55:00 mins

The Problem Podcast

The Trump Indictment & Who We Think Deserves Prosecution

Donald Trump has finally been indicted. We will not be offering you a play-by-play of the former president driving to and from various airports, but we do have an excellent conversation about the nature of accountability in America’s two-tiered justice system—and why white collar criminals are so often above the law. We’re joined by Dr. Phillip Atiba Goff, Yale professor and co-founder/CEO of the Center for Policing Equity, and David Dayen, the executive editor of The American Prospect.


The Trump Indictment and Who We Think Deserves Prosecution

Ep. 233 Final Transcript

Jon: Does anyone know if he’s gotten out of the car yet?— [LAUGHTER] I’ve been away from the TV for a minute or two. 

David: Aren’t you in Chopper 6 ? Like looking overhead?

Jon: You know what? If he was a badass, he would take one of those e-scooters. [LAUGHTER] You know what I mean? Citi Bike, e-scooter, hop on that bad boy.

Phillip: Again that is not actually true at all. [PHILLIP LAUGHS]

Jon: Red, red tie flapping in the wind. One hand on a slice, one hand on the handlebars. Come on. [LAUGHTER] That’s how New Yorkers go to arraignments, baby. 


Jon: Welcome to the podcast. It’s a problem with me, Jon Stewart. By the way, the show is on Apple TV+ it’s our finale, the final episode. Will I finally have that baby? Oh, will it be a cliffhanger? I don’t know. We’re actually going on, it’s, we’re trying something a little new. We’re gonna react to all this Trump and media nonsense on our actual program. Oh, it’s gonna be fantastic. Today, an unprecedented podcast, a consequential podcast, this historic hysterical podcast, Donald Trump. A sitting former non-sitting, standing president has been indicted if you watch the news. It does appear Republicans are now being rounded up in droves while crime runs rampant in our cities. But we are gonna talk about this two-tiered justice system today, one that Donald Trump has suffered so greatly under. Please welcome to the program, David Dayen, executive editor of the American Prospect, and Dr. Philip Atiba Goff, co-founder and CEO Center for Policing Equity, and the Chair. And Carl I Hovland, professor of African-American Studies and professor of Psychology at Yale University. David and Phil, thank you for joining us. 

David: Thank you. 

Phil: Thank you for getting that whole title in there. Well done. [DAVID AND PHIL LAUGH]

Jon: Let me tell you something, I talk as fast as I need to, to get out. The problem I’m having is, if my guest could be less impressive, I could get this done much easier. Second lead on “3rd Rock From the Sun”. Boom and we’re into the conversation. [LAUGHTER] You see what I’m saying? My old life was much easier. Uh, gentlemen, please talk to me. It’s as though you can’t be a rich, billionaire ex-president in this country anymore, that the man will keep you down. Is that where we’re at? Is that where we’re headed, gentlemen?


David: It’s a sad day in America when that’s the case. I think this is a case you know, I was talking to my staff about this, something that I called, peacock prosecution. So you have someone that is so out there that is essentially an indictment in human form who is just daring the system to take it on. And takes up—

Jon: For 50 years. 

David: For, yes.

Jon: For 50 years.

David: Yes, for decades. The, whether in real estate development or whatever other corners of the economy he was dealing with and it moves all of the focus over to this particular indictment. Whereas, you know, the litany of other, white collar crime, corporate crime that goes on, is forgotten. And the true state of our justice system where who you are certainly matters a whole lot more than what you did is obscured. And now it’s, it’s refracted through this lens of political prosecution—

Jon: That’s right.

David: —rather than the real biases in our justices.

Jon: That is exactly, and Phil, what is it in your mind when you see that Republicans have just discovered that the justice system in America may not be fair, but what, what must run through your mind, Phil?

Phillip: So they might be onto something. [LAUGHTER]

Jon: Are you agreeing with them, sir? 

Phillip: They really might be onto something. [JON LAUGHS] Um, you know, and I want, I wanna be really clear. Um, I think that their formal position—

Jon: Yes. 

Phillip: —of defund law enforcement is wildly unpopular. Um, uh, I think that—

Jon: They want chaos Phil, chaos.

Phillip: —well, they’ve been defunding law enforcement in the sense of trying to defund the DA’s office in Manhattan. They have defunded the IRS, um,—

Jon: Yes.

Phillip: —and they’ve allowed, really crime to grow rampant. Let me tell you a little bit about the crime I’m talking about. [JON LAUGHS] 

Jon: What? This conversation is on its head.

Phillip: I say, I really wanna say they are allowing crime to be rampant. And here’s what I mean. 

Jon: Yes.

Phillip: So if I were to, um, walk up to you and steal your wallet, that would be a robbery, right?

Jon: Mm-hmm.

Phillip: And robbery is heavily, heavily enforced. It’s regulated. People will come, they will beat you up. They will try and get that money back. 

Jon: Yes. 

Phillip: But if I work in a corporation and I steal money out of the pockets of my employees, that’s not called robbery. It’s called wage theft. So in this country, in 2019 —

Jon: Hmm.

Phillip: —what is the amount of, let’s say, formal robbery to wage theft? 

Jon: Oh I’m sure stealing of wallets is much more, a much grander.

Phillip: It’s wildly out of control. In the sense that wage theft is literally over a hundred times larger in the amount of money than robbery. A hundred times, we have over four billion dollars, it should be 40 billion dollars of wage theft. Um, and not 340 million dollars worth of robbery. 

Jon: Right. 

Phillip: And yet the IRS, when, which is that’s the enforcement arm that would go and look at things—

Jon: Like wage theft. 

Phillip: —so it takes about 75% of its human-being hours towards people making less than a million dollars. Who people were worth less than a million dollars. And if you wanna make sure you are audited by the IRS, the number one category up until the point where they stopped reporting it publicly, cause it was looking bad for them. 

Jon: Yes. 

Phillip: For folks who belong to the very elite category of EITC, that’s the earned income tax credit.

Jon: Yes. 

Phillip: Which is the lowest wage earners.

Jon: Yes.

Phillip: You were five and a half times more likely as getting EITC than in any other group to be audited by the IRS. These are the folks that we choose to prosecute, not the people who are getting money and taking money literally illegally.

Jon: Now, Phil, the question then becomes is, if these corporations engaging with wage theft would just keep this money in their wallets, then we might have something, then we might have a mechanism. Uh, David, you know, we’re not even necessarily talking about all the fraud and all the white collar crime, forgetting about even the derivatives monstrosity that caused the 2008 financial crisis. We don’t look at white collar crime, wage theft, fraud as crime. It’s looked upon as a kind of price of doing business in the same way that like, you know, we would find out HSBC launderers money for drug cartels, and instead of throwing everybody in jail, we just ask them to give us a cut of it. 2%, let’s say five billion dollars, and we’ll all go square. How do you convince people that what Phil is talking about, in other words, not funding the IRS to go after this fraud, we lose maybe almost, what 800 billion dollars a year to this kind of thing that is stolen? You know, just tax evasion I think is 175 billion. 

David: Yeah, I mean the amazing thing is that, this is a relatively new development, this impunity for corporate and white collar crime. In the 1980s after the savings and loan crisis—

Jon: Mm-hmm. 

David: —we saw a thousand bankers go to jail. In the Enron frauds and the accounting scandals of the early two thousands, we did see people go to jail and what happened was that out of that Enron task force and out of the crimes that were conducted there and—

Jon: Mm-hmm. 

David: —the convictions that were gotten there, there was a change in the Justice Department in the way it handled corporate crime. There was a memo by a guy named Larry Thompson, who was part of the Enron task force—

Jon: Uh oh Phil is nodding. It’s a very bad sign. [DAVID LAUGHS] Go ahead, David.

David: —you know previously the options for the Justice Department when they found corruption or fraud in a corporation, it was prosecute or don’t prosecute. And then this third option in the Thompson memo came forward and it was called the deferred prosecution agreement.

 Jon: What?

David: Yes. Deferred prosecution agreements actually came out of juvenile delinquency like a century ago if you were a kid. And we didn’t want to prosecute a kid and ruin his life. So we’d do a deferred prosecution agreement where we’d, we would watch him and monitor him and, and over years—

Jon: Wow.

David: —if he rehabilitated, we would get him back into regular society. And, so we wouldn’t prosecute initially.

Jon: Is the thought there then that corporate brains are not fully developed yet? 

David: Yeah, pretty much. 

Jon: So they, we have to wait until they gain a more sophisticated understanding of right and wrong. So we really don’t wanna do anything yet.

David: Exactly. So with DPAs, which started, by the way, the very first DPA in a corporate context was by a woman who was a prosecutor at the Southern district in New York, attorney’s office named Mary Jo White—

Jon: Sure, Mary Jo White.

David: —who prosecuted prudential with a deferred prosecution agreement. She later became the head of the SEC and after that is now the personal lawyer of the Sackler family. [JON LAUGHS] The personal lawyer of the Sackler family. So—

Jon: Even Faust, even the devil, the devil himself, is now saying like, you really wanna take those people on? That family? [LAUGHTER] Is that what you want? 

David: Now, that was a rare case in 1994 , but a decade later, the Thompson Memo comes out in 2003 and DPAs are pretty much not used very much, but after that they explode. They become the standard way in which these prosecutions are carried out. They are essentially given a fine, there is an independent monitor set up that like, “Hey, for five years we’re gonna be watching you.”

Jon: It’s like putting them on parole.

David: “We might do this prosecution.”

Jon: Yeah, yeah, yeah, yeah, yeah. 

David: And usually nothing ever happens, that was true in the HSBC case, by the way that there was a DPA there. 

Jon: Right. 

David: And this is how it goes. And prosecutions of individuals have gone down precipitously since that time.

Jon: Right. Which is why this all seems so shocking. Phil, you know, it’s the kind of thing that makes you realize oh, right. Because I’ll tell you why I think the government is doing that, the DPAs, I don’t know that they’re necessarily corrupt. I think they’re f***ing tired. They don’t have the resources or the money to go after these criminals and prosecute them because if your wallet is thick, you can delay, you can throw obstacles at it. And is it that they’ve learned not to even bother to just get what they can get? Is that what this is?

Phillip: So, I’m so glad we’re talking about the Thompson Memo. I didn’t know how nerdy we were gonna get and how quickly we were going to get there.

Jon: Oh, we’re getting nerdy baby. [DAVID LAUGHS] We’re going Thompson Memo.

Phillip: No, we’re starting nerdy. [JON LAUGHS] Let’s say we’re starting there. 

Jon: And it’s only getting worse.

Phillip: You talked about it being the bankers, brands aren’t fully formed, which, you know, I dunno how many bankers, you know, that may be actually true. 

Jon: Maybe. 

Phillip: I actually think it’s the other piece, which is we should be able to preserve their innocence until later, right? Because these aren’t people that seem— 

Jon: Wow.

Phillip: —like they’re criminals. That was the idea of DPAs in the juvenile context, which interestingly are reserved for folks who aren’t black or Latin, right. Folks who aren’t Native American. 

Jon: Right. 

Phillip: Now in the ways that we do DPAs in the juvenile context, which is why to this day, black kids who are under 18 are 18 times more likely to be tried as adults, right, than our white kids. So—

Jon: Are DPAs still in use for juveniles to some extent? 

Phillip: Oh yeah. I mean like much less so.

Jon: But not if you’re African American, then it’s 18 times more likely that they go, “we’ve seen enough. I don’t know that we need to defer this. I think we’re OK.”

Phillip: Right, 14 but you kind of, you crime-d like you were 18 years old.

Jon: “It looks very much like you could grow a beard. I think we’re done here.” 

Phillip: Yeah, exactly, exactly. “I’m upset because you look more masculine than I do.” [JON LAUGHS] And therefore, so like part of our criminal justice system is set up to figure this out for who is deserving of certain kinds of punishment, who deserves to be constrained and bound.

Jon: Mmm-hmm.

Phillip: And who has made a mistake or had mistakes happen around them, but they’re not the crime type of people. 

Jon: Right. 

Phillip: And so the Thompson Memo essentially says, if you’ve got folks who they’re gonna delay forever, you can’t really get ’em, you can’t really prosecute. This gives you another avenue for managing it. But also these crimes are so diffuse. They’re systems errors, they’re people who were beneath them and they weren’t really great managers. Do we really wanna punish them for all those kinds of things? In the same way that we used to not punish coaches when they’re subordinates would be the ones who are setting people up with cars at the university.

Jon: That’s right 

Phillip: Now, we say yeah— 

Jon: They’re victims of a lax system as opposed to bad actors.

Phillip: —and what we’ve done is we’ve allowed for the passive voice to happen for the people we don’t wanna prosecute. Right? Crimes occurred in this general area, and a DPA allows you to say, “hey, you existed where crimes occurred, not you were ultimately responsible for it. You benefited from it. Your salary was dependent on the things that you got as a result of it.”

Jon: And there’s no admission of guilt. There’s no, at a DPA, you just say, “boy, this kind of got away from us,” I would imagine. Let me ask you how much the Supreme Court’s changing of the definition of corruption, because it feels as though the society decided at some level that if we had a Venn diagram of unethical and illegal, right. And that area in the middle there, which is where I think Trump has built a hotel and casino, somewhere in between a lack of ethics and illegality. The system has decided to say, unless it’s explicit, unless you walk into someone’s office and say, “I’m doing this to steal from old ladies’ pension funds,” unless you explicitly make it quid pro quo or define it as corruption. Does that then hamstring any ability for whether it’s the SEC or the Department of Justice to prosecute something like this?

David: I mean, that’s true in the corruption context, certainly. 

Jon: Yes. Not in the crime context maybe. 

David: Right. And it’s not like it’s very hard to go around and find massive pieces of documentary evidence. If you think back to the financial crisis and I, my first book was about this you know, we ended up having, uh, all of these mortgage backed securities that were created and they were not created in the style in which they proved the actual ownership.The documents were never conveyed.

Jon: They were mortgage molecules that were clumped together. 

David: And so in order to cover up for that, the banks mass produced on an industrial scale all of these documents after the fact to prove that they were in fact the owner of these various homes and used them in court to foreclose on someone. So the idea that there was, oh, there’s no documentary evidence—

Jon: Wow.

David: —there’s nothing there. There were literally millions of documents. There was a place in Georgia where millions of documents were mass produced, and they were all done by multiple $15 an hour workers who were signing their names to these documents, signing someone else’s name. They had you know, the names of these various officers of the bank—

Jon: And they, would they just postdate it? They were just postdate it as though— 

David: They were backdated. They were fabricated. 

Jon: Right. 

David: And they used the name Linda Green because, and they asked Doc X, this document fabrication company, why they used them. And they said, well, Linda Green’s name, you know, we made her the vice president of this bank.

Jon: Sure. 

David: And her name, easy to spell for these various people. [JON LAUGHS] And so that’s why we use Linda Green. So in the public records in these recording agencies, there is Linda Green with 20 different ways of assigning her name, and nobody went to jail for that. Absolutely nobody and the information is there and what we ended up having is a series of settlements that were, you know, DPA like in nature where banks were told, OK, you have to give principal reductions to people, or you have to give mortgage modifications to people. Or, my favorite, your sentence, is to give loans to lower income people, which is a money-making activity.

Jon: Wow, your sentence is – you’ve gotta get in the subprime business. That’s your sentence. You’ve gotta get into a payday loans.


David: It’s like telling someone convicted of robbery to open a lemonade stand. [JON LAUGHS] Like it’s ridiculous. And, uh, this is the way we dealt with the largest operation of mass fraud in recent memory.

Jon: And explicit fraud. Explicit fraud, where these, uh, hedge funds were trying to pass toxic mortgage backed derivative assets onto their clients knowing that they were s***. And not telling them and that’s why they refuse to be fiduciaries. But Phil, this gets us into, so now let’s talk about the consequence of that lack of any kind of accountability. Alright, so Linda Green, or the many Linda Greens are signing away these documents and they’re postdating them and they’re getting back and people are being foreclosed on and people are losing their jobs and people are losing their homes and they are left poverty stricken and desperate. And what happens sometimes in communities that have been decimated by poverty, they turn to… 

Phillip: Wage theft, is that what you were gonna go to? 

Jon: Boom, boom, boom. 

Phillip: Is that, no, it’s not. It’s robberies. It’s the other one. 

Jon: That’s what I’m talking about. 

Phillip: OK. There we go. Yeah.

Jon: We’re talking about robberies, we’re talking about crimes of desperation. We’re talking about, uh, drug use, alcohol use, lives of despair, that put them at risk of going into the justice system where they will pay non DPA penalties. Correct.

Phillip: That’s exactly correct. 

Jon: That’s the cycle.

Phillip: It’s in some ways you said explicit fraud, and I actually think that’s where a lot of the sort of the juice on this lives because it’s hard to show how explicit it is. Now you draw the thread, it’s easy to see. Someone had to know, but was it me? Was it Linda Green who didn’t exist? Like was it this president of this bank? 

Jon: Did you mean it? Did you mean to commit the fraud? 

Phillip: Right. And so, and I wanna be clear, we’re talking about this in the context of corruption because today is an historic day. And I really wanna make sure that an comes at the end of an Historic day because I am a professor. 

Jon: You have to. Absolutely, at Yale, no less. 

Phillip: Hey, so, but it’s not just for business corruption, this is also the standard for civil rights. So if you don’t mean… so the one for one for one standard, which is how the federal government gets any kind of DOJ, gets any kind of civil rights investigation says you have to engage in willful discrimination. Which, the way we’ve done that historically in the United States is, “Hey, I beat you up cause you were black,” isn’t enough. “I beat up all the black people and I don’t beat up white people and I say that out loud.” That isn’t enough. “I think black people deserve to be beaten. They have earned these beatings that I give them. Some of ’em deserve to be shot even if they didn’t commit crimes.” I can say all of those things, but if I don’t say I’m doing this because you are black and because I hate black people, my prejudice is the animating force. If I don’t get that explicit right, then what you end up with is now it’s not a deferred prosecution agreement, but it is a consent decree. It’s the worst that that can happen, which is, hey, we kind of agree that what you did there was kind of messed up. It’s not the chief’s fault, it’s not the training officer’s fault. It’s but we’re gonna watch it for a little while and you’re not gonna really comply, but we’re gonna have some metrics. You’re gonna broadly meet them and then it’s gonna be expensive for the city, which by the way, the poor people pay more of cuz remember how the taxes work. But that’s how, and it’s done. And at the core of all of this is that once you have systems and institutions We don’t know how to think about accountability. We know how to think about making money off of those things. 

Jon: Right. 

Phillip: We know how to be in charge of those things, but we don’t know how to hold individuals or systems accountable for the damages that they wreak. See, because even though these things are so transparent, it’s obvious what’s happening in almost every police department around the country. It’s obvious what’s happening in the banking industry and the subprime mortgage industry. All of those things were obvious that someone should have known. We can’t decide on who and what the punishment should be, much less how to regulate those systems after the crisis has been born on the backs of vulnerable people.

David: I think I would put that slightly differently in that I think we know how to find those responsible and those culpable of those particular behaviors. We’ve lost the muscle memory, the institutional memory of actually summoning the will to do it. I mean, if you look at– 

Jon: But David, when would we have the institutional memory? Because when have we really, I understand that a thousand bankers maybe went to jail in the eighties, but the eighties was also the crack epidemic. And those bankers went to play tennis for about months, and somebody who bought crack on the street went to jail for 15 years.

David: There’s no question about that. Yeah you know you can say that we never had a golden age of white collar crimes. [JON LAUGHS] We had several—

Jon: Exactly, that’s my point. 

David: —bronze ages or silver ages. [JON LAUGHS] Right. But the mechanism, what I’m kind of talking about is the mechanism for how we would go about that is well known. You flip the lower level guys. You, you get them into the corporate boardroom, right? Where the decision is actually— 

Jon: You do a RICO. 

David: Exactly, and that is done in those contexts all the time, in you know, organized crime, uh, where the person, you know, isn’t wearing a three piece suit and in a C-suite. We know how to do that. So the mechanism is there. The problem is several fold. One is this sort of out that has been given through the way the Justice Department prosecutes this stuff. The second is the sort of the mind share that prosecutors and the corporate defense attorneys have. They go to the same schools. They live in the same neighborhoods. They’re on friendly terms with one another and they cut deals with one another. And they cut deals with each other. 

Jon: They grant grace and empathy to each other in the way that they don’t, to communities that they don’t understand.

David: That’s correct. And I think the judges are implicated in that too. So you have this, this sort of idea and then there’s this unwillingness on the part of prosecutors to take a risk. To say no, we’re actually gonna try to hold this person responsible. There’s a famous, uh, story. It’s in the book, the Chicken S*** Club. [JON LAUGHS] The book is by Jesse Eisinger is a very good Pulitzer Prize winner for ProPublica. And the Chicken S*** Club refers to, it’s actually James Comey who comes to the Southern District of New York, right? And he asks, “How many people have lost a case here?” And very proudly, nobody raises their hands. And he says, “Well, we call you guys members of the Chicken S**t Club. And that’s because you’re not willing to fail. You’re, you’re, you’re so desperate, right? To stay away from losing a case that you’re going to, uh, you know, take the safe route.” And that’s what a DPA is, and that’s what, you know, a fine is, or a settlement or consent decree. And, and so that’s the culture that has built up, right? And, and it’s very hard to, you know, knock that down. 

Jon: Well, because it’s also, Phil, I’ll ask you this, aren’t we also operating against something reptilian in the human brain, which is white collar corruption doesn’t threaten my safety, not understanding the idea of hollowing out the resources of a community, or, uh, creating giant swaths of entrenched poverty. Not thinking along those lines. What they think is if you looked at a video of somebody looting a store, right? You would think, my God, society has ultimately failed. But that is a metaphor for what so many of these bad corporate actors are doing on a much larger scale. But as long as they’re not carrying it out in diaper bags, then it doesn’t f***ing look like anything. And so we don’t view it as a harbinger of that kind of chaos.

Phillip: I don’t know how reptilian our brain need to be if it’s on our nightly news every single night.

Jon: Maybe we’ve been made reptilian in that way.

Phillip: And I wanna be clear, there is nothing more consequential for somebody’s long-term safety than their pension fund being raided.

Jon: Right. 

Phillip: You’re highly unlikely to be victimized by violent crime in a, from a stranger. And if you don’t live in these neighborhoods, that stuff is not coming for you, statistically speaking. And yet the pension raiding that is happening all the time, the hundred times larger wage theft than robbery is coming for you. But this is what I mean by an inability to think about systems and Dave, point taken in terms of we have the mechanisms there. But only when we recognize that the entire structure is a criminal enterprise. I would love it if we recognize that in banking right now. But we do not. 

Jon: Wow. Wow. 

Phillip: We have made it legal, in fact, we have made it something where you get to go and become president of a university after you have engaged in that kind of stuff. You get to go and run the largest philanthropic enterprise working in criminal justice systems if you have been a member of Enron. And yet we understand that they’re engaged absolutely on a daily basis and stuff that raids pension funds, engages in wage theft, and for which we do not have the means or the muscle memory of holding folks accountable because we’ve decided those people aren’t the kinds of criminals we’re thinking about.

Jon: That’s right. And if you have a felony conviction of taking somebody’s wallet, you can’t chaperone your kids’ field trips. Even if you’ve done your time and you’ve been out — there’s a gentleman named Jay Jordan was, was letting us know about the complications that arise from having a felony conviction on your record and all the things that you are, prevented from doing in terms of licensing and renting something and buying something and chaperoning something, that ruin your lives. And like you said the redemption arc for many of these white collar criminals or those that had just sucked the system dry of the money is a presidency at a university or a think tank or something else. And is it because Phil, we’re just more comfortable with the exploitation of certain groups. It just feels better. It feels more right.

Phillip: We’re comfortable with it. And a spoiler alert, a lot of that has to do with race. 

Jon: Wait what?

Phillip: Yes. Yeah. So we’re, we’re more comfortable with that–

Jon: Are you trying to get my show canceled young man? 

Phillip: But it’s fine. Thank you for calling me young man. [LAUGHTER] But it’s not just that like we collectively are more comfortable. I want responsibility to reside where it resides. The folks who set up the systems in the first place, who have maintained control over it, and who by the way, are the ones who authorized the narratives that go on our televisions. All of those, the narratives that we get sold about what is safety, are absolutely untethered to the reality of safety in vulnerable communities.

Jon: Right.

Phillip: And we have decided that our systems should — I mean, and this is now, it’s sort of liberal doctrine right now — but it should bind some people and not protect them, protect other people and not bind them. Folks who end up being elite and privileged. Right. We’re protected. Right. But we’re not bound. Nothing that happens for the most part. I’m still black so like, there’s always this, a chance that something terrible is gonna happen to me when I’m not wearing a sweater vest. [JON LAUGHS] But for the most part, I’m protected and not bound. Right? And the places, the folks who I grew up with, the folks who I am connected to by blood, they are bound and they’re not protected. And that’s the pattern that I hope that we’re gonna see today, is that Republicans bring it back to full circle. Republicans who are outraged that Trump could possibly be bound by a legal system are saying that’s not what this system is supposed to do and we should take money out of the system that does that. 

Jon: Right? 

Phillip: Quite right. We should be defunding and taking money out of systems that unreasonably bind, but do not protect individuals in our society. Only we should listen to the people who are bound and not protected more, virally, which is vulnerable communities, not billionaires.

Jon: Wow. Bars, my friend bars, David, you know, it speaks to an idea that I think, you know, there’s a new populist strain in this Republican party that Donald Trump has harnessed kind of imprinted by AM radio that’s kind of been imprinting that over the years in the majority of those red areas where it airs hours a day, seven days a week. And it is powerful propaganda and an explicit reality distortion field that is created. The populism that he rides on somehow he’s never mentioned to the judges he’s appointed because if you look at the doctrine of right wing judges, they are anti-worker, anti-poor anti-the people that they say they’re best representing.

David: Mm-hmm.

Jon: So how do they twist this? How do they get out of that? I don’t know, lockbox that they’ve, that they’ve placed themselves in. We are the populist party. We just never mentioned it to our judges or to the people that are writing the laws.

David: Yeah. [DAVID LAUGHS] Never mentioned it to the policymakers.

Jon: Right.

David: So, I mean, I don’t think it’s too hard to imagine a set of cognitive dissonance that goes on with individuals who are using that sort of man of the people populist, kind of moniker for their own purposes. I mean, Trump has really done this for his entire life. If you think about it, he’s the salt of the earth New Yorker that also, you know—

Jon: A blue collar billionaire.

David: Exactly. So, that is not terribly surprising to me. What I think might end up being interesting as, as Phil has, has brought out here, is if that cognitive dissonance sort of gets pierced by the spectacle of this indictment and the reality of the, the criminal justice system. We’ve seen this come to the surface a little bit with the January 6th prosecutions. And, these discussions about, “Oh, it’s really horrible being locked up and they won’t get me the proper food. And I’m really having a terrible time.” 

Jon: “All I did was wipe my feces on the Speaker of the House’s desk, it’s nothing.”

David: But the point is like, welcome to prison.

Jon: That’s right.

David: Like, welcome to prison. This is a very punitive country. Overly punitive when it comes to these– 

Jon: Right. We’re number one, baby. 

David: And we would welcome a discussion about how to decarcerate these various spaces, and reserve them for the crimes that are really true and systemic. I mean cause the problem is that the systemic crimes are not the ones that usually get prosecuted. 

Jon: Because they’re not looking at it that way. They will find a way to twist it. What they’re saying is, this is an anomaly based on your hatred of this one man who stands for the people. The actual system should be punitive to those street crimes and to leave our martyr alone. My favorite part of the dissonance is, I was watching somebody, they were talking about Michael Cohen, the lawyer who went to jail for basically the same sort of situation that is being dealt with today. And someone said, ‘how can you trust Michael Cohen? He’s a felon.” [LAUGHTER] And you go, “Right, you do know why he is a felon, right? That’s, I mean, that’s for the crime that he’s being accused of right now.” But Phil, talk to that, which is, you are right this system it’s like if Al Pacino in “Justice for All”, he said, “You’re out of order. This whole system is out of order.” And they went, “yes, it’s completely out of order. Our leaders should walk free and those people who steal wallets should get 15 years.”

Phillip: Yeah and so it’s the people who are deserving of it, right? Like that’s the whole bit, right?

 Jon: That’s it! That’s the bit.

Phillip: That’s the bit. Actors aren’t deserving of it. Our guys aren’t deserving of it. Those folks are supposed to be protected, not bound. But these folks, they’re deserving of what they’re getting. 

Jon: That’s right. 

Phillip: I got two folks talking about cognitive dissonance. And so it got mentioned three times in like Beetlejuice, the psychology professor has to come out, say [JON LAUGHS] it’s only cognitive dissonance if you think about it. You have to have cognitions around it. 

Jon: That’s right. 

Phillip: And what’s happened is we’ve got a narrative that makes that those things not inconsistent. 

Jon: Oh!

Phillip: I believe that. There are, there are, um, there are justices that have been appointed who genuinely, genuinely believe there are big interests, right? And those big interests, again, they’re racialized. Like we wanna be anti-Semitic with them, so we call ’em Soros. So we’re big interest Big Civil Rights is now a thing–

Jon: Yes.

Phillip: – which I wish civil rights could be big, but–

Jon: Yes, big CRT baby.

Phillip: —that are set up to absolutely accost the victimized folks who are salt of the earth, and I am on their behalf because I am against anybody being able to organize regulation on those issues. Now, if you are too stupid to be successful like me, [JON LAUGHS] if you are too poor to be successful like me, then that just sucks for you. But you and I are in cahoots on the idea that there’s someone coming to get people like us, people who don’t want regulation. That story, that narrative is more powerful than our systems. Cause our systems rely on a shared reality and we have one group of folks who is incredibly large right now, statistically the minority, but powerful enough that they’ve got a shared reality that is disconnected from the cognitive dissonance we all would feel in that situation.

 Jon: But that shared reality is explicitly a lie. And when you look at, and it’s probably why no one will communicate via email anymore or text message, when you look explicitly at something like a media organization like Fox News where they say, “we will perpetrate this reality distortion field. We will continue to prop it up, the infrastructure of it. We will continue to broadcast the hologram that we have created because to not do so would be upsetting to the people whose world we have shaped and created and we don’t wanna undercut that.” And so that’s what you’re fighting. 

Phillip: Fox News gives us a fantastic example of the ability to speak out of both sides of the mouth and make money in both pockets at the same time. Fantastic example. But what’s, for me, critical in the lessons of Fox News—

Jon: Mm-hmm. 

Phillip: —is that intention is not required. They didn’t need to know all of that, right, to be able to do it.

Jon: Ooooh.

Phillip: All you gotta do is be like, “our audience is really upset about this. We should tell the story this way.” And I genuinely believe that there are good faith people who have been suffering at the, at the bad faith exploitation of folks who have the cognitive dissonance—

Jon: Right. 

Phillip: —who knows better, who are, they’re just replicating the story and it makes enough sense, do you feel me?

Jon: It’s what we always talk about. 

Phillip: Yeah. 

Jon: The difference between ignorance and malevolence and, and ignorance being a highly curable condition but, but certainly epidemic, and malevolence being a much narrower slice, but much more easy to gain power and control. And that’s how they do it. And, David, it also speaks to our view in this country of a president as shockingly above the law. As much as we like to believe that we are a meritocracy and egalitarian and a representational democracy, man, is that a kingly position to be in. I mean, Donald Trump has exposed the way that he does business, but presidents down the line have not been held accountable for any of the variety of misdemeanors and felonies that they have perpetrated.

David: I mean 50 years ago on national television, Richard Nixon said, “if the president does it, it’s not illegal.” [JON LAUGHS] We have been down this road before. And the arguments that Gerald Ford made to pardon Nixon for those crimes were very similar to the arguments that you’re seeing today. “We can’t put the nation through this terrible spectacle. There will be consequences down the road. There will be tit for tat. We just can’t do it. We have to hold, it’s, there is no alternative kind of thinking, we have to hold presidents somehow outside the law.” And Trump is a manifestation of that lack of accountability. Whether it was Nixon, whether it was Reagan and Iran Contra and Bush and Iran Contra, whether it was, you know we had a president years ago that, that sent us to war on false purposes, killed hundreds, millions of people in Iraq and—

Jon: And a democratic president that did extrajudicial drone killings.

David: —drone killings, torture. I mean, you know, you go down the line, the litany, the rap sheet that we have on presidents is much larger than the people now sitting in our nation’s prisons. But we have, have internalized this idea that Ford laid out very explicitly years ago. And, and now we’re seeing it come to the fore again, even with someone so obviously corrupt. So you know, daring the system.

Jon: Who walked in the door that way. I mean, that’s kind of my theory, is that I think one of the reasons, it’s kind of the Costanza, the Seinfeld thing, “it’s not a lie if you believe it.” I think one of the reasons Trump is truly baffled by this is he’s one, you know, his company, Trump organization, was not a publicly owned company. So he ran by, dictate by fiat.

David: Right.

Jon: He was the king and ruler, you know, prima nocta. He could come in and do whatever you know, whatever he wanted to do. And his a**is kissed for years. And so the presidency, far from being a kind of democratic institution that doesn’t live up to its potential to him, is an extension of this I decide. There is no checks and balances. There are no checks and balances at that organization. So why would the country, what it is he made the United States a subsidiary of Trump Inc. as opposed to bringing whatever business expertise he had into a Democratic system. And I think it’s why he’s so baffled by this.

Phillip: Yeah. And to be clear that no one came along and held Trump Inc. accountable not since the civil rights violations of the seventies, but we don’t like to talk about that. 

David: And still aren’t.

Phillip: And still aren’t, exactly. 

David: I mean the Manhattan DA had two choices. He had two investigations that were going on. One was these payouts to Stormy Daniels, Karen McDougal, whatever. And the other was about the Trump organization itself. And it’s—

 Jon: The inflating of its values when it—

David: —the inflating of its values, and the tax consequences and this prosecutor took one and got rid of the other, the one that was more replicable maybe to other businesses.

Jon: Right.

David: Where you could have set a precedent.

Jon: And someone, by the way, has gone to jail in both cases. 

David: Yeah. Mm-hmm. 

Jon: Weisselberg went to jail. 

David: Yeah. 

Jon: In the one that you’re talking about in terms of financial improprieties someone went to jail in terms of the things, everyone around this cat, his lawyer, his campaign manager, his accountant. I mean, I think he might be a narc. [LAUGHTER] I think he’s the one that’s, he might be entrapping these poor people and getting them to commit crimes. He might be the guy who’s actually an FBI informant. 

Phillip: Yeah, I mean I gotta quote Nas, “how can a kingpin squeal though,” right? [JON LAUGHS] Like, he can’t be the narc if he’s the CEO. It doesn’t work quite that way. 

David: I don’t know. I went to a chat room and a guy online told me that he’s doing this whole child,, sex abuse ring and he’s gonna round them up any day now.

Jon: So the storm is coming. You’re saying that this is all, it’s all part of the eight dimensional chess. 

David: So your idea would be in line with that, he is a master crime fighter.

Jon: Yes.

David: By, starting with his own organization and all the corrupt people within it. 

Jon: I’m gonna take you guys out outside of sort of the realm of nerdy discussions of what the actual crime, you know, white collar crimes and corruptions are, and ask you both: Is there a better system, and, and my anger happens to fall upon the media, where these kinds of things can be held accountable rather than 24 hours of a 7/11 security footage, outside of Mar-a-Lago, as we await a man driving to the airport, which I can never get enough of watching people driving to the airport. But what if the media was focused viscerally, angrily on the things that you’re both talking about. On implementing and educating their audience on how this all comes to be. And what the context is. Couldn’t that do something? Please say yes.

David: [DAVID LAUGHS] I mean, that’s why I talk about this in the context as kind of like a peacock prosecution. One of the good, I think, models for it is remember the guy who they called the pharma broMartin Shkreli? 

Jon: Yes. 

David: Who was rounding up, patents on very you know, what they call orphan drugs that don’t affect a lot of people. 

Jon: And jacking the price.

David: And jacking up the price. And he was brought to prosecution and jailed for what they called securities fraud. It wasn’t for that, what I just described it was that somehow, he defrauded investors in the process.

Jon: I thought he was jailed for keeping WuTang from the people. 

David: [DAVID LAUGHS] Well, there’s also that aspect. 

Jon: That’s what I thought had happened. 

David: But here’s the point. In the years since Shkreli did that and then went to jail for related and associated crimes, the entire system of the pharmaceutical industry has essentially adopted that practice. Of using their patent authority to jack up prices, to whatever they saw fit. He was a useful object that could be focused upon because he was kind of a d**k, to turn everyone’s attention away from the actual adoption of those crimes. The systemic crimes happening below him. 

Jon: Right. 

David: And I think this is a very similar aspect. So the question is, you know, what could the media do? It illuminates that very ordinary run-of-the-mill every day, set of crimes that we live within, and meander through. And uh–

Jon: And be relentless. Be as relentless as the system forces it to be, Phil. 

Phillip: Yeah, I wish I could agree. So, first of all, if we had a media that did that, it would be banned in Florida. [LAUGHTER] So there, there’s limited utility in terms of fifty states. 

Jon: Alright.

Phillip: There’s limited utility in terms of fifty states.

Jon: Alright it doesn’t have to go everywhere. I’m not saying go everywhere with it.

Phillip: So, I gotta say, media we love to blame media for these sets of things. We want better media. We need better media, but media can’t be an education system. And media is not a substitute for the way that power structures work, right? So we think about education as its own thing, but it wasn’t always its own thing. Like you go to school to get a certain set of skills so you can work certain sets of jobs. And in some cases, the way we set up education systems actually in increases class stratification and income stratification. It’s not a great equalizer. It should be, it can be. We utilize the genius of the nation better when it’s equally distributed, but we know we don’t do that s***. Right. 

Jon: Mm-hmm. 

Phillip: So that’s not just because the education system fails and our teachers are terrible. No, no. That’s not what’s going on. 

Jon: Right. 

Phillip: We’ve got muddied interest that say we wanna keep this education system this way. We want elite status so our kids can be, have reserved rooms in the buildings that are named after us, after we’ve made our billions. It’s a more complex system than that. 

Jon: Mm-hmm. 

Phillip: And we need a deeper education to be able to have media matter in order to get there. So what I’m saying is if we had daily coverage of the petty thefts that rich people pull in vulnerable neighborhoods every day.

Jon: Mm-hmm. 

Phillip: Sure, that would help if we had narratives that people and a basic understanding that people had walking into watching the news. But we don’t. So when I talk about structural racism in my classroom at Yale, which allegedly has some of the brightest minds in the country, and my students are fantastic, it’s not a dig against them. They walk in, they say, “Well, cool, but what’s the structure?” And they’re not asking that sarcastically. They say like, “Well, who is the structure? Who do I hold accountable? How do I think about this?” 

Jon: Mm-hmm. 

Phillip: They show up to college without the tools to hold systems in their head. And what I’m saying is there are reasons why our education system doesn’t teach that we are seeing it play out, not just in Florida, though, that’s a useful idiot kind of example.

Jon: Mm-hmm. 

Phillip: We’re seeing that play out all over the country as we’re banning books, folks have a motivation. Let me backup a second. [JON LAUGHS] I’m at the end of a roll. 

Jon: No, no baby. Come on, Take us home. 

Phillip: If we wanna talk about how we get, we move through this. We’re talking about the fundamentals of what holds a society together. That’s the social contract. 

Jon: And the fundamentals of what holds a society accountable for those exploitations that’s what we’re talking about.

Phillip: So the thing, if you violate the social contract, there has to be consequences. That’s the rationale for any kind of, punitive that’s for a criminal justice system, right?

Jon: Mm-hmm. 

Phillip: The social contract says there’s some rules we gonna live by. Charles Mills comes along, he writes this book, which is the only pithy piece of philosophy ever called, “The Racial Contract.” And he says “the racial contract is mimeographed underneath the social contract.” It says “that there are some people who get the full benefits and some people who don’t and we’re gonna decide that based on race and what is required for us to have a two-tiered system is first you just divide the stuff up.” That’s the political contract. Some people have more and some people have less. Second, the people who have more have to have a moral authority. They gotta be good guys.

Jon: Mm-hmm. 

Phillip: Because if they’re bad guys, the people on the bottom rise up. So how do you have the people with more also being good guys? He refers to that as the third pillar of the racial contract. He calls that “epistemologies of ignorance.” And what he means is you didn’t wanna know that s*** in the first place. And you didn’t wanna know that s*** in the first place is I am motivated to make sure you don’t learn or have collective language for what’s actually happening. It’s why we need lawyers to understand contracts. 

Jon: Right. 

Phillip: Right. It’s why we need economists to understand the economy. So you understand what I’m saying.

Jon: If I could boil this Phil, it’s this Apple doesn’t really need, when you’re buying a let’s say something from iTunes to have a 20 page terms of service thing that you’re supposed to read through. These things are purposefully obtuse. So that understanding and digesting is a much more difficult operation. Therefore ignorance allows for possibility when it comes to those that control the systems. If you don’t know what’s going on and you can’t possibly figure it out through that credit card statement that they send to you, which is 30 pages long, when what it really should just say is don’t buy such expensive t-shirts or whatever it is that says you can’t get to the bottom of it. But I’ll ask you this, Phil and I truly mean this, this system requires more than just entrenched poverty amongst black people. 

Phillip: That’s right. 

Jon: This system requires entrenched poverty amongst white people too. It requires a large underclass, and something is in the way of those groups being able to join together as well. And what’s so interesting about it now is, that entrenched poverty class of, let’s call them non-black and brown people, are the exact ones being activated by this new populist rhetoric.

Phillip: That’s exactly right. Because going back to Nixon, Nixon said, “You know what, we about to have a problem because poor people like unions because unions give them things that they need to survive.” 

Jon: Right.

Phillip: “And educated people don’t like us because they have figured out our game. We need to segregate the white poor folks from everybody else. Cuz if the white poor folks get together with the black and brown poor folks and the educator folks—

Jon: We’re gonna have a problem.

Phillip:—we’re gonna be left with nothing.” He called that “the southern strategy.” And it has been absolutely both intentionally and unintentionally, the plan on the political right in this country, ever f***ing since. 

Jon: Wow. 

Phillip: That’s what I mean by epistemologies of ignorance. They don’t want folks to know, and it’s those people in particular, they don’t want to know.

Jon: Right.

David: I think it’s important to add to this conversation that in the context of this sort of right wing populism and what’s activates it, is that this lack of elite accountability is what led to the rise of Donald Trump. It’s a rot at the heart of our democracy. If you can’t have a situation where someone who’s powerful or well connected ever gets held accountable, you’re gonna look to other solutions to the pressing problems that you have. 

Jon: Explanations for your powerlessness.

David: Exactly and it’s gonna lead to demagoguery. And when you look at this and think about, you know, causes and then solutions, you have to look at this culture of letting off people who engage in these systemic crimes. 

Jon: Mm-hmm. 

David: As part the biggest part in my view of the problem and what we need to counteract, not with better education around it, but with the political will to actually go after these people. Now I mean, it is interesting that we’ve seen this SEC really try to take down the web of fraud in crypto. 

Jon: Right, but so far all they’ve gotten is like, they’ve gotten Kim Kardashian to pay a fine. Like they’re not, you know it’s always, talk about peacock prosecutions.

David: That’s the FB SBF guy, right? It is interesting that there is, you know, you remember the Wells Fargo fake account scandal? 

Jon: Sure.

David: Where they had millions of accounts created behind the backs of folks Carrie Tolstedt, who ran that consumer banking operation at Wells Fargo is going to jail. She lied to the FBI, which is what you just can’t do. 

Jon: Right. Um, and the one thing that you get ’em on. 

David: Yeah, exactly. And so it’s good to see these one-offs, but it’s not a culture that’s been created of elite accountability, and that is what causes people to take to the streets. It’s what causes people to listen to people who say, I have the solution to all this. And it’s very integrated into the sort of right wing populism that you’re talking about.

Jon: Right.

David: These people are untouchable, they are globalists. But when all that is exposed as the music man, as fraud. And as a reality distortion field it’s gonna be a hard crash and, and it always is. Gentlemen, my goodness. I could sit here talking to you guys all day for God’s sakes. David Dayen, executive editor of the American Prospect, Dr. Phillip Atiba Goff, Phil, co-founder and CEO, Center for Policy Equity, the chair [INAUDIBLE] Yale. [LAUGHTER] I’m just gonna say Yale. Teaches at Yale, for God’s sakes. Get yourself up there, get a slice of pizza and go listen to him talk cuz he’s brilliant, Jesus. Guys, thank you so much and I hope to talk to you guys again real soon. Always a pleasure. 

David: Thank you. 

Phillip: Thank you, Jon. 

Jon: Bye.


Jon: So that’s it guys. Please tune into the show on Apple TV+ The Problem. And also we’re taking a little bit of a break on the podcast. We’ll be back, I don’t know exactly when, but not too long. I’ll be dropping a few in there, here and there because I get very lonely. Anyway, see you soon. Bye-Bye. 


Jon: “The Problem with Jon Stewart Podcast” is an Apple TV+ podcast and a joint Busboy Production.