah McCarthy: [00:18:44] That's the sort of simmering question in the courtroom. What is really on trial here? But to get to that courtroom, we have to start in the streets of Chicago in the months leading up to the 1968 Democratic National Convention. Here is Victor Goode again.

Victor Goode: [00:18:59] Richard J. Daley [00:19:00] is mayor of Chicago, and some referred to him at that time as the emperor of Chicago. He had been mayor of Chicago, I think, for at least a dozen years. And not only was he mayor of Chicago, he was head of the county Democratic machine of Cook County. And so Daley was a key political operative in the overall Democratic Party. And so, first of all, he was very pleased that the Democratic Party was hosting its convention in [00:19:30] his city, and he really meant his city.

Archival: [00:19:33] We respect the constitutional rights and the human rights of everyone, but no one will take the law in their own hand or be law and order in Chicago as long as I'm mayor.

Victor Goode: [00:19:44] So he had both an ego and a kind of a political interest in making everything go smoothly. So the idea that protesters were coming to his town and potentially disrupting this political [00:20:00] moment that he was about to have as the organizer and convener of this convention was something that infuriated Daly. So was he planning to stop the demonstrations? To the extent that he could, the answer is yes.

Archival: [00:20:16] The peace groups are demanding permission to march on convention hall the night the Democrats nominate their candidate for president. The city says no. That would endanger security. There is a possibility of mass arrests unless the city allows the demonstrators [00:20:30] to camp out in public parks. There is nowhere else for them to stay. At a news conference this morning, the mayor read a ringing statement of welcome to the protesters as if nothing was about to happen.

Victor Goode: [00:20:42] And you know what I say to the extent that he could. Therein lies the tension between the First Amendment on one hand, that guarantees persons a right to petition, government, to protest, to demonstrate, and on the other hand, certain limitations that are imposed on protesters so that [00:21:00] it's not an absolute right. There are some limitations to what they call in a legal terms time, place and manner in which a protest can take place.

Hannah McCarthy: [00:21:09] Time, place and manner restrictions. In other words, if there is legitimate government interest to limit protest in public places, like if a protest would disrupt traffic or block the entrance to a building or result in public harassment, then it is constitutional for that government to limit protest. Even [00:21:30] then, they have to provide, quote, alternative channels of communication. Another way to exercise your constitutional right to petition your government when you are dissatisfied. Now the organizers of the DNC protests knew that bringing thousands of protesters to Chicago parks and streets had the potential to obstruct the normal flow of things. They knew they would probably need a permit.

Victor Goode: [00:21:55] The city responded by giving them the most limited permit that they [00:22:00] could. They limited where they could protest. They steered them away from the actual Democratic convention. And so the protesters goal, of course, was to to be seen and to be heard by the people going to the convention. And the city's objection was to prevent that from happening. And so the limitations were put on the protest. And the protesters agree, basically, we're not going to follow these these limitations. We [00:22:30] have to be able to move along our our own protest route toward the convention hall so that the delegates to the convention would hear what we are saying and see what we were asking them to do.

Archival: [00:22:44] I take one look at the troops in Vietnam. I know what American foreign policy is about America now. That's America, the Democratic Party. Most of us here didn't come to support McCarthy, so.

Hannah McCarthy: [00:23:00] Hey [00:23:00] Now Daley had about 12,000 cops and 6000 National Guard members on the streets, and they were joined by 6000 Army troops, all to keep protesters docile and away from the convention at Chicago's International Amphitheater.

Nick Capodice: [00:23:17] And how many protesters were there total?

Hannah McCarthy: [00:23:20] Well, the estimate at the most pivotal gatherings that week was around 10,000 people. But there are about 25,000 protesters in total in Chicago. Now, far [00:23:30] fewer than Abbie Hoffman had said there would be, but about a 1 to 1 ratio of law enforcement to demonstrators. Arrests started to happen on August 23rd. You remember how Jeet here mentioned the Yippies nominating a pig to be president.

Nick Capodice: [00:23:45] Pigasus, a not so subtle way of saying that politicians are pigs.

Hannah McCarthy: [00:23:48] Yeah. And when they gathered in this place in Chicago called Civic Center Plaza to stage this spectacle and release the pig, the cops started arresting people, including Jerry Rubin. That [00:24:00] is the beginning.

Archival: [00:24:02] We are not even on the street yet, although it is certainly our intention to march to the amphitheater in the street, because we think that the street is necessary to accommodate this many people. We may be nonviolent, but we're stubborn. And so we are appealing publicly through the press, through Deputy Commander Reardon on the sidewalk. We don't march today. [00:24:30] Made very clear that.

Nick Capodice: [00:24:36] Now this does eventually escalate into a riot, correct?

Hannah McCarthy: [00:24:41] It would eventually be called a riot, yes. But I also want to be very clear, initial investigation did not blame the riot on the protesters over the course of days. There were clashes with police, many of them violent protesters. And members of the media were tear gassed and [00:25:00] beaten. Surges of angry shouting protesters were met with brutal force on the part of the police. This all culminated in the bloody battle of Michigan Avenue.

Victor Goode: [00:25:27] Initially the police were pushing protesters [00:25:30] out of Grant Park and Michigan Avenue was just a few blocks away from the park. So as they began to get corralled onto Michigan Avenue, some of the protesters began to respond by breaking windows. And the police, of course, responded by escalating their violence against the protesters. So this was the beginning of a series of escalations that ultimately coalesced in front of the Democratic National Convention itself in Grant Park, [00:26:00] in which the police made a massive sweep against the protesters, in which and these, of course, of course, are the famous scenes that I'm sure many of your listeners have seen many times, both in video or in still shot photos of police wading into the crowds and beating and arresting anyone in everyone they encounter.

Hannah McCarthy: [00:26:29] At some point, [00:26:30] officers pushed a group through a plate glass window and then beat them with billy clubs. And a lot of this, just like the war that these groups had come to protest, was caught on film and broadcast across the country. Again, this is Jeet here.

Jeet Heer: [00:26:44] One of the chants that the protesters had is the whole world is watching. And that's exactly the case. Perhaps maybe even give a sort of broader sense of how polarized the period was. One of the networks, [00:27:00] I believe CBS had William Buckley Junior and Gore Vidal as the commentators of the Chicago. This is what's going on there. And Vidal was defending this protesters and Buckley was taking the the side of the cops.

Nick Capodice: [00:27:15] Oh, I have seen these conversations. William F Buckley and Gore Vidal, they had these televised debates during both the Democratic and Republican National Conventions, and they were super heated. These two hated each other.

Archival: [00:27:28] Any point of view you want, they shut [00:27:30] up a minute. No, I won't. Some people were pro-Nazi, and the answer is that they were they were well treated by people who ostracize them. And I'm for ostracizing people who egg on other people to shoot American Marines and American soldiers. I know you don't say anything but pro or crypto-Nazi I can think of as yourself failing that.

Jeet Heer: [00:27:50] So this is the state of American political discourse in Chicago in 68.

Hannah McCarthy: [00:27:55] So both inside and outside the convention, there's deep division, there's anger, [00:28:00] there's violence. It is a perfect microcosmic expression of the state of dissatisfaction and disagreement in America in 1968. And immediately following this mess. Nick, Mayor Daley claims that the violence was caused by the protesters who unleashed it on the cops. However, President Johnson's National Violence Commission requested an investigation and report on these events. The investigation reviewed tens [00:28:30] of thousands of pages of witness statements, thousands of eyewitness accounts, thousands of photographs, and nearly 200 hours of film of the events of these days. It concluded that most cops behaved responsibly, but that those who hadn't needed to be prosecuted. It said that some protesters were provocative and violent, but that most were peaceful. And most importantly, Nick, this report concluded that the violent events that had occurred in the streets [00:29:00] during the 1968 DNC was a police riot.

Nick Capodice: [00:29:04] So the president received a report saying that this was a police riot and that some police ought to be prosecuted.

Hannah McCarthy: [00:29:10] That's right.

Nick Capodice: [00:29:13] How did that turn into eight protesters being charged with conspiracy?

Hannah McCarthy: [00:29:18] Well, based on Mayor Daley's report, again, which definitely indicted the protesters. A judge in Illinois convened a grand jury to investigate protesters and law enforcement alike. [00:29:30] This grand jury process took six months. And in that time, Hubert Humphrey, the Democratic presidential candidate, lost to Richard Nixon.

Archival: [00:29:40] At almost midday Eastern Time, NBC News project projected Richard Nixon, the 37th president of the United States, when it became evident he had carried Illinois. Final returns may well reveal that indeed it was Mayor Richard Daley's Illinois and Mayor Richard Daley Chicago, which averted a deadlock and a political constitutional [00:30:00] crisis of incredible proportions.

Hannah McCarthy: [00:30:02] Johnson wasn't president anymore. The violence commission was terminated. President Nixon appointed a new attorney general, and that AG strengthened the case against the protesters. This is despite the findings of Johnson's Violence Commission, despite the fact that these protesters attempted to obtain permits. The Illinois grand jury finally decided to charge seven officers [00:30:30] with assault and one with perjury and eight protesters with conspiracy to use interstate commerce to incite a riot. Six of them also with crossing state lines to start a riot, and two of them with teaching demonstrators how to create incendiary devices for civil disturbance.

Nick Capodice: [00:30:48] Just to be clear, is that legalese for Molotov cocktails?

Hannah McCarthy: [00:30:51] Sure is.

Jeet Heer: [00:30:58] I think that the the government decided [00:31:00] to make an example of this and decide to really prosecute the people who are the instigators of the trial. And then I think it's a very telling point that they also went after the Black Panthers, a real source of anxiety and fear in the ruling class. The idea of sort of militant black organization that was armed and and preaching multiracial revolution. And so they have this kind of, you know, the leaders of the other anti war protesters and the Black Panthers. And they had this [00:31:30] big kind of trial and it became a spectacle.

Hannah McCarthy: [00:31:33] A spectacle in part because these defendants knew how to use media coverage and a stage, and they had both in that courtroom and a spectacle because of who presided over it all. Judge Julius Hoffman. Here's Gene Barr again.

Jeanne Barr: [00:31:51] He is, you know, thinks he's a liberal, thinks he's a defender of what is good and true in the American way. And he's under assault by this new generation, this new sort [00:32:00] of way of thinking and his own complicity and his own, you know, blinders on. What what's confronting him is inability to read the room, as we might say today.

Archival: [00:32:09] Judge Julius Hoffman ordered the family of Bobby Seale out of his courtroom today for sitting in the press section while the defendants family was barred. Other coveted press seats were occupied by social friends of the court who are not reporters. As the Black Panther Party chairman's wife and five other relatives entered the courtroom, the judge leaned over to a U.S. marshal and said, [00:32:30] Find out who these people are. If they don't have press credentials, get them out of here. The family was ordered to leave. Seale jumped up. Judge Hoffman, what about other black people who are not allowed to come into this courtroom? The judge relented, allowing Seale's family to sit in the back row. What the judge did not say is that private arrangements were made for people who are not reporters to sit in the press section throughout this trial.

Hannah McCarthy: [00:32:55] Throughout the trial, Judge Hoffman, no relation to Abbie, by the way, is met [00:33:00] with the scoffs, mocking and legitimate calls for meaningful due process by the eight defendants.

Jeet Heer: [00:33:06] Going to a courtroom. You're supposed to like everyone rises as the judge rises and you're supposed to pay deference to the judge. Now, the brilliance and madness and genius of Abbie Hoffman and Jerry Rubin was that they realized, like, well, what if we did that? Like, what have we did not respect the majesty of the law or whatever. We just turn this into a circus. And what are they going to do?

Nick Capodice: [00:33:28] What what did Abbie Hoffman [00:33:30] and Jerry Rubin do?

Hannah McCarthy: [00:33:31] Well, they did things like show up in judge's robes. One day when asked to remove the robes, they revealed Chicago police uniforms underneath as they wiped their feet on those judge's robes. Abbie did a headstand on the defendants table. Jerry Rubin told Judge Hoffman that he was the laughing stock of the world. He called him synonymous with Hitler. Tom Hayden read the names of those recently killed in the war. Abbie Hoffman brought in a Vietcong flag.

Archival: [00:33:59] There was a [00:34:00] physical fight in the federal courtroom in Chicago, where eight leaders of last year's anti-war demonstration at the Democratic National Convention are on trial for conspiring to incite a riot. A Viet Cong flag was. From the grasp of Abbie Hoffman touching off the most tumultuous incident of the trial, Judge Hoffman ruled that he would not allow enemy flags in his courtroom.

Nick Capodice: [00:34:28] This is just utter chaos. You just [00:34:30] you don't hear about this kind of thing happening in a courtroom. It doesn't sound real.

Hannah McCarthy: [00:34:35] Well, part of the point is that the defendants thought this whole trial was baseless in terms of conspiracy. The Yippies and the MOBE did not plan together and they did not do anything in secret. Never mind the fact that they asked for permits to do it or the fact that Bobby Seale had no connection to these groups. So the defendants believed this trial was political, that what was actually [00:35:00] on trial was the First Amendment right to petition, the right to, quote, appeal to government in favor of or against policies that affect them or in which they feel strongly that it was the US government trying to make a point about demonstrators who do not demure. And the defense lawyers, William Kunstler and Leonard Weinglass, they were with them on that.

Archival: [00:35:24] One final indication of what our attitude is. We've [00:35:30] decided to call our legal and political defense committee the conspiracy. We are people whose work against war, poverty, racism, corporate and military power is being called a conspiracy. We're proud of this work. We're going to continue it.

Jeet Heer: [00:35:47] The whole premise of their defense strategy was, well, this is already a farce, and if we treat it as if it's serious, then we're kind of like, you know, admitting that there's some sort of plausible claim here. We're conceding too much. [00:36:00]

Hannah McCarthy: [00:36:00] Meanwhile, Judge Hoffman is just throwing out one contempt of court charge after another. And in the midst of all of this, by the way, is Bobby Seale. Bobby Seale, who was not a member of the Yippies or the MOBE. Bobby Seale, who is not a friend and collaborator of any of the other defendants. Bobby Seale, who was at the Chicago protests to make a speech and then go home the next day. Bobby Seale, who had his own lawyer.

Jeanne Barr: [00:36:27] Right. You know, he has a long history. He's not it doesn't come out of nowhere. [00:36:30] He's got a whole persona. He's got a whole political organization. He's a known public entity. He's got his own lawyer. Right. So he's had his brushes with the law over the years and his lawyer is ill at the time of the trial, has just had gallbladder surgery and it's a convention of American trials. The judges usually say, oh, okay, well, we'll postpone out of courtesy to a lawyer who is ill legitimately. And he was and this judge didn't. And so he said that Bobby couldn't have his own lawyer. And Bobby was like, no, I'm not. I'm not going to trial without my own lawyer. That's my right. I have a Sixth Amendment right to have counsel [00:37:00] out of this. Bobby becomes enraged and incensed, rightfully by his treatment by this judge. Really, really just an unfortunate turns. He ends up making the decision, long story short, to bound and gagged Bobby at the witness stand. He gets basically carried out of the taken out of court forcefully one day and then carried back in, tied to a chair with a gag.

Hannah McCarthy: [00:37:21] Here's Bobby Seale speaking with Democracy Now! In 2018.

Bobby Seale: [00:37:25] I was bound up my head. The only thing you could see [00:37:30] is my my eyes and my nose. I was bound up with ace bandages. You know, the ace bandage you put around the knees when you're playing basketball, all stuff that tighten up. That's what I was. And then right around here, all the arteries just going down. And they brought me in the courtroom. My arms are strapped down to the wheelchair. My legs are strapped to the to the legs to the big, heavy wooden chair. The last day of gagging. And when I got in, I mean, I was losing blood pressure circulation. [00:38:00]

Nick Capodice: [00:38:01] So Bobby Seale is incensed at the sheer lack of justice and constitutionality and the response to his anger. The judge has him bound and gagged.

Hannah McCarthy: [00:38:14] Three days in a row. Bobby Seale is the only black defendant in the room, and he's bound and gagged on the order of an indignant white judge. It was shocking. It was galling. And it was really bad optics.

Jeanne Barr: [00:38:29] Right. So that that [00:38:30] was the atomic bomb. And then the judge issued a whole ton of contempt citations that were subject of protests outside the courtroom as lawyers around the country flew in to protest against the way the lawyers were being treated. So part of the legal breakdown of the trial certainly was a piece of the Bobby Seale part. They end up severing his case. So the Chicago eight becomes the Chicago seven. He ends up having his own trial. He's still alive. He sells barbecue sauce, among other things.

Hannah McCarthy: [00:39:03] The [00:39:00] trial began on September 24th, 1969. It ended in late February 1970. Over the course of the trial, Allen Ginsberg was called to the stage here at poetry and chanted Ohm. Timothy Leary was called to the stand. Jesse Jackson testified. Norman Mailer testified. What? Nick It was theater. And like Jean said, it was real. Judge Julius Hoffman issued over 170 [00:39:30] contempt of court charges against the defendants. When it came time for the jury to deliberate, Judge Hoffman on Brand didn't exactly stick with protocol.

Victor Goode: [00:39:41] At the end of any trial, a judge charges the jury at the charging phase. The judge says this is what the legal statutes require for a conviction. And if you find that these elements have been met, you can find a [00:40:00] verdict of guilty for these these defendants.

Nick Capodice: [00:40:03] Basically, the judge says, here's how the law works. Use all the information you've learned during this trial to apply that law and find a verdict.

Hannah McCarthy: [00:40:12] Yeah, but Hoffman didn't do that.

Victor Goode: [00:40:15] Hoffman, however, described the law and charge the jury in such a way so that rather than merely describing the charge to the jury, describing the law, actually in some ways began to argue [00:40:30] for conviction of guilt. There's no precedence for that at all.

Nick Capodice: [00:40:35] In other words, Judge Julius Hoffman sent the jury away with a strong bias. But did it have the desired effect?

Hannah McCarthy: [00:40:43] Well, first, Nick, the jury goes away to deliberate on the trial charges and Judge Hoffman goes ahead and convict everyone of his many, many contempt charges that he issued over the course of the trial. And this is something a judge does most certainly have the power to do in the United [00:41:00] States, issue sanctions when that judge determines that someone has been disruptive or disrespectful in the courtroom. And Judge Hoffman, he goes with some serious sanctions, indeed, sentencing the defendants anywhere up to four years in prison.

Nick Capodice: [00:41:16] Wait. So before they even know if they're going to be found guilty of conspiracy, they've got prison sentences based on just contempt of court.

Hannah McCarthy: [00:41:23] That's right. The jury came back, though, and acquitted everyone of conspiracy and Froines and Weiner [00:41:30] of all charges. They did find Abbie Hoffman, Jerry Rubin, Dave Dellinger, Tom Hayden and Rennie Davis, guilty of traveling between states with the intent to start a riot. It didn't stick.

Victor Goode: [00:41:45] The appellate court took a look at what Judge Hoffman had done and basically tossed all the convictions and, of course, admonished Judge Hoffman for the way in which he had conducted that trial.

Nick Capodice: [00:41:57] Wait. After all that, [00:42:00] after the violence in the streets, the conspiracy charges, the outrageous courtroom drama, did anything come out of it? Hanna Like what happened to the cops who were charged with assault and perjury?

Hannah McCarthy: [00:42:13] Nothing. Seven acquittals and one dropped case.

Nick Capodice: [00:42:16] And we know the war didn't end.

Hannah McCarthy: [00:42:17] It had another five years.

Nick Capodice: [00:42:19] So here's my question. Is there, there, there, or was this case just a loud disruption that didn't change anything like the antiwar protests [00:42:30] in Chicago in 1968?

Hannah McCarthy: [00:42:32] This is an important question. Does political theater, which I think we can safely say this case proved itself to be both on the part of the government and the defendants result in change?

Jeet Heer: [00:42:49] Well, I think that the basic lesson, which I think that the defendants all shared was an awareness of that the legal system is not just about laws, that there's also a sort of politics [00:43:00] implicit in it, and that the consequences of a legal trial aren't just like the decisions that are made, but exactly like it is. It got a huge amount of attention and changed a lot of attitudes and polarize a lot of people in different directions because the defendants realize that the courtroom is a state, the courtroom is an avenue of political theater, and that there are ways in which you can use the courtroom to reach a far wider audience than otherwise. And I think [00:43:30] that, you know, there's always been kind of significant, important trials. But I'm hard pressed to think of one where the courtroom was used so effectively to convey the message that the defendants wanted.

Hannah McCarthy: [00:43:41] And as far as law and policy goes, I asked Victor good about this. And he said, you know what? No, no laws changed following the riots or the case. But he also brought the whole thing back to the reason these eight men ended up in court to begin with protest whether they were allowed to do it, where they were allowed to do it, and how [00:44:00] they were allowed to do it.

Victor Goode: [00:44:01] What it did do is it caused other courts and other jurisdictions to say, well, look, maybe we need to apply this concept of time, place and manner and where your demonstrations can take place in a more balanced way. So we don't use these permits to create conflict and to create a situation where there is police abuse. Instead, let's try to allow the First Amendment to have its flowering [00:44:30] and to have its space.

Nick Capodice: [00:44:33] So this is the last thing, Hannah And we haven't actually called it out up until this point. You got thousands of young, angry protesters taken to the streets because of their dissatisfaction with violence, with government, brutal police violence, questions about constitutional rights, a massive divide in a party. So many of the events and problems that led to the Chicago seven eight trial are happening [00:45:00] in America today, over 50 years later. So did we actually learn anything from the wildness and spectacle and violence of the 1960s or of this trial? Or I guess can we learn anything looking back at it today?

Hannah McCarthy: [00:45:17] It's funny you should ask. Victor and I had this moment at the end of the interview when we were speaking about constitutional rights, about the government's role in upholding them, about our role and making sure the government does. And per usual, [00:45:30] Nick, when I talk about the weight of fundamental rights, I get a little bit overwhelmed. It really means something to me. I feel it on a deep level. And when I mentioned this to Victor. He essentially said, well, that's pretty much the whole point. That was the point in 1968 and that is the point now.

Victor Goode: [00:45:51] This is something that we have to feel. We have to not just think about it, we have to feel it. Because when you feel it, it makes it real. It causes you to [00:46:00] look around at things a little bit differently than you might have before. My experience in 1968, both in campus protests and demonstrations and being part of antiwar demonstrations and movements. Caused me to change my career approach when I went to law school. I joined the organization called the National Conference of Black Lawyers, and I joined them because their [00:46:30] declaration of commitment was to be the legal arm of the Black Revolutionary Movement. I didn't know where to go. I didn't know what to do. I didn't know what my life was going to become. But I knew that I wanted my life to become a life of meaning. I knew I wanted to have something to do with social justice. I knew I couldn't go back to the world that my parents grew up in. I knew that being a lawyer could be a tool in some ways. And [00:47:00] of course, as a lawyer, I quickly learned the limitations of that tool as well. But I hope, as some young people hear this podcast and many, many others, many, many others, I don't I don't claim to be unique in that respect that they will begin to ask some of the same questions of who am I and where are we going? As I began to ask in 1968 and let me underscore that not just who am I and where am I going, but who [00:47:30] am I and where are we going?

Hannah McCarthy: [00:47:43] That does it for the Chicago seven and eight eight here on Civics 101. Special thanks to the American Bar Association for working with us on this series. If you want a good dramatization of the trial of the Chicago Seven, Nic and I watched the Aaron Sorkin movie of the same name. And although Jeet here will rightfully tell [00:48:00] you that he did indeed ninety's Sorkin ize the series of events behind the trial of the Chicago Seven. It's still a pretty good movie, and it's got Mark Rylance in it, which should be argument enough. This episode was produced by me and McCarthy with help from Nick Capodice. Kristina Phillips is our senior producer. Jackie Fulton is our producer. Rebecca Lovejoy is our executive producer. If you like this episode, please consider leaving us a review on Apple Podcasts or wherever you get your podcasts. It actually means a lot to us and it's how you can tell us what you think. [00:48:30] Music In this episode by Viscid, Lars Eriksson, Ketsa, Ian Luxton, Vincent Vega, Anemoia, Blacktop Banks and Elliot Holmes. You can get transcripts, additional resources in everything else we have ever made at our website civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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How Powerful is the President's Veto?

The presidential veto is a powerful tool, but just how powerful it is depends on political context, timing, and party alignment. We'll pull back the curtain on the origin of the veto, how it works, and discuss moments when vetoes have had a real impact on our history. And yes, we'll even find out what the deal is with that pen. 

Our guests are Dr. Gisela Sin of the University of Illinois, and Ken Kato, a former historian at the U.S. House of Representatives. 

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TRANSCRIPT

Note: the following transcript was machine generated and may contain errors.

Barack Obama: I am not signing the piece of legislation that came down to me today. I am signing a veto.

Nick Capodice: The President is sometimes referred to as the most powerful person in the world. And just think about the kinds of power they have. They are the commander in chief of the armed forces, for example.

Hannah McCarthy: They have access to the nuclear codes.

Nick Capodice: And what about this? They have the power to block a bill from becoming law. Fun etymological fact: the word veto comes from the Latin for "I forbid."

Hannah McCarthy: Hmm.

Bill Clinton: Congress has sent me the tax bill I have repeatedly pledged to veto.

Hannah McCarthy: This is Civics 101. One, I'm Hannah McCarthy.

Nick Capodice: And I'm Nick Capodice. And today we are talking videos. We're going to take a closer look at the history of vetoes, the process and the different ways the President uses that veto pen to make a political point. But first, let's talk about why the President has veto power in the first place.

Dr. Gisela Sin: So vetoes are an important element of the constitutional design of checks and balances.

Nick Capodice: That is Dr. Gisela Sin. She's associate professor of political science at the University of Illinois.

Hannah McCarthy: And that constitutional design of checks and balances, that is the way the Constitution gives each branch of the government - legislative, executive and judicial - the ability to check the other branches, in other words, to prevent them from collecting too much individual power.

Dr. Gisela Sin: So the veto power is one of those institutions that translates this principle of checks and balances into concrete rules and procedures. First, a proposal can receive a majority in the House and the Senate. And the President consents or receives support from a majority of the House, a majority in the Senate.

Nick Capodice: Now, Congress may still override a veto from the President, even if the President vetoes the law. That's something we'll get to in a minute.

Hannah McCarthy: So basically, the President can check Congress and then Congress can check the President back. But where did the concept of veto originate?

Nick Capodice: It first appeared in the early Roman Republic constitution.

Dr. Gisela Sin: In this Republican Constitution, there were two executive official two consoles, and they were granted the right to veto the actions of each other. And the arrangement was basically designed to curb the exercise of arbitrary authority that had occurred before with the monarchy.

Hannah McCarthy: What does she mean by arbitrary authority?

Nick Capodice: Yeah, that's the way in which monarchs could make unrestricted decisions without consulting the people at all.

Dr. Gisela Sin: And then with time, the plebeians also have representation for themselves in the political institutions of the Roman Republic.

Nick Capodice: Now in Rome, there were also enslaved people who had no political representation. Those who did were known as plebeians. They were considered free commoners.

Dr. Gisela Sin: They were represented by officers that were called tribunes, who were also granted a veto power over the actions of the consuls. And originally, they can only they could only be used to protect the plebeians from injustice and violence.

Hannah McCarthy: All right. So the veto started as a means of checking the arbitrary exercise of political power in ancient Rome. Now. How did it become a part of the American system?

Nick Capodice: Well, the framers of the Constitution were certainly inspired by the historical republics. We've covered that in past episodes, and we've talked about the language of the Constitution and the structure of the democracy. But they were also thinking a lot about their own, much more recent history.

Ken Kato: For the late 18th century. There was the time of the founders. There really was a sense of trying to avoid tyranny.

Nick Capodice: That is Ken Kato, former associate historian of the US House of Representatives. He spoke with Civics one on one in 2017.

Ken Kato: So they created a system of mixed government the one, the few, the many.

Hannah McCarthy: Which is how we ended up with an executive, a leader. That's the one. But then you also got the judiciary, the few, and then the representational democracy of Congress, the many. So if the founders were afraid of tyranny of the kind of authority granted to the king, why did we still end up with a veto?

Nick Capodice: Well, we'll get to the reasons why Presidents utilize their veto authority in just a little bit, but let's go back to their constitutional beginnings. While the veto existed in some form, in some early state constitutions, it was frankly a controversial topic. During the Constitutional Convention, some delegates argued it would give the President too much power, and others argued it was essential to preserving the balance of power between the executive and legislative branches. And ultimately, the delegates reached a compromise. The President would have the power to veto laws, but Congress could override the veto with a two-thirds majority.

Hannah McCarthy: Which is about representing the will of the people. That's what Congress is there for. So if two thirds of them strongly support something, even if the President vetoes it, Congress can still say, no, this is what the people want and it's going to happen.

Nick Capodice: Yeah, it's all about political context and timing, and the veto isn't always as powerful as he might think.

Dr. Gisela Sin: So sometimes the ability to veto legislation gives the President a lot of influence, but other times it gives him little or no influence at all. So as we know, to enact legislation, a simple majority in the House and the Senate is needed and veto override requires two-thirds majority. So if the President does not like a bill, but knows that more than two-thirds of House members and senators are willing to vote for it, then the President's ability to veto legislation is not very useful because, you know, two-thirds will override it. So it gives him no power at all.

Hannah McCarthy: How often does this happen, the veto override?

Nick Capodice: Not very often, because as you and I both know, Hannah, one party doesn't always control both the House and the Senate. And even when they do, there still has to be a lot of bipartisan political consensus on a bill or strong party majority in these chambers to get to that two-thirds vote count. For example, there was only one veto override during Donald Trump's administration, one during the Obama administration, and four during the George W Bush administration. And of course, the President generally knows when the override is likely to happen, based on the consensus around the original passage of the bill.

Hannah McCarthy: Why would the President bother issuing a veto knowing that it will be overridden? Kind of seems like a pointless exercise.

Nick Capodice: Yeah. On the surface it may seem pointless, but there are political points to be made scored by vetoing a bill. The President is sending a strong message to Congress and the American people that they disapprove of the legislation and the veto might also put pressure on individual members of Congress, maybe those in the President's own party, to reconsider their position on the bill. And finally, Hannah, a veto gives the President an opportunity to offer alternatives on a bill. We'll get into veto overrides in more depth later on.

Hannah McCarthy: And can we talk about those vetoes that actually stick?

Dr. Gisela Sin: So the President veto has power when the coalitions that want to do something in Congress commands a majority in both houses, but it is not large enough to get the two-thirds vote.

Nick Capodice: A coalition, by the way, is a group of lawmakers who come together to support a piece of legislation.

Hannah McCarthy: So that's kind of the sweet spot for the President's veto pen when they just get to say no to a bill. And that's that.

Nick Capodice: Yeah, exactly. But don't forget, while the President does have this power to keep bills from becoming law, the veto can't be used to keep members of Congress from debating the bill in the first place. A veto cannot interrupt the normal process of legislation. Now, veto can be used to some extent to score political points like members of Congress can say to their constituents, Hey, this is the law we wanted, but it was the President that kept it from happening. They can even brag about passing a bill, even if it was a bill they knew was going to be dead in the water.

Hannah McCarthy: I could even see a legislator using the threat of a veto or the veto itself to their own political advantage, right?

Nick Capodice: Yeah. If the President has already signaled they're going to veto a bill, it won't stop legislators from debating it on the floor, talking about it with the press, and letting their constituents know that they were trying to serve the people's needs. But the President was getting in the way. It's like members of Congress are saying, look how hard we tried to represent you and look how your President is stopping us. And another thing that determines the power of the veto. This is an old joke. Hannah, ask me, what's the most important element in comedy?

Hannah McCarthy: Nick. What's.

Nick Capodice: The timing? My dad loved that joke.

Dr. Gisela Sin: If the President faces a veto decision at the end of a congressional term, there is not enough time for negotiations. That is at the beginning or at the middle of the term. The President can use his veto to negotiate a bill he likes more, a bill closer to what he wants.

Nick Capodice: For instance, if the President vetoes a bill at the beginning of the term, then Congress has time to go back to the drawing board and come up with legislation that the President might accept. And these are some back and forth negotiations over a bill, you know, the President vetoes and then Congress passes something new to try to get a compromise in the middle.

Dr. Gisela Sin: But at the end of the term, there is not enough time for this bargaining with the additional pressure. Also that at the end of the term, there's always, you know, legislators have to go campaign. And also there's the additional pressure that the next Congress might be different, that the President might also be different, that the priorities might have changed. So at the end of the term, the vetoes are not really a powerful negotiation tool.

Nick Capodice: After the break, we'll discuss the different types of vetoes and times when vetoes have actually been used to strategically shape the laws of the United States, as well as some interesting facts about the veto pen itself.

Hannah McCarthy: Before the break, over the course of every one of these episodes, Nick and I discover a lot of information that ends up on the cutting room floor. Luckily, we have a place to sweep all those cuttings in to tell you about. It is called Extra Credit. It is our newsletter. We also put in updates about the show, things that are going on in the world. It's basically a little glimpse into what we talk about behind the scenes, and it's a way to keep in touch with you. It is a super not-annoying thing to look forward to in your inbox and I warmly recommend that you subscribe. You can do that at civics101podcast.org.

Barack Obama: You know, I haven't used the veto pen very often since I've been in office, partly because legislation that I objected to was typically blocked in the Senate even after the House took over, Republicans took over the House. Now, I suspect there are going to be some times where I've got to pull that pen out.

Hannah McCarthy: This is Civics 101. And today we were talking about the Presidential veto. Just really quick, I've watched coverage of vetoes and legislation signing ceremonies, and everyone seems to be really interested in the pens for some reason. There's always this moment where after the President signs something, he then takes a stack of pens and just hands them out to important people in the room. What is the deal with the pen?

Nick Capodice: What is the deal with the pens? What's the deal with the veto pens? Hannah, absolutely. That is for sure. There's a big deal with the pens. Since the veto power is such a powerful check on the government, the pen itself symbolizes its importance. Pen Vibe, a go-to site for pen and pencil enthusiasts, reports the CEO of Cross Pens presented President Gerald Ford with a desk set of 12 karat gold pens and pencils in the 1970s, and Ford became a fan of that brand of pen. And after that, most Presidents have stuck with that brand from Cross Townsend. The pens, by the way, are produced at a plant in Rhode Island that's been around for more than 170 years now. The Cross Townsend collection that former President George W Bush amassed is on exhibit at the Presidential library. President Bush also utilized official White House sharpies to sign stuff.

Hannah McCarthy: Yeah, I've heard that President Donald Trump also like to use the Sharpie. What about the tradition where we see the President using a whole bunch of pens to sign something and then giving the pens away? Is that something that happens with vetoes?

Nick Capodice: Well, here's Ken Kato again. He worked as an historian at the House of Representatives.

Ken Kato: Presidents and members of Congress love to claim credit. Lyndon Johnson was was the master of that. He could sign something with as many as two dozen pens.

Hannah McCarthy: To sign just one thing.

Nick Capodice: Just one thing, one signature, sometimes different pens for different letters of their name. And then they just hand each of those pens over to one of the people in the room who'd been a supporter of whatever they were signing. And it would become a souvenir.

Ken Kato: And you can go on Capitol Hill and go into an office and you'll see a pen framed with a facsimile of the bill that had been signed into law. Vetoes don't usually make that, but they certainly can. And of course, there's the rhetorical one. I will use this pen to veto any legislation you send me.

Nick Capodice: But there are a number of steps that bill has to take before it reaches the President's desk. Whether the President plans to sign it or veto it, whether that pen is going to come out of the drawer at all. For example, the President is not always making the decision to veto on their own. They get advice from elsewhere in the executive branch.

Ken Kato: The Office of Management and Budget in the modern time would review the bill and decide which departments and agencies should have the option of making a recommendation to sign the bill into law or not.

Nick Capodice: The Office of Management and Budget is extremely complicated, but in simplest terms, the OMB evaluates a bill and reports on budget implications, policy points and other issues. The bill might raise ripple effects, if you will, if it were to become law, and then the OMB sends it out to the departments that need to weigh in before making a recommendation as to whether the President should sign it.

Hannah McCarthy: So a President could decide to veto because they don't like a bill. It goes against their goals as President or their ideology. But they could also decide to veto a bill because the OMB says it's not a good idea. Does the President have to explain to the public why they are vetoing a bill?

Ken Kato: The Constitution requires a written justification for not approving the bill.

Nick Capodice: The President's veto statement is a document that formally explains why the President vetoed a bill. And sometimes that statement is written by the OMB or the agency that recommended the veto for policy or budget reasons. And these statements vary in their length and complexity.

Hannah McCarthy: And sometimes the President makes kind of a spectacle of the veto process, right? Like I'm thinking of the times we see the President presenting their rationale for their veto or potential veto on television.

Barack Obama: We can't put the security of families at risk by taking away their health insurance or unraveling the new rules on Wall Street or refighting past battles on immigration. When we've got to fix a broken system and if a bill comes to my desk that tries to do any of these things, I will veto it. It will have earned my veto.

Nick Capodice: Yeah. We don't actually see every veto on TV. The more politically divisive or controversial or high-profile bills, those are the vetoes the President often likes to do in front of a crowd. But the lower profile ones, they just get the statement.

Hannah McCarthy: So what happens next?

Nick Capodice: Well, then the bill goes back to either the Senate or the House, whichever part of Congress it started in. And then the legislators can try to override the veto.

Ken Kato: To override a veto. That would be an attempt to pass the law as they originally passed it. If they really feel strongly about a bill. They will debate it. Vote on it. The Constitution requires two-thirds of each house by the yeas and nays, which means a roll call vote. It has to be recorded.

Hannah McCarthy: And if both the House and the Senate pass it by two-thirds, then it becomes law.

Nick Capodice: Yes, the President can't do anything to stop it.

Hannah McCarthy: Now, what if members of Congress know that they won't get this two-thirds to override the President's veto, but they really want the bill to become law? Does the President get to make suggestions for the bill? Do they get to say, I'll sign it if you do these things.

Nick Capodice: If the bill has already reached the President's desk and been vetoed? Congress basically has to start over.

Ken Kato: Once they start tinkering, then there they have essentially started the legislative process back at square one.

Nick Capodice: So it is essentially a new bill.

Hannah McCarthy: So what is the time frame for how long the President has to veto a bill?

Dr. Gisela Sin: If Congress is in session, the President has ten days to veto legislation. If he does not veto legislation, within ten days, the legislation becomes law.

Nick Capodice: That again, is Professor Gisela Sin from the University of Illinois.

Dr. Gisela Sin: However, if Congress is not in session and the President does not sign the bill, that bill is considered a veto. And that's what we call a pocket veto.

Hannah McCarthy: All right. So a pocket veto is when the President takes no action at all before Congress ends its session. As long as the session has ended within that ten day time frame or has already ended when the bill reaches the President's desk. So, in essence, the President gets the veto without having to go through the veto process at all.

Nick Capodice: Right. The President essentially just lets the clock run out. And again, if ten days pass and Congress is still in session, not including Sundays, yes, that bill becomes law. But if Congress isn't in session after those ten days, it does not become law. This pocket veto is a tool that President James Madison first used in 1812.

Hannah McCarthy: Now I know that bills passed by Congress can often have a lot of stuff in them, right? Like items that have little or nothing to do with the main part of the bill. What happens when one of these huge, weighty bills gets to the President and the President maybe likes parts of it, but not all of it.

Archive: The other was intended to help small farmers, but the way it was written, most of the tax break would have gone to one sugar beet refinery and its major stockholder, Texas multimillionaire Harold Simmons, a Republican donor.

Nick Capodice: For a very short time from 1996 to 1998. The President did have the power to do something called a line item veto, and that allowed them to veto certain sections of a bill passed by Congress.

Archive: President Clinton used his line item veto muscle to knock off three provisions in the new balanced budget.

Dr. Gisela Sin: But they are a type of veto in which the executive can get rid of parts of a bill. So maybe an article, maybe a whole section. And in the most extreme, sometimes it can just get rid of a word. So imagine if it gets rid of a you know, you cannot do that and it gets rid of the "not" and it means you do that.

Hannah McCarthy: It sounds like the most important thing about the line item veto is that everything that doesn't get changed becomes law.

Nick Capodice: Right. Although Congress approved the line item veto. It was struck down by the Supreme Court in 1998 in the case Clinton v City of New York.

Hannah McCarthy: What was the rationale there? Why did the Supreme Court say the line item veto was unconstitutional?

Nick Capodice: Well, the Supreme Court said that line item vetoes violated the pre sentiment clause of the Constitution. That is the clause which says that the President can sign or veto an entire bill but not amend the bill.

Hannah McCarthy: All right. So what happens now with these big bills since line item vetoes are no longer a thing? Do they have to live or die as they are?

Nick Capodice: Yes and yes. These so-called omnibus bills with myriad items have become more and more prevalent and with them has grown this kind of politicking between the White House and Congress, which seems to just be making these bills bigger and bigger.

Dr. Gisela Sin: So lately we have had the omnibus, a lot of omnibus bills where there are a lot of issues inside. And also in many in many bills, what you get is a lot of earmarks and pet projects for different legislators, which are needed, in fact, to gather support for a bill, something that I don't care much about. But it will - okay, if you give me something there, I'll vote for it. And the President, in fact, I mean, many times it says I'm going to veto the bill unless you unless you remove X, Y and Z. But then there's a lot of influence by the President simply because he or she threatens to veto a bill.

Hannah McCarthy: What I'm hearing is that a President can have an impact on legislation long before it reaches their desk for signature.

Dr. Gisela Sin: The veto really forces members of Congress to consider the President's preferences when they write and when they vote on the legislation. So many times legislative outcomes are different because the President's veto power.

Hannah McCarthy: So the veto power means that negotiations happen with the White House before a bill is even voted on by the legislature. But does that mean the President is affecting the work of Congress, especially when they threatened to veto unless Congress does what the President wants?

Nick Capodice: Yeah, you can think of it that way, but you can also think of it as just sort of a way to get stuff done. Because with this two-branch process of passing laws, especially in a politically divided government, when the executive and legislative branches are controlled by different parties, vetoes are likely to happen a lot more frequently. And even when the government isn't divided, it can be difficult because within the same party, political agendas aren't always in alignment. So negotiations are kind of a test where the President and the legislature will ultimately have to agree. So the veto gives the President some influence, but it also gives the legislature a place at the White House bargaining table.

Hannah McCarthy: All right. Can we talk a little bit about some of the most historically significant Presidential vetoes, like the vetoes we remember, because they changed the course of government, maybe?

Ken Kato: Andrew Johnson is probably the father of some of the most important ones. Soon after Lincoln's assassination, Johnson vetoed Republican legislation for civil rights for African-Americans and the Freedmen's Bureau, which was supposed to provide education and welfare support for freed slaves to become full citizens. Johnson's successful veto of this legislation in many ways condemned the United States to another century, where African-Americans were second class citizens.

Hannah McCarthy: Now, how did Johnson justify that?

Nick Capodice: Andrew Johnson, who was a Southern Democrat, essentially said that formerly enslaved black Americans shouldn't get the help that white people in poverty never had, and that it would make them too dependent on the government. And I want to add here that Johnson vetoed this Freedmen's Bureau act not once, but two times. Congress couldn't really rally together to get that two thirds majority to override it. So a few months later, they proposed a more moderate version of the act. Johnson vetoed it again, but this time Congress got the two thirds majority and overrode the veto. That override notwithstanding, this was a pretty clear message to Southern Democrats that Johnson was going to support them and keep pushing against the Freedmen's Bureau, resulting in its eventual abandonment in 1872.

Hannah McCarthy: Okay. Well, in that case, clearly, the lawmakers in President Johnson's own party were aligned with him on that particular veto. But the President's ever faced legislators in their party who wouldn't agree with their veto.

Ken Kato: That's what the focus of checks and balances has always been on. Representatives, senators and the President all have, in their own way, different constituents that can create conflict, even if they all belong to the same party.

Hannah McCarthy: What does that conflict within the party look like?

Nick Capodice: Yeah, I have an example. In 2006, President George W Bush ran into this issue.

Archive: President Bush today defended a decision to entrust some of the operation of six U.S. seaports to a company owned by Dubai, one of the United Arab Emirates. The President reacted to growing criticism from lawmakers, including members of his own party.

Ken Kato: A company from Dubai won the contract to be in charge of all the ports on the East Coast. Four House members, many of them Republicans, were up in arms about someone from the Middle East taking control of all our ports, even though Dubai was and is an ally of the U.S. in the war against terror.

George W. Bush: I think it sends a terrible signal to friends around the world that it's okay for a company from one country to manage the port, but not a country that is plays by the rules and has got a good track record from another part of the world. Can't, can't manage the port.

Ken Kato: George W Bush threatened to veto any legislation preventing Dubai from being in charge. He had to give up his veto threat, had to be swallowed because the public opinion and the members of the House were just not going to go along with the President.

Nick Capodice: So sometimes the threat of the veto isn't strong enough to stand up to the might of Congress, but it is still a very powerful tool of the office. It allows the President to have authority over which laws are passed, and it gives the President leverage in negotiations with Congress.

Ken Kato: It's almost inevitable there very few Presidents since the early, early Presidents who haven't vetoed legislation at some time or another. In fact, Franklin Roosevelt was once quoted as saying, "find me a bill to veto because he didn't want to be taken for granted by Congress."

Nick Capodice: One last trivia tidbit, Hannah. Can you guess which former US President's veto pen was busier than any other?

Hannah McCarthy: You have a pretty good guess. It's FDR. It's got to be, right?

Nick Capodice: How many times do you think he did a veto?

Hannah McCarthy: I don't know. Like. Yeah, like 400, 500,

Nick Capodice: 635.

Hannah McCarthy: Whoa. Well, I mean, when you're President for that long, what are you supposed to fill your time with? Right? Veto here. Veto. There.

Hannah McCarthy: This episode was produced by Jacqui Fulton with help from executive producer Rebecca Lavoie. Civics 101 is hosted by me, Hannah McCarthy and Nick Capodice. Christina Phillips is our senior producer. If you were just discovering civics one on one now, welcome. We're glad you're here. And we have a lot more where this comes from. You can follow us on Apple Podcasts, Spotify or wherever you get your podcasts.

Nick Capodice: Music in this episode by Blue Dot Sessions, Anna Moya, Mike Franklin, Max Anson, Faruk, Dex 1200 Bonneville, Peerless and Cirque Nouvelle. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Disinformation and Misinformation

In preparation for the upcoming midterms, we talk about lies. This is the true story of the fake world created in disinformation campaigns. The voting populace spreads it like there's no tomorrow, without ever knowing what's real. We tell you what it is and how to avoid it. Our guests today are Samantha Lai of the Brookings Institute and Peter Adams of the News Literacy Project.

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Transcript

Misinformation and Disinformation: Audio automatically transcribed by Sonix

Misinformation and Disinformation: this mp3 audio file was automatically transcribed by Sonix This transcript may contain errors.

Hannah McCarthy:
I either have a cold or this is a really bad deepfake.

Nick Capodice:
I'm Anna McCarthy.

Hannah McCarthy:
Do you know what genuinely chills me? Maybe I fervently believe something that is not true, and I probably do. I'm probably guilty of that and I don't even know it. Like, what have I defended in my life that is simply false? Or worse, what have I defended that is indefensible? You know, that is a mortifying thought.

Nick Capodice:
Yeah, it shakes me to the core when I'm disabused of myths that I believed were true like that people's names got changed at Ellis Island, for.

Hannah McCarthy:
Example, or something, you know, way more serious, like saying there's a human trafficking ring led out of the basement of a pizza place.

Nick Capodice:
Yeah, like that.

Hannah McCarthy:
Which we're going to talk a bit about all in good time, because the name of the game today? It's lies.

News archival:
Some of the most brazen acts of voter fraud to date. Sworn affidavit saying people are forging signatures, growing examples and frankly, affidavits of ballot irregularities and outright illegality, tampering allegations to the the dead people voting. We don't know how many votes were stolen on Tuesday night. We don't know anything about the software that many say was rigged. We don't know. We ought to find out.

Hannah McCarthy:
This is Civics 101. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And today we are talking about one of the most insidious and uncontainable obstacles facing any American who wishes to vote their conscience in this year's midterm election. We're talking about misinformation.

Nick Capodice:
And just to be crystal clear, because sometimes I feel like the word misinformation actually sort of skirts the truth of the matter. Misinformation is false information, like you said, lies.

Hannah McCarthy:
Okay. I did use the word lies. And honestly, that was a little misinformation, because in truth, doesn't a lie imply intention?

Nick Capodice:
Yes, a lie implies an active choice. There is an intent to mislead somebody else.

Hannah McCarthy:
So misinformation is actually a little bit different.

Samantha Lai:
I'm going to take a second to just set up some definitions. So I'm going to use both misinformation and disinformation during these podcasts.

Hannah McCarthy:
This is Samantha.

Samantha Lai:
My full name is Samantha Lai L-A-I. I am a research analyst at the Brookings Institution Center for Technology Innovation.

Nick Capodice:
Okay. And I've heard the term disinformation, but I've always pretty much equated the two misinformation and disinformation as being kind of the same thing.

Samantha Lai:
These are slightly different terms. So misinformation refers to false information that people might promote or spread, not intentionally to deceive someone, because often a lot of us might see things on the Internet and think that it's real. But turns out it's not disinformation. However, people who spread it often spread it intentionally to deceive people. So that's the key difference between these two terms.

Nick Capodice:
So disinformation is the lie part of the information chain, correct.

Hannah McCarthy:
And probably the bad actor part, especially when it comes to elections. Disinformation is the purposefully misleading statement or claim that is conjured up and shared in order to make people believe something other than the truth, and often to make them believe it fervently. So when that has to do with an election, the end goal tends to be to influence the election's outcome.

Nick Capodice:
Okay. And then misinformation is when other people encounter that disinformation lie and spread it around thinking it's actually real.

Hannah McCarthy:
Yeah, believe it's real or think that maybe it has some credence to it or, you know, it sort of smacks of truth. That is the simple, ugly way that it works.

Samantha Lai:
There are a couple of kinds of disinformation that bad actors can post to confuse or discourage voters. So one approach would be to spread false information on voting dates and polling locations. So, for example, during the 2020 elections, a tweet on Super Tuesday targeted supporters of Kentucky candidate Matt Bevin and said inaccurately, Bevin supporters don't forget to vote on Wednesday, November sith, which is the day after the election.

Nick Capodice:
And that wasn't a mistake.

Hannah McCarthy:
Nope.

Nick Capodice:
And I'll take it that tweet wasn't from the people who wanted Bevin elected.

Hannah McCarthy:
You take it correctly. This tactic comes in many forms. It's subtle tweaking a single piece of information, often in a way that seems helpful in an attempt to keep people away from the polls. Sometimes it's Hey, text this number to vote by text. You text that number. Your vote you probably get your vote has been submitted. Good for you. Text back. Easy. It's done. Now, I want to make very clear right here, right now that there is not a state in the nation that permits voting by text. This is not real. You may also see news that you know Candidate X has dropped out of the election last minute. Oh, what a shame. Or Candidate Y has already won. There's no need to vote. All of it is made up, all of it designed to keep you from voting.

Samantha Lai:
Another approach here in terms of messaging is intimidation, which often primarily targets historically marginalized groups. So this includes threats of people bringing guns to the polls or law enforcement presence at polling places. So, for example, before the 2018 elections, ICE had to publicly refute rumors on social media that they would be conducting enforcement operations at polling places. We also have messaging, exploiting common doubts, particularly among black and Latino voters, on the efficacy of the political process. So this can include messages on how the system doesn't work for you, your vote doesn't matter, and other attempts to just disenfranchise voters of color. And this echoes interference strategies deployed in 2016 by the Kremlin backed Internet Research Agency, who disproportionately targeted African Americans during their interference in the 2016 US presidential elections.

Nick Capodice:
I feel like you covered this in our episode on election security. There's a difference between how messed up the system actually is and how messed up bad actors want you to believe the system is.

Hannah McCarthy:
And like Samantha said, for many people or groups, this type of disinformation is specifically designed to play on totally legitimate and experience based fears and concerns.

Samantha Lai:
Because you have to have some doubt in order to be convinced. Like, if I looked at you and was like, Did you know that the sky is actually green? You would simply say No, because you can verify with your own eyes. That is not the case. Misinformation. The reason why is what makes it so effective. It's because it exploits people's common doubts and common fears. For example, looking at misinformation, targeting historically marginalized groups, why is it so effective and why is it so devastating? And why is that a civil rights concern? Because historically marginalized groups have been historically disenfranchised, and there are a lot of narratives that also carry some grain of truth in it, in sense of their underrepresentation.

Nick Capodice:
In other words, disinformation aimed at discouraging groups who already feel discouraged by voting.

Hannah McCarthy:
Exactly. Voters who are in seemingly gerrymandered districts, or for whom it is difficult to obtain an ID or to get time off work or to even make it to their polling place. Or, you know, people who have to stand in absurdly long lines. These are chronic real obstacles, and bad actors will exploit this sense that those voters have of being disenfranchised disinformation will say, You know what, you're right and it's worse than you think. Why don't you just stay home?

Samantha Lai:
We see right now that there is a heightened level of distrust towards our government, towards news agencies. There's a lot of resentment and polarization where you have people turning to alternative news sources, not trusting mainstream news sources that allows misinformation and disinformation to thrive because of a lot of fears and uncertainties people have about how what is actually going on.

Nick Capodice:
It's so insidious, Hannah, this idea that you might be targeted with disinformation that carries a grain of truth, and then that little grain of truth is rooted in historic disenfranchisement, right?

Hannah McCarthy:
Among groups of color groups who might have barriers to physically accessing the polls. Now, I want to introduce someone here. This is Peter Adams.

Peter Adams:
You can introduce me as the either the head of research and design at NLP or the senior Vice President of Research and Design.

Nick Capodice:
NLP?

Hannah McCarthy:
The News Literacy Project, which is a company entirely dedicated to teaching people how to separate fact from fiction. So those people who already feel underserved by the system, they are going to be increasingly vulnerable as we near Election Day.

Peter Adams:
Someone telling you that your vote is going to be changed or lost or subverted if you vote by mail. I've got some particularly pernicious rumor because it winds up disenfranchising people who maybe can't vote that day decide not to vote by mail, or they think they're going to vote on Election Day and they don't make it to the polls. There are also rumors that localized rumors like the lines are impossibly long at this polling place when they're not, you know, just view all that with a grain of salt. There are bad actors out there who will try to dissuade people from voting, targeting certain districts that tend to vote one way or another, and trying to dissuade people in that district from even turning out in the first place by circulating rumors. So just don't take election information from social media and, you know, do your very best to vote on Election Day, I think is sound advice.

Nick Capodice:
All right. That is sound advice. And I want to talk about social media in a minute here, Hannah, but what about the other kind of lie? Like not the lie designed to further disenfranchise marginalized groups, but the lie designed to stoke a different kind of fear and anger?

Hannah McCarthy:
Yeah, well, let's start with a major fear and major anger. One that plays on the deepest sense of good and evil. In 2016, just before the presidential election, a conspiracy theory made its way around social media, claiming that several people high up in the Democratic Party were running a human trafficking ring out of several restaurants. One of these was a pizzeria called Comet Ping Pong.

Peter Adams:
There are lots of stories about people losing loved ones to QAnon beliefs that are entirely baseless. But I think the incidents like the one in Cincinnati or at Comet Ping Pong back in 2016, I think the pizzeria in Washington are tragic and alarming and good reminders that even though they're not exceedingly common, that this kind of stuff is very serious and it can result in people taking real action. Edgar Welch, who went to the pizzeria based on QAnon falsehoods. Right. Thinking that there was something nefarious happening in the basement there, when in fact, there's no basement in the building, you know, brought a rifle shot at once and figured out there was no basement and surrendered. It was much more tragic in Cincinnati. Right. But this person took action at an FBI office based on something they believe about the recent raid on Mar a Lago.

News archival:
A deadly end to a standoff in Clinton County. This story started hours earlier at 915. And Sycamore Township police say a man tried to break into the FBI building.

Peter Adams:
You know, again, I think these are reminders of how serious it can be, but we shouldn't lose sight of the everyday impact on ordinary folks who sort of fall down rabbit holes with the best of intentions, looking for answers, trying to interpret complex realities. But they fall for four simplified narratives. Conspiracy theories are very attractive because they give people kind of a good, bad version of the world as complicated as they can be. They're very simple at their base.

Nick Capodice:
That is an interesting point, because conspiracy theories can be wildly complicated. In this case, it wasn't just a nonexistent trafficking ring in a nonexistent basement of a pizza joint. It was a Hillary Clinton run trafficking ring. So what the theory did was take the person who many people politically and socially disagreed with and made that person pure, unadulterated evil. Disagreeing is nuanced. It's how we do politics. Condemning evil is not.

Peter Adams:
They're very simple at their base, right? There are bad people trying to just, you know, dupe everyone and subvert our democracy is basically the the storyline of QAnon. And it's attractive to think that that things are that simple and that there is some enemy cabal that you could that you could just root out. But the reality is much messier.

Nick Capodice:
So what about other examples of conspiracy theories like a stolen election, or even the idea of a poll worker tampering with ballots or widespread voter fraud?

Hannah McCarthy:
These are still examples of conspiracies born of disinformation, which is then followed by the spreading of misinformation. And a lot of them involve being unhappy with election results and or not understanding how elections work. Lo and behold, the simple answer is provided to you on a silver platter the disinformation that vindicates you and gives an appealing explanation for why things seem a certain way.

Peter Adams:
I think, you know, the biggest concern is just just misperceptions about fraud or mis-recognized things that are totally normal parts of of elections being perceived as fraud, because people have now been primed to believe that fraud is common when it's not.

News archival:
Just make sure your vote gets counted. Make sure. Because the only way we're going to lose this election is if the election is rigged.

Peter Adams:
Remember that they are primed to believe it's easier to pull off than it is, and it has an impact on election workers. It has an impact on people who might be designated agents, who deliver ballots to boxes from, say, nursing homes, who might be confronted by people who have decided they're going to monitor those boxes for anyone dropping more than one ballot.

Hannah McCarthy:
And Peter says you also have to consider the motivation of the bad actor, the person at the top of the disinformation to misinformation pipeline.

Peter Adams:
Of all the allegations of improprieties. None of them were really borne out by evidence, you know, case by case by case, especially in I mean, again, these tended to cluster in swing states, right? So number one, that was an attempt to to sort of move electoral votes in key places. There's zero evidence at the end of the day that there was any kind of significant voter fraud that could come anywhere close to changing the outcome in any given state, much less the election overall. All the audits that have taken place, all of the reviews, all of the accusations have all come to naught. And the evidence is just not there and evidence matters.

Hannah McCarthy:
And all of this accusations of tampering, of destruction, of ballots, of devious poll workers, etc., Peter says it's coming for us again in 2022.

Peter Adams:
You know, most experts who are looking at election disinformation believe that we're just going to see a lot of the same narratives get pushed because they've now taken root almost as conventional wisdom among among some folks. And so they're still very effective.

Nick Capodice:
Alright. So we've got bad actors with appealing ideas running rampant, and you're telling me it only gets worse around an election? So what are we supposed to do? What are we supposed to look for? How do we separate the lies from the truth?

Hannah McCarthy:
That's coming up after the break.

Nick Capodice:
But first, we cannot tell a lie. We need you know, really, we do civics. One on one is public radio. It's yours, it's your radio. And we're sustained by the public, which is you if you have some spare change and a willing heart. Head on over to Civics one one podcast at npr.org and click the donate button to contribute to the show or just click the link in the show notes. It doesn't just keep us going. It tells us you're out there and this show means something to you.

Hannah McCarthy:
We're back. This is Civics 101. And we're talking disinformation and misinformation.

Nick Capodice:
Which, as Samantha Lai told us earlier, disinformation is the lie purposefully spread by a bad actor who's trying to interfere with things. And misinformation is what we call other people spreading that lie, often believing it's true or thinking, Huh, this sounds like it could be true. One is an evil act. The other is relatively innocent.

Hannah McCarthy:
A lot of this, Nick, it is, of course, going down on social media. Speaking of Samantha, here she is again.

Samantha Lai:
Social media is a wild, wild west. So even really drawing the line, sometimes it's really hard. Like maybe the first person who posted this intended for this to be disinformation and the other people spreading it are misinformed and they don't intend to deceive people, but they very genuinely believe that this is the case. So it's a little bit of both. In a lot of cases, it's often kind of hard to be completely clear about how it happens, but both can be damaging and hurtful and could mislead people into making certain decisions or not showing up on the right day to vote. And that's a problem.

Hannah McCarthy:
And here's Peter Adams from the News Literacy Project.

Peter Adams:
Again, influencers will take individual incidents or make a claim, and that will spread down to their followers, obviously. And those followers then look for that. Right. So if you're following somebody with who's massively influential on social media and they say this is happening at polling places, you may go to polling places and look for that, but also people who provide that at the grassroots level and share it, those are filtering up and having an influence on the influencers. So it's not just a top down influencer to people on the ground dynamic, it's also folks in polling places all across the country creating videos that are then filtering up and forming these sort of false evidence collages, if you will, on the part of influencers who then strengthen their their false claims and convictions.

Nick Capodice:
So there's a whole ecosystem of sustaining and growing the lies, like a little garden.

Hannah McCarthy:
And the kind of lie you run into, it has all to do with what corner of the internet you inhabit. For example, I am a certain type of millennial, so I am on Instagram, and Instagram has figured out that I will engage with content involving East and South Asian cooking, running and moody bodies of water during the fall.

Nick Capodice:
What?

Hannah McCarthy:
So I get a lot of information specific to say dumpling recipes, running posture and where to camp in New England. So it feels like I am an expert on that niche. But in actual fact, I have no idea whether these people are cooks, running experts or have ever been camping. I think I know a lot because I consume their content, but what's the source of that information?

Samantha Lai:
There are a lot of people who sometimes believe certain things because they're like, Oh, I've seen this on social media 20 times, 30 times. It's not just one thing and that's another problem altogether with just the information ecosystem at large where you can be very solidly convinced or because of the way social media algorithms work, they give you what you generally want to see, that you end up seeing a lot of the same content. So you might end up doing as much research as you would for buying a new computer. And as far as you're concerned, you're doing a lot of research. But if you're stuck in a certain corner of the Internet, that experience can be very, very different from someone else.

Nick Capodice:
And then you, Hannah, rather innocently, might go out and tell people how to make their dumplings and run around and where to find the best lakes. But it could literally be the worst advice ever.

Hannah McCarthy:
Yeah, and I've actually I've probably done that honestly. The same goes for election information, except in that case it is far, far more likely to be purposeful disinformation that you are consuming because so many people stand to gain from influencing who votes and who gets elected.

News archival:
Welcome to the Washington Week Extra.

News archival:
I'm Robert Costa. The role of social media in the 2020 election has come under scrutiny as bipartisan voices have sought to address the spread of disinformation on their platforms. Democratic.

Hannah McCarthy:
And that disinformation will seek you out based on what the social media platform knows about you. It's all about that algorithm.

Samantha Lai:
These algorithms collect a lot of data about your online activity, your browsing activity, purchasing history, location data, how long you spend on everything. So in terms of micro-targeting, when someone like a campaign or even like a commercial actor sets up an ad campaign, you can choose certain things that you can target someone with. So for example, zip code, gender, so on and so forth.

Hannah McCarthy:
Peter reminded me, as obvious as it may seem, what social media is, it is a by and large free platform that monetizes engagement designed to get instant reaction, as in, Hey, oh, cool running tip. I'll take that and I'll share that. And then instant scrolling done with that tip onto the next see the stuff you like engage go scroll for more stuff you like like engage, scroll like engage, scroll a little fraud here, a little ballot stuffing there.

Nick Capodice:
You know what they say, Hannah. If something's free, you're the product.

Peter Adams:
That's their business model. It's what they do. But it can be sort of invisible, right? We can sort of lose track of of. How that all works. And it's tempting to like and share recklessly or too quickly. And it's also easy to think, well, this is just a tap on a screen, right? It's a like it's a share. I'm not, you know, and I think a lot of people share things that they're they're sort of thinking, I'm not sure if this is true or not, but, you know, whatever, it's interesting. It might be true. The downstream effect of that two, three, four layers out you share with someone who shares with someone and they take action based on something that's false, you know, can can have a real impact.

News archival:
Good morning, Robin. This case shows how fake news can lead to a dangerous situation. Edgar Welch, 28, of Salisbury, North Carolina, has been arrested and charged with assault with a dangerous weapon. And police say that Welch told them that he showed up at the D.C. pizza restaurant to get to the bottom of what appears to be an utterly bogus story about child abuse promoted on the Internet. How scary was the situation? He allegedly pointed the gun in the direction of an employee and fired the weapon inside the restaurant.

Nick Capodice:
Now I'm thinking, too, Hannah, about the disinformation that looks and sounds real, like a step beyond the clickbait meme or headline, the picture or the video of something happening. That kind of thing must be harder to be skeptical about.

Peter Adams:
We're all sort of evolutionarily hardwired to believe our senses, to believe what we see in here. It can be hard to resist that that allure, especially if you're inclined to to believe that or you want to believe it already. You know, video based evidence or photographic evidence that feels compelling and feels convincing often may not be, especially when it's from a user generated source.

Hannah McCarthy:
Sometimes it's a real doctored image or video with a misleading caption. Sometimes it is a little more than that.

Samantha Lai:
Deepfakes, which use artificial intelligence technology or even just basic video editing like any thing to like make images or videos of fake events that haven't actually happened with politicians faces like put on them. And you can see how that would cause that would enable the spread of fake information.

Tom Cruise Deep Fake:
I'm going to show you some magic. It's the real thing. I mean, it's all the real thing.

News archival:
It looked a lot like Tom Cruise, but it was not. Tom Cruise, he's not in that video in any way. It's what's called a deepfake.

Hannah McCarthy:
And it doesn't stop at deepfakes. There are the bots.

Samantha Lai:
Bots and trolls. So bots are automated and trolls are real users and they can just generally be used to spread fake news about candidates or election details.

Hannah McCarthy:
There's the geofencing.

Nick Capodice:
What's geofencing.

Samantha Lai:
So how this works is that when a mobile device enters or exits a virtual boundary set up around a geographic location, that information will be collected. So if you have physically won in and out of a place and it has, there's like a virtual boundary set, they will know that you have been there. So that technology was used for the 2020 elections by a private company called Catholic Vote, which set up this boundary around a church to target churchgoers with pro-Trump messaging.

Hannah McCarthy:
Oh, yeah. And then there's every other way people can influence you.

Samantha Lai:
There are TV networks, there is radio, there are podcasts on Spotify, depending on the social groups people are in, depending on their personal experiences and the communities they live in. All of this interacts together in a perfect storm, which is why it's incredibly difficult to disassemble in some ways, even in a perfect world where we can suddenly take down all COVID related misinformation, for example, from the Internet, just like press a magic button, get rid of all of it. There are still going to be anti-vaxxers. They're still going to people who might not believe that COVID is real because of who they are. So really, all of this is not just a question of social media content regulation. It's also about people and the way we think, which is what makes this both so worrying and so fascinating.

Nick Capodice:
All right, Hannah, you have thoroughly flooded this episode with your information campaign.

Hannah McCarthy:
That's my job.

Nick Capodice:
Now give me the antidote. What are we supposed to do about misinformation and disinformation.

Samantha Lai:
In terms of on a personal level, what you can do? I think to inoculate yourself against myths and disinformation is to first keep in mind that confirmation bias is a thing. We're all people. We have opinions. We are all vulnerable to thinking certain ways, especially if we see certain information that aligns with our worldviews. So it's like whenever you see something online that you're like, Oh my gosh, like before spreading it. Take a second. Take a look. Google it. See if any other reputable news source has reported on it. If it's a one off tweet or if it's a meme, make sure to double check and see who else is talking about this. And you can kind of tell from who else is talking about this and who else is reporting on this, what's going on there? Another useful part, especially in the context of voting, is always relying on official information on government websites as to details of where you're going to vote, what's open, what's closed, what are the hours? Don't rely on someone else's information. Always make sure to go back to the source and always recognize that every source has a motive to convince you of something.

Hannah McCarthy:
Which I'll acknowledge is more work. It is more work than scrolling and liking and sharing and consuming exactly what you're fed. Which is why I appreciate Peter's take on this. His whole thing is, hey, people are actively trying to take away your right. So isn't it worth putting in a little more work?

Peter Adams:
Don't let someone sort of hijack your civic voice by misinforming you and misinforming you. You know, no one wants to be misled. No one wants to hold false beliefs. And I think we all have to be more vigilant than ever on those fronts, because there are more ways for people to to try to manipulate us than ever before.

Hannah McCarthy:
And I should mention the whole point of the company that Peter works for, the News Literacy Project, is to make free resources for people who want to sift out the truth from the lies and just know the truth, especially leading up to the election. We're going to put a link to that in the show notes and on our website. Civics one one podcast dot org so you can prepare ye.

Nick Capodice:
I feel like there's an elephant in the room here, Hanna.

Hannah McCarthy:
Can we make it like a nonpolitical animal?

Nick Capodice:
I feel there's a right whale here in the room, Hanna.

Hannah McCarthy:
Let's talk about it.

Nick Capodice:
Disinformation, misinformation, social media targeting, geo fencing. Now, it sounds like these are effective vaccines we can all access. But what about just eradicating the disease itself?

Samantha Lai:
Because there are no data privacy laws. Anything and everything you do on the Internet can be collected. And there are data brokers who are buying massive amounts of information about your address, your online activity, your purchasing history. Every everything. It's out there.

Hannah McCarthy:
On June 21st, 2022, the Data Privacy Act was introduced in Congress. Now, this bill doesn't say no more lies on the Internet, everybody. Because. Yeah, right. But if passed, it would limit the way businesses can use your information, allow you to opt in or opt out, revise or delete collected information, among other things.

Nick Capodice:
And then how does our government in practice actually help to stop election lies?

Samantha Lai:
There are a couple of government agencies dedicated to combating dissent, misinformation. Most of this was pretty recent. There is the US Department of State's Global Engagement Center that proactively monitors and addresses foreign adversaries, disinformation attempts. The Department of Homeland Security's Cyber and Infrastructure Security Agency during the last 2020 election cycle did invaluable work protecting America's election infrastructure and finding ways to centralize information and make sure to keep tabs on what kind of rumors and misinformation is going on. Earlier this year, there was a creation of the very short lived Disinformation Governance Board whose work was put on hold after a public backlash. We have Congress that's also working hard on bills to combat social media, algorithms, amplification of fake news, taking, for example, the Banning Micro-targeting Political Ads Act, the Social Media Nudge Act calls to reform Section 230. A lot of these are still in progress because there's a lot of bipartisan disagreement over the definitions of disinformation and who should be the one to say what is and is not disinformation. So that's another can of worms altogether. But there is work being done.

Hannah McCarthy:
So the agencies are being created. Nonprofits are addressing the problem. The public is constantly being warned about disinformation from those who are fighting the good fight. There are conversations happening about how to handle this and misinformation. What I find really interesting about all of this, Nick, is that these disinformation campaigns wouldn't work unless people really cared about these issues, really cared about politics, really cared about elections. And that's the tricky thing, because from where I stand, getting people to care can be half the battle. I don't see it as a bad thing that people care.

Peter Adams:
People want to share important things with friends and family. So elections are important. Politics are, you know, very polarized right now. People are hyper engaged and paying a lot of attention to to these these races and their hometowns. And it's good for people to want to be civically engaged. But, you know, again, have to be really careful that, you know, civic engagement only works if we have a common set of facts. And, you know, civic engagement is really driven authentically by accurate information so that everybody can can make authentic civic decisions for themselves, for their family members and for their community.

Nick Capodice:
There might not be a lot that all of America agrees on right now. But but deep down, I think I can safely say we are all Holden Caulfield when it comes to being lied to. Nobody likes a no good phony or wants to be one for that matter.

Hannah McCarthy:
Fortunately, the truth is out there, but it probably isn't on Instagram or TikTok. Tiktok is too much for me. I've accepted slow descent into the out of Tech Touch three and I'm fine with it. Has it occurred to you, Nick, that there are social media platforms out there that neither of us even know exist?

Nick Capodice:
This may be the only time I'm going to say this on the show, Hannah, but sometimes ignorance is bliss.

Hannah McCarthy:
This episode was produced by me, Hannah McCarthy with help from Nick Capodice. Our senior producer is Christina Phillips. Our producer is Jacqui Fulton. Rebecca Lavoie is our executive producer. A very special thanks to Retro Report, who has been partnering with us throughout this mid-term series. We're working together on a Teach the Midterms webinar coming up on Wednesday, September 14th. You can check that out and register at Retroreport.org Music in this episode by Anemoia, Spring Gang, Nul Tiel Records, HoliznaCo, Kirk Osemayo, Metre and Martin Clem. You can get the transcript for this episode and listen to, well, everything else we have ever made at Civics101podcast.org Civics 101 is a production of HPR New Hampshire Public Radio.

Nick Capodice:
The story where the call was coming from your own house.

Hannah McCarthy:
That's never I mean, like, it's never really. Oh, actually, there was this one time I was on AIM, AOL Instant Messenger and my friend made up a fake screen name and pretended that she was someone who was seeing me inside.

News archival:
Oh, that's.

Hannah McCarthy:
The computer room.

Nick Capodice:
I don't have that. That's too creepy. Let me think. What else chills you to the bone?

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Hannah McCarthy: [00:00:01] I either have a cold or this is a really bad deepfake.

Nick Capodice: [00:00:05] I'm Anna McCarthy.

Hannah McCarthy: [00:00:10] Do you know what genuinely chills me? Maybe I fervently believe something that is not true, and I probably do. I'm probably guilty of that and I don't even know it. Like, what have I defended in my life that is simply false? Or worse, what have I defended that is indefensible? [00:00:30] You know, that is a mortifying thought.

Nick Capodice: [00:00:33] Yeah, it shakes me to the core when I'm disabused of myths that I believed were true like that people's names got changed at Ellis Island, for.

Hannah McCarthy: [00:00:41] Example, or something, you know, way more serious, like saying there's a human trafficking ring led out of the basement of a pizza place.

Nick Capodice: [00:00:50] Yeah, like that.

Hannah McCarthy: [00:00:51] Which we're going to talk a bit about all in good time, because the name of the game today? It's lies.

News archival: [00:01:02] Some [00:01:00] of the most brazen acts of voter fraud to date. Sworn affidavit saying people are forging signatures, growing examples and frankly, affidavits of ballot irregularities and outright illegality, tampering allegations to the the dead people voting. We don't know how many votes were stolen on Tuesday night. We don't know anything about the software that many say was rigged. We don't know. We ought to find out.

Hannah McCarthy: [00:01:28] This is Civics 101. I'm Hannah McCarthy. [00:01:30]

Nick Capodice: [00:01:30] I'm Nick Capodice.

Hannah McCarthy: [00:01:31] And today we are talking about one of the most insidious and uncontainable obstacles facing any American who wishes to vote their conscience in this year's midterm election. We're talking about misinformation.

Nick Capodice: [00:01:44] And just to be crystal clear, because sometimes I feel like the word misinformation actually sort of skirts the truth of the matter. Misinformation is false information, like you said, lies.

Hannah McCarthy: [00:01:58] Okay. I did use the word lies. [00:02:00] And honestly, that was a little misinformation, because in truth, doesn't a lie imply intention?

Nick Capodice: [00:02:09] Yes, a lie implies an active choice. There is an intent to mislead somebody else.

Hannah McCarthy: [00:02:15] So misinformation is actually a little bit different.

Samantha Lai: [00:02:19] I'm going to take a second to just set up some definitions. So I'm going to use both misinformation and disinformation during these podcasts.

Hannah McCarthy: [00:02:26] This is Samantha.

Samantha Lai: [00:02:27] My full name is Samantha Lai L-A-I. I [00:02:30] am a research analyst at the Brookings Institution Center for Technology Innovation.

Nick Capodice: [00:02:36] Okay. And I've heard the term disinformation, but I've always pretty much equated the two misinformation and disinformation as being kind of the same thing.

Samantha Lai: [00:02:44] These are slightly different terms. So misinformation refers to false information that people might promote or spread, not intentionally to deceive someone, because often a lot of us might see things on the Internet and think that it's real. But turns out it's not disinformation. [00:03:00] However, people who spread it often spread it intentionally to deceive people. So that's the key difference between these two terms.

Nick Capodice: [00:03:06] So disinformation is the lie part of the information chain, correct.

Hannah McCarthy: [00:03:12] And probably the bad actor part, especially when it comes to elections. Disinformation is the purposefully misleading statement or claim that is conjured up and shared in order to make people believe something other than the truth, and often to make them believe it [00:03:30] fervently. So when that has to do with an election, the end goal tends to be to influence the election's outcome.

Nick Capodice: [00:03:37] Okay. And then misinformation is when other people encounter that disinformation lie and spread it around thinking it's actually real.

Hannah McCarthy: [00:03:45] Yeah, believe it's real or think that maybe it has some credence to it or, you know, it sort of smacks of truth. That is the simple, ugly way that it works.

Samantha Lai: [00:03:57] There are a couple of kinds of disinformation that bad actors [00:04:00] can post to confuse or discourage voters. So one approach would be to spread false information on voting dates and polling locations. So, for example, during the 2020 elections, a tweet on Super Tuesday targeted supporters of Kentucky candidate Matt Bevin and said inaccurately, Bevin supporters don't forget to vote on Wednesday, November sith, which is the day after the election.

Nick Capodice: [00:04:24] And that wasn't a mistake.

Hannah McCarthy: [00:04:25] Nope.

Nick Capodice: [00:04:25] And I'll take it that tweet wasn't from the people who wanted Bevin elected.

Hannah McCarthy: [00:04:30] You [00:04:30] take it correctly. This tactic comes in many forms. It's subtle tweaking a single piece of information, often in a way that seems helpful in an attempt to keep people away from the polls. Sometimes it's Hey, text this number to vote by text. You text that number. Your vote you probably get your vote has been submitted. Good for you. Text back. Easy. It's done. Now, I want to make very clear right here, right now that there is not a state in the nation [00:05:00] that permits voting by text. This is not real. You may also see news that you know Candidate X has dropped out of the election last minute. Oh, what a shame. Or Candidate Y has already won. There's no need to vote. All of it is made up, all of it designed to keep you from voting.

Samantha Lai: [00:05:16] Another approach here in terms of messaging is intimidation, which often primarily targets historically marginalized groups. So this includes threats of people bringing guns to the polls or law enforcement presence [00:05:30] at polling places. So, for example, before the 2018 elections, ICE had to publicly refute rumors on social media that they would be conducting enforcement operations at polling places. We also have messaging, exploiting common doubts, particularly among black and Latino voters, on the efficacy of the political process. So this can include messages on how the system doesn't work for you, your vote doesn't matter, and other attempts to just disenfranchise voters of color. And this echoes interference strategies deployed in 2016 [00:06:00] by the Kremlin backed Internet Research Agency, who disproportionately targeted African Americans during their interference in the 2016 US presidential elections.

Nick Capodice: [00:06:09] I feel like you covered this in our episode on election security. There's a difference between how messed up the system actually is and how messed up bad actors want you to believe the system is.

Hannah McCarthy: [00:06:20] And like Samantha said, for many people or groups, this type of disinformation is specifically designed to play on totally legitimate [00:06:30] and experience based fears and concerns.

Samantha Lai: [00:06:33] Because you have to have some doubt in order to be convinced. Like, if I looked at you and was like, Did you know that the sky is actually green? You would simply say No, because you can verify with your own eyes. That is not the case. Misinformation. The reason why is what makes it so effective. It's because it exploits people's common doubts and common fears. For example, looking at misinformation, targeting historically marginalized groups, why is it so effective and why is it so devastating? And why is that a civil [00:07:00] rights concern? Because historically marginalized groups have been historically disenfranchised, and there are a lot of narratives that also carry some grain of truth in it, in sense of their underrepresentation.

Nick Capodice: [00:07:09] In other words, disinformation aimed at discouraging groups who already feel discouraged by voting.

Hannah McCarthy: [00:07:14] Exactly. Voters who are in seemingly gerrymandered districts, or for whom it is difficult to obtain an ID or to get time off work or to even make it to their polling place. Or, you know, people who have to stand in absurdly [00:07:30] long lines. These are chronic real obstacles, and bad actors will exploit this sense that those voters have of being disenfranchised disinformation will say, You know what, you're right and it's worse than you think. Why don't you just stay home?

Samantha Lai: [00:07:48] We see right now that there is a heightened level of distrust towards our government, towards news agencies. There's a lot of resentment and polarization where you have people turning to alternative news sources, not trusting mainstream [00:08:00] news sources that allows misinformation and disinformation to thrive because of a lot of fears and uncertainties people have about how what is actually going on.

Nick Capodice: [00:08:09] It's so insidious, Hannah, this idea that you might be targeted with disinformation that carries a grain of truth, and then that little grain of truth is rooted in historic disenfranchisement, right?

Hannah McCarthy: [00:08:22] Among groups of color groups who might have barriers to physically accessing the polls. Now, I want to introduce someone here. This [00:08:30] is Peter Adams.

Peter Adams: [00:08:30] You can introduce me as the either the head of research and design at NLP or the senior Vice President of Research and Design.

Nick Capodice: [00:08:39] NLP?

Hannah McCarthy: [00:08:40] The News Literacy Project, which is a company entirely dedicated to teaching people how to separate fact from fiction. So those people who already feel underserved by the system, they are going to be increasingly vulnerable as we near Election Day.

Peter Adams: [00:08:58] Someone telling you that your vote is [00:09:00] going to be changed or lost or subverted if you vote by mail. I've got some particularly pernicious rumor because it winds up disenfranchising people who maybe can't vote that day decide not to vote by mail, or they think they're going to vote on Election Day and they don't make it to the polls. There are also rumors that localized rumors like the lines are impossibly long at this polling place when they're not, you know, just view all that with a grain of salt. There are bad actors out there who will try to dissuade people from voting, targeting certain [00:09:30] districts that tend to vote one way or another, and trying to dissuade people in that district from even turning out in the first place by circulating rumors. So just don't take election information from social media and, you know, do your very best to vote on Election Day, I think is sound advice.

Nick Capodice: [00:09:47] All right. That is sound advice. And I want to talk about social media in a minute here, Hannah, but what about the other kind of lie? Like not the lie designed to further disenfranchise marginalized groups, but the lie designed [00:10:00] to stoke a different kind of fear and anger?

Hannah McCarthy: [00:10:02] Yeah, well, let's start with a major fear and major anger. One that plays on the deepest sense of good and evil. In 2016, just before the presidential election, a conspiracy theory made its way around social media, claiming that several people high up in the Democratic Party were running a human trafficking ring out of several restaurants. One of these was a pizzeria called Comet Ping Pong.

Peter Adams: [00:10:30] There [00:10:30] are lots of stories about people losing loved ones to QAnon beliefs that are entirely baseless. But I think the incidents like the one in Cincinnati or at Comet Ping Pong back in 2016, I think the pizzeria in Washington are tragic and alarming and good reminders that even though they're not exceedingly common, that this kind of stuff is very serious and it can result in people taking real action. Edgar [00:11:00] Welch, who went to the pizzeria based on QAnon falsehoods. Right. Thinking that there was something nefarious happening in the basement there, when in fact, there's no basement in the building, you know, brought a rifle shot at once and figured out there was no basement and surrendered. It was much more tragic in Cincinnati. Right. But this person took action at an FBI office based on something they believe about the recent raid on Mar a Lago.

News archival: [00:11:25] A deadly end to a standoff in Clinton County. This story started hours earlier at [00:11:30] 915. And Sycamore Township police say a man tried to break into the FBI building.

Peter Adams: [00:11:35] You know, again, I think these are reminders of how serious it can be, but we shouldn't lose sight of the everyday impact on ordinary folks who sort of fall down rabbit holes with the best of intentions, looking for answers, trying to interpret complex realities. But they fall for four simplified narratives. Conspiracy theories are very attractive because they give people kind of a good, bad version of the world as complicated as they can be. They're very simple at their base. [00:12:00]

Nick Capodice: [00:12:00] That is an interesting point, because conspiracy theories can be wildly complicated. In this case, it wasn't just a nonexistent trafficking ring in a nonexistent basement of a pizza joint. It was a Hillary Clinton run trafficking ring. So what the theory did was take the person who many people politically and socially disagreed with and made that person pure, unadulterated evil. Disagreeing is nuanced. It's how we do politics. [00:12:30] Condemning evil is not.

Peter Adams: [00:12:33] They're very simple at their base, right? There are bad people trying to just, you know, dupe everyone and subvert our democracy is basically the the storyline of QAnon. And it's attractive to think that that things are that simple and that there is some enemy cabal that you could that you could just root out. But the reality is much messier.

Nick Capodice: [00:12:51] So what about other examples of conspiracy theories like a stolen election, or even the idea of a poll worker tampering with ballots [00:13:00] or widespread voter fraud?

Hannah McCarthy: [00:13:02] These are still examples of conspiracies born of disinformation, which is then followed by the spreading of misinformation. And a lot of them involve being unhappy with election results and or not understanding how elections work. Lo and behold, the simple answer is provided to you on a silver platter the disinformation that vindicates you and gives an appealing explanation for why things seem a [00:13:30] certain way.

Peter Adams: [00:13:31] I think, you know, the biggest concern is just just misperceptions about fraud or mis-recognized things that are totally normal parts of of elections being perceived as fraud, because people have now been primed to believe that fraud is common when it's not.

News archival: [00:13:47] Just make sure your vote gets counted. Make sure. Because the only way we're going to lose this election is if the election is rigged.

Peter Adams: [00:13:56] Remember that they are primed to believe it's easier to [00:14:00] pull off than it is, and it has an impact on election workers. It has an impact on people who might be designated agents, who deliver ballots to boxes from, say, nursing homes, who might be confronted by people who have decided they're going to monitor those boxes for anyone dropping more than one ballot.

Hannah McCarthy: [00:14:19] And Peter says you also have to consider the motivation of the bad actor, the person at the top of the disinformation to misinformation pipeline.

Peter Adams: [00:14:28] Of all the allegations [00:14:30] of improprieties. None of them were really borne out by evidence, you know, case by case by case, especially in I mean, again, these tended to cluster in swing states, right? So number one, that was an attempt to to sort of move electoral votes in key places. There's zero evidence at the end of the day that there was any kind of significant voter fraud that could come anywhere close to changing the outcome in any given state, much less the election overall. All [00:15:00] the audits that have taken place, all of the reviews, all of the accusations have all come to naught. And the evidence is just not there and evidence matters.

Hannah McCarthy: [00:15:13] And all of this accusations of tampering, of destruction, of ballots, of devious poll workers, etc., Peter says it's coming for us again in 2022.

Peter Adams: [00:15:25] You know, most experts who are looking at election disinformation believe that we're just going [00:15:30] to see a lot of the same narratives get pushed because they've now taken root almost as conventional wisdom among among some folks. And so they're still very effective.

Nick Capodice: [00:15:41] Alright. So we've got bad actors with appealing ideas running rampant, and you're telling me it only gets worse around an election? So what are we supposed to do? What are we supposed to look for? How do we separate the lies from the truth?

Hannah McCarthy: [00:15:55] That's coming up after the break.

Nick Capodice: [00:15:58] But first, we cannot tell a lie. [00:16:00] We need you know, really, we do civics. One on one is public radio. It's yours, it's your radio. And we're sustained by the public, which is you if you have some spare change and a willing heart. Head on over to Civics one one podcast at npr.org and click the donate button to contribute to the show or just click the link in the show notes. It doesn't just keep us going. It tells us you're out there and this show means something to you.

Hannah McCarthy: [00:16:28] We're back. This is Civics [00:16:30] 101. And we're talking disinformation and misinformation.

Nick Capodice: [00:16:33] Which, as Samantha Lai told us earlier, disinformation is the lie purposefully spread by a bad actor who's trying to interfere with things. And misinformation is what we call other people spreading that lie, often believing it's true or thinking, Huh, this sounds like it could be true. One is an evil act. The other is relatively innocent.

Hannah McCarthy: [00:16:55] A lot of this, Nick, it is, of course, going down on social media. Speaking [00:17:00] of Samantha, here she is again.

Samantha Lai: [00:17:02] Social media is a wild, wild west. So even really drawing the line, sometimes it's really hard. Like maybe the first person who posted this intended for this to be disinformation and the other people spreading it are misinformed and they don't intend to deceive people, but they very genuinely believe that this is the case. So it's a little bit of both. In a lot of cases, it's often kind of hard to be completely clear about how it happens, but both can be damaging and hurtful [00:17:30] and could mislead people into making certain decisions or not showing up on the right day to vote. And that's a problem.

Hannah McCarthy: [00:17:37] And here's Peter Adams from the News Literacy Project.

Peter Adams: [00:17:40] Again, influencers will take individual incidents or make a claim, and that will spread down to their followers, obviously. And those followers then look for that. Right. So if you're following somebody with who's massively influential on social media and they say this is happening at polling places, you may go to polling places and look for that, but also people [00:18:00] who provide that at the grassroots level and share it, those are filtering up and having an influence on the influencers. So it's not just a top down influencer to people on the ground dynamic, it's also folks in polling places all across the country creating videos that are then filtering up and forming these sort of false evidence collages, if you will, on the part of influencers who then strengthen their their false claims and convictions.

Nick Capodice: [00:18:27] So there's a whole ecosystem of sustaining and [00:18:30] growing the lies, like a little garden.

Hannah McCarthy: [00:18:31] And the kind of lie you run into, it has all to do with what corner of the internet you inhabit. For example, I am a certain type of millennial, so I am on Instagram, and Instagram has figured out that I will engage with content involving East and South Asian cooking, running and moody bodies of water during the fall.

Nick Capodice: [00:18:55] What?

Hannah McCarthy: [00:18:56] So I get a lot of information specific to say dumpling recipes, [00:19:00] running posture and where to camp in New England. So it feels like I am an expert on that niche. But in actual fact, I have no idea whether these people are cooks, running experts or have ever been camping. I think I know a lot because I consume their content, but what's the source of that information?

Samantha Lai: [00:19:20] There are a lot of people who sometimes believe certain things because they're like, Oh, I've seen this on social media 20 times, 30 times. It's not just one thing and that's another problem altogether [00:19:30] with just the information ecosystem at large where you can be very solidly convinced or because of the way social media algorithms work, they give you what you generally want to see, that you end up seeing a lot of the same content. So you might end up doing as much research as you would for buying a new computer. And as far as you're concerned, you're doing a lot of research. But if you're stuck in a certain corner of the Internet, that experience can be very, very different from someone else.

Nick Capodice: [00:19:57] And then you, Hannah, rather innocently, [00:20:00] might go out and tell people how to make their dumplings and run around and where to find the best lakes. But it could literally be the worst advice ever.

Hannah McCarthy: [00:20:07] Yeah, and I've actually I've probably done that honestly. The same goes for election information, except in that case it is far, far more likely to be purposeful disinformation that you are consuming because so many people stand to gain from influencing who votes and who gets elected.

News archival: [00:20:29] Welcome [00:20:30] to the Washington Week Extra.

News archival: [00:20:31] I'm Robert Costa. The role of social media in the 2020 election has come under scrutiny as bipartisan voices have sought to address the spread of disinformation on their platforms. Democratic.

Hannah McCarthy: [00:20:42] And that disinformation will seek you out based on what the social media platform knows about you. It's all about that algorithm.

Samantha Lai: [00:20:51] These algorithms collect a lot of data about your online activity, your browsing activity, purchasing history, location data, how long you [00:21:00] spend on everything. So in terms of micro-targeting, when someone like a campaign or even like a commercial actor sets up an ad campaign, you can choose certain things that you can target someone with. So for example, zip code, gender, so on and so forth.

Hannah McCarthy: [00:21:17] Peter reminded me, as obvious as it may seem, what social media is, it is a by and large free platform that monetizes engagement designed to [00:21:30] get instant reaction, as in, Hey, oh, cool running tip. I'll take that and I'll share that. And then instant scrolling done with that tip onto the next see the stuff you like engage go scroll for more stuff you like like engage, scroll like engage, scroll a little fraud here, a little ballot stuffing there.

Nick Capodice: [00:21:51] You know what they say, Hannah. If something's free, you're the product.

Peter Adams: [00:21:59] That's [00:22:00] their business model. It's what they do. But it can be sort of invisible, right? We can sort of lose track of of. How that all works. And it's tempting to like and share recklessly or too quickly. And it's also easy to think, well, this is just a tap on a screen, right? It's a like it's a share. I'm not, you know, and I think a lot of people share things that they're they're sort of thinking, I'm not sure if this is true or not, but, you know, whatever, it's interesting. It might be true. The downstream effect of that two, three, four layers out you share [00:22:30] with someone who shares with someone and they take action based on something that's false, you know, can can have a real impact.

News archival: [00:22:36] Good morning, Robin. This case shows how fake news can lead to a dangerous situation. Edgar Welch, 28, of Salisbury, North Carolina, has been arrested and charged with assault with a dangerous weapon. And police say that Welch told them that he showed up at the D.C. pizza restaurant to get to the bottom of what appears to be an utterly bogus story about child abuse promoted on the Internet. How scary was the situation? He allegedly pointed the gun in the direction of [00:23:00] an employee and fired the weapon inside the restaurant.

Nick Capodice: [00:23:08] Now I'm thinking, too, Hannah, about the disinformation that looks and sounds real, like a step beyond the clickbait meme or headline, the picture or the video of something happening. That kind of thing must be harder to be skeptical about.

Peter Adams: [00:23:26] We're all sort of evolutionarily hardwired to believe our senses, [00:23:30] to believe what we see in here. It can be hard to resist that that allure, especially if you're inclined to to believe that or you want to believe it already. You know, video based evidence or photographic evidence that feels compelling and feels convincing often may not be, especially when it's from a user generated source.

Hannah McCarthy: [00:23:49] Sometimes it's a real doctored image or video with a misleading caption. Sometimes it is a little more than that.

Samantha Lai: [00:23:57] Deepfakes, which use artificial intelligence technology [00:24:00] or even just basic video editing like any thing to like make images or videos of fake events that haven't actually happened with politicians faces like put on them. And you can see how that would cause that would enable the spread of fake information.

Tom Cruise Deep Fake: [00:24:14] I'm going to show you some magic. It's the real thing. I mean, it's all the real thing.

News archival: [00:24:31] It [00:24:30] looked a lot like Tom Cruise, but it was not. Tom Cruise, he's not in that video in any way. It's what's called a deepfake.

Hannah McCarthy: [00:24:39] And it doesn't stop at deepfakes. There are the bots.

Samantha Lai: [00:24:42] Bots and trolls. So bots are automated and trolls are real users and they can just generally be used to spread fake news about candidates or election details.

Hannah McCarthy: [00:24:51] There's the geofencing.

Nick Capodice: [00:24:53] What's geofencing.

Samantha Lai: [00:24:54] So how this works is that when a mobile device enters or exits a virtual boundary [00:25:00] set up around a geographic location, that information will be collected. So if you have physically won in and out of a place and it has, there's like a virtual boundary set, they will know that you have been there. So that technology was used for the 2020 elections by a private company called Catholic Vote, which set up this boundary around a church to target churchgoers with pro-Trump messaging.

Hannah McCarthy: [00:25:23] Oh, yeah. And then there's every other way people can influence you.

Samantha Lai: [00:25:28] There are TV networks, [00:25:30] there is radio, there are podcasts on Spotify, depending on the social groups people are in, depending on their personal experiences and the communities they live in. All of this interacts together in a perfect storm, which is why it's incredibly difficult to disassemble in some ways, even in a perfect world where we can suddenly take down all COVID related misinformation, for example, from the Internet, just like press a magic button, get rid of all of it. There are still going to be anti-vaxxers. [00:26:00] They're still going to people who might not believe that COVID is real because of who they are. So really, all of this is not just a question of social media content regulation. It's also about people and the way we think, which is what makes this both so worrying and so fascinating.

Nick Capodice: [00:26:23] All right, Hannah, you have thoroughly flooded this episode with your information campaign.

Hannah McCarthy: [00:26:27] That's my job.

Nick Capodice: [00:26:28] Now give [00:26:30] me the antidote. What are we supposed to do about misinformation and disinformation.

Samantha Lai: [00:26:35] In terms of on a personal level, what you can do? I think to inoculate yourself against myths and disinformation is to first keep in mind that confirmation bias is a thing. We're all people. We have opinions. We are all vulnerable to thinking certain ways, especially if we see certain information that aligns with our worldviews. So it's like whenever you see something online that you're like, Oh my gosh, like before spreading it. Take [00:27:00] a second. Take a look. Google it. See if any other reputable news source has reported on it. If it's a one off tweet or if it's a meme, make sure to double check and see who else is talking about this. And you can kind of tell from who else is talking about this and who else is reporting on this, what's going on there? Another useful part, especially in the context of voting, is always relying on official information on government websites as to details of where you're going to vote, what's [00:27:30] open, what's closed, what are the hours? Don't rely on someone else's information. Always make sure to go back to the source and always recognize that every source has a motive to convince you of something.

Hannah McCarthy: [00:27:42] Which I'll acknowledge is more work. It is more work than scrolling and liking and sharing and consuming exactly what you're fed. Which is why I appreciate Peter's take on this. His whole thing is, hey, [00:28:00] people are actively trying to take away your right. So isn't it worth putting in a little more work?

Peter Adams: [00:28:07] Don't let someone sort of hijack your civic voice by misinforming you and misinforming you. You know, no one wants to be misled. No one wants to hold false beliefs. And I think we all have to be more vigilant than ever on those fronts, because there are more ways for people to to try to manipulate us than ever before.

Hannah McCarthy: [00:28:27] And I should mention the whole point of the company that Peter works for, [00:28:30] the News Literacy Project, is to make free resources for people who want to sift out the truth from the lies and just know the truth, especially leading up to the election. We're going to put a link to that in the show notes and on our website. Civics one one podcast dot org so you can prepare ye.

Nick Capodice: [00:28:47] I feel like there's an elephant in the room here, Hanna.

Hannah McCarthy: [00:28:49] Can we make it like a nonpolitical animal?

Nick Capodice: [00:28:51] I feel there's a right whale here in the room, Hanna.

Hannah McCarthy: [00:28:54] Let's talk about it.

Nick Capodice: [00:28:56] Disinformation, misinformation, social media targeting, geo fencing. [00:29:00] Now, it sounds like these are effective vaccines we can all access. But what about just eradicating the disease itself?

Samantha Lai: [00:29:09] Because there are no data privacy laws. Anything and everything you do on the Internet can be collected. And there are data brokers who are buying massive amounts of information about your address, your online activity, your purchasing history. Every everything. It's out there.

Hannah McCarthy: [00:29:29] On June [00:29:30] 21st, 2022, the Data Privacy Act was introduced in Congress. Now, this bill doesn't say no more lies on the Internet, everybody. Because. Yeah, right. But if passed, it would limit the way businesses can use your information, allow you to opt in or opt out, revise or delete collected information, among other things.

Nick Capodice: [00:29:53] And then how does our government in practice actually help to stop election lies?

Samantha Lai: [00:29:57] There are a couple of government agencies dedicated [00:30:00] to combating dissent, misinformation. Most of this was pretty recent. There is the US Department of State's Global Engagement Center that proactively monitors and addresses foreign adversaries, disinformation attempts. The Department of Homeland Security's Cyber and Infrastructure Security Agency during the last 2020 election cycle did invaluable work protecting America's election infrastructure and finding ways to centralize information and make sure to keep tabs on what kind of rumors and misinformation is going on. Earlier [00:30:30] this year, there was a creation of the very short lived Disinformation Governance Board whose work was put on hold after a public backlash. We have Congress that's also working hard on bills to combat social media, algorithms, amplification of fake news, taking, for example, the Banning Micro-targeting Political Ads Act, the Social Media Nudge Act calls to reform Section 230. A lot of these are still in progress because there's a lot of bipartisan disagreement over the definitions of disinformation and who should be the one to say what [00:31:00] is and is not disinformation. So that's another can of worms altogether. But there is work being done.

Hannah McCarthy: [00:31:14] So the agencies are being created. Nonprofits are addressing the problem. The public is constantly being warned about disinformation from those who are fighting the good fight. There are conversations happening about how to handle this and misinformation. [00:31:30] What I find really interesting about all of this, Nick, is that these disinformation campaigns wouldn't work unless people really cared about these issues, really cared about politics, really cared about elections. And that's the tricky thing, because from where I stand, getting people to care can be half the battle. I don't see it as a bad thing that people care.

Peter Adams: [00:31:56] People want to share important things with friends [00:32:00] and family. So elections are important. Politics are, you know, very polarized right now. People are hyper engaged and paying a lot of attention to to these these races and their hometowns. And it's good for people to want to be civically engaged. But, you know, again, have to be really careful that, you know, civic engagement only works if we have a common set of facts. And, you know, civic engagement is really driven authentically by accurate information so that everybody can can make authentic [00:32:30] civic decisions for themselves, for their family members and for their community.

Nick Capodice: [00:32:42] There might not be a lot that all of America agrees on right now. But but deep down, I think I can safely say we are all Holden Caulfield when it comes to being lied to. Nobody likes a no good phony or wants to be one for that matter.

Hannah McCarthy: [00:32:58] Fortunately, the [00:33:00] truth is out there, but it probably isn't on Instagram or TikTok. Tiktok is too much for me. I've accepted slow descent into the out of Tech Touch three and I'm fine with it. Has it occurred to you, Nick, that there are social media platforms out there that neither of us even know exist?

Nick Capodice: [00:33:17] This may be the only time I'm going to say this on the show, Hannah, but sometimes ignorance is bliss.

Hannah McCarthy: [00:33:41] This [00:33:30] episode was produced by me, Hannah McCarthy with help from Nick Capodice. Our senior producer is Christina Phillips. Our producer is Jacqui Fulton. Rebecca Lavoie is our executive producer. A very special thanks to Retro Report, who has been partnering with us throughout this mid-term series. We're working together on a Teach the Midterms webinar coming up on Wednesday, September [00:34:00] 14th. You can check that out and register at Retroreport.org Music in this episode by Anemoia, Spring Gang, Nul Tiel Records, HoliznaCo, Kirk Osemayo, Metre and Martin Clem. You can get the transcript for this episode and listen to, well, everything else we have ever made at Civics101podcast.org Civics 101 is a production of HPR New Hampshire Public Radio.

Nick Capodice: [00:34:24] The story where the call was coming from your own house.

Hannah McCarthy: [00:34:28] That's never I mean, like, it's [00:34:30] never really. Oh, actually, there was this one time I was on AIM, AOL Instant Messenger and my friend made up a fake screen name and pretended that she was someone who was seeing me inside.

News archival: [00:34:43] Oh, that's.

Hannah McCarthy: [00:34:44] The computer room.

Nick Capodice: [00:34:46] I don't have that. That's too creepy. Let me think. What else chills you to the bone?

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Made possible in part by the Corporation for Public Broadcasting.

What's The Difference Between The House & The Senate?

The House and the Senate have mostly the same powers: they both propose and vote on bills that may become law. So why does the House have 435 members, and the Senate have 100? Why does legislation have to pass through both sides, and what kinds of power do each have individually? And finally: what role do you, as a voter, play in ensuring that Congress, and your Congressional delegation, is working in your best interests?

This episode features the opinions of former staffers from both chambers, Andrew Wilson and Justin LeBlanc,  former member of the CA assembly, Cheryl Cook-Kallio, CNN political analyst, Bakari Sellers, and the inimitable political science professor from Farleigh Dickinson, Dan Cassino.

Click here for a graphic organizer for students to take notes upon while listening.

Click here for a three part media-based lesson about exploring the differences between the House and the Senate. Students will present their findings in a 1-3 minute video.

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Transcript:

Audio clip: Mr. President. Without objection, Mr. President, I call it my amendment per the order. The clerk will report the amendment. The Senator from Vermont.

Hannah McCarthy: What is going on? Why are you making me listen to this?

Nick Capodice: Okay. This is from a YouTube video from 2009 and it's called Senate Chaos. Senator Bernie Sanders from Vermont. He's just proposed an amendment to a health care bill and it's usually happens. He asked the amendment be considered as read since senators usually get these bills [00:00:30] in amendments in advance, there's no need to read them aloud.

Audio clip: ...objection object.

Nick Capodice: All right. Right there. Senator Tom Coburn from Oklahoma objects.

Audio clip: The table of contents of this act is as follows.

Nick Capodice: So the clerk has to read the whole thing. And it's 767 pages. All right. Listen to this.

Audio clip: And had the courage to change from green to red or red to green. How is that possible, Mr. Speaker?

Hannah McCarthy: Woah, [00:01:00] what is going on?

Nick Capodice: What is going on? Hannah is the House of Representatives. Such a magical place.

Audio clip: Is another form of inquiry. Mr. Speaker, Mr. Smith, the Speaker General...(chaos)  [00:01:30]

Nick Capodice: Welcome to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And we are continuing our series on the upcoming midterm elections today, something many Americans are going to see on their ballot. And a question I've wanted to ask since day one at this show, what is the difference between the House and the Senate? They mostly have the exact same powers, with a few exceptions, which we're going to talk about. But they both propose bills that might become laws. Bills can start in either [00:02:00] the House or the Senate, but they have to be passed by both houses before they go to the president to be signed into law. And while the presidential election tends to crowd out the attention for all those other elected officials on the ballot, the midterms are where the race for control of Congress shines, where expensive national political ads are replaced by local, homegrown ads of people running for a seat in the House of Representatives or the Senate for the right to represent your interests. You right there sitting down, listening to this, in the [00:02:30] branch of government that proposes our laws. Now, of course, it's not just about the individuals in the office. It's about the balance of power. Something that could change drastically this November 2022.

Hannah McCarthy: And when you say balance of power, you mean which party has the most people in Congress?

Nick Capodice: Right. And the party with the most people has the most power, has greater control, not only over which bills [00:03:00] are proposed, but also in leadership. And right now, the balance of power is tenuous.

Dan Cassino: The House of Representatives is expected to come very close.

Nick Capodice: Here is Civics 101's very own personal Steve Martin, as he's been on the show more than anybody else. Dan Cassino, political science professor at Fairleigh Dickinson University.

Dan Cassino: In 2022, the odds that your vote for the House of Representatives are going to matter are way bigger than they've been in any recent election. Generally, when the president's party loses seats in the midterm, this [00:03:30] is called surge and decline, and it's a pretty complicated phenomenon. We don't have to get into here. But the surge in decline pattern means that the president's party in this case, the Democrats, are expected to lose seats in the upcoming election. Now, the Democrats have only a narrow margin in the House of Representatives. If they were to lose the expected number of seats in the 2022 midterms, the Republicans would control the House by a margin of somewhere between ten and 15 seats.

Hannah McCarthy: What about the Senate?

Nick Capodice: The Senate is split almost completely down the middle right now, 50 Republicans, 48 Democrats [00:04:00] and two independents who have aligned Democratic and the Democratic vice president, Kamala Harris, as the tiebreaker.

Hannah McCarthy: That is a tight margin.

Nick Capodice: Yeah.

Hannah McCarthy: Now, knowing that, I'm curious how these two parts of Congress, the Senate and the House are different and what kind of power my own senators and representative have.

Nick Capodice: To really understand their key differences. We need to go back through the annals of history.

Hannah McCarthy: Please don't do this.

Nick Capodice: Oh why it appears we're at the Old City [00:04:30] Tavern in Philadelphia in 1787.

Hannah McCarthy: Please. Nick, please.

Nick Capodice: Why, is that James Madison over there? The sage of Montpelier??

Audio clip: We only have a Congress. Yes, but ours will be different. Since our plan expands the powers of Congress, we will check that power. Yeah. By dividing it into two houses, an upper house and a lower house.

Hannah McCarthy: And what is that from?

Nick Capodice: You've never seen A More Perfect Union? The bread [00:05:00] and butter of the eighth grade social studies class. Okay, fine. Forget it. Scrap it. But what I'm trying to get at is that during the debates, the great debates of the Constitutional Convention, there was this huge question of representation who should make our laws? How many people should the big states have more power because they've got a bigger population? Or should all states have equal representation? And to make a long story short, we have ended up with both. We have a two House government, a bicameral [00:05:30] legislature. The names can be kind of tricky, though. So here is teacher and former California state assembly member Cheryl Cook-Kallio.

Cheryl Cook-Kallio: And so Congress is technically both the House of Representatives and the Senate. Members of the lower house, The House of Representatives have always been addressed as Congressmembers and members of the Upper House have been addressed as senator.

Hannah McCarthy: So a senator is technically a congressperson, but you would never call them that?

Nick Capodice: Yeah, no. And the Senate is technically one of the houses [00:06:00] of Congress. But when we say the House, we mean the House of Representatives.

Hannah McCarthy: I am glad we got that out of the way. I have always wondered.

Cheryl Cook-Kallio: The framers created a two House legislature in order to make sure that the needs of the people as well as the states were addressed.

Nick Capodice: Length of term is a major thing that differentiates the House. In the Senate.

Cheryl Cook-Kallio: The House of Representatives, the length of term is shorter. It's every two years. It's a more frantic place. It takes on a sense of urgency. The Senate, on the other hand, is [00:06:30] up every six years.

Hannah McCarthy: So in the current midterms, about a third of those Senate seats are up for reelection, whereas you vote for new representatives every two years.

Nick Capodice: Exactly. The next key difference is the number of members. Our current House has 435 members apportioned by state population. So, for example, California has 53 congresspeople, while we in the small state of New Hampshire have two. But every state gets two senators, no matter the population size.

Dan Cassino: The [00:07:00] founders were trying to give the public some power, trying to have some element of democracy. The problem is they didn't trust the people as far as they could throw them. They even called democracy mob-ocracy because they didn't like the idea of the people actually running anything. The reason we have the House of Representatives is to give the people a voice, but to make sure that voice can't actually do anything. The house is supposed to be representative of the people, but as far as the founders are concerned, the people of the United States were kind of like the people [00:07:30] of Springfield in The Simpsons

Audio clip: Monorail, Monorail, MONORAIL!

Dan Cassino: They're ready to jump on any bandwagon with pitchforks and torches and protest against anything. And we've seen this repeatedly throughout American history. In the early 19th century, we had the first major third party in American politics, the anti Masonic Party, a party devoted entirely to a conspiracy theory that Masons were murdering people in upstate New York, dumping the bodies. Then methodically oriented police and judges were covering the whole thing up.

Hannah McCarthy: That was their social [00:08:00] platform, not liking the Freemasons.

Audio clip: (Masonic singing "So voteth theeeee!")

Dan Cassino: To me that seems a little ridiculous. Except those folks, the Anti-Masonic Party won a bunch of seats in statehouses and even won a bunch of seats in House of Representatives. So why does it matter? Well, the founders saw this. They thought this would happen. So what they did was they made sure the House couldn't really do anything. The House representatives subject to the whims of the people. So if the anti-masonic party's really popular for two years, guess what? [00:08:30] They can take some seats in the House, but if they took every seat that was up for them in the Senate, they could never control more than a third of the Senate. The House is there to represent the whims of the people. The Senate is there to make sure that the people can't actually get anything done. Now, that's inefficient, of course, but that's exactly the way the founders set things up. The people can pass whatever they want in the house and it'll die in the Senate.

Nick Capodice: Now, it may seem like Dan is saying the Senate is, I don't know, superior in some way or another. But I do want to add the House [00:09:00] does get some bills out there.

Dan Cassino: So depending how you want to run the numbers you get right now, about 4% of bills in the most recent session of Congress have been turned into laws. So overall, you're looking at about 16,000 bills and resolutions that get proposed. And this most recent Congress, we've had about 550 of them actually turned into laws. Now, that's because we're using a relatively open view of what it means to become a law. If we actually drill down on that, it's actually closer to about 1%. The reason [00:09:30] for that difference is that in the modern era of Congress, most bills that get passed actually get passed by being pushed into other bills. So the most recent example we have of that in 2022 is the what Democrats were calling the Inflation Reduction Act. This is a big omnibus bill. And what that means is they took about 30 other bills that they were trying to pass, that they couldn't get passed and just smushed it all into one big bill. And nobody quite knew what exactly was in the bill. But the leadership said they'd read it and the staff read it. So we're cool with that [00:10:00] and they passed that. So that's a whole bunch of other bills that we can consider as being passed because they were pushed into this larger omnibus bill. Now we talk about laws passed. Yeah, something like the Inflation Reduction Act is the thing we think about. Yes, this is a big bill. This is an important bill that's actually not very representative of what most bills are. And so that number of 4% or about 550 600 bills getting passed is really over representing what actually is going on in Congress.

Nick Capodice: And most of them are pretty [00:10:30] uncontroversial bills.

Hannah McCarthy: So like naming a holiday or something like that.

Dan Cassino: So to give an example, the same month that you got the Inflation Reduction Act, we also got Reece's law, which is a law that would require the Consumer Product Safety Commission to put labels on button batteries to make it harder for children to open them. Well, okay. I mean, not the most important thing that the history of the republic, but. Okay, my personal favorite is H.R. 1444. And this is a bill I'm going to give full title to designate the facility. The United States [00:11:00] Postal Service located 132 North Loudon Street, Suite one in Winchester, Virginia, as the Patsy Cline Post Office.

Audio clip: How about giving yourself a little applause there!

Dan Cassino: These are the sort of bills that actually get passed. And we say 600 bills get passed. Most of those are telling people to make coins and naming post offices. We simply don't do a whole lot.

Hannah McCarthy: I want to know what they think of each other. Does the House have, like, an inferiority complex?

Nick Capodice: Well, let's see what they have to say for themselves. So I got a former Senate [00:11:30] staffer, Justin LeBlanc.

Justin LeBlanc: We jokingly often refer to to the House and the Senate with reference to what the British Parliament calls them, and that is obviously the House of Commons and the House of Lords.

Nick Capodice: And a former House staffer, Andy Wilson.

Andy Wilson: Despite the House and the Senate being co-equal branches of government, there's very much a feeling of the Senate is sort of the upper chamber.

Hannah McCarthy: Wait, are they co-equal?

Nick Capodice: They are. But that doesn't stop the sense that one of them is more formal, [00:12:00] a little more hoity toity, if you will.

Justin LeBlanc: It's more dignified, etc.. So there's sort of a different feeling about even the Senate side of the Capitol complex versus the House side.

Nick Capodice: Justin and Andy have both left Congress since. Justin is now the founder and president of Lobby Wise, and Andy works for a PR firm in New York City.

Andy Wilson: Well, I'm a House guy, so I quite enjoyed the the free flowing nature of the House. Other members, other people that might have worked in the Senate might might feel more proud [00:12:30] of having sort of that stately Senate vibe. But I like the House.

Hannah McCarthy: I think it might be a House gal.

Nick Capodice: It sounds a little more fun, doesn't it? Yeah. I want to make it clear, Andy and Justin, we're in no way throwing shade towards each others chambers, but there is some good natured ribbing that goes on.

Hannah McCarthy: So I've got a good feel for their differences due to size and term length. But what are the specific differences in their powers?

Nick Capodice: Here's what Justin said about that.

Justin LeBlanc: I think the most significant difference between the Senate and the House [00:13:00] really comes down to two things. While they both have to pass legislation and they have to pass the identical legislation in each chamber before it can go to the president for signature only the Senate has the constitutional responsibility and authority to advise and consent the White House on treaties. And so any treaty agreed to by the White House has to be approved by the United States Senate. The House does not have such similar authority.

Nick Capodice: And not just treaties, but the Senate confirms all [00:13:30] presidential appointments, cabinet secretaries.

Hannah McCarthy: Like Secretary of State, Secretary of Defense, etc..

Nick Capodice: Yeah, and ambassadors, and the big one, Supreme Court justices.

Hannah McCarthy: Which is a pretty big deal, especially recently.

Nick Capodice: Right. Four of our nine current justices were appointed in the last five years.

Justin LeBlanc: And then on the flip side, all appropriations measures, that is all measures that fund the federal government. Those bills must begin in the House. The Senate does not have the authority to initiate an appropriations process.

Nick Capodice: This [00:14:00] has a fun name, by the way. It's called the Power of the Purse. The framers wanted the House, the voice of the people, to be dominant when it comes to how we tax and spend money. The Senate cannot make money bills. But besides money, there's also impeachment powers. Here's Cheryl Cook-Kallio again

Cheryl Cook-Kallio: Again, the other specific job the House of Representatives have is that any articles of impeachment for any elected federal official goes through the House of Representatives if they are passed in the House of [00:14:30] Representatives, the trial is held in the Senate. That's a specific job of each House.

Hannah McCarthy: If you had told me in 2018, when we first did a series on the midterms, that in a mere four years our Supreme Court would look so different and we would have had two impeachments. I probably would not have believed you.

Nick Capodice: Yeah, I wouldn't have believed myself Hannah. You know, there is another big difference between the House and the Senate, and it has to do with voting and power.

Andy Wilson: In the House. [00:15:00] It's majority rule. So in order to pass a piece of legislation in the House, it's 50% of the votes plus one. So if you know, if the Republicans have a 20 seat majority, they can basically do whatever they want.

Audio clip: Bending the rules and passing H.R. 3109 if ordered. This is a 15 minute vote.

Andy Wilson: Whereas in the Senate, people might be familiar with the filibuster, which frequently requires 60 votes for something to pass. You know, 60% of the of the Senate has to agree [00:15:30] for something to be passed, which requires a great deal of consensus, a great deal of coalition building. Even when a party is in the majority, they may not have enough to pass that 60 vote threshold. And so you have to work with the opposing party, or at least some members of the opposing party.

Nick Capodice: So in my mind's eye, the Senate is sort of like a buttoned up dinner party with scallops wrapped in bacon and a string quartet in the background. Whereas the House is more like the big party you throw where too many people show up and nobody goes home till four [00:16:00] in the morning.

Dan Cassino: The House of Representatives has 435 voting members. Now, the problem is that that so many people that you're never able to wrangle all of them, if you let everybody talk, they're never going to shut up. If there's one thing politicians love, it's the sound of their own voice. So as a result, the House of Representatives is incredibly tightly controlled. Everything that happens in the House of Representatives first has to go through. It's called the Rules Committee Committee. That doesn't even exist in the Senate.

Hannah McCarthy: What. 

Nick Capodice: I know they don't even have a Rules Committee!

Dan Cassino: And [00:16:30] the Rules Committee is going to side for any bill that comes out of committee if that bill is going to make it to the floor or not, what terms that bill will be argued under and how much debate you're going to have. Now we say how much debate you might be thinking two senators or two representatives come up and debate and talk back and forth. But that never actually happens outside of Hollywood. In the House of Representatives the most common rule we get is what's called a closed rule, meaning there's going to be no amendments allowed whatsoever and they're going to allow somewhere around 15 minutes of debate. So you get 15 minutes of Republicans [00:17:00] talking about the bill, 15 minutes of Democrats talking about the bill, and then you're going to have an up or down vote on the bill and that's all you're going to get. Because if they actually allowed amendments, you have all these radicals from both sides there. Nothing is ever going to happen. They've basically given up on trying to build consensus in the House of Representatives, House of Representatives is all about mobilizing your party in ramming through whatever you can. And the Speaker of the House, because that becomes enormously powerful. If the Speaker of the House doesn't like a bill, that bill is dead. [00:17:30]

Nick Capodice: Failure to act on a bill is the equivalent of killing a bill. So the Speaker of the House can just refuse to allow any bill to come to the floor so it'll never be voted on. And that's unless you do this thing called a discharge petition, but that's got to be in another episode.

Hannah McCarthy: So thinking about midterm elections, if your party has the majority in the House, it's not just that you have an advantage when voting for legislation, right? Your party also holds the speaker's seat and that means your party has more control over [00:18:00] what bills even make it to the floor.

Nick Capodice: Exactly.

Hannah McCarthy: So how does power work in the Senate?

Dan Cassino: The biggest difference between the House and the Senate is the way that the modern structure of the Senate really empowers individual senators. So you're in the Senate, there's 100 people, and if it's a normal bill that's been filibustered, so you have to get to cloture. The important person to be is the 60th voter.

Nick Capodice: Basically, in order to stop a filibuster, you have to have 3/5 of the Senate vote on it. That's 60 members.

Dan Cassino: You [00:18:30] don't get any prize from me in the 59th vote or because only 59 supporters. Well, the bill's not going get passed. You don't get any prize for being the 68th supporter because they don't need you. They need exactly 60. So the question becomes, who is that 60th vote? Or in the case of one of the rare bills that's not subject to the filibuster, who is the 50th voter, for.

Nick Capodice: Example, confirmations cannot be filibustered. And that Inflation Reduction Act, that was considered a bill that couldn't be filibustered because that's what's called an appropriations bill. It has to do with [00:19:00] the budget. To learn more about that, listen to our episode on the Senate Parliamentarian.

Dan Cassino: And that 50th voter gets whatever they want. And this is what everyone's fighting to be. You want to be that 50th or that 60th supporter. You want to be the pivotal voter, especially in a Senate that's divided as closely as the current Senate. There are lots of potential pivotal voters, and because of that, individual senators have an enormous amount of power. Now, this is, of course, not what the founders [00:19:30] intended at all. The founders definitely intended the Senate to be a place where bills go to die, but they didn't intend to work this way. What they wanted was the Senate to make sure that the whims of the people didn't overwhelm the rights of the states. Today, it's much more about they want to make sure that the whims of the majority party don't overrule the rights and privileges of the minority party in the House of Representatives. Basically, nobody's the pivotal voter. There's 435 voting members. The odds that the bill is going to come down to 218 [00:20:00] versus 217. You are the 218th supporter boy howdy. It just doesn't happen very often because Nancy Pelosi or the Speaker of the House knows what they're doing and they're not going to bring a bill to the floor if they don't already have all the votes lined up.

Nick Capodice: However, Dan says that the people with the most power in the House tend to be those who have been there the longest.

Dan Cassino: If you want any power in the House of Representatives, you have to serve for a long time. You have to rise up the ranks. You have to get to the head of a committee, and then you can shape a bill in committee and push it on the floor. We should also say seniority is not [00:20:30] the only thing anymore. So if I'm the Speaker of the House, my job is to protect my majority. And one of the ways I'm going to do that, I'm going to say, all right, you're a vulnerable member. You're from a district that's a purple district. Could a Republican Democratic. You know, I'm going to do I'm going to put you on the best possible committee. I'm going to help you get all that money back to your district and put you on one of those AAA committees. So you're going to be on defense. You're going to be one of these other committees that can really deliver for your district. So as a voter, I'm not going to lose out on all the benefits by bringing someone new [00:21:00] in, especially if it's a close district. Well, I'm going to get some of those benefits anyway, because the Speaker of the House is going to make sure to put that person in committee where they can deliver for my district so that person can get reelected.

Nick Capodice: We have reached the other big part of the job for both the House and the Senate. Campaigning. We're going to talk about that and how to use your power as a voter to make sure your legislators are working for you. Right after this break. But before that break, a quick reminder that Civics 101 is listener supported. If you like what we're doing, given [00:21:30] any amount at our website, civics101podcast.org, or just click the link in the show notes.

Hannah McCarthy: All right. So senators have a six year term and representatives have to run for reelection every two years, meaning that every two years the entire House and about a third of the Senate is up for reelection. Doesn't campaigning take up a lot of their time?

Nick Capodice: Oh, yeah. Dan said that elected officials can spend up to five or 6 hours a day [00:22:00] to stay in office in both the House and the Senate. Here's former state rep and CNN political analyst Bakari Sellers.

Bakari Sellers: Let me just say that when you're in the House of Representatives, the campaigns never end. You're in a perpetual sense of campaigning because it's that two year period. You don't stop. You don't take a reprieve. You win an election and you you move on to the next elections.

Dan Cassino: If you want to run for the house, the big thing you have to have is name recognition in your community and a relatively small community. 700,000 people [00:22:30] for most House seats. People have to know who you are and you have to be able to knock on doors and mobilize people to knock on doors for you.

Nick Capodice: So what does it take to campaign for the Senate?

Bakari Sellers: Oh, for if you're campaigning for United States Senate, you should have been campaigning your entire life. There's there's no there's no waiting until the filing period. And I love to see that you have these, like billionaires or millionaires or people who have this amazing sense of self, and they wait until the filing period, which is usually like March for June or July [00:23:00] or August primary. And they think they can just parachute in and run a race and spend money on TV.

Dan Cassino: If you want to run for the Senate, the big thing you need is either be really rich yourself or to know a whole lot of rich people because that Senate race cost you tens of millions of dollars and you're never going to knock on enough doors. So the types of candidates you get are going to be very, very different. This is also one of the reasons why we see a lot more women running for the house than we do for the Senate. Well, women are able to mobilize other voters just as well as anyone else. They actually have a harder time raising money [00:23:30] because they don't necessarily have the business connections because of lots of other things going wrong in our society that would let them easily run for the Senate.

Nick Capodice: And that doesn't just affect gender in the Senate.

Bakari Sellers: It's you can literally still count on less than two hands. But, you know, if you go back in history and you're talking about Ed Brooke and Mo Cowan and Carol Moseley Braun and Cory Booker and Kamala Harris and Tim Scott, I just ran through there may be one [00:24:00] that I'm missing or two, but I just ran through the African-American members of the United States Senate in history. And so it's a very it's a very deliberative body, but it's also a very old white male body as well. Usually there's a sense of patriarchy that puts you in a position to run for that office.

Nick Capodice: And as of this recording August 2022, there have been 11 total black US senators ever. [00:24:30]

Hannah McCarthy: 11 total in the history of the country

Nick Capodice: In the history of the nation.

Nick Capodice: And though both the House and the Senate have gotten more diverse over the last couple of elections, there's still a long way to go. Currently, we have 11 nonwhite senators, and in the House, 33% of representatives are nonwhite. And that group includes a lot of newly elected legislators. Hannah As I was making this episode and hearing about all the things the House and [00:25:00] the Senate have power to do and the sheer volume of hours and money that goes both into the work and constant campaigning. Personally, it struck me that as a voter, it was really easy for me to feel disconnected from what's happening at the Capitol building and that any kind of progress or responsiveness to issues that I cared about was frustratingly slow. So this is something I asked Dan Is this how it's supposed to work? [00:25:30] Is this system broken? And if so, what about it is broken? Can we fix it?

Dan Cassino: So Congress is working as intended. This is what the founders wanted. Not the way it works, right? They didn't want parties. They were very much against parties. But the idea that the House proposes a bunch of bills is a bunch of things that could pass the House. Nothing could pass the Senate, therefore nothing happens. That's exactly what the Founders wanted. They wanted a government, a federal government that didn't do anything. It left everything up to the states because they didn't trust the federal government. [00:26:00] They wanted the states to have more power. The problem is that this is a 18th century form of government working in the 21st century, but that's not what the public necessarily wants now, the public doesn't want a government that can't do anything. I think people on both sides of the aisle. Right. Republicans very much want a government that can do something about undocumented migration, that can do something about cutting taxes and red tape. Democrats definitely want a government that can do something about climate change. You can have a government that is more efficient, but we are not designed to do that.

Nick Capodice: Dan reiterated [00:26:30] to me that sometimes this inefficiency is a good thing and that it makes legislators work for something that could have broad appeal.

Dan Cassino: Again, this is not necessarily a bad thing for everyone. It's not a bad thing because if you think about the Inflation Reduction Act, this is a bill that was actually heavily negotiated between wings of the party, between relatively liberal people and relatively conservative people, and brought together a whole bunch of people and got Democrats largely what they wanted and got policy outcomes that were, I think, amenable to most of the American public. [00:27:00]

Nick Capodice: And again, the Inflation Reduction Act didn't even have to be filibuster proof.

Dan Cassino: If you negotiate, if you have to get 60 votes, I'm not sure you get something that looks anything like that.

Nick Capodice: So this is the flip side, that the inefficiency can make it really hard to pass any legislation at all or legislation that anyone is happy about.

Dan Cassino: Think about the most recent gun control bill. There's a gun control bill that literally no one was happy with. It doesn't go nearly far enough because this requirement to get to 60 votes. So is the House [00:27:30] and Senate working the way supposed to? Yes. Is that a good thing? Not necessarily, because it does mean we wind up with a very inefficient government.

Nick Capodice: So for a final question I asked Dan, so what? What's the upshot in all of this? Where does that leave us as voters?

Dan Cassino: This is important, remember. Politicians are a cowardly and superstitious lot. They are terrified, all of them, at all times that [00:28:00] they will lose their reelection bid. Even the people in the safest seats, if they see the slightest chance they're going to lose. They start to shape up and they start to get very responsive very, very quickly. I'll give you an example from here in New Jersey, we have a representative guy named Don Payne, and Don Payne represents mostly Newark. And Don Payne is in a Don Payne Junior because his father had the seat before him. He is not going to lose the election. He is going to win that election. He doesn't even face challenges in the Republican race. He is set. Because [00:28:30] of that, he's been a little complacent. So he has the highest absenteeism rate over the course of career of any member of the House Representatives. There are some years where he doesn't show up for 40% of the votes. He just doesn't go to work. Does he win? Yeah, of course he does, because there's no one challenging him. This past election cycle. There was a young woman who was very much inspired by Alexandria Ocasio-Cortez, who went and started knocking on doors in his district, running against him in the primary.

Audio clip: My name is Imani Oakley. I'm a candidate [00:29:00] running for Congress in New Jersey's 10th Congressional District. And one thing that most people don't know about New Jersey and New Jersey elections is that we have the most corrupt ballot design.

Dan Cassino: Now. She was underfunded. She was literally just she and some volunteers knocking on some doors. And you know what happened? Don Payne, for the first time in years, started doing interviews. Like he went and talked to the press. He started raising lots of money. He started talking to voters. He started showing [00:29:30] up to work. He didn't missed a vote this past year because he's so scared that someone is coming for his seat in the safest possible seat you could have. He's still scared. Politicians are a cowardly and superstitious lot. If they get any inkling that someone is coming for them, they are going to shape up and they're going to do what their voters want to do by voting against someone who is going to win, by giving money to a candidate who has no chance. You [00:30:00] are scaring your representative. You are getting them in line. Even if they're not the party you like, they're going to start voting the way you want them to vote because they're scared of losing their seat. Even if you can't change them, who they are, you can change the behavior by scaring the bejesus out of your representatives. And that's the way to actually make a difference in Washington.

Nick Capodice: This episode is written and produced by me Nick Capodice with Christina Phillips and Hannah McCarthy. [00:30:30] Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music for this episode comes from Blue Sessions. Creo, they did that house music in the beginning, Broke For Free, Jahzaar, Electric Needle Room, our electric needle room. Isaac Elliot, Bonkers Beat Club Alpha J Winters, Aria Light Fields, Xylo Zico and Cusp. Civics 101 is a production of NHPR. New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Federal Courts: Espionage and the Rosenbergs

Since its passage after World War I, thousands of people have been investigated for violating the Espionage Act, including Julian Assange, Daniel Ellsberg, and Donald Trump. However, only two people have been executed for violating it during peacetime; Ethel and Julius Rosenberg. 

This episode features Anne Sebba, author of Ethel Rosenberg: A Cold War Tragedy, and Jake Kobrick, Associate Historian at the Federal Judicial Center. It explains the Espionage Act of 1917, the accusations against the Rosenbergs, the twists and turns of their trial, and their execution in 1953. 

Resources:

Click here for handouts and activities from the Federal Judicial Center to help teach this case.

Rosenbergs transcript: Audio automatically transcribed by Sonix

Rosenbergs transcript: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Archival:
One of the greatest peacetime spy dramas in the nation's history reaches its climax as Julius Rosenberg and Morton Sobel, convicted of revealing atomic secrets to the Russians enter the federal building in New York to hear their doom.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And you're listening to Civics 101. We are continuing our series on federal court trials, the landmark non Supreme Court cases that were followed by the public and the press. These are the places where the people in the courts meet. And today we are exploring the 1951 trial of the first ever U.S. citizens to be executed for espionage during peacetime. Julius and Ethel Rosenberg. And Hannah, this trial has a lot in it. It's tied to communism..

Archival:
Communist Party of the United States is a fifth column, if there ever was one.

Nick Capodice:
Mccarthyism.

Archival:
Have you no sense of decency, sir.

Nick Capodice:
The Manhattan Project, and the Cold War.

Hannah McCarthy:
So this is an espionage case, right?

Nick Capodice:
Yeah.

Hannah McCarthy:
So I think it would be best before we get to know who Ethel and Julius Rosenberg were and what they did, to understand what espionage actually is.

Nick Capodice:
After the US entered World War One, President Woodrow Wilson signed the 1917 Espionage Act. That's been amended several times since then, but basically it made it a crime to unlawfully retain or disclose any information that could potentially harm the United States or benefit its enemies. And there are lots of Supreme Court cases where this act clashes with our First Amendment rights. Famously, Schenck v United States.

Hannah McCarthy:
Oh, yeah, I know this one. This is the one where the justices ruled that, for example, shouting fire in a crowded theater is not protected speech.

Nick Capodice:
Yeah. So if any speech presents a, "clear and present danger" to the U.S., you can be punished for it. It's not protected under the First Amendment. Now, the Espionage Act covers a lot of ground. Whistleblowers like Daniel Ellsberg of Pentagon Papers fame and Julian Assange of WikiLeaks fame. They were accused of violating it. And so, too, were numerous spies and people accused of selling secrets. And most recently, the search warrant for the raid of former President Donald Trump's Mar a Lago estate cited a potential violation of the Espionage Act.

Archival:
The court papers obtained by CBS News and unsealed today show the FBI seized more than 20 boxes, some containing classified documents marked top secret and above.

Hannah McCarthy:
So basically the act says you can't keep sell or reveal information that could compromise national security.

Nick Capodice:
That's it.

Hannah McCarthy:
All right. So let's get into the Rosenbergs. Who were these people and what did they do?

Nick Capodice:
Let's start with Ethel.

Anne Sebba:
You know, I always say I'm not relitigating the trial. I'm I'm trying to tell the story of who Ethel was and Ethel's life.

Nick Capodice:
This is Anne Sebba. She's a journalist, lecturer and author of Ethel Rosenberg: A Cold War Tragedy.

Anne Sebba:
Particularly in England. If people know anything about the story, they would say to me, Oh, yes, the Rosenbergs, those spies as if they were an indissoluble unit. I wanted to extrapolate Ethel. She was 37 when she was killed and the mother of two small boys and people really didn't know anything about her except the assumption that she was part of the spy ring.

Nick Capodice:
Before she married Julius. Her name was Ethel Greenglass. That last name is going to come up a few more times. Ethel grew up in my favorite neighborhood in the world, the Lower East Side of New York City. She pursued a career in singing and acting, and that didn't really pan out. But she found work at a shipping company in New York where she started to get involved in a worker's union and then the Young Communist League.

Hannah McCarthy:
All right. So the word communist has been thrown around a lot in the last century or so. Sometimes it's a literal party descriptor. Sometimes it's an epithet. So how did communism fit into American politics in the 1930s?

Nick Capodice:
Yeah. So communism Karl Marx's political theory that all wealth and property should be shared and distributed as to people's needs. That word communism is a different thing than the Communist Party in the US. The Communist Party was a very left wing organization with financial and ideological ties to the Soviet Union in the 1930s. Their platform had a lot to do with organizing workers into unions, fighting for the rights of Black Americans and the unemployed. And yes, the bigger goal of abolishing private property and having the government own and run all industry.

Jake Kobrick:
As you might imagine, giving the economic distress that was going on in the United States in the 1930s during the Great Depression. That was the height of the Communist Party USA's influence.

Nick Capodice:
This is Jake Kobrick, associate historian of the Federal Judicial History Office.

Jake Kobrick:
So somebody being a member of the Communist Party in 1930s, New York, which was the center of their operations at that point, was not as extraordinary as it might sound in retrospect. The Communist Party in the 1930s in the United States was following what they called a popular front strategy, meaning that they were trying to not sound radical, that they were trying to link themselves with other progressive organizations in the United States and sort of be part of the general political conversation. And what that meant in practical terms was they were very heavily involved in trying to organize labor, organize workers for better conditions, which in the 1930s was was a popular cause.

Nick Capodice:
Ethel Greenglass met Julius Rosenberg at a meeting of the Young Communist League in 1936 and Anne said that year is really important.

Anne Sebba:
To me, 1936 is the touchstone when the world might have changed. And that, of course, is when Ethel and Julius both became communists. The only way to stop the dictators, Hitler, who had marched into the Rhineland, the Spanish Civil War, and Franco and Mussolini, they were all flexing their muscles. But also she'd lived through the Depression. She'd seen that capitalism hadn't worked. She thought the really must be another way.

Hannah McCarthy:
Since communism was explicitly tied to another nation, the Soviet Union, was being a communist in and of itself considered something like a treasonous act?

Nick Capodice:
No, not at all. And interestingly, this is why Julius and Ethel are later convicted not of treason, but of conspiracy to commit espionage. Because as I'll get into, yes, Julius did become a spy for Russia, but he did so after Russia had become an ally in World War Two.

Hannah McCarthy:
Okay. So because the Constitution defines treason as related to enemies giving enemies aid and comfort. Treason does not apply to Julius Rosenberg, right?

Nick Capodice:
Aid and comfort to an ally is not in our Constitution. And in 1941, the United States was trying really hard to convince people that Russia was an ally.

Anne Sebba:
There were a lot of rallies or propaganda films, and at that point, Russia became the brave ally of America and the world, and they were fighting the cause that we were all fighting against Hitler. So. So there were these sort of yo yo swings and roundabout movements, if you like.

Archival:
And Russians are determined to hold at all costs. Perish, but do not retreat, is the order of every day.

Hannah McCarthy:
And you said Julius became a spy for the Russians.

Hannah McCarthy:
He did.

Nick Capodice:
What did he do for them?

Nick Capodice:
Well, we only know the extent of what Julius did. Thanks to the 1995 declassification and release of information about this counterintelligence program called VENONA and VENONA revealed Julius was recruiting spies for the Soviet Union and giving them information.

Anne Sebba:
So these secret documents, the VENONA documents, of which there were thousands and thousands that the U.S. was deciphering decrypting, which revealed American agents passing information to the Soviet Union. And, of course, America was really scared. Again, I understand this existential fear, because not only had Russia exploded a bomb in 1949 and the Americans thought that the Russians were years behind, they never expected them to have access to nuclear weapons.

Nick Capodice:
This is a crucial part of the Rosenberg story. Russia tested a nuclear bomb in August 1949, and everyone was like, How on earth did Russia get nukes? It must have been spies. People working on the Manhattan Project in Los Alamos, New Mexico, where we designed our first atomic weapons. And the US government starts to arrest people suspected of giving nuclear secrets to the Soviet Union.

Jake Kobrick:
And there were seven people who were allegedly involved in this conspiracy. There were the Rosenbergs, there were the green glasses, Julius Rosenberg's in-laws, David and Ruth Greenglass. There was Morton Sobol, who was a friend of Julius and a fellow Communist. There was Harry Gold, who allegedly acted as a courier between the spies and the Soviets. And then there was Anatoly Yakovlev, who was a Soviet official who was allegedly in charge of their atomic espionage program in the United States.

Anne Sebba:
Now, Julius was not at Los Alamos, but Ethel's brother, David Greenglass, had been at Los Alamos where they were making the bomb, the Manhattan Project. He was a lowly machinist. He didn't know anything, but clearly merely being there was enough to excite information.

Jake Kobrick:
David was in New York. He was over at the the Rosenbergs apartment, I believe, and Julius tore a jello box in half and gave David and Ruth half of that Jell-O box. And he basically said, I'm going to send someone out to you. And the way you'll know that it's the person that I'm sending you is they're going to have the matching half of this box.

Hannah McCarthy:
A Jell-O box.

Nick Capodice:
That's some low tech spycraft.

Hannah McCarthy:
You know, low tech can be very effective.

Jake Kobrick:
There's a knock on their door. They open the door. A man allegedly says, I come from Julius. He has the matching half of the box. They match him up. And that's how he knows this is the right person to give these stolen notes and sketches to about the atomic bomb.

Nick Capodice:
Ethel and Julius were arrested in 1950 under the charge of conspiracy to commit espionage.

Hannah McCarthy:
Now, Jake said there were seven people involved in the plot, so why do we only learn about the Rosenbergs? And so far, you haven't told me anything about Ethel's supposed role in all of this. What was she accused of doing?

Nick Capodice:
All right. We're going to get to Ethel, the trial and everyone else involved right after this break.

Hannah McCarthy:
But first, just our weekly shout out that the most significant portion of our show's budget depends on listeners. Like you donate a buck or five at our website, civics101podcast.org, or just click on the link in the show notes.

Hannah McCarthy:
We're back. Ethel and Julius have been arrested. What happens next, Nick?

Nick Capodice:
So the government knows from these decoded VENONA documents, those again are the thousands of secret messages intercepted by the US. The government knows that Julius was indeed a spy. He recruited agents for a spy ring and he gave the Soviet Union's secret documents. Here's Jake Kobrick again.

Jake Kobrick:
You know, he had code names and everything. They called him Antenna for a while. And then after that, they called him Liberal. The Greenglasses, by the way, they had they had code names as well. David Greenglass was Bumblebee for a while and then Caliber and Ruth Greenglass was Wasp. And Ethel Rosenberg did not have a codename, which is pretty significant.

Hannah McCarthy:
So if Ethel didn't have a code name, does that mean she was not necessarily a spy?

Nick Capodice:
Ethel Rosenberg's actions and involvement here is like a big, wide, uncertain mark on this whole trial. To this day, we are not sure of the specificities of her involvement, and it's worth mentioning that there is a movement around her potential innocence. Her sons asked President Barack Obama to exonerate her of her crimes. Anne Sebba told me that Ethel had been used as a lever. She was to be a tool to name other parties and confirm Julius's guilt, which would then lessen her sentence. But she didn't. She and Julius protested their innocence and did not name names of any coconspirators. Here's Anne again.

Anne Sebba:
Once these VENONA documents were deciphered, a man called Klaus Fuchs who was in England was arrested. He confessed. He was a very clever physicist who really had given important information to the Russians. So Klaus Fuchs was arrested. He confessed. He was given 14 years and he named names. That's what everybody did. Klaus Fuchs named his courier Harry Gold. Harry Gold, who was a serial liar already in prison, named David and Ruth Greenglass, who were real spies. They passed information and given money. David and this is the critical point, named only one name, Julius Rosenberg. If you read his grand jury statements, he did not name his sister, Ethel.

Nick Capodice:
In 2015. David Greenglass statement to the grand jury before the trial was released, and he said, Leave my sister Ethel out of it. She is not involved. However, at the trial itself, there were several prosecutors questioning David, including Roy Cohn.

Archival:
One thing we have to understand at the outset is that the Communist Party is not a political party. It's a criminal conspiracy. Its object is it has been established by the verdict of a jury, the overthrow of the government of the United States.

Hannah McCarthy:
And for anyone out there who doesn't know Roy Cohn, he was a lawyer who would later serve as chief counsel to Senator Joseph McCarthy during the McCarthy hearings, which were about finding and outing communists and the lavender scare, which was about finding and outing members of the gay community.

Nick Capodice:
And as an additional footnote, later in Cohn's life, he would serve as lawyer and long time mentor of a young real estate developer named Donald Trump. But back to the trial. They reenacted the scene with the Jell-O box. You can actually see the box they used in the trial at the National Archives. It was raspberry flavored, by the way. But a big turning point in the trial happens during Roy Cohn's examination of David Greenglass, where David reversed what he had said about his sister Ethel.

Anne Sebba:
When he invented a different story and he perjured himself and suddenly said she did the typing.

Hannah McCarthy:
Typing? Typing up what?

Nick Capodice:
Typing up notes for Julius and David. And in the prosecution's closing statement, they said that Ethel, quote, sat at that typewriter and struck the keys blow by blow against her own country in the interests of the Soviets. Later, when David Greenglass got out of jail, he admitted he had lied about the typewriter.

Anne Sebba:
In my view, it was such a clever lie, partly because it was known that Ethel was a typist, but partly because, don't forget, this is the 1950s and misogyny is absolutely dripping at every stage of this evidence. The only evidence, quote unquote, that the judge could use was that Ethel was older, two and a half years older, than her husband. Therefore, she was obviously the senior partner in this crime unit. Again, no evidence. But but that's the attitude towards women. It was known that Ethel was clever, but a typewriter is something that all Americans could understand. Because if American women undertook work in the 1950s, it probably was that sort of secretarial work. So if you can't trust that person who's doing your typing, who on earth can you trust? And Ethel was it was insinuated was a woman who couldn't be trusted.

Hannah McCarthy:
What exactly insinuated that she couldn't be trusted?

Nick Capodice:
Well, for one thing, she took the Fifth Amendment at her trial. She refused to say anything that would incriminate herself.

Anne Sebba:
So she was considered slippery because she wasn't telling the truth. Ethel somehow came to portray somebody who was responsible for betraying all American womanhood that if if you allowed Ethel to get away with with what was conveyed as spying. Although I keep repeating, there's no evidence she actually partook of this. You would be somehow allowing all American womanhood to to be guilty.

Nick Capodice:
Julius and Ethel Rosenberg were found guilty of conspiracy to commit espionage and were sentenced to death for their crimes. Roy Cohn would go on to say years later that the judge issued the death sentences on Cohn's personal recommendation. The US government offered to lessen their sentence if they just name names of coconspirators. But Julius and Ethel replied by saying, "By asking us to repudiate the truth of our innocence. The government admits its own doubts concerning our guilt. We will not be coerced, even under pain of death, to bear false witness." David Greenglass then wrote to President Eisenhower to personally request their sentence be commuted to prison time. But that request was denied. Eisenhower wrote The execution of two human beings is a grave matter. But even graver is the thought of the millions of dead whose deaths may be directly attributable to what these spies have done.

Hannah McCarthy:
Now, there were other parties involved. Were none of them sentenced to death as well?

Nick Capodice:
No they all served jail time and again. These are the only two people in U.S. history to be executed for espionage during peacetime.

Hannah McCarthy:
The only time as in it has not happened since then?

Nick Capodice:
The only time, has not happened as of this recording. It has not happened since then. And that execution was scheduled for June 17th, 1953. However, there's one last twist. And do you remember our episode on the Shadow docket?

Hannah McCarthy:
Yeah, of course. It's about the times that the Supreme Court orders actions outside of their usual ruling.

Nick Capodice:
Yeah, there is a notable instance of that here. On the day the Rosenbergs were to be executed at Sing Sing Prison, Supreme Court Justice William Douglas issued a stay of execution. He put the whole thing on hold.

Hannah McCarthy:
What was his reasoning for that?

Nick Capodice:
Well, his reasoning was that while the judge, Irving Kaufman, had sentenced the Rosenbergs to death, the jury had not. And this conflicted with a ruling in another case in 1946, which said a jury had to consent to a death sentence.

Hannah McCarthy:
So because of that precedent set, when Judge Kaufman sentenced them to death, but the jury didn't. This was grounds for Justice Douglas to pause their execution.

Nick Capodice:
Yes. And since this stay of execution was granted in the summer, it would be months until the Supreme Court was back in session and they could review the case.

Hannah McCarthy:
So did they delay it until the summer?

Nick Capodice:
They did not. Chief Justice Fred Vinson immediately convened the court out of session, and he stopped that stay of execution. Justice Douglas faced impeachment proceedings because of this later, he was not removed. But this is a story for another day.

Archival:
Inside the stone walls of Sing, Sing Prison. The Rosenbergs wait all day for word of their fate. It's now more than two years since they were first sentenced to die for organizing atomic espionage for Russia.

Nick Capodice:
On June 18, at 8 p.m., Julius and Ethel Rosenberg were electrocuted. One reporter who was present at the execution described Ethel's death in extreme detail, which I actually want to share here with our listeners. But frankly, it's a horrific description. So if there's anybody out there who doesn't feel like hearing about it, skip ahead a minute and 30 seconds.

Archival:
When it appeared that she had received enough electricity to kill an ordinary person and had received the exact amount that had killed her husband, the doctors went over and pulled down the cheap prison dress. A little dark green printed job. And place the stethoscopes. I can say it. Place the stethoscopes to her and then looked around that looked at each other rather dumbfounded and seemed surprised that she was not dead, believing she was dead. The attendants had taken off the ghastly wrappings and electrodes and the black belts and so forth. And these had to be readjusted again. And. And she was given more electricity, which started again, that kind of a ghastly plume of smoke that rose from her head and went up against the skylight overhead. After two more of those jolts. Ethel Rosenberg had met her maker. She'll have a lot of explaining to do, too.

Hannah McCarthy:
What was the public's reaction to their death?

Nick Capodice:
It was divided, though, Anne told me that in a poll conducted prior to the execution, 70% of Americans felt Ethel Rosenberg should be killed for her crimes. And at the same time, others considered the two of them as martyrs. 10,000 people waited outside their funeral services in Brooklyn, where their lawyer, Emanuel Bloch, said that America was living under the heel of a military dictator garbed in civilian attire.

Hannah McCarthy:
Nick, if we look at this case from a civics angle and what are we supposed to learn from the trial of Ethel and Julius Rosenberg?

Jake Kobrick:
We are always in a very interesting position at the FJC. We try not to be openly critical of the judiciary or say anything that would cast the judiciary in a bad light. But at the same time, we don't shy away from acknowledging that the judiciary has made mistakes. You know, people were obviously when we talk about Dred Scott, we say obviously this was a terrible thing. You know, people in the years after the trial were very, very critical of Irving Kaufman's conduct. They they were critical of of the death sentences. I mean, it really looks like he kind of got to swept up in this and too carried away. So, I mean, there's blame to go around. I mean, there's blame. I think probably more of the blame falls with the Justice Department. And I think we kind of rely on the judiciary to, I guess, de-escalate that passion. The judiciary is supposed to be a neutral arbiter between the prosecution and the defense. And in this particular case, the judiciary failed in that task, I think.

Anne Sebba:
Of course, if you're looking at it through the prism of the trial, Ethel would never have been convicted today. I mean, the American Bar Association has had a rerun and there is so much that is not acceptable now. And it's quite clear from the letters I've had from lawyers how this is a shameful moment that they were prepared in the fear of mob rule and the fear of communism, which, as I say, I do understand, to let the rights of one of their citizens be overruled because they felt it was for the greater good. And as far as I'm concerned, I can only repeat if my book is about one thing. It's about the importance of the rule of law. And God knows we need it more than ever today.

Nick Capodice:
That's the story of the Rosenberg trial. Huge thanks to the American Bar Association for working with us on this series. If any of you are educators out there who want to teach this case in your classroom, there are some great resources provided by the Federal Judicial Center on our website, civics101podcast.org. This episode was made by me Nick Capodice with you, Hannah McCarthy.

Hannah McCarthy:
Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie our executive producer.

Nick Capodice:
Music in this episode by Bio Unit Blue Dot Sessions Ben Lesson Howard Harper Barnes Christian Andersen. Emily Sprague ProletR Scott Gratton Yung Kartz Jesse Gallagher and the great Chris Zabriskie.

Hannah McCarthy:
Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript

Rosenbergs transcript

Archival: One of the greatest peacetime spy dramas in the nation's history reaches its climax as Julius Rosenberg and Morton Sobel, convicted of revealing atomic secrets to the Russians enter the federal building in New York to hear their doom.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And you're listening to Civics 101. We are continuing our series on federal court trials, the [00:00:30] landmark non Supreme Court cases that were followed by the public and the press. These are the places where the people in the courts meet. And today we are exploring the 1951 trial of the first ever U.S. citizens to be executed for espionage during peacetime. Julius and Ethel Rosenberg. And Hannah, this trial has a lot in it. It's tied to communism..

Archival: Communist Party of the United States is a fifth column, if there ever was one.

Nick Capodice: Mccarthyism.

Archival: Have you no sense [00:01:00] of decency, sir.

Nick Capodice: The Manhattan Project, and the Cold War.

Hannah McCarthy: So this is an espionage case, right?

Nick Capodice: Yeah.

Hannah McCarthy: So I think it would be best before we get to know who Ethel and Julius Rosenberg were and what they did, to understand what espionage actually is.

Nick Capodice: After the US entered World War One, President Woodrow Wilson signed the 1917 Espionage Act. That's been amended several times since then, but basically [00:01:30] it made it a crime to unlawfully retain or disclose any information that could potentially harm the United States or benefit its enemies. And there are lots of Supreme Court cases where this act clashes with our First Amendment rights. Famously, Schenck v United States.

Hannah McCarthy: Oh, yeah, I know this one. This is the one where the justices ruled that, for example, shouting fire in a crowded theater is not protected speech.

Nick Capodice: Yeah. So if any speech presents a, "clear and present danger" to the U.S., [00:02:00] you can be punished for it. It's not protected under the First Amendment. Now, the Espionage Act covers a lot of ground. Whistleblowers like Daniel Ellsberg of Pentagon Papers fame and Julian Assange of WikiLeaks fame. They were accused of violating it. And so, too, were numerous spies and people accused of selling secrets. And most recently, the search warrant for the raid of former President Donald Trump's Mar a Lago estate cited a potential violation of the Espionage [00:02:30] Act.

Archival: The court papers obtained by CBS News and unsealed today show the FBI seized more than 20 boxes, some containing classified documents marked top secret and above.

Hannah McCarthy: So basically the act says you can't keep sell or reveal information that could compromise national security.

Nick Capodice: That's it.

Hannah McCarthy: All right. So let's get into the Rosenbergs. Who were these people and what did they do?

Nick Capodice: Let's start with Ethel.

Anne Sebba: You know, I always say I'm not relitigating [00:03:00] the trial. I'm I'm trying to tell the story of who Ethel was and Ethel's life.

Nick Capodice: This is Anne Sebba. She's a journalist, lecturer and author of Ethel Rosenberg: A Cold War Tragedy.

Anne Sebba: Particularly in England. If people know anything about the story, they would say to me, Oh, yes, the Rosenbergs, those spies as if they were an indissoluble unit. I wanted to extrapolate Ethel. She was 37 when she was killed and the mother of [00:03:30] two small boys and people really didn't know anything about her except the assumption that she was part of the spy ring.

Nick Capodice: Before she married Julius. Her name was Ethel Greenglass. That last name is going to come up a few more times. Ethel grew up in my favorite neighborhood in the world, the Lower East Side of New York City. She pursued a career in singing and acting, and that didn't really pan out. But she found work at a shipping company in New York where she started to get involved in a worker's [00:04:00] union and then the Young Communist League.

Hannah McCarthy: All right. So the word communist has been thrown around a lot in the last century or so. Sometimes it's a literal party descriptor. Sometimes it's an epithet. So how did communism fit into American politics in the 1930s?

Nick Capodice: Yeah. So communism Karl Marx's political theory that all wealth and property should be shared and distributed as to people's needs. That word communism is a different thing than the Communist Party [00:04:30] in the US. The Communist Party was a very left wing organization with financial and ideological ties to the Soviet Union in the 1930s. Their platform had a lot to do with organizing workers into unions, fighting for the rights of Black Americans and the unemployed. And yes, the bigger goal of abolishing private property and having the government own and run all industry.

Jake Kobrick: As you might imagine, giving the economic distress that was going on in the United States in the 1930s [00:05:00] during the Great Depression. That was the height of the Communist Party USA's influence.

Nick Capodice: This is Jake Kobrick, associate historian of the Federal Judicial History Office.

Jake Kobrick: So somebody being a member of the Communist Party in 1930s, New York, which was the center of their operations at that point, was not as extraordinary as it might sound in retrospect. The Communist Party in the 1930s in the United States was following what they called a popular front strategy, meaning that they were trying to not [00:05:30] sound radical, that they were trying to link themselves with other progressive organizations in the United States and sort of be part of the general political conversation. And what that meant in practical terms was they were very heavily involved in trying to organize labor, organize workers for better conditions, which in the 1930s was was a popular cause.

Nick Capodice: Ethel Greenglass met Julius Rosenberg at a meeting of the Young Communist League in 1936 and Anne said that year is really important. [00:06:00]

Anne Sebba: To me, 1936 is the touchstone when the world might have changed. And that, of course, is when Ethel and Julius both became communists. The only way to stop the dictators, Hitler, who had marched into the Rhineland, the Spanish Civil War, and Franco and Mussolini, they were all flexing their muscles. But also she'd lived through the Depression. She'd seen that capitalism hadn't worked. She thought the really must be another way.

Hannah McCarthy: Since communism was explicitly tied to [00:06:30] another nation, the Soviet Union, was being a communist in and of itself considered something like a treasonous act?

Nick Capodice: No, not at all. And interestingly, this is why Julius and Ethel are later convicted not of treason, but of conspiracy to commit espionage. Because as I'll get into, yes, Julius did become a spy for Russia, but he did so after Russia had become an ally in World War Two.

Hannah McCarthy: Okay. So because the Constitution defines treason [00:07:00] as related to enemies giving enemies aid and comfort. Treason does not apply to Julius Rosenberg, right?

Nick Capodice: Aid and comfort to an ally is not in our Constitution. And in 1941, the United States was trying really hard to convince people that Russia was an ally.

Anne Sebba: There were a lot of rallies or propaganda films, and at that point, Russia became the brave ally of America and the world, and they were fighting the cause that we were all fighting against Hitler. [00:07:30] So. So there were these sort of yo yo swings and roundabout movements, if you like.

Archival: And Russians are determined to hold at all costs. Perish, but do not retreat, is the order of every day.

Hannah McCarthy: And you said Julius became a spy for the Russians.

Hannah McCarthy: He did.

Nick Capodice: What did he do for them?

Nick Capodice: Well, we only know the extent of what Julius did. Thanks to the 1995 declassification and release of information about this counterintelligence program called VENONA [00:08:00] and VENONA revealed Julius was recruiting spies for the Soviet Union and giving them information.

Anne Sebba: So these secret documents, the VENONA documents, of which there were thousands and thousands that the U.S. was deciphering decrypting, which revealed American agents passing information to the Soviet Union. And, of course, America was really scared. Again, I understand this existential [00:08:30] fear, because not only had Russia exploded a bomb in 1949 and the Americans thought that the Russians were years behind, they never expected them to have access to nuclear weapons.

Nick Capodice: This is a crucial part of the Rosenberg story. Russia tested a nuclear bomb in August 1949, and everyone was like, How on earth did Russia get nukes? It must have been spies. People working on the Manhattan Project in Los Alamos, [00:09:00] New Mexico, where we designed our first atomic weapons. And the US government starts to arrest people suspected of giving nuclear secrets to the Soviet Union.

Jake Kobrick: And there were seven people who were allegedly involved in this conspiracy. There were the Rosenbergs, there were the green glasses, Julius Rosenberg's in-laws, David and Ruth Greenglass. There was Morton Sobol, who was a friend of Julius and a fellow Communist. There was Harry Gold, who allegedly acted as a courier between the spies [00:09:30] and the Soviets. And then there was Anatoly Yakovlev, who was a Soviet official who was allegedly in charge of their atomic espionage program in the United States.

Anne Sebba: Now, Julius was not at Los Alamos, but Ethel's brother, David Greenglass, had been at Los Alamos where they were making the bomb, the Manhattan Project. He was a lowly machinist. He didn't know anything, but clearly merely being there was enough to excite information. [00:10:00]

Jake Kobrick: David was in New York. He was over at the the Rosenbergs apartment, I believe, and Julius tore a jello box in half and gave David and Ruth half of that Jell-O box. And he basically said, I'm going to send someone out to you. And the way you'll know that it's the person that I'm sending you is they're going to have the matching half of this box.

Hannah McCarthy: A Jell-O box.

Nick Capodice: That's some low tech spycraft.

Hannah McCarthy: You know, low tech can be very effective.

Jake Kobrick: There's a knock on their door. They open the door. A man allegedly says, I come from Julius. He has the [00:10:30] matching half of the box. They match him up. And that's how he knows this is the right person to give these stolen notes and sketches to about the atomic bomb.

Nick Capodice: Ethel and Julius were arrested in 1950 under the charge of conspiracy to commit espionage.

Hannah McCarthy: Now, Jake said there were seven people involved in the plot, so why do we only learn about the Rosenbergs? And so far, you haven't told me anything about Ethel's supposed role in all of this. What was she accused of doing?

Nick Capodice: All right. We're going to get to Ethel, the trial and [00:11:00] everyone else involved right after this break.

Hannah McCarthy: But first, just our weekly shout out that the most significant portion of our show's budget depends on listeners. Like you donate a buck or five at our website, civics101podcast.org, or just click on the link in the show notes.

Hannah McCarthy: We're back. Ethel and Julius have been arrested. What happens next, Nick?

Nick Capodice: So the government knows from these decoded VENONA documents, those again are the thousands of secret messages intercepted by the US. [00:11:30] The government knows that Julius was indeed a spy. He recruited agents for a spy ring and he gave the Soviet Union's secret documents. Here's Jake Kobrick again.

Jake Kobrick: You know, he had code names and everything. They called him Antenna for a while. And then after that, they called him Liberal. The Greenglasses, by the way, they had they had code names as well. David Greenglass was Bumblebee for a while and then Caliber and Ruth Greenglass was Wasp. And Ethel Rosenberg did not have [00:12:00] a codename, which is pretty significant.

Hannah McCarthy: So if Ethel didn't have a code name, does that mean she was not necessarily a spy?

Nick Capodice: Ethel Rosenberg's actions and involvement here is like a big, wide, uncertain mark on this whole trial. To this day, we are not sure of the specificities of her involvement, and it's worth mentioning that there is a movement around her potential innocence. Her sons asked President Barack Obama to exonerate her of her crimes. Anne [00:12:30] Sebba told me that Ethel had been used as a lever. She was to be a tool to name other parties and confirm Julius's guilt, which would then lessen her sentence. But she didn't. She and Julius protested their innocence and did not name names of any coconspirators. Here's Anne again.

Anne Sebba: Once these VENONA documents were deciphered, a man called Klaus Fuchs who was in England was arrested. He confessed. [00:13:00] He was a very clever physicist who really had given important information to the Russians. So Klaus Fuchs was arrested. He confessed. He was given 14 years and he named names. That's what everybody did. Klaus Fuchs named his courier Harry Gold. Harry Gold, who was a serial liar already in prison, named David and Ruth Greenglass, who were real spies. They passed information and given money. David and this is the critical point, named [00:13:30] only one name, Julius Rosenberg. If you read his grand jury statements, he did not name his sister, Ethel.

Nick Capodice: In 2015. David Greenglass statement to the grand jury before the trial was released, and he said, Leave my sister Ethel out of it. She is not involved. However, at the trial itself, there were several prosecutors questioning David, including Roy Cohn. [00:14:00]

Archival: One thing we have to understand at the outset is that the Communist Party is not a political party. It's a criminal conspiracy. Its object is it has been established by the verdict of a jury, the overthrow of the government of the United States.

Hannah McCarthy: And for anyone out there who doesn't know Roy Cohn, he was a lawyer who would later serve as chief counsel to Senator Joseph McCarthy during the McCarthy hearings, which were about finding and outing communists and the lavender scare, which was about finding and outing members of the [00:14:30] gay community.

Nick Capodice: And as an additional footnote, later in Cohn's life, he would serve as lawyer and long time mentor of a young real estate developer named Donald Trump. But back to the trial. They reenacted the scene with the Jell-O box. You can actually see the box they used in the trial at the National Archives. It was raspberry flavored, by the way. But a big turning point in the trial happens during Roy Cohn's examination of David Greenglass, where David reversed [00:15:00] what he had said about his sister Ethel.

Anne Sebba: When he invented a different story and he perjured himself and suddenly said she did the typing.

Hannah McCarthy: Typing? Typing up what?

Nick Capodice: Typing up notes for Julius and David. And in the prosecution's closing statement, they said that Ethel, quote, sat at that typewriter and struck the keys blow by blow against her own country in the interests of the Soviets. Later, [00:15:30] when David Greenglass got out of jail, he admitted he had lied about the typewriter.

Anne Sebba: In my view, it was such a clever lie, partly because it was known that Ethel was a typist, but partly because, don't forget, this is the 1950s and misogyny is absolutely dripping at every stage of this evidence. The only evidence, quote unquote, that the judge could use was that Ethel was older, two and [00:16:00] a half years older, than her husband. Therefore, she was obviously the senior partner in this crime unit. Again, no evidence. But but that's the attitude towards women. It was known that Ethel was clever, but a typewriter is something that all Americans could understand. Because if American women undertook work in the 1950s, it probably was that sort of secretarial work. So if you can't trust [00:16:30] that person who's doing your typing, who on earth can you trust? And Ethel was it was insinuated was a woman who couldn't be trusted.

Hannah McCarthy: What exactly insinuated that she couldn't be trusted?

Nick Capodice: Well, for one thing, she took the Fifth Amendment at her trial. She refused to say anything that would incriminate herself.

Anne Sebba: So she was considered slippery because she wasn't telling the truth. Ethel somehow came to portray somebody who was responsible for [00:17:00] betraying all American womanhood that if if you allowed Ethel to get away with with what was conveyed as spying. Although I keep repeating, there's no evidence she actually partook of this. You would be somehow allowing all American womanhood to to be guilty.

Nick Capodice: Julius and Ethel [00:17:30] Rosenberg were found guilty of conspiracy to commit espionage and were sentenced to death for their crimes. Roy Cohn would go on to say years later that the judge issued the death sentences on Cohn's personal recommendation. The US government offered to lessen their sentence if they just name names of coconspirators. But Julius and Ethel replied by saying, "By asking us to repudiate the truth of our innocence. The government admits its own [00:18:00] doubts concerning our guilt. We will not be coerced, even under pain of death, to bear false witness." David Greenglass then wrote to President Eisenhower to personally request their sentence be commuted to prison time. But that request was denied. Eisenhower wrote The execution of two human beings is a grave matter. But even graver is the thought of the millions of dead whose deaths may be directly attributable to what these spies have done.

Hannah McCarthy: Now, there were other parties involved. Were none of them sentenced [00:18:30] to death as well?

Nick Capodice: No they all served jail time and again. These are the only two people in U.S. history to be executed for espionage during peacetime.

Hannah McCarthy: The only time as in it has not happened since then?

Nick Capodice: The only time, has not happened as of this recording. It has not happened since then. And that execution was scheduled for June 17th, 1953. However, there's one last twist. And do you remember our episode on the Shadow docket?

Hannah McCarthy: Yeah, of course. It's about the times that the [00:19:00] Supreme Court orders actions outside of their usual ruling.

Nick Capodice: Yeah, there is a notable instance of that here. On the day the Rosenbergs were to be executed at Sing Sing Prison, Supreme Court Justice William Douglas issued a stay of execution. He put the whole thing on hold.

Hannah McCarthy: What was his reasoning for that?

Nick Capodice: Well, his reasoning was that while the judge, Irving Kaufman, had sentenced the Rosenbergs to death, the jury had not. And this conflicted with a ruling in another case in 1946, [00:19:30] which said a jury had to consent to a death sentence.

Hannah McCarthy: So because of that precedent set, when Judge Kaufman sentenced them to death, but the jury didn't. This was grounds for Justice Douglas to pause their execution.

Nick Capodice: Yes. And since this stay of execution was granted in the summer, it would be months until the Supreme Court was back in session and they could review the case.

Hannah McCarthy: So did they delay it until the summer?

Nick Capodice: They did not. Chief Justice Fred Vinson immediately convened the court out of session, and he stopped that stay of [00:20:00] execution. Justice Douglas faced impeachment proceedings because of this later, he was not removed. But this is a story for another day.

Archival: Inside the stone walls of Sing, Sing Prison. The Rosenbergs wait all day for word of their fate. It's now more than two years since they were first sentenced to die for organizing atomic espionage for Russia.

Nick Capodice: On June 18, at 8 p.m., Julius and Ethel Rosenberg were electrocuted. One reporter who was present at the execution described Ethel's death in extreme detail, [00:20:30] which I actually want to share here with our listeners. But frankly, it's a horrific description. So if there's anybody out there who doesn't feel like hearing about it, skip ahead a minute and 30 seconds.

Archival: When it appeared that she had received enough electricity to kill an ordinary person and had received the exact amount that had killed her husband, the doctors went over and pulled down the cheap prison dress. A little dark green printed job. And [00:21:00] place the stethoscopes. I can say it. Place the stethoscopes to her and then looked around that looked at each other rather dumbfounded and seemed surprised that she was not dead, believing she was dead. The attendants had taken off the ghastly wrappings and electrodes and the black belts [00:21:30] and so forth. And these had to be readjusted again. And. And she was given more electricity, which started again, that kind of a ghastly plume of smoke that rose from her head and went up against the skylight overhead. After two more of those [00:22:00] jolts. Ethel Rosenberg had met her maker. She'll have a lot of explaining to do, too.

Hannah McCarthy: What was the public's reaction to their death?

Nick Capodice: It was divided, though, Anne told me that in a poll conducted prior to the execution, 70% of Americans felt Ethel Rosenberg should be killed for her crimes. And at the same time, others considered the two of them as martyrs. [00:22:30] 10,000 people waited outside their funeral services in Brooklyn, where their lawyer, Emanuel Bloch, said that America was living under the heel of a military dictator garbed in civilian attire.

Hannah McCarthy: Nick, if we look at this case from a civics angle and what are we supposed to learn from the trial of Ethel and Julius Rosenberg?

Jake Kobrick: We are always in a very interesting position at the FJC. We try not to be openly critical of the judiciary or [00:23:00] say anything that would cast the judiciary in a bad light. But at the same time, we don't shy away from acknowledging that the judiciary has made mistakes. You know, people were obviously when we talk about Dred Scott, we say obviously this was a terrible thing. You know, people in the years after the trial were very, very critical of Irving Kaufman's conduct. They they were critical of [00:23:30] of the death sentences. I mean, it really looks like he kind of got to swept up in this and too carried away. So, I mean, there's blame to go around. I mean, there's blame. I think probably more of the blame falls with the Justice Department. And I think we kind of rely on the judiciary to, I guess, de-escalate that passion. The judiciary is supposed to be a neutral arbiter between the prosecution and the defense. [00:24:00] And in this particular case, the judiciary failed in that task, I think.

Anne Sebba: Of course, if you're looking at it through the prism of the trial, Ethel would never have been convicted today. I mean, the American Bar Association has had a rerun and there is so much that is not acceptable now. And it's quite clear from the letters I've had from lawyers how this is a shameful moment that they were prepared in [00:24:30] the fear of mob rule and the fear of communism, which, as I say, I do understand, to let the rights of one of their citizens be overruled because they felt it was for the greater good. And as far as I'm concerned, I can only repeat if my book is about one thing. It's about the importance of the rule of law. And God knows we need it more than ever today.

[00:25:00]

Nick Capodice: That's the story of the Rosenberg trial. Huge thanks to the American Bar Association for working with us on this series. If any of you are educators out there who want to teach this case in your classroom, there are some great resources provided by the Federal Judicial Center on our website, civics101podcast.org. This episode was made by me Nick [00:25:30] Capodice with you, Hannah McCarthy.

Hannah McCarthy: Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie our executive producer.

Nick Capodice: Music in this episode by Bio Unit Blue Dot Sessions Ben Lesson Howard Harper Barnes Christian Andersen. Emily Sprague ProletR Scott Gratton Yung Kartz Jesse Gallagher and the great Chris Zabriskie.

Hannah McCarthy: Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

Everything You Need to Know About the Midterms

Know your candidates and causes, find your polling place, have a plan! There are plenty of small steps you can take to be ready for the midterm election. But if you want to know what they're about and why they matter? Look and listen no further. Keith Hughes (with some help from Cheryl Cook-Kallio and Dan Cassino) tells us the five things you need to know about midterms.

Resources:

Click here for a graphic organizer for students to take notes upon while listening.

Everything You Need to Know About the Midterms: Audio automatically transcribed by Sonix

Everything You Need to Know About the Midterms: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Nick Capodice:
In 1965, opponents of President Lyndon Baines Johnson referred to him as King Lyndon, the first.

Lyndon Johnson:
For in your time. We have the opportunity to move not only toward the rich society and the powerful society.

Nick Capodice:
His approval rating 70%.

Lyndon Johnson:
But upward to the Great Society.

Nick Capodice:
Since being sworn in as president after the assassination of JFK in 1963, Johnson had launched a set of programs called The Great Society.

Lyndon Johnson:
It demands an end to poverty and racial injustice.

Nick Capodice:
He signed the Heart-Celler Immigration Act, created Medicaid and Medicare.

Archival:
Integration leader Martin Luther King receives his pen, a gift he said he would cherish.

Nick Capodice:
It was in this administration that protests led by Martin Luther King in D.C. and in Selma resulted in two pieces of the most important legislation of our country, the Civil Rights Act of 1964 and the Voting Rights Act of 1965. All of this while navigating our involvement in Vietnam.

Archival:
The main purpose of the operation was to clear the area of an estimated battalion of Vietcong.

Nick Capodice:
Democrats held 289 House seats and 68 Senate seats. Political minds declared the Republican Party officially dead. How can you unseat a king?

Archival:
It's like entering a gambling casino in Reno to walk into the grocery store in Prince George's County.

Nick Capodice:
Milk.

Nick Capodice:
The Great Society was no match for the price of milk. In 1966, small protests in Baltimore and Denver caught the eye of the Republican National Committee, which claimed Johnson's Great Society programs and America's involvement in Vietnam were to blame for rising grocery costs. Republican candidates for office latched on to the idea. They brought giant grocery carts to campaign events. They printed out oversize price tags showcasing rising food costs. They pushed inflation hard. This was the stage for the 1966 midterm election.

Archival:
Biggest shot in the arm for the American Republican Party. The election of Ronald Reagan as governor of California. Most of the polling stations from west to east showed a swing away from President Johnson's Democratic Party.

Hannah McCarthy:
So what happened?

Nick Capodice:
What happened? What happened here? It was huge. One of the biggest losses to the Democratic Party in the history of elections. Republicans gained 47 House seats, three Senate seats, eight governorships, 557 state legislature seats. Nixon got elected two years later. Newsweek wrote in the space of a single autumn day, the 1000 day reign of Lyndon. The first came to an end. The Emperor of American politics became just a president again.

Hannah McCarthy:
That is quite a turnaround.

Nick Capodice:
It is. And the thing is, Hannah, Johnson was still president. It was a mid-term.

Nick Capodice:
But. His reign, his long stretch of assured Democratic Party power had come to a close and the Republican Party that had been declared dead basically was brought back to life stronger than ever. These midterms were like the qualifying trials for who's going to become president over the next few decades. And it wasn't just Ronald Reagan who got elected as governor of California that year. Six other people, Hannah, seven people total who were involved in the 1966 midterms would eventually become president. And by the way, that milk forward Republican playbook. It worked so well that they're still using it to this day.

Archival:
Why?

Archival:
Because Democrats are printing trillions of dollars to pay for their massive deficit spending. Inflation is the Democrats tax on the middle class.

Archival:
And now we face record inflation. Congresswoman Kim Schrier even admitted she saw a coming in.

Archival:
10 dollars for bacon. I said $10 bacon?

Archival:
Now you're paying the price. Tell Sean Patrick Maloney we can't afford this.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And I'm Hannah McCarthy.

Nick Capodice:
And this is Civics 101. And today, as part of our midterms series, we're talking about the five count them five essential things you've got to know about the midterms. First, we spoke with Cheryl Cook-Kallio.

Cheryl Cook-Kallio:
Hello, I'm Cheryl Cook-Kallio. I'm a teacher. I taught government for 39 years. My claim to fame is that Sandra Day O'Connor held my hand and he said, Sandra, I'd like to announce your appointment to the Supreme Court tomorrow. Sandra Day O'Connor is the first woman to hold a seat on the Supreme Court. Sandra Day O'Connor, the very won any national election that takes place without a presidential candidate, is considered a midterm. We elect some extremely important positions during this period of time.

Nick Capodice:
And in all of these offices, the term lengths can vary. So senators in Washington, D.C. have a six year term, but some state senators can have an election every two years.

Hannah McCarthy:
That's what we have in New Hampshire.

Nick Capodice:
Yes, but some states have a four year term and others have completely different terms. But I wanted to cut to the heart of midterm elections, so I asked this guy.

Keith Hughes:
My name is Keith Hughes. I'm a social studies teacher. I also run a YouTube channel called Hip Hughes History.

Nick Capodice:
He's made over 500 educational videos about U.S. and world history. I asked him to tell me the one thing he wished Americans knew about the midterm elections, and he gave me five. Are you ready for a listicle?

Hannah McCarthy:
I am always ready for a listicle.

Nick Capodice:
Number one.

Keith Hughes:
So number one is the president is going to take it on the chin? Well, at least most of the time, midterm elections many times are called a referendum on the president. And what that means is people are going to the polls, not so much just voting on local issues, which they do a lot, but they're really kind of judging and evaluating the president and deciding if they want to give them full rein to do what they're doing or if they think that checks and balances might be in order to rein that president in a little bit.

Nick Capodice:
So if you love the president, love, love, love of what he's doing, this is a thumbs up. Or if you're super frustrated with the president, even though he's not on the ballot, you can take your frustrations out on his party.

Dan Cassino:
So the midterm elections wind up being important because what we get in the monitor is, as it's called, surge and decline.

Nick Capodice:
This is Dan Cassino.

Dan Cassino:
I'm Dan Cassino, an associate professor of political science at Fairleigh Dickinson University. Now, political science spent a lot of time worrying about surge and decline, but the basic principle is this whichever party did better in the presidential election does worse in the midterm election.

Hannah McCarthy:
Why is that?

Dan Cassino:
Why is that? If your party does really well in the presidential election, it's because you turned out a lot of voters who otherwise wouldn't vote. These sort of marginal voters normally stay home. Well, guess what? Two years later, they're going to stay home.

Keith Hughes:
In the past modern era, at least 50 or 60 years, the president in power has always lost seats in the midterm election, except for 1998. Bill Clinton was lucky enough to have a really good economy. And George Bush in 2002 and I'm thinking 911 might have had something to do with that. But every other election, whether it be Barack Obama or it be Bush or Nixon or we can go way back to Harry Truman, usually Americans that are going to turn out want to see a constitutional republic that works. And usually that means that the president, who's in power, like I said before, is going to take it on the chin.

Nick Capodice:
The 2018 midterms, however, were an outlier while Donald Trump was in office. Democrats gained 41 seats in the House, but Republicans gained two seats in the Senate. This was the first midterm since 1970 where a sitting president's party made gains in one chamber and had losses in the other. It's also worth noting that 2018 was an outlier because of voter turnout. It was the highest midterm turnout since 1914.

Archival:
It was not a blue wave. It was enough to put them in the power, but the lack of a blue wave. That's why we are seeing the White House celebrating tonight and declaring victory on their side.

Hannah McCarthy:
It was also an outlier for the actual candidates on the ballot. You had the first openly bisexual US senator. Two states elected their first ever black congresswoman and the first openly gay man was elected governor. So there were a lot of firsts. It was an unusual midterm in many ways, but generally speaking, it sounds like there's a surge when everyone comes out to vote in the presidential election, and then there's a decline two years later when lots of those voters just stay home.

Keith Hughes:
So number two is really the cyclical cycles that occur in the House and the Senate. And it really isn't a cyclical cycle in the House because every single House member is going to be up for reelection. That's right. All 435 members of the House have to face the music. But in the Senate, it's one third of the Senate.

Dan Cassino:
So the Senate is divided into three classes. We actually call them Class A, Class B and Class C, and each of those classes is up for election every two years. So every two years, one third of the Senate is up for reelection.

Nick Capodice:
Again, this is Dan Cassino.

Dan Cassino:
Now, the reason that matters is because no matter how big a wave you get in a midterm election or even in a presidential election, it can't affect more than one third of the Senate. This creates a temporal division of power where in the Senate, one third of it is governed by what happened two years ago, one third by what happened four years ago, one third by what happened six years ago.

Archival:
Meanwhile, domestic politics also makes headlines. The 1966 election chooses governors, senators and congressmen and serves as a significant preview of the '68 presidential elections.

Dan Cassino:
So in 2016, in the Senate, for instance, you are still seeing a bunch of people who have been elected in the Tea Party wave of 2010. Now, that wave wasn't really going very much anymore in 2016, but it didn't matter because they were still in there. You're still sharing power across all those years, and the idea is to kind of average things out where the House is reflecting all of these, you know, minute whims of the people they want animistic party. They want the Tea Party. Well, the Senate is going to be the insulation between those whims and the actual power of government.

Hannah McCarthy:
So the Senate, by design, has this long institutional memory and the House is more reactive.

Nick Capodice:
That's right. But the staggered Senate means every election is different when it comes to who even has a chance. A chance.

Keith Hughes:
So depending on which states are up for grabs, you can see a year where the Democrats are very safe or the Republicans are very safe.

Nick Capodice:
This year, 2022 Republicans are sort of broadcasting to the public a very safe red wave on the horizon, fairly likely to take the House and potentially the Senate as well, though recent polls show Democrats are favored to hold that chamber. This year is also interesting because both parties are facing backlash to two years of partisan and political issues. For the Democrats, it's a president with low approval ratings, inflation and a potential recession. For the Republicans, it is association with the January 6th insurrection, the Supreme Court overruling of Roe v Wade and the unpopularity of Donald Trump among many voters from both sides of the aisle. Now, regardless of the degree to which these issues actually apply to any given candidate, you've got some candidates who are distancing themselves from Biden, others distancing themselves from Trump. Also, significantly this year, there are 36 governorships up for grabs, a lot of them lean Democrat. But in places like Wisconsin, one of the most narrowly divided states in the nation, that race is going to be pretty tight.

Hannah McCarthy:
Nick, you know what is not a hard call to make supporting your friendly civics podcast.

Nick Capodice:
Oh, that's right, Hannah. It's a sure bet.

Hannah McCarthy:
Because we are committed genuinely to giving you the most high quality, nonpartisan information we can. And we are not doing it for money or power. Believe you me, this is public radio, my friends.

Nick Capodice:
That said, donations from listeners make a huge difference to our ability to actually create this show, which we hope to be able to continue doing until you vote us out. Metaphorically speaking, actually, I don't know if that one works, Hannah.

Hannah McCarthy:
Yeah, I don't.

Hannah McCarthy:
It doesn't. If you have the ability and inclination to make a contribution to our show, you can do that at civics101podcast.org.

Nick Capodice:
We've also got a link to that in the show notes and thank you. We're back and we're talking to Keith Hughes about the five things you must know about this midterm.

Hannah McCarthy:
We've covered the fact that the president typically takes one on the chin in the midterms and the midterm cycle. Every House seat is up for grabs and one third of the Senate is up for grabs. So I believe, Nick, that puts us up to three.

Nick Capodice:
Three it is. Number three. Congressional redistricting or when it's done politically, gerrymandering.

Dan Cassino:
Now, we've probably heard a lot about gerrymandering in the House of Representatives. That's where state legislatures draw districts to help one party or another. So they might draw districts to make sure that Republicans are always going to one seat or the Democrats are to one seat. And both parties do this. Although in recent years, generally, Republicans have done a better job of it than Democrats.

Dan Cassino:
Have.

Arnold Schwarzenegger:
Because the politicians are interested in only one thing. And this is to stay in power. To stay in power no matter what. It doesn't matter if you're Democrat or Republican.

Dan Cassino:
Now, what that means is then the House of Representatives, I am largely representing a district that already likes my party. So I'm speaking to here from Montclair, New Jersey. And Montclair, New Jersey as a whole is a city that is slightly to the left of Trotsky. That means if I'm the representative from Montclair, I run as far left as I can, and that'll get me elected. If I go to towns over, I'm going to be in a town that had the birth of the Tea Party. And guess what? I'm going to run as far right as I can and I'm going to win reelection. House of Representatives districts tend to lead to polarization, with members of Congress trying to go as far left or as far right as they can get.

Nick Capodice:
Just a quick clarification that we make all the time. Congressional redistricting and gerrymandering are not interchangeable. They're not the same thing. Gerrymandering is when you do congressional redistricting to favor your party. We have a whole episode that digs into it. Just search gerrymandering in our podcast feed.

Keith Hughes:
Most political scientists put it at about 40 seats that are truly up for grabs with all of the rest. If you could think of that 435 seats, there's only 40 really competitive districts, which means the other ones are really, really red or.

Keith Hughes:
Really, really blue.

Keith Hughes:
Keith used the 2016 general election as an example.

Keith Hughes:
It was pretty split in terms of the House, the House of Representatives. We saw if you took the total vote for House members, it was about 50%, 50% split between Democrats and Republicans. But when you break that 50, 50% down and you look at, you know, what happened in terms of the outcome of the vote, you know, the Republicans have more of a 40 seat advantage in the House.

Nick Capodice:
I have to restate this, Hannah, because I could not believe it when I heard it the first time, even though in 2016, almost the exact same number of votes were cast for Democratic representatives and Republican representatives. The Republicans won 241 House seats and the Democrats won 194.

Hannah McCarthy:
And of course, as of 2022, every state in the nation has a new districting map based on the 2020 census.

Nick Capodice:
Right. And currently some of these district maps are being challenged as gerrymandering, but those challenges are unlikely to be resolved before the election. Republicans have positioned themselves to gain a few more seats in 2022. At the end of the day, Hanna still just 40 highly competitive seats in this country. Oh, also with these new maps, people of color pretty much are guaranteed to remain underrepresented. So let's keep going. Number four.

Keith Hughes:
Number four, midterms matter because you really are pressing the button for new ideas if the Democrats are able to flip the House or flip the Senate. Not only does it give a chance for the party to redefine itself, to have new leaders, to have fresh faces, to try to put that agenda in front of the American people and maybe put, you know, the president under some pressure in terms of is he going to support ideas that might be popular with most Americans because that legislation is now coming out of the House and coming out of the Senate. But in the long term, it really can help a party rejuvenate itself. You know, come out new. Start over again.

Hannah McCarthy:
Oh, the guy who wrote the book on midterms, Andy Bush, told me about this. He said that if we look at huge areas of new policy in American history, say the New Deal or LBJ's Great Society, they were bracketed by midterm elections, not presidential elections.

Nick Capodice:
Yeah, it's like midterms are a test kitchen for politics and we saved the best for last. Here comes number five.

Keith Hughes:
And finally, number five. Why midterm is really important is because voting counts. Voting really matters. And when you look at statistically the type of turnout that you get in midterm elections, it's really, really sad. My fellow Americans, you know, in a national election, you might see 55, 65% of registered voters coming out. But in a midterm election, it could be as low as 25, 30%.

Archival:
Sometimes your instincts tell you when a man is right for the job.

Nick Capodice:
So there it is. Keith Hughes, top five things to know about the midterms. Again, number one, the president almost always takes a hit to the Senate's staggered election cycle is crucial. Three congressional redistricting, aka gerrymandering, when it's done politically, is going to happen after the midterms. Four midterms are the proving ground for new ideas. And five, your vote really, really counts in a midterm.

Hannah McCarthy:
I got to say Nick. I really have learned a lot in this episode.

Nick Capodice:
Me, too. So before we say goodbye, we're going to end this episode with a snapshot of an historic midterm broken down by Brady Carlson, former NPR reporter and current afternoon host at Wisconsin Public Radio, as well as the author of Dead Presidents.

Hannah McCarthy:
Brady Carlson.

Nick Capodice:
You know him, right?

Hannah McCarthy:
Yeah, I know Brady.

Nick Capodice:
He's going to tell us about a famous midterm from the past.

Brady Carlson:
Sometimes a midterm election can turn an era of good feelings. Into an era of hard feelings. Today's midterm is the 1826 midterm election. And to understand the election of 1826 and 1827, they were split up back then. You first have to understand how weird the 1820s are in American political history. This is one of the few times where the country doesn't have major political parties that oppose each other. There had been two main political parties, the Federalists and the Democratic Republicans, but the Federalists collapsed. And so the Democratic Republicans were kind of the only game in town by the 1820 presidential election. James Monroe, the incumbent, ran basically unopposed for reelection. And because there's no organized opposition to his administration, this period becomes known as the era of good feelings. The feelings were actually a little more mixed than that, especially when 1824 rolled around because there were a bunch of people angling to be Monroe's successor. At that time, the typical frontrunner to be the next president was the previous president's secretary of State. And at that time, the Secretary of state was a guy called John Quincy Adams of Massachusetts. But there was also kind of a wild card thrown into the mix. Andrew Jackson of Tennessee.

Archival:
Have you been long in Nashville, Mr. Jackson?

Archival:
Not long, ma'am.

Brady Carlson:
He was a military hero in the war of 1812. He was enormously popular and he had thrown his hat into the ring. He wasn't going to wait around to become secretary of state first.

Archival:
There's only one thing that can keep you from being president, and that's you yourself.

Brady Carlson:
The election happens. Jackson wins the most popular votes and the most electoral votes, but not a majority of either. And under the Constitution, when there's no majority in the Electoral College, the House of Representatives chooses the president. And in 1824, they chose the second place finisher, John Quincy Adams.

Archival:
They're determined back east not to have a Western president.

Brady Carlson:
So obviously the Jackson people are furious. They finished first and didn't win the election. So they essentially say this is a rigged system. The Adams people had conspired with the insiders in the House of Representatives to take away the election not only from Andrew Jackson, but to their minds, the will of the American people. So the Jackson people respond to this by organizing their own political party. They called it the Democratic Party, and their mission was to basically wage a four year election campaign against President Adams and the people who had put him in office. So they specifically targeted those lawmakers from the pro Jackson districts who had voted to elect Adams. They called it a blacklist. Now, Adams was still rooted in the old model that public officials were public officials, not politicians. They shouldn't carry the banner of a party. He even once told Congress that they needed to pass some of his agenda, even if it was unpopular with the people. He told them, and this is a quote Don't be, quote, palsy by the will of our constituents. Now, that's not the kind of thing that wins you a lot of public support. So the Jackson forces took this opportunity and they started using something close to modern election techniques. They were going district by district. They were really playing up the personalities of their candidate.

Archival:
But Jackson, he was wide awake and was not scared of trifles.

Brady Carlson:
And when the midterm elections were done, they had majorities in both houses of Congress, and they used those majorities to block the Adams administration and its priorities for the next two years until the 1828 presidential election rolled around, which Andrew Jackson won in an outright majority. This was an early example of what's now known as the midterm decline, where a new president comes in and two years later, voters move toward the opposition in Congress to serve as a kind of check on that administration. This is something that's happened not in every presidency, but in enough that it's become an almost expectation when a new president comes into office.

Nick Capodice:
That'll do it. Go vote. This episode is produced by me. Nick Capodice with you. Hannah McCarthy, thank you.

Hannah McCarthy:
Oh sure.

Nick Capodice:
Christina Phillips as her senior producer. Jackie Fulton, our producer, Rebecca Lavoie are executive producer.

Hannah McCarthy:
Music in this episode by Diamond Ortiz, Rondo Brothers, Blue Dot Sessions, Yung Logos, Dead Boys, Ethan Maxwell, Parvis Decree Samuel Woodworth, Silent Partner Fran Schubert, The Green Orbs and Quincas Moreira.

Nick Capodice:
If you want to know more about Civics 101, or you want to submit a civics question of your own, you can do that at civics101podcast.org.

Hannah McCarthy:
Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Transcript: Everything You Need to Know About the Midterms

Nick Capodice: In 1965, opponents of President Lyndon Baines Johnson referred to him as King Lyndon, the first.

Lyndon Johnson: For in your time. We have the opportunity to move not only toward the rich society and the powerful society.

Nick Capodice: His approval rating 70%.

Lyndon Johnson: But upward to the Great Society.

Nick Capodice: Since being sworn in as [00:00:30] president after the assassination of JFK in 1963, Johnson had launched a set of programs called The Great Society.

Lyndon Johnson: It demands an end to poverty and racial injustice.

Nick Capodice: He signed the Heart-Celler Immigration Act, created Medicaid and Medicare.

Archival: Integration leader Martin Luther King receives his pen, a gift he said he would cherish.

Nick Capodice: It was in this administration that protests led by Martin Luther King in D.C. and in Selma resulted in two pieces of the most important legislation [00:01:00] of our country, the Civil Rights Act of 1964 and the Voting Rights Act of 1965. All of this while navigating our involvement in Vietnam.

Archival: The main purpose of the operation was to clear the area of an estimated battalion of Vietcong.

Nick Capodice: Democrats held 289 House seats and 68 Senate seats. Political minds declared the Republican Party officially dead. How can you unseat a king?

Archival: It's like entering a gambling [00:01:30] casino in Reno to walk into the grocery store in Prince George's County.

Nick Capodice: Milk.

Nick Capodice: The Great Society was no match for the price of milk. In 1966, small protests in Baltimore and Denver caught the eye of the Republican National Committee, which claimed Johnson's Great Society programs and America's involvement in Vietnam were to blame for rising grocery costs. Republican candidates for office latched on to [00:02:00] the idea. They brought giant grocery carts to campaign events. They printed out oversize price tags showcasing rising food costs. They pushed inflation hard. This was the stage for the 1966 midterm election.

Archival: Biggest shot in the arm for the American Republican Party. The election of Ronald Reagan as governor of California. Most of the polling stations from west to east showed a swing away from President Johnson's Democratic Party.

Hannah McCarthy: So [00:02:30] what happened?

Nick Capodice: What happened? What happened here? It was huge. One of the biggest losses to the Democratic Party in the history of elections. Republicans gained 47 House seats, three Senate seats, eight governorships, 557 state legislature seats. Nixon got elected two years later. Newsweek wrote in the space of a single autumn day, the 1000 day reign of Lyndon. The first came to an end. The Emperor [00:03:00] of American politics became just a president again.

Hannah McCarthy: That is quite a turnaround.

Nick Capodice: It is. And the thing is, Hannah, Johnson was still president. It was a mid-term.

Nick Capodice: But. His reign, his long stretch of assured Democratic Party power had come to a close and the Republican Party that had been declared dead basically was brought back to life stronger than ever. These midterms were like the qualifying trials for who's going to become president over the next [00:03:30] few decades. And it wasn't just Ronald Reagan who got elected as governor of California that year. Six other people, Hannah, seven people total who were involved in the 1966 midterms would eventually become president. And by the way, that milk forward Republican playbook. It worked so well that they're still using it to this day.

Archival: Why?

Archival: Because Democrats are printing trillions of dollars to pay for their massive deficit spending. Inflation is the Democrats tax on the middle class.

Archival: And [00:04:00] now we face record inflation. Congresswoman Kim Schrier even admitted she saw a coming in.

Archival: 10 dollars for bacon. I said $10 bacon?

Archival: Now you're paying the price. Tell Sean Patrick Maloney we can't afford this.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And I'm Hannah McCarthy.

Nick Capodice: And this is Civics 101. And today, as part of our midterms series, we're talking about the five count them five essential things you've got to know [00:04:30] about the midterms. First, we spoke with Cheryl Cook-Kallio.

Cheryl Cook-Kallio: Hello, I'm Cheryl Cook-Kallio. I'm a teacher. I taught government for 39 years. My claim to fame is that Sandra Day O'Connor held my hand and he said, Sandra, I'd like to announce your appointment to the Supreme Court tomorrow. Sandra Day O'Connor is the first woman to hold a seat on the Supreme Court. Sandra Day O'Connor, the very won any national election that takes place without a presidential candidate, is considered a midterm. We elect some extremely important [00:05:00] positions during this period of time.

Nick Capodice: And in all of these offices, the term lengths can vary. So senators in Washington, D.C. have a six year term, but some state senators can have an election every two years.

Hannah McCarthy: That's what we have in New Hampshire.

Nick Capodice: Yes, but some states have a four year term and others have completely different terms. But I wanted to cut to the heart of midterm elections, so I asked this guy.

Keith Hughes: My name is Keith Hughes. I'm a social studies teacher. I also run a YouTube channel called Hip Hughes History.

Nick Capodice: He's made over 500 educational videos [00:05:30] about U.S. and world history. I asked him to tell me the one thing he wished Americans knew about the midterm elections, and he gave me five. Are you ready for a listicle?

Hannah McCarthy: I am always ready for a listicle.

Nick Capodice: Number one.

Keith Hughes: So number one is the president is going to take it on the chin? Well, at least most of the time, midterm elections many times are called a referendum on the president. And what that means is people are going to the polls, not so much just voting on local issues, which they do a lot, but they're really kind of [00:06:00] judging and evaluating the president and deciding if they want to give them full rein to do what they're doing or if they think that checks and balances might be in order to rein that president in a little bit.

Nick Capodice: So if you love the president, love, love, love of what he's doing, this is a thumbs up. Or if you're super frustrated with the president, even though he's not on the ballot, you can take your frustrations out on his party.

Dan Cassino: So the midterm elections wind up being important because what we get in the monitor is, as it's called, surge and decline.

Nick Capodice: This is Dan Cassino. [00:06:30]

Dan Cassino: I'm Dan Cassino, an associate professor of political science at Fairleigh Dickinson University. Now, political science spent a lot of time worrying about surge and decline, but the basic principle is this whichever party did better in the presidential election does worse in the midterm election.

Hannah McCarthy: Why is that?

Dan Cassino: Why is that? If your party does really well in the presidential election, it's because you turned out a lot of voters who otherwise wouldn't vote. These sort of marginal voters normally stay home. Well, guess what? Two years later, they're going to stay home. [00:07:00]

Keith Hughes: In the past modern era, at least 50 or 60 years, the president in power has always lost seats in the midterm election, except for 1998. Bill Clinton was lucky enough to have a really good economy. And George Bush in 2002 and I'm thinking 911 might have had something to do with that. But every other election, whether it be Barack Obama or it be Bush or Nixon or we can go way back to Harry Truman, usually Americans that are going to turn out want to see a constitutional republic that works. And usually [00:07:30] that means that the president, who's in power, like I said before, is going to take it on the chin.

Nick Capodice: The 2018 midterms, however, were an outlier while Donald Trump was in office. Democrats gained 41 seats in the House, but Republicans gained two seats in the Senate. This was the first midterm since 1970 where a sitting president's party made gains in one chamber and had losses in the other. It's also worth noting that 2018 was an outlier because of voter turnout. It was the highest [00:08:00] midterm turnout since 1914.

Archival: It was not a blue wave. It was enough to put them in the power, but the lack of a blue wave. That's why we are seeing the White House celebrating tonight and declaring victory on their side.

Hannah McCarthy: It was also an outlier for the actual candidates on the ballot. You had the first openly bisexual US senator. Two states elected their first ever black congresswoman and the first openly gay man was elected governor. So there were a lot of firsts. It was an unusual midterm in many [00:08:30] ways, but generally speaking, it sounds like there's a surge when everyone comes out to vote in the presidential election, and then there's a decline two years later when lots of those voters just stay home.

Keith Hughes: So number two is really the cyclical cycles that occur in the House and the Senate. And it really isn't a cyclical cycle in the House because every single House member is going to be up for reelection. That's right. All 435 members of the House have to face [00:09:00] the music. But in the Senate, it's one third of the Senate.

Dan Cassino: So the Senate is divided into three classes. We actually call them Class A, Class B and Class C, and each of those classes is up for election every two years. So every two years, one third of the Senate is up for reelection.

Nick Capodice: Again, this is Dan Cassino.

Dan Cassino: Now, the reason that matters is because no matter how big a wave you get in a midterm election or even in a presidential election, it can't affect more than one third of the Senate. This creates a temporal division of power [00:09:30] where in the Senate, one third of it is governed by what happened two years ago, one third by what happened four years ago, one third by what happened six years ago.

Archival: Meanwhile, domestic politics also makes headlines. The 1966 election chooses governors, senators and congressmen and serves as a significant preview of the '68 presidential elections.

Dan Cassino: So in 2016, in the Senate, for instance, you are still seeing a bunch of people who have been elected in the Tea Party wave of 2010. Now, that wave wasn't really going very much anymore in 2016, but it didn't matter [00:10:00] because they were still in there. You're still sharing power across all those years, and the idea is to kind of average things out where the House is reflecting all of these, you know, minute whims of the people they want animistic party. They want the Tea Party. Well, the Senate is going to be the insulation between those whims and the actual power of government.

Hannah McCarthy: So the Senate, by design, has this long institutional memory and the House is more reactive.

Nick Capodice: That's right. But the staggered Senate means every election is [00:10:30] different when it comes to who even has a chance. A chance.

Keith Hughes: So depending on which states are up for grabs, you can see a year where the Democrats are very safe or the Republicans are very safe.

Nick Capodice: This year, 2022 Republicans are sort of broadcasting to the public a very safe red wave on the horizon, fairly likely to take the House and potentially the Senate as well, though recent polls show Democrats are favored to hold that chamber. This year is [00:11:00] also interesting because both parties are facing backlash to two years of partisan and political issues. For the Democrats, it's a president with low approval ratings, inflation and a potential recession. For the Republicans, it is association with the January 6th insurrection, the Supreme Court overruling of Roe v Wade and the unpopularity of Donald Trump among many voters from both sides of the aisle. Now, regardless of the degree to which these issues actually apply to any given [00:11:30] candidate, you've got some candidates who are distancing themselves from Biden, others distancing themselves from Trump. Also, significantly this year, there are 36 governorships up for grabs, a lot of them lean Democrat. But in places like Wisconsin, one of the most narrowly divided states in the nation, that race is going to be pretty tight.

Hannah McCarthy: Nick, you know what is not a hard call to make supporting your friendly civics podcast.

Nick Capodice: Oh, that's [00:12:00] right, Hannah. It's a sure bet.

Hannah McCarthy: Because we are committed genuinely to giving you the most high quality, nonpartisan information we can. And we are not doing it for money or power. Believe you me, this is public radio, my friends.

Nick Capodice: That said, donations from listeners make a huge difference to our ability to actually create this show, which we hope to be able to continue doing until you vote us out. Metaphorically speaking, actually, I don't know if that one works, Hannah.

Hannah McCarthy: Yeah, I don't.

Hannah McCarthy: It doesn't. If you have the ability and inclination to make [00:12:30] a contribution to our show, you can do that at civics101podcast.org.

Nick Capodice: We've also got a link to that in the show notes and thank you. We're back and we're talking to Keith Hughes about the five things you must know about this midterm.

Hannah McCarthy: We've covered the fact that the president typically takes one on the chin in the midterms and the midterm cycle. Every House seat is up for grabs and one third of the Senate is up for grabs. So I believe, Nick, that puts us up to three.

Nick Capodice: Three it is. Number [00:13:00] three. Congressional redistricting or when it's done politically, gerrymandering.

Dan Cassino: Now, we've probably heard a lot about gerrymandering in the House of Representatives. That's where state legislatures draw districts to help one party or another. So they might draw districts to make sure that Republicans are always going to one seat or the Democrats are to one seat. And both parties do this. Although in recent years, generally, Republicans have done a better job of it than Democrats.

Dan Cassino: Have.

Arnold Schwarzenegger: Because the politicians are interested [00:13:30] in only one thing. And this is to stay in power. To stay in power no matter what. It doesn't matter if you're Democrat or Republican.

Dan Cassino: Now, what that means is then the House of Representatives, I am largely representing a district that already likes my party. So I'm speaking to here from Montclair, New Jersey. And Montclair, New Jersey as a whole is a city that is slightly to the left of Trotsky. That means if I'm the representative from [00:14:00] Montclair, I run as far left as I can, and that'll get me elected. If I go to towns over, I'm going to be in a town that had the birth of the Tea Party. And guess what? I'm going to run as far right as I can and I'm going to win reelection. House of Representatives districts tend to lead to polarization, with members of Congress trying to go as far left or as far right as they can get.

Nick Capodice: Just a quick clarification that we make all the time. Congressional redistricting and gerrymandering are not interchangeable. They're not the same thing. Gerrymandering is [00:14:30] when you do congressional redistricting to favor your party. We have a whole episode that digs into it. Just search gerrymandering in our podcast feed.

Keith Hughes: Most political scientists put it at about 40 seats that are truly up for grabs with all of the rest. If you could think of that 435 seats, there's only 40 really competitive districts, which means the other ones are really, really red or.

Keith Hughes: Really, really blue.

Keith Hughes: Keith used the 2016 general election as an example.

Keith Hughes: It was pretty split in terms of the [00:15:00] House, the House of Representatives. We saw if you took the total vote for House members, it was about 50%, 50% split between Democrats and Republicans. But when you break that 50, 50% down and you look at, you know, what happened in terms of the outcome of the vote, you know, the Republicans have more of a 40 seat advantage in the House.

Nick Capodice: I have to restate this, Hannah, because I could not believe it when I heard it the first time, even though in 2016, almost the exact same number of votes were cast for Democratic representatives [00:15:30] and Republican representatives. The Republicans won 241 House seats and the Democrats won 194.

Hannah McCarthy: And of course, as of 2022, every state in the nation has a new districting map based on the 2020 census.

Nick Capodice: Right. And currently some of these district maps are being challenged as gerrymandering, but those challenges are unlikely to be resolved before the election. Republicans have positioned themselves to gain a few more seats in 2022. At the end of the day, Hanna [00:16:00] still just 40 highly competitive seats in this country. Oh, also with these new maps, people of color pretty much are guaranteed to remain underrepresented. So let's keep going. Number four.

Keith Hughes: Number four, midterms matter because you really are pressing the button for new ideas if the Democrats are able to flip the House or flip the Senate. Not only does it give a chance for the party to redefine itself, to have new leaders, to have fresh faces, to try to put that agenda in [00:16:30] front of the American people and maybe put, you know, the president under some pressure in terms of is he going to support ideas that might be popular with most Americans because that legislation is now coming out of the House and coming out of the Senate. But in the long term, it really can help a party rejuvenate itself. You know, come out new. Start over again.

Hannah McCarthy: Oh, the guy who wrote the book on midterms, Andy Bush, told me about this. He said that if we look at huge areas of new policy in American history, say the New Deal [00:17:00] or LBJ's Great Society, they were bracketed by midterm elections, not presidential elections.

Nick Capodice: Yeah, it's like midterms are a test kitchen for politics and we saved the best for last. Here comes number five.

Keith Hughes: And finally, number five. Why midterm is really important is because voting counts. Voting really matters. And when you look at statistically the type of turnout that you get in midterm elections, it's really, really sad. My fellow Americans, you know, in a national election, you might see 55, 65% of registered [00:17:30] voters coming out. But in a midterm election, it could be as low as 25, 30%.

Archival: Sometimes your instincts tell you when a man is right for the job.

Nick Capodice: So there it is. Keith Hughes, top five things to know about the midterms. Again, number one, the president almost always takes a hit to the Senate's staggered election cycle is crucial. Three congressional redistricting, aka [00:18:00] gerrymandering, when it's done politically, is going to happen after the midterms. Four midterms are the proving ground for new ideas. And five, your vote really, really counts in a midterm.

Hannah McCarthy: I got to say Nick. I really have learned a lot in this episode.

Nick Capodice: Me, too. So before we say goodbye, we're going to end this episode with a snapshot of an historic midterm broken down by Brady Carlson, former NPR reporter and current afternoon host at Wisconsin Public Radio, as well as the author of Dead Presidents [00:18:30].

Hannah McCarthy: Brady Carlson.

Nick Capodice: You know him, right?

Hannah McCarthy: Yeah, I know Brady.

Nick Capodice: He's going to tell us about a famous midterm from the past.

Brady Carlson: Sometimes a midterm election can turn an era of good feelings. Into an era of hard feelings. Today's midterm is the 1826 midterm election. And to understand the election of 1826 and 1827, they were split up back [00:19:00] then. You first have to understand how weird the 1820s are in American political history. This is one of the few times where the country doesn't have major political parties that oppose each other. There had been two main political parties, the Federalists and the Democratic Republicans, but the Federalists collapsed. And so the Democratic Republicans were kind of the only game in town by the 1820 presidential election. James Monroe, the incumbent, ran basically unopposed for reelection. [00:19:30] And because there's no organized opposition to his administration, this period becomes known as the era of good feelings. The feelings were actually a little more mixed than that, especially when 1824 rolled around because there were a bunch of people angling to be Monroe's successor. At that time, the typical frontrunner to be the next president was the previous president's secretary of State. And at that time, the Secretary of state was a guy called John Quincy [00:20:00] Adams of Massachusetts. But there was also kind of a wild card thrown into the mix. Andrew Jackson of Tennessee.

Archival: Have you been long in Nashville, Mr. Jackson?

Archival: Not long, ma'am.

Brady Carlson: He was a military hero in the war of 1812. He was enormously popular and he had thrown his hat into the ring. He wasn't going to wait around to become secretary of state first.

Archival: There's only one thing that can keep you from being president, and that's you yourself.

Brady Carlson: The election happens. Jackson wins the most popular votes and the most electoral votes, but not a majority of [00:20:30] either. And under the Constitution, when there's no majority in the Electoral College, the House of Representatives chooses the president. And in 1824, they chose the second place finisher, John Quincy Adams.

Archival: They're determined back east not to have a Western president.

Brady Carlson: So obviously the Jackson people are furious. They finished first and didn't win the election. So they essentially say this is a rigged system. The Adams people had conspired with the insiders in the House of Representatives to take away the election [00:21:00] not only from Andrew Jackson, but to their minds, the will of the American people. So the Jackson people respond to this by organizing their own political party. They called it the Democratic Party, and their mission was to basically wage a four year election campaign against President Adams and the people who had put him in office. So they specifically targeted those lawmakers from the pro Jackson districts who had voted to elect Adams. They called it a blacklist. Now, Adams was still rooted in the [00:21:30] old model that public officials were public officials, not politicians. They shouldn't carry the banner of a party. He even once told Congress that they needed to pass some of his agenda, even if it was unpopular with the people. He told them, and this is a quote Don't be, quote, palsy by the will of our constituents. Now, that's not the kind of thing that wins you a lot of public support. So the Jackson forces took this opportunity and they started using something close to modern election techniques. They were going district [00:22:00] by district. They were really playing up the personalities of their candidate.

Archival: But Jackson, he was wide awake and was not scared of trifles.

Brady Carlson: And when the midterm elections were done, they had majorities in both houses of Congress, and they used those majorities to block the Adams administration and its priorities for the next two years until the 1828 presidential election rolled around, which Andrew Jackson won in an outright majority. This was an early example of what's now known as the midterm [00:22:30] decline, where a new president comes in and two years later, voters move toward the opposition in Congress to serve as a kind of check on that administration. This is something that's happened not in every presidency, but in enough that it's become an almost expectation when a new president comes into office.

Nick Capodice: That'll do it. Go vote. This episode is produced by me. Nick Capodice with you. Hannah McCarthy, thank you.

Hannah McCarthy: Oh sure. [00:23:00]

Nick Capodice: Christina Phillips as her senior producer. Jackie Fulton, our producer, Rebecca Lavoie are executive producer.

Hannah McCarthy: Music in this episode by Diamond Ortiz, Rondo Brothers, Blue Dot Sessions, Yung Logos, Dead Boys, Ethan Maxwell, Parvis Decree Samuel Woodworth, Silent Partner Fran Schubert, The Green Orbs and Quincas Moreira.

Nick Capodice: If you want to know more about Civics 101, or you want to submit a civics question of your own, you can do that at civics101podcast.org.

Hannah McCarthy: Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:23:30]

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Made possible in part by the Corporation for Public Broadcasting.

Federal Courts: Our First Treason Trial (US v Burr)

Today we're opening our new series on famous trials in the Federal Courts. In this case, United States v Burr, the judge and jury had to decide whether to convict former VP Aaron Burr for the crime of treason.

Taking us on the journey are Christine Lamberson, Director of History at the Federal Judicial Center, and Nancy Isenberg, professor at LSU and author of Fallen Founder: The Life of Aaron Burr.  

This trial has everything: Washington Irving, epaulets, a subpoenaed president, and a letter hidden in a shoe.

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Education Resources:

The Federal Judicial Center has numerous resources to teach this case, to students or to judges! Click here for their archive of activities and handouts.

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Federal Courts: US v Burr: Audio automatically transcribed by Sonix

Federal Courts: US v Burr: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

Archival:
Whenever you're ready, Mr. Chief Justice. And may it please the Court and please the Court. Mr. Chief Justice. At least the facts of this case appeared in 1777 in Philadelphia...This case concerns the federal drug conspiracy statute...This case presents to this court the questions of whether Miranda versus Arizona and Westover versus.

Nick Capodice:
Hannah. It's no secret. You know, I'm a little bit obsessed with Supreme Court history.

Hannah McCarthy:
Just a little. Yeah, yeah, I know.

Nick Capodice:
The robes, the oyez chant,

Archival:
Oyez, oyez!

Nick Capodice:
Two advocates in a room debating cases with nine justices. It's almost a philosophical exercise.

Hannah McCarthy:
It makes you very emotional.

Nick Capodice:
But it's not the entire picture of our judicial system. Now, you've pored over dozens of landmark Supreme Court cases, and don't you dare deny it. You're a big fan of courtroom dramas.

Hannah McCarthy:
Yep.

Nick Capodice:
So tell me what is missing from the hallowed sessions in the highest court of the land that you get in those courtroom dramas?

Hannah McCarthy:
I mean, everything everything is missing, right? It's it's the laws that are on trial, not the human beings. There's no jury. There's no cross examination, no gavels, which, like, they could at least throw in some gavels. No one's like shouting. I object. Although apparently that doesn't actually happen very often in court. No surprise witnesses. There's no presentation of evidence. There's no ruling by the judge right then and there. Come to think of it, the people involved in the cases usually aren't even in the.

Christine Lamberson:
Every once in a while, like Plessy versus Ferguson. I used to teach U.S. history. So you actually talk about who Homer Plessy was, but you hardly ever talk about the students in Brown versus Board.

Nick Capodice:
This is Christine Lamberson. She works at the Federal Judicial Center, which is the Research and Education Agency of the federal courts. And earlier this year, I spoke to her and some folks from the American Bar Association who asked, hey, why haven't you done any episodes on federal court cases? This is where the action happens. This is where people and the courts meet. And this is Civics 101. I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy.

Nick Capodice:
And this is the first in a series about historic federal court cases. Today, we're going to talk about the trial of the century, one of the first cases ever related to something very serious. Article three, Section three in the Constitution, treason.

Hannah McCarthy:
Okay, before we get into treason, why are federal courts the place to examine it?

Nick Capodice:
Right. Here's Christine again.

Christine Lamberson:
First of all, the vast majority of cases that go through the federal courts are not going to make it to the Supreme Court. The Supreme Court; certainly currently this is especially true. The Supreme Court currently hears 100 to 150 cases per year, whereas thousands, tens of thousands of court cases are heard by courts of appeals, hundreds of thousands by district courts.

Hannah McCarthy:
This is a good point. I mean, much like the executive branch is not just the president, but also 4 million other Americans. The vast majority of the judiciary is in these lower courts.

Christine Lamberson:
Historically, I think also we can get a sense of how people interact with the courts. When you're looking at a trial, for example, as opposed to a Supreme Court case at the trial, you are going to have individual Americans who are not lawyers arguing about the law, coming and telling their stories and talking about their experiences and interacting with the federal legal system. So if you're looking at a trial, we're going to be able to get a sense of how individual Americans throughout history were interacting with the legal system that we don't tend to get when we look at the Supreme Court level decisions.

Nick Capodice:
And to remind you, the Supreme Court was not always the body who made these decisions on what was and was not constitutional. Yes, they do that now. But initially they had another job and it was in our circuit courts of appeals. You lose a case, you can appeal it up to your circuit court.

Christine Lamberson:
So if you're looking at a federal trial from 1830 or something, it was probably heard in the circuit courts. So they were the main trial courts. They also heard some appeals from the district courts and then the Supreme Court heard appeals from both of those. So it's a little bit of a different system. At that point. The Supreme Court was required to hear a lot of appeals, which is no longer the case. The judges for the circuit courts were the Supreme Court justices writing circuit, and then the district court judges. They didn't have their own judges until late in the 19th century.

Nick Capodice:
And today's case, U.S. v Burr is going to go back to that earlier time when Supreme Court judges rode circuit.

Hannah McCarthy:
Right. This is when justices traveled the country in carriages and got stuck in swamps and got sick and basically put their life on the line for the job, right?

Nick Capodice:
Yeah. That's the time period. One judge was robbed by highway bandits, broke his leg and died from circuit exhaustion before he was 48 years old.

Hannah McCarthy:
Circuit exhaustion. Did you make that up?

Nick Capodice:
No. It's a real thing. It's what it said. I read it on a website.

Hannah McCarthy:
Okay. And you said Burr v us. Are we talking about the Burr?

Nick Capodice:
The Burr. Indeed we sure are.

Archival:
Pardon me. Are you Aaron Burr, sir? That depends. Who's asking. Oh, well, sure, sir.

Nick Capodice:
That is the depiction of Aaron Burr in the wonderful, enormously popular musical Hamilton. Come on the show anytime to set us straight if we mess this up, Mr. Miranda. But this treason trial is not due to the famed duel where he killed Alexander Hamilton.

Hannah McCarthy:
All right, let's do a quick crib notes on Aaron Burr. What did he do, Nick?

Nancy Isenberg:
Yeah, Aaron Burr was an extremely important politician in the early republic, particularly in New York. And what we have to understand about politics in the early republic is that your connection to your state was essential to be a player in federal politics.

Nick Capodice:
That's Nancy Isenberg. She's a professor at Louisiana State University and author of Fallen founder The Life of Aaron Burr. Burr was a lawyer in New York and he lived with his wife, Theodosia. Theodosia dies in 1794 after a long illness and in seven. In 1797 Burr is elected to the U.S. Senate. And as Nancy pointed out, your position as a player in your state was far more important than it is today.

Hannah McCarthy:
Why was your state connection so powerful back then?

Nick Capodice:
Well, for one thing, there were fewer states. Burr was one of 32 U.S. senators, not 100. And when it came to the House. New York had ten seats out of 104 in the House of Representatives. So your state wielded a lot more political power. And Aaron Burr, backed by that power, ran for president in 1800.

Hannah McCarthy:
Oh, that election.

Nick Capodice:
That was such a bonkers election.

Nancy Isenberg:
During the election of 1800. As you know, there's a tie. And that means the decision has to be made in the House of Representatives and there's negotiations.

Hannah McCarthy:
Is this the only tie so far in U.S.. history

Nick Capodice:
So far it is. What happens is written out in the Constitution, Article two, Section one,"If there be more than one who have such majority and have an equal number of votes, then the House of Representatives shall immediately choose by ballot, one of them for president," and that choosing by a ballot was contentious. They voted 36 times in the House without picking a winner.

Nancy Isenberg:
And at that moment, people start accusing Burr of trying to steal the election, which he did not do, and all the evidence that exists, one of the key players who was a federalist and had thrown their support to Burr thinking they could work with him better than Jefferson admits that Burr would never work with them. But what that does is it creates a climate of distrust. And Burr and Jefferson were never really that close. They they respected each other. But Jefferson is really Virginian, you know. He trusts people who are like him, people from Virginia. So what happens is that starts rumors.

Hannah McCarthy:
What kind of rumors are we talking about?

Nick Capodice:
Rumors that Burr was trying to steal the presidency from Jefferson. But in the end, Jefferson won. And because Burr did not win, he served as VP for four years. Burr then ran for governor of New York in April 1804. He lost. And here's where the trouble really starts for him. It came out that his political rival, Alexander Hamilton, apparently said some bad stuff about Burr at a dinner party.

Hannah McCarthy:
What did Hamilton say?

Nick Capodice:
According to someone who attended the dinner? Hamilton referred to Burr as a,"dangerous man."

Hannah McCarthy:
Whoa.

Nick Capodice:
And a feud, a feud of letters between Byrne Hamilton escalated to a duel in Weehawken, New Jersey, where Burr fired a bullet that lodged in Hamilton's spine, killing him, which I first learned about, interestingly, from a got milk commercial in the nineties.

Archival:
(commercial)

Nick Capodice:
Anyways.

Nancy Isenberg:
But essentially that led to the duel. And then the duel. What happens is that Hamilton's reputation before the duel had really dropped because of the Reynolds scandal, the adultery scandal. He was no longer influential in the Adams administration. And suddenly, after the duel, he's turned into a martyr. And then New York and New Jersey decide that they're going to try to prosecute Burr for murder for the duel. New Yorkers eventually drop it. New Jersey pushes it, and it's all because it's Hamilton's friends who push for that. So Burr has to leave New York, and this is when he begins to think about the filibuster.

Hannah McCarthy:
The filibuster?

Nick Capodice:
Yeah.

Hannah McCarthy:
Aaron Burr is thinking about reading Green Eggs and Ham to block a bill from being passed.

Nick Capodice:
No, no, no. Not that filibuster.

Nancy Isenberg:
Filibuster does not mean an effort to stop the passage of legislation in Congress. This was the older it comes from the Dutch and the Spanish, and it refers to organizing a private army as a way to essentially trigger some kind of rebellion and then have the regular army move in or as a way to appropriate more land.

Hannah McCarthy:
Okay. So people would raise a private army to incite political turmoil in other countries lands. Take that land and sell it to the US government.

Nancy Isenberg:
Yeah. And you may think, well that's outrageous, but in fact it wasn't illegal. Which tells us something about how different the early republic was and that Americans acquired so much land trying to provoke conflicts. This is actually how the Mexican war was started. This is remember what the Texas independence was, not Texas independence. It was a group of Americans who invaded and then created rebellion. So this unfortunate pattern was quite common, and Jefferson and Madison were not opposed.

Nick Capodice:
Burr starts filibustering out West in 1805, but the trouble for him starts when the district attorney in Kentucky, Hamilton Davies, tries to arrest him.

Hannah McCarthy:
So there's another Hamilton in this story.

Nick Capodice:
Yeah, there is Joseph Hamilton Davies, who was very upset about the duel with the other Hamilton.

Nancy Isenberg:
So he goes after Burr and tries to prosecute him because he's angry. And I have this seen this in his letter. He's angry because Burr killed Hamilton. But Burr's defended by Henry Clay and himself, of course. So he escapes Kentucky. He's also arrested in Mississippi territory. The jury also finds him not guilty. But the the real danger that I highlight is that the reason that there was so much of a response to what Burr was doing and people were following his actions, and then it gets exaggerated. In the newspapers, like in Kentucky, they were they began to claim he has an army of 2000 and it's in the newspapers. Unfortunately, Jefferson believes the newspapers. He believes it probable that this news of an army being led by Burr is real.

Hannah McCarthy:
Okay. While on principle, I'm not sure how I feel about filibustering, I'm not entirely sure why it's a problem for Burr to be filibustering and leading an army if a bunch of other people were doing the exact same thing.

Nick Capodice:
Yeah. The trouble is, rumors of Burr's army are that it is very large. And Hamilton Davies writes Jefferson to say that Burr intends to form a new independent nation. Now, Thomas Jefferson dismisses these accusations at first, but then he gets a letter from a guy who had been working with Burr: General James Wilkinson.

Nancy Isenberg:
General James... He was he was a real wheeler and dealer. He actually sent a messenger to Jefferson with the secret note hidden in his shoe, supposedly giving him this this very important intelligence.

Hannah McCarthy:
A secret note hidden in a shoe? What is this, Nancy Drew?

Nancy Isenberg:
I mean, talk about spycraft. This is essentially who Wilkinson was. And unfortunately, he ensnared Jefferson. And then Jefferson goes too far.

Nick Capodice:
Jefferson issues a proclamation that various and sundry people are, quote, conspiring and confederating. And when Congress pressures him to be a little more specific who he's talking about, he finally names Aaron Burr as the prime mover of it all. Burr is eventually brought to Virginia under escort, where he is to be put on trial in the Fifth Circuit Court for treason.

Hannah McCarthy:
Why Virginia?

Nick Capodice:
Well, the supposed crime of Burr raising an army happened in a place called Blennerhassett Island, which was part of Virginia. Now it's in West Virginia.

Hannah McCarthy:
Blennerhassett.

Nick Capodice:
Blennerhassett. I could go on at length here about a speech given at the trial called Who Is Blennerhassett, which was recited in public schools for a century later, oddly enough. But I'm going to just skip it all and say that's where the supposed treason took place.

Hannah McCarthy:
All right. Real quick, can we define treason?

Nick Capodice:
Yes. Article three, Section three, in the US Constitution says treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. Now, there's also a second part, Hannah, which turns up in this case that, quote, No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or a confession in open court. So we get to the trial. But first, quick break.

Hannah McCarthy:
And before that break, just a reminder that we make something called extra credit. It's a newsletter. It is delivered every other week into your inbox, and it's where we put all of the good stuff. That we want to put in the episodes, but our editor makes us cut. You can subscribe at our website, civics101podcast.org.

Hannah McCarthy:
Okay. We're back, Nick. Let's get to the trial.

Nick Capodice:
The trial, United States versus Aaron Burr. 1807. Here we go. The charge, one count of treason, one count of high misdemeanor for, "unlawfully, falsely, maliciously and traitorous Lee intending to raise and levy war on the US." The prosecution team, which was led by sitting President Thomas Jefferson, included William Wirt and George Hay.

Hannah McCarthy:
I just want to make sure I understand. Jefferson paused his presidential duties to run a trial.

Nick Capodice:
Well, he wasn't there exactly, but he directed the moves of the prosecutorial team from the White House.

Hannah McCarthy:
Okay, so that's the prosecution side. Who was on the defense?

Nick Capodice:
Here's Nancy Isenberg again.

Nancy Isenberg:
Burr's defense team is what we can call a dream team. First of all, he played a role in his own defense, acting as his own counsel. And Burr was an extremely talented lawyer. Secondly, he had the Virginian, Edmund Randolph, who had been Washington's attorney general and the secretary of state, part of the Randolph dynasty. He, the person who was the real brains on the dream team was a man by the name of John Wickham, who you've probably never heard of. He was the most important and influential lawyer in Virginia at the time.

Nick Capodice:
There was a jury, a grand jury, and the judge who ran the show, none other than chief justice of the Supreme Court, John Marshall. Riding that circuit.

Hannah McCarthy:
That Marshall is everywhere. And by the way, if anyone wants to know more about Justice John Marshall, listen to our episode on the judicial branch. He was chief justice in Marbury v Madison. Or we've got a whole episode on just Marshall.

Nick Capodice:
Remember, Marshall needs two people to testify that Burr planned to levy war on the U.S. and here is where things start to fall apart for the prosecution.

Nancy Isenberg:
What happens is the trial begins and several things happen. First of all, Burr admits at the very beginning, he says, Yes, I was basically engaging in a filibuster. And then what ends up being proven is one of the star witnesses, a guy named William Eaton.

Nick Capodice:
Eaton was also engaged in filibustering and he testified that Burr was going to lead an army to create a new government. But then Burr's defense is like, Hey, Eaton, isn't it true that the federal government gave you $10,000 after your deposition for this case? And Eaton was like, Yeah, but that was for something else. And his testimony loses a lot of credibility.

Nancy Isenberg:
And then they move on to another witness who ends up being a witness for Burr, saying, I never heard Burr ever say anything about trying to topple the West. And then Eaton's charges were that Burr was going to come east and conquer the whole United States and even cut Jefferson's thought. So you can understand why Eaton ended up being a very unreliable witness.

Nick Capodice:
The Keystone witness for the prosecution was that shoe secret smuggler General James Wilkinson, who had evidence a letter in cipher in code from Burr to him that laid out the whole plan.

Nancy Isenberg:
So Wilkinson, the star witness, ends up being a complete failure. Well, first of all, as the editor of the Burr Papers discovered, the letter wasn't even written by Burr. It was written by Jonathan Dayton, who is a friend of Burr, who was involved in the filibuster, senator from New Jersey. And then on top of it, it's quite clear when Wilkinson hands over the letter that he's doctored it. That's because he tried to remove the part where he's implicated.

Hannah McCarthy:
This is not going well for the Jefferson team.

Nick Capodice:
It's not. There's even a funny moment when Wilkinson comes in the courtroom. It was written about by a man reporting on the trial. Washington Irving.

Hannah McCarthy:
Like the author of The Legend of Sleepy Hollow.

Nick Capodice:
Yeah!

Hannah McCarthy:
This trial has everything. So what happens when Wilkinson shows up?

Nick Capodice:
Irving said General Wilkinson moved into the courtroom, quote, swelling like a turkey cock.

Nancy Isenberg:
And he gives this incredible description and he wore this elaborate uniform that his wife had made for him with epaulets and make him look like he's really important when he walks into the court. Washington Irving describes how there's kind of a pause, and then suddenly someone says something to Burr. He looks at Wilkinson, and this is what Irving says he gets. He gives gives one of his classic stares, you know, his his he basically looks at Wilkinson and dismisses him and then turns around and continues conversing with his defense. So Wilkinson's grand entrance is deflated.

Nick Capodice:
Wilkinson, even though he had that nice uniform his wife's sewed, never got to testify because he had doctored the deciphered letter. So it is a shambles. But before I tell you the verdict, there is one civics feature in this case I want to bring up. Something that's been in the news in the last few years, the notion of executive privilege. Aaron Burr said that for this trial to be fair, President Jefferson had to provide documents and evidence. This is the shoe letter, among other things. And Justice Marshall had to decide, can a president be subpoenaed?

Hannah McCarthy:
What did he decide?

Nick Capodice:
He says they can. And you can see Burr's subpoena to President Jefferson in the Library of Congress. But Marshall also said that a president can withhold certain information based on their privilege. So what Jefferson did is he gave some evidence, but not all of what Burr asked for. And this question of can a president withhold specific evidence was brought up again in the wake of Watergate and U.S. v Nixon in 1974.

Archival:
In fact, we go back to Chief Justice Marshall's opinion in the Burr case, where exactly the same suggestion was made by the United States attorney in opposing the subpoena that Burr hadn't specified which portions of General Wilkinson's letter. We're really going to be material...

Hannah McCarthy:
All right. I have a pretty good idea of the outcome of the trial, but give it to me.

Nick Capodice:
The jury came back pretty quickly with the following verdict. We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty. What's interesting is they don't say he's not guilty. They say based on the evidence provided to us, we can't say he's guilty.

Hannah McCarthy:
Well, that's technically how it should always go.

Nick Capodice:
Yeah, that's like...

Hannah McCarthy:
It's based on the evidence.

Nancy Isenberg:
And this is what's interesting. I think Marshall realized he realizes that all of this, the hubbub around Burr had been created by gossip and rumor that what the newspapers printed and then it circulates. And he basically said he was unwilling to allow rumor to convict a man of what he called the most atrocious crime of treason. So he did this was this was a very important thing separating the difference, fact versus fantasy, something Americans need to learn today. This is what John Marshall was saying. It has to be based on evidence. You have to have real witnesses. It has to be compelling evidence, particularly if you're going to make the incredible charge that he has committed treason. Because what is the punishment for treason? Death.

Hannah McCarthy:
All right. So Burr's found not guilty. What happens next?

Nick Capodice:
Aaron Burr realizes he's not going to have much success. He's not going to have a big comeback politically. He goes to Europe for four years. He becomes best friends with the philosopher Jeremy Bentham.

Hannah McCarthy:
You're kidding me. The philosopher Bentham?

Nick Capodice:
Yeah, the very same. And Burr has dreams about filibustering again in Mexico or Florida, but that never comes to fruition.

Nancy Isenberg:
The weird thing about Burr is, given everything that's happened to him, he doesn't kind of go into a depression. He maintains connections. He has a disastrous second marriage, which was a major mistake for him, where he thought he was going to be able to recoup some of his clients. He's always struggling with finances, as they all were. Like Hamilton, Jefferson, struggling with debt. He's but he's never a player again. He's never going to wield political power, run for office. That whole part of his life is over. If we think about this trial, it's a perfect example of how a president abuses their power. Jefferson and most scholars agree with this. Jefferson stepped over a line. As I said, even John Adams was shocked by Jefferson's declaration that Burr was guilty.

Nick Capodice:
Jefferson, who was not a fan of Chief Justice Marshall and decidedly not a fan of the decision to acquit Burr. After the trial, he proposed an amendment to the Constitution where a president could remove federal judges by order of Congress. The Constitution, as written, says that judges can only be impeached by a vote in the House and then removed by a trial in the Senate. Jefferson wanted to make it easier than that, and he claimed that these judges were acting, quote, independent of the nation. Now, this didn't happen. Marshall was not impeached and removed, but Jefferson tried.

Hannah McCarthy:
What's interesting to me about this case is that we have a contested election. Allegations of treason, overreach of executive power, and a president who feels the judicial branch has too much power. 220 years have passed and all of this is still going on.

Nick Capodice:
Yeah. And Nancy said to me that if there's one thing we should focus on, it's Jefferson's involvement in the case. You got a president targeting a political enemy and telling the American people that that person is guilty.

Nancy Isenberg:
So when the president makes that kind of public declaration, they can provoke violence or in this case, bias the entire proceeding, which is what it ended up working against Jefferson because of Burr's legal team that they were so effective in just shooting down the really weak case that the prosecution had. But it could have gone if it had been someone else. And it's one of those rare moments on the courtroom proceedings really work the way they should, as opposed to just people following their confirmed biases or their distorted way or just following Jefferson's lead.

Nick Capodice:
That’s it for this episode on our first federal treason trial, special thanks to the American Bar Association for suggesting this series, visit the page for this episode on our website civics101podcast.org (also a link in the show notes) to see some wonderful teaching resources for this trial courtesy of the Federal Judicial Center. This episode was written and produced by me Nick Capodice with Hannah McCarthy, our staff includes Jacqui Fulton, Christina Phillips is our Senior Producer and Rebecca Lavoie our executive producer. Music in this episode by Chris Zabriskie, Bonnie Grace, Margarita, Peter Sandberg, Strom, Nylonia, Christian Anderson, Stationary Sign, Jahzaar, Needledrop Records, Blue Dot Sessions, Dyalla, Scott Holmes, and Kevin McCloud. Civics 101 is a production of NHPR New Hampshire Public Radio

Nick Capodice:
BLENNERHASSETT

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Transcript

Archival: Whenever you're ready, Mr. Chief Justice. And may it please the Court and please the Court. Mr. Chief Justice. At least the facts of this case appeared in 1777 in Philadelphia...This case concerns the federal drug conspiracy statute...This case presents to this court the questions of whether Miranda versus Arizona and Westover versus.

Nick Capodice: Hannah. It's no secret. You know, I'm a little bit obsessed with Supreme [00:00:30] Court history.

Hannah McCarthy: Just a little. Yeah, yeah, I know.

Nick Capodice: The robes, the oyez chant,

Archival: Oyez, oyez!

Nick Capodice: Two advocates in a room debating cases with nine justices. It's almost a philosophical exercise.

Hannah McCarthy: It makes you very emotional.

Nick Capodice: But it's not the entire picture of our judicial system. Now, you've pored over dozens of landmark Supreme Court cases, and don't you dare deny it. [00:01:00] You're a big fan of courtroom dramas.

Hannah McCarthy: Yep.

Nick Capodice: So tell me what is missing from the hallowed sessions in the highest court of the land that you get in those courtroom dramas?

Hannah McCarthy: I mean, everything everything is missing, right? It's it's the laws that are on trial, not the human beings. There's no jury. There's no cross examination, no gavels, which, like, they could at least throw in some gavels. No one's like shouting. I object. Although apparently that doesn't actually happen very often in court. No surprise witnesses. [00:01:30] There's no presentation of evidence. There's no ruling by the judge right then and there. Come to think of it, the people involved in the cases usually aren't even in the.

Christine Lamberson: Every once in a while, like Plessy versus Ferguson. I used to teach U.S. history. So you actually talk about who Homer Plessy was, but you hardly ever talk about the students in Brown versus Board.

Nick Capodice: This is Christine Lamberson. She works at the Federal Judicial Center, which is the Research and Education [00:02:00] Agency of the federal courts. And earlier this year, I spoke to her and some folks from the American Bar Association who asked, hey, why haven't you done any episodes on federal court cases? This is where the action happens. This is where people and the courts meet. And this is Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And this is the first in a series about historic federal court cases. Today, we're going to talk about the trial of [00:02:30] the century, one of the first cases ever related to something very serious. Article three, Section three in the Constitution, treason.

Hannah McCarthy: Okay, before we get into treason, why are federal courts the place to examine it?

Nick Capodice: Right. Here's Christine again.

Christine Lamberson: First of all, the vast majority of cases that go through the federal courts are not going to make it to the Supreme Court. The Supreme Court; certainly currently this is especially true. The Supreme Court currently hears 100 [00:03:00] to 150 cases per year, whereas thousands, tens of thousands of court cases are heard by courts of appeals, hundreds of thousands by district courts.

Hannah McCarthy: This is a good point. I mean, much like the executive branch is not just the president, but also 4 million other Americans. The vast majority of the judiciary is in these lower courts.

Christine Lamberson: Historically, I think also we can get a sense of how [00:03:30] people interact with the courts. When you're looking at a trial, for example, as opposed to a Supreme Court case at the trial, you are going to have individual Americans who are not lawyers arguing about the law, coming and telling their stories and talking about their experiences and interacting with the federal legal system. So if you're looking at a trial, we're going to be able to get a sense of how individual [00:04:00] Americans throughout history were interacting with the legal system that we don't tend to get when we look at the Supreme Court level decisions.

Nick Capodice: And to remind you, the Supreme Court was not always the body who made these decisions on what was and was not constitutional. Yes, they do that now. But initially they had another job and it was in our circuit courts of appeals. You lose a case, you can appeal it up to your circuit court.

Christine Lamberson: So if you're looking at a federal trial [00:04:30] from 1830 or something, it was probably heard in the circuit courts. So they were the main trial courts. They also heard some appeals from the district courts and then the Supreme Court heard appeals from both of those. So it's a little bit of a different system. At that point. The Supreme Court was required to hear a lot of appeals, which is no longer the case. The judges for the circuit courts were the Supreme Court justices writing circuit, and then the district court judges. They didn't have their own judges until late [00:05:00] in the 19th century.

Nick Capodice: And today's case, U.S. v Burr is going to go back to that earlier time when Supreme Court judges rode circuit.

Hannah McCarthy: Right. This is when justices traveled the country in carriages and got stuck in swamps and got sick and basically put their life on the line for the job, right?

Nick Capodice: Yeah. That's the time period. One judge was robbed by highway bandits, broke his leg and died from circuit exhaustion before he was 48 years old.

Hannah McCarthy: Circuit exhaustion. Did you make that up?

Nick Capodice: No. It's a real thing. [00:05:30] It's what it said. I read it on a website.

Hannah McCarthy: Okay. And you said Burr v us. Are we talking about the Burr?

Nick Capodice: The Burr. Indeed we sure are.

Archival: Pardon me. Are you Aaron Burr, sir? That depends. Who's asking. Oh, well, sure, sir.

Nick Capodice: That is the depiction of Aaron Burr in the wonderful, enormously popular musical Hamilton. Come on the show anytime to set us straight if we mess this up, Mr. Miranda. But this treason trial is not due to the famed duel where he killed Alexander Hamilton.

Hannah McCarthy: All right, [00:06:00] let's do a quick crib notes on Aaron Burr. What did he do, Nick?

Nancy Isenberg: Yeah, Aaron Burr was an extremely important politician in the early republic, particularly in New York. And what we have to understand about politics in the early republic is that your connection to your state was essential to be a player in federal politics.

Nick Capodice: That's Nancy Isenberg. She's a professor at Louisiana State University and author of Fallen founder The Life of Aaron Burr. Burr was a lawyer [00:06:30] in New York and he lived with his wife, Theodosia. Theodosia dies in 1794 after a long illness and in seven. In 1797 Burr is elected to the U.S. Senate. And as Nancy pointed out, your position as a player in your state was far more important than it is today.

Hannah McCarthy: Why was your state connection so powerful back then?

Nick Capodice: Well, for one thing, there were fewer states. Burr was one of 32 U.S. senators, not 100. And when it came to the House. [00:07:00] New York had ten seats out of 104 in the House of Representatives. So your state wielded a lot more political power. And Aaron Burr, backed by that power, ran for president in 1800.

Hannah McCarthy: Oh, that election.

Nick Capodice: That was such a bonkers election.

Nancy Isenberg: During the election of 1800. As you know, there's a tie. And that means the decision has to be made in the House of Representatives and there's negotiations.

Hannah McCarthy: Is this the only tie so far in U.S.. history

Nick Capodice: So far it is. What [00:07:30] happens is written out in the Constitution, Article two, Section one,"If there be more than one who have such majority and have an equal number of votes, then the House of Representatives shall immediately choose by ballot, one of them for president," and that choosing by a ballot was contentious. They voted 36 times in the House without picking a winner.

Nancy Isenberg: And at that moment, people start accusing Burr of trying to steal the election, which he did not do, and all the evidence that exists, one of the key players who was [00:08:00] a federalist and had thrown their support to Burr thinking they could work with him better than Jefferson admits that Burr would never work with them. But what that does is it creates a climate of distrust. And Burr and Jefferson were never really that close. They they respected each other. But Jefferson is really Virginian, you know. He trusts people who are like him, people from Virginia. So what happens is that starts rumors.

Hannah McCarthy: What kind of rumors are we talking about?

Nick Capodice: Rumors that Burr was [00:08:30] trying to steal the presidency from Jefferson. But in the end, Jefferson won. And because Burr did not win, he served as VP for four years. Burr then ran for governor of New York in April 1804. He lost. And here's where the trouble really starts for him. It came out that his political rival, Alexander Hamilton, apparently said some bad stuff about Burr at a dinner party.

Hannah McCarthy: What did Hamilton say?

Nick Capodice: According to someone who attended the dinner? Hamilton referred [00:09:00] to Burr as a,"dangerous man."

Hannah McCarthy: Whoa.

Nick Capodice: And a feud, a feud of letters between Byrne Hamilton escalated to a duel in Weehawken, New Jersey, where Burr fired a bullet that lodged in Hamilton's spine, killing him, which I first learned about, interestingly, from a got milk commercial in the nineties.

Archival: (commercial)

Nick Capodice: Anyways. [00:09:30]

Nancy Isenberg: But essentially that led to the duel. And then the duel. What happens is that Hamilton's reputation before the duel had really dropped because of the Reynolds scandal, the adultery scandal. He was no longer influential in the Adams administration. And suddenly, after the duel, he's turned into a martyr. And then New York and New Jersey decide that they're going to [00:10:00] try to prosecute Burr for murder for the duel. New Yorkers eventually drop it. New Jersey pushes it, and it's all because it's Hamilton's friends who push for that. So Burr has to leave New York, and this is when he begins to think about the filibuster.

Hannah McCarthy: The filibuster?

Nick Capodice: Yeah.

Hannah McCarthy: Aaron Burr is thinking about reading Green Eggs and Ham to block a bill from being passed.

Nick Capodice: No, no, no. Not that filibuster.

Nancy Isenberg: Filibuster does not mean an effort [00:10:30] to stop the passage of legislation in Congress. This was the older it comes from the Dutch and the Spanish, and it refers to organizing a private army as a way to essentially trigger some kind of rebellion and then have the regular army move in or as a way to appropriate more land.

Hannah McCarthy: Okay. So people would raise a private army to incite political turmoil [00:11:00] in other countries lands. Take that land and sell it to the US government.

Nancy Isenberg: Yeah. And you may think, well that's outrageous, but in fact it wasn't illegal. Which tells us something about how different the early republic was and that Americans acquired so much land trying to provoke conflicts. This is actually how the Mexican war was started. This is remember what the Texas independence [00:11:30] was, not Texas independence. It was a group of Americans who invaded and then created rebellion. So this unfortunate pattern was quite common, and Jefferson and Madison were not opposed.

Nick Capodice: Burr starts filibustering out West in 1805, but the trouble for him starts when the district attorney in Kentucky, Hamilton Davies, tries to arrest him.

Hannah McCarthy: So there's another Hamilton in this story.

Nick Capodice: Yeah, there is Joseph Hamilton Davies, who was very upset about the duel with the other Hamilton. [00:12:00]

Nancy Isenberg: So he goes after Burr and tries to prosecute him because he's angry. And I have this seen this in his letter. He's angry because Burr killed Hamilton. But Burr's defended by Henry Clay and himself, of course. So he escapes Kentucky. He's also arrested in Mississippi territory. The jury also finds him not guilty. But the the real danger that I highlight is that the reason that there [00:12:30] was so much of a response to what Burr was doing and people were following his actions, and then it gets exaggerated. In the newspapers, like in Kentucky, they were they began to claim he has an army of 2000 and it's in the newspapers. Unfortunately, Jefferson believes the newspapers. He believes it probable that this news of an army being led by Burr is real.

Hannah McCarthy: Okay. While on principle, I'm not sure how I feel about filibustering, I'm not entirely sure why it's a problem for [00:13:00] Burr to be filibustering and leading an army if a bunch of other people were doing the exact same thing.

Nick Capodice: Yeah. The trouble is, rumors of Burr's army are that it is very large. And Hamilton Davies writes Jefferson to say that Burr intends to form a new independent nation. Now, Thomas Jefferson dismisses these accusations at first, but then he gets a letter from a guy who had been working with Burr: General James Wilkinson.

Nancy Isenberg: General James... He was he was a real [00:13:30] wheeler and dealer. He actually sent a messenger to Jefferson with the secret note hidden in his shoe, supposedly giving him this this very important intelligence.

Hannah McCarthy: A secret note hidden in a shoe? What is this, Nancy Drew?

Nancy Isenberg: I mean, talk about spycraft. This is essentially who Wilkinson was. And unfortunately, he ensnared Jefferson. And then Jefferson goes too far.

Nick Capodice: Jefferson issues a proclamation that various and sundry people [00:14:00] are, quote, conspiring and confederating. And when Congress pressures him to be a little more specific who he's talking about, he finally names Aaron Burr as the prime mover of it all. Burr is eventually brought to Virginia under escort, where he is to be put on trial in the Fifth Circuit Court for treason.

Hannah McCarthy: Why Virginia?

Nick Capodice: Well, the supposed crime of Burr raising an army happened in a place called Blennerhassett Island, which was part of Virginia. Now it's in West Virginia. [00:14:30]

Hannah McCarthy: Blennerhassett.

Nick Capodice: Blennerhassett. I could go on at length here about a speech given at the trial called Who Is Blennerhassett, which was recited in public schools for a century later, oddly enough. But I'm going to just skip it all and say that's where the supposed treason took place.

Hannah McCarthy: All right. Real quick, can we define treason?

Nick Capodice: Yes. Article three, Section three, in the US Constitution says treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid [00:15:00] and comfort. Now, there's also a second part, Hannah, which turns up in this case that, quote, No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or a confession in open court. So we get to the trial. But first, quick break.

Hannah McCarthy: And before that break, just a reminder that we make something called extra credit. It's a newsletter. It is delivered every other week into your inbox, and it's where we put all of the good stuff. That we want to put in the episodes, but our editor makes us cut. You can subscribe [00:15:30] at our website, civics101podcast.org.

Hannah McCarthy: Okay. We're back, Nick. Let's get to the trial.

Nick Capodice: The trial, United States versus Aaron Burr. 1807. Here we go. The charge, one count of treason, one count of high misdemeanor for, "unlawfully, falsely, maliciously and traitorous Lee intending to raise and levy war on the US." The [00:16:00] prosecution team, which was led by sitting President Thomas Jefferson, included William Wirt and George Hay.

Hannah McCarthy: I just want to make sure I understand. Jefferson paused his presidential duties to run a trial.

Nick Capodice: Well, he wasn't there exactly, but he directed the moves of the prosecutorial team from the White House.

Hannah McCarthy: Okay, so that's the prosecution side. Who was on the defense?

Nick Capodice: Here's Nancy Isenberg again.

Nancy Isenberg: Burr's defense team is what we can call a dream team. First of all, he played a role in his own defense, acting [00:16:30] as his own counsel. And Burr was an extremely talented lawyer. Secondly, he had the Virginian, Edmund Randolph, who had been Washington's attorney general and the secretary of state, part of the Randolph dynasty. He, the person who was the real brains on the dream team was a man by the name of John Wickham, who you've probably never heard of. He was the most important and influential lawyer in Virginia at the time.

Nick Capodice: There was a jury, a grand jury, and the judge who ran the show, [00:17:00] none other than chief justice of the Supreme Court, John Marshall. Riding that circuit.

Hannah McCarthy: That Marshall is everywhere. And by the way, if anyone wants to know more about Justice John Marshall, listen to our episode on the judicial branch. He was chief justice in Marbury v Madison. Or we've got a whole episode on just Marshall.

Nick Capodice: Remember, Marshall needs two people to testify that Burr planned to levy war on the U.S. and here is where things start to fall apart for the prosecution.

Nancy Isenberg: What happens is the [00:17:30] trial begins and several things happen. First of all, Burr admits at the very beginning, he says, Yes, I was basically engaging in a filibuster. And then what ends up being proven is one of the star witnesses, a guy named William Eaton.

Nick Capodice: Eaton was also engaged in filibustering and he testified that Burr was going to lead an army to create a new government. But then Burr's defense is like, Hey, Eaton, isn't it true that the federal government gave you $10,000 after [00:18:00] your deposition for this case? And Eaton was like, Yeah, but that was for something else. And his testimony loses a lot of credibility.

Nancy Isenberg: And then they move on to another witness who ends up being a witness for Burr, saying, I never heard Burr ever say anything about trying to topple the West. And then Eaton's charges were that Burr was going to come east and conquer the whole United States and even cut Jefferson's thought. So you can understand why Eaton ended up being a very unreliable witness. [00:18:30]

Nick Capodice: The Keystone witness for the prosecution was that shoe secret smuggler General James Wilkinson, who had evidence a letter in cipher in code from Burr to him that laid out the whole plan.

Nancy Isenberg: So Wilkinson, the star witness, ends up being a complete failure. Well, first of all, as the editor of the Burr Papers discovered, the letter wasn't even written by Burr. It was written by Jonathan Dayton, who is a friend of Burr, [00:19:00] who was involved in the filibuster, senator from New Jersey. And then on top of it, it's quite clear when Wilkinson hands over the letter that he's doctored it. That's because he tried to remove the part where he's implicated.

Hannah McCarthy: This is not going well for the Jefferson team.

Nick Capodice: It's not. There's even a funny moment when Wilkinson comes in the courtroom. It was written about by a man reporting on the trial. Washington Irving.

Hannah McCarthy: Like the author of The Legend of Sleepy Hollow.

Nick Capodice: Yeah!

Hannah McCarthy: This trial has everything. So what happens when Wilkinson [00:19:30] shows up?

Nick Capodice: Irving said General Wilkinson moved into the courtroom, quote, swelling like a turkey cock.

Nancy Isenberg: And he gives this incredible description and he wore this elaborate uniform that his wife had made for him with epaulets and make him look like he's really important when he walks into the court. Washington Irving describes how there's kind of a pause, and then suddenly someone says something to Burr. He looks [00:20:00] at Wilkinson, and this is what Irving says he gets. He gives gives one of his classic stares, you know, his his he basically looks at Wilkinson and dismisses him and then turns around and continues conversing with his defense. So Wilkinson's grand entrance is deflated.

Nick Capodice: Wilkinson, even though he had that nice uniform his wife's sewed, never got to testify because he had doctored the deciphered letter. So [00:20:30] it is a shambles. But before I tell you the verdict, there is one civics feature in this case I want to bring up. Something that's been in the news in the last few years, the notion of executive privilege. Aaron Burr said that for this trial to be fair, President Jefferson had to provide documents and evidence. This is the shoe letter, among other things. And Justice Marshall had to decide, can a president be subpoenaed?

Hannah McCarthy: What did he decide?

Nick Capodice: He says they can. [00:21:00] And you can see Burr's subpoena to President Jefferson in the Library of Congress. But Marshall also said that a president can withhold certain information based on their privilege. So what Jefferson did is he gave some evidence, but not all of what Burr asked for. And this question of can a president withhold specific evidence was brought up again in the wake of Watergate and U.S. v Nixon in 1974.

Archival: In fact, we go back to Chief Justice Marshall's [00:21:30] opinion in the Burr case, where exactly the same suggestion was made by the United States attorney in opposing the subpoena that Burr hadn't specified which portions of General Wilkinson's letter. We're really going to be material...

Hannah McCarthy: All right. I have a pretty good idea of the outcome of the trial, but give it to me.

Nick Capodice: The jury came back pretty quickly with the following verdict. We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty. [00:22:00] What's interesting is they don't say he's not guilty. They say based on the evidence provided to us, we can't say he's guilty.

Hannah McCarthy: Well, that's technically how it should always go.

Nick Capodice: Yeah, that's like...

Hannah McCarthy: It's based on the evidence.

Nancy Isenberg: And this is what's interesting. I think Marshall realized he realizes that all of this, the hubbub around Burr had been created by gossip and rumor that what the newspapers printed and [00:22:30] then it circulates. And he basically said he was unwilling to allow rumor to convict a man of what he called the most atrocious crime of treason. So he did this was this was a very important thing separating the difference, fact versus fantasy, something Americans need to learn today. This is what John Marshall was saying. It has to be based on evidence. You have to have real witnesses. It has to be compelling evidence, particularly if you're going to make the incredible charge that he has committed treason. Because [00:23:00] what is the punishment for treason? Death.

Hannah McCarthy: All right. So Burr's found not guilty. What happens next?

Nick Capodice: Aaron Burr realizes he's not going to have much success. He's not going to have a big comeback politically. He goes to Europe for four years. He becomes best friends with the philosopher Jeremy Bentham.

Hannah McCarthy: You're kidding me. The philosopher Bentham?

Nick Capodice: Yeah, the very same. And Burr has dreams about filibustering again in Mexico or Florida, but that never comes to [00:23:30] fruition.

Nancy Isenberg: The weird thing about Burr is, given everything that's happened to him, he doesn't kind of go into a depression. He maintains connections. He has a disastrous second marriage, which was a major mistake for him, where he thought he was going to be able to recoup some of his clients. He's always struggling with finances, as they all were. Like Hamilton, Jefferson, struggling with debt. He's but he's never a player again. He's never going to [00:24:00] wield political power, run for office. That whole part of his life is over. If we think about this trial, it's a perfect example of how a president abuses their power. Jefferson and most scholars agree with this. Jefferson stepped over a line. As I said, even John Adams was shocked by Jefferson's declaration that Burr was guilty.

Nick Capodice: Jefferson, [00:24:30] who was not a fan of Chief Justice Marshall and decidedly not a fan of the decision to acquit Burr. After the trial, he proposed an amendment to the Constitution where a president could remove federal judges by order of Congress. The Constitution, as written, says that judges can only be impeached by a vote in the House and then removed by a trial in the Senate. Jefferson wanted to make it easier than that, and he claimed that these judges were acting, quote, independent of the nation. Now, this [00:25:00] didn't happen. Marshall was not impeached and removed, but Jefferson tried.

Hannah McCarthy: What's interesting to me about this case is that we have a contested election. Allegations of treason, overreach of executive power, and a president who feels the judicial branch has too much power. 220 years have passed and all of this is still going on.

Nick Capodice: Yeah. And Nancy said to me that if there's one thing we should focus on, it's Jefferson's involvement in the case. You [00:25:30] got a president targeting a political enemy and telling the American people that that person is guilty.

Nancy Isenberg: So when the president makes that kind of public declaration, they can provoke violence or in this case, bias the entire proceeding, which is what it ended up working against Jefferson because of Burr's legal team that they were so effective in just shooting down the really weak case that the prosecution had. But [00:26:00] it could have gone if it had been someone else. And it's one of those rare moments on the courtroom proceedings really work the way they should, as opposed to just people following their confirmed biases or their distorted way or just following Jefferson's lead.

Nick Capodice: That’s it for this episode on our first federal treason trial, special thanks to the American Bar Association for suggesting this series, visit the page for this episode on our website civics101podcast.org (also a link in the show notes) to see some wonderful teaching resources for this trial courtesy of the Federal Judicial Center. This episode was written and produced by me Nick Capodice with Hannah McCarthy, our staff includes Jacqui Fulton, Christina Phillips is our Senior Producer and Rebecca Lavoie our executive producer. Music in this episode by Chris Zabriskie, Bonnie Grace, Margarita, Peter Sandberg, Strom, Nylonia, Christian Anderson, Stationary Sign, Jahzaar, Needledrop Records, Blue Dot Sessions, Dyalla, Scott Holmes, and Kevin McCloud. Civics 101 is a production of NHPR New Hampshire Public Radio [00:27:00]

Nick Capodice: BLENNERHASSETT

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