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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. Whoo. We are going to break down that argument about whether states may ban transgender participation in women's sports, as well as three decisions coming out of the Supreme Court. No, none of them are tariffs. But you know what? They're fun and interesting, and we're going to break them down for you. As well as whether Lindsey Halligan is correctly using the title U.S. attorney. One judge appointed by Donald Trump thinks no, but we'll see about that. And we're going to revisit Minnesota some. Some issues that maybe we didn't get to last time. Like, wait, was he allowed to get her out of the car in the first place? Was that a valid stop as well as should we have gun toting judges across the country? And a quote that I gave to the Wall Street Journal about why Trump can't find an attorney general. You can't always get an attorney general you want, but if you try sometimes, you just might get an attorney general you need or something. I don't know. This episode of Advisory Opinions is brought to you by our friends at Pacific Legal Foundation. Since they were founded in 1973, PLF has won 18 Supreme Court cases defending the rights of ordinary Americans from government overreach nationwide, including landmark environmental law cases like Sacate vepa. Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases that make more of America's land and resources available for productive use and to make sure freedom drives our environmental and natural resource policy, not fear. To learn more, visit pacificlegal.org flagship. All right, David, there is so much news, law, law news for us to talk about. I'm going to start with the oral argument from Tuesday that lasted three and a half hours. Two consolidated cases asking the question whether a state may ban transgender participation in women's sports under either the equal protection clause or under Title 9. Now, here's the important part that I just want to make clear at this top. There are cases out there about whether states must ban transgender participation in sports in women's sports under Title nine. They have not taken those cases yet. To me, frankly, those are more interesting cases. About 27 states, according to the oral argument, currently have chosen to ban trans participation in women's sports. The other 23 have not. So both the may and the must questions are going to be relevant for about half the country. But this is only the May. Like, is this a question Left up to states, states constitutionally and statutorily or not. So David, again, it was really long. Started at 10:05am Eastern, went to 1:37pm so David, really long argument. Remember back in Scremetti, this was about whether states may ban medical intervention for gender dysphoria. We never heard from Justice Gorsuch, which was weird because of course he, he wrote Bostock, which was about whether Title 7 protected transgender and sexual orientation for employment discrimination. And so it was kind of like, oh well, Gorsuch seems like a pretty important vote here. We did hear from him in the oral argument in this case. We heard from all the justices, though some more than others. What were your big takeaways?
- [04:09]
B
My biggest takeaway is I was absolutely, for the life of me stumped why this went so long. We've dealt with this before in an oral argument where after about the first 10 to 15 minutes it just feels like everyone's kind of spinning their wheels, circling around the same points in different ways. My number one takeaway is, is very similar to the top line takeaway that I think a lot of other people had. Which was it really, the difficulty of the plaintiff's case here was really illustrated when the ACLU or when the advocate for the plaintiffs came in without being able to specifically define what a man or a woman is. You know, that's sort of this gotcha thing that right leaning people do to left leaning, you know, to right wing people do to left wing pro trans advocates is they'll ask what's a woman? And they'll watch people sort of fumble and stumble and all of that. Well, you shouldn't be fumbling and stumbling when you come into the Supreme Court to answer that question, especially when that definition is critical to deciding the, the whole case. And, and I think that one of the reasons why that was difficult maybe for them to answer that wasn't because they didn't have an answer within their sort of consistent with their worldview. It's that the answer was going to really miss the mark as to the entire purpose and reasoning around Title ix. And so, you know, one of the things that I talk about when I talk to people who are in support of, for example, trans girls participating in girls sports, one thing that I talk to them a lot about is the distinction that is drawn in civil rights laws between race and sex when it comes to sports. So you have two laws. Title 6 prohibits discrimination on the basis of race in educational activities. And Title IX prohibits discrimination on the basis of sex in educational activities. You can't have sex segregated. I mean, you cannot have race segregated sports teams. You must have sex segregated sports teams to comply with the two statutes. They have very similar language. But the way it works out, one prohibits segregation, the other one mandates segregation. Why? Why? What is the difference between sex and race that would create such radically disparate outcomes? And the answer is that sex and race are really different, not that gender identity and race are really different, not that gender identity has a huge bearing on athletic competitiveness. It's that biological sex does. That's the whole reason why you have separate male and female sports teams is because biological sex is different. It's the biology of it all that is the reason for the distinction, not the gender identity of it all. And so when you look at it like that, I think that's a first framing that helps people understand, hey, wait a minute, why does this one civil rights statute require segregation? Sex segregation in this circumstance? That's how salient sex is in the athletic analysis. Again, not gender identity. And so I think that that was the exchange that really highlighted that reality for me.
- [07:32]
A
Let me read you one of those back and forth between Justice Alito and the lawyer for college club athlete Justice Alito. And what is the definition for equal protection purposes? What does it mean to be a boy or a girl or a man or a woman? Lawyer Sorry I misunderstood your earlier question. I think the underlying enactment, whatever it was, the policy, the law, we'd have to have an understanding of how the state or the government was understanding that term to figure out whether or not someone was excluded. We do not have a definition for the court. That's the line that you're seeing all over Twitter, et cetera. And we don't take issue with disputing the definition here. What we're saying is that the way it applies in practice is to exclude birth sex males categorically from women's teams and that there's a subset of those birth sex males where it doesn't make sense to do so according to the state's own interest. That's the rest of the answer. That's actually pretty good. It is the crux of their argument. I think they lose on that argument. But just dunking on the we don't have a definition for you here. Mrs. Actually, what she said. Footnote by the way, this is why I don't want cameras in the courtroom because that's all that would play. Is that like one, we don't have a definition for you here when literally the next sentence tells you what the legal Argument is, we're talking about just the equal protection clause. Forget Title nine for a second. You know, remember intermediate scrutiny. Right. Strict scrutiny, the plaintiff wins. Rational basis. The government wins intermediate scrutiny, the judge wins. It's like this. In between land that we live in, where the government needs to show an important interest to have this law that makes classifications on the basis of sex. It's very weird. What's in intermediate scrutiny, we're not totally sure, but sex is definitely one of those sex classifications. You're an intermediate scrutiny. So we're looking for that important government interest to make this classification. Their argument is that it's the wrong classification. We're looking at. It's not men versus women as the classification. It should be biological men who are no longer competitive against women, basically, or differently competitive against women is the only classification. It's a subclass. And so the government may have an important interest against biological males, most of them, but it doesn't have an important interest against the subclass of biological males that no longer have a competitive advantage over women. This is the whole legal argument that they're making in this Idaho case. And let me read you the Idaho Solicitor General's pushback. It will always be possible to carve the class down further. So if they say that their class, their subclass, I guess, is males who identify as transgender, then we would come back and say, well, well, only something like 10% of males who identify as transgender take testosterone suppression. And then they might say, well, okay, no, the class is just the males who take testosterone suppression. And then we might come back and say, well, according to the record, according to their own expert of males who take testosterone suppression, only one quarter of them are able to achieve the appropriate ordinary levels of testosterone for women, and the other three quarters would still have an advantage, and therefore we'd be justified to 75%, a pretty good fit under intermediate scrutiny. And we'd be justified with the law. And then they can just change the class again and say, aha. No, our class is males who identify as transgender who can suppress their testosterone and who do in fact suppress their testosterone successfully and are able to get it down where they don't have a competitive advantage. And at that point, we can say, if you can define the class so precisely, you're going to force the state to define the class that precisely it's going to be enormously burdensome for everyone, and the state can't ever win. Whenever the state points to the fit in the statute, they just redefine their class as only the people who are outside the fit. David. I guess to me, that was a very, that was the end of it for me. And by the way, that happened on page 35 of 148. And I just, to me, I was like, I think that's the end of the game. Because surely there's a limit to the burden. Because think of all the testing the state would have to do to ensure that the person is in this sub.sub.subclass versus males, biological males in female sports.
- [11:53]
B
Yeah. And that's when you're getting into the distinction between must and should really, really matters here. So at some level, when you're going to the court and again, you're dealing with a statute that has been construed consistently and is still construed as requiring sex segregation. Okay, it is you, if you're a school, let's say you're at the University of Alabama and you decide, okay, we're abolishing mixed sex, segregated sports. All sports teams are just general tryout. Whoever can join the team, it's going to be the top 15 human beings on campus who can be on the basketball team, the top 35, or, you know, however many it is on a baseball team, 30, 20, whatever it is, on a baseball team, top human beings, then you would end up with maybe zero women on the team, on these teams. And that's not, you know, that's not having equal access to educational opportunities in. And so the. So again, you're dealing with a statute that requires sex segregation. And then they're coming in and saying, but it doesn't allow sex segregation for a very particular subclass that we're carving out. And that is as a matter of statutory interpretation and equal protection analysis is a giant stretch. Now, it's a lot stronger argument if you're in the flip side, where you're challenging a state that requires girls sports to be open to trans girls. And that, and you're challenging. And you're saying, no, you cannot do that. You cannot do that because of the competitive advantage. That's when you can carve. You can say, no, there isn't a competitive advantage because what we're really dealing with isn't any biological male who identifies as female being on the team. What we're saying is a biological male who identifies as female and doesn't have a competitive advantage according to complex medical, medical testing. That is a much stronger argument in the must situation, not the should situation. And, and so I think that that, I think that that's where that argument it in the argument challenging those states that permit trans participation. Their argument is going to be a lot stronger than a case like this when it's the. A very. It's the opposite situation.
- [14:27]
A
I agree. I think it's a far more interesting legal question, frankly, whether states must ban trans participation in sports. In some ways, it looks a little like the play in the joints between the free exercise clause and the establishment clause. Although I'll say, you know, I think my own bias on this is pretty clear that I think there may not be play in the joints here. I think Title IX may require banning trans participation in women's sports. But again, we really have only had a few cases at the circuit level. That second circuit case offended me greatly where it said that Title 9 just allows women to play the sport, but does not require them to be able to win.
- [15:08]
B
Yeah, opportunity to compete versus opportunity to compete for championships. Yeah, yeah, yeah, exactly.
- [15:14]
A
But, yeah, there was nothing in the oral argument that I think surprised anyone. No. Justice seemed unsure of where they were going to vote. So, yeah, not much else, I guess, really to say about this one, David?
- [15:26]
B
Yeah, well, other than to say that, again, it's really a demonstration of how the culture war, the salience of the culture war shifting and the issues around the culture war shifting three years ago, even two years ago, this is wall to wall coverage. There's giant numbers of people outside the courtroom now. This is, oh, oral argument before maybe tariffs come out. When are tariffs coming out? That's, you know, that's the. Not today. The answer to that is not today.
- [15:56]
A
You know, I will say I am a little over the dunking on the definitional issue of, you know, what is a woman, in part because I don't think there is a great definition. Sort of like I don't think there's a great definition for what is a religion. We had that come up in a case last term, and the advocate from the right got asked that question by Justice Barrett and flim flammed around for a while and one of the more uncomfortable exchanges I can remember, and I fully agree that the vast majority of sex is that identified at birth. But if you ever watched OPRAH in the 90s, you're gonna know that there were cases where the doctor got it wrong. There were chromosomal abnormalities or genital abnormalities. And so identified at birth is going to be, again, true, and 99.9. You know, I don't know the percentage, but it's going to be very high. But it's not a definition. And so, like, I don't know, I'm sort of over the dunking. That's not the point here.
- [16:58]
B
There is a really simple definition in vast, fast, fast, fast, fast, vast majority of the cases. And that's, you know, persons with XX chromosomes versus XY chromosomes. And then there are a very, very small number of people for whom there is ambiguity. And that is not. But those are not the people at issue in this case. So, you know, in this case, you're talking about people who have clear biological markers for one, distinct biological markers for one sex or the other, but have say that their gender identity varies. And that's what this case is about. And that's why the question that Alito asks is so relevant. It's not a Matt Walsh, what is a woman dunking embarrassing moment. It's a we've got a constitutional provision here and a statutory provision that uses the word sex. And so we have to define our terms there. That's part of the whole process. And so. And the reason why I picked it is because when you define the terms, you get to the core, core distinctions here in the case. And that's why that moment was important, because the statutory language is important and you have to have a definition for the statutory language.
- [18:17]
A
All right, when we get back, we got three Supreme Court decisions this week. None of them were tariffs of the Voting Rights act, but two of them were cases we talked about previously and the third one actually also very interesting. Interesting. So hold on to your britches. So good, so good, so good. New year new gear. Thousands of fresh active styles are at Nordstrom Rack stores now. Save on top brands like Nike, Puma and free people starting at just $35. How did I not know Rack has Adidas? There's always something new. Plus, join the NordicLub to shop new arrivals first. Unlock exclusive, exclusive discounts and more. Great brands, great prices. That's why you wreck.
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B
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A
Let's get them over with. All right, David, I'm going to go in no particular order here and just start with the Barrett case. This was a case that we did not cover in the oral argument, but nevertheless, the decision is sort of interesting. The question here, David, is that he was charged and convicted for two different 924 crimes. Section 924. Remember, we've talked about this before. This is where all of our Second Amendment cases live. So let me read you the two sections of 924, 924C. One AI criminalizes using, carrying, or possessing a firearm in connection with a federal crime of violence or drug trafficking. Crime 924J has different penalties, including capital punishment, when a violation of subsection C causes death. So the question here is whether a defendant commits a single act in this case, the robbery that resulted in the death of that person violates both 9 24C and 9 24J or whether that violates the double jeopardy clause because it's the same act and you're getting tried for twice two different crimes, two different charges for that same crime. And this was a unanimous opinion. There were no dissents, but not every justice joined every part of the majority opinion. But the answer, David, was no. 924C and 924J are meant to be sort of lesser included, greater included crimes. And you cannot charge someone with both. You have to pick. They're alternatives, not stacking.
- [21:42]
B
Yeah, and I think that's plainly correct. I would have joined the unanimous, the unanimous majority here. Yeah, I think it's a very interesting case, but I feel like it's a plainly correct case that when you're talking about two provisions that one act, two provisions that you are, it's still one act, it's still one act and still one crime. So I think it's a plainly correct case. Not worth spending a lot of time on, but worth a mention. Interesting. The other two that we talked about a bit more are more interesting to me. But I, I, I, I thought this was and I'm going to read it more carefully after the podcast to see if there's anything I missed in the skim. But I think it's a plainly correct outcome.
- [22:34]
A
All right, let's do Case v. Montana. This was a unanimous opinion. Although we had concurrences by Justices Sotomayor and Gorsuch. We did talk about this case previously. William Case calls his ex girlfriend and tells her that he is going to kill himself. She assumed he had been drinking. She, you know, couldn't talk him out of it. He becomes more methodical about what he was going to do. He said he was going to get a note, presumably meaning a suicide note. Then she heard a clicking sound like the cocking of a gun. She told him that she was going to call police, but that only seemed to antagonize him. He said he would shoot them all, too. Finally, she heard a pop, followed by nothing, just dead air on the call. Do the police have the right to enter that home? They do not have probable cause of a crime. That is the question for the court. The police, by the way, had had interactions with him before. This was not his first welfare call and suicide attempt. They waited for him to answer the door. They circled the house looking for signs of injury or danger. They knocked on the doors, yelled into an open window, got no response, shined their flashlights inside. They could see empty beer cans, an empty handgun holster, and a notepad with writing on it, which they took to be the suicide note based on her 911 call. But they saw no signs of Case. They entered the house to render emergency aid about 40 minutes after they first arrived. They announced themselves loudly. They continued to call out as they walked through the house. Case did not answer. He was hiding in a closet of a bedroom upstairs. When one of the officers entered that room, Case threw open the door, open closet curtain, and appeared from behind holding a black object which looked like a gun. Fearing that he was about to be shot, the officer fired his own rifle. The bullet hit Case in the abdomen, and another officer rushed to administer first aid. An ambulance was called and he recovered okay. He was not holding the gun, by the way. It was in a laundry basket next to him, but it was not the black thing in his hand. Did they violate the Fourth Amendment? The unanimous court says no. David, any problems with that decision?
- [24:47]
B
No. I think it's when we. Remind me, if I. Correct me if I'm wrong, but I think when the AO court pondered this case, the unanimous AO court decided that there was a reasonable basis for entering the home as well. This strikes me as just plainly correct, you know, if you have a situation and, you know, I would say by this time, if you're my age, Sarah, you know, my very, very, very advanced age, you've probably encountered a situation where somebody you love or somebody. Somebody you love, Somebody you love, a person that they love has had a wellness call that there's been a need for the police to go Check on somebody whether it's an aging aunt or uncle or whether it's a friend or whatever. And when you to think about the reasonableness of this ruling, think of the alternative. Imagine a situation where you, you there has been a wellness call based on good reasons for the wellness call. And then the police arrive and they see a gun, an empty gun holster. They see what looks like to be a suicide note. The person has already fired a shot and is salv that you can save them, but they're bleeding to death in the meantime. The police are calling to get a warrant for entry. That it unacceptable. These, these calls occur in a situation where there is already a heightened sense of urgency. Now a police officer should use professional judgment and if there are reasons why that the call seems to be fishy or in in some way seems to be that something about it feel it seems off. It's. You shouldn't have wellness calls as a pretext for dynamic entry. But barring pretextual evidence, when you have that circumstance, when there is a genuine reason to arrive at somebody's home out of a genuine concern for their safety and when you arrive there, you see concrete evidence that there is even more reason for concern. A rule that prohibits the police from engaging in potentially life saving activity I think is it's hard to see how that is an unreasonable because again, that's the constitutional standard. It's an unreasonable search to come into a home under those circumstances. And so yeah, I just think that's plainly correct. Unanimous AO agrees with the unanimous Supreme Court. Kumbaya. Everybody's happy.
- [27:12]
A
This decision was written by Justice Kagan. And let me just read you her take on it because you know, she's the best writer that ever was, maybe on the Supreme Court, and she uses.
- [27:23]
B
The term moreover occasionally. Just saying that for my editor. Anyway. Go. Proceed.
- [27:28]
A
The question is whether officers must have probable cause for the intrusion as they typically would when investigating a crime. We hold it does not. The probable cause requirement is rooted in and derives its meaning from the criminal context. And we decline to transplant it to this different context. The reasonableness standard means just what it says with no further gloss. And here it was satisfied because the police had an objectively reasonable basis for believing that a homeowner intended to take his own life and indeed may have already shot himself. So. Right. It has to be outside the criminal context. When you go in under this rule, you don't get to then look around for evidence of a crime. You're now looking just for a person. When we talk to our high School students in our severed hand classroom. You know, when you're looking for the car, you can't open cabinets looking for the hand. So same thing here. If you're looking for a person, you can't go dig around looking for evidence of a potential crime. But plain sight would still hold, which is part of the problem, I guess here on the other site side, this idea that like they enter your home on a wellness check and you've got your crack cocaine everywhere. Well, unfortunately they've seen the crack cocaine, they can't unsee that and potentially they can do something with that. Now, all of that really not that interesting. David, as you said, you and I unanimous ao court, we guessed correctly how this was going to come out. But the Gorsuch concurrence is actually really fun to me and I wanted to read a piece of it to you. It's very gorsuchian. I mean, first of all, it's a concurrent, so it's already very gorsuchian. Today's case, like another before, it, holds that police officers generally do not violate a person's fourth amendment rights when they enter his house without a warrant, but with an objectively reasonable basis for believing someone inside is in physical danger and in need of immediate aid. Importantly, the Court observes this exception to the warrant requirement permits entry only to the extent reasonably necessary to address the apparent emergency and does not authorize officers to search a home more broadly. With all that I agree. But to me a question lingers. Why does the fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more justices of this court happen to believe that such entries are reasonable? Or is this exception more directly tied to the law? The answer, I believe, is the latter. From before the founding through the present day, the common law has generally permitted a private citizen to enter another's home and property in order to avert serious physical harm. In those circumstances and many others, courts have historically held that property rights give way to concern for human safety. The common law emergency rule is now often summarized this way. One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to the actor, the other, or a third person, unless the actor knows or has reason to know that the one for whom benefit he enters is unwilling that he shall take such action. David, it's the Restatement of Property. Haven't you missed it?
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B
I have missed it. You know, one of the great virtues of having two 1L kids is that you get to watch them engage with common law. And as a proud father, watching your children engage with common law, you know, one of the traditional rites of passage from childhood to adulthood, it always strikes me that common law is actually a really remarkable human intellectual and moral achievement. It's both rational and quite humane when you dive into it. And it's rational, it's humane and it's thoughtful because it evolves in response to shifting time and circumstances, of course, but also new revelations and understandings of fairness and unfairness. And it evolves with complexity. And so I think I just love the common law. I think it's. I love it when you get to the Restatement of Torts or Model Penal code type stuff that's rooted in common law type principles. And that's when I'm nerding out to the maximum.
- [31:42]
A
So to break that Restatement, property restatement into normal person language, If David is chasing me with a gun and going like, pew, pew, I'm going to kill you, I can run into your home, even though that would normally be trespass, because I'm trying to get away from David. I'm trying to hide from him. And so I haven't violated your property rights because this is an emergency to protect my own life. Similarly, if I'm walking my dog and see you holding a gun to your head, I'm allowed to enter your home without trespassing again under common law, because I can be reasonably afraid that you were about to take your own life. And so I'm entering your home to save your life. And so the point that Gorsuch is making is this isn't a judge made exception to the Fourth Amendment. This accords with the common law because police officers don't have fewer rights than private citizens when it comes to this kind of trespass. And the Fourth Amendment encompasses common law intuitions about property rights. And I thought, boy, actually that's a really helpful way to think about this. Okay, David, last case, this one, I didn't even really understand how there were disagreements over this. But it's going to end up being a 7, 2 case at the Supreme Court about who has standing to challenge election laws. Now, remember, this is about ballot receipts after election day and you know, when they have to be stamped and all of that stuff. But that is not the question for the court. The question is whether a congressman in that election has the standing to challenge that law. That's it. Not the law itself. And there was sort of this big fight at oral argument about standing doctrine. Now, in our Last episode, we talked extensively about how standing doctrine has kind of flipped it sort of. If you're on the losing side ideologically of where a court is and where it's headed, all of a sudden standing doctrine is going to look really fun to you because it's a way to prevent a court that's not on your side from reaching the merits. So conservatives were always really into narrow standing. They wanted fewer cases reaching the courts because they didn't agree with where the courts were headed. Now that's sort of flipped. You see conservatives wanting broader standing doctrines and the liberals being like, ooh, I don't know if they're standing for this. I can't believe we just talked about that on the last episode, because this case is now the poster child for the switch. Okay, so this congressman is an incumbent. He wins every election by a gazillion points. And so part of the standing question is he's not going to lose this race. He's not potentially injured by this rule. So does he have standing? Well, five justices of the court says he has standing because he's a candidate, and a candidate has a particularized interest and injury for election rules that are unlawful. Two justices of the court, Barrett and Kagan, say he has standing, but he doesn't have some generalized candidate standing. He has standing because he has to spend money in order to defend those ballots that come in late because they tend to have, you know, discrepancies. And any candidate is going to spend money to make sure there's not some flood of illegal ballots coming in after election day. Once you've spent money, you've got an injury. He's got standing. Two more justices, Jackson and Sotomayor, are going to say no standing because you can't manufacture standing by spending money that you otherwise, like, wouldn't need to spend. It's sort of like spending for standing. You can't spend your way into standing. David, it was kind of. I mean, first of all, the 7:2 splits are always fascinating because Kagan breaks from her 3 pod, if you will. So it's this like the, the most interesting part of the 333 court to me is when one justice breaks from their pod. And, and so here Justice Kagan and Justice Barrett, who also often breaks from her pod, are combining forces into this spending money version of standing. But you have the Chief Justice, Thomas Alito, Kavanaugh, and Gorsuch generalized standing for candidates. Again, a real flip in where conservatives have generally been on generalized standing type plaintiffs. And then you have liberals wanting the much narrower standing grounds.
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B
Yeah, it's a fascinating case. I mean, literally when I was reading this, I was thinking, how do you not have standing here?
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A
But which side did you, which side of the standing? Were you with the five or were you with the two on the standing?
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B
I did like the simplicity and ease of the two.
- [36:42]
A
Wrong.
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B
It's easy, simple, done. But honestly, even without the pocketbook, like I, the way I would look at it is if I can walk in and I show pocketbook injury done, it's over. I don't have to get into all the more complicated stuff, but I have standing on the more complicated grounds as well. So, I mean, I just think you have standing coming and going here. It's just hard to, it's hard for me to see how as a actual candidate for office for whom the ballot counting rules are more relevant than to anybody else, that you do not have standing here to challenge the ballot counting rules. So yeah, again, you know, these are three interesting cases, but also three really easy. You can be interesting and easy at the same time. And the only thing of all three of these cases that is the least bit surprising me are the two dissents in this case.
- [37:37]
A
So obviously if there's a pocketbook injury, I think that's a no brainer. But as the Chief justice points out, what if you have volunteers checking those ballots that come in, Then you don't have standing. But if you have a staffer overseeing the volunteers, you do have standing. What world is that? And I thought he laid out nicely why it would be a mess for the courts to have to figure out candidate standards standing. Because what the courts are now going to guess whether, you know, because you're going to challenge these laws before the election. So they're going to have to guess how close the election is going to be or you know, whether it hurts the incumbent's reputation to have a closer race versus a bigger blowout race. Like in some ways there was almost a little bit of political question, like reverse political question doctrine. To not have standing would force political questions to come up that the courts are 0 qualified to do. And I, I really sided pretty heavily with the chief here. I'll just read part of it. Candidates, in short, are not mere bystanders in their own elections. They have an obvious personal stake in how the result is determined and regarded. Departures from the preordained rules caused them particularized and concrete harm. The same is true of competitors and other contests. Each runner in 100 meter dash, for example, would suffer if the race were unexpectedly extended to 105 meters. Whether a particular runner expects to finish strong or fall off the pace in the final five meters, all would be deprived of the chance to compete for the prize that the rules define. The fastest to run 105 meters has not won the 100 meter dash. And in much the same way, an unlawful extension of vote counting deprives candidates of the opportunity to compete for election under the constitution and laws of the United States.
- [39:21]
B
I think that's absolutely correct. But again, I'm just so stumped by this case because for when I think of it playing out in litigation, I would imagine that you would have as an initial early matter, the district court finds standing. Find standing on goes to the simplest, most direct route to standing pocketbook. And then the case just goes on from there. There's no further discussion of standing in the case. But no, no, this, this went all the way to the Supreme Court on, frankly, what I think is the actual easiest part of the entire litigation. So very, very interesting and strange case to me.
- [39:58]
A
All right, when we get back, a court asked Lindsey Halligan why she continues to use the title United States Attorney and raised the possibility of sanctions against Lindsey Halligan if she continued to use that title. When we get back, we'll discuss who's right. Okay, David. A different district judge has asked Lindsey Halligan why she continues to use the title in her signature block United States Attorney. After another judge in the district dismissed the James and Comey indictments because she was not properly appointed as U.S. attorney. The Department of Justice has responded in a filing signed by the Attorney General herself. They attack the Trump appointed judge for calling this possible professional misconduct. They characterize the Trump appointed Judge Novak's order as an inquisition. They call it an insult, the judge's mere fixation, gross abuse of power and a cudgel against the executive branch. They accuse him of making a rudimentary error. David, to say the least. The vibe of this filing was extra, as the kids would say, but that doesn't mean it's legally incorrect. I'm curious whether you think that when a judge dismisses two indictments saying that you are not properly appointed as U.S. attorney, and then you continue holding yourself out as the U.S. attorney, putting U.S. attorney in your signature block and filings, court filings, have you violated the rules of professional conduct? What exactly have you done wrong?
- [41:44]
B
It's a great question, Sarah, is, has there been a final determination on the merits that Lindsey Halligan is not the U.S. attorney? I would say I don't think that that's correct. And so in that circumstance, if you don't have a final binding determination on the merits that Lindsey Halligan is, is not U.S. attorney, that I do not believe it's professional misconduct for Halligan to hold herself out as U.S. attorney. At the same time, I never approach these, I cannot shed behind my real world litigator stance. As you know, my, my 20 plus years of real world litigation and interaction with district court judges when I'm looking at these kinds of situations. Because the other thing is district court judges have, and a lot of people don't know this, they often have their own rules governing their own court. And so, you know, one of the first things that you want to do if you file litigation in a, in a district court you haven't practiced in is ask for the local rules. Get copies of the local. Now used to have to ask, sorry, aging myself. Now you just download, download a copy of the local rules. Okay. And so they, the judges are masters of their own courtroom. And so what you're dealing with here is I think a judge saying, I don't want you to do this because I think this is not, you're not lawfully appointed. And the Trump administration coming in with very aggressive language, almost like a Fox News type filing or a Newsmax style filing at this judge. And I think in an interesting way, they're, they're kind of both correct. One that I think the administration is correct as. Wait, hold on. There's not been, this has not been a final determination that she's out. So why are you doing this? And then the judge has a measure of. The judge as the master of his own courtroom, in theory could, I think, say, for purposes of this litigation, I'm asking you not to put this down. You know, you, you can't put this, you can't put this in your signature block. It's a silly dispute in some ways, a silly dispute in a lot of ways. Irrelevant to the merits. But I think it's quite clear that the administration's language was ridiculously aggressive. It also might be the case that the judge is being a bit, what would be the word that my dad would use? Persnickety. A little bit nitpicky perhaps. I don't know. Who cares about signature blocks anyway? But interesting little, interesting little conflict there.
- [44:19]
A
Okay, so if you're a listener and you feel strongly on one side or the other of this, this is my favorite thing to do on the podcast. It drives many of you crazy. But I think it's because, at least for me, it sort of oftentimes pushes me back on my heels. But a year ago, we were all in the reverse of whatever position you're in today, because Judge Eileen Cannon, a district court judge, held that Jack Smith was not the properly appointed special counsel to bring the case against Donald Trump in the classified documents criminal case that was filed in Florida. Jack Smith continued to use the special counsel title in his filings and his signature block. And nobody that I saw accused Jack Smith of unprofessional conduct or bar raise the possibility of bar complaints. So good for the goose, good for the gander. You really can't. You got to be consistent on this one, because they're both close in time and nearly identical in terms of the legal question presented. There's also a very interesting, I think, much more interesting legal question about a district court that rules. Is that binding on a different district court? Does it matter if they're in the same district? Does it matter if they're in a different district? All of that, none of it, I think, is actually relevant here. But there are other little legal questions, like that binding question, like, for instance, the fact that she dismissed the indictments of James and Comey. The reason was because Halligan was not properly appointed as U.S. attorney. But there was nothing in the holding of the court. The action taken by that district court that, for instance, stripped Lindsey Halligan of the ability to use that title. She's not, for instance, violating a court order. Very different what a holding of a court is versus the reasoning for that holding. That's another interesting piece of this. But again, sort of, that's all kind of irrelevant because it doesn't matter. She can use the title. There's no appellate court decision. There's no Supreme Court decision. A single district judge did not decide the title.
- [46:26]
B
Yeah, I mean, to me, the idea that it's a professional misconduct. If one district court has said that you are not lawfully appointed, for you to continue to use a title in another district court to call that professional misconduct, I think is completely wrong. The only question I have is, could the other district court, according to its own command of its own courtroom, say, for purposes of this litigation, I don't want you using that title. To me, that's a much closer call than sort of one another district court saying, well, because this district ruled against you, you're committing a bar violation. This is unprofessional for you to continue to hold. No, I. I don't agree with that at all.
- [47:06]
A
But to your point, David, you're litigating in front of this judge, you're going to be litigating in front of this judge a lot. Do you really think that tone's a good idea? Do you think you're winning friends and influencing people for all the decisions that will be purely discretionary of whether he wants to make your life more difficult? Like, for instance, you need an extension of time on that filing because your kid is sick, or you wanted to go on a family vacation that had been long planned. Oh, that's fully up to the discretion of the judge. Hmm.
- [47:33]
B
Yeah, exactly. I mean, you just, you know, and look, I mean, the. The reality is that you would want a federal judge or any judge to absorb a blow from a litigant and realize that that's irrelevant to the merits of the case, and then you just go forward as if that shot at you was never taken. But one of the mantras of advisory opinions is judges are human, too. And one of my goals when I was litigating was to smooth the road to rule for me, to make ruling for me and my client the easiest possible decision in the world. And that meant, I'm not annoying you, I'm not violating your rules. I am the most. I try to be the most reasonable and accommodating person in the room. It's the other guys over there who throw up the roadblocks. It's the other guys over there who are annoying. It's just a. It's just a kind of a common sense means of persuasion is to do what you can to make it easy. Easy for the decision maker, whether a judge or a jury, to want to rule in your direction. That just strikes me as Advocacy 101.
- [48:40]
A
Okay, David, I want to revisit Minneapolis. A, there's a couple questions we didn't answer. B, I had this back and forth with a good friend where I realized we were speaking different languages about this. And, well, you were invoked at one point, frankly, by both of us. So I'm coming to you as our arbitrator. Okay. So I sort of go on and on about how, you know, there's no question I'd fire the officer, but I don't think he committed a crime. That was the punchline, similar to what we said on our advisory opinions episode about this. And the response was, this is not about whether or not this guy is going to be convicted in court. It's about the vice President of the United States going out there and accusing people of lying, when in fact it was the federal government that was lying brazenly and ridiculously. And like, then of course you're invoked. You had a tweet that said a shooting can be unnecessary and immoral without being illegal. And the legal standard can be complex. This person says, this is my point. There are a lot of idiots in a lot of places. But the officials who are in positions of actual authority have been lying about what happened, defending the officer before taking three minutes to investigate what he did, and even praising him and maligning the dead woman by calling her a terrorist, again, without actually investigating anything. So jumping to a discussion of whether or not the officer could be criminally prosecuted seems to me to be sort of missing the point. It's a point, but it's not the central point. And, David, I just realized. Oh, see, to me, the legal question is a place that we can sort of meet together with specific rules where we can talk about what happened and how to apply those rules to what happened. And then once we can agree on that, we can sort of move to the outer shells, you know, like the electrons around an atom. I want to do that, like, first shell of electrons. And he wants to skip to, like, all. Just talk about all the electrons. And I guess I felt like that's what. What this podcast in some ways is for me, you can have this swirl going on about culture war issues or an administration or political issues. And the legal question for me is often the way in which I feel like I can bring both sides to engage with the facts in a shared reality, because we have these processes and rules of engagement. But I realize, I mean, this is like a brilliantly smart, great friend that we were just speaking about totally different languages. We weren't having the same conversation.
- [51:13]
B
Yeah. You know, here's an analogy I'm trying to think of. When an incident occurs or when an event occurs, there's often a question of sort of like, what's the salad and what's the salad dressing? In other words, what's the core of the issue? What's the most important element of the issue? And then what are the ancillary. What are the side issues that give it a particular flavoring or particular kind of salience in one community or another community, et cetera? So you're often. This is a very normal thing, is you look at a complicated news event and you pull out what's the most important thing? Now, on advisory opinions, the legal question is almost always the salad. That's what this podcast is all about, is regardless of sort of all of the other things that are out there, if there's a controversial issue that Has a legal. A legal element to it. On this podcast, we really dive into the legal element. Now, that may not mean even as like, for example, I went back and listened to that podcast because it was, you know, I thought it was a, you know, very important podcast by our, you know, in our AO pantheon on a very important issue. And I sometimes go back and I think, huh, how do I feel about this? A day later, right? And so I listened to it and I thought, huh, in listening to it, I realized that our focus on the law in the podcast could leave some people cold because there are other elements to this. Like those elements, your friend discussed the. Immediately, immediately labeling Renee Good as a terrorist. That's a horrible thing, in my view, a horrible thing. I viewed the shooting, and maybe this wasn't communicated clearly enough in the original podcast. I believed that the shooting was irresponsible and unnecessary, that there should be disciplinary action against the officer, for example, But I wasn't willing to say on the available evidence that the shooting was criminal. Okay? And so that's why I wrote that tweet, which I think that tweet actually very much supports your position, Sarah, but then tells me that I'm. Maybe I wasn't clear enough in my writing if it could be construed in different ways, but. Because what I was trying to very clearly indicate to people is that you could have a shooting from a police officer that was deeply irresponsible, that placed in the context of the actual event profoundly immoral, unjust, even terrible, and yet not criminal. And. And that these analyses are different. The analysis of whether something is criminal is a different analysis to whether it's irresponsible. They're related, they're connected, but it's different from whether it's irresponsible or immoral. And one thing I wanted to communicate in our podcast is that totality of the circumstances standard that we think is the one that will apply here under that standard, under that totality, the circumstances, but based on what we knew and know currently, that it would be very difficult to secure a conviction of that officer. And I think that's correct. Now, we got some very interesting emails from a lot of people in response to the podcast. And I think one thing that stood out to me is amongst the people who had law enforcement experience, there was a pretty clear sense that the way he handled that stop. Well, wasn't really a stop. We'll get into that. The way he handled that incident, the shooter handled that incident, violated professional standards, that there were elements there of officer Created danger, something that we've discussed. But as we've also discussed, the actual way in which officer created danger applies to the analysis is kind of up in the air. The Supreme Court did not deal with that in Barnes v. Felix. It didn't. And so the officer created danger concept has some real ambiguity here. Legally. Legally, I think it has a lot less ambiguity morally, a lot less ambiguity professionally. And that's one thing that really disturbed me about the administration's response, that it immediately circled its wagons around the officer. There's zero indication they're doing any kind of investigation beyond what we've already seen. I think that's a real problem. It's a big problem. But at the same time, I like the way you put it, Sarah. The law has the virtue of having standards that we can all look at and evaluate actions in light of standards. And what we were asking people to do, and what we're trying to do ourselves is to pull ourselves back from the emotion of the moment and evaluate the officer's actions in accordance with the law and precedent. And when you do that, when you do that, and I think particularly of Barnes v. Felix again, and I went back and I read remand. Barnes v. Felix, reread. Barnes v. Felix on remand. When you look at that, it's harder to see. It's hard to see a clear path to a criminal conviction here. And, you know, that's a very long winded way of saying, I think you're right about this, Sarah, that the legal analysis is something different and important, but it also should be something that we can at least have some common starting presumptions as sort of a common baseline from which we analyze this situation.
- [56:49]
A
Yeah, I mean, to me, I start from, okay, if he were a state officer, I don't think he would be convicted based on precedent because he's a federal officer. We're now going to layer immunity on top of that. Okay, so conviction very unlikely. Now, should he keep his job like that's the electron field right outside of that? No, I don't think so. Although, again, I'd want to know a little bit more about some training issues and a more full investigation. The electron after in the orb out of that. Morally, is there something else between these two people of right and wrong? But that's the last electronic outer, outer electron that I want to talk about because I want to set all of those other electrons in place first. Sorry, this is getting very Heisenberg principle now. But, you know, for anyone who remembers chemistry, hopefully they're with me. But David, there's another question that I got which was for all those people who are sort of coming to accept that maybe, you know, all the immunity stuff we've talked about applies, they're like, yes, but only if he was performing his official duty and didn't violate the Constitution. But ICE officers are not allowed to make traffic stops. So what he was doing was outside his official duties, violated the Constitution, and therefore he's outside that immunity protection. I just wanted to break that down a little bit of why we didn't spend much time on that. It is true that if a federal officer, you know, an ICE agent in this case, sees you run a red light or speed, any sort of generalized traffic infraction, they cannot pull you over for a traffic stop. You're driving erratically, you cross the yellow line. Nope. Can't pull you over. Even if they think you're drunk. Broken tail light. Yeah, like all of those things, they cannot pull you over. However, there is a federal statute makes it a crime to impede a federal officer from their duties. If an officer has reasonable suspicion that you are impeding them, that you are violating that law, then they may stop you. And so this was a stop based on reasonable suspicion of violation of that law. And again, it's whether a reasonable officer would have reasonable suspicion to think that this person was impeding their official duties. So again, we don't look to her intent. You know, she was trying to do a three point turn and turn around. Ugh. That's why they could still have reasonable suspicion that she was trying to impede them. They stop her, they ask her some questions, they're convinced that she was trying to do the three point turn. That's the end. But it doesn't make the stop unlawful because it was not a traffic stop.
- [59:36]
B
Yeah, I agree with that. I agree with that completely. And just to circle back to the point about the legality of the shooting, there is such a need, I think, for clarity. There are certain. You know, one thing that would be interesting to do as a podcast on the slow Newsweek, if we ever have one of those ever again, Sarah, would be, what are some questions that you really believe the Supreme Court needs to resolve that it hasn't resolved yet and the officer created danger. Question for me is very, very important because as I wrote in the Times, there are very few things in the United States of America that create more of a tinderbox and create more of more opportunities for, for violence, for divisiveness in American life and culture than issues around Police violence. We have seen this for decades, that those issues are absolute lightning rods in the United States of America. And I have looked at a lot of police shootings in my writing. In our legal analysis, we've looked at a ton and a very, a shockingly high percentage of them of the controversial police shootings involve at least some element of officer created danger. Not all of them. Not all of them for sure, but many, many of them have an element of an officer created danger where the officer makes a mistake, creates a crisis situation that they then resolve by firing their weapon. And that is not uncommon in these kinds of situations. And so what is the legal environment for officer created danger? To me, that's it's got to be resolved. And the absence of that resolution is very material to the legal analysis in this case because this officer walked in front of the vehicle, very close to it, very close in front of the vehicle, as that vehicle was entering into the person, the driver of the vehicle was entering into a tense confrontation with another officer who was approaching from the side. And so there's a strong officer created danger element here. And unfortunately, we do not know how that cuts.
- [61:43]
A
All right, David, I've got a couple little pieces of potpourri for you. One, we had an op ed in the Wall street journal signed by two circuit judges, Lisa Branch of the 11th Circuit and Robert Wilkins of the D.C. circuit. One was appointed by Trump, one was appointed by Obama. These guys do not have a lot in common except that they're both circuit judges. Help federal judges protect themselves. Active members of the judiciary seldom endorse legislation, but we're making an exception for Senator Tom Cotton's bill that would allow federal judges and prosecutors who have completed law enforcement firearms training in their home jurisdiction to carry concealed guns across state lines. David, what do you think? Is this a good idea or are we just going to have a bunch of gun toting judges running around the country?
- [62:31]
B
Would it provide material additional assistance to a federal judge? Security assistance? I don't know. Marginally additional assistance, maybe. But I think, yeah, absolutely. That a federal judge, a federal judge, a Senate confirmed appointee who is subject to an increasing threat environment. Absolutely. Should be able to conceal carry. Just. Absolutely. Especially since, look, the Marshals Service is not necessarily able to blanket these folks with coverage. And often the coverage comes after. The additional coverage comes after threats. But what if somebody is quietly plotting against you? What if you have no idea that you are the subject of an unfolding plot and you are sort of rolling around with normal, quote, peaceful levels of, you know, Martial protection. I think about the last community of people in America who are likely to engage in impulsive firearm usage in public are federal judges. So to me, this is just a, it's a, it's a kind of a common sense. Yeah, absolutely. Let them protect themselves.
- [63:47]
A
Next, potpourri. It's been no secret that Donald Trump has been complaining to anyone that will listen about his attorney general. That's a headline that could have been written in 2017-2018-2020-2025, and now 2026. Here we are. And so I was called by the Wall Street Journal for, like, my thoughts on this, and I gave this quote, the better an attorney is, the more process oriented they are. And that is in direct opposition to what Trump wants, which is someone outcome oriented. He can never find a great attorney general because by definition, they can't be a great lawyer.
- [64:22]
B
Great quote, by the way. Great. Did you just pop that one out? Like, that's really, that's, that's good stuff right there.
- [64:30]
A
No, all credit should go to Sadie German, the reporter on this piece, for spending like 15 minutes on the phone with me as I like flim. Flammed around verbally. And then finally I said something worthwhile. As anyone who listens to this podcast might know, there's a lot of flim flamming and then occasionally I say something that makes sense. But I wanted to pick apart a few pieces of this because it's hard to get everything you're thinking into just 20 words or whatever. So the first part is that process versus outcome. A lot of people were like, if I'm accused of a crime, I want an outcome oriented attorney because I would like to them to care about the outcome of my trial. Oh, yeah, no, that's not what I mean. Attorneys are advocates. You know, everyone's competitive. But if you don't understand the process and sort of love the process and work the process being outcome oriented and just saying, like, I'm getting to there and I don't care how we get, there is a really bad attorney. So an attorney is just like, my client should be acquitted, because obvi, that's an outcome oriented attorney, but it's not a good one.
- [65:40]
B
Well, let me put it this way. If you're, especially if you're on trial for your life, you want a process oriented attorney. Right? Because unless there is concrete, unless you're walking into that courtroom, like, say, in the position of the Duke lacrosse guys, where you've just got like loads of evidence of actual innocence, which is not the general circumstance for a Criminal defendant, you're, you're generally not indicted. When you're standing around there with like, giant loads of evidence of actual innocence, that, that does happen on occasion. It is not the norm. So if you're indicted, there's been probable cause, there's been a preliminary hearing, you are standing on trial for your life. You know what's going to keep you alive? Process. Did the cops do everything the right way? Is, you know, we're going to talk about on appeals, in appeals, did your trial attorney do everything the right way? Their process. Process keeps you breathing if you are somebody who's on trial for your life. So, yeah, but I thought that that was a really great way. But just beyond sort of like that, that very blunt analysis, I really love that quote because it's great advice for young lawyers. It's great advice because to get you to pay attention to the details, pay attention to the dotting of the eyes and the crossing of the T's. That is going to be your competitive advantage in law. And one of the ways that you see it as a competitive advantage is often when you're litigating against an overwhelmed attorney, an attorney who has too much on their plate. You know, and this is one of the problems with, you know, some folks who are, you know, sadly, assistant district attorneys and public defenders often have too much on their plate. It's not their fault, but they've got too many cases. In that circumstance, if you are representing an opposing party and you have time, you have a competitive advantage over your, your opposition. And so. And why did. Why do you. Because you have the time to pay attention to the details. So I love that quote, both on the merits of the. This is why Trump has trouble finding good attorneys. And it's not just attorneys general. It's also just on. This is how you can start to identify good attorneys. This is a good way to become a good attorney, is to pay attention to those details.
- [68:02]
A
The other piece of the quote, he can never find a great attorney general because by definition, they can't be a great lawyer. Some people interpret it as me dunking on Pam Bondi, and they either hated that or loved that or whatever because it's Twitter, like. No, no, no. Let me just clarify. I mean, Trump can't find what he would define as a great attorney general because the people he's appointing keep being good lawyers, and therefore he doesn't like them as attorney general. If anything, it's a compliment to Pam Bondi and to Bill Barr and Jeff Sessions that they weren't great attorneys general for Donald Trump that he fired all of them or, you know, Barr technically resigned. And Bondi hasn't been fired or resigned, but I would call her like an ag. I know, like AG in name only. At the point that they're announcing that they're going to have assistant attorneys general that don't report to you, but in fact report directly to the President, you're no longer the Attorney General. That's. I don't know what else to tell you. Like you were fired, but it's sort of like office space. They just didn't tell you. They just stopped sending the paycheck. And obviously there's a lot of nuance in all of this. I mean, the Solicitor General's office has been doing great work. We've talked about their intros before. There are great lawyers there. And Trump is not, as best we can tell, frustrated with his Solicitor general, although TBD on that tariffs outcome. But anyway, David, I just thought it was fun to break down how quotes get into the newspaper and what all they mean. This has been a fun podcast, David. A little bit of everything in it. But you know What? I had 1, 2, 3, 4, 5 circuit cases that we need to get to. And the fifth Circuit is about to have their en bancapalooza, the en bonkers coming up with all of those big, big cases. So we're about to have like an AO circuit frenzy in the next week or two. So stay tuned for those episodes. And there was a piece in the Atlantic that I thought we should talk about. It's the court fault that Congress isn't working. Have I had the thesis totally flipped this whole time?
- [70:11]
B
It's interesting. It's interesting. And yeah, I'm very much. Y' all have to come back for these circuit discussions. Everything from sleeping attorneys to Satanists and everything in between.
- [70:24]
A
I mean, sex offenders, Halloween parties. It's all of it.
- [70:27]
B
It's all of it. It's everything.
- [70:30]
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 at. Advisory Opinions the Dispatch Calm 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.
- [71:50]
B
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