TikTok Is Still On The Chopping Block
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It's Monday, January 13th. I'm Jane Koston, and this is Water Day, the show that has become a massive fan of helicopter water drops. Did you know that helicopter water drops are low-key the coolest possible thing? Especially when big swaths of your city are on fire. And then someone in a helicopter manages to drop water on a fire at just the right time and in just the right place. That's cinema.

On today's show, Jack Smith steps down a special counsel. And Vice President-elect J.D. Vance says that maybe not all January 6th rioters deserve a pardon. Hmm. Let's start with the latest news from President-elect Donald Trump's conviction. After months of delays in proceedings, New York State Supreme Court Justice Juan Merchan finally sentenced Trump in his criminal hush money case on Friday.

Mershon ruled that Trump's conviction on 34 counts of falsifying documents must be upheld. But he didn't order the president-elect to serve any jail time on account of him being, well, the president-elect. Here he is explaining his decision in court on Friday. This court has determined that the only lawful sentence that permits entry of a judgment of conviction without encroaching upon the highest office in the land is an unconditional discharge.

Marshawn also underscored just how historic this case was. This has been a truly extraordinary case. There was unprecedented media attention, public interest, and heightened security involving various agencies. And yet, the trial was a bit of a paradox because once the courtroom doors were closed, the trial itself was no more special, unique, or extraordinary than the other 32 criminal trials that took place in this courthouse at the same exact time.

Another high-profile case was heard on Friday. The Supreme Court heard arguments over whether or not the U.S. can ban TikTok. This is the social media company's last-ditch effort to keep its market of 170 million users in the U.S. after the federal government gave it an ultimatum. Divest from its Chinese parent company ByteDance by January 19th, or shut down all operations in the country.

TikTok has been fighting the order in court for months. It denies claims that the app poses a threat to national security. Here's one of the company's lawyers, former Trump Solicitor General Noel Francisco, in court on Friday. There is nothing in the record that says that TikTok, like any other subsidiary, doesn't have its own independent-making authority.

TikTok wants the justices to put the ban on hold until after Trump's inauguration. The social media company is hoping that the president-elect will intervene and keep his promise to save the app. But Trump hasn't said anything about how he'll do it once he's in charge of the Department of Justice. So to dive into all the legal news from the weekend, I called up friend of the show Jay Willis. He's the editor-in-chief of Balls and Strikes, where he writes about the Supreme Court, the law, and culture.

Jay, welcome back to What A Day. Hey, thanks for having me. Appreciate it. So Trump was sentenced in his criminal hush money case on Friday. Justice Juan Marchand upheld the president-elect's conviction for 34 counts of falsifying documents. But Trump was not ordered to serve any jail time because he's about to be our president again. So what was the point of sentencing him anyway?

I mean, Judge Mershon in this case had already made clear that he wasn't going to sentence Trump to any sort of meaningful criminal punishment. Really, all this was was just sort of following through on the process of formalizing his conviction. And the judge made that very clear at the sentencing. He said if Trump weren't going into the White House, he wouldn't have those kinds of protections. But like, this is the best approximation of justice that the legal system can do in

in this particular consequence. So let's get into Senate confirmation hearings, which start this week. Trump has nominated some interesting people to run his Justice Department. The president-elect tapped Pam Bondi as his nominee for attorney general late last year. What's her background and what can we expect from her if she's confirmed to perhaps the most important legal position in the federal government? I mean, I think the common thread that you're seeing with all of sort of the second Trump administration at

nominees, not just the legal ones, but here talking about the Department of Justice types, their most important quality is familiarity with and loyalty to Donald Trump. Pam Bondi, she was in Florida for most of her career. She's always been like a Trump person, a Trump Republican. And I think you see the same with some of Trump's announced nominees to deputy positions in

Right.

It's pretty good hustle these days if you are a conservative lawyer to bet on the presumptive Republican nominee as a client, because if he wins, which he did, suddenly you find yourself one of the highest ranking legal officials in the executive department in the country. Are there any other Trump legal nominees or picks we should be paying attention to? I think I'm most interested in

sort of his first wave of judicial nominees. During the first Trump administration, his judicial nominees came largely from the Federalist Society, right? Like that was the grand bargain between Trump in 2016 and the conservative legal establishment. Since many of Federalist Society affiliated lawyers refused to help Trump's efforts to overturn the 2020 election, or at least not to the extent he would have liked, Trump and the Federalist Society have had a pretty public falling out

And, you know, many of the federal society judges that Trump appointed in his first term were already on the fringes of the legal right. It's pretty unsettling to understand that those people are now like too much of conservative squishes to be nominated by Trump the second time around.

So I'm very curious to see like who the first sorts of names. I think that'll tell us a lot about just how far he's willing to shift the judiciary to the right over the next two to four years. Also in the Trump legal verse is 2001's man of the year, Rudy Giuliani. He was ordered to give his assets to election workers in Georgia, who he defamed many, many times. He has not paid up. He has now been held in contempt of court twice. What's going on there?

I do not want to force too many of my readers or your listeners to try and figure out what is going on with Rudy Giuliani in like the last sort of dying star phases of his professional life.

As you say, he has continually been ordered by judges to divest his assets to the election workers he defamed. He keeps offering, you know, some sort of excuse for why he can't do it. At one point, he said that some sort of health issue prevented him from attending a legal proceeding. And the judge said, what health issue? And his response was, okay, fine, nevermind, I'll show up. Uh,

I really think the man is just trying to run out the clock, but there's no clock to run out. Like the case is over sooner or later, you know, these folks who got subject to just like vile abuse and violence are going to inherit the

several New York apartments that smell like cigar smoke. The dream. The dream for everyone. I really can't decide if I'm pulling for them or if I don't want them to have to go through that renovation process. Let's talk briefly about TikTok. The Supreme Court heard arguments over whether or not the U.S. can ban TikTok. The social media company argued that imposing a ban would violate users' right to free speech, but the justices didn't seem into it. How did the justices respond to their case?

The justices responded to the government's case like they usually do in cases like this one, which is just sort of nodding their heads solemnly at the government's assertion of the importance of national security. And that is the justification that Congress offered when it passed this TikTok ban last year, as it said, look, the Chinese government could, in theory, use TikTok to extract personal information about American users' data.

Notably, the government has not offered any evidence that like this has actually happened. Usually when you have laws like this that impose quite obviously on free speech rights, it's subject to a legal test called strict scrutiny.

which requires a compelling government interest and then a narrowly tailored solution, the least restrictive means. Basically like, look, if you're going to tread on someone's free speech rights, it has to be as close a fit as possible to the problem. Now, the compelling government interest cited here is national security, but

I think there is a wide gulf between this hypothetical danger of taking US users' data and shutting the entire platform down.

But the courts, the Supreme Court, the federal judiciary has long been pretty deferential to the government's assertions of national securities and interest. Unfortunately, some of the worst things that this country has ever done were done in the name of national security and upheld by the Supreme Court. I don't think banning TikTok quite rises to that level, but...

I would like to see a judiciary that is a little bit more skeptical, that asks for a little more information from the government whenever they say, you know, listen, this is so important for security, but we can't tell you anymore. You just have to take our word for it.

The deadline for TikTok to divest from ByteDance is about a week away. And one of the lawyers representing TikTok argued that upholding the ban on the app could open the door for the federal government to go after any company with ties to China, which isn't really surprising to me because I feel like Senator Tom Cotton dreams of that every single night while eating birthday cake, which he eats every day. Fun fact about Tom Cotton. But what are the broader implications of the Supreme Court siding with the federal government here? I mean, I think that's right. This could open the door to authorizing all sorts of

uh, the Sinophobic legislation. I also think it could go even further, right? Like if the Supreme court will uphold a law like this, what is to stop Congress from passing a law, forcing anyone they don't like to divest of a platform that they own. It's not clear to me if China is a national security threat. One could make the same argument, perhaps like in a different Congress, right? But one could make the same argument about

Elon Musk or Jeff Bezos or Mark Zuckerberg even. That is one of the primary points that skeptics of the governments here are making, which is like, look, if you have a justification for banning TikTok, you should have to share it. And the risk here is that we get a really sloppy Supreme Court opinion that leads to a lot of, in my view, negative consequences down the road.

Trump, because he decided he loves TikTok now, because maybe someone gave him a bunch of money to his campaign. Who could say? But Trump has promised to save TikTok once he assumes office. But we have no idea how he plans to do that. There has been a lot of talk about how bite tanks could sell off TikTok. They have no interest in doing so. What legal pathways are available to the president-elect and his administration to make good on his promise if TikTok is banned?

Your guess is as good as mine. He has asked the Supreme Court to step in to block the implementation of the law to allow him to save TikTok. In his briefing, he just says, you know, I'm a businessman, basically. It's the same thing that he said about everything that he's promised for the last, God, 12 years that he's been a fixture of American politics. Like, I'm a businessman. I can figure out a way to make everybody happy here, to get ByteDance to sell TikTok and

and to let the kids keep doing funny videos. Even if he has that business acumen to be able to negotiate some kind of deal, that's not really responsive to the very real problem of a specific law that requires TikTok to be sold by a specific date,

when he will not even be president yet. Like, I just don't know that there's a way around it. He's just sort of seeing if like these justices who have been inclined to give him whatever he wants over the last year or so will cook up some way to do it here too. Jay, as always, thank you so much for joining us. Hey, thanks again for having me. Appreciate it. Find me on TikTok. I'm not on TikTok. That was my conversation with Balls and Strikes editor-in-chief Jay Willis.

We'll get to more of the news in a moment, but if you like the show, make sure to subscribe, leave a five-star review on Apple Podcasts, watch us on YouTube, and share with your friends. More to come after some ads. What Today is brought to you by Delete.me. Ever wonder how much of your personal data is out there on the internet for anyone to see? More than you think. Your name, contact information, social security number, home address, even information about your family members, all being compiled by data brokers and sold online.

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And flee from the red hot chili peppers. And trust me, it's always a great hang when Woody's there. So why wait? Listen to Where Everybody Knows Your Name wherever you get your podcasts.

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Where'd she go? Book your cruise vacation to Carnival Celebration Key, a paradise you'll want to lose yourself in. Ships registering. The Bahamas and Panama. Here are some other stories we're following. Headlines.

California lawmakers are trying to calm fears that Trump could block federal aid for the deadly fires still burning in and around Los Angeles.

During a press conference Sunday, L.A. Mayor Karen Best said she'd spoken with people in the incoming administration over the weekend and had no reason to be concerned about the potential for animosity. And on NBC's Meet the Press, Governor Gavin Newsom elaborated on a letter he sent Friday inviting Trump to tour the damage. What we want to do in the spirit of an open hand, not a closed fist. He's the president-elect. I respect the office. Both Newsom and Best said they had not yet received a response from Trump.

The L.A. fires are already projected to be the most expensive natural disaster in U.S. history. But did any of that stop Trump from choosing politics over expressing anything resembling human empathy? Nope. In a post on Truth Social Sunday, Trump said, quote, The fires are still raging in L.A. The incompetent Poles have no idea how to put them out.

For context, the fires have burned an area twice the size of Manhattan. So far, 24 people have died. And more than 12,000 homes, businesses, and buildings have been destroyed or damaged. Officials expect both numbers to grow. And while firefighters made progress containing the fires over the weekend, more strong winds and dry weather are in the forecast in the coming days. That means the fires could still grow. Or new ones could pop up.

So if Donald Trump would like to come and bring his many ideas on how to stop 100 mile an hour winds from setting dry chaparral on fire, I'm all ears.

Special counsel Jack Smith resigned from his post on Friday. It wasn't a surprise. Smith has said he would step down before Trump takes office on January 20th. His resignation brings an anticlimactic end to the federal government's two criminal investigations against Trump, which Smith dropped back in November. The first was over Trump's efforts to overturn the results of the 2020 election. The other was over his mishandling of classified documents after he left office.

Smith made no statement, and his office didn't provide news outlets with any comment. His official resignation was buried in court papers filed Saturday. Attorney General Merrick Garland is still pushing to release the final report Smith submitted to the Justice Department on the two cases. A federal appeals court granted the Justice Department permission to release the part of Smith's report about election interference. The rest remains on hold after a U.S. District Court judge and Trump appointee, Eileen Cannon, temporarily blocked its release.

The election interference portion of Smith's report could be released today. We've got a lot of great nominees on the Hill this week.

As we mentioned earlier, the first Senate hearings for Donald Trump's cabinet picks are set to start this week. Alabama Republican Senator Katie Britt told CNN Sunday she's satisfied with conversations she's had with the nominees, even as some seem to be shifting their long-held beliefs with the political winds. On Tuesday, hearings start with the Department of Veterans Affairs Secretary nominee Doug Collins, followed by Defense Secretary pick Pete Hegseth, and then Interior Department nominee Doug Burgum.

Hickseth is already under fire for a sexual assault allegation and concerns over excessive drinking. And up until recently, he's been staunch in his opposition to women serving on the front lines. This is what he said on the Sean Ryan show, days before Trump announced him as his pick for defense secretary. Because I'm straight up just saying we should not have women in combat roles. It hasn't made us more effective, hasn't made us more lethal, has made fighting more complicated.

But after bumping heads with Army veteran and Iowa Republican Senator Joni Ernst, Hicks has said last month he supports all women serving in the military. Hmm. Director of National Intelligence pick Tulsi Gabbard publicly opposed a government surveillance authority as a member of Congress. On Friday, she told Punchbowl News she now supports the Section 702 surveillance program. She says that's because of updated civil liberty protections. Sure.

Gabbard was scheduled to have her hearing this week, but it was delayed after she failed to turn in all necessary vetting documents. It's yet to be rescheduled. There are a lot of people we think in the wake of January the 6th who were prosecuted unfairly. We need to rectify that. Vice President-elect J.D. Vance is pro-pardon for January 6th rioters, but not all of them. On Fox News Sunday, he specified who he thinks should get the presidential reversal.

If you protested peacefully on January the 6th and you've had Merrick Garland's Department of Justice treat you like a gang member, you should be pardoned. If you committed violence on that day, obviously you shouldn't be pardoned. Vance later said on X that he and Trump would look at each case individually. He also reminded Americans he in fact donated to the quote, January 6th Political Prisoner Fund. Trump told Meet the Press in December he would pardon the January 6th rioters on day one, saying they were prosecuted in a quote,

Very nasty system. More than 1,200 people have been convicted in connection with their actions at the Capitol in 2021. Almost 1,600 have been arrested. And that's the news. One more thing. Sucking up. It's a thing many people do in many situations. You want a better grade? You want a promotion? You could act like the normal person and just work hard or network or something. Or you suck up, and you suck up good. Which brings me to Meta CEO Mark Zuckerberg, for whom sucking up is an art form.

We talked last week about Meta changing its speech policies on its platforms. Facebook, Instagram, and for the 10 people who use it, threads. He wants to get rid of fact-checking in favor of community notes like Twitter and emphasize free expression. And I say free expression in air quotes because what is and isn't permitted by Meta seems less than free to me. For example, you can say that bisexual people or trans folks are mentally ill, but you can't say that members of a religious group are mentally ill.

Meadow will also be moving its community moderation team from California to Texas because Texas is famously not politically biased. Zuckerberg himself has visited Trump's home in Mar-a-Lago twice since the election and recently joined Joe Rogan's podcast to talk about how very mean the Biden administration was to his little baby company and also about how corporate America needs more masculine energy.

You want like feminine energy, you want masculine energy. Like I think that that's like you're gonna have parts of society that have more of one or the other. I think that that's all good. But I do think the corporate culture sort of had swung towards being this somewhat more neutered thing.

Which is interesting, because most Facebook employees are men. So yes, Mark Zuckerberg is sucking up to the incoming administration, donating to the Trump Inauguration Committee, naming prominent Republicans to big-time positions at Meta, the whole shebang. But for Zuckerberg, sucking up to powerful prominent people is a way of life. Just look at his former best friend, the government of the People's Republic of China.

Zuckerberg's efforts to suck up to the Chinese state a decade ago were legendary. Like, Mark may be trying to be Trump's new favorite tech billionaire, but as far as I know, he has yet to ask Donald Trump to give his unborn child an honorary name, as he asked President Xi Jinping back in 2015.

See, Facebook isn't permitted in China. And Mark Zuckerberg really, really, really wanted to change that. So he sucked up. He kept a copy of Xi's compiled writings and speeches on his desk and got copies for his colleagues as well, saying, quote, I want them to understand socialism with Chinese characteristics. And maybe you're thinking, but Jane, what if it's a super interesting book? Well, of

According to the New York Times, the book, quote, might make tough reading, even for Communist Party stalwarts. It's also more than 500 pages long. During a visit to Beijing in 2016, Zuckerberg went for a little jog through Tiananmen Square on a day when the Air Quality Index, or AQI, was over 300. For comparison's sake, the AQI here in LA on Wednesday afternoon, in the midst of multiple massive fires, including one just over a mile from my house that pushed thousands of people to evacuate, was 325.

And did Mark wear a mask, a super common thing to do in China on high pollution days? Of course not. On the Chinese social media site Weibo, users made it clear that the smog jog was unbelievably stupid. As one user said in response, you don't want your lungs anymore?

So yeah, Mark Zuckerberg is very experienced in sucking up to authoritarian government entities who can make his life harder or make him way, way richer. And now Donald Trump has gone from threatening Zuckerberg with life in prison as he did last summer to praising him. Fun! Before we go, to support disaster relief efforts, Vote Save America Action and Crooked Ideas have set up a fundraiser to help on-the-ground groups, including World Central Kitchen, Los Angeles Regional Food Bank, and more.

With wildfires forcing more than 100,000 people to evacuate and thick smoke blanketing the metro area, these groups are providing critical aid to those who need it most. You can make a donation today at votesaveamerica.com slash relief. That's votesaveamerica.com slash r-e-l-i-e-f. We'll also put the link in the show notes. That's all for today. If you like the show, make sure you subscribe, leave a review, celebrate firefighters you know and love, and tell your friends to listen.

And if you're into reading and not just about how firefighting crews from around the country and around the world have descended onto LA to help fight fires, and I for one will stand them forever, like me, Water Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Jane Koston, and this is a Pro Firefighter Podcast.

Waterday is a production of Crooked Media. It's recorded and mixed by Desmond Taylor. Our associate producers are Raven Yamamoto and Emily Fore. Our producer is Michelle Alloy. We had production help today from Johanna Case, Joseph Dutra, Greg Walters, and Julia Clare. Our senior producer is Erica Morrison, and our executive producer is Adrienne Hill. Our theme music is by Colin Gillyard and Kashaka.

What's poppin', listeners? I'm Lacey Mosley, host of the podcast Scam Goddess, the show that's an ode to fraud and all those who practices.

Join the congregation and listen to Scam Goddess wherever you get your podcasts.

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