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Preet Bharara

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Pivot

Monopoly Isn't A Game (with Lina Khan) - Stay Tuned with Preet

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But I will note for the record that when you're a law student and you write something that's important or not, it's called a note. When you're a law professor, it's called an article. So I just want to put that little piece of business beside.

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Monopoly Isn't A Game (with Lina Khan) - Stay Tuned with Preet

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As I understand it, the thesis of the article, the note, was in part that ordinarily, when we're thinking about what is good or bad with respect to monopoly power, as you were saying a few minutes ago, one of the things you look at is consumer welfare, right? And whether or not consumers are being helped or undermined in various ways, including with respect to price.

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So if one measure of monopoly power, as you were describing a few minutes ago, is the ability to, with impunity, increase prices such that people are at the mercy of those price increases, that indicates monopoly power. And one of the things you say is, well, in the modern world, especially as epitomized by Amazon, prices are low and they have the ability to keep prices low.

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And so this focus on consumer welfare, defined in part as a focus on price, doesn't actually uncover the monopolistic power of a big company like Amazon, which has other features that it can take advantage of and actions that it can engage in, including predatory pricing.

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And you mentioned, I will say, in various places, a company near and dear to my own heart, my brother and his best friend from high school started Diapers.com, which was the subject of a lot of discussion recently. and angst in my family and also in the public at large because Amazon was engaging in a certain price tactic with respect to diapers.com.

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Anyway, that's a very long-winded, probably imperfect summary of your article. How did you come to think about it that way and why was that such a revelation?

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So what's interesting to me is, you know, Amazon began as nothing, right? It was an idea in a guy's head of relatively recent vintage. I don't know the exact year in which it started. And it very quickly got to the point that you're describing.

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And as you wrote in, I guess, a parallel New York Times piece in 2017, talking about Amazon, quote, in building this vast empire, Amazon chased growth over paying dividends pricing key goods and services below cost to chase out competitors. It invested heavily to buy out innovators like Diapers.com, my brother's company.

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After waging price wars, Amazon followed its acquisition by raising prices, end quote. You know, at the time, is there some argument that if you had the foresight to chase growth at the expense of paying dividends and if the market, the capital markets like that, and wanted to invest in your company. Because not everyone thought it was going to be a winning bet.

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I am old enough to remember lots and lots of people thought this was a losing proposition, ultimately, and that Amazon was overpriced and Amazon would fail because all it was doing was losing money and not making a profit as it added products and services and goods to its lineup.

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Is there some argument that they didn't cheat and steal to do that and they deserve a place of dominance by chasing growth over paying dividends? And that was a smart, innovative way to think about building a company? Or is that totally absurd?

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I mean, how do you square that with the fact, if you go back to the classic way of looking at consumer harm and consumer conditions, that I, like many, many other people, when I have my druthers, I order from Amazon. Right. So you're talking about particular ways in which the government has alleged they've engaged in anti-competitive practices.

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But if you're a bread-and-butter consumer just buying random stuff for your house or for your office, and you have low prices and you have immediate delivery and good customer satisfaction— And the company has not taken advantage of those things that you're describing with respect to the bread and butter consumer of stuff. Does that not matter? Is that not a point in their favor?

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Or is part of the issue, well, at any moment, they can do something deleterious even in that landscape? I'm not sure how to think about how that thing, which is a net good, which you argued is maybe too much the focus, but it still should be some focus or not the focus or of even focus. How do you think about that?

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I'll be right back with Lina Khan after this.

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Monopoly Isn't A Game (with Lina Khan) - Stay Tuned with Preet

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I think one of your criticisms of monopoly power is that ultimately innovation gets stifled there because you have monopoly power and you don't have to innovate because you have a huge set of customers or clients or buyers or whatever the market would call you. And I think you have given examples of cases, maybe you can give some examples for us here where, and you talk about AI, for example,

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You can have somebody or a company in a place of complete dominance, but then some other innovative technology is overlooked or bypassed or given short shrift, and then this other thing happens. What's confusing about that is some people might take that as an admission that monopolies don't last forever, even without involvement and interference from the government.

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That even the most dominant figure is ultimately, the pejorative you can apply to that is they're ultimately not going to innovate and someone else will. And that will naturally reduce the non-innovators market power and become less monopolistic. Is that fair or not?

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How does monopoly power shape innovation and competition? Former FTC Chair Lina Khan joins me to discuss. Lina Khan, welcome to the show. It's really an honor to have you.

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Yeah, I guess all I'm saying is maybe this is a silly point, and maybe it's not a good point, that monopolists are not immortal, even in the absence of enforcement. Is that fair? Yeah. Are there natural reasons in the life cycle of a company that becomes a monopolist, not enforcement-based, but natural, ultimately, over time, competitive reasons why a monopolist falls off their pedestal?

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So this seems an odd thing to ask, given your relative youth. How's retirement?

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And if that's so, I mean, I don't know, maybe that's an argument that the Chicago folks make, that ultimately, the market, in certain circumstances, not every circumstance, is able to right itself, because otherwise, You would predict that once you achieve monopoly power, you persist in that monopoly power position in eternity, but that doesn't happen. Why doesn't that happen?

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Is there such a thing as a perfectly lawfully operating and lawfully achievable monopoly status? We're talking a lot, obviously, given the job that you had about companies engaging in monopolistic behavior and predatory pricing and all of that. And maybe there's not an example of this because naturally people engage in conduct that can be characterized that way.

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But are there or have there been examples of companies that just got to that status just by doing things well and better than everybody else and innovating better than everybody else and not running afoul either legally or in principle of anti-monopolistic thinking?

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It's not relaxing. Are you teaching antitrust law to your two-year-old?

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Yeah. Look, this is not my main expertise as a lawyer, but I just wonder if the theory is that a company can't really attain and persist in being a monopoly absent some conferral of a benefit or a license by the government or absent some nefarious conduct because the market will always topple that kind of monopolist.

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So obviously your tenure was not without controversy. And I mentioned a set of strange bedfellows that was not only supportive of your work, but supportive of you. And as always happens, I used to be an enforcer of a different type.

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The one kind of work that we didn't do in the Southern District of New York and that we deferred to the main justice on, the only area we deferred to main justice on, even in our own district, was antitrust enforcement, preceded my time there. Is there a particular criticism or category of criticism that you took more seriously than others, even if you disagreed with it?

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Do you have a view of the president's firing of the two democratically appointed commissioners and the legality of that and how that'll play out?

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Yes, now I've exhausted all my knowledge of— buzzwords in antitrust law. So he'll ask you to explain some things. So I want to get into your biography, how you got to where you got relatively quickly in life and talk about your views on antitrust enforcement for a lay audience. But let me start with this, and I'm sure this is how some people come at you.

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What do you think of the new chair and how do you think that this reconstituted, partly constituted FTC will handle issues and what their priorities will be for the next three and a half years?

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You were obviously a very high profile chair of the FTC and And in any government role, I had a government role for a long time, there are detractors and there are supporters. And often in our current sort of tribal environment, you can guess in advance who the supporter will be and who the detractor will be. They line up sort of tribally.

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Teddy Roosevelt is on your brain. I've been very generous with your time, Lina Khan. It's been a real pleasure to speak with you. Thanks so much.

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My conversation with Lina Khan continues for members of the Cafe Insider community. In the bonus for insiders, we discuss how companies grow into monopolies.

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To try out the membership, head to cafe.com slash insider. Again, that's cafe.com slash insider. Stay tuned. After the break, I'll answer your questions about the proper qualifications to become Surgeon General, Kid Rock's restaurant, and Bruce Springsteen. Now let's get to your questions.

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This question comes in a tweet from Lillian who asks, how can someone be nominated to be Surgeon General with no medical license? And the record will reflect that the question has three question marks. Thanks for the question, Lillian. You're referring, of course, to the controversial appointment of Dr. Casey Means to be Surgeon General.

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After Means' appointment was announced, the internet, as it is wont to do, exploded with articles dissecting whether she is eligible for the role. So, it's a good question. But first, let's take a look at what the Surgeon General actually does. Most of us know the Surgeon General from health warnings on products like cigarettes, but the position encompasses far more than that, though not surgery.

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The Surgeon General technically serves as the operational leader of what's called the U.S. Public Health Service Commissioned Corps, one of America's eight uniformed services. Its primary mission is to protect, promote, and advance public health and safety across the country.

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Their responsibilities include things like providing health care to medically underserved communities, preventing and controlling diseases, and ensuring the safety and effectiveness of drugs and medical devices, just to name a few. In prior episodes of Stay Tuned, if you've listened, you know that we've discussed appointed positions like the Attorney General and Supreme Court Justice.

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Under the laws that authorize those appointments, there are no specific professional qualifications required, which may seem odd. But the Surgeon General is different. There, the law actually outlines the qualifications an appointee must meet.

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But if I said, what do the following people have in common? Alexandria Ocasio-Cortez, Elizabeth Warren, the senator from Massachusetts, J.D. Vance, and Matt Gaetz. What would they all have in common that would cause me to ask you that question, Lena?

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The law states, quote, the Surgeon General shall be appointed from individuals who, one, are members of the regular corps, and two, have specialized training or significant experience in public health programs, end quote. So to go to your actual question, does Dr. Casey Means meet those qualifications? Well, let's see. Dr. Means arguably has an unconventional medical background.

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According to NPR, she earned her medical degree from Stanford University, but left her surgical residency partway through, citing among other things her disillusionment with mainstream medicine. She went on to open a functional medicine practice, a form of alternative medicine, and later co-founded a company called Levels, which focuses on continuous glucose monitoring.

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So, although she didn't complete her residency, she did complete enough postgraduate training to qualify for a medical license in the state of Oregon. However, according to public records, that license is at this moment, while her nomination is pending, inactive.

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So does Dr. Means meet the first legal requirement, being a member of the regular corps, the formal name for the Public Health Service Commissioned Corps, which the Surgeon General is supposed to oversee? Now, in the past, some Surgeon General appointees were not already members of the corps, but they used a workaround.

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They were first appointed to the corps just before being named Surgeon General. But that loophole may not work in Dr. Means' case. To be appointed to the regular corps, and to even utilize the loophole, you need a valid medical license. And Dr. Means' license in Oregon, as I mentioned, is currently inactive and needs to be renewed, which can sometimes take a while.

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And does she meet the second requirement, requiring specialized training or significant experience in public health programs? Well, she does have a medical degree, and she does have experience running a functional medicine practice. But is that enough? Well, I'm a lawyer, not a physician, but some physicians, including former Surgeons General, have said it's not enough.

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So based on the law and past precedent, unless Dr. Means can demonstrate sufficient public health experience and probably quickly renew her medical license, she probably doesn't meet the qualifications to serve as Surgeon General. But will the Trump White House try to push the nomination through anyway? That remains to be seen. Stay tuned.

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This question comes in an email from Rick, who writes, Last weekend, Kid Rock temporarily shut down his Nashville steakhouse because many of his workers are undocumented and didn't show up for work because they were scared of ICE raids. But why is law enforcement targeting the undocumented workers and not their employers? Shouldn't they be held accountable?

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Isn't it illegal to hire undocumented workers? That's a great question, Rick, and I want to state at the outset that Nashville has become one of my favorite cities in the country, and I've actually been, briefly, briefly, to Kid Rock's restaurant.

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So in any event, I believe you're referring to a recent report in the Nashville scene about a wave of temporary restaurant closures across that city due to fears of ICE raids. One of the most notable was Kid Rock's restaurant, which is, of course, called Kid Rock's Big Ass Honky Tonk Rock and Roll Steakhouse.

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It reportedly shut down last Saturday, typically its busiest night, because many of its workers who were undocumented stayed home out of fear of being detained. Interestingly, the article makes no mention of ICE investigating the owners or management of the restaurants for hiring undocumented workers in the first place, which is probably what sparked your question.

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So, Rick, if you take a look across presidential administrations, different presidents have approached illegal immigration enforcement in different ways. Some have focused primarily on punishing undocumented immigrants themselves, believing it would deter others from entering illegally.

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Others have emphasized targeting employers, arguing that holding businesses accountable for hiring undocumented workers would be more effective and also be a deterrent, because if there are no jobs available, immigrants would lose the main incentive to come here illegally.

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Or three. From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I'm Preet Bharara.

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Now, George W. Bush's administration focused primarily on the immigrants, conducting numerous workplace raids aimed at arresting and deporting undocumented workers. The Obama administration took a very different approach.

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Obama's team moved away from workplace raids, instead opting for what they called paper raids, which were audits of employer paperwork to verify compliance with employment eligibility laws. Under Obama, the number of physical workplace raids dropped sharply, while paperwork audits increased significantly. These audits resulted in consequences for employers.

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One paperwork raid led to a $1 million fine against Abercrombie & Fitch for failing to properly verify their employees' eligibility. The Biden administration continued in the same vein. Now, Donald Trump's two administrations, on the other hand, took the George W. Bush's policy of workplace raids and turned them up to 11.

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Trump is focused primarily on immigrant workers rather than employers, often conducting highly publicized, attention-grabbing operations, like the ones we've recently seen making headlines, including in the Nashville scene. So Rick, to answer your original question, yes, the law clearly allows for punishing employers who hire undocumented workers, and that's been done in the past.

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Right. And just to put a point on it, because you're modest in your answer, supportive of your work and particularly supportive of you, which is an unusual thing to see from that spectrum of folks. Do you think that antitrust enforcement naturally falls along ideological lines or the fact that you have this strange set of bedfellows indicate that that's not the case or shouldn't be the case?

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However, I doubt that this administration plans to aggressively pursue those penalties, and I think even less likely against Kid Rock, given his vocal support of Donald Trump. By the way, what did Kid Rock have to say about this story? Kid Rock himself responded by saying, quote, I 100% support getting illegal criminals out of our country, no matter where they are, end quote.

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So, you know, one might be able to say to Kid Rock, listen, it was your restaurant's management who chose to hire those quote-unquote illegal criminals to work in your kitchen and might have broken the law when it did so. And you could also ask him, when will you hold those people accountable since the restaurant has your name on it?

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This question comes in a tweet from Hannah, who asks, Can you please break down Trump's latest rant about Bruce Springsteen? Hashtag AskPreet.

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Well, Hannah, based on the timing of your tweet, because there have been a couple of things that Trump has said about Bruce Springsteen, but based on the timing of your tweet, I assume you're referring to Trump's post on Truth Social, where he called Bruce Springsteen things like highly overrated, a pushy, obnoxious jerk, and a dried-out prune of a rocker. My response is this.

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Who are you calling a dried-out prune, you f***? Let me say also, compared to Bruce Springsteen, you're a f***. And finally... Now, more seriously than childish name-calling, after you tweeted this, Hannah, Donald Trump put out a post that says he wants to order a major investigation at Bruce Springsteen for reasons that don't make much sense.

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If you want to hear a substantive conversation about that threat, that crazy threat by the President of the United States against the boss, Joyce Vance and I did a live stream for Substack, which you can find for free on Substack or on our YouTube page. Well, that's it for this episode of Stay Tuned. Thanks again to my guest, Lina Khan.

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If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet. You can also now reach me on Blue Sky, or you can call and leave me a message at 833-997-7338. That's 833-99-PREET.

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Or you can send an email to lettersatcafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noah Azoulay and Jake Kaplan. The associate producer is Claudia Hernandez.

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And the cafe team is Matthew Billy, Nat Wiener, and Leanna Greenway. Our music is by Andrew Dost. I'm your host, Preet Bharara. As always, stay tuned.

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So where do you think we are today at this moment?

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Does aggressive antitrust enforcement fall comfortably within a populist ideology in government?

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It was fine. The anti-monopolist says it was fine.

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Do you think it's like gaming propaganda? Do you think we should eliminate? Obviously, you're not a censor, but I know it's a semi-serious question. Do we teach the wrong things about money and concentrations of power in this country?

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That's Lina Khan. She made history in 2021 when President Biden appointed her as the youngest ever chair of the Federal Trade Commission at age 32. During her time at the FTC, Khan accused big companies of using their power to push out competitors and hurt small businesses.

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As a matter of political rhetoric, when people oppose antitrust enforcement, and when you say as an antitrust enforcer that monopolies are not good, they're not good for the mass of people for various reasons, and we'll get into that in a moment, the people on the other side don't say we love monopolies, right? Nobody goes forth and waves the banner of monopoly happily, right?

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Today, Lina Khan joins me to discuss the influential paper she wrote in law school that launched her into the spotlight and paved her path to the FTC. We'll also explore the nature of fair competition, what she says defines a monopoly, and some of Khan's key cases.

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Can we define a term which is difficult in antitrust law? What is a monopoly? How do you define a monopoly? And how should lay people understand what a monopoly is?

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I want to talk about Amazon because Amazon looms large in your origin story as well. So in 2017, you wrote what people call an article in the Yale Law Journal that had quite a response. Amazon's antitrust paradox.

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Later in the show, I'll answer your questions about the proper qualifications for Surgeon General, Kid Rock's restaurant, and Bruce Springsteen. That's coming up. Stay tuned.

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For people who are not from or of law school, I will note for them that even though in the popular press your piece is called an article, it is in fact among law students and lawyers called a note. Because you were just a law student at the time, and obviously not just a law student, but thinking about these big issues.

Prof G Markets

Tariff Chaos & Trading on Inequality — ft. Gary Stevenson

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What does it really mean to interpret the Constitution in a country that's constantly changing? No judge decides a case based on the temperature of the day. Every judge, however, is aware of the climate of the season. I'm Preet Bharara, and this week on Stay Tuned, I'm joined by Justice Stephen Breyer.

Prof G Markets

Tariff Chaos & Trading on Inequality — ft. Gary Stevenson

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We get into how judges make sense of the law in a politically charged time and what that says about the values and pressures shaping today's Supreme Court. The episode is out now. Search and follow Stay Tuned with Preet wherever you get your podcasts.

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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I have to apologize, given that introduction, that I'm not in my usual barrister uniform. I'm a little casual today.

Raging Moderates with Scott Galloway and Jessica Tarlov

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Yeah. If and when you should call upon me for my legal duties, I will have the proper attire.

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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Perfect for 2025. There you go.

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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So a couple of prefatory things. It depends on what you're talking about. It depends on what the conduct is. It depends on what an investigation reveals.

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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I was just thinking as you were speaking literally about black sites, there was a lot of debate after the second Bush administration about whether or not people who were acting on orders, literally to take people to black sites, whether CIA officers should be subject to investigation

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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And prosecution and Barack Obama, you know, Democrat, liberal, decided in consultation with his aides that that would not be an appropriate use of the Justice Department's resources. And people can debate that and go back and forth on that. There's not a profoundly deep history in recent times of doing that sort of thing. The other thing I'd point out, it sounds like...

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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from what you were postulating in your question is something that's going to take place in three and a half years. Something that would take place in a future administration that doesn't do a lot to solve the violations of not just norms and not just regulations, but statutes that may be going on.

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The third thing I would say is, to the extent people want accountability and fairness and the rule of law to be back in the seat, That's all well and good. I will say that to the extent people are thinking about that, as some people listening to this might be, as a political strategy, that has been not borne out, right? Donald Trump was, in fact, subjected to multiple criminal investigations.

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He was subjected to two impeachments. And it didn't stop him politically. So I guess it depends on, you know, if we're talking about proper rule of law accountability, that's one thing, which would be not for a while. And we can talk about the particulars of that. But the idea that there are some parties now, given the Justice Department, that's in the full control position.

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more than it's ever been in the hands of a sitting president, those things are not viable for a while. And as a political matter, they can backfire, as I think there's a decent argument that they did with respect to the prosecutions of Donald Trump, even the one that was completed and successful by the Manhattan DA's office. So have I—is that enough cold water? Let me just— Scott's depressed.

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Yeah, but like, you know, hope springs eternal. I will say also just a couple more things. One, people should stand up for the rule of law and call out potential violations and transgressions where they see them. Point one is these guys act like they're always going to be in power.

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They act like there's never going to be a next administration, and it's certainly not going to be a democratic administration. And that is just not so. We'll see what happens in 2028. But there is a, you know, mathematically speaking, a 50% chance that he succeeded by a Democratic administration. And all the precedents that he has set and his people have set for the threshold and the standard

Raging Moderates with Scott Galloway and Jessica Tarlov

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for not just prosecuting, but opening up a difficult and aggressive investigation are fair game for the other side, right? I'm not saying that there should be a tit-for-tat and that if there was over-aggressive weaponization of the Justice Department, that the next folks should do the same thing.

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But, you know, people are human beings and people might want to do that, and that's a distinct possibility. If you look at the standard set by the Trump administration, For when they see fit to send FBI agents or ICE agents or Secret Service agents to someone's door and look at someone, whether it's Ed Martin, the departing U.S.

Raging Moderates with Scott Galloway and Jessica Tarlov

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attorney in the District of Columbia, or a cabinet secretary, you know, a cabinet-level position. like DNI Tulsi Gabbard, the way they're talking about what prompts a criminal investigation, and more than that, what prompts a declaration that someone is guilty before being investigated, before being charged, and before being convicted, is quite low.

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I mean, just take a look at the example of, since we're in the wake of the controversy over former FBI Director Jim Cohn.

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Seashellgate. Yeah. That's a great name. I hadn't thought of that.

Raging Moderates with Scott Galloway and Jessica Tarlov

Biden’s Cancer Diagnosis

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Thank you. Was it a dumb thing to do? Should he have thought better of it? Should he have been aware of the fact that some people would interpret 86 to mean something other than, you know, get rid of somebody who's in public office? Sure. But you had Tulsi Gabbard, who is a Senate-confirmed, considerably important, powerful person in the Trump administration.

Raging Moderates with Scott Galloway and Jessica Tarlov

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who says outright, based on that ambiguous Instagram post, that Jim Comey must not only be investigated, but has already declared and decided that he should be imprisoned and should go to jail, you know, tells you what their standards are. And if that's the standard for investigation, they're a whole host of people already.

Raging Moderates with Scott Galloway and Jessica Tarlov

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And I'd be willing to bet a lot of money, if not all my money, that there'll be further targets on the other side, on the Trump side. who have said and done things that constitute less ambiguous threats. Trump himself has used violent imagery, violent language.

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Donald Trump's son has used violent imagery and language with respect to, among other people, Nancy Pelosi's husband, who was brutally beaten within an inch of his life. You have other supporters of Donald Trump who have themselves used the 86th term with respect to Joe Biden. So what's fair for one is fair for the other.

Raging Moderates with Scott Galloway and Jessica Tarlov

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And so I don't see a problem with people raising the specter of that, given the low, low standard that's being set for investigation and prosecution by the Trump folks.

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But if you're calling right now, I'm busy. I'm already here.

Raging Moderates with Scott Galloway and Jessica Tarlov

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Take advantage.

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I think pretty good, but it depends on how you're grading them. It's like saying a math teacher is holding ground by telling a student that 2 plus 2 does not equal 5, right? Yeah, we should applaud that. In an Orwellian environment in which there are schoolteachers teaching and accepting an answer of 5 being the sum of 2 plus 2, judges saying otherwise are doing a great job, and it's important.

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But let's not lose sight of the fact that we're in a crazy time when people have to explain that. We're at a crazy time when the Supreme Court that's loaded with conservatives, three of whom have been appointed by Trump himself, have decided, you know, literally, not so fast, if you're going to deport someone, you've got to look at what the law says.

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And Supreme Court case after Supreme Court case has interpreted the Constitution to mean there's got to be some due process. It doesn't have to be a full-blown trial like we're being scared with, but some due process to make sure that you've got the right person And the person is deportable and is deportable to the place where you're saying, and it's got to be more than 24 hours.

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So, you know, that I think is a good sign. And I don't mean to denigrate it or downplay it at all, but it's a little bit like two plus two equals five. And it's refreshing in a black is white, fake news, up is down universe for people to say, you know, you know what? Math is math and the constitution is the constitution. It's good.

Raging Moderates with Scott Galloway and Jessica Tarlov

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Yeah. There are two sides to the coin. I still think it is the case that the massive work being done by federal prosecutors in the country and Department of Justice lawyers, whether in Washington or in the various U.S. Attorney's offices, is apolitical, continues apace, whether it's violent crime prosecutions or fraud prosecutions and the like.

Raging Moderates with Scott Galloway and Jessica Tarlov

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There are different priorities and emphases that Pam Bondi has put forward in various memos since she started, but The bread and butter of the office is probably the same.

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Now, with respect to certain fraught prosecutions and investigations that get a lot of outsized attention, like of people who are or may be in the president's ambit or who are elected officials, maybe it's a little bit different. And everyone can feel unhappy, even if it's not one of their cases, if they think there's a thumb on the scale or they think that people are being unduly harassed.

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I think there's a certain amount of trepidation on the part of a lot of people at the Department of Justice, but I still think that the majority of folks are just keeping their heads down and doing their job, even if they're not so thrilled at what's going on at the top.

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I think that's exactly correct. I've been saying for some time that the only logic behind, or at least one of the principal pieces of logic behind bringing completely ridiculous, stupid, unprecedented, unconstitutional, two plus two equals five claims, which is what Trump has done under the Alien Enemies Act, under these executive orders against law firms.

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And there's a whole bunch of other issues along these lines as well. They're doomed to failure. Nobody on the right or the left or the middle who is schooled in the law or wears a robe, really, with very, very, very small exceptions, think otherwise. Birthright citizenship is another that I left off the list.

Raging Moderates with Scott Galloway and Jessica Tarlov

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But the point is to have the fight, to have the political debate, and to chill the actions of other people. With the law firm executive orders, in which my firm was a subject, the point seems to be, even though every court that's addressed it has issued an immediate temporary restraining order, one court has issued a permanent injunction, it's not going to fly.

Raging Moderates with Scott Galloway and Jessica Tarlov

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It violates the First Amendment, the Fifth Amendment, the Sixth Amendment, various provisions of some of those amendments. The point is to make people think twice. Should I spend time and energy and represent a cause or a person who is adverse to the President of the United States or the President's party? That's just one example, and it goes to exactly what you were saying.

Raging Moderates with Scott Galloway and Jessica Tarlov

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If you can broadcast to the world that it may be the case that even if you're born in this country, you will not have the privileges and rights that the Constitution has said from the beginning are due and owing to you, maybe you won't come here. So they're fighting a political battle, a policy battle.

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They're trying to beat their chests and say, we don't care what the courts say up to a point, and we'll see what happens when we get to that point. We don't care. Our view is the right one. We have the army. The courts don't. And so that is going to have a chilling effect on reasonable people to do that, which they have always understood was constitutional, lawful, and proper.

Raging Moderates with Scott Galloway and Jessica Tarlov

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So I want to be careful because I am in the legal firmament. I work for a firm that did not, it's not just your phrase, it's the phrase that Donald Trump uses, which makes you more than wince if you're a practicing lawyer or if you're anyone who cares about the rule of law.

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We did not bend the knee, and I'm very proud of that fact, and I continue to work there as a partner in part because of that fact. I don't want to be impolitic or impolite about saying anything disparaging about the firms that did, in your phrase, not my phrase, in the president's phrase, not my phrase, bend the knee. You can imagine how I might think about that given my first statement.

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These are tough decisions. There's a lot of force and power on the side of the government. There's a lot of force and power on the side of the President of the United States. I think that what you have said is not outside of the mainstream of thought of people both in the legal profession and outside the legal profession.

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On its face, as has been evidenced by the court decisions that were rendered very quickly that I mentioned a minute ago, the executive orders are unlawful, unconstitutional, and I always like to add to that, un-American. They will never pass muster. They'll never be a thing in the future. It's another example of this is two plus two equals 96.

Raging Moderates with Scott Galloway and Jessica Tarlov

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And I think that the better and more correct and more righteous course, not just the right course, but the more righteous course, if we can use that word still in 2025, was to fight because these executive orders are, I don't think it's too strong a word to say, tyrannical and abusive and should not be allowed to stand. So I'm glad that my firm and some other firms are taking that approach.

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Well, kudos to your friend. I think that's important work. Look, I think we still live in America. We said before that the judges are doing a good job of holding the fort all the way up to the Supreme Court. I think it does take a little bit more courage now and resolve to do that kind of work than it may have taken before.

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And I don't think we're at the point yet where individual actions will be taken or could be taken, although, you know, check back with me in six months or 10 months. That work can continue. Certainly, it's the case that certain kinds of representations are probably less likely to be blessed and green-lighted at firms that have decided to settle with the president.

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The fear will always exist that you don't want to further upset the apple cart or upset the person at the top of the government. I mean, that's what got you in the soup in the first place, right? Like my firm.

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Once upon a time, we had as our partner someone I greatly respect, Bob Mueller, former FBI director and special counsel, and had the temerity to hire one of the great lawmen of the past century. In our office, that's the thing that put us on the wrong side of Donald Trump.

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And so there's a natural tendency for there to be a chilling effect if you're going to do things that are going to put you on the wrong side of Donald Trump. So all I can say is good luck to her and all the people who are doing that. You can't let up in the face of that kind of intimidation.

Raging Moderates with Scott Galloway and Jessica Tarlov

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Oh, gosh. I mean, obviously the rule of law stuff makes me rage. Everything we've been talking about, I speak, I try to speak in calm, measured tones, but the attacks on law firms enrage me because I'm a member of the profession and I'm an officer of the court. And it's a manipulation of, you know, the psychology of people who are not just lawyers and officers of the court, but

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but also members of businesses, right? These are not charities. And I hate the fact that Trump and his people are deviously clever enough to put people on the back foot. And again, not speaking about any particular person or entity in particular, what causes me rage is, and if this were a play or a novel,

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One of the lessons you would learn from it, that if you have someone who is as devilish and unprincipled and amoral, not just amoral, but amoral as Donald Trump, come to town... The sad truth is that he often, and we've seen this again and again and again, will often reveal the lack of courage, the lack of principle, and the lack of virtue in his rivals. And that is a fact of life.

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And if this were just a story or an allegory, that would be one thing. But I think about that a lot. His opponents are often shown to be maybe, if not as impure and unprincipled as him, but wanting, wanting.

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And that's why people who fight back and have the courage and the tenacity to fight back in this environment, like your friend and others, are to be valued and encouraged and supported more than ever before. Oh, and what do we, what should we chill out about? Yeah, you know, a lot of the dumb stuff that Trump does.

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In the first term, I tell the story about how I tweeted after Donald Trump said that the White House was a shithole or some such derogatory term. Lots of people took offense. Lots of people who were quote unquote members of the resistance said that's, you know, horrific. You shouldn't talk like that. And I posted a tweet back when Twitter had some people commenting.

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on the other side of the fence on it, that of the top 50 things we need to worry about from this president, his insult to the White House is not one of them. And in response after response after response, people said, that's not true. We can multitask. It's all important. Proportionality is a word that I've been using more lately. Attention is limited. Resources are limited.

Raging Moderates with Scott Galloway and Jessica Tarlov

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I hate the phrase pick your battles, but order your priorities. He's going to say a lot of stupid shit that can occupy five minutes of airtime. It's not worth the five minutes of airtime. Think about the kinds of things that you folks are talking about and Scott was talking about earlier.

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The rendering of people over the objection of actual judges' rulings, the distortion and disrespect of the Constitution by the people who keep pointing to the Constitution and say they revere the Constitution. They don't. Those are the things that we need to focus on and keep our eyes on.

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Thank you, sir. And you know what? Guess what? Can I plug something else? Sure. As of one week ago today, Stay Tuned with Preet is now on Substack, too, as I know lots of people are.

Raging Moderates with Scott Galloway and Jessica Tarlov

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Check us out there. Check us out everywhere.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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Some people do that. Some people do that. There are people who have been excommunicated from mainstream media. I won't name any of them. who are very polemical in their podcasts, and it serves them well in terms of audience.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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The dimension on which I wish these things were judged – It was not level of brutality or civility, although those are interesting, but good faith, right? So if there's a very, very smart person who believes something different from me and they don't bullshit about my argument, they present like as lawyers are trained to do, right? And I know Ben is a trained lawyer as well.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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And you say, I take your argument to be X or Y, and this is why your argument is full of shit. And then they say their arguments, right? And if it's done brutally or uncivilly, to me that matters less than they're engaging in the argument in good faith and from their perspective.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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I mean, I think until every human on the planet has a podcast, we haven't hit maximum growth. It's like no barrier to entry. You know, and the other thing that people, you know, since this is a business enterprise here, it's hard to make money in the podcast. Ben has been very fortunate. We've been very fortunate. There's some big name. Joe Rogan has been really, really fortunate.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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But a lot of people have really good, high-quality podcasts that focus on... a particular issue that's of interest to them and to a constituency of people. But because of the way that ads are sold and the amount of money that companies have so far that they allocate to podcasts versus television and print and radio, I think the heyday of podcasts as a business matter are still in the future.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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When I first got into podcasting, I'd never listened to a podcast before. That's how arrogant I am. I don't know how many ads the typical hour-long podcast has. I think we have like four minutes of ads. If you go beyond four minutes, people will find someone else to listen to. Listen to any kind of radio. I don't know what the number is, but it's a lot more than four minutes and they pay more.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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For whatever reason, and this is a wonderful thing, right? People love podcasts in part because they're not interrupted in the same way as talk radio is or news radio is. But that leaves a particular gap financially and economically between the model of radio and the model of podcasting.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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And I wonder if we're going to get over that at some point because that would make it more lucrative for even more people to join.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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So I'd like to say we have a moment of agreement on the eve of a new administration. Ben Shapiro and Preet Bharara agree about the power of podcasts. It's not new. We didn't have Kamala Harris or Donald Trump on our podcast this past season. Did you try to get them on? we tried to get one of those two on. I figured one of them would have been futile, and it turns out both were futile.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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So Joe Rogan and I are bonded forever in that same regard. Kamala Harris wouldn't come on either one of our podcasts, I think probably for similar reasons.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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I don't know. But back in 2020, We had a number of the Democratic primary candidates, Pete Buttigieg notably, went on a number of podcasts and obviously, as everyone knows, goes on media that does not necessarily associate itself with the liberal cause.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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I agree with Ben also that the intimacy of podcasts, the relationship that people have with the podcast host, whether it's Ben or me or you or anyone else, translates into, I think, a greater intensity of feeling and listenership Not just with the host, but whoever their guest is. And in the long form, particularly in the very, very long form, it's hard to bullshit who you are.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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Pretty much anybody can do it, whether they have half a brain or not. No offense to the legacy media on cable, but for six minutes or four minutes, if you're on a panel with other people, or three minutes, You can pretty much get away with pretending to say what you think you mean, but your staff is giving you talking points on.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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You can't do that if you're an hour with Ben, and hopefully you can't do that if you're an hour with me. And I think it gives people a better sense of who the candidate is. And if the candidate is good and allies with what the listenership, putative voters... You want to hear from a candidate about authenticity and their policy positions. Well, then that's very good.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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If you're not, then you can go in the other direction.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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It's sometimes scary to dive down to the bottom because you don't know what you'll find. You don't know what it will do to your views. That's why there's not a lot of consistency there. Among a lot of people who are in public office.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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It didn't begin that way. Like four or five years ago, people are maybe six or seven years ago, people were calling podcasting liberal talk radio. So something changed. Maybe it was Ben Shapiro.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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Copycats, I don't think, necessarily do very well. That goes against the entire grain of what we've been talking about, which is authenticity. If someone decides to try to manufacture in a laboratory, or in this case, a podcast studio, someone who sort of emulates Joe Rogan, but from the left, I mean, he'll tell you, and he has said, and people have said, there was a liberal Joe Rogan.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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It was Joe Rogan, right? I don't know that I agree with that, and I don't want people to get upset with me, but... I think different voices develop in different ways. And the other point I think that someone mentioned to me once about the difference in this business sphere, whether you're talking about cable television or podcasting, I think it's sort of similar.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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And I wonder what you think of this, either or both of you. A good friend once told me who was a high-ranking person at Fox News. He says, the thing you got to remember about Fox News and conservative outlets is They make money and have listenership and viewership when there's a Republican in the White House because they get cheerleading.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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And they get listenership and viewership when there's a Democrat in the White House because they're in opposition. And contrary to that, on the left, it seems that they get a lot of listenership and viewership when there's opposition, when there's Trump or someone like Trump in the White House. And then when they have their own guy in the White House, they kind of take it easy and they go camping.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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There's two things that I think on the liberal side, the Democratic side, and maybe some of this is relevant to the conservative side. But A, liberal hosts or center-left hosts or whatever you want to call them should not be excoriated for bringing on people who are on the opposite side of the aisle.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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And I think on the part of some platforms, there is a worry that if I bring so-and-so on, are people gonna be upset? Are they gonna cancel their subscriptions, et cetera? And also, For people who are on the left side, to go on programs, to go on podcasts where the hosts are very, very different. I mentioned Pete Buttigieg once. I'll mention him a second time. He does it with respect to Fox News.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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I believe he does it with podcasts also. We tried to get Pete on.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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It's too bad that he didn't get on. He's a smart guy. But there should be an openness. on the part of everyone on every side to have people from the other side or whatever that means, you know, the adjacent sides to come on and hear people out. But you sometimes see on social media, as soon as, you know, this podcast host has this person on, why are you platforming that person?

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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Well, that's how we get stuck in our silos. Did you try to get Kamala Harris on your show as well?

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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I think in her case, it was, I think it was, they made, I don't know, I'm not part of the campaign, I wasn't part of the campaign. They made a determination about use of time, which we can all second guess now. I don't know that it was necessarily in every case.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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Can I just say what my goal is? So I'm not quite a political podcaster. My podcast was born of my experience. Mm-hmm. And when I began podcasting in the fall of 2017, there was lots of legal news. There was a lot of news about the Mueller investigation, and I knew something about that, and it was in my wheelhouse.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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That has expanded over time to cover politics and policy issues and all sorts of other things. But I try to be myself, which is I'm not enraged. I'm not trying to enrage other people and their podcasts that do that on the left and the right, but sort of assess as the best as I can. I have a point of view. I'm an opponent of Donald Trump, a critic of Donald Trump. I was a supporter of Joe Biden.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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I was a supporter of Kamala Harris. I've always voted Democrat. I voted for – I worked for Senator Schumer. But I do, as Ben says he tries to do, look at an issue, whether it's a withdrawal from Afghanistan or a crime bill or a particular course of actions taken by the special counsel, you know, sort of calmly in an measured voice, not too quickly. make my point of view known.

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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And it's not always the point of view that other people have. It's just sort of be like a sane voice. Will I always get it right? Is my point of view the one to be taken as gospel? No, because I have a perspective and I have, you know, the kind of innate bias that everybody has. It has a perspective, but I try to call it as fair as I can see it. And I think and hope that,

The Journal.

Ben Shapiro and Preet Bharara on the ‘Podcast Election’

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for audience members who keep coming back and for those who want to check us out, that's what we bring. Not just sort of, you know, necessarily predictable views, but a calm, rational assessment of the things as we see them.

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

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You don't have the cards right now. With us, you start having cards.

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

2851.548

You're gambling with the lives of millions of people. You're gambling with World War III.

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

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Have you said thank you once?

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

2862.33

What are you saying?

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

2866.911

What if anything? What if a bomb drops on your head right now?

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

53.14

So what is the actual State of the Union?

The Prof G Pod with Scott Galloway

Raging Moderates: Trump Ditches Ukraine and Cozies Up to Putin

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I'm Preet Bharara, and this week I'm joined by historian Joanne Freeman, columnist Frank Bruni, and commentator Jonah Goldberg on my podcast, Stay Tuned with Preet. We discuss Trump's address to Congress and how the country is holding up just two months since Inauguration Day. The episode is out now. Search and follow Stay Tuned with Preet wherever you get your podcasts.

The Prof G Pod with Scott Galloway

Raging Moderates: Trump's Deportation Plans Backfire as Dems Hit Record Low

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And how far will the Supreme Court go to stop him?

The Prof G Pod with Scott Galloway

Raging Moderates: Trump's Deportation Plans Backfire as Dems Hit Record Low

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I'm Preet Bharara. And this week, constitutional law expert Kate Shaw joins me on my podcast, Stay Tuned with Preet. The episode is out now. Search and follow Stay Tuned with Preet wherever you get your podcasts.

Today, Explained

How the Abrego Garcia standoff ends

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I'm Preet Bharara, and this week, Supreme Court expert Dahlia Lithwick joins me on my podcast, Stay Tuned with Preet, to discuss the myth that the legal system will save our democracy. The episode is out now. Search and follow Stay Tuned with Preet wherever you get your podcasts.

Today, Explained

How the Abrego Garcia standoff ends

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The Supreme Court has no army. So what happens if its orders are ignored?

Today, Explained

Baby’s first gene edit

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I'm Preet Bharara, and this week, New Yorker staff writer Evan Osnos joins me on my podcast, Stay Tuned with Preet, to discuss wealth disparity, the ultra-rich, and his new book, The Haves and the Have Yachts. The episode is out now. Search and follow Stay Tuned with Preet wherever you get your podcasts.

Today, Explained

Baby’s first gene edit

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There are fewer than 1,000 billionaires in the U.S. Why do they matter so much?

Today, Explained

Is science in danger?

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So what is the actual State of the Union?

Today, Explained

Is science in danger?

23.287

I'm Preet Bharara, and this week I'm joined by historian Joanne Freeman, columnist Frank Bruni, and commentator Jonah Goldberg on my podcast, Stay Tuned with Preet. We discuss Trump's address to Congress and how the country is holding up just two months since Inauguration Day. The episode is out now. Search and follow Stay Tuned with Preet wherever you get your podcasts.