welcome to the making sense podcast this is Sam Harris just a note to say that if you're hearing this you're not currently on our subscriber feed and will only be hearing the first part of this conversation in order to access full episodes of The Making Sense podcast you'll need to subscribe at samh harris.org there you'll also find our scholarship program where we offer free accounts to anyone who can't afford one we don't run ads on the podast podc and therefore it's made possible entirely through the support of our subscribers so if you enjoy what we're
doing here please consider becoming one today I'm speaking with Barton Gilman Bart is a pulit Sur prize winning journalist and author he currently serves as a senior adviser at the Brennan Center for Justice at the NYU School of Law previous he was a staff writer at the Atlantic and the Washington Post he's the author of dark mirror Edward Snowden and the American surveillance State as well as angler The Cheney vice presidency for which he won the Los Angeles Times book award anyway Bart and I talk mostly about election integrity and the safeguarding of American democracy
we discuss the war games he's run to test our response to an authoritarian president the prospect of such a president using federal troops against American citizens the difference between laws and Norms State pow is to resist the federal government voter identification and election Integrity political control over election certifications the bush Gore election the Electoral count Reform Act the prospect of public unrest after the November election the significance of January 6th George Soros the good people on both sides calumny against Trump what will happen to Trump and trumpism if Harris wins in November the presidential debate
between Harris and Trump the authoritarian potential of a second Trump term project 2025 and other topics just one note we recorded this conversation before the second attempt on Trump's life so if there's any place where it seems like we should have discussed that and didn't that's why and now I bring you Barton Gilman I am here with Barton Gilman Bart thanks for joining me again pleasure to be here so uh you've been busy since we last spoke when I last spoke to you you were a a mere Pulitzer Prize winning journalist uh for the Atlantic
but um now you have moved on to uh become a man of action purposed toward protecting our democracy what are you up to you you've left the Atlantic and what are you now doing I am in the office of the president of the Brennan Center for justice which is based in New York and has a big presence in Washington it's a a think tank uh public policy Advocate it does litigation uh and so forth and the the main purpose is to protect democracy and civil rights I was at the Atlantic for about four years and
I spent most of my time writing about how there were existential dangers to democracy uh you know I'd done a piece two months before the 2020 election predicting that it it could be a disaster if Donald Trump lost the election and refused to concede defeat and I outlined many ways that might happen and I would have wished that to be wrong but it didn't prove so I finally got tired of writing about how we're at this kind of generational challenge to democracy and decided to stop saying you know look over there it looks really bad
over there and and to kind of step in and step off the sidelines and try to do something about it so to get to your question my my first big project at the Brenan Center was to run something we called the Democracy Futures project which was a series of five tabletop exercises or you could call them war games in which we had about 175 in all former officials and leaders of Civil Society you know we had a couple of Governors we had couple of cabinet members all retired a senator a couple of members of Congress
judge generals and so forth coming into wargame what would happen if an authoritarian president were elected and pro-democracy Advocates kind of across a broad range of of government and Society tried to restrain that President and instead of just saying well he may try to do this and then we would just do that we we gamed out how it would actually work with an iteration through multiple rounds of the game so that the red president who uh had run on Trump's agenda could respond to pro-democracy moves to try to stop him and they could respond to
his responses and and how are these games conducted I mean so the person who plays the role of the president in this case is it up to him or her just to be as bad as they want to be I mean they are they just is it it just an exercise in extemporaneous gaml and and fiction making or is there some are there parameters in advance that are ironed out you precisely and and they're basically just following some kind of template in response to the various moves that are being made against them well first of
all bad as they want to be could could be a good band name we had two of the five games were basically that we called them everything everywhere all at once games and the person playing the president was supposed to be modeling his or her behavior on Trump's declared agenda and the agenda of his closest allies for example Pro 2025 is you kind of written by over a 100 former Trump Administration officials yeah it's amazing Trump knows nothing about it he's never never met these people he's got no association with him whatsoever yeah I think
22 of his chapters were authored by his former senior people so we we considered that fair game for guidance of what the president would do in office so in those the president did a lot of things all at once and tended to overwhelm the blue or the the pro democracy team by doing that with all the resources of the federal government three of the games we did with a narrower a narrower policy focus and I should just mention here that none of the games modeled any kind of behavior that falls within the ordinary range of
policy and political disputes so we weren't testing what happens if he cuts taxes or pulls out of a climate Accord again or even an issue like abortion we were testing only things that Trump and said he wants to do that would be threats to democracy and the institutions that uphold the rule of law like what specifically like for example use uh arms of the federal government to go after your enemies so prosecute them the Department of Justice or bring anti trust actions against Amazon because don't like what Jeff Bezos is doing with the Washington Post
which he's also the owner of or sending the IRS to challenge the tax exemptions of nonprofits like the Brenan Center for that matter because they're advocating things that he doesn't like among many examples what about using federal troops or the military to quell protests or round up undocumented workers or that sort of thing well those actually were the other two games one of them was about the domestic use of military power military force to break up anti-trump demonstrations on the grounds that they consisted of insurrections and riots and were threats to the rule of law
that local and state authorities could not handle even though actually the the Mayors and governors involved in those scenarios said they needed no federal help that was one m and the the other was mass expulsion of migrants sending federal law enforcement forces into cities all around the country to make Mass arrests to send migrants to detention facilities and to expel them back to their countries of origin or just expel them back to Mexico whether or not they came from Mexico and what we were testing was what could anybody do about that and the answer wasn't
always a happy one I mean for example we had a former Governor uh I should say we did these exercises under the chadam house rule so we don't name participants unless they gave their consent but in this case Christy Todd whitmann the former Republican governor of New Jersey did give her consent so I could say that she was one of the players and she was looking for a way to prevent the president from using his authority to federalize the National Guard in her State and one of the interesting things that emerged from this was that
Governors don't actually know where their power ends and the president's power begins because we haven't as far as I know ever had a case in which the president federalized the guard against the will of the governor of that state ordinarily it's the governor who requests that the president do so I thought there was nothing like that that happened during desegregation in the South I I I mean I my history is a little wonky here but just when the the the forcible integration of whatever that college was in Alabama or Mississippi or forgive my uh my
the vagaries here but didn't JFK have to bring in the National Guard to I I I'm just assuming it was over the protest of the the governor but maybe that's not the case well I am also not an expert historian on that subject it's true that the president did send the guard I'm not even sure it was JFK but you may be right no it was it was J JFK definitely was the president for I mean perhaps there are other episodes that I'm not thinking of but for one of these yeah it was JFK was
calling the shots what I understood is that the governor did not try to prevent the federalization of the guard in that instance and might have been I think there was definitely somebody did it was probably the mayor who was against it and then the governor was probably acquiescing to the president so yeah so it wasn't it probably wasn't opposition between a governor and and a president in that case well just say it's not every day that you has have a state agitate General who is the senior commanding officer of the state guard who gets conflicting
orders M from from the president of the United States and from the governor of that state and turns out that Governors don't happen to have in their back pocket a a clear understanding of where the boundaries are and that's I mean it's one of the takeaways from our exercise is that Governors and State Attorneys General and state legislators and potentially Mayors are independent sources of authority who can offer some protection against an authoritarian abusing the powers of the of the federal government but they need to actually study up on what the authorities are and what
the boundaries of their authorities are right but that's assuming that these Governors and state officials are not part of the personality cult that is rooting for the aspiring authoritarian to wield as much power as he wants yes so when you play these games are there people on the side of the autocrat or aspiring autocrat too or was it everyone resisting trying to resist the president no we gave the president a full cabinet and executive agencies and there were also support of Governors there were support of Judges the military was considered neutral and in some cases
did resist orders that it considered to be unlawful or at least tried to slow things down to get clarity on what a lawful Mission might be but you one of the interesting things about this exercise we had Republicans and Democrats we had conservatives and liberals we really did have a pretty broad ideological Spectrum people who disagreed on a lot of things but we didn't have any you know sort of strong current Trump supporters we had former officials who served under Trump but everyone in the room in real life was a pro-democrat small D but it
was remarkable how much fun they had playing an autocrat they really they really delved into the part and there was something about the transgressiveness of ordering the prosecution of your political enemies they were coming up with ideas some of which were not even going to published because there were ideas we don't think Trump has had yet they're so diabolical yeah yeah well you can I can imagine it's just it's as a creative exercise it's got to be a ton of fun playing the bad guy I think it's why they say they say in Hollywood enjoy
those villainous Parts more than the kind of I don't know there's something very ordinary about playing someone with good intentions uh in any case these these folks you know including people who are well-known critics of trump or you know quit his administration in Outrage certainly played the role with relish so I I think we like to imagine that we have a system that is is so good that it doesn't require good people to run it right that it it should be impervious to the the intrusion of a malicious narcissistic jerk who just wants to enrich
himself and hold on to power but I think I one lesson I drew from the Trump years was that where we thought we had laws to cover all of these contingencies we in many many cases all too many cases we only had Norms right and and Norms on some level were you know more flexible than and more important than laws but because they're not laws when somebody blows right past them you're left with not much you can do did I is that too cynical and paranoid a lesson to have drawn from Trump's presidency or is
do you agree with that assessment you know I I think we got mixed results from the Trump Administration in terms of the value of having sort of right thinking people people who believed in fulfilling their duty to follow the law and to follow longstanding ethical rules and to follow the governing Norms that were consensus Norms between the parties there were times when people like that were absolutely critical to stopping bad things from happening so that's why you had all these leaks from the people around Trump during his presidency and that way you found out for
example that you know his treasury secretary had removed a document from his desk before Trump could see it and sign it because it was so crazy and hadn't gone through the usual governing processes and in the effort to overthrow the 20120 election there were people at kind of even even not terbly senior levels who drew a line and said I won't do that even though I'm a Republican and prevented the overthrow I mean there's a guy whose name I can't recall but I wish I could because he deserves celebration it was Vander something a guy
on the Michigan State Board of Elections and the way the board works is it had I think it was three and three it had an equal number of Republicans and Democrats on it and if all of the Republicans had refused to certify the election As Trump was asking them to do then Michigan's electoral votes would be in controversy it might you know it might be arguable in courts or in Congress that uh the electoral votes had not been cast although that that probably wouldn't have worked but this one Republican on the board not a very
senior guy some guy in his 30s um who did this as a literally a part-time gig said I'm not going to refuse to certify the election the uh votes have all been counted and double checked uh and everything is in order and I'm going to vote to certify and for that reason Michigan was taken out of the unknown category and and the man who won it Joe Biden got those votes you had the same thing with the elected uh Secretary of State in Georgia who's better known Brad raffensberger and more Junior people in the state
Secretariat who refused Trump's request quest to quote unquote find 11,780 votes that could be flipped so that he would win the state of Georgia so you did have these people who I think were real heroes and upheld the law but you also found out as you say that a lot of the stuff that we don't want presidents do to do because it would be a huge abuse of power there's actually no law against it and Trump has a kind of Genius for finding stuff where nobody ever wrote down you can't do that I you know
for example I mean if he had wanted to put a giant Banner Over The White House to advertise you know Trump goods for sale there's nothing written down anywhere that says you can't do that it's this might be one of those ideas you don't want to leak out un lest he get into his head leave it to him to sell Trump stakes and other crap from the fac out of the White House so what did you find after these games were run what was the punchline with respect to what the the system could do to
contain the the overreach of a of a rogue president well the unhappy conclusion was that the blue team seldom found a way to stop the autocrat in his tracks They seldom found you know you know the one weird trick that lets you uh cage him up and prevent him from abusing his power but we did find things that could delay or deflect or or uh diminish the damage of authoritarian acts so one thing I've mentioned already which is that if you have a a governor or a state attorney general who believes in the rule of
law and is willing to resist an overreach of federal executive power those people have a lot of power and need to be doing their homework now so they're not in the middle of an episode and unaware of what they can and can't do and there are a bunch of questions that may not actually be settled law that they need to be ready to uh take position on like are there any limits you can impose on you know someone from the Bureau of Prisons or from DHS or from a militia that the authoritarian president has deputized
to enforce federal law and comes into your city or your state and starts rounding people up can you impose any limits on how they exercise police powers in your state does state law or the state or or do the state courts have the power to limit those things what would happen if you refused a federal demand for State data that might help them find migrants uh who they're looking to expel and so on I mean they just need to do a kind of broad reaching sweep of their legal and operational authorities I have to think
that there is an army of of democratic and never Trump lawyers who are who are at work on this and have been been at work on this for some time to try to prepare our um our democracy for a coming stress test in in in reality should Trump get four more years to take a crack at it is it too hopeful a oce is I mean what are the what are all the lawyers doing who are who are equally worried about this well you know it's sort of a yes and no I tell you a
story from the beginning of 2024 I I uh was thinking about making this career change and I C I called up Michael Waldman who's the president of the Brennan Center and said you know do you have a a place for me there and he said what do you want to do and I said well I'd like to protect the November election and I'd like to do planning for what happens if Trump wins and tries to carry out his authoritarian agenda and he told me we're doing a lot of the one already and we're not doing
a lot of the other uh and that's why I started where I started now since then there are a lot of organizations and people in the kind of democracy and rule of law space who are thinking and planning ahead for how you would restrain an authoritarian president but they're trying to do a lot of things at once uh they're trying to protect for example the Integrity of the November election they're doing planning for what happens if a Democrat wins or even if there's a democratic trifecta I mean the Brendon Center for example would put huge
priority on passing the freedom to vote Act and the John Lewis voting rights uh Improvement act and so there are people doing that kind of planning and for a while there was a time when when people just didn't really want to think too much about things going wrong after the inauguration of the new president in 25 I think that's changed quite a bit in recent months but there's there's plenty more work to be done m okay well let's take it from the top here I'd like to talk about the November election and um the the
various outcomes that that we might expect but before we do is there any sympathetic construal we might give to the right-wing SL populist SL trumpist concerns about the Integrity of our elections I mean so you've got a lot of people out there that have come to the the Trump circus from you know Trump himself and Elon Musk on down who are making noises about that seem to Signal the legitimacy of concerns about election Integrity we should have paper ballets you know the computers can be hacked there are people who are you know who are voting
who shouldn't vote you know and the Democrats want to bring in lots of non-citizens to vote effectively and um therefore voter ID ID laws or just make abundant sense I mean just just take a voter ID what what is wrong with passing a voter ID law I we we need ID for so many things that are far more trivial than than voting why does anyone resist the need to have proper identification when you go to vote well the question is what's proper identification um how are the standards set and for what purpose and I'm going
to give a a very broad answer to your your meta question here it is almost universally the case that when people talk about the need to uh protect election Integrity as a political issue they are trying to prevent people from voting who are not on their side election Integrity the the idea that they have to stop an election from being stolen premised on the idea that the 2020 election was stolen which is nonsense are almost universally proposed by people who are in fact trying to steal the next election so let's come back to to voter
ID the big idea on the table right now from the Speaker of the House who is trying to attach it to funding the federal government and threatening to shut down the government if it's not attached it's called the save act and it is a ostensibly to stop noncitizens from voting so here's what's really going on first of all non-citizens are not voting they claim the proponents of this bill claim that there are millions of uh non-citizens being shipped in to vote for Democrats they can't name millions or thousands or hundreds or even dozens of occasions
on which a non-citizen has ever voted in a US election they have completely truth is we have the opposite problem we have citizens who can't be bothered to vote right I mean the the idea that voting is such an attractive thing to do that even non-citizens by the millions would want to do it is just patently ridiculous well right so we have citizens who can't be bothered to vote that's true and it would be better if we had a democratic culture small D Democratic culture in this country in which more people wanted to vote wanted
to participate and believ that there was something in it for them that they could have some impact on the way our government has run and the and the way Society functions and some way to improve their own lives by participating that's one thing but it's also true that citizens who do have the right to vote are prevented from voting by some of the things they want so the proposal in the save act in order to solve a a non-existent problem of non-citizens voting is that you should have to have be able to present a birth
certificate or a passport in order to vote so there's good data that shows that poor people and racial minorities are disproportionately unable to present documents like that I mean they've never traveled abroad they don't have a passport uh how many people can actually put hands on their own birth certificates M and so you're going to prevent some rich Republicans from voting if they can't find their birth certificate but the point of it is to remove from the voting roles a lot of people who the Republicans think are going to vote for Democrats and so by
trying to solve a problem that doesn't exist they're creating a a new one of disenfranchisement of uh preventing people from voting and you know in litigation and in hundreds of statutory changes around the country uh laws passed by state Republican legislators laws proposed by others they are in every case every is a big word I'll say virtually every case they are designed to reduce the number of people voting to take people off of voter roles and it's it's grotesque and it's fundamentally sort of undemocratic anti-democratic behavior yeah I guess my intuition here is is a
little I guess it cuts across this problem in a what I imagine is certainly a nonpartisan way but it I just feel like G given that this keeps coming up and there is there is so much that we do require identification for in our society I mean to to get on an airplane you need identification now right so this is you know that's got to pose a problem for all the people who can't figure out how to get ID who want to fly right so the question is is there a way to solve this problem
I we're not going to solve it in advance of November's election but for future elections it just seems that we should figure out how to get people the identification they need to vote and uh remove this as a as one of as this perennial object of partisan gamesmanship so that people can vote with with the ID that we have agreed on is sufficient for the the situation yes I mean in every state in every County in every jurisdiction you do have to present local election officials with sufficient evidence that identifies you as a person who
lives in the district and is entitled to vote sometimes it's a utility bill sometimes it's some other form of photo ID and for example in Texas not so many years ago the Republican state legislature imposed an ID requirement in which a University ID with photo would not count to allow you to vote because college students might not be citizens well college students are are less likely to vote Republican uh and they but they did allow a gun license which doesn't even have a photograph on it to uh genuinely funny yeah that is something that that
would have got would have produced a laugh in one of your War Games had it been uh produced for that purpose uh yeah yeah so well there were a lot of things that you know you either laugh or cry when you see it but I mean you know the latest thing that's happening now in the integ the election Integrity front quote unquote is you have a move in multiple States including several swing states around the country most kind of paradigmatically in Georgia to impose political control over certification of election results so that's that's a new
legislative and and litigation related front in this in this war or you have a you know a member of of I'm trying to I want to get this right there was a there was a member of the elections board for one of the counties in Georgia a woman named Adams who refused to certify the results of a primary election in 2022 and demanded to be given the power to investigate this is someone who was a a longtime election denier someone who was propounding the lie that the 2020 ction had had been stolen from Trump uh
and she wanted the power to uh sort of to command the production of all this data from election officials sensitive data that's kept private for a reason and refused to certify then the governor appointed three Republicans to the five person state election board who passed a new rule for elections in Georgia that enabled the Republican administrators of elections in the counties to refuse to certify and to investigate instead certification has always been a kind of a a ministerial function there's lots of good law from around the country and from that's more than a hundred years
old that election officials don't have the power to investigate elections if there's a if there's a a controversy over whether the uh whether there was Foul Play in election it goes to the courts where they have standards and Rules of Evidence and in 2020 ruled 60 some times that there was no evidence that the election had been stolen but they wanted they want that function now to be exercised by partisan officials on Election boards and that offers a lot of opportunities for uh mischief and chaos and at least delaying the outcome of an election and
and potentially to overturn the vote of the people and say that the loser actually won yeah so that that's another level at which the Integrity of an election can be attacked and again I I have to think that there are democratic lawyers who've been all over this for quite some time I mean just mean from from now from the top down we've got kamla Harris and her husband both of whom are attorneys right I mean is it conceivable that the Democrats are not sufficiently alert to Republican trumpist machinations in trying to put their true believers
into positions of authority when it comes time to count votes oh uh pro-democracy forces are very much alive to this problem and very much engaged in it and the Brent Center where I work is uh tax exempt nonprofit non partisan organization but it believes in the right to vote and anywhere that someone is trying to throw people off voter roles for insufficient reason or is trying to insert a new political level of voter certification uh the Brandon Center and lots of its allies are all over that they they get involved in lobbying for or against
State legislation they've filed amikas briefs in several cases challenging the new laws and they're very much these laws are very much under partisan debate around the country so in Wisconsin where the state legislature is heavily Republican and gerrymander to remain so the Democratic governor has vetoed a number of these changes so there there are laws that would have been in place by now in Wisconsin to politicize the vote count but for the fact that Tony Evers vetoed those but there are other states even with Democratic Governors where the Republicans have a veto proof majority and
are passing these statutes and they're under litigation now even as we speak so what are you expecting in November so I there's obviously there are two outcomes KLA Harris could win or Donald Trump could win I guess there are uh you know really four outcomes I mean I I either could win quite narrowly which is what what I think we expect but I guess things change if either winds in a landslide I mean let's just Linger on that possibility for a second wouldn't a a landslide Victory obviate some of the concerns we're going to raise
here I mean just if KLA Harris wins you know 400 electoral votes to the the lingering disputes over whether the election was was run properly the the endless you know protests and and riots we might be worried about does the risk of all that get radically diminished I guess in either direction if there's a landslide for one of the candidates oh I think absolutely you're right about that in fact it is there's an inside joke among election administrators that that there's uh something that they uh factiously call the election administrators prayer is Lord let there
be a landslide right because then all the little controversies about whether this ballot Dropbox was compromised by the fact that the street light went out for half an hour that stuff just stops mattering and and the outcome is clear but I'm no political pundit you know I I covered politics for a lot of years as a journalist and I'm involved in controversies about politics now at the Brennan Center but I think the consensus View is this election will be decided by a very small number of Voters in a very small number of states so I
mean you know the Tipping Point state is going to be Pennsylvania or Wisconsin maybe Michigan maybe North Carolina and if you look at the polls of those States they're either dead even or very close to the margin of error in terms of who's ahead so you could very easily expect that the winning margin is going to be in the tens of thousands of votes it could smaller than that as it was in Florida in 2000 right okay so let's talk about those possibilities so what would you expect in the case of a narrow Harris Victory
versus a narrow Trump Victory I mean it's just in terms of is there any kind of symmetry here I mean I guess it's possible to expect that in in a close Victory either way you have half the country possibly poised to to not accept the results of the election right I think this is obviously a worse problem over in Trump aan given that this conspiracy thinking about all this has been consciously engineered for for now the better part of a decade but do you think there's a is there anything like an equivalent level of paranoia
skepticism conspiracy thinking that could allow for just a a breakdown in a fundamental trust in the electoral process regardless of the outcome I do actually think that there is some symmetry in the sense that there will be some Democrats some influential Democrats and a substantial number of democratic voters who challenge the outcome if Harris loses who will attempt to block certification in some State who will Who will take other steps to say that there was cheating and that the result isn't legitimate but they will not be a majority if you'd like to continue listening to
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