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A
You ready?
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B
I was born ready.
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A
Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And do we have a podcast for you? We are. So, starting with Texas redistricting, are we going to learn a little bit about redistricting? Sure. A little. Are we going to learn a lot about feelings? Yes, we will learn a lot about feelings. Then, speaking of feelings, we're going to talk about the indictment against James Comey and whether it turns out it's totally facially invalid. Oops. So, yeah, let's just, let's see where we go on this. Advisory Opinions, what if you could give a gift that keeps your favorite holiday moments alive, not just once a year, but every single day with an aura frame? You can. For me, the holidays are all about the small moments. It's the kids putting on the chef hat or hanging that last ornament on the tree or baking the cookies that they want to bake every single day. Those are the photos I'd always love to keep in sight because they remind me what the season is really about. With Aura Frame, when you start early, you have time to choose every photo that tells its story beautifully wrapped in a gift that feels just as special. With Aura Frames, you can share unlimited photos and videos for free all through the easy to use Aura app. And before it's even delivered, you can personalize your gift with a message that makes it truly yours. And you guys won't be surprised to hear that I just sent my sister in law one of these frames and I can't wait to fill it with tons and tons of photos of the boys doing who knows what. The little one just started adding macaroni and cheese on top of his pizza. It's really an amazing photo. For a limited time, visit aura frames.com and get $45 off or as best selling Carver matte frames named number one by wirecutter by using promo code advisory at checkout. That's a U R A frames.com promo code advisory. This exclusive Black Friday Cyber Monday deal is their best of the year, so order now before it ends. Support the show by mentioning us at checkout. Terms and conditions apply.
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Limit one per transaction.
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Exclusions apply.
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Full eligible to list in store and online. So, David, I want to make clear to the listeners how committed we are to advisory opinions.
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B
Oh, please do, Sarah, please. Because they, our listeners, if they don't appreciate us after this podcast. I don't even know what. What. What they're. What we're doing here.
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A
Okay, so let's start from the beginning. The last podcast we recorded was on Monday, and I reported that I was still sick. I've been sick for about a week. I was sick on Monday. I decided on Monday night that I would take some Sudafed, even though I'm allergic to Sudafed because it prevents one from getting a sinus infection, I've been told. And, you know, trade offs. Right. That seemed worth it at the time. Fast forward. I fall into a banister at my house. Like one of those big white, sharp things with my face, and there is blood just everywhere. It is a crime scene at my house. Scott, of course, comes immediately with a roll of paper towels. I can't say that that's actually the most helpful thing in that situation. It also appeared like, I don't. There were, like, minor organs coming out of my nose. Like, I don't understand what all was happening there. And then Nate, my five year old, came out of his room with his. He had made binoculars out of two toilet paper rolls. And he, like, peeks out of his room with the binoculars, sees the crime scene, and then just goes back to his room and goes to sleep. Oh, so that's the first level of commitment.
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B
Can I. Can we press pause there for just. Yeah, just. Just for a moment first. Are you okay? That's the most important thing.
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A
I mean, I'm still sick, but now, in addition to being sick, blowing my nose, which I have to do every five seconds, really hurts.
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B
Yikes. Okay, so that's one question number two. Question is, did you have to call 911 or anything? Because if you had to, in comes Scott with you injured and him covered in blood, which makes him automatically the suspect.
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A
Suspect number one.
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B
Yeah. Suspect number one. Yeah.
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A
We can't even recreate how I did this for a variety of reasons. Like, basically, there's a gash on the right side of my face, even though I hit the banister on the left. Like, there's all sorts of questions that if I had been dead, it would be really hard, I think, for him to prove his innocence. So I'm glad I'm not. But, David, this isn't even why we're so committed to this podcast. So again, I am now sick and in pain.
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B
That's commitment. That's commitment.
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A
It's a level of commitment. But then we actually already recorded this podcast.
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B
Yes, we did.
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A
In fact, we woke up early this morning. You woke up. I mean, it was dark outside. Wherever you were when you had to wake up early morning, I think it.
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B
Was still last night, practically. Yeah.
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A
However, given the day, overcome by events, as you'll see, it's now 9pm Eastern and we're gonna rerecord this podcast because we can't, not next week is so far away and just too much happened today. So you know what, David? We're going to jump right into redistricting. Let me start with a disclaimer. First of all, I learned two hours ago that it turns out husband of the PODS law firm was actually counsel for the state of Texas in this case. Now, again, I'm giving you that disclaimer, but I'm also mentioning that I had no idea. So my. Yeah, my interest is minimal, I guess. Second, let me refresh everyone's memory about Texas redistricting. So the census happens like it does every 10 years and a lot of states redistrict after the diennial census. Texas redistricted in 2021. All was well, give or take. Okay. Then Donald Trump comes back into office and he's like, I think we could do better. Hey, why don't we do mid century cycle redistricting? Something that I'm actually not aware has ever happened. But there's nothing unconstitutional or unlawful about mid cycle redistricting. You're welcome to do it.
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B
It's a norm, not a law.
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A
That's right. So he calls down to Texas and is like, hey, y', all, why don't you redistrict? And Texas is like, nah, we're good. And then he's like, no, no, I really want you to. So we're going to skip ahead here for a second. And they do, they redistrict. And you know, if you've seen the news reports, this triggered a whole nationwide mid cycle redistricting kerfuffle. California does a ballot measure under Gavin Newsom to do their own redistricting so that they can squeeze more blue seats out to counter Texas's red seats. This that we're about to talk about is a lawsuit about whether Texas's districts that again, trigger this whole, you know, cascade of effects are actually valid. Now, it is worth noting that Congress passed a statute many years ago that says that if a lawsuit is about congressional redistricting, it goes to a three judge panel. So it's the district judge that it got filed in front of one circuit judge and one more district judge, three judge panel every time. And when that's appealed, it goes directly to the Supreme Court. Not as a petition for certiorari. It's like mandatory. They have to hear it. So this whole thing is like a little bit of a unique circumstance. The three judge panel acts as a trial court. They like hear evidence if they need to, but then they also issue opinions. Sort of more like an appellate court. It's a hybrid because it's a three judge panel. Okay, so we get the decision from Judge Jeff Brown out of Galveston. He's a Trump appointee. Fun fact. He clerked for Justice Greg Abbott when Greg Abbott was a Texas Supreme Court justice. He himself was Justice Jeff Brown on the Texas Supreme Court before he became Judge Jeff Brown in Galveston. Friend of the pod I have, I hung out with with him and his clerks in Galveston. I've known him forever, since I was a law student. Probably huge fan of Judge Brown. So we get this two to one decision and it just says, Judge Jerry smith from the 5th Circuit will file a dissenting opinion. Now, I will also note that Judge Smith is basically like my uncle judge because the Jones chambers and the Smith chambers actually share like a kitchen, a library, all of our common space. So it's sort of a co clerkship, if you will. They're like cousin clerks because we share all this space together. This is going to be relevant because it's going to make this podcast a little bit difficult personally, emotionally, feelings wise.
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B
You might want to let me take the lead on venting and ranting.
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A
Okay. But let's set up the law just a little bit more. Let's do the Purcell Principle because that's going to be relevant. The Purcell Principle basically says that federal courts shouldn't change election rules. Now, that can include district lines or ballot rules or voter ID or anything else. You shouldn't change the rules of an election too close to an election. That's not your role. That's not your job. So if you do get really close to an election, you're just supposed to leave it as the status quo. But of course there's going to be questions on what the status quo is. So the filing deadline in Texas is coming up. It's like December 8th and the primary is in March. So we're in Purcell territory here, David, certainly for the filing deadline, because you need to know what district you'd be filing in. So well within that territory. Also, let's do a quick reminder. Partisan gerrymandering, totally fine. Legally at least speaking. The Supreme Court in Russia basically was like, not our problem. Not our circus, not our monkeys. We're not. This is just a political question. The voters can have their own opinions about gerrymandering, partisan gerrymandering, but there is no cognizable principle for judges to say that, like, something is too partisan a gerrymander or an okay partisan gerrymander, because all of the congressional lines are drawn for some partisan reason. So we're out of the business of partisan gerrymandering. But racial gerrymandering, very much their circus and their monkeys. And of course, we have the pending Supreme Court case in Calais. That's out of Louisiana. This is going to have notes of Calais. A certain audicale, if you will. Now, for our purposes, here's what's important. The jingles factor for the Voting Rights act section 2. One, the minority group must be large and geographically compact enough to constitute a majority in a single member district. And two, the minority group must be politically cohesive. So what's going to be an issue here are something called coalition districts. Coalition districts are more than 50% non white, but they're not all of the same racial minority group. So it's a coalition of different minority groups that add up to more than 50%. Now, the 5th Circuit in an en banc case last year, in a case called Pett Away, that Judge Jeff Brown was the district court judge for, said, you can't use coalitions of minority groups to bring a section two claim. Right. Because they're not. The minority group must be large and geographically compact enough to constitute a majority in a single member district. Well, no, not seven minority groups must be large enough and the minority group must be politically cohesive. Not seven minority groups. You know, so they basically were like, no, no, coalitions don't count to bring claims of vote dilution under section 2. Okay, this brings us to Judge Brown's opinion here in this case in 2025 about the Texas mid cycle redistricting, where he basically says, david, President Trump called you and asked you to do a partisan gerrymander and you were like, no, thank you. So then the Department of Justice and the Assistant Attorney General for Civil Rights, Harmony Dhillon, wrote you a letter that said your coalition districts are unlawful and unconstitutional because they're coalition districts. So then you did a racial gerrymander. And in fact, Governor Abbott was Interviewed by Jake Tapper. And Jake Tapper was like, come on, this is for partisan reasons. You're just trying to squeeze out more Republican districts. And Governor Abbott was like, absolutely not Jake Tapper. This is for racial gerrymandering purposes.
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Yeah.
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So to be clear, if he had said, yes, it's for partisan reasons, totally legal. But when he said, no, we're doing this for, basically to take race into account to redraw these districts so we don't have coalition districts anymore, which, again, are totally lawful on their face, he was like, no, we do crime. I mean, not literal crime in this case, but we do civil rights violation.
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B
Yes. And there was a. Let the. There was a letter from the doj, Harmeet Dhillon's office, letter sent that was allegedly the spur that said, no, you don't have an option. Texas, you have to gerrymander and you have to gerrymander because of. Drum roll, please. The racial makeup, okay? And so this is monumental incompetence. Monumental. And let me explain a little bit why, when we have talked at length about the Alabama case, redistricting case from a couple of terms ago, when we talked about the Calais case from this term, that we. We're. We don't know how it's going to come out. What has always happened is that the state says, this is not a racial gerrymander designed to dilute black participation. This is a partisan gerrymander. Gerrymander designed to increase Republican representation. It just so happens that white people in the Deep south vote overwhelmingly Republican and. And black people in the Deep south vote overwhelmingly Democratic. But the real issue here is partisan, not racial. And so if you're going to be challenging that as a racial gerrymander, it's very hard for you to win. It's very hard for you to win because that partisan makeup is so matched with race, it's just very hard to tell where race ends and partisanship begins. But what's very important about all these cases is the government is saying this is partisan, not racial. Okay? The Trump administration comes in and says this is racial, okay. Which is wild that that happens. And here, let me read a couple of quotes from the majority opinion here.
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A
Oh, I was just waiting for this. It's my favorite part.
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Oh, yes. So here's what happens. So they. The majority opinion prints the entire letter from the Department of Justice, the whole thing, so that you don't have to trust the court as to how they're characterizing it. So you get to read it all, typos and everything.
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A
And it Includes some sic, Some six. Which is like kind of a jerk move, if you will, but also hilarious because there's just. It's riddled.
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B
Yeah, it's riddled. And so, as the court wrote, the DOJ is the remedy for such racial gerrymandering, according to the doj, is to change the offending district's racial makeup. Yikes. Yikes. And then here's the key paragraph. It's challenging to unpack the DOJ letter because it contains so many factual, legal and typographical errors. Indeed, even attorneys employed by the Texas Attorney General wonder who they could be, who professes to be a political ally in the Trump administration, describe the DOJ letter as, quote, legally unsound, baseless, erroneous, ham fisted and a mess. Okay, so what this actually does, Sarah, and I want to be super clear with people. This does not mean that Texas is going to lose. Ultimately, it is lost for now. It does not mean that it will ultimately lose, in part because there is such. The law favors partisan gerrymanders to such a degree and there is a lot of testimony from other people in the Texas or in the Texas universe saying, no, no, no, this was partisan, this was partisan, this was partisan. So the out outcome here is very much in doubt. But what the Trump DOJ that I think, I think almost anybody can agree with is what the Trump DOJ did is they took a slam dunk victory and created a possible defeat. And they created a possible defeat. And by the way, this has real consequences if the election is close in 2028. It's a possible defeat that would be entirely self inflicted and could cost the Republican Party control of the House of Representatives. It's possible, it's not likely. It's almost certain it's going to go bigger one way or the other than that, but it's in the realm of possibility. But the key thing is you have a absolute slam dunk winnable case that the DOJ very helpfully dropped an atom bomb on top of with this letter, which is unlike anything I've ever seen. Like, imagine Calais if Louisiana was like, yeah, we want less black representation. You know, like, well then that's a different case. Right, that's a different case. And so this is, this is wild. But we haven't even got started with the wildness.
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A
Yeah. Okay, so one more thing on here. If the 2021 map had been found to be a racial gerrymander, and then Texas comes in and says, uh, oh, that was an unlawful racial gerrymander. So now we need to fix Those districts.
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B
Right.
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A
That would be actually an interesting case. But the majority opinion basically goes through to show that the legislature, in fact, said that they were following the DOJ letter and that sort of everyone involved was citing the DOJ letter that the 2021 map was not a racial gerrymander. It was a normal partisan map. I would be. I would be kind of into the case of, like, how do you fix a racial gerrymander? What are sort of what's allowed? Are you allowed to take race into account because you're trying to fix a racial gerrymandered map? I still think the answer to that's probably no. You then just have to draw a partisan map without regard to race, same as you would any other time. But at least that's an interesting legal question. This, at least the DOJ letters version of it, is not an interesting legal question. You don't get to racially gerrymander to get rid of districts because of the racial makeup of the districts because there's too many non white people in them. What the. What? Okay, but if you remember, I said at the beginning that there's this, you know, footnote at the bottom of page one, and it says, U.S. circuit Judge Jerry E. Smith will file a dissenting opinion. Now, this is not totally unheard of that the dissenting opinion comes out later, but it is quite unusual. Now, I mentioned that Purcell principle, right. That they were sort of under the gun to get this out because the filing deadline is so soon and you need to sort of maximize people's ability to, like, decide whether they're going to run for Congress and what district they're going to run in the next day. We get Judge Smith's dissent. And, David, I think I just need to read from a lot of it.
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B
So, yeah, you have to. There's no way to characterize it. You have to present it well.
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A
He starts it aptly, fasten your seatbelts. It's going to be a bumpy night. Quoting from All About Eve, which is one of my favorite movies. Touche, Judge Smith. All right, here we go. I descend from the entirety of Judge Brown's opinion granting a preliminary injunction. I append this preliminary statement to dispel any suspicion that I'm responsible for any delay in issuing the preliminary injunction or that I am or saw slow walking the ruling. I also need to highlight the pernicious judicial misbehavior of U.S. district Judge Jeffrey Vincent Brown. In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved. In summary, Judge Brown has issued 160 page opinion without giving me any reasonable opportunity to respond. I will set forth the details. The readers can judge for themselves from there. David, he's going to walk through the timeline of when they held the hearing on October 10th. He didn't hear anything until Wednesday, November 5th, when he got a 13 page outline from Judge Brown. Then he gets like a draft opinion and now back to quoting him. Yes, you heard it right. To summarize, in case the reader doesn't get the point, Judge Brown was announcing that he would issue an opinion three days later. An opinion that I hadn't even seen and might not be furnished before its issuance. That is unthinkable, but it occurred and not accidentally. He then describes how he was out of town for a funeral for another judge. He told Judge Brown this this outrage speaks for itself. Any pretense of judicial restraint, good faith or trust by these two judges is gone. If these judges were so sure of their result, they would not have been so unfairly eager to issue the opinion sans my dissent. Or they could have waited for the dissent in order to join issue with it. What indeed are they afraid of? The majority might even say we don't need to wait for your dissent and wouldn't read it if we did. Here. That sort of happened. The entry on the district court docket brings up only Judge Brown's opinion. The reader has no access to this dissent without opening a separate non consecutive docket entry. So this majority has one in quotes. In terms of diminishing the impact of the dissent and the public's access to it in the interest of justice, one can only hope it is a Pyrrhic victory. When I was a newer on the bench, a friend asked me, now that you've been a judge for a few years, do you have any particular advice? I replied, always sit with your back to the wall. Okay, so David, that's just the preliminary statement. It's about this process point. I really haven't ever seen anything like it. It includes emails and private communications between judges. I'm not saying there's anything salacious in those per se, but this all feels very internal and that perhaps it should have been kept that way. That being said, it is also the case that the way this system works, you are supposed to wait for the dissenting judge and you are supposed to give them your full opinion and allow them to draft their dissent. We obviously don't have the other side of this From Judge Brown. The allegation that this is improper isn't crazy, I guess is my point, even if the tone, I think is a, a bit off.
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B
So I'm going to go more than a bit off. The tone is unacceptable. And we're going to get to that later for the rest of the opinion. Incredibly unacceptable tone. Obviously, this was written with extreme anger and fury, obviously. But at the bottom line is it's inside baseball that the dissent has no legal force and effect. It is written for persuasive purposes. The persuasive purposes are mainly for the Supreme Court. They'll get plenty of opportunity to read it. It is not about. Dissents are not about winning in the court of public opinion. They're about legal reasoning and legal argument. And I would love to hear the counter story to this. We may never, we may never hear the other side to it. But it was a temper tantrum that was remarkable. And I would say, and again, look, let's just assume that he was treated rudely or that in the time pressure where they're. Because the other interesting thing about it is it's actually in the interest of Texas for the majority opinion to get out there quicker because it gives more time for them to appeal and potentially get the districts ratified before the Purcell Rule kicks in. So it was actually, there was some actual, you know, this is actually helping Texas to get it out there quicker. But the thing is, let's just presume it was unfair. Let's just presume for the sake of argument that what happened was unfair. To absolutely go off on the most in very personal terms against a colleague in public and, you know, and we've not even started with this yet. Sarah.
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A
Yeah, I, there's. That wasn't the personal part. We're gonna get to the personal part.
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B
We're gonna get to the personal part.
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A
Yes, I'm afraid to say. Okay, so let's get to the dissent. Now, I do wanna read large portions of the top of the dissent, although, again, it's 104 pages in total. But it's important for a couple things. One, just the summary, I think, of where the dissent is coming from substantively, which is this is a partisan gerrymander. It doesn't matter what letter DOJ sent or what the governor said to Jake Tapper. That's indirect evidence of the purpose and the motivation, but it's actually just what the legislature did. That's the only thing we look at. And if you look at the mapmaker, he started drawing these maps before DOJ even sent Their letter, which is pretty good evidence that the DOJ letter was not the motivating factor behind how the districts were drawn. That in terms of what DOJ wanted, these districts don't actually accomplish all of it. So it'd be really weird to say we're responding to this threat from doj, but then not actually clear the threat, so to speak. And that if you look at the motivations of the individual legislators, many of them were pretty clear that it was partisan on a substantive level. This is a very normal redistricting dispute. Right. One side thinks the legislature's motivations were partisan. One side thinks the motivations were racial. That's what every racial gerrymandering case is.
- [27:56]
B
The core of the dissenting opinion is a very reasonable legal argument and one.
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A
That might even be correct. It might win, even. It might win. In fact, I think, well, we'll get to what might happen next after. But let me read from the descent, which has a little bit of a James Joyce vibe to it. So there's a lot of. What was the word for those, David? The little asterisk that people put in to separate thoughts. There was this, like, cool word that someone. Dinkus. It's dinkus.
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B
There's a lot.
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A
Dinki. I don't know what's plural of dinkus, but let's say it's dinki. Okay, here I go with just. No, there's a lot of dinkai. This is how it begins. The main winners from Judge Brown's opinion are George Soros and Gavin Newsom. The obvious losers are the people of Texas and the rule of law. I dissent Dinkus in the interest of time. This dissent is admittedly disjointed. Usually, in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and readability. But that approach is not reasonably possible here because these two judges have not allowed it. The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for fiction, Judge Brown's opinion would be a prime candidate. Dinkus. Judge Brown could have saved himself and the readers a lot of time and effort by merely stating the I just don't like what the legislature did here. It was unnecessary and it seems unfair to disadvantaged voters. I need to step in to make sure wiser heads prevail over the nakedly partisan and racially questionable actions of these zealous lawmakers, just as I did to the lawmakers in Galveston county. In petaway. That's that 5th Circuit case I mentioned. From last year where Judge Brown is the district judge and then it gets overturned by the en banc court. I'm using my considerable clout as a federal district judge to put a stop to bad policy judgments. After all, I get paid to do what I think is right. Dinkus. In 37 years as a federal judge, I've served on hundreds of three judge panels. This is the most blatant exercise of judicial activism that I have ever witnessed. There's the old joke, what's the difference between God and a federal district judge? God doesn't think he's a federal judge. Or a different version of the joke. An angel rushes to the head of the heavenly host and says, we have a problem. God has delusions of grandeur. The head angel calmly replies, what makes you say that? The first angel whispers. He's wearing his robe and keeps imagining he's a federal judge. Only this time it isn't funny. I dissent. Dinkus. Judge Brown is no stranger to a spirited attack on a legislative body's exercise of its duly elected power to redistrict before being roundly reversed by the fifth Circuit sitting en banc. Judge Brown, imagining himself to be a legislator, wrote the following. And then we have a number of quotes from that Pettaway District Court ruling concluding the district court quote was wrong. The en banc court remanded for the district court to consider the intentional discrimination and racial gerrymandering claims. Today, as a legislator slash activist jurist, Judge Brown finds a likelihood of success on the instant racial gerrymandering claims in regard to the Galveston county matter in Pettaway. Stay tuned for what Judge Brown will rule on remand in regard to the preliminary injunction in this case at hand. Read on. So like, that whole section is about a different case that is still pending before Judge Brown, for what that's worth. Okay. Then he walks through some previous redistricting cases that he had been on. Okay. It's all politics on both sides of the partisan aisle. George Soros and Alex Soros have their hands all over this. And then he goes through all of the people involved who he says are paid Soros operatives. His CV confirms it. He expects to receive 2 point million from George and Alexander Soros. Nor is this something new. Soros has been pumping money into Barretto's UCLA voting rights project for years, and this steady supply of money won't stop stop until 2026 at the earliest. Unsurprisingly, Barreto has been on quite a roadshow for years, parading across the country opposing Republican Redistricting that is the tip of the iceberg. The lawyers are involved as well. And then again, he walks through a lot of people involved in this case. Mark Gaber, the Elias Law Group, all of whom he says are being paid by Soros. This is how he ends this section that tells you all you need to know. This is about partisan politics, plain and simple. I dissent. Okay, David. Obviously, Again, this is 104 pages. At one point he says, if this were a law school exam, the opinion would deserve an F. Judge Brown is an unskilled magician. There's a lot of pretty personal stuff in here, but as we said, substantively, there's actually a real and perhaps correct argument.
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B
Okay. Yes. And as we said from the beginning, it's hard to lose a gerrymandering case if you're gerrymandering. Ever since the Supreme Court said, we're not gonna. We're not going to. We're not gonna review partisan gerrymanders. It's hard. It's very hard to challenge a gerrymander and win you. The way to do it is when you actually have something where you have the government basically come forward, as the majority said, and say, yeah, yeah, we're doing a racial gerrymander. Now, that may. There's evidence that's contrary to that. So there was ample room to write a dissent. Let's just get that right. So nothing that I'm telling you, if you're listening, is saying that it was not. There is no valid grounds to dissent. In fact, the dissent may. The substance of the dissent may ultimately win the day. That is very possible. It may even be likely. But. But. And, guys, you know how much we have. You know, we give the benefit of the doubt to people. We really do. This was reprehensible. The way he framed this was reprehensible. I mean, look, let's just. The personal insults, the taking him on, taking on the judge personally reprehensible, the bringing in, oh, well, this is Soros money here and Soros money there. Number one, that's totally irrelevant to the merits. Totally irrelevant. I can only imagine when I ran FIRE or when I was at ADF center for Academic Freedom. Can you imagine, Like, I can't even imagine, Sarah, that instead of dealing with my arguments or in addition to dealing with my arguments, the judge spends, like a whole page or so just breaking down who's donated to ADF or who's donated to fire. And the big winner here isn't actually the First Amendment. It's the Templeton foundation or whatever or whoever. Donated to fire. Right. Or whoever, you know, other foundations and people donated to adf. And what it sounded like, you know, that gif you see from It's Always Sunny in Philadelphia, where they got the yarn pointing to all the different people. It was like that. It's like an opinion that's just drawing all these lines about funding of litigation efforts when everybody knows who has any sophistication that all impact litigation, Republican or Democratic, is funded often by very wealthy people who write checks to foundations, who write checks to legal organizations to allow them to take these cases pro bono. This is the most normal thing imaginable. Now it's something that's like catnip. If you used to watch Tucker on Fox and you're totally convinced that Soros is the puppeteer of everything. But my goodness, Sarah, I've never seen anything like this. And I know that strong language. You have a Judi. He's your judicial uncle. I know, I understand that. And look, I don't want to cast aspersions on his character. I don't know the man, but this, this was reprehensible in my view.
- [36:21]
A
So the Soros thing is interesting to me because it's clear he's trying to make the point that it's partisan. Right. And that is legally relevant whether this map was drawn for partisan reasons. And his point is that, like, the lawsuit was brought for partisan reasons and therefore the map was drawn for partisan reasons. That's the problem. Is that why the litigation was brought, that it was partisan? Let's say I'm like, yep, 100%. And by the way, I believe that, like, yes, this lawsuit to undo the Texas redistricting maps 100% for partisan reasons. I do not believe for a second that these people actually are concerned about racial gerrymandering. They're concerned about the 2026 midterms.
- [37:09]
B
Okay, I think you can do both. You can be concerned about both.
- [37:13]
A
It's irrelevant.
- [37:14]
B
Yeah, but it's not legally relevant.
- [37:16]
A
Yeah. This isn't a vote dilution question of whether these people have standing or anything else. The only question is whether the Texas legislature redrew these districts for partisan reasons or for race based reasons. And so who's on the other side of the V? I take the point that, like, redistricting is always partisan. Every bit of it is partisan. The universe of redistricting is totally partisan. It actually weakens the substance of the argument. And I think that's your point, David. Or at least I guess it's my point. This reads like it was written in Anger. I think we've all written things in anger emails that perhaps we did send. And maybe, hopefully, at least I have learned I have the little delay thing on my Gmail so that I can undo. Send. Yeah, this feels like it could have benefited from an undue send. I actually think he's angry about the opinion going out without his dissent. I think that's totally true. And I think it set off this sort of cascade where he felt like he was at his friend's funeral. They weren't giving him time to write his dissent. They weren't showing him the respect as a member of this three judge panel to have that time and opportunity.
- [38:29]
B
And the third judge.
- [38:32]
A
Yeah. And all in the name of Purcell, which, like, you know, if he was going to have his dissent ready the next day, they should have waited. If he was going to have his dissent out two days later, they should have waited. And it sounds like communication really broke down here. And then we have this very angry opinion about. Doesn't reflect well on the judiciary.
- [38:52]
B
Oh, it's terrible. It's terrible. And can I make a meta point? Because as we were like getting ready for all of this, we were sending back and forth to each other on slack. Just a bunch of crazy other things that are happening. Just nutso other things. Like there's a woman just arrested because she hired somebody to fake a hate crime. Like sort of the Jussie Smollett of the right. There is stories of a congressman being taken off of a committee or taken off of being penalized because of a drinking incident down in Mexico. There is. I mean, we're just going through. And I keep thinking what we're seeing now. There's a saying, and I've used it before from my. Bear with me for half a second, Sarah. This is going to sound lame at first, but it's got a meaning to it. My son's high school coach used to have the saying, pressure bursts pipes. And what he meant was that in the basketball context, they did full court press all the time. Because eventually people, when there's sustained pressure, teams crack, people crack. And I feel like we're seeing that happen in real time sort of in the culture, in our institutions, in the judiciary, in politics, in online, the really sustained, hyper radicalized move, fast break things, press on all fronts at once. I think it's really. People are cracking and breaking in this environment. And I think it's very right that you highlighted, okay, you had the Purcell Principle. You have a rushed gerrymander. That's not normal. You have then Rushed litigation, because it's a rushed gerrymander and Purcell is looming. Then you have a rushed opinion writing process, all of on something of extremely high consequence. And all of this puts pressure on human beings that we are not really created to bear. We're being put under amount of stress. A lot of people in our system are being put under an amount of stress that really we're just not well suited for. And so people are cracking and crumbling. Otherwise good people are losing it. We're seeing other people who. We're seeing people kind of lose their. From all apparent, you know, from everything that's apparent. They're kind of losing their minds, losing their moorings. And I think that this relentless, relentless pressure is just so bad for us as human beings. And that's one reason, Sarah, where I've really started to rebel against this notion, that's very popular to say now. Such and such radicalized me. This thing radicalized me. Stop being radicalized. Like, that's the last thing we need right now. We need a lot less radicalization and we need a lot more calm. We need a lot more pressing the pause button. And we're hypocrites. I'm a hypocrite as I say that, because we're rushing to get a podcast out to cover these rushed events. So I understand, I understand that we're also part of this. But one of the things that has really impressed upon me is Yuval Levin, who, by the way, just listening to him talk about the Constitution is calming because he knows so much and he's just got such a great demeanor about it all. But he said something very interesting. He said the whole system, our whole system is designed for soul slow change, not fast change. Our system because we have this big, huge, diverse country with lots of competing interests and lots of competing constituencies, et cetera. It's really supposed to slow down and channel change through multiple institutions so that what then emerges is something that's a product of compromise, consensus as much as possible, and compromise where consensus is impossible. And we're just flipping all of that on its head and saying, now, change now, move now, do everything now, now, now. And often with extreme consequences. And Sarah, I just think that we can't handle it as human beings. And I think that what we're seeing right now is the fruit of that, that you're seeing people being pressed and beyond their emotional limits, reacting in ways that are highly inappropriate. And maybe years from now they might look back on with shame. But I hear you, I hear you. I'm susceptible to this, too. You should read my unsent tweets. I have some unsent tweets that, like, the mushroom cloud would be the size of, like, Ivy Mike, which I think is the biggest bomb we've ever detonated. But, you know, at the last minute, I'm like, nope, nope, no, no. There's something inside me that ticks and says no, and you'll regret it. But the more you push, push, push, people, the more likely we are to kind of fold under that pressure and yield to the worst angels of our nature. Well, the worst angels is a wrong term to yield to the devils and not the better angels. And that's what I feel like I see here, to be honest.
- [44:03]
A
Okay, so what happens next? As I said, this goes to the Supreme Court. It is not discretionary, but they will need to make an interim decision about what the maps will be for this filing deadline and frankly, for the 2026 election before they're going to be able to hear the merits of this case. Now, my prediction, you know, Judge Brown in his majority opinion, basically said the status quo maps are the 2021 maps. My prediction is that the Supreme Court will say, no, the status quo maps are actually the mid cycle 2025 redistricted maps. We've seen the court try to lean on sort of whatever the representative people decided last most recently. I predict there will be dissents from that interim decision. But this fight that has now become very public has made their job much harder. You know, again, we recorded this version of this earlier today, and I said that I thought the Supreme Court would actually reinstitute the 2025 maps for 2026 elections. I think Judge Smith's dissent made that harder in a lot of ways at least. They're gonna have to write something now, more likely. Even though, again, substantively, I think he's making all the right points. As he said, he's been on the bench for 37 years. He knows his stuff. This is a Reagan appointee. He has seen some stuff, but.
- [45:38]
B
It'S very. It's. He made it harder to affirm hit. Well, affirm is the wrong word. Made it harder to adopt his reasoning when he circles it around Soros and Newsom and all of this stuff, because it puts that very. And the irony here is he's accusing Judge Brown of being a policy guy, and yet he's doing all of this dot connecting about the politics of the opponents to this redistricting plan. That doesn't. That's not a good look. And, you know, I do think he made it marginally more difficult for the Supreme Court because the court doesn't want to be put in this position of saying, you know, backing this, backing this kind of rhetoric, backing these kinds of accusations, backing this language about Soros and Newsom that's so inappropriate, and he's just put the Supreme Court in a more difficult position.
- [46:36]
A
Okay, when we get back, speaking of, well, a lot of stuff going on in a short fuse, we're gonna talk about what the Department of Justice did to potentially lose the Comey case before they even really got into a courtroom. That grand jury indictment, well, may not be valid after all. We'll be right back. It's easy to see how payroll and HR tasks can quickly take over your time. I've seen how stressful it can be for small teams without the right tools, and I can only imagine how much tougher it is for bigger ones. Let's be real. No one launches a business because they're passionate about payroll or tax paperwork. You do it to build something meaningful and take care of your team. That's where Gusto makes all the difference, handling payroll, benefits, and compliance so you can stay focused on what truly growing your business and supporting your people. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly, and incredibly easy to use, so you can pay, hire onboard, and support your team from anywhere. What is really appealing about Gusto is how simple they make everything. Payroll taxes filed automatically, direct deposits. Easy. And if you want to offer benefits like health insurance, commuter benefits, or whatever, Gusto has options to fit almost any budget. And here's a big one. Unlimited payroll runs for one monthly price. No hidden fees, no surprises. You know exactly what you're paying for. And that peace of mind really matters when you're running a small business. Plus, it's quick and simple to switch to Gusto. Try gusto today@gusto.com advisory and get three months free when you run your first payroll. That's three months of free payroll@gusto.com advisory gusto.com advisory toast the holidays in a new way and raise a glass of Rumchata, a delicious creamy blend of horchata with rum. Enjoy it over ice or in your coffee. Rumchata. Your holiday cocktails just got sweeter. Tap or click the banner for more. Drink responsibly. Caribbean rum with real dairy, crack cream, natural and artificial flavors. Alcohol 13.75% by volume 27.5 proof. Copyright 2025 Agave Loco Brands, Pojoaquee, Wisconsin. All rights reserved. So good, so good, so good. New markdowns are on at your Nordstrom Rack store. Save even more. Up to 70% on dresses, tops, boots and handbags to give and get. Cause I always find something amazing. Just so many good brands.
- [49:12]
B
I get an extra 5% off with.
- [49:14]
A
My Nordstrom credit card. Total queen treatment. Join the Nordy Club at Nordstrom Rack to unlock our best deals. Big gifts, big perks. That's why you rack. So, David, On Wednesday, the district judge had a hearing with the Department of Justice and Comey's defense lawyers to talk about their motion on vindictive prosecution and also to review this order from the magistrate judge who was deciding what to recommend about whether the Comey defense team could see the 6e grand jury materials and transcript that would normally not be available. That would normally all be kept secret. The Comey team has said, we think this grand jury was improper. We think the indictments are invalid. We want to see these evidence so that we can make our case. It's a hard. I mean, vindictive prosecution is never granted.
- [50:12]
B
Oh, it's so hard to win that. So hard.
- [50:14]
A
Overcoming, you know, 6e grand jury material isn't like vindictive prosecution levels hard, but it's really, really hard. Nevertheless, leave it to this Department of Justice. Now, remember, they were under the gun for this because the statute of limitations was about to run. They had just a few hours left with the grand jury. So they're under time pressure. They've got to get it done before the end of the night. And a lot of corners got cut. And I mean, I don't want to give away the punchline, but they might have cut enough corners that their case is over.
- [50:49]
B
Yeah. Yeah. And you know, one thing just to be super clear about, they didn't have to do this at the last minute. They were being told by the president to do. They had already had. They had already had. The U.S. attorney for the. For Eastern District of Virginia has. Was left. He resigned. Slash was fired. Lindsey Halligan comes in, who has virtually no criminal experience for the whole purpose of indicting Comey and Letitia James. And she's brought in at the very last minute. And to fulfill the president's wishes, she had to hit the ground at a dead sprint. And let's just say, wow, my gosh, I've never seen anything quite like this. As I just wrote in my newsletter that came out tonight, I don't know if all of this that we are going to talk about is going to be fatal to the case. But I know if in my practice I had done any of this, it would have been immediately fatal to my employment. Like, just immediately. So buckle up.
- [51:49]
A
We got an order from the magistrate judge in this case that was. I mean, it was mind blowing. So he found 11 errors. I'm going to put these into four buckets for our purposes of problems with the grand jury indictment and sort of like, vindictive prosecution. David, I've talked to federal prosecutors about this. None of them could remember a time that an indictment was dismissed, like, for being invalid, if that makes sense. Like, you know, sometimes evidence gets suppressed, and then the, you know, Justice Department decides to dismiss the indictment, things like that. But, like, nothing like this has ever been granted. And to be clear, this order is not dismissing the indictment. This is about whether Comey's defense team can review the grand jury material that would normally be not reviewable by them. It would be secret under Rule 6e. But 6e has some exceptions. And of course, the purpose of 6e to keep that grand jury material secret isn't, if anything, to kind of protect the defendant. So the defendant asking for it. It's a hard motion to win, but that's, you know, less impossible. Okay, so here are the four buckets that the magistrate judge thought that the grand jury indictment and the prosecution's behavior was potentially invalidating. Okay, bucket number one. They were searching Daniel Richmond's phone. This was one of Comey's friends. Richmond had been under investigation. Now, what has that been? Six years ago, they'd gotten a warrant for his, you know, email, electronics and stuff. And so the first bucket is that you can't, like, get a warrant for a house and then come back five years later and say, oh, I forgot to search the bathroom. Let me in. Um, you have 14 days from when you get a search warrant to start executing it. Now, in fairness, from that point forward, it's like, were you diligent, you know? Cause sometimes things do take a long time to go through. But you can't just, like, take five years off and come back. It's also the case that, like, if you started going through a defendant's phone with a warrant, let's say, for drugs, and you find child pornography, a normal federal prosecutor would immediately put that phone down and go get a warrant for child pornography. They would go get a second warrant for the thing that they think they just found, just to be on the safe side. So you've got a couple problems here. You've got an old warrant, you've got it for totally different stuff. And it goes way beyond the scope of it. But, David, here's the problem with this and why I think this one. Actually, the magistrate's wrong on. Comey has no state. He has no expectation of privacy in Daniel Richmond's electronic devices. So I don't know why Comey can say that the warrant isn't valid. He doesn't have the standing to do that. And Richmond, of course, doesn't have the standing because he's not injured in any way, at least yet. What do you think of bucket number one?
- [54:58]
B
Let's back up a little bit. So he gets a search warrant in Trump term one. And the search warrant is. Trump term one is. Look. Is supposed to be a limited warrants or not look for anything and everything that you can find and collect it and pull it out. No, a search warrant is. You're looking for specific things. And your illustration that. Let's say I find something that's incriminating that I'm not investigating. You go back and get the second warrant. A search warrant is supposed to be limited and to seizing information that's potentially relevant to the crime under investigation. It's not a carte blanche to go in and grab everything. So what happened is they get a warrant in 2019 or 2020, they go in, they grab a bunch of information that seems to be way beyond the scope of the warrant. They don't do anything. The initial investigation doesn't pan out, but they don't return the information that they have. They have it all sitting there, and they had grabbed a bunch more than they were supposed to grab. And then they go back to just days before the statute of limitations is about to run out. They go back to this and start rummaging through the digital files again, looking for more stuff beyond the scope of the original warrant. And I like the way that Andy McCarthy at National Review described it. He wrote, the search warrants imposed temporal limits on which of Richmond's communications the FBI was permitted to search and substantive limits on what the FBI was permitted to seize, namely, communications relevant to crimes of stealing government property and illegally transmitting national defense information. According to Fitzpatrick, that's the magistrate, those limits were ignored. The government grabbed digital files indiscriminately. Now, I agree with you, Sarah, on. Okay, if he's going to file a motion to, say, suppress this material, that might. That might be something where I do wonder about the standing. The question is, can I get the grand jury the. What he's trying to get here is the grand jury material. And this is a situation that's different from suppression or dismissal. This is pointing out irregularities for which they're trying to get the information to. There are irregularities that are linked together in a chain of irregularities. And so I'm not quite sure under this analysis, how much can you pull out one link of the chain and just say, there's no direct standing here because they're all linked so closely together. And because this isn't a suppression motion, this isn't a dismissal motion, it's a I need more information motion. Essentially. It's like. It's like a discovery motion. And so I do agree with you on the point. If we were dealing with suppression in the criminal trial. That's an interesting question you raise. I do, and I would. I do wonder if there's a little bit difference that we're not dealing with a suppression motion. What we're dealing with is this motion to get more information. And the breadth of the scope, the scope of the search is directly relevant to another one of your buckets that I know is coming up, which is attorney client privilege bucket number two.
- [58:09]
A
Okay, so the Department of Justice is going to investigate attorneys or things related to attorneys, you know, pretty frequently, honestly. And what you need to do is make sure that you're not using attorney client privilege material. So how you do this is you set up a filter team. Basically, the first team to go through the material separates it into privileged and not privileged, and then the team that's actually going to investigate the crime only seize the material that the filter team put into the not privileged category. So bucket number two is that basically they had a bad filter team to the point of having no filter team and privileged material got into this process and tainted all of it and tainted the grand jury proceedings. Now, this is also kind of interesting. So he argues that, yes, there was a filter team for this Trump won investigation into Richmond's stuff, but as the magistrate points out, the privilege here didn't belong to Richmond. It belongs to the client. And so when you started going back through this stuff, you didn't have a second filter team, first of all, for Comey's privilege. And there's a Fourth Circuit decision that's like super duper on point called NRA search warrant. And the Fourth Circuit, now it's an outlier in this, but we are in the 4th Circuit for this case, so it's precedential. The 4th Circuit said, in fact, you may need to have the person who holds the privilege, like their attorney, be part of the filter team. That certainly didn't happen. And then there's this weird thing that happens where, remember, I mean, David, all of this is about them running out of time. All four buckets here are going to be about how they're running out of time on the statute of limitations. Like, literally hours left to go. One of the FBI agents flags. FBI Agent two flags for FBI Agent three. Hey, I think we're seeing privileged material here. FBI Agent two even calls the general counsel's office of the FBI and is like, I think we've got privileged material here. But again, they're running out of time. And FBI Agent 3 says, basically, okay, I won't use that, and then goes and testifies to the grand jury anyway. Now their argument is, yeah, but he didn't ever testify about potentially privileged material. And the magistrate's like, who cares? The reason that filter teams exist is so the testifying agent never sees the privileged material and can't be tainted by the privileged material. Even if he's not quoting from it, he is informed by it. It certainly, you know, when he's giving his opinion to the grand jury about whether a crime was committed here, he saw privileged material. Everything he did was tainted. From that point forward, you had to have a filter team Bad. Okay, David Bucket two.
- [61:10]
B
Yeah, this one is also a bit gobsmacking because here you have. It's. It's sort of. It's just very sort of Con Law 101 stuff here that this privilege belonged to Comey. And there was never really any indication when you read the magistrate opinion that there was ever a Comey specific taint team process that would have cleansed this procedure of the attorney client, you know, of the attorney client taint. And so that doesn't mean that attorney client information was used to secure the indictment. That was not necessarily the finding here that attorney client information was indispensable to the indictment. But once again, what we're dealing with here is a. Is a motion for disclosure so that the Comey team can find out if it was.
- [62:01]
A
How.
- [62:02]
B
How tainted was this process? And so, again, what we're talking about, again, we're not talking about dismissal. We haven't even gotten to suppression of evidence yet. But what we're talking about is, was there regular process? Was there regular process running up to and through this indictment? And the answer to that is very clearly no, there was absolutely not regular process, which, again, tilts in the favor of you're going to have to disclose information that you otherwise wouldn't have to disclose.
- [62:34]
A
This to me, is Comey's strongest 6e argument to your point, David? This is a motion about getting that grand jury material so the defense can review it. No question. This bucket to me, they need to see the transcript so that they can make an argument that privileged material tainted the grand jury's indictment. There's no other real way for them to be able to do that. However, the next two buckets much worse than buckets 1 and 2, in my opinion. Maybe not for 6e purposes, but for actually invalid indictment purposes.
- [63:08]
B
Yes, yes. And I'll also say the next things you're going to talk about for lawyers are the head smacking ones. Even more than what we talked about in points one and two. Points one and two. You know, we're walking through some, you know, some somewhat complicated procedures, et cetera. This one, the. The next two. Wowza. Whoa. Okay. Okay, go ahead.
- [63:33]
A
I think it's fair to say the first two are cutting corners. And frankly, the procedures that they didn't follow are prophylactic. There's nothing constitutional about a taint team. It is a prophylactic so that you don't violate someone's rights. You don't have to have one, though, constitutionally. But here we enter some constitutional grounds in bucket number three. Now, the actual quote of what Lindsey Halligan said to the grand jury is redacted, but let me tell you what the magistrate judge described it as. The prosecutor's statement is a fundamental and highly prejudicial misstatement of the law that suggests to the grand jury that Mr. Comey does not have a Fifth Amendment right not to testify at trial. The prosecutor's statement ignores the foundational rule of law that if Mr. Comey exercised his right not to testify, the jury could draw no negative inference from that decision. The prosecutor's statement may have reasonably set an expectation in the minds of the grand jurors that rather than the government bear the burden to prove Mr. Comey's guilt beyond a reasonable doubt at trial, the Burden shifts to Mr. Comey to explain away the government's evidence. In addition, the statement by the prosecutor was made in response to challenging questions from the grand jurors, the context of which suggests the grand jurors may have reasonably understood the prosecutor to mean that if she could not satisfactory satisfactorily answer their questions, then Mr. Comey would blank answer these questions at trial. So for statement number one, it is some to the effect of, if Mr. Comey wants to say he didn't do this, he can tell that jury why he didn't do it, but it's up to him to, you know, tell. Explain himself. It's up to him to explain himself would be something to the effect of what we think she said. But don't worry, David, because there's a second statement. The second statement clearly suggested to the grand jury that they did not have to rely only on the record before them to determine probable cause, but could be assured the government had more evidence, perhaps better evidence that would be presented at trial. Now, again, that statement's redacted, but it's going to be something like, obviously there's lots more I could show you about this. You know, we have binders and binders full of evidence, but, you know, I think you've got what you need or something to that effect. Now, it is worth mentioning, a prosecutor to the grand jury can say, I have more witnesses and I have more evidence. If you want to see them, let me know, I can bring them in to you. What you can't do is say you don't need to see them, don't worry about it, there's a lot more out there. And say that you have more evidence.
- [66:23]
B
Exactly. So if a grand jury in this back and forth, this is contesting whether the evidence you have meets probable cause, the probable cause standard, which is not, it's not the highest standard in the world. This is probable cause. This is grand jury. You're not making your case for proof beyond a reasonable doubt. You're making your case that you have probable cause to issue an indictment. And if the grand jury doesn't think that you have that probable cause, they would challenge you. And then you produce additional evidence. You don't say, well, yeah, but. And we've got more guys, we have more. And we're not showing it to you yet, but it's even better than you've seen. No, no, that's not the way it works. And then also this, this fifth Amendment issue, the thing that's so head scratching about this is that this is so elementary and so basic that there is not a burden shifting process in a criminal trial. This is not like a, you know, like the McDonnell Douglas standard in a employment discrimination case. I mean, what are we doing here? The government bears entirely the burden of proof to prove beyond a reasonable doubt. And it appears from context, again, we don't have the exact quote, but this is what it appears from context is that there was this back and forth between the prosecution and the grand jury where the grand jury is skeptical of this case and they challenge the prosecutor, Lindsey Halligan, and she says a couple of things that are just totally Totally, totally wrong. That. Well, those are tough questions that Comey's gonna have to answer. No. And also, well, if you trust us, we've got even more evidence. No, that's not how this goes. And you're exactly right, Sarah. This is the one that really, the first two that we talked about are potentially. You're talking about breaches in protocol that have real potential impact on the validity of the indictment. This has actual impact on the validity of the indictment. Now, would it have enough impact to dismiss the indictment? You know, one thing that I appreciated about Andy McCarthy's piece in National Review, which we should put in show notes, is that he says, we don't know. We don't have enough information about the evidence here to determine whether these mistakes and missteps are so material that they require dismissal of the indictment. But this is the kind of thing that it is directly impacting. It is. It is like, directly chipping at that indictment. And it's, as you said, this isn't corner cutting. This isn't like, we're in a rush, and so we're not going to, you know, dot all our I's and cross all our T's. This is just, hey, grand jury, I'm completely misleading you about the law. Like, I'm just not telling you the law correctly. I'm. I'm affirmatively. I'm affirmatively defi. You know, I'm. I'm telling you statements that are just affirmatively wrong about the law. And that. That's pretty remarkable, Sarah.
- [69:30]
A
It's almost like the person presenting to the grand jury has never done criminal law before. David. Almost.
- [69:37]
B
Almost. Now, was she part of the Trump criminal defense team? Because she was a civil litigator before she became a U.S. attorney, but I believe this was her first time in front of a grand jury. I, I don't know even how much total criminal experience she has now.
- [69:55]
A
David, Bucket number three, as you said, is the first of our buckets to cast direct shade on the. The validity, the potential validity of this indictment. But we don't know enough to say one way or the other. When we get back, bucket number four actually goes, is like it's a facially invalid indictment, if true. So when we get back, number four. Is the whole thing facially invalid? Okay, David. When they presented this to the grand jury, Lindsay Halligan gave the grand jury three charges. The grand jury votes. And remember, this is very important. They are running out of time. They are down to the last few hours of this grand jury. She gets a call, she leaves the grand jury room. She gets a call a couple hours later that the grand jury has no billed on charge number one, but they have voted to indict on charges two and three. What would normally happen then is that the four person would say sign the charging document and that would be that. But that's not what happened. If you've seen the charging document, it only has two charges on it. So what happened? For purely superficial reasons, meaning like PR reasons, they didn't want to put out an indictment that had a no bill on it. So they redrafted the indictment with only charges two and three, recasting them as charges one and two. The magistrate judge has reason to believe that that new indictment was never presented to the grand jury. Instead they simply gave that indictment to the foreperson, told the foreperson that the, you know, text on charges now one and two were identical to the previous charges two and three. They simply removed charge number one and the four persons signed that. But this grand jury, it appears, never took a vote on the charging document that the four persons signed. And David, this is sort of important here. There's no harmless error standard for this. Meaning, yeah, charges two and three are identical to charges one and two in the new charging document. But that's not how this works. The indictment has to be the one voted on by the grand jury. It appears that is not what happened. Therefore, this indictment isn't valid on its face because it was never voted on by the grand jury. That grand jury ran out of time. So you also can't reconvene this. Like, it's not harmless error. You can't say like, well, it's the same words. You can't get the grand jury back. There's no tolling of the statute of limitations for, for some error like this. So if bucket number four proves correct, this whole thing is gone.
- [72:52]
B
So that, so this is interesting that you say that because the, the, the, the process that you described because one of the things that the, the judge talks about is the timing here is it appears to be about what, seven minutes between indictment one and indictment two. And there's no indication that in that very short time that she went back, presented the two count indictment to the grand jury, got it appears that it all happened exactly like you said, which is they don't want the three count indictment out there. They only want the two count indictment out there. They go and interface with the head of the grand, the foreperson of the grand jury. They agree that the two counts that were in the new two count indictment were identical to the two counts in the three count indictment, it looks to.
- [73:37]
A
Me like the magistrate's order, indictment number one was never validly processed. They have to rely on indictment number two. And that one sure looks like it was never presented to the grand jury. But again, we'll see because from magistrate judges order, this will now go to the district judge who is an Article 3 judge. You know, with all the life tenure and stuff.
- [74:00]
B
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- [74:32]
A
A bit extravagant, especially these days. Eight different settings, adjustable intensity. Plus it's heated and it just feels so good. Yes, a massage chair might seem a.
- [74:45]
B
Bit extravagant, but when it can come with a car, suddenly it seems quite practical. The Volkswagen Tiguan, packed with premium features like available massaging front seats, it only feels extravagant.
- [75:02]
A
So, David, the district judge at the hearing, not surprisingly, was very focused on bucket four. And the Department of Justice said that no, they never presented that second indictment to the full grand jury. No decision was made. So we'll hold off on that. And look, you know, we've, we're not going to cover every single thing about the Jim Comey prosecution. As you guys know, we tend not to cover disputed facts, for instance, and stuff like that. But since these are questions of law, that is what we do. So we'll dip in and out of the Comey stuff. Before we go, David, we got so many interesting comments and questions and thoughts on the Would you be a Tory or would you be a patriot in 1775? I thought, though I would read one of them. When you guys were talking about how southerners in the 1860s virtually all supported the Confederacy. We're only talking about white Southerners, right? Which is barely more than 50% in Alabama and less than 50% in South Carolina. It's not clear the Confederacy was actually a popular cause in these states. And if you were randomly Transported back to 1860 South Carolina, you would most likely be dot, dot, dot, enslaved. This is an excellent point. Obviously accurate. My response was a little bit like, yeah, and in 1775, if we were doing this correctly, my only answer should have been, oh, I Would have been whatever my husband was, because that was my job as a wife. Now it is worth noting that women actually could vote in New Jersey, for instance, until 1807. Their vote was taken away in 1807. But yeah, for the most part. Lucy Knox, for instance, is just like on her husband's side. Abigail Adams, I guess, probably would have been on the patriot side. No matter what. She definitely had her own mind about things. There's one woman who's referenced several times in the Ken Burns American Revolution documentary where her whole family stays Tory, but her new husband is a patriot and she's with him. So it just becomes a less interesting question, I guess that way.
- [77:12]
B
Yeah, I appreciated the email because it's a very necessary corrective that, yeah, if everyone voted in the south to secede, there's no secession. Right. I mean, because it wasn't even unanimous amongst the white residents of the South. Far from it. But I was a. If you take everything about my life and just transport it back to the 19th century, I would have been born a white dude in deep South Alabama. I mean, so that. That the odds are. I'm self aware enough to know that the odds are pretty good that I would have found a way to justify, you know, the. I would have found a way to justify. I mean, that's just there it was very few and far between people. White dudes from South Alabama who did not participate and did not wear gray. Right.
- [77:58]
A
But it's really hard for someone like me where, like I'm descended from Russian, you know, Belarusian Jews. Like, I don't know how you even sort of translate that into it. We had another one who. Person who wrote in and said nearly, you know, 90% of the Jews in the colonies were with the Patriot cause. And I'm like, yeah, but you had to be such a different Jew to be in America in 1775. That looks nothing like the wave of Russian Jews that are gonna come later. That's why I think you have to just say I'm transporting myself and my brain now and not my demographics. Because then you're controlled by things that aren't you, by quirks of history and otherwise.
- [78:42]
B
Exactly. Like I hope I would have been the kind of person like a George Thomas that we talked about on Tuesday, the Virginia officer who stayed with the Union. I hope I would have been like that. But I'm. Gosh, I mean, that would be. I think that if I was to confidently say now in the year of our Lord 2025, I would have resisted. I mean, you could Just say you're being a little arrogant. I think the. The Tory patriot con context is more interesting because as we said on Tuesday, that it really is, we were kind of split all the way up and down the colonies. It wasn't some sort of extreme geographic polarization like we had in the Civil War. And so that's why it's much more interesting. And I also, the more I've thought about it, I read this wonderful book about the French and Indian War known as the Seven Years War in Europe. It's the war that preceded the Revolution. And it really showed how much the colonists were already departing from the culture of the mother country, even in the 1740s and the 1750s. And so when British regulars came over to fight the French in the war, they encountered already a massive culture shock. And there was a massive culture conflict between the British officers and the colonial soldiers. And you see this in the wonderful movie Last of the Mohicans, which, like, it's just an incredible movie and it's got a lot of very accurate historical elements, including the very high handedness of the British officers in dealing with the colonial militia. And so it is very interesting. I think if I had been a person who had encountered that high handedness, if I had encountered that culture clash, it would have alienated me. But at the same time, that default level of like patriotism and loyalty without encountering the brutality or the arrogance probably would have tilted me Tory, at least for a while. It's a wild thing to think about.
- [80:42]
A
Fun fact from the documentary. You know all the Hessians that were hired, the German mercenaries who were brought over to fight the war, 25% never left. They just stayed and became Americans. They chose to become citizens of the country they tried to prevent from coming into existence. And then a whole other big percentage went back to Germany, got their families and came back to America.
- [81:07]
B
That's amazing. What I mean. Yeah, that's fascinating. That's really. I can't wait to start. I still haven't started watching. I've just been so busy.
- [81:16]
A
You're gonna love it.
- [81:17]
B
I was gonna watch BE now, but now we're recording a podcast, so I can't.
- [81:22]
A
Next time on Advisory Opinions, we've got a couple cert grants I thought we should dive into before the oral argument. So talk to you next week.