C (6:04)

I do not think so, Sarah. That was when I saw. When I saw that cert grant you put in the slack. Supreme Court will consider whether people who regularly smoke pot can legally own guns. I thought, wow, this is going to be a very interesting case. And my first quote was, that's fascinating. And then you posted the facts and wow, other than that, he's an awesome dude. No, it's almost a caricature of bad man stays in jail facts. These are Rahimi level facts here. I would think differently about this case if the SART grant, as you said, were like somebody Willie Nelson esque or I mean, we could say Bob is a deacon at the First Baptist Church who has strong objections to illegal drug use, but persistent problems with migraines. He's been prescribed thc, but also likes to hunt deer. You know, so that would be the case that I would think the Supreme Court would take to say, yeah, occasional marijuana use or even regular prescribed marijuana use is an impediment to gun ownership. But this case, I mean, we don't want to prejudge, but.

A (7:22)

So, David, though, there's a serious part of this, which is the bag man stays in jail doctrine can be read two different ways. One way you read it is that in fact, judges who otherwise have strongly held judicial methodology priors throw those out of the window when the facts are just super, super inconvenient. My example for this would be something like the Rauch, Angela Rauch case where it pits the Commerce Clause versus drug use and Justice Scalia, who hates the Commerce Clause. Sorry, he loves the Commerce Clause. I mean, he hates Wickard v. Filburn expanding the Commerce Clause. All of a sudden this citing Wickard v. Filburn is like, well, I mean, Wickard's right there. Like, it's the commerce Clause. So, you know, they can regulate this if they want to bong hits for Jesus. Like, we were sort of moving in the direction of more free speech rights for kiddos. He was off campus when he holds up the bong hits for Jesus sign, and it's like, ah, no drug use. We're not doing that. So that's one way to read bad man stays in jail. One version is judges, you know, throw out their judicial methodological preferences when the facts are just too egregious. But there's another way to read it, which is this is a way of divining the Supreme Court's thoughts based on which cert petitions they grant. There are lots of options of cases the Supreme Court can take when it comes to these percolating issues. Believe me, there's a Willie Nelson case out there, or, you know, Deacon Bob case, but they didn't take that one. They took this one where agents found a Glock 9 millimeter pistol, 60 grams of marijuana, and 4.7 grams of cocaine. Respondent told the FBI that he used marijuana every other day. He also told the FBI that the cocaine which had been found in his mother's room really belonged to him. Like, they chose this cert petition, which maybe tells us something about the type of outcome we're looking at. So the doctrine cuts both ways.

C (9:30)

There's a very serious issue here, and also not just because of bad man stays in jail doctrine and its application to constitutional law and its distortion of constitutional law, but is, wait a minute. One of these things is not like the other when it comes to drug enforcement, because unlike cocaine, unlike heroin, unlike fentanyl, marijuana is legal at a state level, at many states, illegal at a federal level, but with very low federal enforcement priority. So we're talking about, for years now, the feds have not really cared that much about marijuana possession, and they've not cared nearly as much about marijuana in general as they have the hard drugs. And so you do actually have a sort of weird hybrid, two tiered legal scenario when it comes to marijuana. And this case is weird because you have not only other criminality, you have other drugs. And so how does marijuana become central when you also have other drugs involved? And so, yeah, this is. There is a real issue here because I think when it comes to marijuana generally, there's a serious, real legal issue when you have the scenario that we have, you know, because when a state legalizes marijuana, this is often trumpeted statewide, far and wide. Marijuana now legal in Tennessee or whatever. That hasn't happened in Tennessee, but let's say if it did, marijuana now legal in Tennessee, and rarely do you have the asterisk attached, but not legal federally. And so I think there's genuine confusion in the public now about what's legal versus not legal. So I do think there's a reason, a reason for a serious case along these lines. I'm just not sure this is that serious case.

A (11:21)

Well, folks, this will be argued probably January, maybe February at this point. We'll look forward to tuning back in when it goes for oral argument. All right, next up, David, we did have oral argument in a case that I just thought deserved a brief mention on this podcast, Case v. Montana. This is a question of when police can enter your home without a warrant in compliance with the fourth Amendment that says no unreasonable searches or seizures. In this case, the police entered Trevor case's home without permission, without a warrant, without probable cause, and they ended up shooting him in his own house. That doesn't sound good, David. But then let me tell you the rest of the facts. Here's Justice Alito's recitation. Your client's ex girlfriend calls the police and she says that he said he's indicated he was going to kill himself. He was going to get a note. She heard him racking the action on a handgun. Then she heard a popping sound. Then the line went dead. She was screaming on the phone. He didn't answer. The police go to the house. They try knocking on the door and yelling. They get no response. They walk around, they see empty beer cans. They spoke to a neighbor who said his vehicle was parked outside. They shown a flashlight through the window. They saw his keys on the table alongside an empty holster and an apparent suicide note. And then the question Justice Alito asked the advocate, what do they need to go inside the house at this point? Now, there's other facts that maybe make. I don't even know which way they cut, which was part of what the justices I think were getting at. On the one hand, he had threatened suicide many times and the police had come out many times before and had indicated, I think it's fair to say that he wanted suicide by cop. Potentially he wanted to get into a gunfight with the officers in previous interactions with the officers. It is also the case that the officers, they didn't rush in. You know, if you think someone has just shot themselves, you would rush in the house. Right. So they waited 40 minutes to go in. And Justice Kavanaugh, of course, said, well, if they, after deliberations, walk away and he commits suicide, I mean, what are you thinking then of the officers? Like, so I don't know which way it cuts that. They waited 40 minutes. Arguably they didn't think there were exigent circumstances or an emergency. On the other hand, how long is someone supposed to stay dead in their home before the police are allowed to go in? So, David, on sort of the front end, this is a little like the other case we just talked about. I think this is an important question of when the police can go into your home without a warrant. You haven't answered the door, they believe you're inside. They don't have probable cause to believe a crime was committed. For instance, what is the level of something probable cause or. That's the blank we're trying to fill. In that you need to go into a home for a wellness check. Is it probable cause that someone is seriously injured and cannot help themselves? Is it reasonable suspicion? Is it what? And probable cause of what? We actually have to fill in both sides of that. Something of something. Probable cause of a crime is how you get to go in the house normally, but something of something when we have this type of situation.

C (14:47)

So can I just issue freestanding consent for the police to enter my home? If anyone around my family calls and says, we think something's wrong with David, go check him out. Police, you have permission to enter.

A (14:59)

But David actually let me push back on that, by the way, because you say that, but swatting is a real fear. And while, again, the facts of this case are very different, if someone calls to swat your home, this is where someone you do not know has called and said, I'm David French's daughter, and he says he's going to blow up his home so that he can kill his neighbors, go in immediately so that the SWAT team comes. Those are very dangerous situations, and their police are entering without probable cause potentially. So this decision will affect those swatting calls as well. So you don't want police entering your home just because someone calls and says that they should.

C (15:40)

Absolutely. But the question I have is, what is the report actually here? What is the report? If the report is there is imminent danger of criminal activity, it seems to me that you've got a probable cause issue. If it's imminent danger of suicidal activity, which is not actually the swatting scenario so much the swatting scenario, they come in because they're trying to protect other people from you. Okay. And that's what makes it so dangerous, is that they're getting these calls like, he's killed somebody there, he's going to kill more people, he's brandishing a gun, he's going to kill the people inside. And that's what causes people to crash into the home. If it is there's something that he is having a medical event or he is having a mental health event that is isolated to him, I think that seems like a different situation, but I'm very dubious. Swatting is a huge issue for a very, very narrow class of human beings. That is not something that is a common problem around the. Around the United States, certainly compared to urgent medical issues that people have at home. That's a common. That's something common or concerns about their wellness. That's something really common. And I would rather have a scenario in which police were able in good faith to enter a home in the case of a perceived medical crisis versus versus a scenario where they've got to wait for something approximating proximate cause. I mean, a probable cause which is really designed to protect us from what you might call malign intrusion as opposed to benign intrusion. Add that condition to a good faith call for medical attention or mental health attention. I don't know. I. You know, a majority of the justices seemed very skeptical of the probable cause requirement, and I think I'm with them.

A (17:42)

Yep, I think this could be another one of those unanimous or near unanimous decisions. All right, when we get back, we're going to talk about whether there's a rebellion in Chicago.

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A (19:21)

That's how good leads the way. David it is possible that this podcast will be stale by the time that folks are listening to it. Because we are expecting the Supreme Court to rule on the question of President Trump's invocation of 10 USC 12406 federalizing the National Guard and sending them into Chicago. We're expecting that any hour slash I would say certainly by the end of the week. So it's possible that the Supreme Court has already ruled on this by the time you hear it. But let's just remind people of the statute and just can I point of personal privilege, David. When the headlines come out and they say Supreme Court greenlights Trump or Supreme Court says no to Trump or whatever that will be, I promise it will be phrased in some way like that. Just remember Sarah's having a meltdown because it should say Supreme Court says Congress gave deference to President or Supreme Court says Congress allows judges to determine the reasonableness of the invocation. Congress can change this statute at any point. That's my punchline. Okay, here it is. 124 06. Whenever one, the United States or any commonwealth or possessions is invaded or in danger of invasion by a foreign nation. No. 2, there is a rebellion or danger of rebellion against the authority of the government of the United States or three, the President is unable with the regular forces to execute the laws of the United States. The President may call into federal service members and units of the National Guard of any state in such numbers as he considers ne to repel the invasion, suppress the rebellion or execute those laws. So David, to be clear, the the rebellion, if there's a rebellion, that's enough. If he's unable to execute the laws, that's enough. So those are separate considerations. Now the district court in Chicago, naw dogged this real hard, said no rebellion, you are able to execute federal laws. The unanimous 7th Circuit panel, same conclusion and said while there is enormous deference to the President on this, it is not solely up to the President's discretion. It doesn't say whenever the President believes that he is unable to execute the laws. It says whenever the President is unable to execute the laws. And so they read that. There's some bounds to that discretion. You know, there's a reasonable president standard, if you will. They said no to that. This is the case going to the Supreme Court on that interim orders docket. However, Portland certainly looms in the background of this. And the Ninth Circuit two to one panel said, actually in Portland, the President can send in the National Guard based on this statute because it's not really up to judges, it is up to the President. So I think that you could read the cases as different outcomes based on the facts, but I actually think the different outcome was based on their reading of the amount of discretion to the President. And David, do you just want to. Can we mention the sign that you saw at the no Kings rally in Chicago? That was the Best sign of any no Kings rally in any city in the United States.

C (22:51)

Martin versus Mott is distinguishable.

A (22:56)

Okay, just to be clear, this was a person walking through the no Kings rally holding a Martin v. Mott is distinguishable sign. Amazing choice. Now, David, this is the case that the administration is relying heavily on to make their claim that the President has basically full discretion to determine whether he is unable to execute the laws. This is an 1827 case. Facts. President Madison had invoked a precursor to 12406 to mobilize the New York militia during the War of 1812, which President Madison deemed an invasion. Jacob Mott refused to report for duty and was court martialed and fined. Martin, a marshal seized his property to pay the fine, and Mott sued Marshall, contesting President Madison's determination that there was an invasion permitting the federalization of the militia. Mind you, this was the War of 1812, where they burned our capital to the ground. So facts on the ground, a little different, I'll grant you.

C (23:52)

Distinguishable, one might say.

A (23:54)

The court concluded that the determination whether an actual or imminent invasion had arisen was not, quote, an open question upon which every officer may decide for himself, but belongs exclusively to the President, and that his decision is conclusive upon all other persons. All right, David. So is Martin v. Mott distinguishable?

C (24:17)

Oh, heck, yes. Absolutely. You're talking about a declared war against the world's largest or most powerful nation at that time that actually invaded our country, that actually, as you noted, burned our capital to the ground, invaded it down south in Louisiana, and I mean, fighting raging all up and down the continental United States with a global superpower.

A (24:42)

Okay, I get that the facts are different, but that's not what the Supreme Court said. They didn't say, obviously. Obviously it's an invasion, you moron. Jacob Mott, they said this is he may decide for himself the decision belongs exclusively to the President, and that his decision is conclusive. So they weren't saying the facts were so egregious that it was obviously an invasion. They were saying it was up to the President to decide whether it was an invasion and that it was exclusively his decision whether it was an invasion.

C (25:11)

I totally get that. But one of the first things you learn in law school is the facts really matter in cases and that there is a difference between judgment, you know, core holding, dicta. But if you're bringing up a challenge to presidential authority in the middle of a declared war, and the language in response to that challenge to presidential authority in the middle of a declared war is sweeping that does not necessarily mean that that sweeping language was ever intended to apply to very substantially, very substantially different facts. And so, yeah, I don't find the idea, I think you can't obviously just discard Martin vs. Mott, but the idea that a case decided essentially around draft dodging and The War of 1812 is going to be binding on a case involving street violence in the year 2025, domestic street violence in the year 2025. I just think one of these things is not like the other, Sarah. Now, the Supreme Court could come to the same conclusion, but I seriously doubt they're just going to say Martin versus Mott. Why are we even talking about this?

A (26:25)

So here's where we totally agree. I don't think the Supreme Court is going to give one fig about Martin versus Mott, speaking of euphemisms, and for a few reasons. One, as you say, regardless of the language, facts do matter. But also a case from 1827, I just think it's hard to say that we're going to read each word of that as, you know, super specific binding precedent in such different circumstances. It would be different if it were sort of modern. I think, actually if this were like even the steel seizure type situation. Modern enough. Right, but like, different presidency, different National Guard, There's a freaking foreign power invading the country. Like, yes, of course that's exclusively the president's prerogative. Frankly, it's a different presidency. The powers of the president were just so fundamentally different. The size of the federal government, so fundamentally different. The size of local police, so fundamentally different. Okay. However, actually, did you say how you think the Supreme Court will come down or just that you don't think that they'll be relying on Martin v. Mott?

C (27:34)

Oh, I did not say I think the Supreme Court will come down. I don't think they'll be relying on Martin v. Mott. I'm actually going to be. Let me put it this way. The 7th Circuit case is the one from a factual standpoint that is sort of most favorable to those who are seeking to block the deployment to the, you know, to the governor of Illinois. The Portland case, from a factual standpoint, is less favorable to, you know, in that case, the governor of Oregon. But my concern is this. I don't think that Trump should. I do not think that this statute empowers Trump to do this under these circumstances. And I think that Trump's speech and the way he's talked, the fact that he has said false things about the conditions on the ground should diminish the deference the court grants him. I think that the Oregon trial court, a Trump appointee, by the way, got that 100% right, that, yes, there's going to be a default level of deference, but when the President is engaging in bad faith rhetoric, false rhetoric to justify his deployment, he loses the deference. This is something that's really an old doctrine in equity court. You come into the court, if you come into a court with unclean hands in an equity situation, then a lot of the deference starts to fade away. You're losing. You're losing the benefit of the doubt when you're coming in with unclean hands. And so that's the way I think it should turn out. But, Sarah, you and I both know that the Supreme Court, the Supreme Court, I am not in harmony with the majority of the Supreme Court when it comes to executive power. And so I'm in harmony with the majority of the Court on many, many things. I am not in harmony on this executive power. And my concern is that this is going to kind of slide into one of those categories, like the executive immunity decision, where there's this sort of broad deference to the executive's control over the way in which the executive exercises control over the executive branch. There's just going to be incredibly broad deference to that, as there has been so far in a lot of the emergency docket cases. I think too much deference. But if you had to make me bet, I would say that especially if the Portland case winds up really truly as the centerpiece case, then if push comes to shove, I would predict the court would, in my view, wrongly uphold these deployments. But one thing to bear in mind, if, let's say, the court does what I think it should do, does not grant the President deference under these circumstances, holds that the facts do not justify a military, military deployment, what happens next?

A (30:19)

He invokes the Insurrection act, and you agree he wins under the Insurrection Act? If he had invoked the Insurrection act, he would be in Sailing Blue Waters.

C (30:29)

Yeah. Let me put it this way. I've not seen a compelling argument that he isn't, because the statute's written very differently.

A (30:37)

So just to summarize your point here, you don't think he should have sent in the National Guard? Just from a policy standpoint, if you were President, you wouldn't have sent in the National Guard. You don't think Congress gave him the legal authority under 12406 to federalize the National Guard in this situation, but you do think Congress gave him the authority if he were to invoke the Insurrection act to do so.

C (30:59)

Yes, because the Insurrection act is written just very, very differently. Now, there is some value in the Supreme Court saying, no, you can't do this because it is a very different statute. The president has engaged in bad faith rhetoric around the statute, around his deployment. There's value in saying that no under these circumstances, because part of the value is, if you're thinking about reforming the Insurrection act, how can you write it differently? Well, here's one way that you can write it differently. By not granting the President absolute discretion by referring to objectively existing conditions, rather than referring to the President's judgment about the actually existing conditions. Those are two different things. So. And then also there's just the simple reality that invoking the Insurrection act is politically different. That's the sort of H bomb that's, that's dropping the, you know, legal nuke. And in that circumstance, if the court is a very big, is a believer in political accountability, which is the only accountability that really lies. If he invokes the Insurrection act, then let's have the chance for it. Let's have the chance for it. Don't have a prophylactic ruling that prevents the. That that belays the invoking of the Insurrection Act. No, they're two different statutes, two different standards.

A (32:18)

Okay, so I disagree with almost everything you said, except how the Supreme Court will come out. Let me run through the same three things I summarized yours as. One, if I were President, I would not have sent the National Guard. Two, I believe that 12, 406 does in this case allow the President to federalize the National Guard, but I wish it didn't, if that makes sense. I would also write this differently, and I think the Insurrection act would allow him to send in the military or the National Guard. Okay, so let's take the rebellion section first. And remember, it's an or. If there's a rebellion, that would be.

C (32:53)

Enough, or danger of rebellion, fine.

A (32:56)

But I basically agree that the facts have not been met for that, and I wanted to read from the 7th Circuit because I think they got this just spot on. Political opposition is not rebellion. A protest does not become a rebellion merely because the protesters advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the US Government, use civil disobedience as a form of protest, or exercise their second amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by, they say, rogue Participants in the protest. Such conduct exceeds the scope of the first amendment, of course, and law enforcement has apprehended the perpetrators accordingly. But because rebellion at least used deliberate organized violence to resist government authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion. Now, I want to be clear. I think I do disagree with how I would characterize the facts in Chicago. There are egregious facts in Chicago. According to the administration, on October 4, the day of the president's order, a customs and border protection vehicle carrying federal law enforcement officers was intentionally boxed in on a public road in Chicago by approximately 10 civilian vehicles. Two cars then rammed directly into the government's vehicle. When the federal officers exited their vehicle, one of the cars that had rammed into them drove directly at a border patrol agent who drew her service weapon and fired at the driver who was hit, but flashed, fled, was arrested later in possession of a gun. Approximately 200 rioters.

C (34:34)

By the way. That incident is massively contested, by the way. You can't just walk in as the federal government throw a bunch of bs into an affidavit and get a military deployment.

A (34:45)

You can't make things up. But if it's contested, that's fine. I think so. Here's approximately 200 rioters gathered in the area after the shooting, throwing glass, bottles and other objects at at the federal agents. The Chicago police initially refused to assist the agents and eventually responded more than an hour after the shooting. When the Chicago police refused to respond immediately, DHS attempted to send its own quick response force to the area, but the vehicle carrying the response was itself rammed en route. Later that day, ICE officers in a government van were surrounded elsewhere in the city by protesters who slashed the van's tires. The ICE officers called for assistance, but no federal law enforcement officers were immediately available to respond because they were already attempting to deal with the days earlier incidents. The ICE officers were forced to abandon their vehicle and flee for safety. Okay, so this gets to the second part here, David, which is unable to execute the laws. The 7th Circuit says we basically don't need to resolve this issue because we conclude that the administration has not met its burden. Under the facts as found by the district court, there is insufficient evidence that protest activity has significantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations. And although federal officers have encountered sporadic disruptions, they have been quickly contained. At the same time, arrests and deportations have proceeded apace. This is where I actually do think that the federal courts don't get to second guess the president in a broad, broad sense of reasonableness. I agree that if he's totally making it up, fair enough. But in this case, where there are examples of violence against officers, where local law enforcement has not been sufficient to end the violence against officers, including slashing of tires that obviously impede the ability of them to enforce immigration law. That I think they have met the standard under part three. And I think your point about the jawboning is incorrect. I think the president's jawbone all the time and exaggerate things. I mean, if you like your doctor, you can keep your doctor. If you like your health insurance, you can keep your health insurance. We don't then say when the president goes in to argue about the constitutionality of Obamacare that somehow he has unclean hands because that proved to be untrue.

C (37:05)

No, that's. But that's not relevant to a statute, David.

A (37:10)

Yeah, hold on.

C (37:10)

It's very relevant to factual determinations though.

A (37:13)

The facts as pled matter. If you make up facts in your pleading to the court. I agree that then you can have unclean hands. The president's social media account cannot cause unclean hands doctrine that you're talking about because that is a court doctrine. So yeah, so I think the supreme court will fine for the president. I think they should fine for him under unable to execute the laws. I think courts are inserting themselves and I think the reasonable president standard is dumb. It's a bad standard. When we get back, David will tell me why I'm absolutely wrong. Hablas espanol spries?

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C (38:23)

I mean, I gotta say, Sarah, those facts do not impress me at all when it comes to rebellion against the authority of the United States.

A (38:32)

No, no, no, not rebellion. I've already said I think rebellion. That this is a loser on rebellion. Unable to execute the laws.

C (38:39)

Unable to execute the laws because the tires are slashed on a car.

A (38:43)

Literally, you're unable to execute the law. If you can't drive your car by.

C (38:47)

That standard, you can call out the military every time a vehicle is disabled. Think about it on the spectrum like this. You've got normal First Amendment protected activity. Then you have civil disobedience. Civil disobedience, which, by the way, can make people unable to execute the laws by blocking entry or exit from a particular facility. So, for example, if you block an exit for a facility and it takes an hour, two hours, three hours, however long to remove peaceful protesters, well, in that period of time from that facility, people can't do their work fully. That's not the same thing as you can't execute the laws of the United States of America.

A (39:24)

So what happens if it's every day? What happens if it's the whole day, every day? At some point you can't execute the laws? And who gets to decide that?

C (39:33)

Wait a minute. Okay, what are we talking about here? Are we talking about in one area of Chicago, are they impeded? Occasionally, which is very different because I'm in Chicago, not right now, but I'm in Chicago. And they're executing the laws all over the place. There are helicopter raids, there are raids all over Chicago. They're being impeded in particular locations on a very temporary basis.

A (39:56)

But I think we're talking past each other a little because mine's a little bit more on who gets to decide whether they're able to execute the laws and whether these unlawful. Look, if they were like permitted protests, I would totally agree with you. If they were lawful protests, we're talking unlawful actions for the purpose of impeding law enforcement that are, in fact impeding law enforcement. Who gets to decide when it's reached the level of unable to execute the laws? I think it's the president, not federal judges, and I think that's what the court's going to say.

C (40:31)

Yeah, I agree with you that that's what the court's gonna say. And it's ridiculous in a lot of ways because the idea that these circumstances were the reason for this statute just strike me as mind blowing.

A (40:44)

In one common tactic, one rioter would jump on the hood of a car coming into or out of the facility and another would stand immediately behind the car while the driver stopped the car in the face of these obstacles. Others would run up to the car and slash the tires, and they have had to create convoys to get federal employees into the facility because of, again, unlawful activity and violence at the facility where local law enforcement has not been sufficient to stop that from Happening, clearly, because it's still happening. At some point, the president gets to decide if local law enforcement isn't able to keep my guys safe. They are unable to execute the laws. Therefore, I have to have enough police presence to prevent this from happening every day.

C (41:32)

Well, police presence, yeah, Police, fine.

A (41:35)

But the local police aren't doing enough because it's still happening.

C (41:38)

You have an enormous, enormous federal police. You have enormous federal policing apparatus. Just vast, just huge. And it's growing every day. People are trained in policing, trained in.

A (41:53)

Wait, so you're saying they should send FBI agents to do it instead of the National Guard? Cause that's the only federal police force we have.

C (41:59)

The advantage of the FBI is they're actually trained police.

A (42:01)

But again, but that's sort of like, here's the problem. If you're moving the FBI over, those guys were doing something else. So now you're not executing some other federal law. But. Okay, I think we've done our part here. Let's talk, David, about Trump demanding $230 million from his own Department of Justice. Okay, so in 2023, Trump sent a letter seeking damages for a number of purported violations of his rights, including the FBI and special counsel investigations into Russian election tampering and possible connections to the 2016 Trump campaign. Then, in the summer of 2024, he sent another letter asking for damages for violating Mr. Trump's privacy by searching Mar a Lago, his club and residence in Florida in 2022 for classified documents. It also accuses the Justice Department of malicious prosecution and charging him with mishandling sensitive records after he left office. Asked about the issue at the White House, the President said, quote, I was damaged very greatly, and any money I would get, I would give to charity. I'm the one that makes the decision. And that decision would have to go across my desk. And it's awfully strange to make a decision where I'm paying myself. Yes, it is, Mr. President. So, David, what makes this interesting to me is this is a version of sue and settle. We've talked about sue and settle before in sort of a policy context where when your preferred political party controls the White House and therefore the Department of Justice, you sue them about some policy or regulation that you don't like. They settle because it's faster to do that, then follow the APA process for getting rid of the regulation, for instance, or politically, maybe it provides you cover rather than having to change the policy and it's an end run. Right. So you get sued by a friendly and then settle with the Friendly. So the other way that this works is that you get sued by a political ally for money damages, and then either because you want to give them the money or because it would be really politically awkward to argue with them in public, basically, about the money, you give them the money. The case I will mention here is the Lisa Page and Peter Strzok case. Now, full disclosure. I was involved in the facts of this and in fact, was deposed in this case. This involved two FBI employees who were having an extramarital affair and were conducting it over their work phones. They were both working on the Russia investigation. There was then an investigation into the employees. The civil head of the Privacy and Civil Liberties Office at the Department of Justice sent a letter saying that it would not violate the Privacy act to release those text messages to Congress or to the media. That was done by me. Again, full disclosure. I am very involved in the facts of this. Unfortunately, for our purposes, the Privacy act requires. To violate the Privacy act, you have to have knowingly violated the Privacy Act. And I would argue that it would be impossible to prove that I or Rod Rosenstein, the Deputy Attorney General, knowingly violated the Privacy act when we had a letter from the head of the Privacy Office saying we weren't violating the Privacy Act. Really hard to knowingly violate a law that you're told you're not violating. Regardless, it was getting pretty awkward for the Biden administration to be sort of publicly fighting with Lisa Page and Peter Strzok, who would appear from time to time on cable news, for instance, as analysts. So they settled with them for $1 million. And I would argue that's a pretty good example of a sue and settle on a settlement side on money damages. But, David, there are some differences here. $1 million is different than $230 million. The president is different. There is no adversarial process when it's the President himself asking for the money. So it's like, there's no sue and settle. There's just settle. Like, I don't even know how to describe it. There's not two parties to this lawsuit at this point. Now, I will say, like, in terms of the facts, his fact argument, you can say it's like, ridiculous or stupid or something like that. But this is the same lawsuit that the Department of Justice gets all the time, right? You get investigated for something, but they don't bring charges. And now you want damages because you think that by the fact that you were innocent or they didn't bring charges, which, by the way, are different things, that therefore they've violated your rights somehow. No, no, no, no, no. But like a very common practice when the Department of Justice doesn't bring charges. So, David, what the heckers are we supposed to do about this?

C (47:00)

When you really walk through it, it's so much worse because the Justice Department did bring charges that Trump then has dropped, and then Trump orders the payment, a massive payment. Maybe we'll see if this all works out as compensation for the charges that were dropped because of his victory, not because he was vindicated in court.

A (47:22)

Well, two separate things. The first letter, remember, is on the Russia investigation where no charges were brought. The second letter is on the cases where charges were in fact brought related to the classified documents, for example. But so let's pretend, David, that we're only talking about the first letter, the Russia investigation one, because that's at least better in the limited sense in which you're talking. Charges were not brought. The Mueller investigation found that they did not find sufficient evidence to believe that Donald Trump worked with the Russian government to aid his campaign. Though, again, I want to be clear, the Mueller investigation absolutely found that the Russian government interfered in the 2016 election. And in fact, the Department of Justice, while I was there, charged 12 Russian intelligence officers with doing just that. So lots of people on both sides like to tell me what the Mueller investigation actually said. And it drives me up the wall because basically neither side got what they wanted out of it. And so they're all real mad at me for some reason when I try to explain what it actually said, because I actually was there.

C (48:33)

I knew when we were going to get to this, you were going to have some thoughts. There's just no way this is anything other than remarkably corrupt if it actually happens. It's also very difficult. Guess what, Sarah, there's a theme here to do anything about it, because, you know, in if you're even looking at it sort of from the standpoint of how could you stop it legally? I mean, is there some argument that these funds were appropriated for one purpose or being missed? I mean, this is one, this is one of those situations where I can imagine George Mason in 1787, 1788, standing up and saying, gentlemen, my Federalist colleagues, you do realize under the Constitution you have drafted, the president could order the treasury to pay himself $230 million as compensation for the pain, suffering legal fees that he feels that he endured as a result of an investigation. And James Madison rises up and says, my good friend, George Mason, I admire your imagination. However, there is an impeachment remedy what President would possibly pay himself hundreds of millions of dollars from the public fisc and believe that he could get away with that without being impeached by the competing branch of government. That's what we're dealing with. This is the kind of behavior that really there's only one remedy for, and that remedy is just not coming. It's just not happening.

A (50:00)

Okay, David, I want to. This isn't strictly legal, although it implicates legal things. Helen Andrews wrote an essay, the Great Feminization. It is making its rounds and I just. I'll read this paragraph to you. The problem is that female modes of interaction are not well suited to accomplishing the goals of many major institutions. You can have an academia that is majority female, but it will be female, as majority female departments in today's universities already are oriented toward other goals than open debate and the unfettered pursuit of truth. And if your academia doesn't pursue truth, what good is it? If your journalists aren't prickly individualists who don't mind alienating people, what good are they? If a business loses its swashbuckling spirit and becomes a feminized, inward focused bureaucracy, will it not stagnate? David, the essay I did find interesting because I think there's two questions here, both of which are interesting to me. One, what happens when institutions become majority female or reach a female tipping point? I've talked about this a lot that I've noticed as various industries reach that female tipping point through the last 70 years or so, I think those industries become less valued, both socially and monetarily, by the way. And I would love to have really interesting historical and sociological conversations over why that might be. A second interesting question is why it seems so many of our institutions that are meant to seek truth have been struggling with that in recent years. However, I don't know that either of those conversations were particularly well had in this essay.

C (51:42)

Let me read a little bit more. So it talks about the cancellation of Larry Summers or the cancel culture around Larry Summers. This was a 2005, a lot of our listeners like this is a deep pull, a 20 year old controversy where he basically had said that there was different availability of aptitude at the high end with men. In other words, this is talking about at the very peak, peak, peak levels of performance, do men sometimes do better or men do disproportionately well? And this caused a big stink. There was a lot of argument on the merits. There was a lot of emotional argument.

A (52:21)

Let's be clear. Also though, like evolutionarily and just factually it is true that the bell curve has longer tails for men than it does for women. Both tails, right? Men are more likely to be at the lowest ends and the highest ends of extreme differences in all sorts of things. IQ is one of those, and it makes sense, right? Like women are much more needed to propagate the species. We have a lot of men we can waste, frankly, on biological experiments as a species, I mean.

C (52:53)

Well, we'll table that discussion for later, but these are the paragraphs I want to read. The cancellation was feminine. She's referring to an essay that she approved that she liked. The cancellation was feminine, the essay argued, because all cancellations are feminine. Cancel culture is simply what women do whenever there are enough of them in a given organization or field. That is the Great Feminization thesis, which the same author elaborated upon at book length. Everything you think of as Wokeness is simply an epiphenomenon of demographic feminization. The explanatory power of the simple thesis was incredible. It really did unlock the secrets of the era we are living in. Wokeness is not a new ideology, an outgrowth of Marxism, or a result of post Obama, post Obama disillusionment. It is simply feminine patterns of behavior applied to institutions where women were few in number until recently. How did I not see it before?

A (53:54)

And to be clear, David, she says she is most concerned about the great feminization as applied to law, as applied to HR and employment law in corporate world. Basically, she says this is the greatest threat to the rule of law, the feminization of the rule of law.

C (54:11)

And if you do not think that that is. If you think that that is an actual that Sarah is exaggerating. Let me read to you the key quote here. The field that frightens me the most is the law. All of us depend on a functioning legal system. And to be blunt, the rule of law will not survive the legal profession becoming majority female. The rule of law is not just about writing rules down. It means following them, even when they yield an outcome that tugs at your heartstrings or runs contrary to your gut of which party is more sympathetic. A feminized legal system might resemble the Title IX courts for sexual assault on college campuses established in 2011 under President Obama. These proceedings were governed by written rules, and so technically they could be said to operate under the rule of law. But they lacked many of the safeguards our legal system holds sacred. Now, I completely agree that the Title IX courts on campus are in many of them were due process atrocities. Completely agree with this have made this argument for many, many years. And in fact the Title 9, there's been a lot of Title 9 reform in response to this. But can I just say for a moment that if you're going to make an argument that feminization is making things worse, in other words, that we had a really great rule of law and then here comes women, you're going to have to reckon with what the rule of law was like in this country when the profession was 100% male. Okay. And can we just refer to like maybe the most masculine, stereotypically masculine area of the country, the south, when the profession of law was 100% male in the South. It was one of the most brutally unjust places. In the end, it was the most brutally unjust place in the country. I mean the favoritism, injustice, I mean, let's even put aside slavery for a minute. And just the almost hundred years of Jim Crow. Are you kidding me with this stuff? Are you kidding me? Here's the way I would think about this. I thought about this. Sarah. There is room for a couple of really interesting discussions here. One interesting discussion is what is the cultural consequence consequence of a profession becoming majority female? Why does it seem to happen that a lot of guys tend to leave professions when they become majority female? That's a very interesting question to have. Also, it is absolutely true that. That even the most well intentioned quest for justice can have unjust manifestations is a good way of putting it. So, for example, the quest for preventing hostile environment harassment in colleges resulted in speech codes. The quest to deal with the problem of a sexual assault on college campuses resulted in, for example, the Title IX tribunal. So it is true that the quest for justice can have unjust manifestations. So there's very interesting stuff to be said about all of that. This was not that, you know, another one. It just sort of this idealized version of. This really idealized version of masculinity is. So you're dealing with a very, very negative view of masculinity, I mean of femininity and a very, very positive view of masculinity. And including some just howlers like men therefore develop methods for reconciling with opponents and learning to live in peace with people they were fighting yesterday. In other words, men are just great at saying, let bygones be bygones, even if there's war. I mean, there was something called the Hundred Years War, Sarah. There's been things called the Thirty Years War, the Troubles in Belfast decades. How long has the Israeli Palestinian conflict been going the fact of the matter is dudes can hold grudges and pass them down to their children's children's children is what men can do. But yeah, there are some men who can have a fight, say in a boxing ring and hug it out at the end and it's all good and fine. But to say that that is typically masculine when like the Hundred Years War is not what, you know, what are we doing here? So it's just this incredibly historically bizarre deeply. And you hate to use these words when you're talking about a woman speaking, but it just reeks with contempt for anything female. It's really remarkable.

A (58:32)

So here's how the essay ends. Here's the solutions she presents. Right now we have a nominally meritocratic system in which it is illegal for women to lose. Let's make hiring meritocratic in substance and not just name and we will see how it shakes out. Make it legal to have a masculine office culture again. Remove the HR ladies veto power. I think people will be surprised to discover how much of our current feminization is attributable to institutional changes like the advent of hr, which were brought about by legal changes and which legal changes can reverse. That's, you know, the second to last paragraph. Those are her solutions for this. That's it. First of all, there's like nothing specific in there. I'm not sure what she actually wants to change. If she's saying that we should have a hiring system that doesn't violate the law, I agree. And I even agree that we don't totally right now. Right. That like affirmative action when it comes to gender absolutely is a thing in some places, in some professions, but it cannot possibly explain or fix the feminization that she's talking about. Where entire fields, like pediatrics, for instance, like gynecology. Just thinking of medicine here. That's not affirmative action for women. That's women choosing a field, then reaching a tipping point so that it becomes a female majority field. And then as you say, David, men are more likely to leave a field that has become female majority. That has nothing to do with hiring practices. Okay, let's have a masculine office culture again. I'll set aside any of the problems that might have occurred in an office culture before women had any sort of presence in the office. Remove the HR lady's veto power. Yeah, I mean, look, I also am against the sort of prophylactic upon prophylactic when it comes to human resources policies. Right. Like they're not just preventing violations of the law and hostile workplaces for women. There's like so many layers upon layers to prevent that so that you don't get anywhere close to it. Yeah, I'll agree. Sometimes that's a mistake. Don't know that that's title seven's fault. Like that. That's the law's fault. That's lawyers faults for wanting all those prophylactics, by the way, an industry that is still not anywhere close to majority female at the actual decision making, you know, partner level, general counsel level, chief legal officer level, ranks, all things that she never addresses in this at all. So anyway, David, as you said, there's really interesting conversations to be had here, including interesting legal conversations to be had here. But this wasn't it because again, there were no real legal conversations aside from sort of waving hands in the air and saying rule of law problem. But then the solution is remove the HR lady's veto power. What? I don't even, I really don't know what that means. So David, I mean, maybe we should leave it there for now and we'll see what the comments have to say about this. I'm sure there'll be interesting questions and pushback. I'm for all of it. And we'll, we'll get back to you on this one. How about that? All right, David, wrapping up this podcast, do you remember a few episodes ago where I talked about what I believe to be the fastest precedent flipped by the court? Go Bites where the court holds it. A state law demanding all students in public schools stand and recite the Pledge of Allegiance. Even Jehovah's Witnesses who had a religious objection was constitutional. This was Justice Frankfurter at his judicial minimalist best is then overturned by West Virginia versus Barnett. So Gobitis is in 40. West Virginia versus Barnett is in 43. Really fast. Three years, my goodness. And I was like, I think that's the land record speed for the Supreme Court overturning its own precedent. Justice Jackson, Robert Jackson writing the Barnett opinion with the most famous line in First Amendment Supreme Court history. If there is any fixed star in our constitutional constellation, it is that no official, high or petty can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Ah, we should all be just breathing in that sweet, sweet Justice Jackson. Yes, but David, we got this email from a listener who said, what about the murdering wives? And I'm sure you're thinking to yourself, what about the murdering wives? I'm glad you asked. So in 1957 Reed v. Covert was the case of two women who murdered their husbands. And I mean, they murdered them real dead, David. Their husbands were both in the military. The facts of the case are somewhere between tragedy and farce. Right? I mean, one of the women was clearly very disturbed. It would, I think, remind us a lot of like, sort of postpartum delusions like that that we've seen sort of women have in the modern era. The other one just hated the son of a. Anyway, they're on military bases overseas when they murder their husbands. The Supreme Court first holds in 1956 that they can be tried by court martial without violating their constitutional rights as civilians. But then the Supreme Court agrees to rehear the case, even no change in personnel. David. They rehear the case in a 1957 flip. Their decision that in fact, the two women cannot be tried by court martial, that doing so that part of the military code violates the Constitution. Trying civilians, even on military bases, even for killing military personnel on military bases, that you can't be tried by court martial. But David, I would argue to you that this does not affect my Gobitis to Barnett flip. Because it was rehearing. That's different. It was literally the same case. Therefore, it was never precedent in Reed v. Covert when it's the exact same case in rehearing. Do you agree with me 100%?

C (64:57)

Completely agree. It's still Gobitis to Barnett.

A (65:00)

Okay, so for what it's worth, read v. Covert is the only case where the Supreme Court has flipped itself on rehearing. So it is its own record, if you will. But it's not flipping precedent. Flipping precedent to me requires a different case that clearly overrules the previous precedent.

C (65:18)

Completely agree. Love that factoid, though. That's fun.

A (65:22)

Yeah. And like, again, feel free to go read the facts. Brittany Warren has written A great article, 2013 in the military Law Review that gives extensive treatment to the law and the facts. And again, the facts are quite tragic for the husbands at least, if not for the wives. Although the wives went on to go live their lives and did not commit any more murders that I'm aware of.

C (65:47)

Well, isn't that a relief?

A (65:48)

And I believe that the one wife lived until quite recently. She, you know, died a decade or so ago. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisoryopinionsthedispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.

D (67:17)

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Uh, Limu is that guy with the binoculars watching us?

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