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You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We're going to start with the narco boat strike. And reporting from the Washington Post about about a second strike on survivors of that very first boat strike. And we'll walk through the December calendar just a little bit. A documentary about friend of the pod Ramon Martinez, as well as two circuit cases, one upholding sanctions against Donald Trump and Alina Haba, and the other one holding that Alina Haba cannot serve as the acting U.S. attorney. And finally, that Georgia case dismissed alone against Donald Trump. At long last, the end of the Fani Willis saga and a couple little notes from the last pod. If you haven't heard the term some rev. We're going to do it now.
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A
Pick up some Coca Cola at a store near you. Okay, David, let's start with this Washington Post story. Now, this is an appellate podcast. We're not really here to dispute facts. And I think for the legal purposes, the best thing we can do is assume that everything in this Washington Post story, the headline of which is Hegseth Order on first Caribbean Boat strike Officials say colon kill them all. As two men clung to a stricken burning ship targeted by SEAL Team 6, the Joint Special Operations commander followed the Defense Secretary's order to leave no survivors. So first, we're going to assume that what's in this story is correct. It is based on anonymous sources. I think you know how I feel about that generally. You know, I think there's reasons to believe that there's, you know, some things that aren't correct in this story. But again, for this podcast purpose, it's interesting to talk about the law, but we have to agree on the facts first. So we're not saying this is the truth of the matter asserted. We are simply saying if the Washington post story proved 100% correct, here's what we know about the law. The second assumption, David, is that the boat strike itself. The like original legal analysis of whether the US government can strike these boats in the Caribbean is lawful, which at you, Andy McCarthy, many others have questioned to begin with. But it's like, okay, if that strike is lawful, they strike the boats, there are two survivors clinging to, you know, floating flotsam, I guess we call that in the water clinging to flotsam. What are you allowed to do at that point? What is the parameters? That's the question. Really?
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B
Yeah. So I think it's important that you outlined all of these caveats. In particular, it's important to outline the caveat regarding the legality of the initial strike because as I explained in a New York Times column a couple of weeks ago, the reality is if you're a pilot, if you're a gunner, if you're the person pulling the trigger, you're not adjudicating the legality of the underlying war itself. Okay, that, that is reserved from Nuremberg forward. That is reserved for the higher echelons. It would be absolutely unworkable as a military if you had a situation where everybody from private to four star general was evaluating whether the underlying conflict was itself legal before they were engaged in combat. That's not the way it works. Once the ranks are ordered to combat, they're entitled to presume to that they're there, that the actual military operation itself is lawful. Now once they get that presumption, however, they still are bound by the laws of war regarding any individual strike. So for example, if you were going to be a pilot in Iraq and you're told to drop a bomb on a house, you couldn't say no because there were no WMDs. And therefore the predicate for the war was incorrect and therefore the war is unlawful. And so therefore I'm not going to drop this 500 pound bomb. No, no, no, no. That would. The decision has been made. Now if it comes to actual dropping the bomb itself, are there civilians present? What's the target? You know, how high quality is this information? Those are kinds of things that are important to know. So yes, we should not presume, we should not evaluate the strike in the light of the decision to strike in. However, once a decision has been made, the actual individual operators are responsible for manifestly unlawful acts. In other words, an act that is an order that's unlawful on its face, that is under the Cali precedent from Vietnam, where an American soldier is supposed to refuse. Okay, so what are the orders at issue here? There are really two orders at issue to be evaluated. One is the initial underlying order. No survivors.
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A
Now wait, stop here for a sec. Okay, so Defense Secretary Pete Hegseth before any of the strikes, before any strike has ever happened, because this is the first boat strike ever that we're going to talk about, according to two people with direct knowledge of the operation, quote, the order was to kill everybody. Okay, so this is before strike one. Now they make strike one, and then you've got the two survivors. And then you have the commander overseeing the operation. He's an admiral Frank Bradley. Mitch Bradley told people on the secure conference call that the survivors were still legitimate targets because they could theoretically call other traffickers to retrieve them and their cargo. According to two people, he ordered the second strike to fulfill Hegseth's directive that everyone must be killed. So to be clear, there is one order from the Defense Secretary. There is no second order for the second strike.
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B
Yeah. So there's two relevant orders. There is the order of no survivors or killed them all or whatever it is. And then the second one is the actual specific directive empowered by the first order to kill the two survivors. Both orders are unlawful. So. So the initial order from Pete Hegseth to kill them all would be a version of a no quarter order. In other words, leave no person alive.
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A
Go ahead and explain why you can't have a no quarter order, but I don't read that that way, or at least I don't think you have to. So go ahead.
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B
So a no quarter order is an order to kill everyone. And the problem with it is that it absolutely conflicts with very basic principles of the laws of war, that when somebody is out of act or de combat, however you want to pronounce it, somebody has surrendered, somebody is disabled, somebody is clinging to wreckage in the ocean. Different obligations lock in. You have an obligation of. To imprison, to provide basic medical care, to provide for their safety, for their et cetera. A no quarter order would be wounded people killed, surrendering people killed, people clinging to wreckage killed. That is clearly has been unlawful, I believe, since the Lieber codes going back into the 1860s. So this is something that's just very clearly unlawful for American forces. Now I'm very interested how kill them all is ambiguous. It could be interpreted differently. But if you interpret, if a fair interpretation of that order is a no quarter order, it would be incumbent on the subordinates to then Say sir, no quarter orders are unlawful. Can you clarify please?
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A
Fair enough. Wait, I just want to do some history real quick. Let's go back. Because there were no quarter orders given by the British during the Revolutionary War. As we've learned from Kens burn documentary. What if, I mean, right, we're back in the 18th century. You don't have the food resources, the ability to take people with you and they're wounded. Isn't it maybe more. Isn't it a kindness, I guess is my weird question, to kill people rather than to torture them by leaving them there, for instance.
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B
A kindness to kill is always going to fail as an argument. And so I think that the. What you have to understand about the laws of war, and this is something that I think often people do not understand, is they were created in part because the effects that they have, the effects that their violation has on the combatants and the combat itself. So what you're talking about, those laws of war essentially followed. They did not precede, they followed a lot of atrocities that sort of violated the combatants basic sense of honor and decency. And among those would be killing of prisoners. What it tends to do is, tends to whip both sides into an absolute frenzy, which means that wars are prolonged, that they continue well beyond the point that they should end because surrender is not an option. And if surrender is not an option, what ends up happening is wars become more vicious, more brutal. There's only a billion reasons why if you want to have any humanity at all in armed conflict, that killing of incapacitated people is. I mean this is something that was when we were conducting war crimes trials of Germans and Japanese after World War II. A no quarter order and, or a order to machine gun, say survivors of a U boat attack or a Japanese destroyer attack, et cetera, survivors struggling in the water. These were war crimes prosecuted after World War II for the very good reason of what no quarter orders and. Or killing survivors and surrendered employees, surrendered soldiers. Does it. What it does is it triggers killing frenzies in essence.
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A
That makes a lot of sense. So regardless of the result, you know, thousands of American prisoners are going to die in British camps from typhus and typhoid. But I take your point, David, that nevertheless, even if you've got a very high chance of dying as a prisoner of war, it is actually still better for the conduct of war. There's a. Basically this no quarters thing is a Chesterton's fence issue. We've tried it without the no quarters or no no quarters order and it didn't go well, okay, so this is my argument to you, David. We have a clear paraphrase of the order, right? The quote in the Washington Post is, the order was to kill everybody. One of them said that is obviously not a quote from the Secretary of Defense. I think it is not outside the realm of possibility. Now I'm doing the thing I said we weren't going to do, which is questioning the facts in the story. But I guess my point is, like, no, even if someone telling you that the order from the Secretary of Defense was to kill everybody, there's not quote marks around kill everybody. And so the story itself has an ambiguity for me. That is, what if Pete Hegseth was simply in context, if you read the transcript, saying, do the first strike, which he believed in any, I think, pretty normal person would think would kill everybody, right? Hit this boat with a projectile that explodes in a large body of water. You know, like, I could see an order like that coming from a frankly inexperienced Secretary of Defense sounding something like kill them all, even though it's clear from the context he means strike the boat, as we discussed, per the operations that I'm greenlighting now, when you then have two survivors. I guess where I wind up, David, is that the Admiral is actually the only one based on this story that we know gave an unlawful order when he said to strike the second boat because those traffickers might be able to call for help. Like, that's the most bizarre thing I've heard. And even if he thinks he's giving it based on Hegseth's order, again, we don't have any quotes in the story about that. But nevertheless, I find it strange. I mean, this isn't a political appointee. He's the JSOC commander and an admiral. You know, the idea that he would give such an obviously unlawful order, despite all of his decades of experience, I guess, is why I said at the beginning, we are assuming that this whole story is true, even though I personally, I guess, have some real questions about whether all of this could be accurate. Because in the end, due to my, what I'll call my war crime avoidance canon with the Hegseth Order. And I think, by the way, it's not just my war crime avoidance canon. I would think the Admiral would use a war crime avoidance canon when he himself is trying to fulfill a directive from the Secretary of Defense. If you've got an ambiguous order and you've got two ways to interpret it, why would you interpret it the way that leads you to commit a war crime? That seems bizarre. To me again, he's a very experienced admiral. And then based on my war crime avoidance doctrine, you read the Hegseth order my way, which is simply he's green lighting the first strike that we all believe is going to kill everyone. It doesn't. And then I'm supposed to believe he gave what is obviously an unlawful order, doesn't go back to the Secretary of Defense. In fact, according to the story, doesn't talk to anyone, and kills the two people. And then the headline is hegseth said kill them all. Yeah, basically, David, it's so obviously unlawful. The no, no quarters order thing is so well known. And again, like, the idea of shipwrecked people goes back to the 19th century as well. Like we have so much law on this. Any admiral, anyone I would think would be well aware that you don't kill two guys who are floating in the ocean. So how do we get here except thinking that maybe some parts of this story are inaccurate?
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B
Yeah, well, there's other elements here that are. Have not been discussed yet. Another element is that there was later on a strike at which individuals were rescued and then released. Okay, after that.
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A
Yeah. So after this, after they kill the two guys who survive this strike in strikes that are to come on boats, after that, there are also survivors. And the order is given to go pick those guys up and send them back to the country that they came from, and they drop them off basically, like on the beach, as far as I can tell. Not literally. I think guys, they like, flew them back to an airport and dropped them off, which means something changed again, according to this story, based on this first order and maybe them realizing that that was a war crime.
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B
And we also have the southcom commander resigns. And this is very, very unusual to have your combatant commander resigning in these circumstances with reporting that he resigned over some discomfort regarding these strikes. So we have a. We have a lot of problems and mystery. And then we have the initial Pete Hegseth response to this, Sarah, which only is weird. Okay, so he says, as usual, the fake news is delivering more fabricated, inflammatory and derogatory reporting to discredit our incredible warriors fighting to protect the homeland. And when you have that opening, you think, oh, now we're going to clear the facts. Right. If he's saying it's fake news, then you would think, well, here's the true story. And this is what he says. As we've said from the beginning and in every statement, these highly effective strikes are specifically intended to be lethal kinetic strikes. The declared intent is to Stop lethal drugs, destroy narco boats and kill the narco terrorists who are poisoning the American people. Every trafficker we kill is affiliated with a designated terrorist organization. That's not a denial. That's not a denial goes on. To continue, the Biden administration preferred the kid gloves approach, allowing millions of people, including dangerous cartels and unvetted Afghans, to flood our communities with drugs and violence. The Trump administration has sealed the border and gone off on offense against narco terrorists. Biden coddled terrorists, we kill them. Our current operations in the Caribbean are lawful under both US and international law, with all actions in compliance with the law of armed conflict and approved by the best military and civilian lawyers up and down the chain Command. Our warriors in southcom put their lives on the line every day to protect the homeland from narco terrorists. And I will always have their back. Also additional context, he fired the T Jags at the head of, what was it, Army, Air Force, Navy, also. Well, he fired multiple T Jags. The highest ranked judge advocate in various services. He calls Jags JAG offs. He has a history of advocating for the pardon of people who are clearly guilty of war crimes and is also purging people throughout the Pentagon who he perceives to be disloyal. So we're in a highly unusual circumstance and I agree with you completely, Sarah, that in normal circumstances that this, the fact that an admiral would agree to blow up people clinging to wreckage seems absolutely, utterly bizarre. It would seem to be utterly bizarre that there would be a written order from the Defense secretary that would, could be construed as a no quarter order. That would be absolutely bizarre, Absolutely no question about it. And also we are living in very bizarre times right now in the Pentagon.
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A
Well, it sounds like we're going to hear more about this story. Members of Congress, no surprise, have, you know, jumped on it now that Congress is basically an oversight board and not doing much legislation. My takeaway is that either we will learn more specifics about the Hegseth order that would make an admiral think that that order was different than my war crime avoidance doctrine would allow, or that admiral's in trouble.
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B
Frankly, pre Trump, I would read this story and all of the institutional guardrail hackles would go up in me that wait, you would you have a no quarter order? I don't imagine, I cannot imagine that making it down the chain. Wait, you have an order to double tap people who are in a wreck floating in the, in the ocean? This is basic stuff when it comes to the law of the sea. What really? No. So this would normally be triggering all of my, wait a minute, this is not the military. I know. Kind of cautions. And I do not think that in 12 months Hexith has completely transformed the military into not, not the military. I know. And so there's a lot of gray here that's going to require. I, I think this requires a serious investigation. It requires it. This is not something that we can just leave open as one of those news stories that circulates out there about Trump that we never get a resolution to. No, we need a resolution to this.
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A
Okay, David, I want to walk through how the next few AO episodes are going to go. All right, so for the next episode this week we are going to do a full preview of the Slaughter case before oral arguments and walk people through everything about that so they can follow along with the oral arguments if they want to. Don't forget, SCOTUS blog on Monday will be doing a live blog starting at 9:30 in the morning during the oral arguments. And we will be doing a live podcast as soon as those arguments finish. I don't think it'll take as long as the tariff case, so maybe we're looking at noon Eastern or so for that live podcast to kick off. So our next episode this week will be the full preview of Slaughter. We will go back and review how the Plotkin oral argument, that's the case about state attorneys general using their subpoena power to target potential political enemies. This will be red state and blue states. There's been so many, you know, amici from across the board in that one that's being argued this week. So we'll preview Slaughter review plot can enter next episode. Monday will be the live podcast again around noon Eastern as soon as those Slaughter arguments wrap up. And then our next podcast next week, our second podcast will review some of those other cases because this is just an action packed argument sitting. David. We also have that NRSC case about campaign finance and whether parties can coordinate with their candidates. So lots to go on that one. All right, David, when we get back, we have so much more to discuss. Discuss. There's a documentary starring our own friend of the pod, Ramon Martinez. We have, you know, a few things to revisit from the last pod. And we've got a third Circuit decision, the first appeals court decision on the Vacancies Reform act and whether Alina Haba, for example, can be the Acting U.S. attorney and sign these indictments. This has a lot to say about how Lindsey Halligan also will be signing indictments. So. And there's even more than that. David Sanctions upheld against Trump. The Georgia case dismissed all this and more. When we get back. The Best Way to Spread Holiday Cheer sure, singing works, but gifting an aura frame might be even better. It's the gift that keeps families feeling close, no matter how far apart they are. This year I'm trying to convince my sister in law to come hang out with us for Christmas. And you know how I did it? I sent her an aura frame stocked full of pictures of her two nephews. How can she resist their faces of Christmases past, knowing that she could be a part of this year's festivities? With Aura Frames, you can share unlimited photos and videos for free all through the easy to use Aura app. And before it's even delivered, you can personalize your gift with a message that makes it truly yours. You can't wrap togetherness, but you can frame it for a limited time. Save on the perfect gift by visiting aurafrains.com to get $35 off Aura's bestselling Carver Mat frames, named number one by Wirecutter by using Promo Code advisory at checkout. That's a U R A frames.com promo code advisory. The deal is exclusive to listeners and frames sell out fast, so order yours now to get it in time for the holidays. Support the show by mentioning us at checkout. Terms and conditions apply. I'll report back on what my sister in law chooses to do. A quick word from today's sponsor, the foundation for Individual Rights and Expression. Fire. As more people grow afraid to speak their minds, FIRE is standing up for students, teachers, journalists, parents, anyone being silenced, they this season join FIRE in protecting the First Amendment by making a donation at thefire.org dispatch. As a nonpartisan nonprofit organization, FIRE relies entirely on supporters like us, and every contribution, no matter the size, helps protect the free speech rights of all. If you're listening to advisory opinions, you know why free speech matters. Support Fire's fight to protect it at thefire.org dispatch today, toast the holidays in a new way and raise a glass of Rumchata, a delicious creamy blend of horchata with rum. Enjoy it over ice or in your coffee. Rumchata. Your holiday cocktails just got sweeter. Tap or click the banner for more Drink Responsibly. Caribbean rum with real dairy cream, natural and artificial flavors. Alcohol 13.75% by volume 27.5 proof. Copyright 2025 Agave Loco Brands, Pojoaaukee, Wisconsin. All rights reserved. Okay David, first up, Bloomberg Law put out an hour documentary where it turns out they had followed a case from last term the whole way through, or at least appellately, the whole way through. This is that AJT case versus Osseo area schools. Now, I think we talked about the facts of this case. Just to remind everyone. AJT is a teenage girl with a very severe form of epilepsy. She is basically non communicative and her seizures happen more in the morning. And so the parents, when they lived in Kentucky, I believe it was, had an allowance that allowed her to get educational help starting in the afternoons and run through the early evening. Then they move to Minnesota into the Osseo school district. And that school district was like, meh, we don't want to do that. It becomes clear that the reason is basically, teachers don't want to teach into the early evening. It's an administrative hassle for them. And so they just deny her accommodation. So the parents sue, they get an injunction saying, like, no, you have to do this. You have violated the law. And so then they file another lawsuit for damages. And the question in the case was, do you need to make a heightened showing of bad faith or gross misjudgment if you're in the school context for the Americans with Disabilities act, if you're a disabled student versus you're just like someone else who's not a student, in which case you don't have that bad faith or gross misjudgment standard. Their damages lawsuit was thrown out because they didn't have anything proving that the school, like, specifically hated their daughter. Basically, it was just that the school was being lazy. Spoiler alert. The Supreme Court unanimously says, no, there's no heightened standard for students. Everyone has the same standard. Now, Interestingly, David, they did not decide what that standard is and whether everyone should have an intent requirement that they have to prove or nobody should have an intent requirement. You had Thomas and Kavanaugh having a concurrence that was like, I don't know, there's lots of reasons one might think that there is an intent requirement. And you had Jackson and Sotomayor saying, we definitely don't want an intent requirement. And you sort of also saw, I think, through all of this that all of the justices understand that this is a big deal and the ADA is a big deal. Okay, so Bloomberg Law has this hour long podcast that follows Roman Martinez, who is the pro bono advocate for ajt from when they file for cert, file for review from the case all the way through to when they get the decision. First of all, David, this is an hour to sort of show you the life of a Supreme Court advocate. It sort of walks through kind of how all this works at a really, really basic level. Some things I learned in this documentary. Elizabeth Prelogger, the Solicitor General under the Obama administration and my law school classmate, has a ritual. Every morning before an argument, she eats bananas. Okay. Another thing I learned was that Roman clearly drinks so much of that grapefruit, so. Spindrift. Because in every scene, there is a grapefruit spindrift near his person. And, like, these are scenes, you know, cut over lots of time. So I think we have an addict on our hands. I was also struck, David, by the fact that, like, obviously they call an Uber to come get them and drop them off at the court. There's no parking for advocates or anything like that. And the closest metro stop is down at Union Station. Not only is that like a fair distance from the Supreme Court, but also from Union Station to the Supreme Court is a height difference. Like, that's uphill, man. Depending on the time of year. Actually, maybe not even depending on the time of year. If it's hot, it's blistering. And if it's like cold, spitting, windy rain, it's just extra miserable for some reason to do it. Going uphill, as I have done many a time. But I was thinking to myself, david, what did you do before Uber? I mean, I guess you could call a taxi, but like. Or were you calling a limo service because you're at a fancy law firm? How did law firms do this pre Uber? Did you have, like, drivers?
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B
Oh, every fancy law firm back in the day, Sarah, Because I get to do my back in the day thing. Because you're so much younger than I am. Is the nice firms, the good firms had these black car services just basically on call all the time. If you were going to go anywhere, you were getting in. That's the way it was in Manhattan, for example, if you're going to go anywhere, you had the car service. So these car services were ubiquitous back in the day. And then I'm sure if you were at a firm that didn't have the car services that were at your beck and call, then your than you are, you know, grabbing a cab. But I can't tell you the number of times my. My firm was in midtown and you had your court in downtown, and you're just jumping in with the partner into the car, you know, into the Lincoln Continental, and down you go. And yeah, the car service was just ubiquitous back then. And I've often wondered, kind of what happened to them all that I know they're still there, I know they still exist, but it's definitely not to the same scale.
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A
Well, and for all I know, this was the car service. I just was assuming it was Uber. So, you know, what do I know? Maybe Latham's still doing car service. They also have interviews with Carter Phillips, you know, famous Supreme Court advocate, and he really provides the history of how the hot bench gets going as Scalia joins the court. That before that, you know, you'd obviously get some questions from the justices, but nothing like what we now take for granted, which is basically you are answering questions during all of your time after your opening statement at the lectern. You know, pre Scalia, that wasn't the case. You would get to like sort of talk for quite a bit of the time, and then occasionally there'd be a question coming from a justice. Totally different vibe that I think people have a hard time even imagining what a cold bench was like at the Supreme Court. But if you want to know, go to the circuits. A lot of cold benches and circuit arguments. It's kind of awkward, actually. You know, the advocates sit there and talk for a while. They get a question, they answer it, and then they sort of, you can see them kind of wait, and then they start talking again about their own thoughts and feelings. And that's the way it all goes. There's kind of a like, you know, did you order the code red moment from one of Roman's associates in the moot? Michael Clemente is his name, interestingly so. Roman went to Yale Law School, clerked for the Chief Justice. This associate went to Yale Law School and clerked for the Chief Justice. Maybe he felt that he was allowed to go after his boss or maybe it was the cameras were rolling, I don't know. But it's sort of the most dramatic moment in the documentary. But David, here's my criticism of this documentary. And by the way, the documentary is called Supreme Advocacy. You can go find it now. They don't get into any of the legal parts, any of the legal questions that were actually at issue in ajt. And this was a statutory case about, you know, two different statutes, as we said. And I just feel like our podcast has proven that plenty of non lawyers can understand statutory interpretation questions. And in fact, it makes it a lot more interesting when you understand the words you're trying to interpret and what the lawyers are actually arguing over. And I find this with a lot of legal stuff. This is not to pick on Bloomberg Law, but a lot of legal coverage where they treat their, their audience like, you don't want to know the details of this, don't worry about it, you know, good guys, bad guys, or, you know, sweet disabled little girl versus mean, mean school district. And I feel like you had an hour. It's not that interesting if you don't know what the actual questions are for the law. And I would have really liked to see a documentary that tried to do both, tried to walk people through what it's like to argue before the Supreme Court, but also walk them through a case that gets to the Supreme Court and why it's hard, you know, even though it's going to get decided unanimously why that is. And remember, David, this is the case where Lisa Blatt is on the other side and she's going to accuse the government of lying. And, you know, there's like all of that stuff. So, like, that gets interesting if you know why she's accusing them of lying. Because they are saying that she has basically agreed to, you know, the question presented or whatever, and she's saying she didn't and that they're lying about her position and everything else. And you have Gorsuch jump in and reprimand her and all that stuff. Then she apologizes. Remember, we cover this on the pod. She calls Ramon afterwards to apologize. Ramon accepts her apology. All of that provides for a lot of fireworks that obviously the documentary team couldn't have been expecting. But nevertheless, I think in an hour you can still cover all of the sort of process side of getting a case to the Supreme Court and still walk people through how statutory interpretation works.
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B
I could not agree more with that. And let me go a little further and offer a provocative thesis, Sarah, and tell me what you think. Legal coverage that does not dive into the details of the underlying legal dispute is in the aggregate, inherently inflammatory. And so let me explain what I mean by in the aggregate, inherently flammatory is that a lot of legal disputes, the underlying good guy, bad guy scenario, sort of the underlying meta narrative of what's going on. Let's suppose you're dealing with a capital murder case, for example, or an armed robbery appeal, that in many times the bad guy can be right on the law, and many times the good guy is just wrong on the law. And maybe the fact that the bad guy's right and the good guy is wrong is an underlying problem of justice that we need to address by statutes or constitutional amendments or whatever. But the good guy, bad guy, the white hat, black hat coverage is going to, in many Circumstances lead you to believe an injustice has occurred if the bad guy wins. And so especially with Supreme Court cases where, you know, as Justice Gorsuch said when I was interviewing him, you know, last year over, you know, when he released his book, even though you have 90 cases at the Supreme Court, all of the cases that get to the Supreme Court are the hard cases. They're the ones where the circuits have split, where these very smart, thoughtful scholars and jurists have reached contradictory conclusions about the law. And that's when the Supreme Court steps in. So I could not agree more that covering the underlying legal issue is absolutely vital. Otherwise you over time get this sense. Well, bad guys win too much. Bad guys win too much.
- [38:26]
A
In this case, the Individuals with Disabilities Education Act IDEA offers federal funds to states in exchange for a commitment. The guarantee is for free appropriate public education to all children with certain physical and intellectual disabilities. There's no question that the school district failed to do that. That's not even the issue that was in this case. The issue in this case was this 8th Circuit sort of judge made doctrine. And I'll read you this little bit from the 8th Circuit's decision. It explained that under circuit precedent, when alleged Americans with Disabilities act and IDEA violations are based on educational services for disabled children, a school district's simple failure to provide a reasonable accommodation is not enough to trigger liability. Rather, a plaintiff must prove that school school officials acted with either bad faith or gross misjudgment, which requires something more than mere non compliance with the applicable federal statutes. The panel explained that while AJT may have established a genuine dispute about whether the district was negligent or even deliberately indifferent under the 8th Circuit precedent, that's just not enough. Since she failed to identify conduct rising to the level of bad faith or gross misjudgment. The court said it was constrained to hold that basically she could not move forward with her lawsuit at all for damages. I just don't think that's that hard for people to understand, David, that basically it's sort of like qualified immunity or remember that case that was also from last term about employment discrimination? Whether the majority group had to prove more than a minority group? But also how are you going to determine what the majority is versus the minority in an employment discrimination case? Is it the company? Is it the state, city, Is it the state? Is it how other people view that religion or whatever? So, you know, we have lots of judge made doctrines that are out there that are causing a lot of havoc. And I think the documentary would have been better Even for non lawyer audiences to understand that. To your point, David, otherwise, you know, what if they had ruled against hat for some reason, you know, as you see in the, in the concurrence from Thomas and Kavanaugh, they're not, they're saying, you know, look, there might be reasons that for injunctive relief like AJT now gets the education that she's entitled to, but maybe we don't want every district to be liable for damages with no intent requirement whatsoever. Every time there's a finding that they could have done more to provide that free education that they promised to do in exchange for the federal funds. Again, it looks a little like qualified immunity in the sense that, like maybe we want there to be some intent standard. You know, you knew you needed to provide this, but you didn't. Or, you know, maybe it's more like the negligence that the 8th Circuit said they might have been able to prove in this case. By the way, it feels very negligent when they're just like, this would be an administrative hassle for us. That's clearly not contemplated in the statute. There's no balancing test. But nevertheless, again, to your point, David, if they had found against AJT by saying, you know, we don't think there should be a difference between students and non students, that's not in the statute. Everyone agreed to that, though by the time they got to the Supreme Court, they were now arguing whether everyone needed an intent standard or nobody had an intent standard. The Supreme Court did not end up deciding that. What if they had? That would have made for a very different documentary, David. And if you don't get into that very inflammatory one perhaps also.
- [42:03]
B
Yeah, absolutely. And I'll go out on a limb and say the people who would click on a legal documentary are especially the group of people who might be interested in the substance of the underlying legal dispute. Like, this is not, this is not a documentary aimed at the same cross section of people as, say, you know, the new Wicked movie. This is a more of a niche audience.
- [42:28]
A
All right, David, when we get back. The 11th Circuit unanimously upholds sanctions against Donald Trump and Alina Haba for frivolous filings.
- [42:43]
B
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- [44:05]
A
Okay David, we have two of the most conservative judges. And I mean conservative with a small C, conservative with a large C. All of the C's in between Judge Bill Pryor, Judge Andrew Brasher and Judge Kidd, all 11th Circuit judges upholding a million dollar sanction against Donald Trump and Alina Haba for filing RICO lawsuits against various defendants, but in particular Hillary Clinton, James Comey, all related to the Russia investigation. And David, you walk through this opinion and it's a very Workman like opinion, frankly, as most circuit court opinions that we don't cover on this podcast are, where they're like, hey, you threw a bunch of spaghetti against the wall to try to get out of this on appeal. We're going to walk through them one by one and tell you why, you know, that dog won't hunt. But you get the real sense, David, that frankly many of their arguments on appeal would have been sanctionable as frivolous.
- [45:12]
B
Yeah, reading this opinion is pretty remarkable. So it begins with sort of the lawsuit is original lawsuit is based on the Russia investigation. So he filed in Florida against a bunch of people claiming that the Russia investigation and all of that around the election and following the election leading up to and through the Mueller report, and that all of that is all of that was illegal, violated Trump's rights and they filed this really massive pleading. And this is where we get to a term maybe we've not ever used in the podcast. Is it possible there's a legal term we've not yet used? This one is shotgun pleading. I cannot remember a time when we've used the term Shotgun pleading. And the argument was that this was a shotgun pleading against the defendants. And so what is that? It's kind of self explanatory. It's. Imagine that you just are hitting. You're filing a lawsuit that isn't narrowly aimed at specific illegal acts, but instead is just a shotgun blast of random facts, random legal arguments, frivolous legal arguments, facts that are completely unrelated, all combined and wrapped into one and just dumped in the laps of defendants. And so this was one of the key issues here, is you had 600 plus paragraphs, they would be incorporated against all of the defendants without any specification as to which ones were relevant, which ones were not. I mean, it was sort of a classic example of a shotgun pleading, but it went beyond that and it went into the actual substance of the legal arguments in this paragraph. You called it workmanlike, but sometimes workmanlike prose just gets the job done. Many of Trump and Haba, Trump's and Haba's legal arguments were indeed frivolous. Even setting aside the tolling arguments, the district court ruled that Trump brought several frivolous claims, including a malicious prosecution claim without a prosecution and a trade secret claim without a trade secret. Trump also appended seven counts to his indictment, which did not allege any cause of action and which the district court found were the high water mark of shotgun pleading. Trump leaves all these frivolous claims behind, making a total of 11 of his 16 claims. He doesn't appeal. So in other words, they were so bad he just didn't appeal them at all. And so the court essentially says none of this stuff was abuse of discretion by the district court. There was no reason to reverse the district court's ruling. And again, workmanlike, definitely. But this is an illustration. You don't need to pepper things up with adverbs and adjectives to adequately describe what happened.
- [48:02]
A
Yeah, and you know, not only were there the shotgun pleading issues where there were frivolous claims brought, you also just see really bad lawyering, like not raising issues until the reply brief, not preserving issues in the district court. You know, you've got a million dollar sanctions that you're facing and you don't at that point start taking this more seriously and do some actual good legal work. You know, the only reason. So for those who are curious, you can get Rule 11 sanctions, where a party moves under Rule 11 that your filings were frivolous and asked for sanctions. The court on its own can sanction an attorney. You have both of those happening here, by the way. That's at Sort of that initial, you know, the district court level on appeal, you can get sanctioned for filing a frivolous appeal as well or doing such a bad job like, like, you know, not addressing issues until your reply brief that you can be sanctioned. They were able to win on one very, very narrow question about whether the district court had personal jurisdiction over one of these defendants. And therefore, when they dismissed the initial complaint, they did it with prejudice when they should have done it without prejudice for lack of personal jurisdiction. But for that, David, I think they would have racked up sanctions at the appellate level as well.
- [49:34]
B
Yeah, I'm absolutely in agreement on this. And this is. We're seeing a theme here, and I want to be very careful that there are some attorneys that have been working on MAGA issues and working for Trump who are very, very, very good, that are very, very good.
- [49:51]
A
So.
- [49:51]
B
So this is not a blanket indictment of everyone who has worked on MAGA issues or advanced MAG issues or has worked for Trump. Many of his attorneys have been very, very effective. However, when your primary test is loyalty more than competence, this is what you're gonna get. And we have seen with some characters in the sort of Trump legal orbit that they have rocketed to the top well ahead of their legal experience. And this is, you know, the Comey case, we've been talking about that. This case, there, there are multiple, multiple incidents. Multiple incidents where the, the competence of the legal team. In many ways, the best defense against Trump has been the conduct of his own legal team.
- [50:41]
A
And remember, the sanctions are against Trump and Alina Haba, who are now liable jointly and severally for this, you know, approximately million dollars in sanctions. I'd be very curious who will pay it, David, but I'm not sure we're gonna find out. And the fact that they filed this lawsuit. Look at the time, David, we said that this was frivolous, but this goes to now some of these indictments as well. The point is not to win. You know, the point is the headline. And the point is, you know, causing pain to the other side. Now, that's why they got sanctioned in this case, because this was a political stunt for the purpose of harassing the defendants. But the fact that Alina Haba is involved in a bunch of this, I think is not coincidental. Okay, David, speaking of which, we have a Third Circuit decision. It is the First Circuit to consider the circuit to consider the Vacancies Reform act as applied to these US Attorneys that are not getting Senate confirmed are past their 120 days. Can they sign indictments or are those indictments then useless, as we saw in the Lindsey Halligan case against James Comey and Letitia James? This is now the Third Circuit. Also unanimous. Two of the three judges on this panel are Republican appointees, for what that's worth. And David, again, I gotta say, pretty workmanlike opinion here. And I mean that in the highest compliment. They walk through every sentence in the Vacancies Reform act and all of the arguments from the government and are just like, no, that's not even a close call. Basically the punchline is, if you read the Vacancies Reform act as the government would like you to, then it has no purpose. It's all superfluous language. Because their argument, you know, at the end of the day goes something like, we can put in as the First Assistant anyone we want, and that First Assistant automatically becomes the acting US Attorney, or short of that is delegated the powers of the U.S. attorney from the President and therefore can act as the U.S. attorney whether they have the title Acting U.S. attorney or not, which I mean, David would. Unless you think that the advice and consent power in the Constitution is just to get the title, or that the Vacancies Reform act handed over the, like delegated the advice and consent power somehow back to the President. To me, I guess I'm still disappointed that we don't have someone raising a, something akin to a major questions doctrine, non delegation doctrine about the whole Vacancies Reform act. Not in a way that would help the government, in a way that would hurt the government. I don't see why Congress can delegate over its advice and consent power back to the White house for even 120 days, for example, or hand it over to the judiciary after the 120 days to appoint an interim. But I've, I have sung this song before. Nobody is raising the constitutional problems with the Vacancies Reform act because again, it would cut against the government, not for the government. So like who's going to really raise that at this point when you can win? Because they're violating the VRA even as written. But some, some defendant out there will want to do it anyway. ALINA HABA Not U.S. attorney, not acting U.S. attorney and not delegated the powers to act as the U.S. attorney says, the third circuit. So say we all.
- [54:24]
B
Yeah, and this is another example where the Trump administration's conduct did them no fear favors. So here, here's another key paragraph. And so remember, as Sarah has explained a few times, you've got this 120 day deadline, you can't and you Know, the argument is you can't just keep adding 120/120/120, that it's a one time 120 day deadline. So here's the, here's the paragraph as section 546 is 120 day deadline approach. The United States District Court for the District District of New Jersey issued a standing order pursuant to 28 U.S.C. 546d, providing that Desiree Grace, the first assistant U.S. attorney at the time, would be interim U.S. attorney, effective upon the expiration of Haba's 120 day term. In response, the Department of Justice terminated Grace's employment. What? So the judges say, according to statute, Here is your U.S. attorney. And the Trump administration says, oh yeah, we just fired her. Then on July 24, the Trump administration took several steps. One, withdrew Haba's nomination. Two, Haba resigned as interim use attorney. Three, the attorney general issued an order appointing Haba as a special attorney to the Attorney General, accompanied by a letter authorizing Haba to conduct any kind of legal proceedings which the United States orders attorneys are authorized to conduct to conduct. And there was my syllable pronunciation problem again. And four, in the same order, the Attorney General also designated Haba as first Assistant US Attorney, which purported to mean that Haba automatically became acting U.S. attorney. Not one bit of that maneuvering endeared the administration to the court. I would say not one bit of it. It was so transparent as to what was happening here. So I don't know if they win under the best circumstances, but they, they gave the court reasons to give them the shortest possible leash.
- [56:33]
A
David, I would say this is our naw dog candidate of the month.
- [56:39]
B
Yeah, absolutely, absolutely.
- [56:42]
A
All right, one more note, David, before we go. That Georgia criminal case against, well, former President Trump at the time, you know, when you think about the four cases, four criminal cases that were brought against Donald Trump, there was the New York business records case that went to trial. David, you and I both agreed that that was a hot mess of a case that kind of tainted the whole pool of all of these cases. The case itself we thought was legally a stretch. And I thought in particular, kind of a, you know, show me the man, I'll find you the crime type of case. They had searched for years for something to charge Donald Trump with and then finally stumbled on this business records claim number two, the federal January 6th case. You and I departed pretty, pretty greatly on this case. I thought that that was too broad, you know, not specific enough. They clearly looked for the smoking gun and didn't find it and I would either not have brought that case or brought a much, much narrower version of that case. Regardless, it did not go to trial. It was going to still be a year, potentially years, plural, until it got to trial. Number three, the classified documents case. You and I both agree that this was the strongest case. This was the rifle shot of a case. There were specific facts, specific laws that had been applied before, like, check, check, check, but because it dealt with classified documents, those take a long time to get to trial as well. Did not go to trial. Then you had the Georgia case. David. This was sort of a hybrid case in a lot of ways because Georgia had a specific law. They had the call that Trump had made to Georgia officials. It looked much more like the rifle shot January 6th case that the federal government wasn't able to bring because they didn't have the same laws and they didn't have the same facts, frankly. So what happened to that case? Well, if you remember, Fani Willis was the prosecutor, and that thing went. I mean, to say it went off the rails implies that there were ever rails for that case. Anyway, a judge in Georgia dismissed the case in response to a motion to end the prosecution that was filed by the executive director of the state's nonpartisan prosecutor Council, who was asked to decide what to do after Fani Willis was removed from the case. And so there you go. The executive director concluded that the federal inquiry undertaken by Jack Smith was the more appropriate venue for an investigation of Mr. Trump's attempts to stay in power after the 2020 election. He said the idea of pursuing a case against a sitting president in Georgia was impractical. David, thoughts and feelings as the last criminal case dies very much with a whimper and not with a bang.
- [59:50]
B
I think this was inevitable, and it may have been even inevitable had Trump lost the election. I would call this case the exact inverse of the Manhattan case. And this is what I mean. The Manhattan case was improperly brought. In other words, the underlying legal theories in the Manhattan case, I think were inappropriate to use against Trump, that this was a good example of weaponization. But then they actually practiced the case with competence. They practiced it professionally. They litigated it with a high degree of professionalism. This is the inverse of that. The statutes in Georgia are broader. The criminal statutes in Georgia are broader than the federal statutes. The criminal statutes in Georgia were much more tailored to what Trump actually did than some of the federal statutes. And so in many ways, the Georgia case legally was stronger than the federal January 6th case. And then it was practiced and, oh, My gosh, you know, this idea that you're going to have a romantic relationship with your special counsel that you've retained, that you're going to engage in a lot of evasive testimony and really problematic practices around it. I mean, the whole thing, the question became, to what extent is this whole thing, this whole initial process tainted? It just was a giant, giant mess. And then you add on top of that, the fact that he's a sitting president, that prosecuting this case would be extremely difficult for a million different reasons. And you've got, as I said, the exact opposite, the exact reverse of the Manhattan case, a case with a lot of merit that was practiced miserably.
- [61:51]
A
All right, David, before we go, I wanted to just revisit quite quickly a few items from our last podcast where we talked about those two Supreme Court decisions that were GVR granted, vacated, and remanded. Got a couple notes like, aren't these some revs? We haven't talked about some revs on this podcast if we have. Not much. And the difference between a GVR where the court basically takes it and sends it back versus a summary reversal, where the court takes it and sends it back. So basically, technically speaking, everything is a gvr. They grant, cert, vacate the lower court decision and send it back to the lower court to, like, you know, implement what they said. Some revs are very rare, but it's basically an insulting way to say that it was GVR'd. It's where, you know, we have GVRs where they simply, you know, a case just got decided, and they're like, in light of this case, we see this circuit case that was decided without benefit of our wisdom, and now we're gonna send it back to you to try again, given Rahimi or whatever. Some revs are like, no, there's no new case law. You just really sucked at this. But it's so bad, we're not gonna hear oral argument. We're just gonna write a short little opinion about why you suck, why you were so wrong given our precedent. And it's sort of a version of, you're allowed to disagree with our decisions, but you're not allowed to defy them. You know, backhand reverse. It's sort of a bench slap from the Supreme Court. Now, I think you can sort of tell the reason why we don't just, like, we don't label things summary reversals because that's the implication is that you got bench slapped from the justices. And, you know, sometimes things are gonna get summarily reversed. Maybe without the bench slap vibe. And I don't wanna imply a benchlap, but were these some revs? Yeah, they were.
- [63:53]
B
I'm so glad to we introduced the term some rev and shotgun pleading in the same podcast. That's the educational value that we have.
- [64:03]
A
I've got two more things from the last pod. One Jonathan Adler posted on Volok Conspiracy Is the 4th Circuit the new 9th? And I just love the mind meld because I think that the 4th Circuit is probably the new 9th. He had a good note that the Last term the 4th Circuit went 0 for 8 at the Supreme Court and as he knows is starting off in a hole for OT 2025. You know David, we've talked before about it's really hard to see this as a 6:3 court when you look at the reversals for the different circuits. You know, you've got sort of the 4th Circuit and the 5th Circuit on two different polls. The 4th Circuit being the one reversed for being too liberal, the 5th Circuit being reversed for too conservative. It just doesn't make sense if it's a 6:3 court. But you know, we spend so much time talking about the divide between the conservatives. I don't want to give short shrift to the fact that like yes, there are still circuits that are way too liberal for this Supreme Court too. And let me introduce you to the 4th Circuit. Last thing, David. We talked about party presentation in the last podcast and I failed to mention that Judge Bhumite opened the Federalist Society conference this year with a speech that talked about party presentation. And I thought it was, it was sort of fun. Let me read you a little piece of this first. I mean I'm not saying that judges are known for their standup comedy, but he had some good lines in here. So in his like opening, you know, thanks for having me. And I see so and so is here. You know, thank you for being a great mentor, blah blah blah. He says. Let me see if there's anyone else. Is my good friend Judge Van Dyke here? I heard he was coming, but I bet he couldn't get through the metal detectors. Oh, I just remembered he's actually not here because he's busy accepting his Oscar for best Video Descent. Have you seen it? It was his best acting since his confirmation hearing. Judge Thapar is also here. He's the guy in the back doing burpees. But unfortunately his law clerks couldn't make it. They're still recovering from their chambers wide three day fast. And Judge Newsom is also at this conference. I'm sure he'll agree with everything I say this morning, but he'll write about it in a hundred page concurrence to his latest opinion about arbitration clauses. And sadly, Judge Ho is not here. I went to Yale College, so even I'm on his boycott list. I mean, way to roast your fellow judges. It was really, it was really, really well done. This is all by the way, the speech is on the Federalist Society website for the conference. And again, it was the opening speech. He has really great stuff about his family's story of coming to America. But he talks about what Justice Scalia famously called himself, a faint hearted originalist because he sometimes struggled with the consequences of where originalism would take him. And then Justice Scalia called Justice Thomas a bloodthirsty originalist because of his unwavering adherence to the original public meaning of the Constitution, come hell or high water. Justice Thomas, as you can imagine, took it as a compliment. And really Judge Bhumite's speech is about being a bloodthirsty originalist now in the era where originalism is the, you know, ascendant, it's in the majority, so to speak. And he talks about the party presentation rules and I thought this was really interesting. David, you may hear judges talk about how they would like to follow originalism, but they can't simply because the parties haven't presented any historical analysis in their briefing. To me, that's no excuse. While it is of course true that the parties must bring a case and focus the issues, that doesn't supersede our duty to follow the law. Party presentation cannot get in the way of the best reading of the law. I recognize that the Supreme Court has recently given the party presentation principle some new teeth. In United States v. Cinnan Smith, the Supreme Court relied on the principle to strike down a 9th Circuit decision as an abuse of discretion. In that case, my court completely overreached by refashioning the party's issues to get to a desired outcome. But some lower court judges have over read its importance since it came out. That case has been cited over 800 times. I did not know that. It cannot be right that parties control everything about the case, even the meaning of governing law. One extreme example comes from a D.C. circuit case. There a very well respected judge wanted to decide a case relying on a repealed statute. The judge reasoned that because neither party had raised the law's repeal to the district court, it was inappropriate to consider it. This effectively accepts that a judge is bound by the party's stipulations to the Law. But that's wrong. Judges are never obligated to follow the party's agreement to incorrect law. After all, the parties don't need to ensure the best interpretation of the law. Judges do. So, even though judges generally rely on the arguments the parties advance, we should never cede our duty to independently interpret the law. In my view, once a party raises a legal theory, judges may consider anything subsumed by that theory. So we can't refashion the party's claims, issues, or legal theories. But within a particular legal theory, judges may consider any arguments, sources, or authorities that may be helpful, including those not raised by the briefings. So if they don't specifically make originalist arguments, judges are free to, and indeed must engage with the historical understanding of the constitutional text. David, that is a spin on the party presentation rule or a narrowing of the party presentation rule, I think. Or is it actually just restating what's really obvious, that, like, yeah, the parties have to present the issue, you know, like, my lawyer was ineffective. But then if you're like, well, what is the original understanding of the right to counsel? They don't need to make that argument.
- [70:18]
B
Yeah, I would say that Judge Bhumite's statement was much more in line with my experience, which is that judges, once you raise an underlying issue, judges will address all of the legal theories circling around the underlying issue, not just the legal theories that you raise related to the underlying issue. So that's been my experience, really, from day one, is much more in line with what he says than, and in fact, maybe even broader than what he says. The party presentation rule is not something that has been particularly salient in my practice when I was practicing.
- [71:03]
A
Well, highly recommend this. And indeed, you can see Judge Bhumite opening the Federalist Society convention with his bloodthirsty originalism. Judge Oldham giving the Olson lecture, you know, 48 hours or so later. And they touch on many of the same things. And I think if you really compare the two speeches, you can get a sense of some of the differences and slight tensions within legal conservative movement these days, especially in the circuit courts. And that that's kind of fun. So, David, for our next podcast, we are going to set up the Slaughter oral argument. We're gonna start with Mr. Humphrey while he's still alive, and march our way through his death.
- [71:48]
B
And we will appoint an executor for Humphrey's executor. But before we go, before we go, I got a TV recommendation. Strong recommend. It's all her fault. It's a mystery. It's starring Sarah Snook, who was Shiv in succession Dakota Fanning, Michael Pena, who's been in everything. And it's the premise is a mom shows up at an address she's been given to pick up her kid from a play date and the kid is not there. And it's a ride and it's a wild ride, but it absolutely earns all of its twists. Loved it. So yeah, there's a strong recommend and you can binge it all. Sarah, you can watch all eight episodes.
- [72:39]
A
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@advisory opinionsdispatch.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. Sam.