Advisory Opinions – “Quasi-Hypotheticals”
Podcast: Advisory Opinions by The Dispatch
Date: February 5, 2026
Hosts: David French & Sarah Isgur
Episode Theme:
This episode tackles pressing legal issues at the intersection of law and politics, focusing on the arrest of Don Lemon (and its implications for press freedom, conspiracy law, and federal vs. state authority), Supreme Court statistics regarding Trump-appointed justices, debates around nationalizing election oversight, new circuit splits on compelled pronoun policies and school admissions, and an IRS lawsuit brought by Donald Trump.
Main Topics and Key Insights
1. Don Lemon’s Arrest: Journalists, Federal Charges & Hypotheticals
- [05:16–19:46]
- Statutes Involved:
- FACE Act (18 USC 248): Criminalizes using force, threats, or obstruction to interfere with individuals’ rights to worship.
- Conspiracy Against Rights (18 USC 241): Prohibits conspiracies to interfere with constitutional rights.
- Discussion Highlights:
- State v. Federal Charges: State trespass/disorderly conduct charges are much easier to prove. Federal charges require demonstrating force/threat/conspiracy, a much harder bar.
- Journalist Exception:
“A journalist can cover unlawful activity...But a journalist is not exempt from the law.” — David French [08:28] Journalists aren’t above the law, but are often granted institutional discretion as a practical norm. - Analogies to Other Cases: The Blaze reporter on Jan. 6 was prosecuted under D.C. (not federal) law; the charges weren't directly analogous.
- Hypotheticals on Conspiracy:
- Merely covering a protest or expressing support isn’t conspiracy.
- Actively planning or helping orchestrate disruptive actions for the sake of better coverage could cross into conspiracy territory.
- “Encouragement alone is not conspiracy. Peanut gallery cheering along, not conspiracy.” — David French [18:03]
- Practical Takeaway: Prosecutors need clear facts and evidence of overt acts for a conspiracy charge—caution urged before drawing firm conclusions ahead of trial facts.
2. How Maverick Are Trump’s Supreme Court Nominees?
- [22:21–25:56]
- Adam Feldman’s Legal Analytics:
- Found Gorsuch is the least likely to join liberal majorities, but most likely to join liberals in dissent. Kavanaugh statistically more often part of 5/6-justice majorities with liberals.
- Insight: Gorsuch’s “maverick” status is more about idiosyncratic dissents than actual pivoting in big majority opinions.
- Memorable Quote:
“When are you joining the liberals in disagreeing with the majority? That really is a fantastic metric of...uniqueness.” — David French [23:43] - Barrett's Reputation: Though sometimes labeled a "maverick," she statistically aligns most with the conservatives.
3. Supreme Court NDAs & Clerk Influence
- [25:56–33:18]
- NDAs (Non-disclosure agreements):
- NYT notes recent return of NDAs for clerks; not new but revived post-Dobbs leak.
- Sarah Isgur: Skeptical of NDA effectiveness (“not sure that NDAs make something more secretive” [26:32]).
- Clerk Influence “Egomaniac” Quote:
“[Clerks think] if the public were aware of how much…deliberation…are made by 27-year-olds after happy hour, they’d be shocked.” — Former Sotomayor clerk [27:00]- Both hosts call out this exaggeration; real influence minimal, clerks are “facilitators.”
- Why hire young clerks?
- To ensure ambassadors for the judiciary and maintain power differential—more experienced lawyers might unduly influence.
- Justice Crafting: Some chambers reportedly go through ~100 drafts of an opinion before circulation—hardly clerk-dominated.
4. Nationalizing Elections Debate—Rick Hasen’s Change of Heart
- [33:18–43:59]
- Rick Hasen’s Slate Essay:
- Former advocate for national election standards now recants, citing risk of federal control under anti-democratic presidents.
- Sarah’s Reaction:
- “Not that people generally liked the idea of nationalizing elections—it is more what they said about those of us who did not...it was because I was racist...turns out I was worried...because federalism.” [34:38]
- David French's Take:
- “For a long time...states were the primary source of oppression...but there were good reasons for decentralization.” [35:56]
- Election Security: Decentralization makes systematic fraud/hacking far harder; Carter-Baker Commission’s recommendations highlighted.
- Public Confidence: Both support limited reforms—like national voter ID—not to prevent fraud or suppression, but to increase public trust.
5. Trump’s $10 Billion Lawsuit Against the IRS: The Unitary Executive Paradox
- [46:04–52:58]
- Background: Trump sues the IRS (for an egregious, criminal leak of his tax records)—but as President, is also chief executive over the IRS and DOJ.
- Legal Paradox:
- “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?” — Sarah Isgur [47:49]
- David: “You would look at this as Donald Trump v. Donald Trump...There are conceptual difficulties here, without question.” [48:49]
- Potential Solutions: Delay litigation until Trump is out of office or appoint outside counsel to represent the agency side.
6. Circuit Splits: Compelled Pronoun Use & Admissions Policies
a. Compelled Pronoun Use for Teachers (Fourth vs. Sixth Circuit)
- [53:13–59:34]
- Fourth Circuit (Polk case):
- Substitute teacher required to use students’ preferred pronouns, keep secrets from parents.
- Majority: As government employee, compelled speech is allowed in the classroom.
- Judge Wilkinson’s dissent:
“Leaves teachers completely vulnerable to becoming the unwilling mouthpieces of government messaging...no limit to the words the state can put in teachers’ mouths.” [54:46] - Compares to Sixth Circuit split; clear circuit conflict.
- David's Take:
- Garcetti precedent dangerously broad, enabling state-mandated indoctrination via public employees.
- “Fewer places where it’s winner take all...” [59:32]
b. Race-Neutral Admissions Policies (Third Circuit Split)
- [59:34–66:12]
- Third Circuit: Now holds that “race-neutral” geographic admissions that actually aim for racial balancing (and succeeded in altering racial composition) can be struck down if evidence of intent exists—even if still “overrepresented” after.
- Practical Scrutiny:
- Cases like Texas’ top 10% rule could potentially be challenged depending on intent.
- Sarah: “I’m really eager for the Supreme Court to take this...or for a court to take it more seriously than I thought the Fourth Circuit did...” [62:05]
- David's Prognosis:
- The Court will likely outlaw explicit racial balancing, but allow discretion for facially neutral admissions policies unless evidence of overt racial malice appears (“We need fewer [X group]; how can we make this happen?”).
Notable Quotes & Moments
-
On Conspiracy and Press Freedom:
“Encouragement alone is not conspiracy. Peanut gallery cheering along, not conspiracy.”
— David French [18:03] -
On Maverick Justices:
“When are you joining the liberals in disagreeing with the majority really is a fantastic metric of...uniqueness.”
— David French [23:43] -
On Clerk Influence:
“You’re a facilitator, not a decision maker… Don’t amp it up too much.”
— David French [28:33] -
On Shifting Federalism in Elections:
“As someone who has worked on three presidential elections… you might be able to steal a local election...but not a presidential election.”
— Sarah Isgur [38:50] -
On Garcetti & Compelled Speech:
“Garcetti… is a giant flashing green light to authoritarians to pour all of my indoctrination through my public employees.”
— David French [57:39] -
On Race-Neutral Admissions:
“What you’re going to get is a series of lawsuits if there’s any diminishing of any sort of racial... presence…, then you’re going to have...these kinds of suits. I just don’t see the court wanting to do that...unless there is explicit evidence of negative racial targeting.”
— David French [65:46]
Timestamps for Key Segments
- [05:16] Don Lemon arrest—statutory breakdown (FACE Act, conspiracy to deprive rights)
- [11:11] Journalists and unequal application of law
- [15:00] Quasi-hypotheticals: what is versus isn’t criminal conspiracy
- [22:21] Trump SCOTUS appointees: surprising stats on who’s really a “maverick”
- [25:56] Supreme Court clerk NDAs and clerk impact
- [33:18] Election nationalization: Rick Hasen’s 180 and federalism
- [46:04] Trump’s $10B lawsuit against IRS and the “Trump v. Trump” paradox
- [53:13] Circuit split: compelled pronoun use for teachers
- [59:34] Circuit split: facially neutral admissions policies and racial balancing
- [66:12] Supreme Court’s appetite for these cases, clerical speculation
Tone & Style
- Conversational, often witty (“find someone who loves you the way Sarah loves the 2005 Carter-Baker Commission...”)
- Jargon-light but explicative; legal concepts broken down for non-lawyers without dumbing down details.
- Candid about limitations—e.g., “we do not know all the facts” and “these are early days.”
Summary Takeaway
This episode uses the Don Lemon case as a springboard into deep questions about the tension between press freedom and the law, the scope and limits of federal power, and the complexities of “neutral” policies that carry immense political weight—from the Supreme Court’s inner workings to local school admissions. As always, French and Isgur strike a balance between legal rigor and accessible, skeptical commentary, frequently reminding listeners to be wary of both factual assumptions and the seductive simplicity of partisanship.