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- [00:02]
A
Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. Oh, David Trump was on a real losing streak at the end of last week. But, but is it a permanent losing streak or is this judges gone wild? We'll talk about all three losses. The Kennedy center, the motion on Trump versus IRS that I said was sanctionable last week and was maybe kind of granted this week. And then the injunction on the slush fund again after we said that you'd actually have to stand up the slush fund. Who's right, who's wrong, we'll find out. Also, a lot of scrutiny on the court. A justice's house is swatted, A justice's son is, has a job. I guess that's a scandal. And who knows where else we'll end up? David? All this and more on Advisory Opinions. So we do try to always give disclaimers on this podcast about what husband of the pod is up to, since he is a practicing lawyer. And that's about to get a lot easier because instead of having all these clients and high profile cases that I, you know, have to keep track of, he will only have one client from this point forward. It will be the Chevron Corporation. He is going to be the new chief legal officer of Chevron, which means drum roll, David. We're moving to Texas, y'. All.
- [01:38]
B
Texas has been calling you home for a very long time. And I'm very excited for Scott. I'm very excited for you, and I'm super excited to see how realistic Landman is. We need updates, we need reports, because I, I, I want to know, okay,
- [01:56]
A
but if in like six months I've gone all Ali Lartner, you're gonna out, right?
- [02:01]
B
100% call you out.
- [02:03]
A
If that happens to the land of fajitas. No more needing to smuggle tortillas back from H E B on the airplane. This is huge, David.
- [02:12]
B
No, it's tremendous. It's tremendous. Now, the only, you know, having moved recently, the only, when you have positive news that involves a move, it's always mixed because it's congratulations on the really positive part. And I am so sorry for what you're about to go through.
- [02:29]
A
Speaking of anxiety, I don't know what that segue is about, but let's, let's do these three cases. David, of the three losses that Trump just had, which one do you care about the most or think is the most? Sort of has the stickiness.
- [02:45]
B
As far as the stickiness and the interest, I'm very. The Kennedy center obviously struck a nerve with Trump in a way that I didn't even expect. And I knew it was kind of important to him, but it seems to have been a lot more important. And I'm actually probably most interested in that one.
- [03:05]
A
Okay, well, then let's start there. This was in the United States District Court for the District of Columbia. It touched on a few things. One, the renaming of the Kennedy Center. Two, the voting privileges of ex officio members, and three, the announced closure of the Kennedy center for renovations. Well, David, I feel like we have to start with all of these cases with the question for them, which is standing, because, frankly, the question of whether Donald Trump, the President of the United States, can rename the Kennedy center after himself is so easy legally that. That it would be a very short podcast. There is a statute passed by Congress that names the Kennedy center the John F. Kennedy center for the Performing Arts. A president can't change that through executive order. This is one of those examples, David, where it's like, you know, you must be 30 years old and a citizen of the United States for nine years to run for Senate. Like, there's confusing things in our laws. There's poorly written or vague language, ambiguities. This ain't one of them here.
- [04:14]
B
Yeah, yeah, this really is very clear legally. The reason why I'm interested is because the next part we're gonna get to, which is the standing discussion, the actual substantive legal issue here, can you, by executive order or whatever sort of executive action that is undertaken on your own initiative, essentially reverse, overrule, rewrite a statute of Congress? That's a basic civics question, Sarah, like the old Schoolhouse Rock. I'm a bill, just a bill. And if you're an executive order, you're not even an extra in that. In that show, right in that cartoon. You know, if you had standing and you. You're just asking, can I, by executive order, executive action, rename an institution that Congress has named by statute? No. No. But the standing issue here is interesting to me because it's coming from an
- [05:08]
A
ex officio board member, Ohio Congresswoman Joyce B. Beatty. She is a Democrat. She is an ex officio member of the Kennedy Center Board of Trustees. That means that she is a board member by virtue of her position. She sued to block several of these board actions. Yes, the name change, that's the one we're all going to pay attention to, because, again, the legal question is so clear. But two, when they did the name change, it was at a board meeting. It wasn't on the agenda for the board meeting. And at the end, they just voted on the name change and they involuntarily muted her line so that she couldn't speak or vote and then said it was a unanimous vote. So did they violate, you know, her rights through that? And then, of course, the president has said that they are going to close the Kennedy center for two years while they do renovations. She is sued about that as well. David, let's just, let's do some one L law school right to have standing. One injury, in fact, two caused by the defendant, three redressible by this action in the courts. David, I mean, I guess we're, we're stuck on number one here. Is she injured by the name change?
- [06:26]
B
So why. The reason why I find this interesting is because there are multiple different issues, and I think you're going to end up maybe with different answers depending on different issues. And let's sort of back up. So if I'm a member of a board of a company, what rights do I have to sue on matters relating to that company? So I think it's pretty clear, Sarah, that if I see my rights as a board member being violated, so in other words, the, the company's bylaws or whatever give me particular rights as a member of the board. And if something is done by the company to diminish my rights as a member of the board that I think are illegal, then I have standing to assert my rights as a member of the board. But what if I lose a vote of the board and I believe the vote was not in the best interest of the company? Do I now have freestanding rights to sue, just sort of advance the interest of the company that I think exist is another question. And then the other one is, well, what if I didn't actually get the chance to weigh in on the issue that I think hurts the company? Then do I have standing? So you see how there are different. This is peeling an onion here. It's not. The, the issues are, are subtly different depending on which particular precise matter we're talking about.
- [07:56]
A
Okay, so the judge in this case, I think, gives quite long shrift, if you will, David, to your example of the board votes for something that you don't think is in the best interest of the company, and that that gives you standing to sue. I feel very. No, no. About that.
- [08:17]
B
I agree. Put it this way. Let's imagine you're on the board of General Motors and the board is saying, we're going to roll back our EV investment. We've heard that Scott Keller is at Chevron now. I like Scott a lot. I think we need to double down on fossil fuels for a bit to give help. Give Scott a soft landing, you know, at Chevron, he's feeling good about it. And so we want more oil and less EVs. Okay? And you vote and you lose the vote. You say we EVs are more the wave of the future. We've had momentary dips, you know, and we don't make decisions on the basis of favoritism. Anyway. I'm voting no. And you lose the vote. Well, have I been. Have I been injured? No, but as a fiduciary of the company, in other words, somebody charged with the responsibility of acting in the company's best interests. If I believe the company's best interests have been harmed by this decision as a fiduciary, do I have a freestanding right to file a lawsuit to intervene? And that's what I'm really. And the court's ruling wasn't that all encompassing, but it really did kind of rest on this notion that as a board member, there's a fiduciary responsibility. An illegal action is contra or against the fiduciary responsibility of the. You know, is against the. When the board did this, it was contra their fiduciary responsibility. And I have standing.
- [09:49]
A
Standing question mark.
- [09:51]
B
I have standing. I don't know. I don't know. That seems a bit much to me.
- [09:55]
A
Okay, well, let's put a pin in this one, because, as you say, the President has written what appears to be a novel about this case, including, at least conceptually, the idea that they're not going to appeal it and that he is simply going to hand over the Kennedy center to Congress. Which I gotta say, was a pretty funny line considering that it was always with Congress, it was never with the President. That was the whole problem to begin with. So we've talked about this, David, about the correct denominators to decide whether Donald Trump is winning at the Supreme Court. Here's a perfect example. If they take the L, it should still be in the denominator, even if they didn't, you know, appeal it all the way to the Supreme Court. If they appeal it all the way to the Supreme Court. Not saying that they would do that or that that would be wise, because, frankly, I don't care a whole lot about this one. Compared to everything else that's going on, though, again, it's sort of fun that it's the most blatantly unlawful to me. Is it? I don't know, I'm actually not sure I even believe what I just said. The most, like, clear, there's literally words that are like, a president can't change the name of the Kennedy Center. That's like, as close as we are to that. I'm still upset, David, about this idea that like Donald Trump, quote, has won 80% of the time at the Supreme Court, when in fact it's more like 20% of the time because they just didn't appeal all of these losses that they don't think are worth appealing, that they're going to win, et cetera. And somehow people are divvying up the layers of court so that it can look as bad as possible for the Supreme Court.
- [11:25]
B
I mean, to use a basketball analogy, losing in the Eastern Conference finals is not a better season than losing in the finals. But the fact that you stop at the circuit court level or the district court level because you believe it's futile, you don't get to then claim a giant winning percentage in your cases. Now, the reason why I find this interesting, Sarah, and maybe this is just is not because I find this the most consequential, I think, of the recent court decisions, the most consequential is the Alabama map loss, at least for now. I think that's the most consequential. I found this the most interesting precisely because because of the different aspects of the case pulling forward, different elements of the standing analysis, because standing is so key right now. And it really is sort of teaching America that courts do not exist as error correction vehicles. In other words, the court does not exist to make sure the law is followed. Courts exist to redress injuries, to compensate for, to ameliorate, to address legally recognizable injuries. And those two concepts will often overlap a ton, but they don't overlap perfectly. So the fact that I can point to an unlawful act does not then therefore mean courts will engage.
- [12:54]
A
Well, I'm so glad you said that because Yuval Levin, I think, has put this so well, like, big picture, right? The Congress is supposed to be focused on the future. That's what laws are. They are anticipating future needs of the country and how we want to order our society. The president is supposed to be focused on the present. He's supposed to execute those laws today, conduct, you know, foreign affairs, et cetera. And the courts are supposed to be backward facing, which is why they are protected from democratic, you know, swings, independence, because they're not supposed to be in the here and now. And Justice Ruth Bader Ginsburg and one of the last opinions that she ever wrote on the court actually talked about how the courts are not supposed to, you know, quote Sally Forth to find wrongs to right. That's not their job. That's why we make sure there are cases and controversies like for instance, what we don't have in the slush fund, the irs, you know, Trump versus IRS case. That's why we make sure there is standing so that there's actually an adversarial process with a case or controversy that is backward looking to correct a past injury. So it shouldn't matter that they can move quickly or fix. Again, Sally Forth to find wrongs to right in this like Don Quixote court sense. And I think you're going to find, dear listener, that in these three cases it sure feels like we have a lot of judges on horseback with lances. David, when we get back, we're going to move to the slush fund. You and I feel very strongly about the slush fund and perhaps the end of Article 1 and the Appropriations powers. But it doesn't mean that we support nonsense lawsuits to stop it, actually, because that hurts Everyone. Why? Flight 93. We'll be right back. Let's go to the next case, David, because I think these will all be of a theme. So the next case will be the Andrew Floyd et al versus Department of Justice. This is the case out of the Eastern District of Virginia where the judge enjoined any further action pursuant to the creation or operation of the anti weaponization fund, which includes the transferring of money to the fund, the consideration of any claims submitted to the fund and the dispersing of any funds from the fund. David, I don't think there are two people on the planet more upset about the anti weaponization nonsense than this podcast and the two of us. But, and we haven't talked about this, I think you and I are both going to have some questions about process and about. Well, David, the difference between standing and ripeness, which frankly we don't know. Nobody knows, to quote Nate Bargazzi, what is ripeness anymore. Nobody knows. Okay, so let me tell you about these plaintiffs because. Well, yeah, this one's kind of interesting. Andrew Floyd was an assistant United States attorney. He was a federal prosecutor who worked on the January 6th cases and was fired. There's a abortion organization, the National Abortion Federation foundation, something like that, Common Cause, and they all have very different standing arguments. But I want to have the three buckets of standing arguments. Floyd, as someone who was fired by the Trump administration for working on January 6th, David, this is by Far the strongest of the standing arguments. His argument is an equal treatment one that because the fund is only available to people claiming, you know, lawfare and weaponization by Democrat elected officials, political and career federal employees, contractors and agents, therefore, like he's not being treated equally because he was targeted for lawfare and weaponization by a Republican elected official. And so that's the injury now here, David, there's no question there is an injury, right? He was fired from his job. But I guess we've got a couple things here, David. The weaponization Commission hasn't been set up. We have no process to know who they are giving the money to or what you have to have proven to be able to even apply for the money. And I went back and read the whole weaponization setup thing and let me, let me read it to you here. It says that they must provide a systematic process to hear and redress claims of others who, like plaintiffs, state that they incurred harm from similar lawfare and weaponization. The Attorney General of the United States agrees to create the anti weaponization fund subject to the terms and limitations described herein. Now, when they describe the lawfare and weaponization against President Trump and others, they do describe it as being by Democratic officials, federal bureaucrats, blah, blah, you know, the quote that I read. But the actual fund just says incurred harm from similar lawfare and weaponization. David, as I sort of mentioned at the beginning, a lot of the times we have this fight between like whether ripeness still exists because standing usually covers it. You don't have like an injury yet if the case isn't ripe. But here, I don't know, maybe this is sort of one of those rare pure ripeness questions because there isn't an, you know, anti weaponization commission and therefore there is not yet speaking an anti weaponization fund. And there are no rules for how that fund is going to be dispersed. I don't know that he does have an injury because he hasn't been denied sort of equal treatment of the laws or viewpoint discrimination or anything else. Because this isn't ripe yet.
- [19:00]
B
Yeah, that is my biggest question. If the actual founding document or the operative documents themselves, if they A exist and B, state that therefore democrat weaponization. I think you almost certainly have standing at that point because you would be talking about, okay, on its face, this is ideologically discriminatory. This is viewpoint discrimination there, but it hasn't been created yet so far as we know. So is this just too soon? Is it, you know, is this too soon? And it, if I do think it is Too soon we don't have. But here, here's the interesting thing that may start to occur, Sarah, is it's quite possible you might see money coming out of the treasury before they even formally create the entity, which is something I do wonder about if you begin to have sort of people are already submitting requests.
- [19:59]
A
It went through the interconnected tubes on the Internet. But like, where did it come out?
- [20:03]
B
That's a great question. And I do think that it's possible that you might see checks being written before an entity exists, that an administration willing to sort of go this far outside the lines on law might be willing to go just as far outside the lines on process and give you kind of this amorphous moving target to hit. So I would say prior to the creation of any sort of actual entity and, or prior to the dispensation or cutting of any checks, this is probably too soon.
- [20:41]
A
You know, the other reason I know this lawsuit didn't like deserve the injunction that it got because of the kitchen sink plaintiffs that were thrown at this. So the National Abortion Again Foundation Federation, I forget, they argued their theory of standing was that the fund will embolden anti abortion clinic misconduct by signaling approval of Face act violators and potentially compensating them. David, if someone murders, you know, someone in my family and then they are, you know, let out of prison because the prosecutor committed misconduct, for instance, I'm not injured because that will, quote, embolden murderers. Now, I want to be very clear, that's not what I'm saying happened here. But again, this is a theory of standing, not like facts on the ground. And so it has to apply sort of writ large that you have to be injured when the government compensates someone who you think will embolden other different people, like no way. Common cause, by the way, has like a election protection diversion theory similar to the National Abortion foundation organizational resource theory. These are. No, no, no, no.
- [22:00]
B
A good way of thinking through, to answer the question of do I have a potential standing problem is does my injury depend on second order effects? If I'm saying that I'm injured because not necessarily because the direct pain inflicted upon me by the existence of this slush fund, but what this slush fund may cause other people to do or incentivize or create, that is when you've got the second order effect, that's where standing is going to get really rough. And similar to the fiduciary conversation we just had, that's more of a second order effect. I'm a fiduciary of a company that has made a bad decision over my objection, there's going to be some additional negative blowback there to my interest as a fiduciary. Again, you're starting to get, if it's not direct, if it's not immediately traceable, you're going to start to have that big question mark around standing.
- [23:03]
A
Yeah, but on common cause, by the way, I just think this is worth mentioning because we've seen this several times before because you've, you and I have said the easiest way to get standing, the most obvious way is that it costs you money. And so you do see people kind of try to do a workaround on it cost me money. And the common cause example is a good one. Their argument is that they will need to spend more money because of this to do their advocacy. And it's like, no, it's sort of the, like voluntary spending of money. This all goes back to the Havens case, David, that we have talked about in the pod where the Supreme Court did find standing because an organization was going to have to spend more money on discriminatory housing claims. But Havens has been pretty isolated to its facts at this point because of this problem. Right. Everyone can claim that their organization is going to have to spend more money to defeat the bad guys now. And that can't be standing or else we just got rid of standing doctrine.
- [24:01]
B
Basically, we're not talking about immediate and direct effects here. We're talking about atmospheric changes, second order
- [24:09]
A
effects, et cetera, speculative, self inflicted third party conduct. Those are all terms that I think can be poured into bad standing arguments. But David, this injunction was granted. We're not just talking about some random lawsuit here. We're talking about a lawsuit where the judge said, yeah, yeah, all of this is enjoined. I just don't see a world. I mean, this is going to the 4th Circuit and maybe this gets to like a forum shopping fear that I have. I don't see how you can let this go forward as a credible theory of standing, really. Now, again, the administration may have political reasons that they would love to leave this in effect. And this is going to be a weird comparison, David, but I want to compare it to the bump stocks case for a moment.
- [24:57]
B
No, I see where you're going with this. Okay.
- [24:59]
A
Okay. So after the Las Vegas shooting, there were two bills pending, one in the House and one in the Senate to ban bump stocks. And then President Trump stepped in and directed the ATF to simply declare with their magic wand that bump stocks were included in the definition of machine guns and therefore were illegal to possess. All legislation dies, of course, because why would Congress take a vote that they don't need to? All political pressure on Congress immediately dies as well. Two years later, the Supreme Court strikes it down because the President can't change criminal laws with said magic wand. But we don't then get a ban on bump stocks. Okay, so why is that comparable to this? Republicans in Congress have sort of kind of like we discussed, David, been standing up to the President, been refusing to pass the Department of Homeland Security appropriations bill. They've even talked about passing a standalone bill to bar this exact kind of action out of the settlement and judgment fund. And so they're at this stalemate with the White House. So if the White House can now say to Congress, hey, you guys don't need to worry about this because it's enjoined by the courts, like, yeah, yeah, we're going to appeal it, but, like, we're not in a rush to appeal it. Don't worry about it. This will. This will be a problem for another day. So go ahead and pass that appropriations bill now because it's all been enjoined. The courts took care of it. You know, and so then in, I don't know, six months, nine months, when a court then overturns this because there's no standing, Congress has lost its leverage. The political pressure on Congress, in particular Republicans, has faded entirely. And it's just like a perfect win, win, win for everyone except the courts, who look like mean mommy.
- [26:47]
B
It is an absolute gift to Republicans in Congress. It's just a. It's. Think of it this way, y'. All, if you are a Republican in Congress and you have a pretty red constituency, you're in a somewhat gerrymandered district. So your normal may. In a normal election season, your main competitor is going to come from your right. In other words, you're always having to fend off somebody on the right, but this time, your district is swingy enough that you've got a little bit to worry about. Well, what does this decision do for you? It allows you to turn to your MAGA constituents and say, look at these federal judges twisting standing rules so you get an actual credible argument you can make against the judges that makes. That tickles the ears of maga. And then you can turn around and say to the other constituents, yeah, I've had problems with this, but I haven't had an opportunity to vote on it. It's all enjoined. You know, it's not going to happen. But Yeah, I have problems with it, but I also have problems with, you know, judges who are overstepping their bounds. And so you've just kind of given these guys a gift. There are circumstances in which you need to let the system play out so that when action is taken, it is going to be as solid as humanly possible. The news cycle should not be the guide for when you file complaints. In other words, when it is top of the news cycle, that might be great if you're in a nonprofit, for example, for fundraising, that you've already gone ahead and challenged it. Like, look at us, we have activated. I can already see it happen, a headline that says, appellate Court Clears the way for Trump's slush fund. And you're like, no, no, no, that's not exactly what happened. But you might have that. And then once again, you'll have other people saying, oh, look at these judges. They're in the tank for Trump. No, no, no, that is not what's happening here.
- [28:49]
A
No, we warned you at the time these cases were. Would not do you any good. Just like I wanna bookmark this moment, David, that this actually helped Republicans in Congress. It meant that they would not actually need to, and therefore would not stand up to Donald Trump just a few months before a midterm election. And at the same time, David, I can explain to you why this is helpful for Democrats in the midterms, too, because they're now gonna be able to say, Republicans didn't stand up to Donald Trump in the midterm elections. And when this, you know, does then happen, it'll be like, well, see, Republicans didn't do anything. And it's like, yeah, because politics. Because everyone is actually acting rationally, and the system loses and the judiciary loses, frankly, because judges are jumping the gun and thinking of their jobs as present tense instead of past tense. This lawsuit should have been dismissed for ripeness problems and said, please refile. When we have a commission with a process to apply for funds that clearly or even doesn't clearly discriminate on the basis of viewpoint or politics. It doesn't have to be clear at that point. Your lawsuit would still be ripe if you want to make that argument. But sitting here today, it's not. And in the meantime, you destroyed all political will to stand up to President Trump on this. And, David, I guess this is the point on. On the slush fund that, by the way, like, Steve Vladeck has made some. So, like, we're all singing from the same hymn book this week. This is primarily a political problem, not a legal problem, at least right now. And that means that Congress has real tools to solve this appropriations power of the purse, impeachment, by the way. I know no one believes in that anymore, but like, it is a tool that Congress has and we should put them through their paces to actually solve this the right way. But it's once again this idea like, well, Congress isn't going to do their job, so let's make the courts do it. And then the judges, at least some of them, I think, feel like, well, Congress isn't going to do its job, so therefore we must step in and we have to do this because this is the exception, right? David, the stakes are too high. And you get to this, like, sort of Flight 93 thing that we've talked about in the election context, whether it's Maine or Texas. I have to ditch my principles this time because this is such an exceptional situation. You know, the stakes are too high. If this doesn't, you know, get stopped, then this horrible thing will happen. So we have to skirt around the process right now. And I guess, again, I, I know the metaphor isn't perfect, but I've worked on these wrongful conviction cases, David, and I've never ever seen one where the prosecutor thought the person that they were skipping the rules to convict framing. I never have seen one where the prosecutor thought the person was innocent. Every time they think the person is so guilty that they can't stand the idea that this person will be let free. So this time we're going to skip the process. This time we're not going to turn over Brady materials because the stakes are too high and I am the only person who can stop it. And so I have the power, authority vested in me to skip the process. And David, it's just, it's making me angry at everyone. I'm angry at Congress, I'm obviously angry at the President, but now I'm angry at the courts because I feel like they're adopting the same political concept that has basically destroyed the other two branches.
- [32:28]
B
Let's put it this way. Flight 93 ISM is not a reaction to a crisis. It is the crisis. And this is the problem. It is the way in which we are using false allegations of existential threat to indulge, to excuse, to rationalize the conduct that actually creates existential threats. And so this has been the problem for ever. It's like when I was debating Sora Mari and we were talking about this whole Flight 93 concept. I said, imagine it's Flight 93, except you charge the Cockpit choked the pilots to death and realized they hadn't actually hijacked it. We were just going through turbulence. And now. And now you have like dead pilots and nobody know knows how to land the plane. Well, your Flight 93 ISM just created the crisis. Okay? And this is what we're doing at sea scale. Can we just diverge into politics for half a second? All right, Maine. Maine. Okay, look guys, I don't have to do the Ken Paxton thing to equate everybody. You know how I feel about Ken Paxton. It has been expressed robustly on this podcast many times. It's been expressed in writing robustly many times. Refer you to all of that, ME. The idea. The idea with all of these multiplying scandals that you have to overlook them all to deal with the existential threat of Susan Collins, one of only eight senators in all of American history who have voted no, no, no. One of only seven senators in all of American because one of them did it twice. Mitt Romney, one of only seven senators in all of American history who voted to convict a president of their own party. This is the person for whom you have to eliminate all standards that you would normally apply to a candidate, including, by the way, carrying ss. Not just Nazi, like this is hyper Nazi, like super Nazi, like a super Nazi tattoo for year after year after year after year that he's apparently conscious enough of its wrong that it's bad that he covers it up when he does his photos for the sex predator website that he's been on or what, you know, this shady hookup app or whatever it is. I mean, how. What are we doing here? And this is when flight 93 ism is the crisis, it creates the crisis, it's going to impossibly put yet another unstable, unethical person in high office because of something, something crisis. Something, something.
- [35:16]
A
I hear pushback about Susan Collins voting for impeachment. The like line is, well, it didn't cost her anything because she knew that he wouldn't be removed from office. Oh really? Please check the House of Representatives for who is left that voted to impeach Donald Trump. Please check the US Senate for who is left that voted to impeach Donald Trump. Of course there was a cost. All the more so because she knew they didn't have the votes to remove him from office. I will flip that around on you so fast. And she didn't need to take that vote. That was only cost to Susan Collins. So anyway, nonsense, nonsense, David. When we get back, we're gonna talk about this last case and this is, well, again, the case that David Latt and I were debating whether if the motion appeared in front of us, we would sanction the parties. And instead, yeah, we got a, you know, order to respond. So we'll be right back for, you know, did I get it wrong? So, David, this is the motion, the Rule 60 motion to reopen Trump versus IRS. This motion to reopen the case that has been dismissed was filed by 35 former federal judges. David Latin. I said that this was wrong on a number of fronts. Non party movements with a frivolous, certainly meritless standing argument who are using their former titles of government service to sign this thing, because they signed it. You know, Judge, so and so parentheses retired, I think, is also a violation of judicial ethics potentially. And even if it's none of those things, it 100% pulls the judiciary as a whole further into these political fights. And the idea that the judiciary are political actors and that they just have to wait until they have an ret period after their name somehow, like. But they weren't like that when they were on the bench. No, it undermines the whole theory of black robes, of independence, of nonpartisanship. And so, you know, I went off on this whole thing. And then we have an order from the judge in the Southern District of Florida that is ordered and adjudged that plaintiffs Donald Trump shall file a response to the motion on or before June 12, 2026, detailing their position on the matter set forth in the motion. One, the charges of collusion and whether the parties are truly adverse. Two, the assertion that the dismissal in this case was premised on deception by the parties. And, and three, the question of whether the case should be reopened because the court was the victim of fraud. Well, David, I got some problems with this. One, to the extent that this order to respond to the motion is actually about sanctioning Donald Trump and the Department of Justice, I'm all for it. You don't need a motion for that. You, as a judge can bring Rule 11 sanctions against any officer of the court or anyone really, at any time. You don't need a motion for that. If I walk into a court of law and scream, f you, Judge, it doesn't matter whether I have a case pending before you. I will be held in contempt. I will be sanctioned because I am a licensed, you know, officer of the court. To the extent this is about reopening the case, David, she has that power as well. Sua sponte, meaning on her own, you don't need this motion. So why in God's name. If you actually are concerned about the legitimacy and credibility of the judiciary, would you make it about this motion that, as I say, I think has three massive problems with it. And here we are, and I'm pretty angry about it. And I will note there has been, I think, some messy reporting. Not incorrect, but just a little bit messy that like the case has been reopened or she's moving toward reopening it. That's not what this says, actually. This is just file a response. So we'll see. The majority of the write up of the four pages is actually about sanctions, not about reopening the case. David, again, I cannot be more clear. I do not believe that this was a case or controversy. Live by unitary executive theory, die by unitary executive theory. Right. The president cannot to his Department of Justice that he also runs. There was no adversarial proceeding. There was no case or controversy. But once again, the judge can do that. But this motion is a real problem for me and you didn't get to talk about it. So I leave it to you, David, take it away.
- [40:03]
B
I've been thinking about this ever since I saw it because it is a very, very unusual case in the sense that it isn't actually an adversarial proceeding. As you said, under this unitary executive theory, he's suing himself for misconduct that occurred that he did to himself under unitary executive theory because remember, it was in his presidency that these documents were leaked. So he's suing his IRS for misconduct that occurred while it was under his control. This isn't a real adversarial process. And so what do you do? What do you do if you're a judge and this has occurred? I agree with a lot of what you said about just as a general matter, okay, who should be filing these motions? I have qualms about the way in which retired judges are asserting themselves into the process. It's not, and again, I don't think it's a neat and clean thing where a retired judge will, because they're a retired judge, says, well, I still am clothed with sort of all my article 3 Nonpartisanship. You can participate in the public square. I'm just a little bit more concerned about, as you were saying this, adding the filing of the court motion. But here would be my question, Sarah, how do you feel if at the end of all of this, because as you said, you know, when I said earlier, motion granted. No, no, no, motion was not granted. What she said was respond to the motion. What if she says, okay, motion denied. But on My own motion, I'm reopening the case. In other words, the judge responds to the motion by saying, nope, your motion is denied for all the various reasons that you've brought up. However. However, I do believe there was a fraud on the court, that this was a contrivance, this was a pretext, and I'm not gonna let this happen. I'm gonna open it on my own motion.
- [42:07]
A
I'm much better with that. I mean, I would like some strongly worded thoughts to the ret, but, you know, you can't get everything you want. I think my only thing, David, is that this quote unquote settlement didn't need to have this case. You can settle with a party before a case is even filed. So it doesn't accomplish a lot just reopening the case, for instance. It's not like it prevents the settlement at all or the slush fund. So I'm actually more interested in sanctions, you know, using judicial resources for, you know, a fraud on the court, et cetera. But, you know, we're, we're sort of in the same place. I think if it's reopened and then you sanction or you sanction without reopening again, I, I, I don't care that much. But, yeah, I have no problem with the judge saying this was a fraud on the court. Something, something, something. As long as it's not about this motion, though. I just feel like the horse has left the barn here. And at the point you're asking them to respond to the motion, you've already given credence to the concept of this thing that should have been a law review article and is a press release motion. And so it doesn't really matter whether you now don't rule on the motion itself. I think we're, we're done. I think they've already politicized the judiciary. They've already abused their former titles. They are now just citizens. They are welcome to go to political fundraisers that they weren't able to go to before as Article 3 judges. But then you don't get to use your title at the political fundraiser as Judge Parentheses Retired. We already know that that would be a violation of judicial ethics, for instance. So I don't know. I'm just. David, everyone is letting me down right now. I'm disappointed with all three branches of government, and I don't like it.
- [43:49]
B
The question is who, if anybody, would have the ability to file a Rule 60 motion here?
- [43:57]
A
I think any officer of the court can bring misconduct to the court's attention. It doesn't even need to be a motion. It certainly doesn't need to be a reopening motion. I think you just write a letter. I think that this officer of the court has committed misconduct in your courtroom and I'm bringing it to your attention as to why I think it warrants SUA Sponte Rule 11 sanctions. That would have been just fine with me and anyone. You and I can do that if we want to, David. But again, in this situation where the case was dismissed and then there was a private settlement between the parties, reopening the case doesn't matter. It doesn't do any good. So I don't know what we're really talking about here, because it won't affect the settlement. So again, we're really just talking about sanctions. The court does not have to bless this private settlement because it wasn't done through court proceedings. So if your beef is with the settlement like mine is, then attack that like we talked about in the previous case, once it's ripe. And if your beef is with the non adversarial lawsuit that was filed to waste judicial resources for the political cover of having the settlement, which I'm also upset about, then ask for sanctions from the judge. But again, do not have 35 former federal judges sign the letter and further politicize the judiciary to do it. Have I convinced you?
- [45:13]
B
You've convinced me. Well, you didn't need to convince me. I came pre convinced.
- [45:17]
A
David, two more topics for you. One, there was a swatting, attempted swatting. This is where someone calls 911 and says that there is, you know, shots being fired or a hostage situation at a specific address to try to get a bunch of, you know, SWAT team, though that's a little bit specific. A bunch of very armed police officers to come into someone's house to scare them. There's a high potential, you know, for unnecessary violence, et cetera. Those people don't know they're coming. There is no emergency at the house. They did this to Supreme Court Justice Amy Coney Barrett and her family. I say attempted swatting because the person who did this is a moron. They have, you know, marshals 247 at their home and outside their home. So the police have that address on file as a special place. They called the marshals. The marshals were like, everything is fine, thank you. And that was the end of it. But nevertheless, David, it just gets to this problem, right, that people don't believe that the political branches of government are responsive, are actually doing the thing. So the Supreme Court becomes The last word in everything. It's the only place we can solve these political problems. Problems. And therefore, you know, everything is justified. Everything is Flight 93. And it makes me sad. We've had now the assassination attempt on Justice Kavanaugh. Two other justices were going to be targeted in that. We've had secret recordings, we've had people mobbed at restaurants. Let me tell you, the result is not going to be that you get the decisions you want from the Supreme Court. The result is going to be that these people become incredibly isolated from normal life and anyone who is not a pre existing relationship for them, and maybe more importantly, it will change who is willing to do this job. You will not have people who value normal life and being able to interact with humans, go to restaurants or grocery stores, et cetera, have young families. None of those normal people are going to be willing to take on this duty. Doesn't, you know, pay much compared to being a private lawyer. So it's not for the money, y'. All. And so you're only going to have the sort of sociopaths who are like, yeah, that sounds fun to me. And screw my family and my normal life. Those people are going to be happy to be Supreme Court justices. And that will be the result of this swatting.
- [47:41]
B
Let's just be honest, is you're trying to kill somebody. You're trying to kill somebody. If you call, if you make a swatting call. And there is at least one person who has died as a result of a swatting. This is something that I believe the origin was in the gaming world, that gamers would get angry and they would make these calls using spoofing technology or whatever, where it would appear that a call was coming from a house. I know all about this because somebody tried to swat us once years and years ago. And we knew that it was an instance where we were involved in a case where on the other side of it, or it was potential case, on the other side of it, was somebody who was a former convicted domestic terrorist. There was a trend of every time somebody got crosswise with this guy, or frequently that when they got crosswise with this guy, there would be a swatting attempt. So before we even wrote a demand letter in the case, we contacted our local police and we said that this is something that might occur. And like, sure enough, like maybe the day or two days after we sent the letter, you know, a local sheriff's deputy comes up and sees us while we're walking with our youngest and says, yep, we got the shots fired call from, you know, from this place. And, you know, look, that's what they're trying to do. They're trying to bring a bunch of heavily armed people who are highly agitated and thinking there might be a murder or a suicide or something like that underway. And I believe they're walking into a super dangerous situation. And you're essentially trying to sow chaos, violent, deadly chaos into another person's life. And it's pure evil. It's just pure evil. And I think the thing that gets me so much, Sarah, is we have a problem in this country with the base that the sort of extreme basis of both parties in that they really, truly don't care if people on the other side are in fear. You know, to the extent it matters to them, it only matters if it creates a tactical problem. In other words, if it makes them more likely to lose an election, then that's the only thing that they're going to care about. But we really are in a moment where there is such mutual hatred that you can say it's pure evil that Amy Coney Barrett was swatted. And there are all kinds of people who are going to. What about it? All kinds of people going to come in and talk about how bad she is in this way or that way or whatever. And no, it's just pure evil. And if we cannot call this out, if we cannot be absolutely, on a bipartisan basis, decisively disgusted and appalled on an equal basis when people are threatened, we're headed exactly to the territory you're talking about, Sarah.
- [50:34]
A
Okay, last topic. There have been a lot of, like, very breathless stories now written about the fact that Phil Alito, the son of Justice Sam Alito, works in the Treasury Department secretly, and that Sam Alito didn't recuse himself from any of the cases involving Donald Trump or his administration. David, people have asked what we think about this. Could not care less. Everyone, uh, let me tell you, Phil Alito has worked for the Federal government for 10, ish, maybe nine years now. I'm going to get the numbers a little bit wrong. He has been an assistant United States Attorney, he's an ausa, he's a federal prosecutor who's been detailed from his, you know, duty station over to the Treasury Department's Office of the General Counsel. This isn't like a secret. I don't, I mean, any more so than, like, what, anyone's job is a secret, but of course, that makes it salacious. And then people are like, aha, there's something scandalous here because it's a secret. People get U.S. attorneys. AUSAs are detailed, like, everywhere, all the time. Many of them are detailed to Congress, by the way, don't know where the outrage is about that. They work for partisan members to help them draft legislation on specific topics. For instance, work with the Judiciary Committee to sort of get to the ends that they need to get to. If there's anything scandalous about that, I just, you know, I wish there were federal public defenders who were doing that as well and had the resources to be detailed because, you know, having one side in the room while the legislation is drafted might have some meaningful difference in how that comes out. But, David, again, normal people, you want normal people to have this job and you certainly want their kids to be able to become lawyers. So Ruth Bader Ginsburg's daughter was a lawyer. She was a law professor. Is sorry, but like, she wrote law review articles that were cited to her mother on the bench. We've talked about spouses having this problem. Jane Roberts, Jesse Barrett, again, Justice Ginsburg's husband. We talked about lots of lower court judges. This idea that basically your entire extended family must be part of your job decision is going to mean normal people are unwilling to take these jobs. So, yes, Sam Alito's son is a lawyer. And yes, he works in the federal government. Unless Philolito has some financial interest in a case, which by definition is a federal employee. He doesn't. Or sure, if he is counsel of record, if he is working on the litigation, yes, obviously then. But these guys, I mean, I'm the daughter of a judge. Right. There's all sorts of things that are built into the computer system to flag if the dispatch ends up in litigation or bankruptcy. I guess, you know, the computer system will flag this. But again, this idea that, like, we need to now raise the threat level against Justice Alito because his son is a successful lawyer. And people are just saying, like, Phil Alito would never have this job if his father wasn't a Supreme Court justice. No, you're right. Filolito would have a better job if his father wasn't a Supreme Court justice. This guy went to Yale Law School. He is an incredibly smart, ambitious lawyer. And because his father is sitting on the Supreme Court, he is limited in what all he can do. So you've got it right, but for the exact wrong consequences. You don't think he would be qualified to be in the bowels of the general counsel's office of the Treasury Department. Okay.
- [54:09]
B
We have canons of judicial ethics for a reason. We have rules and norms for a reason. And it was interesting to me that when some of these stories came out, I didn't see a lot of reference to precise rules of judicial ethics and how they came into play here. No, no, you just didn't see it. And, you know, again, we have this issue, I talked about it earlier about the unsophisticated, educated political hobbyist who, by
- [54:39]
A
the way, also doesn't know history. So, like, they don't even know that Ruth Bader Ginsburg's husband's law firm filed all sorts of cases at the Supreme Court. As in, they were party. They represented parties before the Supreme Court and amicus before the Supreme Court. His law firm, they. But they don't, like. It's not that they're trying to distinguish it or something. They don't even know that that happened because they've just jumped into this fight like, yesterday. And so they have no concept of how the Supreme Court has worked in the past and its spouses and other examples where, yeah, we're just going to allow other people to be lawyers, too.
- [55:12]
B
Yeah. And so what happens is there's a conventional wisdom that locks in, in sort of the political hobbyist class, depending on where you are in on the left or on the right. And one of those conventional wisdoms, I see it on the left all the time, is the fixes in at the Supreme Court. The Supreme Court is all in for Trump. And you just see this constantly. And so stories like this are catnip for that kind of view of the world, because if you don't know anything about the context at all and the first thing you hear is Alito's son, secret job, etc. It just locks in like that missing puzzle piece on the jigsaw puzzle in the puzzle that you've created in your mind, and you just charge straight to outrage. It is not. The court is all in for Trump. We can point to that in 17 different empirical ways. Which is not the same thing as saying that the Supreme Court has always ruled the way I like on matters involving Trump. It hasn't. But again, those are not the same things as saying the Court is all in for Trump. But we get this sort of conventional wisdom. And here's the thing that bothers me. There are people who know better who go along with it because it is so hard to swim against the current. Once on your tribe, on your side, once that conventional wisdom locks in. So all the people who know better, who should be saying, with the credibility in their own tribe to say, no, no, no, no, no, move along, nothing to see here, There are many outrages in this world. This is not one of them. They swallow their tongue because then all of a sudden they're against their own tribe's conventional wisdom.
- [56:54]
A
That will do it for Advisory Opinions. But we have plenty to talk about next time, including, does it matter to have women on the Supreme Court? And if it does, doesn't that kind of undermine the whole, like, conservative individual thing? Are women deciding cases differently? We'll be back next time on Advisory Opinions. 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 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 opinionsedispatch.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.