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- [00:01]
David French
You ready? I was born ready.
- [00:19]
Sarah Isgur
Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We will talk about the arrest of Don Lemon. Don, does it matter that he's a journalist? Yes or no? As well as stats on the three Trump nominees and what we've learned. The election system nationalized, Keep it state based. Have people changed their minds?
- [00:39]
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And how should I feel about that?
- [00:41]
Sarah Isgur
The Carter Baker commission still being like, that's what I have my teeny bopper posters on my wall that I look at at night is just Carter and Baker up there.
- [00:51]
David French
Ah.
- [00:52]
Sarah Isgur
As well as the IRS lawsuit and two emerging circuit splits coming out of the 4th and 3rd Circuit. Pronouns and admissions policies. It's all coming up on Advisory Opinions.
- [01:08]
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- [01:38]
Sarah Isgur
All right, David, before we hop in, I have to tell you, last night I went to New York to see my second ever Broadway show. And I don't know how often you're in New York. I don't know if you're a Broadway guy. Actually, we've never talked about this, but if you've ever thought about being a Broadway guy, Chess the musical is so right up your alley. It is Cold War history, Salt ii, Abel Archer with a love triangle. One night in Bangkok, if you've heard that song before. But they've redone the book, so the plot now is, like, sort of fun political history tossed in there. And I just thought, man, this is the most amazing but of only two Broadway shows I've ever seen. But, like, I know the music of a lot all Broadway shows. Maybe, like, Rent, start to finish and stuff, but this is the first one where I thought, man, David, would really appreciate this.
- [02:29]
David French
I'm intrigued. I'll admit I'm not a Broadway guy, but very, very little known fact, I've been to some shows and really enjoyed them. I mean, all the classics. Hamilton, Les Mis. All of those. But little known fact, when I was in college, I did direct a musical production. I did.
- [02:48]
Sarah Isgur
Of what?
- [02:49]
David French
Okay, so we had a. An annual competition where the student body was divided into four groups, and they competed in this musical production. Each. Each group had, like, 25 minutes to put on a small mini musical. And we called it very fun name Singarama. And the club I was a part of always had somebody direct it. And so they drafted me just because I had a high gpa. They just assumed that it would mean, well, I could. I can do calculus. I can direct a musical. I mean, Sarah obviously, do not seem.
- [03:28]
Sarah Isgur
Connected to me at all.
- [03:29]
David French
But we won. But we won. So. And. And what reminds me of it is the finale song in the winning year was from Chess. So which song? Yeah, so disc does connect, and I have no idea. I have no idea. And the next year. That was my junior year. The next year, I was the first and only director ever in the history of singerama to go from first to worst. So, first.
- [03:54]
Sarah Isgur
Okay, well, a major plot point in this musical. It's 1979, and Carter is trying to get Salt 2 over the finish line. And the Russians want to win this, you know, world chess match. And so the CIA colludes with the KGB to have the US Throw the chess match in order to get SALT two to get Carter reelected.
- [04:16]
David French
Wow. Okay.
- [04:16]
Sarah Isgur
And we all know how that's going to go. Yeah. Okay. It's amazing. All right, David, before we get to the arrest of Don Lemon, SCOTUS Blog is looking to hire. So if you have big law experience and a federal clerkship under your belt, come check it out. We'll put the link in the show notes, and if you're interested, you can email scotusblogthedispatch.com because. Drumroll. SCOTUS Blog will be expanding into the circuit courts and specifically looking at that sort of business docket that the circuit courts are so fond of handling. So let us know if you're interested in writing a daily newsletter for SCOTUS Blog. Again, looking for that big law experience and a federal clerkship. SCOTUS blog, at the dispatch.com, look for the link in the show notes. All right, David, the arrest of Don Lemon. Will you walk us through the two statutes here? And then I wanted to sort of do what we did with the ICE thing, you know, like a couple hypotheticals related to this before we get to this actual case.
- [05:17]
David French
Yeah, absolutely. So what you're dealing with is the face act that we've talked about before, which is 18 USC 248. And you've got conspiracy against rights, which is 18 USC 241. Let's talk about the face act first. And this is one we already talked about, you know, at least to some extent. In connection with the. With that event. And we talked about it in connection with the actual protesters themselves. And we'll leave aside for a moment whether Don Lemon counts as one of the protesters. But the key part here is whoever by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes with, or attempts to injure, intimidate, or interfere with, any person lawfully exercise, exercising, or seeking to exercise the First Amendment right of religious freedom at a place of worship is then subject to criminal penalties. And what's important about this, really, I think it's. Are. Are some of the definitions. So it's. It is by force or threat of force. It's not just entering into a church, for example. So it's by force, by threat or force, you injure, you intimidate. And the term intimidate means to place a person in reasonable apprehension of bodily harm to himself or another, or interfere with. And interfere with has got a pretty precise meaning, which means to restrict a person's freedom of movement. In other words, were you doing something that would prevent them from freely moving? So that's the Face act. And then 18 USC section 241. This is something that we talked about in connection with, actually, the Donald Trump attempt to steal the 2020 election. Did his demand to Georgia to find, you know, 11,000 or so more votes constitute a conspiracy against rights? And this was 18 USC section 241. If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, that is, again, they'll be subject to criminal penalties. So the two statutes are similar. They're different specific injuries they're aimed at, but they're very, very similar. And both of them are going to require evidence that there was a. That there was an act that Don Lemon was part of, either the conspiracy to intimidate or interfere or actually did intimidate or interfere. And so it's an interesting case, Sarah, because this is not about trespass.
- [08:03]
Sarah Isgur
So this is my first hypothetical, David. If Minneapolis PD Arrested Don Lemon, and they would have a bevy of state charges, trespass obviously being among them. But I'm sure we could think of some other state charges that they could charge him with. Easier or harder case?
- [08:22]
David French
Much easier. Much easier.
- [08:24]
Sarah Isgur
Like kind of a done deal, right? Like pretty much a done deal.
- [08:28]
David French
And I think it's important to pause Here, because there might be some listeners saying, whoa, whoa, whoa, whoa, he's a journalist. He can cover unlawful activity. Yes, yes, like a journalist can cover unlawful activity. Absolutely. But a journalist is not exempt from the law. And so one of the interesting complicators here is if you're dealing with a church service, in almost every church service I've ever known, seen, witnessed, etc, and there have been thousands, Sarah, the church is open to the public. You can walk into the church during the service. So them entering the church, that's not your trespass. If you enter the church to participate in the service, even if you're late. Otherwise, Sarah, I've trespassed 99% of all church services because I'm late. Even if you, you enter late, you're absolutely welcome in the church service. Now, if you do something that disrupts or triggers a need, the church's need for you to leave, it's still their property. They can ask you to leave. And when they do, and if you don't, then you're in the trespass situation. So entering is not the trespass. The problem is they kept, they disrupted and then they wouldn't leave. And that's when you're going to have, you know, your, your state law issues are going to come into play.
- [09:46]
Sarah Isgur
And again depending on, I'm not an expert on Minnesota law, as I hope everyone knows, but like disorderly, you know, various things in these, like state law charges. The question here, though, I mean, it's almost the reverse of our ICE and shooting question, David, here, the state isn't going to press charges. So the feds have, but they are very limited in what charges they can bring, they must find a federal charge. And because the Congress is one of enumerated powers, in order to have a federal hook and get over the commerce clause and necessary, proper and all of that, you've really got these two options, the Face act and the Conspiracy Against Rights, which is a much, much higher bar as you walk through. Much higher. So David, I think one of the pushbacks to this is like, okay, what about the journalist who was arrested during the January 6 riot? He worked for the Blaze. For our purposes, I don't want to argue this with people, but you know, he was videotaping it, he was publishing stuff on the Blaze. Let's just say, no question, he was doing journalismy things while there at January 6. Why is he arrested for that? And everyone's like, cheer, cheer, cheer, no problems with that arrest. But here there's a, like First Amendment's under attack. Why isn't that a problem about the rule of law being equally applied?
- [11:12]
David French
Well, it is and it isn't. So it is. If you were saying cheer, cheer, cheer. He's not a real journalist in boo. Because Don Lemon so obviously is. That would be the problem here. I don't know enough about the Blaze guy to make that a determination. But if your instinct is somebody who's in the capital on January 6 is obviously not a journalist, but somebody who is in a church on Sunday as accompanying a, a protest, breaching the church and, and refusing to leave and disrupting that. They, they definitely are. Ah, I would question the, the blink fairness here, but there's another thing where it, there is a big difference. And the big difference is the charges available to the federal government in the January 6 situation, and the charges available to the federal government in this one are very different. And so if you go and you look at the charges, he didn't face a, you know, obviously it wasn't face act because there was no house of worship. The Capitol is not a house of worship. That. But conspiracy against rights potentially could have been available, but that wasn't what was charged. He was charged. What would really be much more the analog, an analog of state kind of trespass style charges. And so the, the charges are not analogous.
- [12:29]
Sarah Isgur
He was charged with four misdemeanor counts, including trespass and disorderly conduct under D.C. law, which as you say, is the here D.C. is acting as a state institution, not exactly capacity of the federal government. So even though it was federal charges, it's actually more accurate to think of it as DC Charges and not the sort of federal law charges that we're talking about.
- [12:54]
David French
So if they had the same charge available to them in, in Minneapolis, I think it's, it's a kind. I'm not going to say slam dunk, but it's slam dunk adjacent lay in. Maybe it might be a lay in short jumper. But if you're talking about conspiracy charges face act charges, then you're looking at a fade away 3 with time expiring with the hand in your face. And so that gets a. It's a lot. It's a lot more difficult charge to make and it's a lot more serious charge to charge than say, trespassing.
- [13:28]
Sarah Isgur
Okay, so what benefits do journalists get when it comes to covering criminal activity?
- [13:35]
David French
You know, that's a great question. And that's going to depend on the state. So we're. There are different states who have different kinds of sort of journalistic shield laws. So I'M not even going to pretend to navigate that particular thicket. But I think the short answer is not really any that we sort of have a lot of what you might think of as discretionary norms where we give journalists a bit of grace out of an abundance of caution. What is the freedom of press? We want to be very robust in our protection of First Amendment rights and the freedom of press. So as a general matter, you're going to be looking at a kind of a set of customs about a little bit extra discretion for members of the press, a little bit extra flexibility. But as far as formal doctrines, walking into court and flashing a press badge is not a get out of trespass, free, you know, card. It's just not. And so there are some journalistic shield laws in certain contexts, etc. But as a general matter, the, the. Your description of yourself as a journalist or your job as a journalist doesn't mean you sort of walk away, walk around the country radiating extra rights. That'd be cool though. It'd be like a soft glow emanating. We walk around abc New York Times Dispatch soft glow emanating from us. Extra rights. Extra rights.
- [15:01]
Sarah Isgur
I want to go into our quasi hypothetical world, which is Don Lemon, and some of this is hypothetical, some of it's facts. I guess my point is I don't want to argue about whether these facts are precise because I want to use them for the purpose of exploring what conspiracy means. So Don Lemon is at the meeting where they're discussing their plans to go disrupt this church. They have found out that someone who they think is associated, affiliated with ICE is at this church and they're making their plans and Don Lemon is there and saying like, great, I want to cover this versus Don Lemon is there. And he says, oh, you know, instead of doing this this Sunday, we should really do it next Sunday because I can get more, you know, attention for it next Sunday versus Don Lemon says, you know, instead of going through the front entrance, it'll be way more dramatic if we bust through the side entrance when I'm following you guys. And so I'm using these hypotheticals to show he is part of the discussion and planning, but he's providing journalistic tips, if you will like to make it better coverage, you know, for himself. Does that affect your analysis?
- [16:12]
David French
It would affect my analysis if you were. If he was engaged in planning for the actual operation to maximize, making suggestions. So you're planning, arguably directing in some way and maybe in maybe some quite literal, literal way of sort of stage directions for greater pop. I would see that as much closer to the overt act side of a conspiracy than simply, I'm gonna ride along with you.
- [16:40]
Sarah Isgur
Okay, let me give you my other hypothetical on that side. They invite him to the planning meeting. He shows up. He's sort of watching. He's videotaping it. And they turn to him and say, you're gonna come with us, right? And you're gonna cover this, and you're gonna get us a lot of attention for this, right? And he says, I'll be there covering.
- [16:58]
David French
It, Conspiracy or no, No, I don't think that's conspiracy. I think that if you're saying, I'll be there covering it, then it's sort of your discretion what you release to the public, what you don't release to the public. That's, to me, classic news gathering. I've had an awful lot of people say, well, if I talk to you about this, it's gonna. Right? And, well, I want to talk to you about this, and you tell me what's happening and let me see what's going on, and then we'll see about what I choose to cover and not cover. So I. I don't think you're getting there in that. In that neighborhood.
- [17:31]
Sarah Isgur
Let me give you my next hypothetical, my last one, which is Don Lemon is there. They're talking about their plans, and he's saying, man, this is gonna make for great coverage. I love that you guys are doing this. This is so important for America that somebody does this kind of thing and shows them that there will be consequences for affiliating with ice. And I will be right there videotaping it. And I just want you guys to know you're making me really proud as an American. Not conspiracy. Encouragement alone is not conspiracy.
- [18:03]
David French
Peanut gallery cheering along. Not conspiracy. There needs to be overt acts, and sort of, you go, girl is not an overt act.
- [18:13]
Sarah Isgur
You know, like a lot of these, we try not to get too specific on the facts because there's a lot of facts that have not yet been stipulated to by both parties. I mean, we are at the very, very beginnings of this, which is why we prefer to dabble in the hypotheticals for now. But, you know, this is why we tend to concentrate on appellate stage arguments, because the facts have already been determined by that point. But in this sort of, like, news of the day stuff, we wanted to talk to you guys about it. So hopefully you will bear with us on some of the hypotheticals and not be super mad that we're not parsing all of the facts ourselves that you know, are only the ones we would know to date.
- [18:47]
David French
And prosecutors and defense attorneys in the comments, full caveat. I'm not, I'm not, I do not know all of the ins and outs of the case law run over at Axe. So what I was giving Sarah was my best guess, not the authoritative declaration. And I'd also warn people to really wait on the facts here. There are different versions of these facts floating around. This is a very sensitive case. I think there should be a lot of patience here, reading the indictment. If you think the indictment is the absolute truth. Are you new here? Have you, have you been following what's been happening? But if you think the Don Lemon version of this is the absolute truth, well, let's wait and see, shall we? So, yes, there is a scenario in which this charging decision is egregious. There's also a scenario we don't know the facts where his conduct could meet the elements. So let's just pause for a minute.
- [19:46]
Sarah Isgur
David, when we get back, we have some statistics about the three Trump appointees that I think you might find surprising, illuminating. We'll find out right after this.
- [20:01]
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- [22:21]
Sarah Isgur
Okay, David, so Adam Feldman over at Legalytics published a new thing on his substack who is the, quote, weakest link of Trump's nominees to the Supreme Court. Now, by weakest link, he was trying to look at which justice is most likely to, you know, sort of be the maverick side with the liberals, that type of behavior. And there's sort of this vibes based theory, I think that most people share that like it's Gorsuch, right? He's our YOLO justice. He's out there like Pew, Pew doing whatever. And here's what was really interesting to me, David, to like get to the punchline. It is actually the case that what distinguishes Gorsuch is not the frequency with which he joins liberals in majority opinions, it's the frequency with which he joins them in dissent. So basically, it depends on your definition of maverick. If you mean who is most likely to make up a five or six justice majority that has the three liberal justices in it, that would actually be Justice Kavanaugh, which makes intuitive sense because he's the justice most likely to be in the majority. But that sense of the maverickness, David, actually comes from Gorsuch joining the liberals in dissent. So in those five, four and you know, other cases, he's, he's in the four.
- [23:43]
David French
I found this fascinating, I mean, on, on multiple prongs. But I think this analysis that says when are you joining the liberals in disagreeing with the majority really is a fantastic metric of sort of your I, you know, I'm not gonna, I'm looking for the right word I, I because it's definitely not sort of philosophical malleability. I Don't even necessarily want to use the word independence. It is uniqueness, perhaps that there, that we're talking about uniqueness. Because I don't want to imply that if you're not joining with Gorsuch, you're part of some sort of hive mind. What we're dealing with is a more unique judicial approach, philosophy, exercise of judgment, however you want to put it. And I thought that was absolutely fascinating. The other thing that was fascinating is when you zoom out and you look at sort of all the stats together was just how close they were, how, how there was not a huge amount of difference. We're talking 1%, 2%, 3% in the aggregate. Look at how frequently Kavanaugh, Barrett and Gorsuch were in agreement with the liberal justices. But the other thing that I thought was interesting is it seemed pretty clear that. And one thing that kind of surprised me because Amy Coney Barrett has sort of developed a reputation that is quasi, quasi Gorsuch like. But the numbers didn't bear that out. She seemed to be, of the three, the one more likely to be with the other conservative justices. And it really does show you sort of how the big cases that get a lot of attention really do weigh on our minds more. Because if you're thinking about, okay, well, where would Justice Barrett get kind of the reputation for being more distinct and independent, say, than Gorsuch? Well, cases like Trump, the United States, but that's just one case in the stat group. And so it's a big one, it's a huge one, but it's just one. And there were a few cases where I think Justice Barrett distinguished herself in such a way. We remember the little boomlet of anti Barrett sentiment in the MAGA world. It was in some high profile cases versus in the aggregate. But I found this, the whole thing, fascinating.
- [25:56]
Sarah Isgur
All right, David, let's just do a couple other headlines from this week. There was a piece from the New York Times how the Supreme Court secretly made itself even more secretive about the new imposition of non disclosure agreements that they're asking clerks to sign. Except David, when I dug into the story, I was like a little less basically, like there used to be non disclosure agreements. It's sort of been on and off through the modern history of the court. So I'm not really sure that this is like secretly made itself even more secretive. It's more like they secretly made themselves less secretive. And I'm not Even sure that NDAs make something more secretive. I, I'm hard pressed to see actually what the purpose of the NDAs is because I don't see the court ever enforcing an NDA like going to court to enforce it. So I don't, I don't, A, I don't see the point and B, I'm not sure that it's particularly newsworthy given that there have been NDAs on and off for a long time. It's more interesting news that they weren't really using NDAs as a practice when the Dobbs leak happened and that they've brought them back. But then, David, there was this line at the end that just like spit, take, laugh out loud. This is from a former law clerk to Justice Sonia Sotomayor. If the public were aware of how much of the deliberations affecting millions of people are made by 27 year olds after happy hour, they'd be shocked. Clerks inflating their own oh man, influence and how important they are to the history of the United States. I'm, I'm surprised that Justice Sotomayor would appreciate or approve of that comment because he wouldn't really know about what's happening in the other justices chamber. So he's really, if anything, saying about what's happening in his chambers. But I have to tell you, David, from my own quasi reporting, whatever you want to call it, I don't think that's true in Justice Sotomayor's chambers either. She's not outsourcing this to her clerks and how her vote should go. So I don't know. That was almost like beside the point of the NDAs and all of that in the piece, but it was literally the kicker, like it's the end, ending line of this piece in the New York Times. And I thought if the clerks had any idea how little influence they had over the outcome of Supreme Court opinions, maybe they wouldn't be so egomaniacal.
- [28:16]
David French
Right. It's a wonderful job. It's a tremendous job. There's just no question about it.
- [28:22]
Sarah Isgur
It's, you have a window into how decision making is made and all sorts of things that are incredibly valuable to your friends, future clients. No question about that. That is different than you yourself having influence.
- [28:34]
David French
You're a facilitator, not a decision maker is one way to think about it. And do some people in discussions have some influence on the margins? I'm not going to discount that. I mean, in human interaction, you know, when I was a young associate dealing with a very senior partner, which is a smaller gulf in power than the one we're dealing with here. But when, when I was a very young associate, Dealing with senior partners, sometimes, you know, they would take my advice or my recommendation, but it was always within the framework of their outlook and their approach. And so, yeah, you know, you could kind of leave those interactions. Thinking dominated it today. Instrumental key. Amazing. And then years later, if you look back on that mindset, you'd go, oh, yeah, within very carefully prescribed parameters. I had a nudge influence of 2 degrees, this direction or that direction, which is great, which is incredible, especially at the start of the legal career. Wow, that's incredible. But don't. Don't amp it up, man. Don't amp it up too much.
- [29:38]
Sarah Isgur
Those who know don't talk, and those who talk don't know. I just have to think that any clerk is, like, cringing at that, because to the extent you think you had influence, you shouldn't be. Telling that to the New York Times was sort of my takeaway. And it's part of the reason, David, we've been asked this question into the pod. Why do they keep hiring such young people to be law clerks? If you were just like, thinking of this in sort of first principles or whatever, wouldn't you, as a justice, rather have a very experienced law partner, a.
- [30:06]
David French
Kitchen cabinet of senior lawyers? Yeah.
- [30:08]
Sarah Isgur
And part of the answer actually goes to this exact point. They want to train ambassadors to the legal profession. That is one of the big reasons. And the other is they don't want to be overly influenced by people who were not nominated by the President and confirmed by the Senate. And so that power gap, as you called it, David, actually is a feature, not a bug, of the Supreme Court clerkship process. And that you probably don't have a lot of big influence over a justice who has a lot more experience than you do, et cetera. And David, I'll mention one tidbit from the book Last branch standing, which I'm sure you've all pre ordered. You still got a few more days to get your name played, by the way. P R H.com Last branch standing bookplate in one chambers. It is not unusual for them to go through. Wait for it, David. 100 drafts.
- [31:04]
David French
100 drafts of an opinion before it.
- [31:06]
Sarah Isgur
Is circulated to the other chambers. That doesn't sound like clerks being very powerful to me.
- [31:12]
David French
No. Wow, that sounds like a justice being like, nope, try again. Nope, try again. But you know what? One thing I do want to talk about with clerkships for just a moment and. And Sarah, between the two of us, our information gap here is immense because guess who did not clerk in this podcast. This guy. And Sarah had a 5th Circuit clerkship. But I will tell you, my perception is that this is not just a clerking, is not just something that is designed to assist the judge in procurement, performing his or her duties. It is also a public service to the profession of law that inculcates a set of values and an approach. It is how you sort of hand down the legacy of the profession. And I think it is one of the reasons why, to be quite frank, the legal system has survived this miserable political era better than the political system has survived it, because there are traditions and norms in the legal system that perpetuate a particular ethos, however imperfectly. And the way I would describe the NDA issue and sort of the coming in and out is it's part of that ethos. The NDAs aren't so much a contract that says, I'm going to go to court and sue you, it is saying to the younger clerks right after a catastrophic leak. This is very important. This is very important. It's a reaffirmation of the importance of confidentiality and the, in the performance of their duties. And so that's how I interpret it, that this is more like a contract as a buttress to a moral declaration than a document that they fully intend to enforce and would go charging into court to enforce, although that wouldn't be totally out of the question, depending on maybe a severe severity of a leak. But I didn't see it. I saw it much more as we are enforcing a particular norm, and at this point in time, we feel like we need to put an exclamation point behind it. And that's what the NDA agreement is.
- [33:18]
Sarah Isgur
All right, David, next thing in the news I want to talk about is this piece by Rick Hassan, one of the, you know, most respected election law law professors out there. Here's the title of his piece from Slate. I wrote a book in support of Nationalizing elections. Trump changed my mind. And let me just read you what he's talking about here. President Donald Trump on Monday escalated his rhetoric against the American electoral system, telling his former FBI director and serial podcaster Dan Bongino that he wants to nationalize American elections in 15, quote, crooked states. These people were brought to our country to vote, and they vote illegally, Trump said. And it's amazing the Republicans aren't tougher on it. The Republicans should say we want to take over. We should take over the voting in at least 15 places. And as he writes, he literally wrote a book about this. Donald Trump has caused me to abandon my arguments. As I wrote in the New York Times last summer, when the President tried to impose his authority over various aspects of American elections via executive order, quote, what I had not factored into my thinking was that centralizing power over elections within the federal government could be dangerous in the hands of a president not committed to democratic principles. David, you've talked about this many times that when someone wants to join your team, you should really skip the I told you so's and just embrace it and say, welcome.
- [34:37]
David French
Come here, big guy. Let me give you a hug.
- [34:39]
Sarah Isgur
I'm having a little bit of a problem with it, David. This is very un aoian of me, but it just feels like, I mean, you know how I feel about the Carter Baker Commission. David, I think you've once said, like, find someone who loves you the way Sarah loves the 2005 Election Reform Commission that Jimmy Carter and James Baker did, together with 80 or so proposals for how to better equip American elections. And I think my objection is not that people generally liked the idea of nationally nationalizing elections. It is more what they said about those of us who did. Not that it wasn't just like a good faith argument, but that in fact it was because I was racist or because I hate Americans or hate voting or I want to suppress voting. Turns out all along I was worried about nationalizing elections because federalism. And it's like everyone on the other side discovered federalism because of Donald Trump. And I'm grateful that they discovered federalism. And I just want to welcome to the fold. But, David, I just. I wanted to confess to you privately, slash, in front of all of our listeners, that I, I do struggle with this and sometimes I think I come off a little bit pious.
- [35:57]
David French
Yeah. As long as we're continuing our perfectly private sidebar internally, I'm with you. And, and something that makes me particularly frustrated is the way that if you go back to the before times, this is something younger listeners would be stunned at who've never experienced it and who only see sort of like a Mitt Romney or a Paul Ryan figure as like, the good, nice Republican that everybody loved and who just was so accommod the left, you know, was willing to accommodate. No, no, no, no, no. You know, the rhetoric against people like Aal Ryan or Amit Romney was out of control. Just out of control. Time and time again. You had good faith policy disagreements not attributed to. Look, these are people rowing in the same direction who have just a different view of how to get there. It was turned into, well, we are the people who hate racism and you're the people who love racism. And your evidence that you love racism is federalism. I get it that for a very long time in American history, states were the primary source of oppression in the United States. There is a reason why somebody who is interested in civil rights had a default move towards federal power. That was the default move. There are reasons for that. I get it. I absolutely get it. But the. There were also very good reasons we had for saying that the decentralization had some real assets to it, that some real benefits to it. And if you nationalize too much, then what you're going to do is put the conduct of our elections in the hand, into the hands of the character of the, of the President. For a long time, people who are forecasting the possibility of a terrible president were looking back so long that it felt like you were, you know, just frivolous in your complaints. I mean, even Nixon to some people, felt like ancient history because he wasn't, they weren't alive when he was around. He's history book material. He's not memory material. And so I think it's very helpful to have a situation arise when you're talking about these situations where, yeah, now the federal government is the primary threat to civil liberties. It is not the states, it's the federal government. And now we're beginning to see some of the wisdom in preserving states as separate sovereigns. It is so difficult because of the decentralized election system. It is so, so difficult to actually hack an election. It's incredibly hard. And the more you nationalize it, the more more you centralize it, the more you're going to knock down some of those barriers to systemic election influence and to systemic election fraud. And it turns out that we had a pretty decent point all along, but. End private conversation. Back to public conversation. Welcome, welcome. We love you. You're the best.
- [38:50]
Sarah Isgur
We're so happy to have you all here. So I thought we could talk about some changes that we would be interested in to the election system. And obviously I've already previewed that. Literally all of mine will come from the Carter Baker Commission because for 21 years now we've had a roadmap for how to make our elections both more open and more secure. Voter ID is in their recommendations. So is lifelong registration. Basically, once you register, you're not going to have to re register every time you move states or addresses, et cetera. They note that absentee ballots are the likeliest source of potential fraud and they have suggestions for how to fix that. But overall, David, I guess in my view, to your point, the states are the laboratory of democracy, and I like that about them, that we can try different policies in different states and see how it affects their economies, see how people move with their feet. For instance, the tax rates obviously are an interesting one these days. California. But when it comes to elections, and I have sung chapter and verse on this in pretty long ago at this point, podcast episodes. As someone who has worked on three presidential elections and I don't know how many election days at this point, I walked through the ways in which you could steal an election, and the punchline was like, you can't. You might be able to steal a very local election because the most number of ballots that I can figure out how you would mess with is somewhere in the neighborhood of about 1,000. And that's just not going to be enough to change most congressional elections, statewide elections, certainly not a presidential election. And by the way, again, like footnote of like, it all does have to do with absentee ballots. You basically go harvest ballots from your opponent's area and then throw them in the trash. That's like the easiest way to do it and not get caught. It's why ballot harvesting, I think, is a problem, or ballot helping out, if you want to use the less pejorative term. But it's because it's a way to actually hurt your opponent really secretly and effectively. You tell someone, like, let me drop off your ballot for you, make the presumption that they probably voted for the bad guy based on where they live, and then just throw it in the trash. And the other one, which is incredibly hard, is to open, like, go to mailboxes, collect a bunch of absentee ballots, and then, like, steam them and, like, mess with stuff and sign them. That's very unlikely and hard.
- [41:15]
David French
Well, yeah. I mean, one thing, just to put a pin on that part of the conversation, I think some of the best podcasts we did, if I don't say so myself, Sarah, is when we were dealing with the challenges to the election in 2020. So this was when the podcast was really pretty new. And I feel like it's kind of where we hit our stride. Is a legally exclusive legal slash relationship advice podcast and was walking through. Okay, let's just take it seriously. How would you steal a presidential election? And just walking through and showing how incredibly, incredibly difficult it was. Just incredibly difficult. And one of the things that made it so difficult was the sheer decentralization of the process. So far be it from me, I'm not going to stand between You, Sarah, and the Carter Baker Commission that that's the most dangerous ground in America is standing between our love is real. But I, I generally think as a general matter, I like the status quo. I'd be very open to national voter ID requirements. Not because I think that it would make a big material difference in preventing fraud, it won't. But it will make a material difference in the way voters perceive the security of the election. That one of the myths of the GOP has long been vote fraud and one of the corresponding kind of myths of the left has been voter suppression. And you know, I don't think that id, there's no real evidence that an ID requirement has a material impact on either. But when you have a, when you have something that I believe up to 70 plus percent of Democrats want it, well, north of 80% of Republicans want it. What it really. And it, it's, it is not a material burden at all on voting. As you know, many, many states have ID requirements and it's not proven to be a burden. And so to me that is a, it's a very simple, easy way to increase public confidence and that's super, super important. And it's increasing public confidence without the trade off of any material vote suppression, at least not that we've been able to discern in voter ID states. So that's what I, I would, I would want that, but I would want to maintain decentralization. We are in a, we are in a different era in American history. Right now the primary threat to civil liberties is not the states any longer. It is the federal government. And if you further diminish the ability of states to check the federal government, the more you're going to give potential autocrats po means and, and cap and capability of achieving their will.
- [43:59]
Sarah Isgur
All right, David, when we get back, I've got an IRS lawsuit I wanted to run by you and I know which one and two newly emerging circuit splits which are going to be right up your alley. We'll be right back.
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Sarah Isgur
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- [46:05]
Sarah Isgur
This $10 billion lawsuit that Donald Trump and his foundation have filed against the irs. First of all, I have to tell you, it felt a little bit like Austin Powers. Like, for some reason, every time I talk about it, I want to say $10 billion. Nevertheless, let's be clear. Donald Trump's tax returns were leaked. It was criminal. It was egregious. Like, there's just no excuse for it. This wasn't okay. The reason I want to talk about the lawsuit is not because it's frivolous. It is far from frivolous. The amount may be frivolous, but it is far frivolous.
- [46:36]
David French
The amount is very frivolous.
- [46:38]
Sarah Isgur
But the lawsuit isn't frivolous at all.
- [46:40]
David French
Super frivolous. Yeah.
- [46:41]
Sarah Isgur
But rather how this lawsuit intersects with unitary executive theory. Because if the President is the sole holder of the power of the executive branch for the purposes of unitary executive theory, the IRS doesn't exist and neither does the Department of Justice. They are all simply delegations of his power of the presidency that he's handing out like Halloween candy to some trick or treaters who, like, work in buildings on Constitution Avenue. So how does it work when you, as a private citizen, who is the current office holder of the presidency, sues what amounts to the office of the presidency and for actions taken by a predecessor? Right. Again, the IRS doesn't exist. So for our purposes, Biden himself leaked the tax records through one of his delegated powers. And the ones responsible for defending the lawsuit would be the Department of Justice. But that actually means President Trump himself. So how does President Trump defend a lawsuit from himself for $10 billion? And is this a problem for unitary executive theory or is it a problem for Donald Trump?
- [47:50]
David French
Well, I mean, it's definitely, I think, a problem for strong unitary executive theory. In essence, the idea that every significant decision of the, of the executive branch has to roll and directly flow from the President of the United States. Well, not just every significant, but every decision. Every decision, because I only at the 10 billion level would be a settlement of a, of a disclosure of a tax return be a significant call as a general matter, that would be something that would be, I think, subjected to the discretion of your, of your, you know, DOJ defense team. But, Sarah, this is absurd. It's utterly absurd. And I just don't have the faintest clue how this would work except for a court intervening and essentially saying, we're going to appoint a, we're going to appoint counsel to represent the presidency. The irs, however you're going to phrase it. But yes, you're right. For some folks in the, in the unitary executive world, you would look at this as Donald Trump v. Donald Trump. And with the exception that Donald Trump would write a check for Donald Trump, but not from Donald Trump's personal funds, from the public treasury, which does indicate that there is a separate entity here. This separate entity does exist. The separate entity should have its own interests as a separate entity, not as the extension of Donald Trump the human being. And so there are some conceptual difficulties here, without question. And that I think, that do point to what I think are some of the problems of the unitary executive. And just reaffirming the piece I wrote months ago, we'd be a lot better off if we revised the first sentence of Article 2 of the Constitution. But that's not in the cards anytime soon. So we're left with this kind of nonsense.
- [49:42]
Sarah Isgur
The reason to file this lawsuit is because you think it'll be settled. And I'll also go out on a limb and say Donald Trump is not pocketing this money. He's going to give it to a charity. He just sort of wants to prove Prove the point of the wrong done against him. However, I do wonder if a court would simply put this in abeyance until he is no longer president, rather than allow him to settle with himself.
- [50:06]
David French
Possibly. What do you think of the option of appointing an attorney to represent, to oppose the. To, to represent the president or the IRS in this?
- [50:14]
Sarah Isgur
No, I'm against it. I would much rather hold an abeyance. There's no urgency to this lawsuit, obviously. And there's to be clear, when I say the lawsuit isn't frivolous, I mean substantively in terms of the leak itself happened and the person was criminally convicted. There are statute of limitations problems. There may be underlying problems with the lawsuit itself as well. But regardless, David, there's no rush. Those statute of limitations problems will still exist. The underlying criminal behavior will still exist. Like no need to do this in the next three years. So I would just pause.
- [50:45]
David French
So in 2029, President J.D. vance gets to write him a huge check.
- [50:49]
Sarah Isgur
I'm fine with that.
- [50:50]
Ad Read Host
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- [50:50]
Sarah Isgur
I mean that's the way the system works, right?
- [50:52]
David French
Not the system I like.
- [50:54]
Sarah Isgur
Well, I'm. People of different political parties are allowed to defend or not lawsuits from their own side. That would be a bizarre.
- [51:02]
David French
Sue and settle is. I am a 100% opponent. Sue and settle.
- [51:06]
Sarah Isgur
Yeah, but this isn't sue and settle. Sue and settle is when you try to change policy by settling with a friendly party. This isn't about policy changes. This is actually just a private lawsuit, a civil lawsuit filed for the purpose of damages. And we can't say like, well, Republicans can't file civil lawsuits against the government when there's a Republican president.
- [51:27]
David French
Yeah but I. My definition of suicide is a little broader than that. It's the fixes it that, that's my definition of a sue and settle is the fixes in for whatever purpose, whether it's policy change to reward friends. That's what I'm opposed to. I do not want the fix to be in the. That Republicans and can use the treasury as their p piggy bank if they file a federal complaint. And Democrats can do the same if they file a federal complaint if they're in charge. I can't imagine a world where that is anything other than corrupt.
- [51:57]
Sarah Isgur
So David, I might put that more into the third party settlement bucket, which I also think is a big problem in, in my world, sue and settle is friendlies. You know, sue the government because the government can't actually change the law quickly. They either can't get Congress to do it or, or the regulations through notice and comment would take too long. So why not file a lawsuit, then settle it, and it, like, trumps all of those things. Great, so fast. Third party settlements are when the government sues, I don't know, Chevron or your mama.
- [52:26]
David French
Don't sue my mama.
- [52:28]
Sarah Isgur
And then says, like, hey, we sued you for $100 million, but if you give $20 million to this group that we like that is a political ally of ours, we'll take that settlement and then you don't have to worry about the risk of the hundred million dollars if it were to go to trial. And so that group or your mama takes that settlement that then benefits a third party friend of the administration who you know is a political ally of some kind. So it's a way of channeling money to your allies. It's sort of a version of what you're talking about, David.
- [52:58]
David French
The bottom line is lawsuits should be defended in good faith and settled on the basis of good faith, viable litigation strategies, as opposed to favor trading with friends and allies. That's my modest proposal.
- [53:14]
Sarah Isgur
All right, I've got two emerging circuit splits, David. So these are both topics that we thought the court might want to let marinate for a little while, see how the circuit courts deal with these issues. The percolation, as the various justices have called it, is good for the court because they kind of get the best minds thinking through stuff, and then they get to swoop in and be the heroes in the end. Just kidding. They get to be the villains to 50% at least. So this first one, David, is on pronoun usage. Substitute teacher is told that she must sign a training agreeing to use the preferred pronouns of the students in her classroom based on their gender identity, and that she must keep those secret from parents. And she says, for our purposes, she brought a religious claim as well. But importantly, she brought a free speech claim saying, this is compelled government speech. I'm happy to use their last names, all the students last names, so it won't be, you know, any students singled out or anything like that. But they would not let me do that. And therefore, that's compelled speech two to one in the Fourth Circuit, David, saying, nope, as a government employee, part of your job, official job responsibilities, are identifying your students and using pronouns. Therefore, the school can dictate the speech for your official duties. A dissent from Judge Wilkinson. That was spicy meatball. David. I would hold that the plaintiff, Ms. Kimberly Polk, is likely to succeed on the merits of her free speech claim. Montgomery County Public school schools gave Ms. Polk a substitute teacher an unjust ultimatum, use transgender students preferred pronouns in violation of her personal conviction or teach somewhere else. Because MCPS's policy compels speech on a non curricular matter, and because reasonable alternatives existed using students last names, I would hold that the Pickering balancing test applies and favors Ms. Polk in holding instead that the free speech clause does not provide even qualified protection to Ms. Polk's speech, the majority leaves teachers completely vulnerable to becoming the unwilling mouthpieces of government messaging. Although transgender rights advocates may now cheer the majority opinion, they will find today's cure in truth a poison when states enact legally indistinguishable policies preventing teachers from using preferred pronouns in schools. And because nothing prevents school systems from pushing this newfound control much further than pronoun usage, I respectfully dissent. He had sort of a parade of horribles, David, that I thought were worth reading. If the majority's reasoning is correct, then there is no limit to the words the state can put in teachers mouths. Teachers become, for all intents and purposes, the state's anointed messengers. Are we now to allow states to mandate the teachers voice opinions contrary to their own without any First Amendment protection whatsoever? Can the state force an Israeli teacher to wear a pro Palestine pin? Can the state force a Quaker math teacher to start class with a statement express expressing her support for US military strikes abroad? Can the state force an atheist teacher to recite the Pledge of Allegiance with the words under God? Can the state force an independent teacher to profess to her students support for incumbent elected officials? Under the majority's view, the only logical conclusion is yes. The state need not even supply a rationale because Garcetti would supposedly place such speech outside the First Amendment's ambitious because it is part of the official duties of a teacher. Anything they're saying in the classroom, David, this obviously is the opposite outcome of what we saw from the 6th Circuit. So we have an on point circuit split now on compelled pronoun usage for teachers. How do you think this is going?
- [56:58]
David French
Well, I mean first I think Judge Wilkinson is exactly right and everything he's saying is highlighting the fundamental conceptual problem with Garcetti to begin with. And so everybody who was like looking at Garcetti in real time saw how dangerous this decision was that depending on how you define the job duties of a public employee, you are going to be ripping the heart out of free speech rights for a cla, a certain class of Americans, and then turning them into pure instruments of state communication and state indoctrination. And we began to see sort of the fruit of this and the vicious, vicious arguments across America, how are we going to mandate or not mandate teachers speech about race? And so what you're doing is if you get a super polarized America like we have and a Garcetti which says, look, if it's on the job speech from a, from a public employee, there's no First Amendment interest, then that is a giant flashing green light to authoritarians to say, I shall pour all of my indoctrination through my public employees. And you're beginning to see some of the fruit of that. And, and look, as this goes to the Supreme Court, that Garcetti question is going to be a very live question. If they're not overturning Garcetti. Please overturn Garcetti. Please overturn Gari. If you're not overturning Garcetti, this is not an easy case, because what. What is official speech? Is official speech going to be curricular speech? In other words, hey, class, two plus two equals four. But is it. Is it also how you interact and how you specifically address the students in the classroom? I think even with Garcetti, you know, the Six circuit approach is more sound here, which, which was saying, no, no, no, this is not official speech. You're compelling. You're compelling, you know, their. You're compelling their private speech here. I think that's a sounder analysis. But I'm not going to pretend that under Garcetti, it isn't a live argument, that it's a real debate. And so that's the fundamental problem here, is we have the Supreme Court precedent that authoritarians on both sides of the aisle absolutely love it when they are in charge. And then when they're not in charge, they begin to see like it is a problem. And so we just need fewer places, Sarah, where it's winner take all on elections as far as how you can bend the, you know, bend the, the community to your will.
- [59:34]
Sarah Isgur
All right, David, let me tell you about the next circuit split, because this is on facially neutral admissions policies that we talked about in the past. So the 4th Circuit and the 1st Circuit had both held that changing admissions policies, even when there is evidence that the purpose was to racially balance the class of students being admitted to these public magnet schools or public charter schools, et cetera, was okay, because, for instance, in the First Circuit, Asian students still remained overrepresented compared to the population as a whole. Ditto in the Fourth Circuit. Well, we've got the Third Circuit riding in with a circuit split, saying that a very Similar story that we've heard before. A magnet school was taking from the larger community with several feeder junior highs, didn't like the racial makeup of the class, had looked, by the way, at changing it based on geography in the past, and decided not to just geographically balance their high school class. But in the wake of George Floyd, had a new equity push, wanted to do that. And so they basically gave what the court refers to as golden tickets to six zip codes. And guess what, David, all those zip codes had a different racial makeup than the school itself. There was some evidence in the record that that was, of course, the point of changing this policy. And the 3rd Circuit says no, the policy was clearly for the purpose of racial balancing. The fact that it is neutral on its face to give these golden tickets is not enough to simply dismiss the case if there is discriminatory effect. The racial balancing in this case and evidence of discriminatory purpose, which again goes to the record. So we've been waiting for. I've been waiting for this one, David. It affects our home magnet school, Thomas Jefferson High School, where I live. And at the same time, I think I've mentioned it's going to be interesting because you also have The Texas top 10% rule, where if you graduate in the top 10%, I think it's now 7 or 8% of your high school class, you're guaranteed admissions to a public university. Well, it certainly has the effect of racial balancing in the state. Now, I think you'll be somewhat hard pressed to find intent, but let me stipulate that they would have said, like, we want the classes of these public universities to better represent the overall makeup, including the racial makeup of the state of Texas. When we did the Texas 10% rule, does that mean that any efforts, you know, to have that sort of plan, which I think has been great for the state of Texas, are suddenly unconstitutional because you waited until there was like this DEI moment and then you changed it, or are we having a grandfathering system? How would that work? So I'm really eager for the Supreme Court to take this or frankly, for a court to take it more seriously than I thought the Fourth Circuit did, frankly. And I'll note that in both of our circuit splits here, the pronouns and the admissions policy, the Fourth Circuit is a player in the circuit split. And I've said before, David, the 4th Circuit is looking a whole lot more like the 9th Circuit these days on the left side, the 5th Circuit looking maybe more like the 9th Circuit on the right side. And so if you're wanting to Take bets just on percentages. If the Supreme Court were to take one of these cases, fair bet would be to vote against, bet against the 4th Circuit.
- [63:12]
David French
So one thing that I think is interesting about this is it strikes me that this might end up being very much like the political gerrymander versus the racial gerrymander in the sense that if you are adjusting admissions criteria, you are going to just adjust the racial makeup of your class. This, this sort of, it's just the, the idea that, that let's say, if you say what we need is at least, let's say it's college admissions, what we need is at least two people from every state that's going to have a effect on the racial makeup. Does that mean therefore you can't do it because you've adjusted the racial makeup of the class? No, they're not going to go that way. Can you have things like geographic diversity? Yes. Can you have things like emphasis on class? Yes. Will that have an impact on race, Racial makeup? Yes. Would there be some sort of evidence that somebody says, oh, by the way, one of the additional benefits of this program in addition to lifting up people from impoverished backgrounds is because of the legacy of racism in this country. People who are black and Hispanic have higher poverty rates and that's going to also provide additional help to the black and Hispanic community. Does that therefore mean it's suddenly a improper racial admissions policy? I think what you're going to end up seeing is the court's just not going to want to be the, the admissions pol, the admissions director for America. And what you're going to probably end up with is explicit racial balancing out out. But we're going to give you a lot of discretion for admissions policies and practices that might have a racial impact but are not explicitly racially directed. Unless, and I think there's going to always be an asterisk, Sarah, for what you might call the bad faith gerrymander. This is one of the things, or remember from the TJ case and, and correct me if my memory is faulty, but they really did seem to want fewer Asians. It was, it was not. Let's increase geographic diversity. It was. And a lot of evidence in the record. Too many Asians. And so if you have explicit evidence of negative racial targeting that is then filtered through a sort of non racial lens, that's where I think the court should intervene. In the absence of that evidence, it's just going to be, you know, you're gonna, what you're gonna get get is a series of lawsuits if there's any diminishing of any sort of racial, like of one race's presence in a, in an entering class or whatever based on any change, then you're gonna have, you're gonna have these kinds of suits. And I just don't see the court wanting to do that again unless there is. We need fewer Asians. How can we make this happen? Aha. Zip codes. All right, excellent. That's, you know, that sort of. Mr. Burns, excellent. With the, you know, that kind of evidence. I don't, I just don't think they're going to want to get into that.
- [66:13]
Sarah Isgur
Well, David, we shall see. These will all be no doubt appealed to the supreme court. Cert petitions awaiting. Now remember, we're done with this term. So any cases that get granted cert from this point forward, they're going to OT26. David, someone just tweeted the funniest thing thing which will release first your book or learning resources, I. E. The tariff opinion.
- [66:40]
David French
That is Sarah, I hope it is the tariff opinion and not last branch standing.
- [66:45]
Sarah Isgur
I mean I actually think at some point it like the assumption has to flip. Like I thought they would want to release it earlier because the tariffs were still in effect while the case is being considered. But at some point they must not care, in which case, you know, my book comes out April 14th and like they might as well wait till June, in which case it'll be my book. So like maybe through the end of February, I'll say my money's on learning resources. But on March 1, it's flipping to last branch standing.
- [67:16]
David French
Yeah, I'm with you on that. I'm with you.
- [67:20]
Sarah Isgur
All right, we'll talk to you next time. Aoers.
- [67:40]
David French
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Sarah Isgur
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Sarah Isgur
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