Ep. 251: Free speech and ‘the executive power’ with Advisory Opinions

Summary

So to Speak: The Free Speech Podcast – Episode 251

Main Theme
Date: September 4, 2025
Host: Nico Perrino (FIRE)
Guests: Sarah Isgur and David French (Hosts of Advisory Opinions)

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Overview

In this episode, Nico Perrino sits down with Sarah Isgur and David French of the Advisory Opinions podcast to dissect the state of the American presidency’s power, its impact on free speech, and where the conservative legal movement finds itself amid today’s shifting political landscape. The conversation covers the evolution of executive authority, recent legal and constitutional battles (particularly concerning free expression), and the repercussions for American democracy as both law and culture struggle to catch up with unprecedented presidential reach.

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Key Discussion Points & Insights

1. The Rise and Consequences of Executive Power

• Pendulum Swinging Toward Stronger Presidency:

  • Presidents have gathered increasing executive power over recent decades, moving from Obama’s “pen and phone” approach, through Trump’s surge in executive orders and Biden’s stretch for authority on issues like the eviction moratorium and student loan forgiveness.

    “I don't see how the pendulum can swing back with the runaway train we're on where it's Obama's pen and phone. It's Trump with more executive orders ... It's Biden with, you know, saying he does not have the power to do an eviction moratorium, student loan, debt forgiveness, the vaccine mandate…” — Sarah Isgur [00:00]

• Implications for Free Speech

  • A powerful presidency directly threatens free expression. When one branch holds outsized power, historical precedent (Wilson, FDR, Nixon) shows speech is often the first casualty.

    "All of these problems we're talking about with the presidency are upstream then of problems with speech." — Sarah Isgur [43:30]

2. Origins and Approach of Advisory Opinions

• Backstory

  • French and Isgur didn’t know each other well at first, but saw a gap for deep legal analysis focusing not just on the Supreme Court but on circuit courts and the judiciary's broad influence.

    "One of the value adds that we bring...is we're not just SCOTUS. The average American doesn't understand how much the circuit courts of appeals...really do shape our lives." — David French [05:51]

• Preparation Philosophy

  • The show seeks to educate about the judiciary as the 'last branch standing’, critical as legislative and executive branches have strayed from their constitutional moorings.

3. TikTok, National Security & the First Amendment

• Landmark Case Discussion

  • FIRE’s view: The TikTok ban is the first outright ban of a communications platform by the federal government—a significant First Amendment precedent.

    "This is the first time in American history...the federal government has outright banned a communications platform...that’s a pretty big hole in the First Amendment." — Nico Perrino [10:42]

• National Security Tensions

  • French underscores that modern technology's data collection (location, purchase history) raises qualitatively different national security questions than Cold War-era media bans.

    "You were literally trackable as an individual, which is obvious." — David French [11:43]

4. The Dangers of Partisan Prosecution and the 'Three Felonies a Day' Era

• Expansion of Federal Crimes and Targeted Enforcement

  • When executive power and prosecutorial discretion combine with a bloated federal criminal code, anyone can be targeted for political reasons ("Show me the man, I'll show you the crime").

    “I don't think anyone at this point can argue that there aren't too many federal crimes." — Sarah Isgur [55:38]

• Rule of Law Concerns

  • When partisan priorities dictate prosecution, foundational First Amendment and due process protections come under threat.

5. Checks, Balances, and the Weakening of Constitutional Guardrails

• Failing Firewalls: Electoral College & Impeachment

  • Both Intended checks on executive overreach (as imagined by the constitutional framers) are essentially gone with the emergence of inflexible partisanship.

    "So two of the prime checks on executive abuse are just dead letters right now. And so where does that leave us? That leaves us with a president, with us having to depend on the character of the president more than the Founders intended. And I think that's a problem." — David French [43:21]

• The Court’s Resurgent Role

  • Supreme Court (and lower courts) now act as belated brakes on executive/administrative overreach, but only within cases brought before them, raising questions about long-term efficacy and legitimacy.

6. The Conservative Legal Movement: Crossroads and Contradictions

• From Classical Liberalism to Common Good Constitutionalism

  • The Federalist Society and the modern conservative legal movement once championed process and neutrality (textualism, originalism, procedural fairness).
  • The shift to populist, outcomes-driven legal projects (“common good constitutionalism”) threatens that legacy, as movement conservatives increasingly clamor for results—regardless of process.

    “It is much easier to be in dissent...Now when you're winning, they expect to win everything.” — Sarah Isgur [64:41] “Whatever is left of the conservative political project is now completely a wholly owned subsidiary of MAGA. Not the case in law.” — David French [61:29]

• Divided Law Students & Institutional Instability

  • Conservative law students, themselves a minority, are now splintered, with some enticed by new reactionary and populist tendencies, though the anticipated post-Dobbs shift has not fully materialized.

7. Advice for the Future and the Role of Civic Culture

• Process Over Outcomes

  "I'm a process girl living in an outcomes world.” — Sarah Isgur [71:12]

  • The hosts agree: preservation of the constitutional process rather than pursuing favorable outcomes is the only reliable defense against abuses—regardless of which party, president, or ideology dominates.

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Notable Quotes & Memorable Moments

• On Donor Pressure and Nonpartisanship

  “If you are a nonprofit in these social conservative circles, taking on Donald Trump or taking on his administration, good luck selling that to your donors.” — David French [70:44]

• On the Temptation of Monarchy

  “If you have a reading of a vague constitutional provision that enhances and counters the small r republican ethos of the Constitution, that's when we should be looking at it with some serious side eye." — David French [35:08]

• On Speech and Tyranny

  "Free speech is the dread of tyrants. It is the first thing that they wish to extinguish." — David French quoting Frederick Douglass [45:29]

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Timestamps for Major Segments

• 00:00 — Opening: The Ever-Growing Power of the Presidency
• 02:13 — Advisory Opinions: Origin Story & Podcast Philosophy
• 05:51 — Circuit Courts, Judicial Power, and Value Added
• 07:42 — Isgur’s Book: "Last Branch Standing"
• 10:23 — The TikTok Ban, National Security, and First Amendment
• 12:43 — Donor Influence & Nonpartisan Free Speech Advocacy
• 16:03 — Consequences of Executive Power for Free Speech
• 22:15 — The Supreme Court and the Administrative State
• 33:33 — Originalism vs. Expansionist Readings of Article II
• 43:30 — Executive Power’s Ripple Effect on Free Speech
• 50:25 — The Scale of Federal Power: Prosecution, Corruption, and Speech
• 56:21 — Why Good People Shy Away from Politics and Judiciary Today
• 59:59 — The Conservative Legal Movement: Shifts and Schisms
• 64:41 — "Process" vs. "Outcomes" in Law and Society
• 71:12 — Final Reflections: The Promise of Principles Over Partisanship

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Tone & Language

• Informal, sharp, wry humor balanced with substantive legal analysis
• Both Isgur and French blend pop culture and history with deep-dive constitutional discussion
• Discussion flows naturally, with ample back-and-forth, including personal anecdotes and even bourbon jokes

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Takeaways for Listeners

• The presidency’s aggrandizement threatens the balance of American government and, by extension, free speech.
• Both parties have contributed to the runaway train of executive power, and the pivot away from process-based governance imperils both legal and political stability.
• The conservative legal movement stands at a crossroads: whether to recommit to process and principle, or yield to the pressures of Trump-era populism and outcome-driven activism.
• Free speech advocates must stay vigilant: as government power expands—no matter who wields it—the temptation to control the flow of information and silence dissent grows stronger than ever.

Transcript

[Sarah Isgur]

I don't see how the pendulum can swing back with the runaway train. We're on where it's Obama's pen and phone. It's Trump with more executive orders and more injunctions than any president in history. It's Biden with, you know, saying he does not have the power to do an eviction moratorium, student loan, debt forgiveness, the vaccine mandate. He tried to create a constitutional amendment by tweet.

[Nico Perino]

Somewhere I read of the freedom of speech. You're listening to so to Speak, the free speech podcast, brought to you by fire, the foundation for individual rights and expression. All right, folks, welcome back to so to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am, as always, your host, Nico Perino. Today we are joined by Sarah Isger, who is the host of the Dispatch's popular legal podcast Advisory Opinions, as well as her permanent guest on that show, David French. We're going to talk about our current media moment, the Trump administration, and the state of the modern conservative legal movement. Before we do, though, I have to ask. I think I read somewhere that your guys podcast is the top legal podcast in the world. Is that true? What's the secret sauce?

[David French]

I don't know. The numbers are very. So this is something that was told to us by somebody else that was a guest who they had done the research. So I don't know. I do know that depending, especially when the Supreme Court's releasing opinions, we're often right up there in the top political podcasts, which is a lot of fun to see, especially since we're so nerdy.

[Nico Perino]

Do you guys not plan vacations for the end of the Supreme Court term?

[Sarah Isgur]

Oh, yeah, absolutely. June is off limits. You can be somewhere else. We record remotely. Okay, but you have to be available on call.

[David French]

Yeah, absolutely.

[Sarah Isgur]

But it's getting worse. I mean, it's funny. Cause I think we're echoing the justices themselves. You know, they used to have the summers off.

[Nico Perino]

Yeah, not anymore.

[Sarah Isgur]

And not anymore. And like, kind of neither do we anymore. Because at least they know when their interim or emergency docket decisions are gonna come down. We don't.

[David French]

Yeah.

[Nico Perino]

So did you guys know each other before you started this podcast? I thought I heard somewhere that you didn't. What's the origin story of Advisory Opinions?

[Sarah Isgur]

Oh, I think David should have to tell this.

[David French]

So the origin story begins in the distant mists of the distant past, in the year 2016, when Sarah, it Still feels weird to say this out loud.

[Sarah Isgur]

I know.

[David French]

Okay.

[Sarah Isgur]

That's why you do it.

[Nico Perino]

This is uncensored.

[David French]

I almost ran for president, so that feels very.

[Sarah Isgur]

Just to clarify, of what the United States. Okay, okay.

[David French]

Not the local Kiwanis club where I would have been an underdog there too, but the President of the United. So the story is that, well, that's.

[Nico Perino]

The natural next step after becoming president of fire.

[David French]

Oh yeah. I mean I'm just well trodden path. I mean, no question. So after Mitt Romney had said no to a third party run and other luminaries had said no or, you know, never even really considered it or whatever, Bill Kristol, who was at that time with the Weekly Standard and was trying to organize a third party run, I went to dinner with him and he said our profile now that like the mega names like Mitt Romney had said no. Our profile is, look, if you just run a random congressman, nobody cares. It's an anti establishment time. They don't want random congressmen. But what we think is a from the heartland, non politician, post 911 veteran would be the right profile of a person. And I was like, that makes a lot of sense. Yeah, totally get that. Okay, well you're from the heartland, From Tennessee, post 911 veteran, non politician, why not you? And this is going to sound insane, but I did briefly entertain it. And at the tail end of entertaining it, we brought in some folks who would be on a part of a campaign team if it ever got off the ground. And Sarah had just finished running Carly Fiorina's campaign and in comes Sarah. And I met Sarah for the first time, really liked Sarah. And then in early 20 or in mid-2019, when I came to the Dispatch, Steve and Jonas said, we're bringing on Sarah Isger. And I was like, fantastic. I think we'd make a great podcast. Partners. I'm not. I just met her, like, had met her just a few minutes really, but I had. I think we'll be. I think we'd be a good pod. I think we could make a good podcast.

[Nico Perino]

And how many years now is it?

[David French]

Six years?

[Nico Perino]

Yeah, six years. Wow. What's your process like?

[Sarah Isgur]

Oh, there's supposed to be a process.

[Nico Perino]

Well, you've done the research. We listen to the podcast. In my household, your voice voices echo throughout my house. I'm the one who works in the legal world, but my wife is the one who turned me on to the podcast.

[Sarah Isgur]

That's right, we've heard that before, that like the spouses of lawyers enjoy the pod, I think, more than the lawyers do. So we have like, a running conversation over Slack or text or whatever, you know, where we'll put things in during the week of, like, sort of things that might be of interest to us. And then, you know, maybe 24 hours beforehand, we'll set kind of an order, or at least the. The topics. Maybe not the order of topics, but, you know, depending on what season we're in with the Supreme Court or how many circuit cases we're covering, just by, like, the number of opinions and briefs and the oral arguments and everything, we're probably. I mean, we're putting in many, many hours.

[Nico Perino]

It's always more hours than you think it will be.

[David French]

Far more.

[Nico Perino]

Yes.

[David French]

Yeah. I mean, because you have to read all of these circuit court opinions. Because I think one of the value adds that we bring to sort of the podcasting world is we're not just scotus that I don't think the average American understands how much the circuit courts of appeals and in some instances district court decisions, but especially circuit court decisions, really do shape our lives, and especially in the lives in the circuits where you live. And so I feel like a big value add is that we've brought a bunch more of the legal world and the judiciary to the public eye. We're going to be reading from circuit court opinions. We have. You know, we have talked about specific circuit court justice or judges so much that our regular listeners know when to.

[Nico Perino]

Hear, okay, they become celebrities.

[David French]

We've got Newsom concurring with himself again, like, everyone's waiting for that moment. No, I do think that it is. We were a little bit ahead of the curve in one way. I think one key to our success is we're a little bit at the head of the curve in the sense that all of a sudden, a lot of media realized, wait, the legislature is not where things are happening. Things are happening in the judiciary. That's the functioning branch of government. That's where the action is. That's where real decisions are being made. And we were there, like, we were already there covering it, Right. When sort of this demand started to grow for more legal coverage. And so I think we've really. Right time, right place kind of thing.

[Nico Perino]

And. Are you trying to write a book, too, amidst this all?

[Sarah Isgur]

Yes. It'll be called Last Branch Standing. It's not coming out until next year, but to echo David's point, it's the last branch standing. Right. The thesis is it's the only branch of government that the founders would recognize right now.

[David French]

Yeah.

[Nico Perino]

And what's the book about necessarily?

[Sarah Isgur]

Oh, I mean, to be honest, it's sort of.

[Nico Perino]

I think I read something online about how it's an insider's look at the Supreme Court.

[Sarah Isgur]

It's sort of. Yeah, it's. It's ao the book. No, it walks through. There's like little bios of each of the justices that will have, you know, insider fun stuff. What they're eating for lunch and what.

[Nico Perino]

They think of the TikTok case, perhaps. Do you have that countdown clock going in your head? Where are we at now?

[Sarah Isgur]

Yeah, we're at about 220 days.

[David French]

Too many days. Too many days. Yeah. This is one of the, you know, I can't believe you went there. One of the few areas where at least me and I and FIRE disagree is.

[Nico Perino]

And age verification.

[David French]

Age verification. They're two big cases.

[Sarah Isgur]

Yeah, but this is, you know, David and I were talking last night. David, you know, comes, we have a slumber party. Usually the night before we do something in person together. So he stays at the house and hangs out with my 5 year old who calls him great grandpa Steve.

[David French]

Great Grandpa Steve?

[Sarah Isgur]

Yeah.

[Nico Perino]

Where's Steve come from?

[Sarah Isgur]

We have no idea.

[David French]

No clue. But we know where great grandpa comes from. It's Sarah's relentless propaganda that I'm old.

[Nico Perino]

I have a six week old, a two year old and a four year old. So I know that words just come out. They don't always make sense.

[David French]

Words come out.

[Sarah Isgur]

Yeah. So we were hanging out last night and what we were talking about was how incredible firework fire's work has become and how important it's become and yada, yada, all the nice things. Part of, I think why we know that FIRE is staying true to principle and true to its mission when so many other organizations have had mission creep to like follow where the donors are going or follow where the social media is going or whatever else.

[Nico Perino]

Yeah. If we were following where the donors were going, we'd be doing something entirely different.

[David French]

Oh, I know that from my early FIRE days for sure.

[Sarah Isgur]

That's right. Because we know where several other organizations have gone. And part of it is that y', all, like, we do disagree on a few things, not many, but we're not totally aligned with you guys on every case. And I think it speaks to just how independent you're making some of these decisions. Now, we could have a really fun debate over why we think you're wrong about some of those cases.

[Nico Perino]

We could.

[Sarah Isgur]

Because what I think is fun about the ones we disagree on is that there's a First Amendment interest on both sides. Now, the TikTok case is a little different for the national security case, but like age verification or some of the social media cases about whose First Amendment right is it? The person who's, like, getting to post on social media or the social media companies and things like that. I find those arguments almost more fun.

[Nico Perino]

Well, the thing that's most frustrating about this TikTok case is I saw our legal team working on the brief over Christmas on that. And what was it for? Nothing, apparently.

[David French]

I know. Well, you lost and you won.

[Nico Perino]

Well, yeah.

[David French]

So you lost in the Supreme Court.

[Nico Perino]

Case, but the precedent's still there.

[David French]

The precedent is there.

[Nico Perino]

I mean, the thing we always said is that this is the first time in American history, I think, actually Erwin Chemerinsky said this first, that the federal government has outright banned a communications platform. I mean, that's a pretty big hole in the First Amendment for nothing.

[David French]

Well, yeah, I mean, I don't think it's a hole in the First Amendment because it's the People's Republic of China's.

[Nico Perino]

But that was that. But that was the first time, actually, I believe, that the Supreme Court ever struck down a federal speech restriction on First Amendment grounds was 1965 in the Lamont v. Postmaster General case, which was banning a. Or placing a burden or restriction on receiving what was at the Peking Review from China. So, I mean, the first time the Supreme Court ever strikes down a federal speech restriction is. Relates to a media outlet from China.

[David French]

Yeah. Yeah. That is interesting. That is interesting. Yeah. No, I mean, trust me, I get it.

[Nico Perino]

I get the data security stuff. And I wish they would have focused their rationale more on that.

[David French]

Yeah.

[Nico Perino]

Rather than some of the content concerns that you saw a lot in the record. But nevertheless, here we are.

[David French]

That's what I was going to say. The Peking Review, or whatever it was, was not getting. It's a condition of me getting the Peking Review. I was not providing my physical location to the Peking Review, not providing a history of my purchasing, not provide, like, all of the information that the. That TikTok accumulates, which is, you know, one of the reasons why service members for a long time were told no TikTok.

[Nico Perino]

Sure.

[David French]

Because you were literally trackable as an individual, which is obvious. National security concerns in those kinds of situations. But yeah, back to the sort of the FIRE picture, broadly what you say about donors. So as a former president of fire, I was frontline talking to donors all the time. And what was. So we had a. From the inception, we had a donor Education issue. Because sometimes they would come in because they saw you taking on their ideological enemy. So we're defending free speech for a conservative group or a Christian group, and a conservative or a Christian donor's like, here's my check.

[Nico Perino]

Yes, please.

[David French]

Great work. Then, you know, they're on the mailing list, and then all of a sudden, they saw, you know, back to early go to early fire lore. Just to show you how there's nothing new under the sun, one of the first things that fire really got in people's crosshairs over was the Sami Al Aryan case. And Sami Al Arian was a guy who had ties to. Gosh, was it Hamas? I can't remember.

[Nico Perino]

I don't know if it was Hamas, but it was one of those anti Israel terrorist organizations.

[David French]

Yeah, he was. He had, like, legitimate ties to, you know, foreign organizations, but he was being punished for his speech. This was post 9 11. Immediately post 9 11. And I remember we stood, and Greg could tell this story chapter and verse.

[Nico Perino]

I think he has.

[David French]

Yeah. And stood squarely. And I remember being on the phone, even in 0405 when I was president, on the phone with donors. Tell me about the Sami Al Aryan. And then the thing that we dealt with when I was president was Ward Churchill. This was the professor who compared the people who died in the World Trade center to little Adolf Eichmanns. And so the cry to censor him was overwhelming. And the donor issue, but interesting to fire. Laura, you may not know this. That was when. And that issue is when we decided we're not going to do the thing that a lot of people do, which is I hate his speech, but I'm defending his right to speak. Because then we realized that we'd be constantly be told and asked, we'll condemn the speech before you defend it. Right. Yeah. And so we just put full. We put both feet on the brakes on the. Well, he was horrible. But we just left it with the only. We just left it with the First Amendment.

[Nico Perino]

Well, and you kind of have to if you're gonna do nonpartisan free speech work, because otherwise you are taking a position on the content of the speech that's separate from their free expression rights. And this is something David Goldberger, who was the lead attorney in the Skokie case for the ACLU in the 1970s, he disagrees with me on. He thought it was essential for him to bring people along to the ACLU's position by first repudiating the speakers that he was representing. Now, the ACLU is a little bit different, because they have 19 different issue areas. Fire has one. I mean, I don't think you could find fire staff consensus on many issues. Politically, maybe some of these more controversial issues you could, but we just can't do that. And so we don't.

[David French]

Oh, yeah.

[Nico Perino]

And it's dissatisfying to a lot of people who want to see that you're on their team even as you defend their First Amendment rights.

[David French]

The fire staff, when I was there, was probably 50, 50 split, red, blue.

[Nico Perino]

Yeah, I'd say we're probably about that now.

[David French]

So you could not do that. You could not say, well, this is horrible, but. Because then you're ticking off half your staff. Right? Yeah, sure. Not the word Churchill, but. But, you know, on a lot of. So I thought that was a very sound decision, you know, way back then. And I've. In my columnist role, I'm a little bit more free to say, well, I don't really hate. I really hate that, but it should be protected. And I think in the columnist role, that can be very important. In the impact litigation advocacy role, it is. It's different. I think it's different.

[Nico Perino]

Well, to put a bow on the TikTok thing, Sarah, how do you think that's all going to end up?

[Sarah Isgur]

I mean, here he's on.

[Nico Perino]

He's on the platform now. President Trump, right?

[Sarah Isgur]

That's right. They've opened a White House TikTok account. It feels to me like nobody cares and fewer and fewer people care per day. You know, I think that if the White House wants to win this issue overall, they're going to have to have TikTok sold before the Trump administration runs out, or else the next president will get asked whether they're going to enforce the TikTok ban. And at some point, we end up in a. I mean, not to be super catastrophizing about this, but we have a law that was signed by, passed by both houses of Congress, signed by a president. The Supreme Court upheld it as constitutional crickets. I mean, for so many reasons, we're in interesting constitutional territory these days. But I think a lot of people would be surprised to hear that the president has that power or that the next president has that power with laws they may like. So the best thing that could happen at this point is that the president somehow pressures TikTok to get sold, which he keeps publicly saying it's about to happen or whatever, and that at least they can say this was for a limited period of time. We're, I think, past any definition of limited. My Definitions. But, you know, it was temporary. I just, like, what are we going to say four years from now? It was still temporary.

[Nico Perino]

How would you compel this even. Right. What is the Constitution? What is the standing here? I mean, to faithfully execute the laws as the Constitution requires, would that.

[Sarah Isgur]

Well, you need a cause of action. You need someone with standing. And the problem right now that again, the Trump administration has done so brilliantly, is really discouraged people from picking fights with them, unless it's existential to your company, because they do have quite a few levers of power that they have no problem pulling. And again, I don't like, even if you love some of the stuff that they're doing, the power that you are now agreeing by Norm, a president has is going to get used by President Aoc or President Gavin Newsom. And that seems crazy to me.

[David French]

You know, I've come to the conclusion that when you talk about this with people now, there is. The response is not. Is no longer, oh, okay, well, if this is a power that my political opponent could wield against me, maybe I shouldn't have the power. And it's become, well, I just have to win all the time then. And this is what is making sort of the rhetoric around our election so superheated, is that because if you have a situation where every four years you have a president who's accumulated more power, peacetime president, who's accumulated more power than maybe any president, peacetime president before. I'm not comparing Trump to, say, Lincoln at the height of his powers in the Civil War, FDR in World War II. But as far as peacetime presidents, these guys are grabbing more power every four years. And that is raising the stakes of every presidential election, because every election, you're electing a more powerful person, and that is breaking our brains, it's breaking our country. And so it's creating this atmosphere of hysterics around every presidential election, because you're going to have a lot of MAGA people looking at all of that power that they've exercised, and they're going to look at whoever the Democratic nominee is, and it's going to dawn on them, and they're going to realize and understand, and their reaction is not going to be, let's claw back presidential powers. It's going to be, we have to win or all is lost. And that's what's one of the things that's fueling this ever escalating rhetorical war that we're in, where every election, the stakes are existential and we can kind of Laugh at that and say, okay, every election is not the most important of our lifetime. True. But if every election we're electing a more powerful person than the one who existed four years ago, that does raise the stakes, and it's creating this huge problem.

[Sarah Isgur]

Add into that the Court and the role of the Court and the proper role of the Court, the realistic role of the Court. We had a time at America's founding, for instance, where the states were supposed to be the main drivers of law. Post Civil War, it becomes the federal government. Post FDR, it becomes the president. And even in the 90s, if you remember, like post Wickard v. Filburn, right. The Commerce Clause covers everything that Congress wants to do. You have the Supreme Court in two cases in the 90s, at least, sort of trying to, like, tap the brakes on Commerce Clause power for Congress. This idea that maybe the federal government has grown too large, too powerful, Congress having sort of a blank checkbook to write any laws that they want. But as soon as they have those two cases, you never see another Commerce Clause case again. Not really. I mean, you can say the Obamacare case where they say that that's not in Congress's Commerce Clause powers, but it is in their taxing powers. Like, maybe that's a Commerce Clause case, maybe it's not. But almost as soon as those cases happen, where you start to see the Court put some limits on Congress is when you see Congress stop being a player on the map at all. I don't think those two are related. I think that the Court came in basically too late on Commerce Clause stuff. And so all of a sudden, Congress stops doing anything. And so the President basically fills in like, I had knee surgery, I'm sure many people have, and my leg totally atrophied on the one side, and then on the other side, that leg had to get stronger. So the President at first, at least, feels like it was compensation, but now we're into something else entirely. It's not just compensation. And as a result, you see the Supreme Court, I think now in kind of a delayed fashion. But that's the Court's role.

[Nico Perino]

Right. This is where I was going next, to be delayed.

[Sarah Isgur]

They only can take the cases that are brought to them, yada yada. But you see the Court suddenly now, I think, reigning in presidential power in almost every chance that they get vis a vis the other branches or the states. So when it comes to the administrative state, whether they have court power, reading statutes, the way, you know, to define their own power, all of that, the Presidency is losing. Within the presidency, the president is winning. But as a friend of the POD conservative lawyer once said to me, they're trying to make the president a more accountable president and a less accountable legislator. Right?

[David French]

Yeah, yeah, that's a great way of putting it. And I would say one way to think of the court is the court is majority originalist now. And so where a lot of people are conflating right and left with originalist or right with originalist, they're not the same thing. The Trump right, the Trump MAGA populist, right. There's some Venn diagram overlap with originalism, but it's not complete in any way, shape or form. So where you do have some of the Venn diagram overlap, such as where the MAGA legal movement is putting forward a version of the unified executive theory, unitary executive theory, that meshes with traditional originalism, scholar originalist scholarship, they're winning. They're winning those cases where they're putting forward positions that conflict. They're obviously, they're losing those and losing again and again. And so, you know, in the first Trump term, he had the worst record at the Supreme Court of any modern president.

[Sarah Isgur]

The first president ever to be under 50% for wins. I mean, it's wild, right?

[David French]

And so anybody's gonna look at the Supreme Court and say they rubber stamped Trump. But because people are not familiar with the underlying legal theories and arguments, whenever they see sort of a unitary executive case winning, which a way to describe unitary executive is the president is the executive branch. So that means that anytime the Congress is trying to limit the President's authority over the executive branch, including its agencies.

[Nico Perino]

And here we're having that dispute over the Federal Reserve and where the FCC and all these other agencies that were set up to be semi independent, right?

[David French]

So the Supreme Court is essentially moving in the direction of saying, okay, if you're talking about a quote, unquote independent and the Fed's different, as the Supreme Court has said, the Fed's different.

[Nico Perino]

We'll see.

[David French]

We'll see. But the, the, if you're talking about a quote unquote independent agency, that is not a thing that the Constitution contemplates. There's an article, where did the power come from? Where does it come from?

[Nico Perino]

Well, that's, that's the thing I never understood about the Corporation for Public Broadcasting, right? Is it, was it like a private independent corporation set up by Congress but receives appropriations from Congress? It just didn't, didn't really make any sense to me. Now it doesn't exist, right I guess they're holding it.

[David French]

Yeah. TikTok lives and PBS die. I mean, wow. Yeah, it's.

[Nico Perino]

I mean, there were interesting First Amendment questions on that whole kerfuffle as well.

[Sarah Isgur]

But there's a spectrum here. So I think the easiest example is the President caused some waves recently when he said he was the chief law enforcement officer in the country. And people were like, well, no, that's the Attorney General. Where did the Attorney General get those powers from? Oh, the President. Therefore, the President must originally be the chief law enforcement officer of the country, and then he delegates that power down to the Attorney General, and the Attorney General can then delegate that power down to US Attorneys, for instance, who are also officers of the United States, as contemplated by the Constitution. It's one of the few positions that existed there at the founding, the US Marshal, et cetera. And so all of that power, though, to, for instance, go arrest someone for violating a federal law still derives from the power originally delegated by the President of the United States. Therefore, it was contained within the office. Therefore, the person who holds that office during their tenure. Where it gets then hard is again in this post, FDR time, where Congress is saying, we now create by statute a Federal Communications Commission or a securities and Exchange Commission, and by creating this and appropriating money to it, we put all these limitations on it for cause removal and things like that. And this is like the Humphreys executor problem, where the original creation of the Federal Trade Commission, at least according to the Supreme Court, said, well, it didn't exercise executive power, it was doing something else. So it was okay. Congress created it that way and put these strings basically on its creation. But the Supreme Court, in a case called Celia Law, even though no one else pronounces it that way, and I.

[Nico Perino]

Keep pronouncing it wrong, when you read things and you don't hear.

[Sarah Isgur]

Yeah, I know, right?

[David French]

We have that problem all the time. I remember one time, one of my most embarrassing moments, the word chutzpah.

[Nico Perino]

Yeah.

[David French]

I was talking to a professor of mine in college and he said, chutzpah, and I corrected him and I said, don't you mean chutzpah?

[Nico Perino]

Yep.

[David French]

That's the danger. I didn't know how to pronounce inevitable until I'd heard somebody say it. I spent years as a young kid talking about inevitable.

[Sarah Isgur]

Oh, yeah, that's a good one.

[David French]

Yeah.

[Sarah Isgur]

Well, so the idea again, Celia Law. Whatever. I do remember the other pronunciation, Celia.

[David French]

I just know that I've been doing it wrong.

[Sarah Isgur]

It's S E L I A and I'm doing it wrong. Whatever the right one is, this isn't it. So there. There's your disclaimer. Basically, they said if the agency in question is exercising executive power, meaning they are making policy decisions, then it has to be up to the President who holds that power. Because where else is the power coming from except from the executive? It's not coming from Congress. It's coming from the President. And how are voters supposed to hold anyone accountable in a representative government if it's. They can't hold Congress accountable because Congress can't remove them at all. But the president can only remove them for cause. And we've never fully litigated exactly what for cause even means. So therefore, no, if you're taking your power from the President, it's executive power, then the President has to be held accountable for that use of executive power at the end of the day. And therefore he has to be able to remove people. I didn't vote for this current president, and that just has to be correct to me. So you should be careful who you vote for, basically. And we should all want to shrink the power of the presidency. And maybe Congress shouldn't be so quick to create all of these Alphabet agencies that are giving more and more people money power for that executive power to be delegated to. But once you've done it, yes, I think it all derived from the presidency. The Fed is such an interesting counterexample because we're all searching for ways that maybe that's not executive power.

[Nico Perino]

I know.

[David French]

It's like, it can't be the Fed too.

[Sarah Isgur]

It can't be the Fed.

[David French]

It can't be the Fed.

[Nico Perino]

Well, why can't it be the Fed? Is it just understanding the policy implications? You've seen all these other countries where the political branches have bullied the consequences of monetary policy.

[Sarah Isgur]

But I also think the history of the Fed derives from the first and Second bank of the United States.

[David French]

Okay.

[Sarah Isgur]

And so the crisis.

[Nico Perino]

So that's where the originalist argument's gonna come in.

[Sarah Isgur]

That's where it's gonna come. If it's gonna come.

[David French]

So I wrote a column last week about the one sentence, and the title is, there's the one sentence that's really basically causing us a ton of headaches. And I was going back to the antifederalists and Cato 4. Cato 4. Every kid should read Cato 4. And also an old wig 5, which is going to be the name of our Bourbon brand when we launch our advisory opinions.

[Sarah Isgur]

Bourbon Old wig number five. Doesn't it just sound like something you should have on your shelf?

[Nico Perino]

Yeah, put it on the bourbon trail.

[Sarah Isgur]

I mean David has been saying this, but it's just true. The Antifederalists are becoming indispensable reading if you care about our constitutional order. Because their concerns weren't crazy.

[David French]

Yes.

[Nico Perino]

No. Well, I actually tried to go on Amazon or somewhere and find the Federalist anti Federalist papers in conversation with each other because I wanted to see what the arguments were in response to the other arguments I couldn't really find.

[David French]

Well, they weren't really in conversation with each other. It's interesting because you had the Federalist Papers, the Hamilton J. Madison papers that were mostly Hamilton and the anti Federalists were actually hundreds.

[Nico Perino]

Sure.

[David French]

Of letters to the editor of this that that sort of spread out around the country. So it wasn't so much Publius versus Cato. Cato was sort of speaking to his.

[Nico Perino]

But they were talking about shared issues.

[David French]

Very much so, yes. But there wasn't.

[Sarah Isgur]

It definitely shows you how you want to get your war room in order beforehand. That the Federalists had a war room.

[David French]

Yeah.

[Sarah Isgur]

And Hamilton was running it and the anti Federalists weren't. I mean it's sort of funny because they were the anti Federalists. It was kind of, they're decentralized, they.

[David French]

Were farming during the day, trying to organize a libertarian convention.

[Sarah Isgur]

But they were kind of proving the point about the Articles of Confederation not working by their very method of communicating their concerns with the new Constitution.

[David French]

But Cato in number four says that the first sentence of Article two is. The quote is vague and inexplicit. So what is the executive power? Now there's a lot of good scholarship that says wait, the executive power, really, really under the originalist meaning is the power to execute the laws passed by Congress. That's what the executive power is. But that's not self evidently true from that sentence. The sentence refers to something, the executive power that it doesn't define. Okay. And so that has left courts for generations saying what is the executive power? What I've talked about is, okay, if we wanted to make it to where the President had less discretionary, where the President was more in line with that originalist vision, which I'm convinced by. The originalist vision is the executive power is the power to execute the laws that we need to make explicit what is implicit and make it explicit by an amendment that says a President of the United States shall execute the laws passed by Congress. That that's the President's executive Authority, it's to execute laws. It is not a freestanding executive authority that exists in the ether that is then left to courts to define. And I think Sarah's right. If you're going to say there is a the executive power that is sort of out there, well then the executive power, doesn't it include at least to some degree we can argue about whether this includes non policymaking officials too. But shouldn't it also include an implied inherent authority over the personnel if you have the executive power? So I do think that that sentence, as Cato said it, is vague and inexplicit. And I'm very persuaded by originalist scholarship that says that it should be read in a very limited way. But the sentence itself is not that limited. And so I think that that is something that's causing an enormous amount of confusion and consternation.

[Nico Perino]

But isn't that all over the Constitution just thinking about our line of work? The freedom of speech. Congress shall make no law abridging the freedom of speech. What is the freedom of speec?

[Sarah Isgur]

What is abridging?

[Nico Perino]

Sure.

[Sarah Isgur]

I mean I think abridging is actually the more interesting word there. We fight over what speech is all the time and I think everyone can grasp that. But abridging itself contains multitudes.

[David French]

Yeah, well, but one of the differences though is you can talk about. All right, the freedom of speech is a very broad term and interpreting that broadly I would argue is consistent with a liberty oriented ethos of the Constitution and the American founding. Okay, what right in the opening we have unalienable rights. So broadly interpreting the freedom of speech is entirely consistent with the American experiment and American project. I think the reverse is true on broadly interpreting Article 2. Because if you look at the prime purpose of the original founding was to establish a republican form of government. That's where you get to Mr. Franklin. What form of government have we A republic if you can keep it. So what was the purpose? The purpose was to establish a republican form of government. What is antithetical to republicanism?

[Nico Perino]

Monarchy.

[David French]

So if you actually have a. If you have a reading of a vague statute or a vague constitutional provision that enhances and counters the small r republican ethos of the Constitution, that's when we should be testing. That's when we should be looking at it with some serious side eye.

[Nico Perino]

There is some affinity within conservative movements at the moment. Maybe fringe. I don't know. You guys are more tied in than probably I am of monarchy. Right. Like Curtis Yarvin and this crew. Like that post.

[David French]

Liberals. Yeah, yeah, yeah. No, not all the post liberals would want an actual monarch, but they would want a far less republican republic. Small, less small R Republican republic.

[Sarah Isgur]

I mean we could spend the whole time on the debates, but the debates over what? The executive. You know, they knew the Articles of Confederation hadn't worked. It didn't really have an executive, it didn't really have a judiciary. Nobody was paying their taxes, yada yada.

[David French]

Yada, it was fine.

[Nico Perino]

Well, no, I do have a question about this.

[Sarah Isgur]

Yeah.

[Nico Perino]

So I think you do need the Constitutional Convention and our current Constitution to get the country stood up again. Right. It just wasn't working. But after it was working, would the more dispersed, I guess you could say ineffective Articles of Confederation be better? If you're worried about the super strong executive, like let's say you get for the first hundred years of our country, you have the Constitution and then you see power accumulate to the executive.

[Sarah Isgur]

No, in a modern society, in the world we live in now, there's a reason you don't see any countries that are set up like the Articles of Confederation. I mean the EU is the closest you're going to get and I'm not sure that a raging success.

[David French]

There's struggles there. Yeah.

[Sarah Isgur]

And you know, the EU model sort of weird because, well, the states didn't have hundreds of years of existing with their own executive authority. But what they were debating at the time, remember, like they believe it's going to be Washington, they know it's going to be Washington. And so their concerns are sort of vaguely of monarchy, but also like Washington could have served for life. They didn't put any limits on that. In fact, I think several of them would have wanted him to serve for life.

[David French]

According to musical Hamilton. Alexander Hamilton, Absolutely right.

[Sarah Isgur]

There was talk of splitting up the executive power into multiple people. I think triumvirates have an interesting history, but it's interesting they don't always end.

[Nico Perino]

With the triumvirate alive. Usually one of them.

[Sarah Isgur]

We've had bouts of strong executives followed by bouts of relatively weak executives. After Lincoln comes decades of I don't want to be rude to Garfield and Hayes and Cleveland, but irrelevant mediocrities.

[David French]

We had a bunch of mediocrities.

[Sarah Isgur]

It wouldn't have been a mediocrity. He was wonderful. He was cut down months into his tenure. But the powers of the presidency swung back after Lincoln and after the threat was gone. I think what's. Even after fdr, Eisenhower, Kennedy, lbj, Nixon even, they are not FDR levels of president. What I think is uniquely bad that's happening right now is we seem to be on a bit of a runaway train of presidential power where it's not that there's a specific crisis that the president is addressing and so that even maybe you could see strong presidents in a row as long as it's the same crisis. I've argued we're in sort of a post 2008 financial collapse world and that that's the sort of populist moment that was created. It's why Trump is not a American phenomenon, it's an international phenomenon. Populism has been an international phenomenon. But I don't see how the pendulum can swing back with the runaway train we're on where it's Obama's pen and phone, it's Trump with more executive orders and more injunctions than any president in history. It's Biden with, you know, saying he does not have the power to do an eviction, moratorium, student loan, debt forgiveness, the vaccine, vaccine mandate. He tried to create a constitutional amendment by tweet and everyone Equal rights Amendment, right.

[David French]

You know, it's a sign of our weird era that we've largely forgotten that a president tried to unilaterally ratify a Constitution.

[Sarah Isgur]

Ratify the Constitution. And he just was like, I hereby recognize the equal rights Amendment as the 28th Amendment. And you're like, ha, ha ha. And we all laughed it off. But like that, like, again, that's not hard to imagine a future president doing. And then us struggling over like, well, wait, is it? What? Huh? And so I'm far more concerned about what comes next than I am even about now because the pattern we've seen for the last 10 years has been bad, bad, bad.

[David French]

So think about it like this. And I'm going back to our anti Federalists. The original job of the president presidency was like a George Washington job, a job description for George Washington. And then you go and you read some of the anti Federalists and an old Whig in an old Whig number five, 120 proof double oaked barrel, says they're not all going to be George Washington. And he even goes to say that there's just a one in a million shot that a president's given this much power are going to over time, exercise it virtuously. And he was right. He was right about that. And I think that that is something that, you know. So if you were going to talk to Hamilton right now about all these executive orders, Congress being inert, the way in which the president is trying to modify the 14th Amendment by executive order, like all that's going on. He would say, how did this happen? Because he would be thinking, there are two firewalls against it. One is the Electoral College. Because their vision of the Electoral College was, this is a committee meeting of some of the wisest people in America selecting from the American public the most wise and gifted leaders. They didn't imagine the Electoral Colleges. Oh, well, you won Tennessee. You get your nine votes. Like, that's not how they envisioned it at all. Okay.

[Sarah Isgur]

And don't forget, the Supreme Court has recently said that also there's. If the state says so, there's no such thing as faithless electors.

[David French]

Right. You can't have faithless electors.

[Sarah Isgur]

So a person who even is picked by their state to vote in the Electoral College, if there's a state law that says they must vote the way that the popular vote went in their state, they have no authority to even.

[Nico Perino]

Wow.

[David French]

I know, exactly. It's incredible. So you have no Electoral College firewall. Instead, the Electoral Electoral College has now become basically just a quirk of our Federalist system. But the original meaning and intent of the Electoral College is gone. So that doesn't exist. And then he would have said, ah, but impeachment. Because this was the way, you know, in the Virginia ratification debates, George Mason stands up and he lambasts the pardon. The vastness of the pardon power, which is again, something that right now we're like, oh, whoa, that pardon power, that's big. He's blasting the vastness of the pardon power. And Madison rises up to defend the 1787 Constitution and says, impeach him. If he surrounds himself with bad people, impeach him. And in the Madisonian view, that was a very viable option because he had not locked in yet on the. Even though he wrote Federalist 10 about how to deal with faction and everything, it had not really locked in how powerful partisan politics was going to be. So powerful that it wasn't until the year of our Lord 2020, when the first senator voted to impeach or convict a president of their own party in American history, and that was Mitt Romney. And so impeachment isn't a live option. The Electoral College doesn't exist in any sort of form. So two of the prime checks on executive abuse are just dead letters right now. And so where does that leave us? That leaves us with a president, with us having to depend on the character of the president more than the Founders intended. And I think that's a problem.

[Nico Perino]

Well, where do you go from this? Do you have to convene a Constitutional Convention to rebalance the checks and balances.

[Sarah Isgur]

Let's just make one quick point that hopefully is obvious to people listening, which is all of these problems we're talking about with the presidency are upstream then of problems with speech. Right. Because once you have a presidency that is as powerful as the one that we're contemplating heading towards, however you want.

[David French]

To think about that enduring.

[Sarah Isgur]

Yeah, speech gets stifled. I mean, Wilson don't need to remind fire listeners about Woodrow Wilson.

[Nico Perino]

We did a whole podcast on him.

[Sarah Isgur]

So even if you don't care that much about whether the President has for cause removal power or not over these independent agencies, which can seem like a relatively esoteric question, it all. Everything else is.

[Nico Perino]

Well, it's interesting because I wanted to talk with you guys about this. You both work in media. He's mixing his recourse as private citizen with his role as the chief executive. So you just look at that settlement with paramount over the 60 Minutes broadcast that stemmed from a lawsuit he filed in Texas, I believe, under a deceptive trade practices Act. But at the same time he's filing that lawsuit, he's tweeting at the Federal Communications Commission Chairman, Brendan Carr, to levy maximum fines and penalties.

[David French]

Yeah.

[Sarah Isgur]

And you're wondering why no one is suing yet over the TikTok ban.

[Nico Perino]

Exactly. I mean, the list goes on. Wall Street Journal with the Epstein case. AP getting banned from the press pool because they didn't use Golf of America. Abc. You work for ABC right now. What's up with your broadcast licenses? I don't know. Brendan Carr wears a lapel pin with Donald Trump's face on it to government meetings. I mean, he's, he's. And we're right now in court representing Ann Seltzer, who ran that poll for the Des Moines Register. He's suing her for under some sort of deceptive Trade Practices act in that state.

[David French]

This is gonna be music to fire. Fire. Listeners are no doubt are aware of this. I keep going back to the single best short argument for free speech ever put on paper in American history. Frederick Douglass, a plea for free speech in Boston. And he says, free speech is the dread of tyrants. It is the first thing that they wish to extinguish. And so to me, free speech is the temperature check. It is the canary in the coal mine. So if somebody does have tyrannical aspirations, if somebody does have authoritarian dreams and goals and visions, they're coming for speech. They are coming for speech. And Trump has come for speech. He has come for it in the mass media. He has Come for it in the university level, he has come for it in the law firm world, he is coming for speech. Now, what's also interesting about this is that, look, nobody after the guy has won two elections and after he won the second, after being indicted and everything, you gotta give. The guy's got some political shrewdness to him.

[Nico Perino]

Oh, absolutely.

[David French]

You've got to hand him. You've got to say, he's got some political shrewdness and he chooses his targets well. And free speech activists and free speech attorneys are very familiar with this conception. Like in the McCarthy era, taking on communists, you're choosing your target. Well, in the 1950s, there's not going to be a huge groundswell of people in the streets for suspected Soviet spies. Right. You're not going to get a million people in the streets chanting, hands off Harvard. Right. Oh, we know that's just not happening.

[Nico Perino]

Why?

[David French]

Because kind of Harvard's been a pile of crap in a lot of ways.

[Nico Perino]

Oh, yeah. They're at the bottom of our.

[David French]

The bottom of the situation. So what he's doing is he's taking on institutions that have earned their public animosity, but he's taking them on in an unconstitutional way. And so you're put in this position of like, yeah, I agree Harvard needs reform, but not like this. You know, it's sort of like saying, okay, I'm against robbery, but I also don't think we should torture robbers to death, you know, without a trial. Like, making that argument doesn't make me pro robbery any more than saying that depriving Harvard of its free speech, free association rights, arguing against that makes me pro the pro the censorious atmosphere they established on campus.

[Nico Perino]

Yeah. His targets don't have clean hands, so he's able to go after them.

[Sarah Isgur]

And, you know, for anyone, as don't forget, also. So there's the smartness in how he's picking targets. There is also the knowledge that whatever he says, the opposition party will gleefully do the opposite.

[David French]

Yeah.

[Sarah Isgur]

No matter what he says. So take the flag burning executive order where he's like, I'm going to criminalize flag burning. Again, don't read the details. Where I don't criminalize flag burning. And like, you watch, I bet there will be an uptick in flag burning because the left wants to, like, show that, like, if he says flag burning is bad, we're for it. And it's like, nope, that's really unpopular thing to do. And speaking of the difference between the debate over what is speech versus what is abridging flag burning is perfect for this. Because the dissenters in that 5, 4 Supreme Court case, there was an argument over whether burning a flag was speech or is it conduct? And that's always, you know, is it speech, is it conduct? We have lots of fun fights about that. But there was also the question of whether it was abridging because the argument was, whatever your beef is, you have multitude other ways to see it in other vehicles. So it's. Isn't it okay to just not allow you to do this version? Is that really abridging your free speech? Even if burning a flag is speech? Like, if your point is you hate Ronald Reagan, which was Johnson's point, in that case, you can scream that at the top of your lungs, like paint your chest, you know, for the football game, whatever. They're not abridging your ability to hate, to say you hate Ronald Reagan.

[Nico Perino]

That's a slippery slope argument. It's the slipperiest of slippery slopes, of course.

[David French]

But when you're talking about what's happening here, Sarah's exactly right. The worst thing that you can do is take a troubled institution that Trump is targeting and wrap both arms around it. And so you see this pattern play out again and again. I was on a TV program not long ago where the host was saying, we need to stand for Harvard. Who's going to stand with Harvard? It's like, but let's be super careful about that, because I'm standing for free speech. And if Harvard's rights of free speech and its academic freedom are being unlawfully assaulted, then I'm going to stand for free speech. But I'm turning around at the same time and I'm saying, harvard, get your freaking act together.

[Nico Perino]

But how much of this is also just a problem of the scale of the federal government? Harvey Silverglide, a co founder of fire, who you know very well, David, wrote a book called Three Felonies a Day. You know, you can find something to go after anyone.

[Sarah Isgur]

Show me the man, I'll show you the crime. And this is the, the restraint.

[Nico Perino]

And Harvard has what, six, seven investigations going on right now. They tried to go after their foreign students as well, and those investigations came after it decided to stand up for itself in court.

[Sarah Isgur]

Yeah, so the, the point was that you were supposed. And this has been happening. I mean, the Department of Justice, when it moves from president to president, changes its priorities. So I always give the example. You move from George W. Bush, really prioritizing terrorism and national security prosecutions to the beginning of the Obama administration. When their move is to prioritize financial crime prosecutions. Makes perfect sense. You want that set by the President. That is the accountability that we were talking about in the unitary executive conversation.

[David French]

But.

[Sarah Isgur]

And it's a fine line, right? The exact opposite. On the opposite end of that spectrum is Nico is my wife's paramour. So someone go find a crime that Nico's committed so that I can throw him in jail.

[David French]

Right.

[Sarah Isgur]

But there's a whole bunch of things in between. Right. We start an investigation because we think you might have done this, but we just found you did this other thing, and we don't like you. What about that? Where does that fall on the spectrum of, like, we're looking at this type of crime versus we're trying to punish, you know, my wife's adulterous boyfriend just.

[David French]

To do the rip from the headlines thing. Are we actually looking at all public officials who've committed mortgage fraud, or are you looking at Democrats who've committed allegedly committed mortgage fraud? If it's. We're looking at all public officials who've committed mortgage fraud, more power to you.

[Nico Perino]

Well, now you have the Paxton allegations, right, as well.

[Sarah Isgur]

Yeah.

[Nico Perino]

I don't know where those came from. I haven't followed the headlines close enough, but.

[David French]

Oh, Nico, don't get Sarah started on this one.

[Sarah Isgur]

We're not even gonna do it. But the mortgage fraud versus classified documents is a really good example. We basically have been always trying to find people who have taken classified documents home. You can find cases about that, all cases. Pretty good clip going back for a long time.

[David French]

And high profile people, too.

[Sarah Isgur]

High profile, low profile. And everything in between. We can talk about whether the punishments are equ. Equalized over all of those. And maybe the president has some special, you know, powers to do funny things like declassified documents in his brain. But whatever. The point is, the classified documents actually is something where there is an entire section at the Department of Justice that does those types of prosecutions. Individual mortgage fraud is not one of those. It's coming kind of out of nowhere. The one exception to this. And by the way, David's talking about Senator Adam Schiff, Federal Reserve Governor Cook, and New York Attorney General Letitia James, who were all being investigated by this administration for saying that they're basically having multiple primary residences for the purpose of lowering their mortgage rates. Marilyn Mosby was prosecuted. She was a Democratic. She was basically the district attorney for Baltimore. She was prosecuted for mortgage fraud. And so again, you're like, well, it's not out of nowhere, but this isn't really the type of case DOJ does. Unless they are investigating you for something else and stumble upon it. And are they going to investigate Paxton?

[David French]

Right. That was an AP report that had three primary residences, but only, you know, he and his wife can't have three primary residences. And is the Trump administration. Is the Trump DOJ going to go after Ken Paxton the same way it would go after. And that's where the rule of law issue. So prosecute mortgage fraud. Fine. Prosecute only Democrats. Mortgage fraud, not fine.

[Nico Perino]

Does that become then a First Amendment violation if you can allege that the President is going after just Democrats? I mean, it'd be an ideological prosecution, right?

[Sarah Isgur]

Yeah, yeah. It's what. And that's where always lose, to be clear, like when you're bringing the motion of basically a targeted prosecution, like, you will always lose that motion, except maybe now we're getting to the point where you might win it. And those cases in particular certainly are the best case I've seen in a long time. Whereas, for instance, John Bolton, who is being investigated for having classified documents in an unclassified setting, like, nope, he's gonna lose that prosecution. Even though Donald Trump. Sorry, he's gonna lose that claim of prosecutorial, you know, targeting or misconduct, he's gonna lose that claim because they're actually. There have been so many of those. That actually is a thing the DOJ does. Maybe you came to their attention for some other not great reasons, but that's fine. Versus the three crimes a day. Or I'll show you the man. Show me the man. I'll show you the crime. And to your point of like, are there too many federal crimes? I don't think anyone at this point can argue that there aren't too many federal crimes.

[David French]

There aren't so many. Yeah. But, you know, you raise a really good point about the classified documents. Just in the last 10 years, you've had a Clinton investigation, you've had a Petraeus prosecution, you've had a Biden investigation, you've had a Trump indictment, you've had a Brief Pence investigation. So this sort of idea that prominent people in politics are not investigated for classified document mishandling. No, no, no. That is very common. That's a very normal thing to have a criminal investigation for mishandling classified documents. This mortgage fraud thing, it's novel. It's novel. It's kind of transparent what's happening.

[Nico Perino]

I don't know why anyone would want to go into politics right now. It just seems like you're putting a target on your back. Like if you're a good person, why would you want to go into politics?

[Sarah Isgur]

I mean, this, it actually, I think goes even beyond that. Imagine you're a person who is sort of a Mr. Smith goes to Washington type, who has some real legislative goals. Why would you go to Congress? They're not doing legislation. And so what you're seeing is lots of members of Congress who are sort of. Those more legislatively focused folks are leaving Congress and who's replacing them? The influencer Congress. Right. We have like 535 or we're heading to have 535 cable news pundits and influencers who aren't hiring legislative staff. Why would they? That'd be a waste of resources. They're hiring bookers and people to like, follow them around and like make social media.

[Nico Perino]

People are good on TikTok.

[Sarah Isgur]

So there's that part. There's the like, good person. You don't want to put your family through this. That would be sort of an insane thing to do at this point. And I think that cost, again, we can sort of say like, oh, criticism, have thicker skin. That's representative government. I agree with that on the one hand, and I do think that even, like, it can be really rough and really rough is still okay. But we are getting to the point where people who think about their family's safety and well being have to really think twice. And it's not just running for office though. It is, but it's being willing to be a federal judge. I mean, how close did Justice Kavanaugh come to having him and his family potentially killed by an assassin who was outside their home, fully armed and capable of doing it?

[Nico Perino]

Or even just a journalist? David, I see the video vitriol hurled at you on all the time.

[David French]

People get mad at me. What? I didn't.

[Nico Perino]

I wasn't aware Chris Ruffo was just going, getting going after you this past week.

[David French]

Super mad. Yeah. Oh, yeah. No, I mean, he will go to.

[Nico Perino]

The mat for Cracker Barrel or against Cracker Barrel.

[David French]

Yeah. The great social menace of our time.

[Sarah Isgur]

How blessed are our lives that our most important people in the country are spending their energy on the logo for a restaurant that you go to when driving long distances.

[David French]

And most of them have never set foot in, by the way. I've got real Cracker Barrel street cred. I took my first.

[Nico Perino]

Oh, I love Cracker Barrel. I got a Cracker Barrel gift card for Christmas this last year.

[David French]

Look, this is the kind of Casanova I was in high school. My first date. Cracker Barrel. Nicest restaurant in like a 20 mile radius. Oh, yeah.

[Nico Perino]

If you try and go on the weekends, it's packed.

[David French]

Yeah, Yeah.

[Nico Perino]

I don't know what type of business it does during the week, but, but.

[David French]

You know, we, it's hard to imagine.

[Sarah Isgur]

On December 8, 1941, a lot of conversation about the logo of the local roller skating.

[Nico Perino]

Well, can I ask you guys, as we close up here, just what is the state of the conservative legal movement? We're talking here about all this concern about the power of the federal government, whether it's executive branch or not, the power of the federal government to shape business, to shape universities, to shape the media. I mean, right now we're talking about a 15% export tax on Nvidia chips, which I think is explicitly precluded by the Constitution or taking a stake in intel. Like one of the things that we've seen at Fire in the First Amendment space is that the conservative legal movement, where it was with us on Title 9 under the Obama administration, has just totally abandoned us on Title 6 with the Trump administration the same, same issues or with Harvard, you have a federal government essentially trying to federalize a core components of a university that's hiring who they hire, who they admit and what they teach. And we're alone. I mean, we would receive an award from the Heritage foundation like 10 years ago. And now they're on the other side of us on these issues. So we feel a little bit of whiplash. Fire's leadership's the exact same as it was 10 years ago, plus, plus a few members of the executive new executive team.

[David French]

But the whiplash has been extreme. I mean, think of it this way. Left 10, 15 years ago, the red state response to university access was passing free speech laws. So you had in the early 2000s and building up in the 2000 teens. You know, I remember writing at National Review, look, how many states have passed free speech laws protecting free speech on college campus. And then by 2021, it had flipped around to the Stop Woke act and the anti CRT push. That's really censorious at saying, okay, no, what we're going to do is we're going to say that the problem with the left speech codes is that they were the left's speech codes. Now we've got the right speech codes and this time we're going to do it right. And so I think the best way to describe it is I think the conservative legal movement's at a pivot point. It is not the same. Whatever is left of the conservative political project is now Completely a wholly owned subsidiary of maga. Not the case in law. The law thanks to the existence of the Federalist Society and a legal culture that is I think in large part a tone set by the most important people in the legal culture. Judges. Your Republican nominated and confirmed judges, by and large are classical liberals.

[Nico Perino]

But is that gonna change? I mean, President Trump went after Leonard Leo and had the rift with the Federalist Society.

[David French]

So what's happening now is you're beginning to see a full on infrastructure of sort of common good constitutionalism, populist.

[Nico Perino]

What's common good constitutionalism?

[David French]

For all of us, common good constitutionalism.

[Sarah Isgur]

Would be living constitutionalism for the right.

[David French]

Yeah, it's social justice for the right.

[Nico Perino]

Well, it's great branding. Who doesn't like the common good?

[David French]

Everybody loves who doesn't like social justice. I mean, similar kinds of language. So you're at this pivot point and I think that the legal movement had a few more antibodies in it to resist MAGA than the political movement movement did. But it cannot endure in any recognizable form if the political movement remains almost entirely in this MAGA populist movement.

[Nico Perino]

Well, what about the law students?

[Sarah Isgur]

Yeah, very divided. Becoming more divided. Remember, you're talking about a minority within a minority. So the minority of law students are conservative. And then within that conservative brand, part of the strength of groups like the Federalist Society were that there were so few conservatives that they were never going to agree on stuff. And so this bonded them in some ways. There wasn't going to be a statement from the Federalist Society on literally anything. They've never filed a brief at the court. They really don't take positions. So you have, and that starts in 1982. You have kind of 1.0. This is the edmies era, where they're just beginning to push back on the Warren court. And it's like they're making stuff up. What if we actually look at the text of the Constitution and everyone's like, cool idea. So they do that and then it's like, okay, now I'm gonna have the Scalia era, if you will. And in the Scalia era, they're really developing what this means applied to all sorts of things. Like, and what if the Constitution's a little ambiguous and what does it mean to be an originalist? We are now in the post Scalia that like third era of the conservative legal movement where they're winning and it's really hard to win. I mean it's in the musical Hamilton, like welcome to the present. We're running Like a real nation, that's the conservative legal movement. So now you're in charge, which means that you're not just, like, sitting in dissent and being like, I wish it had been this way. It's much easier to be in dissent, by the way. And it means that the whole team can sort of be like, yeah, we should have won that one. Now when you're winning, they expect to win everything, and they expect to like the outcomes of everything. Whereas the conservative legal movement, as an answer to the Warren Court, the genius of it was that it wasn't about just getting the outcome you wanted. It was about instituting a whole new process so you'd never have another Warren Court. Because if the conservative legal movement won the 1982 conservative legal movement, they would win that. Like, you had to follow this process. And that process is going to favor separation of powers and federalism and things that are, again, not necessarily conservative outcomes, but sort of by definition, in that Burkean sense or in a classical liberal sense, conservative, because that's what the Constitution is. But then when the conservative breaks from Republican, and remember in 1982, Reagan had just sort of married the two together, it was sort of the apotheosis of the Goldwater vision. Conservative didn't mean Republican up until really that point. So 1982 corresponds when, when conservative meets Republican. Forty years later, conservative is breaking, Republicans breaking from conservative, conservatives breaking from Republican, however you want to call it. But the Republicans are like, yeah, but we're the ones who fought this fight for you. We're the ones who won the presidential elections that allowed you to get these Supreme Court seats. And by God, we want these outcomes that happen not to be conservative, that happen not to be Burkean. And so that's causing a lot of frustration within that conservative legal movement family. And when you're looking at the law schools, what's interesting is it felt like the high watermark of the common good monarchy. You know, splinter groups kind of had its high watermark maybe a couple years ago, before Dobbs.

[Nico Perino]

Oh, that's interesting.

[Sarah Isgur]

Which is really not what I expected, you know, in Bostock, where the court, with Gorsuch writing Title VII of the Civil Rights act applied, you know, because of sex, employment discrimination to gender identity and sexual orientation. That was really the. The creation myth for these splinter groups. And then you have Dobbs coming out where it's like, oh, okay. And that puts a lot of damp cloth on the embers. We'll see where it goes from here. Maybe they will come back. There are certainly reasons to Think that when a group has become powerful enough and stratified enough so that you have to kind of wait your turn and get in line, we often see the groups fall apart because the people at the very end of the line are like, well, I don't want to wait in line. What if I just start my own thing or burn it all down? I'm better off than waiting in line. So there's those sort of like institutional concerns that I have. But it's really interesting that it, it doesn't look like it's taking off the way that you, we, I think, would have expected it to. If you just looked at sort of Adrian Vermeule's writings from a few years ago, even Adrian Vermeule himself, this is the Harvard Law professor that gave the name to Common Good constitutionalism, even he is starting to back off of it a little bit or its most intemperate forms.

[David French]

Well, and also I think there's a difficulty right now that you have, if you're what you might call a MAGA legal theorist, is that the ultimate reality of MAGA is that it is not a ideological project, it is a personal project. It is the advancement of a man, Donald Trump. And so if the core fundamental fixed North Star of MAGA is Donald Trump's interests, it's very difficult to form a legal theory around that. That's a legal theory. If the theory is, well, Trump has to win, that's a political theory. That's not so much of a legal theory. And so it's very difficult to articulate legal principles which are supposed to endure beyond each given an individual dispute. If the ultimate decision maker is a person who's non ideological and often highly erratic. And so there is a sort of dispositional disadvantage that you have if you're a MAGA legal theorist, because you don't necessarily know six months from now what position you're going to be taking. And so that creates a difficult. Because think about TikTok, for example. The original TikTok ban idea was one of the good ideas in my view, from the first Trump administration. So you're sitting there and let's say you've been a loyal Trump person. And so in late 2019, early 2020, you're like, TikTok national security problem, TikTok location data, all of this stuff. Look at what the PRC is vacuuming up out of American citizens.

[Sarah Isgur]

We need to do something that's such a threat that we can take care of it by executive order.

[David French]

By executive order, we can do this and then by 2023, 2024. No, no, TikTok, it's unconstitutional. I mean, it's unconstitutional debate. So what's the underlying theory here?

[Nico Perino]

Yeah, yeah. Well, so much is different from the first Trump administration. We were putting together what our plan of attack would be for the various free speech threats that would exist under a Kamala Harris administration or a Donald Trump administration. And we had something to look at that for Donald Trump. Right. We had the previous Trump administration where we were often aligned with the Trump administration, going after Title 9 of the Civil Rights act, where we were rolling back some of the due process and free speech abridgments that we had seen on college campuses. And then fast forward now you don't even get the process in violating Title 6 when you go after all these different universities. And we're seeing every week a new speech threat. And so it's kind of whiplash for us. Kamala Harris administration, we kind of knew what to expect as well. We thought it'd be a continuation of the Biden administration, some jawboning, some social media stuff, an effort to go after misinformation, disinformation, hate speech. But the Trump administration, we were surprised.

[David French]

And you know, going back to bring our conversation full circle back to we started at the very beginning talking about donors. There is an issue, there is an. One of the things I wish people understood about sort of the right more broadly. The category of person who is enthusiastic about Trump, number one, obviously, is your rally. Trumpist is the people, you know, your front row Joes who've been there. Number two, behind your rally, Trumpist is the GOP donor class. The GOP donor class. And especially like your people who write the $5,000 check or 10,000, they love them some Donald Trump. And so if you are a, especially in Christian circles, if you are evangelical circles, so if you're a nonprofit in these social conservative circles, taking on Donald Trump or taking on his administration, good luck selling that to your donors. Yeah, good luck.

[Nico Perino]

Well, I don't want to overstate the challenges. We also have brought in a lot of new donors and foundations from the principled stand that we've been trying to take as well.

[Sarah Isgur]

That's where I think Trump 1 and Trump 2 helps out groups like Fire, because if there is going to be whiplash, everyone kind of sees that and it's like, oh, what would help if someone can change their mind abruptly on what we're allowed to say or who can say it? And it's like, ah, what about the First Amendment?

[David French]

Isn't this a great idea.

[Nico Perino]

Well, I love a line that you had in a previous podcast, Sarah. You said, I'm a process girl living in an outcomes world. And I was like, I love that. That pretty much sounds summarizes what we're doing here. I think you said it around the time we were fighting the Harvard thing, too, because so much of what's problematic there is the process. The Trump administration used to go after Harvard. I was like, yes, yes, yes. I mean, the whole constitutional framework is based on process, and if you just throw that out the door for outcomes that you like, well, the whole constitutional deal goes out the door with it. And so I appreciate both of you for what you're doing with advisory opinions, Sarah as host and David as permanent guest.

[Sarah Isgur]

Great Grandpa Steve.

[David French]

Bringing my trick knee into the podcast twice a week.

[Nico Perino]

All right, folks, I'm Nico Perino, and this podcast is recorded and edited by a rotating roster of my Fire colleagues, including Sam Lee and Chris Malpe. This podcast is produced by Sam Lee. You can learn more about so to Speak by subscribing to our YouTube channel or our substack page, both of which feature video versions of this conversation. We're also on X by searching for the handle Free Speech Talk. If you have feedback can be sent to sotospeakatthe fire.org again, so to speak@the fire.org and if you enjoyed this episode, please consider leaving us a review. They help us attract new listeners to the show, and until next time, I thank you all again for listening.