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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And on today's episode, we are digging into the nine page settlement agreement between the Department of Justice and Donald Trump and the $1.776 billion that has been withdrawn from the general fund. Say what now? We'll dig into all of the ways in which this could be legal, could have been done. Is it legal, everything involved in that. We will also talk about the Supreme Court's latest CERC Grant in Brief and Title 9. Does it apply to employees or just students? And the Georgia Supreme Court race finishes out strong. But don't worry because we have cases from the 6th Circuit and the 11th Circuit, a kind of circuit split brewing about the First Amendment and judicial elections. We'll weigh in on that, too. And David, I just have to tell you, I spoke to the judges of the Southern District of New York yesterday and I got an SDNY tote bag in and it is my new prized possession. So if you ever see me out in the wild, I'm going to be carrying an SDNY tote bag so proudly. And if you don't know this, the Southern District of New York is sometimes called the sovereign district of New York because Main justice folks take a little umbrage at the SDNY U.S. attorney's office for acting too independently in the SDNY U.S. attorney's office. I'm sure they have all sorts of derisive names for main justice, but I just think that someone out there should make a sovereign District of New York tote bag and then I can have dueling SDNY tote bags. But an exciting day for me in New York. More to come on advisory opinions. Well, David, we did get a list of orders this week and there was one new cert grant from the Supreme Court. Reading here from Amy Howes right up on SCOTUS blog. The court granted review in Crowther vs Board of Regents of the University System of Georgia. The case began as a pair of lawsuits filed by an art professor and a women's basketball coach at two public universities in Georgia, both alleging that they had been the victim of sex discrimination. The U.S. court of Appeals for the 11th Circuit threw out their claims in an opinion by Chief Judge William Pryor. That court concluded that employees cannot bring lawsuits under Title 9 of the Education Amendments of 1972, which bar sex discrimination by schools that receive federal funding. Pryor pointed to the text of the statute, which provides that, quote, no person shall, on the basis of sex be excluded from participation in be denied the benefits of or. Or be subjected to discrimination under any education program or activity receiving federal financial assistance. Nothing about that language he wrote indicates congressional intent to provide a private right of action to employees of educational institutions. So, David, they'll hear that case in the fall. We'll obviously cover it when there's oral argument. I am loathe to disagree with Chief Judge Bill Pryor of the 11th Circuit, and I think he, generally speaking, has his pulse on this Supreme Court. He sort of is a Jeff Sutton esque figure for me. He's one of those elder statesmen of the circuit courts that easily could have been a Supreme Court justice with different timing and different luck. Fun fact. It was actually, at the end of the day, kind of a Prior vs. Gorsuch battle for that opening. Gorsuch obviously won. I've talked about the role that former clerks play in those sort of showdowns privately behind the scenes, and it can turn into a bit of a clerk brawl. The prior clerks felt like they brought a knife to a gunfight type thing when it came to that moment in time back then. Nevertheless. Yeah, I don't know. First blush, David, I'm inclined to think Prior's just right about this one, that if Congress had meant to make sort of educational institutions just this separate thing for their employees, but not any other types of employees get that benefit, that would seem weird to me.
- [04:42]
B
I'm with you, Sarah. As soon as you said prior, I thought, I know where. If I'm a betting man, I know where I'm placing money. Without knowing anything else. Without knowing anything else. You have your betting odds right there. It was a prior decision that was key. And the election contest in 2020, if people remember, it was Judge Pryor who shut down a lot of the election conspiracies, at least originating out of his circuit. So this is a judge who's been a leader in a lot of ways and as you said, was a. He was on the short list, by the way, when he did it. He was still on one of the Trump shortlists. So I don't have strong opinions one way or the other on this yet. Give it a little bit of time. But knowing Prior and knowing his reputation, I think we kind of know where this is headed.
- [05:33]
A
Just to remind everyone, you know, in the Supreme Court grants cert, it's about a 70% chance that they're gonna flip the lower court panel. This is a circuit split case, though. The Solicitor General's office thought this was the right vehicle to resolve the circuit split. So I Think this is one of those rare 30 percenters where they take the case to resolve the circuit split because they like the vehicle, but in fact, they're gonna uphold the lower court decision. And David, just to give people a little more flavor, Chief Judge Sutton of the 6th Circuit, that other shortlister, elder statesman, circuit judge, he tends to feed to the Chief justice. His clerks. Pryor tends to feed to Justice Thomas. They feed to everyone. I mean, everyone takes Pryor and Sutton clerks. But I would say if they're, if they were prime feeder judges for one justice, that's who I would align them with. And again, it goes to the, the feeder judge relationship is a two way street. Judges like to be feeders, but there's also a reason that justices pick certain judges as their feeders. All right, David, let's get to our main event here, which is I want to talk again about this DOJ settlement fund.
- [06:52]
B
One quick thing we should, we should note because in the last podcast we said we had referred to the settlement being over Biden era conduct Trump had sued over the IRS engaging in or leaking, releasing, accidentally releasing, however you want to say it, Trump tax returns during the first Trump term. So Trump was suing the IRS for conduct that occurred on his watch about him. So we had previously said Biden. That was not correct. It was suing the IRS over things that occurred during Trump's first term.
- [07:29]
A
Yeah. And so this is. We have this nine pages now. And so it's only nine pages. This is weird, right? What Trump does is he files this lawsuit about the I.R.S. like you say, David, and he dismisses that lawsuit entirely. Okay, that's a little bit unusual. Oftentimes settlements are entered into as part of the dismissal. And so it is a judge approved settlement. That is not what this is. The lawsuit is simply dismissed. And this is an agreement between, I was going to say two private parties, but they're not private parties. Between the parties outside of court, it's only nine pages and it leaves a lot of questions. So I wanted to run through this with everyone. I think there's three different ways that you can legally imagine what this agreement is about. I mean, these are like fundamental questions that we don't really have the answer to. Number one, David, is this an award from the Department of Justice to Donald Trump for $1.776 billion? And then Donald Trump is choosing to take that award and distribute it to people and he can, you know, he could distribute it to puppies and kittens. Right. He could do whatever he wanted with the award. Because it's an award for, you know, perceived damages from his lawsuit. That's number one. We'll return to that in a second. Number two, is this a class action settlement? As in, you know, Trump was the plaintiff, but it was Trump plus others that were similarly situated. And so this is actually a settlement with the class. Or three, this is money for future claimants. It's the projected valuation for what those individuals are owed for violations of their own rights. And those are three very different states. Settlement negotiations, David. And legally, they're quite different for how this works. Okay, so now let's talk about how money works in the federal government. There is a general fund, to very, very simplify this, there's like a bank account, and it has all the money in it. And the Treasury Department can withdraw money from that bank account with a congressional appropriation. However, there's this one little loophole to that, and that is that Congress did not want to approve individual settlements. For every DOJ settled case, a guy gets hit by a postal truck and he's owed $150. They don't want to have to go to Congress and say, okay, we need $150 for Bob. And so Congress approved that treasury could withdraw a permanent and indefinite appropriation for judgments and settlements. A blank check. So while normally you need an appropriation to withdraw from the general fund, this law says that anytime there is a settlement, you can withdraw from the general fund to pay it. But, David, there's this built in assumption, if you will, that this is for the adjudication of individual claims. Okay, so this is what's weird, right? We have money coming out of the general fund before any claims have been adjudicated. And that's why the 1, 2, and 3 buckets that I mentioned matter. Because if it's, number one, an award to Donald Trump, then it was adjudicated, so to speak. Right? Like there was a lawsuit filed. DOJ settled it out of court. That's fine. They're paying Donald Trump nearly $2 billion, and then he's setting up this commission to give out the fund. Here's the problem, though, with that. Donald Trump sued as a private citizen, obviously, for his rights being violated as a private citizen. So why would the government be the one handing out this money? And why would there be a commission set up to do this? The money should go to the plaintiff in this case, Donald Trump, the private person. He would need to set up a board of advisors or whatever he wants to call it, to hand out the money. And generally speaking, you would expect there to be math on why Donald Trump was owed $1.776 billion, which they never say, like why his injury cost them this money. And there is nothing in this nine pages that makes it sound like this was a payment to Donald Trump. So one is sort of a fictional version of what this could be. But, but I don't think that Donald Trump wanted this to be seen as a settlement with himself. And of course, David, we have the whole adversarial problem. Donald Trump was never in an adversarial position with his own Department of Justice, so how could they settle this with him? Okay, so number one, would actually be. Would make the most sense for drawing $2 billion from the general fund. Because there was a lawsuit, it has been settled, but there's huge problems with it. Like, then there's no commission. And also why $2 billion?
- [12:41]
B
Yeah, that's not this settlement agreement. You read this settlement agreement. It is not $1.776 billion to Donald Trump. And then Donald Trump, say, donates it to a private foundation, the weaponization foundation, that then sets up its own disbursement procedures where you, as a J6 or whoever is going to be appealing to this thing, submit to a private foundation that then, according to its own criteria and its own decision making authority, decides whether or not to give you money and how much. This is setting up something within the government that is going to be dispersing government funds for claimants who were not parties to this lawsuit. And so that's the difference. That's a large difference.
- [13:31]
A
So let's move to number two. Right, My bucket number two option here, that this was a class action. Trump was the plaintiff. But it wasn't just Trump. It was all of these other similarly situated people. Now, of course, this was not filed as a class action lawsuit. That's okay. Legally speaking, you could have a private party say, we're going to amend the complaint tomorrow to add a class to this and they could settle on the eve of them amending that complaint and that would still be like, legally acceptable. The problem is, who is the class? Of course, as I said, like, there is no class action filed in court and you can settle this before litigation. But. And by the way, David, unlike bucket number one, there is a single line in the nine pages that does kind of maybe like, hint that this is what they were thinking. Maybe. But the Florida case is a data theft case about taxpayer ID theft, but the compensation fund is for, like, broad weaponization. So you've got a real Rule 23 problem. That's what sets up class actions. What is the commonality among the claims? Is data theft common with January 6th protesters or an abortion protester? They have to have common facts, common claims, common defenses. So if this is a class action, there's no judge in America that I think would certify this class under Rule 23.
- [15:09]
B
Yeah. So think of it like this. Imagine you have a class action lawsuit brought about a chemical spill into Lake Michigan, and then as part of the settlement, you include a fund for everyone injured by Truckers on i65. That would be a. One of these things is not like the other moment. Because what you have is a lawsuit brought over irs, alleged IRS misconduct, that is now being used to fund
- [15:39]
A
a
- [15:39]
B
settlement fund for any kind of conduct, any kind of conduct where you're claiming and the settlement fund authority or board or whatever, whatever mechanism is created agrees that you received some sort of poor treatment from the government on a political basis, then you're entitled to fund. So this is like a class action brought if it's not a class action lawsuit, but if it were, it's like a class action brought in one category that then creates a settlement fund for multiple other categories of cases. And that is not how that works.
- [16:11]
A
Okay, so let's move to bucket number three. I think this is the bucket that everyone thinks is what this settlement is about. And that is the idea that this money is for the future claimants. It's the projected valuation for what individuals are owed for violations of their rights. Here's the problem with bucket number three. And this is the. Like, this bucket is the worst bucket. I think legally speaking, number one, this is exactly what the law is talking about, that you don't get to draw money from the general fund up front for this sort of thing. People need to file their lawsuits. And you settle each lawsuit individually. And that's why you can draw from the general fund. Right. Because Congress doesn't want to appropriate money for Bob, who was hit by the postal truck. But DOJ and the individuals in the civil division can make that settlement agreement and then draw from the general fund. But the idea of withdrawing $2 billion up front for potential future claimants, none of whom have filed lawsuits. No. 2 problem with this is that the statute of limitations has run. The statute of limitations for almost all of these federal Tort Claims act type things would be two years. So everyone from January 6th, those have all run. And so if they had filed lawsuits, they wouldn't be entitled to much of anything for settlements. Like, even if DOJ was Trying to be super lawsuit averse. They would look at this and say, under any reading of this, the statute of limitations has almost certainly run on all of these. So while you may have been owed $100 in damages because the likelihood is that your case would get tossed on statute of limitations ground, the most we'd ever pay on that is $10. But again, this is a way to get around that, David. You withdraw the money up front, then you have the commission look at the damages without any lawsuit having to be filed, because that lawsuit would be dismissed on statute of limitations grounds. This is, again, what I think the most likely, the most fair reading of this settlement agreement is, is that it's a, you know, future claimants fund. But that, to me, is the least legal option for withdrawing money from the general fund.
- [18:42]
B
Look at it this way. Congress would, you know, if, if I'm Congress, I'm saying, whoa, whoa, time out. We already have the fund that we've appropriated, and what it requires is an individual lawsuit to be brought by somebody, and that is evaluated on the individual merits. If you believe that they're entitled to a settlement, you receive the settlement under conventional mechanisms. What they're doing here is essentially taking 1.7676 billion. 1.776 billion, pulling it from the general fund, and then setting up, in essence, a separate and independent claim resolution mechanism that has not existed in a prior fashion. And now, Sarah, I do wonder if you simply said, okay, here's what we're doing, rather than saying we have a $1.776 billion new fund. If they said, here's our new procedure for resolving claims of political bias and that's it. In other words, there's no $1.776 billion fund. If they just said, we have set up within the dark Department of Justice a new agency, slash, entity, whatever word you want to call task force on weaponization, and here that is empowered to settle meritorious claims brought against the government. My question is, are there statutory problems with that compared to. Well, we're taking. We're pre. Taking 1.776 billion with no existing claim and putting it into a category. Honestly, Sarah, I do wonder. I have big legal qualms about removing 1.776 billion and putting it in a separate category with no pending claim, that seems to be outside what the congressional appropriation comprehends. But then I wonder if they just flop it into a task force. If there's some sort of legal challenge, somebody has standing, and they say, hey, we have the weaponization task force. They've been empowered to settle claims brought that are meritorious, et cetera. And we're gonna do it under particular procedures we've established for this task force and this task force alone. I wonder if that would be far more defensible legally.
- [20:58]
A
So this is a great point. How could you have set this up legally? Again, I think you could do bucket number one where this is a settlement with Donald Trump. You give him the money and he sets up a private board at Mar a Lago. That would be gross because again, it wasn't an adversarial proceeding. He would just be paying himself. As someone who supervises the Department of Justice, and I think you're setting up a terrible precedent. But that would actually, you know, at this point be okay. I guess, again, people get what they voted for.
- [21:30]
B
When we say okay, legally, we are not saying that any of this is okay. What we're saying is, yeah, it's unethical, it's immoral, but is there a way that it's legal is what we're talking about.
- [21:44]
A
So that would have been fine legally. The other one, David, that you mentioned, definitely fine, right? This idea of having a streamline new department in the Department of Justice, but that gets to also a problem in bucket number three with this commission. So this is in bucket number three. We're now paying future claimants who haven't filed lawsuits and where the statute of limitations has almost certainly run on all of them. Donald Trump is 18 months into his administration. As I said, the statute of limitations is two years. This is all supposed to be for Biden weaponization. So, like, unless Biden did something to you in the last few months of his administration, you would not have a very meritorious claim here, and your lawsuit would almost certainly be dismissed out of hand. But, David, the commission itself also has a problem. The way that the permanent and indefinite appropriation works for DOJ settlements is that all DOJ settlements are supervised by the Attorney General. Now, I don't mean literally supervised that he signs off on all of them, but, you know, because everyone in the civil division, you know, as an example here, works for the Attorney General. He supervises them and therefore is supervising the settlements that they make. And if it were a $2 billion settlement, you damn right that the Attorney General would have supervised that in a much more hands on way. He would be briefed on and know about a $2 billion settlement from the Department of Justice. This commission is not supervised by the Attorney General, which is weird and not great. So you also have a potential Appointments Clause problem. Are These officers of the United States, do they need to be Senate confirmed? The AG has the authority to appoint them, but no supervision of them. So like, what kind of commission is this? Exactly. So there's a whole problem with the makeup of the commission. So, David, I want to talk about two other things real quick. One, the Obama administration precedent that the Trump administration is pointing to, which is called keepsiegel. And two, how this can work, like with someone, you know, filing a lawsuit to prevent this from going into effect. Oh, and we didn't even mention the reversion problem. This idea that it says in the settlement that any extra money that's left over on December of 2028 will be given to the Department of the Interior or Commerce or something else in.
- [24:19]
B
It just says a major appropriation problem right there. Major. Because if you're, if you have appropriated funds, if you have the slush fund, in essence, just we'll use that term. It's not precise, but you get it. If you have essentially like a slush fund that Congress has appropriated for case settlements, you can't yank from that slush fund, create slush fund two and then say, well, if slush fund two isn't exhausted, then it goes into a, an entirely different appropriated purpose. No, that's not how appropriations work.
- [24:52]
A
Yeah. So we've got, let's say three, maybe four, I don't know. We've got a lot of legal problems here. No precedent for drawing money from the general fund for future claimants who have not actually filed anything. We've got the reversion problem, David, that like maybe you were allowed to draw from the general fund for settlements, but basically you just drew from the general fund. You don't have to give out any of this money and, and then all of it could go to the Department of Interior without being appropriated for that. That's weird. The statute of limitations problems for all of these potential claims that are now getting settled and the appointments clause problem that the AG is not actually overseeing or supervising this commission. When we get back, David, I wanna talk about the Obama era precedent that the Trump Justice Department is pointing to as why what they have done is no different from what Obama did in the Keep Seagull case. We'll be right back with Keep Seagull. So fun to say.
- [25:53]
C
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- [27:58]
A
So this brings us to keepsiegel. David. Keepsiegel versus Vilsack was a class action lawsuit filed by Native American farmers and ranchers against the Department of Agriculture for decades of systemic discrimination in farm loans and credit programs. The Obama administration agreed to a $680 million settlement to compensate American Indian farmers and ranchers who were wrongfully denied loans between 1981 and 1999. And so, David, I hope right away people are seeing lots of differences in this, right? So this is like bucket two, this idea that it's a class action without the class having been identified, as in, you don't know whether Bob is a member of the class yet. And they settle without having defined the individual members of the class. But the class is defined. So first of all, there was a lawsuit filed. There was a class that had been certified. It was settled. And in order to claim money from that fund, you had to One, be a minority farmer. Two, during an 18 year time period. Three who had during that time period submitted a claim to the USDA for a grant and been denied that grant. And the big difference, this was a court approved settlement and was supervised by the court. The only similarity, David, is that the money was withdrawn up front, not for each individual claim. So that is one thing that is true. It was an upfront withdrawal from the general fund to settle a lawsuit for a class action where the individual members of the class had not been identified and their amount of damages had not been determined. So it was a guess at how much money they were going to owe. And they took that money from the general fund. David, this was widely criticized at the time. People on the right understandably and correctly lost their minds over this because as you can guess, there was money left over at the end. And that money was then used to permanently fund the. The Native American Agriculture Fund, which is the largest philanthropic trust dedicated strictly to native agriculture. I don't think that's okay. You know that's the second slush fund that you're talking about, David. Right. There was no money appropriated for that. They withdrew too much money from the general fund because they didn't wait to see what the claims were. And then they took all the leftover money and created a thing that they couldn't get created through Congress. That's not okay. But it sure doesn't make this okay now. And this is worse, to be very clear for people. Cause I'm getting all this like hate online that somehow I'm saying that because Obama did it, it makes Trump okay. No, I'm saying the opposite. When Obama did it, it wasn't okay. Trump doing it isn't okay. And Trump's. What Trump is doing is far worse than I think what Keep Siegel was, for all the reasons that I just laid out. But yes, I do think it's important to walk through what the precedent is that the Trump administration is pointing to. And that's not what about ism or both sides ism. That's how the law works.
- [31:22]
B
One of the reasons why we talked about sue and settle is that it was real. And why. Why would we talk about that? Because I use the. The comparison, okay? If one thing is X, what Trump is doing is X squared or X cubed. And somebody was saying, well, okay, if you're at X squared or X cubed, doesn't it changed from. It's not just a matter of degree, but it's a matter of kind that it then becomes just something else entirely. I want everyone to sort of understand the way the Trump world mind works on this. I had a very, very, very smart friend who follows all of these things very closely and is a Trump defender, although not maga, but Trump defender. And he said almost everything that Trump is doing. He didn't say everything, but almost everything I can trace to another president. And I said, okay, do the work, show me how. And I gave, we talked and I had like a list of six or seven things. And sure enough, on each one of the six or seven things, he could point to a prior president. Maybe there was a Nixon thing here, maybe there was a Carter thing here, a Clinton thing here, a couple of Obama things here. And what you have is often what the Trump administration will do is it wants to accomplish an objective, and then it will look at past precedent and see is there anything similar to the objective that we want to accomplish that comes from a past president? And they'll say, aha, here's this is analogous, or this is analogous or this is analogous. And then they expand and extend and move way beyond that precedent. But then when challenged on it, they can go back and say, well, Clinton did X or Obama did Y. Now, two things are true at once. Number one, Clinton often did X or Obama often did do Y. They did things that were wrong. Sorry, to our, you know, progressive listeners, that doesn't excuse Donald Trump at all. And it doesn't mean that Donald Trump, what Donald Trump is doing is the same level of wrongness. It can be more wrongness. But what he does tactically and what he tries to do legally, which often doesn't fly, but what often flies tactically, especially with his base, is he's constantly pulling from these prior examples that are scattered all throughout modern American history. Two things about this. One, if you're an administration that is pulling all of the wrongdoing from, say, five previous administrations, putting it under one administration, and then amplifying all of it, then you do have an issue, an instance where it's not just a matter of degree, the thing has changed as a matter of kind. It is absolutely true, but it is still absolutely true that in individual incident after individual incident, look at it this way, the fruit of the poisonous tree, they are going back and they are tracing something that they will then say, why are you mad at us because Clinton did X? Or why are you mad at us because Obama did Y? When the reality might be that Clinton did X or Y? But what they're doing is far worse, and they're sort of gathering all prior administration's wrongdoing under one big tent. And so that's why it's helpful to trace all of this, because this is how they do it. This is. This is how this is being done. And it is not moral equivalence, et cetera. But, guys, a lot of you have your favorites and your fans of various politicians, which. I'm just going to question you there. I'm just going to start questioning you there if you are a fan of a politician, as a politician. You know, there are politicians whose character I admire, but I definitely don't agree with them on everything and will say so if I disagree with them. But, guys, political fandom should be over. Let's not do this, okay? It is completely fine to admire Barack Obama or to support Barack Obama or George W. Bush or Bill Clinton, and. But don't put yourself in a situation where net. Net. You admire somebody or appreciate somebody, but then you just can't see their blind spots or can't be reminded of their blind spots because reminding people of past blind spots will. What caused them to lose focus on Trump or something? No, no, no. One of the problems we have right now in this country is that we've been telling people, partisans have been telling people to ignore the evidence of their eyes and ears for so very long, that partisans ignore the evidence of their eyes and ears all the time. And so tracing past misconduct as one of the origins, at least for the rationalization or justification of present misconduct is important to do. It's showing how we got here and why particular vehicles are being used. Okay. This is why they're using this vehicle. Okay, Rant over. Sorry, Sarah.
- [36:29]
A
No, you know, David, I try, you know, we do this for a living. It would be a real problem if we always took our work home with us. But I will really admit to you that last night was one of those rare nights where, like, I really was struggling with this. I am. I know this is weird because it's, like, about money. I am, like, emotionally upset about this in a way that, like, I will admit that I'm not about a whole lot of other things that we talk about on this pod, maybe including things that I should be more emotionally upset about than this. But this, to me, feels like. Like, if we've already ended the legislative power of Congress and handed that over to the president in the form of, you know, government by executive action and how bad that has been for the country in the last, you know, 15 years, this is the end of the power of the purse. Like, the president will now have the power to legislate and the Power to appropriate. We're done. And. And a future president. And like, you know, again, we have listeners from all over the ideological spectrum. Future president. Aoc Future president. You know, Alex Jones. I don't know what. They can now withdraw $2 billion and just spend it on whatever they want. By the way, why do you think it's going to Interior? Oh, because Trump wants to build that giant arch and he doesn't have an appropriation for that yet. And so if actually all of the statute of limitations have run on these claims and they don't hand out any claims. Donald Trump just got $1.776 billion into the executive branch to spend on whatever he wants. You're mad about the ballroom. My God. Let me show you what happens from here. And you want to hand this power, Republicans to a Democratic president. What's wrong with you? Why is it okay when Trump does this just because Obama did it? You're okay with running the government this way. You're okay with Congress not having to appropriate money and having fake claims. So you can just withdraw any amount you want. By the way, this is permanent and it is indefinite. So the future AOC president can withdraw $10 billion, $10 trillion from the general fund and spend it on anything and you're fine with that because Donald Trump did it? No. This idea of like power for power's sake and when we're in power, just do it and don't worry about what happens next is so antithetical to what it means to be an American, to a self governing republic, to a pluralistic country that we have been trying to keep running for 250 years. I am struggling with this, David. It is really bothering me to hear people on the right say that this is okay because Obama did it. When we were all upset about when Obama did it in the first Trump administration, it was a big deal for Jeff Sessions to sign the order forbidding these third party settlements because it was principled and it was righteous. And it did point out all of the things that Obama had done that skirted the law. Again, because the Obama presidency of, I believe was defined by trying to cut Congress out, by trying to do government by executive order, by trying to skip the appropriations process through sue and settle through third party settlements. And by the way, so third party settlements are skipping the appropriations process, sue and settle is skipping the regulatory process or the legislating process that was egregious to try to have this enormous power grab into the executive branch and, and the first Trump administration put a stop to it. But now we get the second Trump administration and they're like, that was a really good idea. And I've said this before, David, using Lindsey Chervinsky's book on John Adams, I've really taken this to heart that it's not a norm when one person does it. It wasn't a norm when George Washington was president. It only became a norm when John Adams repeated it. And so if John Adams didn't repeat something George Washington did, then it sort of disappeared. But when John Adams repeated it, including the peaceful transfer of power, most importantly, that became the norm. And so when Obama did it, it was bad, but it wasn't a norm of American politics. And when Donald Trump stopped it and Trump won, that was the lesson, right? Everyone could see. We talked about keepsiegel all the time at doj. We put it in every press release how bad keepsiegel was. When you repeat it now, now it's a norm now. We don't have an appropriations process. We don't have a legislation process. Congress no longer exists as a functioning body. And I don't. I wanna say we come back from this, but I am feeling pretty low about it.
- [41:23]
B
I'm feeling very low about it as well. And, you know, look, what we're going to is a situation like this. So I always talk about, you know, when I talk about the 2024 election, I talk about two different numbers, 17 million and 77 million. 70. 17 million are the number of people who voted for Trump in the primary. 77 or 78 million. I've forgotten the exact million range is the number who voted for him in the presidential election. If Trump was running to that 77 million and saying all of the stuff that is corrupt about Biden, I'm going to do it times 10. I'm going to target my political opponents at a scale Biden couldn't dream of. I'm going to. My family is going to enrich itself in a way that Hunter is going to be kicking himself that he left billions of dollars on the table. Because my guys, my boys, they know how to exploit the system far better than Hunter Biden. Does he win 77 million votes? No. But I will tell you this, Sarah, on the 17 million, the primary voters, the people sort of the rally Trumpists, the core of maga, you will see this all the time. They, they actually like a lot of this stuff. They're not thinking down the road, okay, what will President AOC do? They're thinking, well, if President AOC does anything, we're going to, you know, we will get in the streets or we'll do something to stop a president aoc. But on this point, on the enrichment, on the I see zero self reflection, zero, less than zero. I see a lot of enjoyment and happiness that liberals or never Trumpers or ever are upset that these J6ers might get compensation. There's a core in MAGA that really is all about vengeance. It's all about retribution and sadly all about getting as much for themselves as they can, when they can. The grift here is massive. Lots of people are getting in on it. It's expanding. He's sort of ruling his faction of the country like a mob boss rules as we're seeing from the way he's targeting individual senators and even down to the state senator level. And there's no question in my mind why over time and it takes a while because you and I are on the news cycle all the time. We think about the news cycle all the time. We're always following everything. Your average person is the opposite of that. So it takes a lot of time, shocking amount of time if you're sort of a political nerd and hobbyist for a lot of this to sort of leak into the public. But it is leaking into the broader public. So it is no surprise to me that you're now seeing Trump hitting in Some polls near 33% approval. The only, you know, one thing that is giving me at least some hope is that he is, he is not remaining popular as he does this. That is, that is the one thing that is giving me hope. But at the same time, I don't think he cares one whit about that. The only thing that he ultimately is going to care about is power. And if Republicans, who, if MAGA can cling to power in the Republican Party, if Trump can cling to power as long as he possibly can and then hand the baton to a hand picked successor, then just look for all of this to just keep metastasizing and just to keep metastasizing. It's hard for me to see a bunch of my friends, conservative friends, like waving around these DOJ reports on weaponization against like pro lifers and everything like that, and talking about the horrors of the Biden DOJ in its selective and unconstitutional acts. Well, if there's evidence that the Biden DOJ was unconstitutional and selective, I'm with you. But then to do that with like your arms draped around this administration that is engaging in explicit targeting on a scale that is mind blowing. It is mind blowing. All you're doing when you do that, guys, is you're just part of free speech for me and not for thee. That's what you are. You are. Yay. I win now. And I'm saying nothing. Nothing. Or even cheering. While many Americans are having their free speech rights suppressed, many American institutions are facing direct assault on free speech through this administration. And you're one running around there waving a vindication about Biden. I'm with you, but be freaking consistent. Be freaking consistent. But they won't be consistent, because if they are consistent, they don't get that photo op that their donors love so much. And I know some of you who are listening, you know who you are. You know who you are, and there are attorneys right now listening belong to institutions who are doing this, and it's grotesque.
- [46:01]
A
All right, David, when we come back, we'll talk about what lawsuits can do about this. Can any of them win? And the Jim Comey hypothetical. Right? Jim Comey weaponization fund sounds like he's a great plaintiff. We'll be right back. Well, let's go to the last piece of this, which is who can stop it? So this isn't the perfect hypothetical, but, you know, Jim Comey puts in a claim against this weaponization fund, and he gets rejected and he files a lawsuit. So I think that works in the sense that when he files the lawsuit, he needs to ask for prospective relief, meaning he wants to enjoin the fund from distributing any funds because he doesn't want the fund to be exhausted before his claim is, you know, adjudicated or whatever. And therefore, you can freeze the distribution of funds, and then you can determine whether the fund fund itself is lawful. Kind of maybe, sort of. Here are the problems, David. One, do you need to wait until your claim has been rejected? If so, you know, they just wait and wait and wait on some of the claims that they're going to reject and say yes to other claims. At some point, you'd be able to sue and say they have, you know, for all intents and purposes, constructively rejected my claim. But. But we're not talking about much time here between now and December of 2028 when the fund closes. So you've got that problem. When is it ripe? Of course, the settlement says that it's not reviewable by a court. So, you know, the settlement itself isn't reviewable. But, you know, withdrawing money from the general fund might be also. One of the better claims here is this appointments clause problem about the commission. But that, of course, is a little bit side A side hustle if you will, from the core problems of this, which is withdrawing money from the general fund for future claimants who haven't filed lawsuits, whose statute of limitations have run, the sort of lack of supervision, you know, the reversion problem, all of that, that's a little bit hard to see how that itself is going to be reviewable. So this is where the forum shopping, David, could come in very handy, because all you need to find is an outlier judge who will enjoin this without a great ripeness argument, without a great standing argument, and sort of, you know, work out the details later because they find this so egregious, they just want to, you know, freeze everything while they sort of sort it out. I'm going to say, David, like, I hate this. I hope I've made that very clear. I think that would probably be an incorrect legal decision. Even though I will like the outcome of it. I don't think standing's that hard. You just need to find someone who has a theoretical claim on this. And because there is no defined class, a lot of people have a theoretical claim. But the ripeness problem is real. And again, like, why are you able to destroy the fund? That's why you need to get prospective relief. It's gonna be a little bit of a mess. That being said, I imagine a zillion lawsuits will get filed this week.
- [49:20]
B
I'm with you on the analysis, Sarah. It's gonna be very interesting to see how this all goes down, because you could have a situation. You get an injunction, which then delays matters. You begin to get into that cycle of delay, waiting for court rulings, more delay, waiting for court rulings. Clock starts to run out on the administration itself, right?
- [49:38]
A
And they've already withdrawn the funds, by the way. Like, the funds are out. And remember this reversion thing, right? Even if they don't spend any of the funds. So what, the big win is that $2 billion goes to the Interior Department. That's not a win for me. That is a Pyrrhic victory if there ever were one. I want the money to go back into the general fund where it belongs. And it's very hard to see how that's gonna happen.
- [50:04]
B
And we also have our little problem of the mutual release here.
- [50:09]
A
The mutual release just says that the IRS will not be able to investigate Donald Trump or any of his family members for anything related to payment of taxes from Monday and before. So if they cheat on their taxes today, the IRS can investigate that, but for anything before Monday, the IRS cannot investigate Trump or his Family members.
- [50:35]
B
This is what's a little bit weird about this. So normally when you have a settlement agreement, you have a mutual release in the settlement agreement. And by mutual release, what we mean is the plaintiff releases the defendant of any and all claims. One of the reasons why you settle a case is to end that particular case. And sometimes you negotiate it in such a way that you don't just end that case, but you end any other potential case based on past misconduct, misconduct that came before. It's a big incentive for defendants to enter into settlements because it's a way of creating certainty. I pay this money and I am out. I am out of worrying about anything from this plaintiff. And so then often the plaintiff will ask for a release from the defendant. You can't come after me, I can't come after you. Money has exchanged hands. This thing is over. And so the settlement agreement that the DOJ released provides a release from the plaintiff and says, that's Trump. Plaintiff hereby release. Plaintiffs hereby release, waive, acquit and forever discharge defendants in the United States, et cetera, et cetera, from prosecuting or pursuing in any all claims junctions, etc. That is a big broad release that the trumps have entered. That Trump entered into. There was not a mutual release in the settlement agreement. There was not a corresponding release from the defendants in the settlement agreement. And so there was this interesting letter that Todd Blanche writes, and it just says three short paragraphs. A settlement agreement has created the anti weaponization fund. B, capitalized terms in this document shall have the same meaning as a settlement agreement. And then C, it's a very broad release, and when I say very broad, Sarah, this is a release again from the defendant. It is not necessarily super normal for the defendant to enter into a release this broad, but here's the actual language. The United States releases, waves, acquits, and forever discharges each of the plaintiffs from and is hereby forever barred and precluded from prosecuting or pursuing any and all claims, counterclaims, causes of actions, appeals, or requests for any relief, including injunctive relief, monetary relief, damages, examinations or similar or related reviews, appeals, debt, as of the effective date that have been asserted or could have been asserted by defendants against any of the plaintiffs or related individuals or parties, including trust, blah, blah, blah. All of the possible legal connections with respect to, in connection with, or arise out of any matters that it could have been raised in the case, lawfare or weaponization. Any matters currently pending that could or that could be pending, including tax returns filed before the effective date before defendants or other agencies or departments. So this is big, Sarah. And it reads, it almost reads like a civil pardon.
- [53:50]
A
I was going to say, sounds like a, yeah, sounds like a pardon.
- [53:53]
B
It sounds like a pardon. And so what you have here, why is this important? Because the pardon power only extends to crimes. The pardon power in the Constitution. So if you pardon someone, if you pardon, say, a J6ER, you can't, you're not releasing them from liability, civil liability for their wrongs. And there's this always sort of been hanging out there that you could have a pardon. Trump could pardon himself, he could pardon his sons, he could pardon everyone around him, but that's only going to protect them from criminal punishment. This is like a pardon, except for civil, civil claims. And so, Sarah, wow. I mean, am I, as I read this, arguably, I mean, if you squint, maybe this is kind of sort of limited to something involving the irs. But that's not what this says. This is a much broader release than this.
- [54:52]
A
All right, David, we'll move to our next topic. But man, this has been a, you know, Sarah's friends are in the news kind of week. Brian Morrissey, who I worked with in the first Trump administration at the Department of Justice and is a wonderful friend and one of those rare lawyers who is quiet, can almost seem unassuming when you're in a meeting with him. But he is a stone wall, David, by which I mean, you know, if you think that Brian Morrissey, like, can't hold the line, you're just wrong. Like, he can be quiet, but you are not going to push him around. You're not going to convince him of something that he does not believe to be true. He is just a lawyer's lawyer, but he does it with such grace. For lack of a better word, he resigned this week as general counsel from the Treasury Department. And then Sarah Warren down in Georgia won her election for Georgia Supreme Court. Boy, was this a contentious election. Sarah Warren is uber lawyer, uber mom, uber friend. And while she was running in one of the most contentious judicial races in the country, one of the just the most contentious races in the country, she was also battling breast cancer. And so just like, I don't know, she's, she's been a real inspiration to me these past few months. So shout out to Sarah and Blaze and the kids. Congratulations on a, on a really hard fought race. And it also happens to be the topic of our next segment, which not just judicial elections, but in fact this judicial election in Georgia and the First Amendment. David, it was Kind of a weird state supreme court race down there in Georgia. It almost looked like Wisconsin. These are nonpartisan races. Two elect judges. They are retention races in Georgia. And nevertheless, the potential justices in this nonpartisan race started taking on a certain partisan flair. Barack Obama came in, lots of heavy hitting Democrats to endorse the other candidate. And there were questions about what candidates for judges in nonpartisan races are actually allowed to say. And how interesting that we then had this decision from the 6th Circuit having nothing to do with Georgia having to do with Kentucky. It's a Thapar opinion. You know, we love us some Judge Thapar here on advisory opinions. And I'll just read to you from the top here. Elections have consequences. And when a state decides to elect its judges, the state must comply with the First Amendment. In this case, two former candidates for Kentucky judicial office argued that the state violated the First Amendment when it threatened to sanction them for campaign speech during a 2022 election. They're right. So we agree the candidates are entitled to declaratory and injunctive relief. So Joseph Fisher and Robert Winter campaigned to become Kentucky state judges. During the campaign, both candidates took steps to inform voters of their ideological views. Fisher posted campaign signs identifying him as, quote, the conservative Republican and included an outline of an elephant's head. Winter referred to himself as, quote, conservative and, quote, a Republican. Both candidates have also received, but neither sought nor used endorsements from local Republican Party committees and made appearances at Republican Party events. And they used endorsements from pro life organizations in their campaign material. People filed complaints with the Kentucky Judicial Conduct Commission. The commission sent them warning letters. And this was the question, David, like, are they allowed to describe themselves as the conservative Republican or a Republican and conservative and use endorsements from partisan groups in a nonpartisan election? You know, which according to Kentucky law and the Judicial Commission, like, you weren't allowed to do. And basically the sixth Circuit says, like, you have a First Amendment right to say that. No problem. Now, down in Georgia, David, the 11th Circuit also was looking at a very similar problem here. Now, it's not actually an opinion that is signed, but Judge Newsom was on the panel, our other friend of the pod. So here's the opinion from that court. Jennifer Jordan and Shamiracle Rankin are running as candidates for justice on the Supreme Court of Georgia. During the campaign, the Judicial Qualifications Commission found that they had violated the rules for the election. In one case, they had an ad together on television and social media. It was a joint campaign advertisement. And they said things like, we're running for Georgia Supreme Court to fight for what's fair using weave. We'll fight for you. And candidates are prohibited from publicly endorsing each other for public office. Right. Because they want to prevent people from running as a ticket. And then the Second one was Ms. Jordan appeared at events related to reproductive freedom and spoke to attendees conveying that she will, quote, restore abortion rights, end quote, if elected. She also shared an endorsement from the Reproductive Freedom for All on social media platforms which characterized her as a champion for reproductive freedom. And another rule prohibits judicial candidates from making statements or promises that commit candidates with respect to issues likely to come before the court that are inconsistent with the impartial performance of the adjudicative duties of judicial office. So both of these are different than, you know, partisan affiliation, but it's the same idea, right? There's certain things you're not allowed to say if you're running for a judicial office versus some other office. In this case, David, they held that it is sufficient for present purposes that the commission has demonstrated a, quote, substantial case that the clauses in the judicial commission conduct stuff will survive constitutional challenge against the First Amendment. A little circuit split here, David. Now, the Georgia one is in this very preliminary stage because it was in the run up to the election. The 6th Circuit is actually all the way through the merits because that was based on the 2022 election. So they are not in the same post. But nevertheless, the question comes to us, David. You know, these states want to elect their judges, but they also don't want their judges to be running like Republicans and Democrats. And so they want to put restrictions on the types of things you can say in a judicial election. I'll just tell you my two cents. No, maybe you shouldn't be electing your judges. But if you're going to elect your judges, then we don't just chuck the First Amendment because it would make the judicial elections more to your liking. That's not how this is going to work. The elections come with the full rights of the First Amendment. There is no half First Amendment because some elections are more precious than others. Don't elect judges if you don't want judges to have First Amendment rights during their campaigns. I think there's lots of good reasons not to elect judges, but I am not for like, oh, we can elect judges, but then we, like, reserve some things to make it like a more, you know, judicially friendly election.
- [62:14]
B
So two things. One, completely agree with you on this, especially since if you're going to talk about the meaning of the First Amendment and the original Public meaning of the First Amendment. Political speech is why it's there. This thing, the entire free speech edifice of American culture, really the germ, the seed of the whole tree, the seed of the whole thing is protect political speech. That's. That's the small. That's the mustard seed that created this big tree. Right. Is protect political speech. And then to turn around and say, but not that political speech or that. Wait, this isn't. It's an election, but it's not really political because reasons partisanship is bad. Okay, I'm with you. But it's still political speech. This is an election. You don't get much more political than that. So completely on board with the. The par. Opinion on that. The second thing is, I'm so glad you ran through those facts, Sarah, because they're just such a perfect illustration. In every free speech case. You've just gotta pull it out of its partisan setting and just evaluate it on the basis of speech alone, not who's gonna win and who's gonna lose. Because you just went through. We have a Kentucky case and controversy involving judges who are saying they're Republican. And then you have a Georgia situation where you have Democrats who are wielding sort of the partisan hammer. So this is a good, you know, good for the goose, good for the gander case situation right here, right now. Perfect illustration. In two different states, you have the exact. Very similar. I'm not going to say exact same legal issue because they're not the exact same regulatory environment, but very similar legal issue coded very differently on the partisan outcome. But the same legal principle. Just apply the same legal principle regardless of the partisan outcome. And I think Thapar's got it right.
- [64:06]
A
All right, well, David, that wraps up an exciting episode of Advisory Opinions. On the next episode, we will have decisions. They come out Thursday morning. We'll see if we got any blockbusters. And we will have an interview with Nina Effing Totenberg, the OG Supreme Court beat reporter. I'm pretty pumped to do that.
- [64:29]
C
Okay, David, that's it for us today.
- [64:31]
A
If you like what we're doing here,
- [64:32]
C
there are a few easy ways to support us. You can rate, review, and subscribe to
- [64:36]
A
the show on your podcast player of
- [64:38]
C
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