David French (5:36)

Always great to see you.

Tim Miller (5:38)

All right, we've got Advisory Opinions legal potpourri here to start with. I'm going to let you pick free speech issues. Khalil, Georgetown. We've got Trump asking scalp to end birthright citizenship today. Perkins Coyee. We've. We've got Amy Coney Barrett. Mag is pissed at her. We got. Are there any legal remedies to what's happening with Elon and Doge illegally firing people? We've got the Alien enemies Act of 1798 coming soon. What has your hackles up the most out of that list?

David French (6:05)

You know, let's just start with the wheelhouse. You know, let's just start with free speech. You know, I mean, this is the area that I litigated in for 20 plus years before I became a journalist. And you know, Tim, it's just kind of funny that JD Vance goes to Munich and lectures the entire European world about free speech and then comes back home and the Trump administration just says, europe, hold my beer on censorship. Just unbelievable stuff unfolding.

Tim Miller (6:38)

It really is wild. And I mean, look, I know you and I are aligned on this, so some of the European free speech stuff makes me very, very, very queasy. I'm happy that we have the First Amendment here, but these guys, it's just so phony. And the hypocrisy on it is so striking. I know that you wrote specifically about the Georgetown case. We talked about Khalil yesterday, but I haven't really gone that deep on the Georgetown case. So why don't we start with case is a really big overstatement to call it that. But even still, again, the fact that it is the acting U.S. attorney threatening a private school.

David French (7:14)

Yeah.

Tim Miller (7:14)

Is pretty jarring. And it's the type of thing that, you know, back in the day when you were a conservative in good standing was in your wheelhouse and in everybody that you associated with. Wheelhouse.

David French (7:23)

You would have thought, you know, Tim, there are so many incidents in the last 10 years, you know, since Trump came down the escalator, where he does exactly the thing that a lot of conservatives were warning the government might do in the future. Right. Except it's coming from the Republican president.

Tim Miller (7:43)

No Sharia law. Yes.

David French (7:44)

No Sharia law.

Tim Miller (7:45)

Who knows what the rest of the term will hold.

David French (7:48)

The feds are going to Try to dictate your curriculum, they're going to try to dictate higher education. You know, like, this kind of thing has been something that conservatives have been worried about for a while. And Georgetown. Georgetown is just particularly egregious, Tim. I mean, but it's egregious in much the same way so many other things are egregious. So it begins with this letter from Ed Martin, who's the acting or interim US Attorney in dc. This guy's hardcore MAGA zealot fanatic, but it begins with him sending a letter that says, it has come to my attention reliably. What does that mean anyway? It has come to my attention reliably that Georgetown Law School continues to teach and promote dei. This is unacceptable. Now, the letter does not define dei, which. Tim, you and I know. The definition of DEI in MAGA land is not simply unlawful race preferences. For example, I fully supported the Supreme Court's decision in the Harvard Fair case where it eliminated race based preferences from university admissions. Okay, If a letter was saying that the university was engaging in unlawful race based preferences, that's one thing.

Tim Miller (9:02)

But.

David French (9:02)

But this was teach and promote dei. But we know that the definition of DEI isn't just unlawful race based preferences. It's anything on race that is 1 millimeter to the left of Maga. So if you celebrate the achievements of women in science or sports or whatever, that's dei. If you celebrate the achievements of a black athlete or scholar or thinker or pilot or war hero, that's dei. It's all everything. One ounce millimeter to the left is dei.

Tim Miller (9:35)

And left isn't even right. Like the right. Who knows? We don't even have a spectrum anymore. But just any minimal acknowledgment. Right? I mean, the type of stuff that schools were just trying to do when they were making sure that the curriculum was not just all old white guys. Right. I mean, that was not even really a partisan kind of thing initially.

David French (9:58)

I mean, in their view, it's even evidence of, quote, dei when they see that somebody's black or a woman being hired.

Tim Miller (10:04)

Right, right.

David French (10:06)

Or having a job. I mean, this is the kind of thing that, you know, whenever there's a disaster or something terrible that happens, they want to know, was the pilot or the driver or whatever, you know, a woman or were they black or were they Hispanic? And you immediately get into this demographic game looking for dei. It's even beyond that because it's talking about what he says. It's not. It has come to my attention reliably that Georgetown Law School is engaged in illegal conduct. It says that continues to teach and promote. That's expression. That's just free speech right there. Teaching and promoting. And then he said he's begun an inquiry and he demands to know if DEI is found in your courses or teaching in any way, will you move swiftly to remove it? Again, this is about expression, Tim. It's just about expression. And then he says that nobody who is affiliated with a law school or universities that continues to teach or utilize DEI will be considered for their fellows program, a summer internship or employment. What are we doing here? Even if you're MAGA and you disagree with Georgetown, the mere fact that you went to Georgetown is going to disqualify you.

Tim Miller (11:19)

Right?

David French (11:20)

So you know, this is not the kind of thing where, you know, you need to be a legal scholar to understand that this is bad. The federal government cannot dictate the viewpoint and curriculum of a private Christian school. They can't even do it entirely with public schools. Tim. But this is just one. We could literally talk about how bad this case is for an hour. But it's just one instance.

Tim Miller (11:43)

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Michael Steele (13:05)

Politics, culture, you name it, we're talking about it and we're keeping it 100% real right here on the Michael Steele Podcast. I'm Michael Steele. I'm the host of the Michael Steele Podcast. Each week I'm having conversations with political analysts, writers and activists who aren't afraid to shake things up a little bit, like yours truly. It doesn't matter if you're on the left, the right, or somewhere in that strong middle. This is the space you want to be in because we cut through the noise and hit the heart of the issue. Oh, and we're definitely going to have some fun while we do it. So grab that drink, hit play, settle back, and let's get into it. Catch the Michael Steele podcast on YouTube, Spotify, Apple Podcasts, or wherever you get your podcast groove on.

Tim Miller (13:52)

The highest profile instance this week is the case of Mahmoud Khalil, which we talked about a bunch yesterday with Sam Stein. But I'm wondering where you fall on this because obviously there's some, there's a free speech element to it, of course. Is there a First Amendment element to it is, I guess, maybe a little grayer. But how do you kind of assess the case?

David French (14:11)

So this case really does kind of hit all the parts of the First Amendment. So you're talking about free speech, you're talking about freedom of association, you're talking about religious free exercise, you're talking about the full spectrum of First Amendment rights at Georgetown. Go to Perkins Coie, which I haven't even gotten into. Perkins Coie. That's free speech, where this is the government issuing an order, a mandate barring a law firm from access to federal buildings, barring employees or former employees, law firm from employment in the federal government. Why? Why? Because they represented Democrats and were opposed to Donald Trump. I mean, so you're actually going instance after instance after instance where there's a direct, explicit, and this is the key, Tim, it's very explicit attack on free speech. They're saying it right up front, like in the Georgetown letter. They say it right up front. It's because you're teaching DEI with Perkins Coie. It's because you engaged in these constitutionally protected legal and political activities on Perkins Cooey.

Tim Miller (15:18)

And by the way, up until this past week, and I think even on this podcast, I've been pronouncing this Perkins coal for like 20 years. I don't know, there's just something about my eyes where it just looks like it should be coal and like, I don't see the little spot, you know, between the line and the dot. I think Bill Kristol said, perkins, cooey. And I was like, what are you talking about? And he's like, yeah, yeah, that's what it's called. Okay. Anyway, I think you're on Morning Joe on this. I just, I just wanted to have you kind of elaborate on this case.

David French (15:42)

Yeah.

Tim Miller (15:42)

Because, you know, the interesting thing here, as you're saying, is there were many cases in the past where, you know, people are suing the government, saying essentially, you know, this is unlawful targeting of a private business for political purposes, etc. Etc. This seems to be the rare instance where the, where the administration is saying, no, yeah, no, that's what we're doing. Like, we are, we are targeting them.

David French (16:05)

Yeah.

Tim Miller (16:05)

This is a, this is political targeting and we're trying to silence and punish a foe for political reasons.

David French (16:11)

Yeah, yeah. So I said this on Morning Joe because it is such a gobsmacking element of this case. So I, I litigated, As I said, 20 plus years in higher education and other places where I was litigating these cases that were First Amendment retaliation cases and a First Amendment retaliation case. What you're saying is I engaged in free speech, and because I engaged in free speech, I'm now being punished. But never would universities say you did free speech. Now we're punishing you. Never would the government say you engaged in free speech. Now we're punishing you. We had to prove that their reason that they stated it might be, well, we actually terminated you for poor job performance, or we actually terminated you because you were late all the time. That their reason that they put forward just a pretext that they were making it up in this circumstance. You don't even have to do that, Tim, because they just say it in the document. It's because you spoke, because you're teaching or promoting dei, because you represented that he's a Democratic clients and engaged in activities in support of your clients. That's why we are taking action. It's unlike anything I've ever seen. They're just right up front confessing to the constitutional violation.

Tim Miller (17:25)

Yeah, I mean, the principle of this is bad, as you just laid out very well from a political standpoint, obviously D.C. white shoe law firm lawyers aren't exactly the most sympathetic victim of the various victims of the Trump administration's extrajudicial attacks so far in the first two months. But there are actual Americans that need the servants of firms like Perkins Coie that are going to be conceivably Hurt by this. It's two of the big law firms. There are only so many lawyers that have the security clearances, that have the experience, have the expertise in these types of cases. Right. I mean, don't you think that there's actual harm potentially even beyond just the law firm itself?

David French (18:06)

Oh, for sure. I mean, you make it very difficult. Let's put it this way. Let's suppose you're somebody who is a dissenter or a whistleblower in the Trump administration and you're looking for legal representation. So if the order against Perkins Coie would. Was be allowed to stand, you couldn't go to Perkins Coie.

Tim Miller (18:24)

Right.

David French (18:24)

You have other firms that are now Covington, Covington and Burling. Are they going to. Are they going to work with you after what's happened to them? Revocation their security clearances? So this, it puts a. Paul, it has a chilling effect on really, one of your most fundamental elements of participation in the legal system. Can I get a lawyer? And so I will fully acknowledge that a lot of elements of Donald Trump are. He's incompetent and ignorant in a lot of areas. But after we've watched 10 years of him dominate the American political scene, you can't say the man isn't politically shrewd. And one thing that he does that is very politically shrewd is he picks the right targets. And so, just as there's not too many people who are really worried about the fate of white shoe law firms, the American elite, higher education, it does not exactly have a lot of defenders right now. Foreign aid that Trump has gone after, historically, Americans have had really mixed feelings about foreign aid. So he's taken a lot of targets. I'm sure we'll end up talking some about Mahmoud Khalil in Colombia.

Tim Miller (19:28)

Let's just do it right now. Yeah, let's go right to that.

David French (19:30)

Yeah. Not a sympathetic target to millions and millions and millions of Americans, because this was a guy who was a leader in student protests at Colombia. Some of the groups he was. Belonged to were actively sort of pro Hamas. You know, the encampments in Columbia were uniquely terrible, more so than many other universities. They had a takeover of Hamilton hall, you know, an illegal takeover of Hamilton Hall. So this is a guy, to the extent that he participated in all of that, is not somebody that most Americans are looking at and saying, we need to protect this guy at all costs.

Tim Miller (20:04)

And not American citizen. He's a legal green holder on top of that.

David French (20:07)

Yeah, right, exactly. And what's interesting, my colleague Michelle Goldberg had this really good column where she was talking about the Red scare and this moment. And she said something that I think is really, really important. One of the things that made the Red Scare sustainable for so long was the targets. They were targeting communism at the height of the Cold War. Okay, well, a communist or somebody who's far, far, far left, they possess First Amendment rights just as much as a Republican or a Democrat, but they're much less sympathetic. And so that helps sustain this sort of frenzy in American life for years and years. And similarly, here you have a situation where the Trump administration is taking on institutions and people that are not sympathetic, sometimes for good reasons. Like, I can't think of a single thing Mahmoud Khalil has said about the Middle. I mean, there are a few things he said that I. When he condemns anti Semitism, obviously I agree with that. But, yeah, when he's talking about Israel and Hamas and Palestine, I disagree with him. I thought the. The encampments were out of control. They were violating the rights of others. There was a wave of anti Semitism on campus that still hasn't fully abated. All of those things are dreadful. I disagree with Mahmoud Khalil, but also I know the constitutional issues that are at stake. And you defend the Constitution not through the popular voices, because they don't need defense. That's when the First Amendment isn't really necessary. You defend the First Amendment by defending the unpopular people and voices and defending their fundamental rights.

Tim Miller (21:43)

Yeah. I mean, to me, also, the treatment of Khalil, the fact that he has been sent across the country, he's being held here in Louisiana, he's shackled in an ICE detention center, his wife is pregnant. Even if you thought. And I guess. Well, let me just ask you, like, what do you think of their legal defense? They're basically saying that they have a right to do this, that he doesn't have to have actually engaged in any illegal activity, that this is at the jurisdiction or judgment of the Secretary of State. What do you make of that argument?

David French (22:14)

I think they're making the weakest form of what could be a strong argument imaginable. Okay, here's what the strong argument would look like. The strong argument would be he's here on a student visa and that we are deporting him because he is a threat to the foreign policy and national security of the United States for reasons A, B, C, D, E and F detailing illegal activity or material support for terrorism, then they're golden. That's not what they did here.

Tim Miller (22:45)

What they did here, in part, that's not what they did here, because at least at this point, there's no evidence of that. Right. Like, I mean, no evidence. You would think that they would have shared that. Right.

David French (22:53)

There's no evidence of it as yet. And part of what seemed to have happened is they thought this was going to be a much easier case because they thought he was just going to be. That he was just here on a student visa. Learn later he's here with a green card. And so the strong version of the case is you take somebody on a visa who has done things you can point to that are unlawful, and you say deport him. That's a very strong case. They would win that case. Here you have a green card holder, so a lawful permanent resident. They have not articulated a single thing that he's done that is illegal.

Tim Miller (23:26)

They said specifically, actually to the free press, they gave a statement to the free Press that said they don't have to.

David French (23:30)

Exactly. Their notice of appearance that requires him to show up only listed as the grounds that Secretary of State Marco Rubio has deemed that he's a threat to the foreign policy of the United States. There's no reasons listed for that. It's just the conclusion. And so what they're doing is the weakest possible version of what could be, in other circumstances, a strong argument that. That foreign non citizens cannot come to the US and engage in disruptive protest. No, instead, what they've done is they've essentially said that a green card holder could be summarily detained, isolated from his family, isolated from privileged conversations with his own attorney, and not because he's engaged in any illegal activity at all, but because the Secretary of State, in his wisdom, has determined that he's a threat to the foreign policy. A student protester is a threat to the foreign policy of the United States.

Tim Miller (24:27)

This is the other thing. What is the rationale for detaining him at all? Forget. For sending him across the country to Louisiana to have him detained and put in a detention center. If you took them at their word that they believe. The State Department believes that Marco can decide, you know, based on, you know, whatever the judgment of the Secretary of State, that, That a green card holder is a threat to national security and that person challenges it in court. Like, there's no imminent threat. There's no. Like, what is the purpose of. Like, what are you worried about? That he's going to run away? You want him to run away? Like, why are you fucking detaining him? Besides cruelty?

David French (25:03)

The argument would be, well, we don't want him hiding. We don't want him hiding. But there are ways to deal with that. Right. And, and also, yeah, this is something, Tim, a lot of the things you just articulated are just gratuitous. So, for example, detaining him in Louisiana, not allowing him to have a privileged phone call with his own lawyer, I mean, a judge had to order that. A judge had to order that. They get a privileged phone call. Look, if I am accused of murder, I get to talk to my lawyer on a privileged basis. I mean, this is where that malice comes in. They're trying to do everything that they can while they have him in custody to punish this guy, to make his life miserable. And so this is where it just starts to get even more cynical. They're self righteously wrapping themselves in the flag of combating anti Semitism. Okay. However, at the same time, this is a movement that if you're the right kind of anti Semite, you can get jobs and you can get favors. Like, look at some of the hires in this administration. Some of the hires in this administration include people who've engaged in just unbelievably anti Semitic speech. And then, you know, there's this. They're bringing the Tate brothers back in to the United States. So the Tate brothers, these guys are grotesque antisemites, just grotesque. It's not even, it's not even close. And so if you're an anti Semite and you're on the right, you can get hired by the administration. Like this person, Kingsley Wilson, who's the deputy press secretary in the Department of Defense.

Tim Miller (26:43)

Yeah, I was just going to bring this up. Kathy Young wrote about her this week.

David French (26:46)

He nominated a guy named Amir Ghalib to be ambassador of Kuwait. This is a guy who was a mayor of a Muslim majority town in Michigan that passed the strongest version of the Boycott Divest sanction resolution, that liked a Facebook comment that referred to Jews as monkeys, declined to discipline an appointee who suggested that the Holocaust was cosmic punishment for October 7th. And he's Ambassador to Kuwait now because he endorsed Trump. He endorsed Trump. And you can do this all day in the larger. Right. I mean, think at, look at what Joe Rogan has been doing with his, you know, some of his recent guests. Candace Owens. He Trump dined with Nick Fuente. I mean, you can just do this all day long.

Tim Miller (27:29)

We can do it all day long. And unfortunately, we have much more to do the rest of this day. So we'll leave that one, that part there. So as I mentioned, Trump is asking SCOTUS there's an emergency appeal. Maybe that's term of a heart. I don't understand what the emergency is to end birthright citizenship. There's no chance this is going anywhere, right? Please tell me there's no chance.

David French (27:50)

Let me put it this way, Tim. I don't like to say no chance, but I would fall out of my chair in shock if they, if they said that Trump executive order.

Tim Miller (28:01)

When was the last time you fell out of your chair in shock? I'm just trying to get a sense for how often that happens to you.

David French (28:07)

It's not. It's been a long time. It's been a long time, yeah. All right, good. But I would be completely, utterly shocked. In fact, the case is so one sided that I don't necessarily think the court, they may, they may just decide to take it right now and to deal with it right now, but the court may just decide to let it wait and percolate because there's no court in the country who's upheld so far this birthright citizenship order. It's on pause. It's on hold. And so I don't know they may, I don't know that they'll even choose to hear it now. I think they'll hear it. I do think this is what a case that they will hear. I just don't know that they're going to hear it now.

Tim Miller (28:49)

All right, let's do some gambling. I'm giving you six and a half Supreme Court justices as rejecting their end to birthright citizenship. Do you think there'll be more than that or less my over under seven over. He thinks that you're expecting seven. Two still taking over.

David French (29:08)

I'm thinking it's seven minimum. So, yeah, I might even be over under seven and a half. Tim, I'm getting aggressive here.

Tim Miller (29:17)

Okay. All right, well, that's good to know. Speaking of the fifth, I guess on that list of nine, Amy Coney Barrett. I haven't really talked about this much and she's ruled against the Trump administration on two, frankly, pretty narrow cases. You can explain them, but they're both five, four rulings and now seems like she's enemy number one on my MAGA Twitter feed. So maybe I'm forgetting somebody else, but you've been following this close closer to me. Talk to us about what you see happening with Coney Barrett. Is this a broader shift from her? Might she be challenged or are these like two pretty narrow cases?

David French (29:53)

No, this has been building for a while, Tim. So essentially what happened is there was a little bit of discontent, but it kind of got lost in the maelstrom, the literal maelstrom of January 6th. There was a little bit of discontent that you could feel in MAGA that none of the three Trump appointees had helped him out during the election contest, that the Supreme Court was nowhere to be found in helping Donald Trump in the election steal effort in 2020. And that would be in Deep Maga. Like, Deep Maga was upset that the Trump appointees didn't help. But then you began to have a series of cases that were decided when Biden was in office where MAGA legal initiatives were defeated, were turned back. So voting rights, you had other cases, you know, the independent state legislature theory, the various different kinds of cases. Barrett was consistently voting with, say, Roberts or Kavanaugh, but then also, interestingly, would write her own opinions that were very independent minded. You could tell that she has her. She's her own person. Right. So even before now, at the end of last term, last summer, you began to see some pieces circulating in the legal world that were like, Amy Coney Barrett is her own person. She is just not a automatic, you know, an automatic joiner. And so you began to see that. And then it really kicked off just a couple of weeks ago when Roberts and Barrett joined with the three more liberal justices, the three Democratic appointees, to uphold an order that was ordering the Trump administration to disperse about $2 billion in aid funds. And so that's what kicked it off.

Tim Miller (31:44)

And that was the previously appropriated $2 billion.

David French (31:48)

It wasn't just previously appropriated. It was previously appropriated funds where the work had been completed.

Tim Miller (31:54)

Right. Okay. Yeah.

David French (31:55)

Okay.

Tim Miller (31:56)

I knew for me, I'm hopeful, I'm always hopeful that people are coming into the light. But the MAGA folks are really mad at her over this. I'm looking at it, I'm like, it's kind of a crazy case that it's five to four at all, Right? Like, the work had been, you know, I mean, like, it's such a, such an obvious situation. We should pay the people that did the work that had already been appropriated. And so I looked at it. I'm like, oh, maybe is she just, you know, kind of trying to get a couple of easy points on the board because there are going to be harder ones ahead where there's going to be more pressure on her. And maybe they don't think like that. I don't know. That's the cynic in me that looked at it from that perspective.

David French (32:35)

Well, in defense of the four on that, on that five to four, the case had a Little bit. Few more quirks than a lot was widely reported. And one of the quirks was that one entity sued. And I think they were owed, and I may be off on this a little bit. They were owed a few hundred million dollars.

Tim Miller (32:51)

Okay.

David French (32:51)

The order granted them their money, but it also granted the rest of the 2 billion to other parties who were not parties to the case.

Tim Miller (33:01)

Got it.

David French (33:01)

Okay. So some of Alito's disagreement in his dissent was related to that point. And I think that's fair. I think that's fair. Normally you have to be a party to the case or a member of a class and a class action to receive compensation in a case. And so I do think that there is a fair critique of the five. There being in the four is not some sort of sign that they are in Trump's back pocket.

Tim Miller (33:27)

Okay. I guess what are we seeing from going forward? What is your sense now? I know we're very early. Right. There's only been a couple of these emergency cases that have risen to Skoda so far, but what's your sense for how they're going to be handling all the things coming down the pike?

David French (33:45)

I kind of put what I expect to see from the Supreme Court into three categories, or to use AO advisory opinions terminology, three buckets, where I think you're going to have to see, at the end of the day, some sort of Supreme Court resolution. Like, for example, I think we're going to have to see a Supreme Court resolution on birthright citizenship. And I think it's. I'm, I'm virtually certain Trump is going to lose that one. I think you're going to have to. You're going to end up seeing some sort of resolution on, from the Supreme Court on the employment rights of members of the civil service. And so I think you're going to see the Supreme Court there. I also think you're going to end up seeing the Supreme Court make definitive rulings maybe on impoundment and the impoundment control, the constitutionality and application of the Impoundment Control act, also. That's my three. I'll add another bucket or two. I think you also might very well see the Supreme Court make definitive rulings about independent agencies. Under what circumstance can these independent agencies continue to have any sort of autonomy from the rest of the executive branch? I think you're going to see that. And then you might see something around some of these college or university cases.

Tim Miller (34:55)

And which of those buckets do you expect the court to be the most friendly to? What Trump and Musk in most of.

David French (35:03)

These cases have been doing the independent agencies, I think is where you're going to see because it has long been. As a conservative lawyer, old school conservative lawyer, I'm classical liberal conservative lawyer and originalist, we've long had beef with the way these independent agencies are structured and run because they're kind of such as.

Tim Miller (35:22)

Explain to listeners which are the independent agencies.

David French (35:24)

So for example, when I say an independent agency, that means an agency where the head of the agency is protected in some way from being hired or fired by the President. In other words, that there's some tenure or some ability of the agency to have some autonomy from direct presidential control. And there have been cases along these lines talking about, wait, no, hold on, the President runs the executive branch. And if this is an executive branch agency, that Congress can't shackle the President too much and how he's able to run the agency. And so that's been a long running fight. In my view. That question is resolved by saying these agencies are part of the executive branch. The president can hire and fire. If the Congress doesn't want an agency to be in the executive branch, they can create legislative agencies. There are ways to deal with this that are not exactly by placing something within the executive branch. So I think that is an area because this is something that's a legacy legal issue that's been sort of overhanging for decades. That's an area where I see that Trump could win. I also think that the employment cases get tricky. Tim?

Tim Miller (36:37)

Yeah, it's interesting. I was listening to Steve Vladik with Kristol, with Bill Kristol on this over the weekend and one of the points he made is like, it's kind of related when you think of it as your point about in the USAID case, about how, you know, some of the money was dispersed to people that weren't actual complainants, is that like there's so many. Right. And so if you can't do a class action, if there are 20,000 of these cases, like the amount, you know, it's not as if there's one ruling and then that is going to apply to everybody else. Right. Because there's a lot of this stuff is case by case. So, you know, and he was very bearish just on the fact like on, you know, broadly speaking, there'll be specific cases where, you know, the employees win, employees rights cases, maybe many cases, but just about the timing and like the ability to unroll what Elon and Doge has been doing. What do you make of that?

David French (37:26)

I'm bearish on the real world short term outcome. I'm somewhat more bullish on the longer term legal outcome.

Tim Miller (37:35)

So in other words, they'll win their cases eventually.

David French (37:37)

Yeah, exactly. So I think there will be cases, especially dealing with lower level employees. If you're a policymaking employee, then the court's going to say that the president has the power to hire and fire you if you're a lower level employee. I think what you're going to end up seeing is the court saying, no, civil service protection is lawful. It is legal. You have to comply with it. Now you can fire an employee, a lower level employee, if they don't do what they're told to do and it's lawful. But you just can't sort of say, well, the deep state's against me, so I'm getting rid of all of them. Right. And so I think you'll end up having that. But to get from A to B, you're just going to have an enormous amount of disruption in people's lives, some of which will not be fixed by the legal system. And you'll have disruption in government that won't be fixed. It's not like you can go back in time and undo the chaos that's happening right now.

Tim Miller (38:29)

We're probably going to end up having to pay a bunch of people to not work as well, which will be real. It's really key part of the efficiency and budget balance process is having to pay a lot of lawyers to defend your illegal firings. Then to have to pay the people that you fired illegally to not work. That's going to be. That's a really efficient use of government.

David French (38:49)

Well, I don't know if you saw there's a post. Do you follow Jessica Riedle from the Manhattan Institute?

Tim Miller (38:54)

I do, of course. Yeah. She was on the Mona Charon podcast maybe a week ago.

David French (38:57)

Yeah, I interviewed Jessica about Doge a couple weeks ago. Jessica is cutting through the BS on this like nobody else. And there was a post just a day or so ago saying Doge may well end up costing the government more money, in part because by gutting enforcement in the IRS that has hundreds of billions of dollars of consequence going down the line.

Tim Miller (39:22)

And that's in addition to Doge, you also throw what Bondi's doing, the doj. I mean, I guess I'm interested in your view on this. And it sure seems to me like they're gutting big parts of like the kind of white collar kind of criminal enforcement. And so if you add that on top of what you're talking about, like getting rid of IRS enforcement officials. Great news for tax cheats, not exactly great for budget balancing.

David French (39:47)

Well, here's what's crazy, Tim, because, okay, you can a Trump administration say we're not going to be prosecuting white collar crime or we're de emphasizing it or whatever, or it can sort of say, as seems to be happening, like if you're a MAGA businessman right now, it's hard to imagine like an aggressive criminal enforcement against you.

Tim Miller (40:05)

Yeah, go ham. This is your moment.

Unknown Speaker (40:07)

Yeah.

David French (40:08)

But you know what? You don't repeal the law when you don't enforce the law. And a lot of these statutes of limitations will not have run by the time there's a new administration. You could very well have a situation in which there's this sort of legal holiday, this sort of perceived legal holiday for a few years that really comes back and bites people hard. And that gets to a theme, Tim.

Tim Miller (40:31)

This is the kind of David French optimism that I bring you to the podcast for, you know, because I don't. It's hard for me to see the silver lining. Maybe these white collar criminals will get theirs in 2029.

David French (40:42)

29 is coming, Tim. But this does raise a really interesting point, which is these guys are governing like they're never going to lose power, which is ominous.

Tim Miller (40:54)

If we had JBL on the podcast with us, if you would ask me to ask you, doesn't that concern you?

David French (40:59)

Oh, of course it does. But I think that. Here's where I think a lot of that's coming from. So here's a prediction I'm going to make, Tim. If the Republican nominee loses in 2028, the Republican Party, many members, will not accept the results.

Tim Miller (41:13)

Oh, I think that's a safe bet.

David French (41:15)

I'm going to make a bold prediction.

Tim Miller (41:17)

I think that bet's a little safer than the birthright citizenship bet, even. Use your money on that one.

David French (41:23)

So my bold prediction. So that's what I think of when I say these guys, that's one aspect of these guys believing that they're not going to ever be out of power is they just deny it when they lose. Often. The other element here is it's hard to overstate. And I'm sure you see this kind of in the MAGA circles that you connect with, it's hard to overstate the extent of the confidence that they feel that they have cracked the code politically, that 2024 was an absolute massive turning point in American political history. I saw a sort of a Christian nationalist figure a day or two ago post that he thinks the Democratic Party is just going to dissolve, it's going to go away, that it's going to be replaced by the Republican Party is just going to become so big and powerful, it's going to kind of split in two. And that's the kind of triumphalism that I see is that essentially we've cracked the code, it's over. And so they're running the country like they are the Republicans post civil war or they're the New Deal Democrats. That they have generational control is the way they're running the place.

Tim Miller (42:26)

We're hoping that it's hubris and confidence and not just an intention to not give up power again.

David French (42:33)

Feels hubristic. But I am very much worried that the major strain is, wait, I don't know about music. I'm about to just totally major chord, minor chord. Like the major chord is we're going to win forever because we've cracked the code. But there's a minor chord of we're.

Tim Miller (42:47)

Never going to let them take power again.

David French (42:49)

We're never going to let them. Yeah.

Tim Miller (42:53)

Speaking of a place where there's a one party state where they never let people take power again, I wanted to get your take on Ukraine. We have a couple other. Here's the state of play as it this morning Trump sent out this bleat. We had good conversations with President Putin yesterday. There's a good chance this will come to the end. But all caps. At this very moment, thousands of Ukrainian troops are completely surrounded by the Russian military in a very bad and vulnerable position. I have strongly requested President Putin that their lives be spared. We're begging Putin for mercy now as part of the negotiation. What do you make of the state of play?

David French (43:26)

Oh, man. Well, I mean, I don't think there's any question at all that Ukraine faces military challenges, which we exacerbated, by the way. Big time, big time, big time. But at the same time, Russia is facing massive losses in equipment and personnel. So there is a situation where with competent leadership, you might be able to engineer a ceasefire in some way. Both parties are suffering in this war. But the problem that you have is when Trump begins to switch over and instead of sort of saying to Putin, this is exactly the time, you say to Putin, yeah, Ukrainians are suffering and now we're going to really backstop them.

Tim Miller (44:06)

Yeah, right.

David French (44:08)

Instead that message has been much more Ukrainians are suffering and we're going to be, we're going to have an off on switch on aid. And when I'm Ticked at them, the switch turns off. And when I'm not angry at them, the switch turns on. And all that tells Vladimir Putin is to keep pushing, to push the troops harder, to push harder and harder. And it's deeply demoralizing if you're Ukraine, it's deeply invigorating if you're Russia. I mean, the dynamic here is unbelievable. But at the same time, at the same time, there is a need for serious talks about a ceasefire. They're needed. And so we're in this terrible position where we need to have talks about a ceasefire. But the most powerful country in the world has essentially switched sides, occasionally dabbles back with Ukraine by turning intelligence sharing back on. It is an absolute messed him. And don't think that Vladimir Putin isn't trying to capitalize this. He's very clever. The way he responded to the ceasefire proposal was essentially, well, no, because the proposal doesn't deal with the root causes of the conflict, which causes all the Putin sympathetic people on Twitter to go, yeah, look, Putin wants to deal with the root cause. You know what the root cause is? Your invasion. That's the root cause of this war is you decided to invade.

Tim Miller (45:29)

You being a genocidal maniac. Actually, I want to get to the Moscow domains in a second, but I just want to reread that sentence one more time. In the Trump tweet, I have strongly requested to President Putin that their lives be spared. A strong request. We are in the middle of negotiations with them right now. How about it's so beta. How about demand? I'm demanding that you do not do a massacre in Kursk or else we're going to start giving more weapons. You know what I mean? Like, there's never any situation where leverage is imposed upon Putin. It's like, please, please, Mr. Vlad, be nice to the Ukrainians. Can we do a deal, Tim?

David French (46:10)

We have to, with eyes open, realize who our enemies are and are not. Russia is no Canada. All right, the real foe, I mean, the real foe here, I mean, Trump's got another whole fight on his hands right there.

Tim Miller (46:23)

Beady little eyes. Who knows what they could be doing crossing the border?

David French (46:26)

Or that maple syrup constantly makes my hands sticky at Waffle House. Darn you Canadians. But there is a very real trend here, which he is very bullying and aggressive to our friends, our historic friends. He's trying to make them not our friends. He's very bullying and aggressive towards our friends. And he's very obsequious in many ways to our foes. And to understand it's not even hard to understand why. I mean, it's really a couple of things happening at once. One is Trump personalizes everything. And he knows that the Europeans did not want him to be president. He knows Zelensky did not want him to be president. He knows all of these people preferred that Kamala Harris would win. And so in his mind, that means that they are in the category of enemy and his enemies are America's enemies. And then when you add on top of that, that he genuinely, at his core is, as we are now seeing this isn't, you know, it was reading tea leaves in his first term early now it's just like reading, you know, dog whistles have become bullhorns. Right? And he sees himself as that kind of bullying strongman. And so in that circumstance, the way he treats Russia and Ukraine actually has a lot of resonance to how he's treating Canada and Mexico. He sees Ukraine through Putin's eyes, a smaller, weaker neighboring country that I can bully towards my own interests. He turns to Canada, he looks at Mexico. That's our Ukraine. Smaller countries, less powerful that he can bully. And so he doesn't see anything necessarily. I mean, remember going back to some of the early invasion, he complimented the brilliance of Putin. So he wants the same sort of rights to dominate our neighbors that Putin is exercising through blunt military force.

Tim Miller (48:20)

I have one more thing on Putin, but just because you brought up the Canadians, I was listening to, I don't have the audio, but I was listening to Mark Carney speech when he accepted becoming the successor to Trudeau at the Liberal Party. I had the flu this week and so I was hopped up on meds. And it's truly like you're listening to something from another universe. It's like it's this Canadian leader talking about how we need to protect ourselves. The Americans are coming for our way of life. We need to plan for a future where they are going to be a foe. Like, it's total upside down stuff. And like, you have like a lot of Republicans going along with like 50 first state jokes and all this sort of stuff.

David French (48:58)

It's not a joke anymore, Tim.

Tim Miller (49:00)

And he's a technocrat. So. So the tone was not, you know, exactly militaristic, but the words were like the kind of words you hear from Estonia talking about, talking about Russia. And it was like indistinguishable from what you would hear from Eastern Europe, Baltic country talking about Russia. It's just, it is just crazy. Just really quick, one more thing on Russia. The demands for the Washington Post Their current demands, territory. Crimea, Sevastopol, Kherson, Donetsk, Luhansk. The no foreign peacekeepers at all. Return of diplomatic missions, seized that we had seized sanctions relief. I mean, you compared this to what the Korean actually armistice actually looked like, and it's nothing like it.

David French (49:42)

No, no. Their demands are utterly unacceptable. Essentially what they're saying is, oh, great, we're going to try to accomplish in the negotiating table what we haven't been able to accomplish on the battlefield. They have been able to take territory, absolutely. At horrifying cost. They've been able to take territory, but they know. They know that if we continue to support Ukraine, they cannot. They may make continued incremental gains, but by sometime in late 2025, this year, or early 2026, they just won't be able to sustain this level of offensive combat. So on the one hand, they know they've taken territory, but they also know the sands of the hourglass are running out for them and their ability to continue putting all these men and all this material in the meat grinder. And so this is exactly the time where you go in and look, I'm also quite realistic. I know the odds of Ukraine taking back that territory are very low. Yeah, very low. This is exactly the time when you come in and you make your own demands because you know the situation Russia is in, Right. And you try to reach something that looks more like that Korean armistice. And the thing about the Korean armistice that was so key, a couple of factors. One, North Korea has no say in South Korean politics. So South Korea is fully independent. Right. Putin wants to, say, make Zelensky run for election or whatever. Putin wants a say in Ukrainian politics. Number two, and this is the most important thing. There were security guarantees. There were U.S. troops. Right now, there shouldn't be U.S. troops in Ukraine, I don't believe. Not yet. But France and Britain have already stepped up to say their troops, they're willing to put their boots on the ground. And it's so key. It's those two countries, because those are the two European countries with their own nuclear deterrent. And so if you could have an armistice with French and British troops on the ground, guarantee Ukrainian political independence, that is worth pursuing. That's what you bargain towards. You don't preemptively concede all your bargaining chips in the meantime.

Tim Miller (51:48)

I don't think we've actually talked. I mean, you were a Jag about what Hegseth did as far as the firing of the Jags and what that, what that kind of means. I just would like to kind of pick your brain on that and see what your. What your reaction was, what the potential implications are.

David French (52:04)

Yeah. Hexith has long had. So you have to look at this in totality. So it's the JAG generals and key leader, you know, the chairman of the Joint Chiefs, other key leaders, the JAG generals. And the reason why you look at that in total is a couple of things. One, it becomes very clear when you include the JAG generals in the firings that this was a more of a political purge than a classical military firing, which is for corruption or incompetence. So, you know, all these people go, hey, you can't criticize Trump for firing generals. Presidents of fire generals throughout American history. Well, the pattern has been if they're corrupt or if they have failed on the battlefield. So, you know, for example, Abraham Lincoln changed generals like he was changing clothes for a while because they kept losing battles to the Confederate.

Tim Miller (52:55)

Trying to win a war.

David French (52:56)

He's trying to win a war. Obama fired the general who was running the war in Afghanistan because it wasn't going well. And then when he replaced him with Stanley McChrystal, McChrystal's team was insubordinate, openly. So, and so those are classic reasons why you fire generals. This is, by all appearances, including the JAG generals really is the tell here. It's a political purge. It's a political purge. He doesn't like that. The Chairman of the Joint Chiefs, for example, put out a short video after the George Floyd murder. He has a bone to pick with what he calls the JAG offs, the JAG Corps, which he thinks. He thinks is responsible for hand, you know, handcuffing warriors in the field. The reality is JAG officers don't make the law.

Tim Miller (53:42)

Right.

David French (53:42)

The law is what the law is. And so what we are is legal advisors. I say we because I'm a former JAG officer. We're legal advisors who advise commanders of their existing legal obligations. We help them accomplish the mission lawfully. So we actually, in many ways, facilitate the American military mission in very important ways.

Tim Miller (54:03)

Well, I don't think he sees any kind of legal oversight over what the military should do, basically.

David French (54:09)

Right, I agree with you. And the other layer to this is, again, if you look at how Trump views himself, he views himself as a Putin figure. And what do Putin figures demand from their military? Political loyalty. If you have political loyalty as a criteria in a military, that's death for the competence of the military.

Tim Miller (54:29)

We already did dei, so we can do this quick. But I would be remiss, not to mention a task and purpose article out about Arlington Cemetery. Arlington Cemetery's public website has scrubbed dozens of pages on grave sites and educational materials include histories of prominent black, Hispanic and female service members, along with educational material and dozens of Medal of Honor recipients and maps of prominent grave sites of Marine Corps veterans and other services. Cemetery officials confirmed that these pages were unpublished to meet recent orders by Trump and Hegseth. And this is insane. Like somebody wants to go to Arlington Cemetery and they had resources. Was like, I want to see the most prominent women battlefield officers and I want to look at the map so I can go to their graves and honor them. And now we've erased that.

David French (55:16)

Yeah, I mean, this goes back to what I was saying earlier about what is, quote, dei. It's funny how many people will send you a note online and say DEI is illegal. What? No. There are circumstances where explicit race based preferences are illegal. But dei, in other words, like acknowledging the accomplishments of women and of black citizens, of Latino citizens, I mean, that is not illegal. And I'm going to have to upgrade my definition of DEI or woke. It used to be anything one millimeter to the left of MAGA would be DEI or woke. Now it is not. Just, as you were saying, it's not nothing to do with the spectrum at all anymore. It is anything that acknowledges, not just on a spectrum of left or right views of race, it's now getting towards anything that acknowledges that America is this diverse country with diverse communities that is now out.

Tim Miller (56:14)

We can't honor black soldiers. I guess they were suckers and losers. I don't know. But it is crazy. That's America first. That's patriotism now. It's pretty sick stuff. All right, I want to close with some brief economy talk. The tariffs, I feel like this is right in your wheelhouse. Couple areas, it's going after economic conservatism, but it is coming from a former Republican congressman that is now a Liberty vice president. So, you know, somebody who should really.

David French (56:42)

Understand, I know what you're going through.

Tim Miller (56:43)

Faith in the Bible. Let's listen to Dave Bratt. Give us a little religious lesson on why these tariffs are great.

David French (56:51)

Economic analyst David Bratt says tariffs aren't preferable, but they are necessary. Trump's going for reciprocity, which is basically the golden rule. Whatever you do to us, we're gonna do to you.

Tim Miller (57:02)

Is that the golden rule? It's been a little bit for me since I've been in Catholic school.

David French (57:06)

No.

Tim Miller (57:07)

Was that the golden rule?

David French (57:08)

No, no, no. That's lex talionis, eye for an eye. Like that's not the golden rule. And this is, you know, a senior leader at one of the largest Christian universities in the United States. That's become, but that's maga theology right there.

Tim Miller (57:22)

It's not like a deep cut, actually. You know, I mean it's one thing, you know, you can let them, you can let them loose if they, you know, if they miss something from Paul, the Ephesians, you know, if there was an Old Testament deep cut that they had forgotten. This was, it's kind of, kind of, you know, one of the kindergarten level. Oh yeah, Christian theology.

David French (57:41)

Yeah, yeah. This is, this is something. And you don't just have to know about sort of Christian theology, the golden Rule, you know, sort of do unto others as you would have done unto yourself or love your neighbor as yourself, sort of. That formulation is kind of a common theme from a lot of religious perspectives. And so this idea that he would mistake eye for an eye for the golden rule is amazing stuff.

Tim Miller (58:05)

All right. The economy itself also seems very shaky. I'm curious your take, but I want to close before we get your final word on this. I want to hear from the Vice President that he had an interesting explanation about where he thinks we are economically. With Laura Ingraham last night. Can you rule out a recession, even a temporary one? Well, look, you never can predict the future, but I think the economy, the fundamentals, the, the economy are actually quite strong right now and we'll see how this unfolds. Laura. But I think that by inducing more businesses to invest in American workers, by reassuring some of those critical supply chains, we are going to make this economy stronger over the long haul. I have to admit I'm a little bit confused. I don't know how the fundamentals can be strong when the Biden administration ruined the economy and we're in a, we're in a Biden recession and now they've only been in for two months and every economic indicator has gotten worse since Biden left, but yet the fundamentals are strong. I don't know what the fundamentals are that he's referring to there.

David French (59:08)

Look, everything good is Trump's responsibility, everything bad is Biden's fault. Tim.

Tim Miller (59:13)

Okay, that's easy.

David French (59:14)

Like let's just understand this. And so if you have a long term concern, that's all going to be good because Trump is in charge. If you have a short term alarm, that's all fine because that's Biden's fault.

Tim Miller (59:24)

Which fundamentals are we Talking about there, though, the fundamentals are dribbling.

David French (59:28)

The fundamentals.

Tim Miller (59:28)

The bounce passing is still strong.

David French (59:30)

It's the fundamentals, Tim. Everybody knows the fundamentals. One thing that I look at when I'm looking at, okay, is something happening that is sort of unique to American political circumstances versus part of bigger trends. Because we do live in an interconnected world, interconnected economies.

Tim Miller (59:45)

Sure.

David French (59:45)

What is, say, our stock market doing compared to other stock markets in, you know, peer countries? And if they're having big downturns while we're having big downturns, maybe there's something really deep and systemic. But what we're seeing right now is this stock market correction that is unique to America in the moment.

Tim Miller (60:04)

The Spanish stock market is crushing it. That's that, you know, halcyon place of free markets and, you know, economic growth. Spain, they're crushing us right now in the market.

David French (60:16)

So you are seeing some America specific things that are you, you can watch in real time be tied to Donald Trump's actions and statements. And Trump knows this better than anybody because it's one of the reasons why he keeps yanking back the tariffs.

Tim Miller (60:30)

Right.

David French (60:30)

He'll impose them and the market goes down. He's like. Because he sees the market is sort of like his only focus group that he pays attention to. But if it keeps going down, he'll. He'll have to tell Maga to stop paying attention to it. But we know in the short term he has paid close attention to market moves, and we also know in the short term that the market has moved as a direct result of his action. You can see it right in front of your face. You know, I think Vance is right to sort of say, look, long term, we don't know how things are going to shake out. And a lot of that is because the American economy has its own independent strength. We often overestimate the influence of presidents on the economy. We're always overestimating. So the American economy is kind of a wonder all its own. The Economist wrote about this in the run up to the 2024 election, that the American and 2024 was kind of the wonder of the world, like the rest of the developed world was saying, how are you guys doing this? And so there are some elements of the American economy that I think are just very, very strong that are not directly related to who's in Washington. But to the extent that who's in Washington matters to the economy, and it ultimately does, a lot what's happening right now is entirely negative in my view.

Tim Miller (61:48)

And totally unnecessary in his Faults, Randall. It's kind of like, to me, it's like America is the wonder of the world. It's the wonder of Trump that he's managed to have this much of a negative impact in six weeks, and it's crazy.

David French (62:00)

Well, and look at his targets. His main targets have not been the countries that are our chief manufacturing, say, competitors. The Canadian manufacturing base is not what's gutted the heartland. You know, this is what are we doing here?

Tim Miller (62:17)

And he's also saying we're gonna stop giving the funds for the chips plants. We're not doing any manufacturing stuff. I keep saying this like you could imagine a different Trump term where he's just out there doing ribbon cuttings and getting rich guys to say they're gonna invest in factories and places. And it's like he's not doing any of that anyway. All right, I lied. I had one last thing for you. Have you looked at the standings lately?

David French (62:36)

I have.

Tim Miller (62:36)

We might be staring down a second round matchup between the Grizzlies and the Nuggets.

David French (62:40)

I have been looking at the standings, and let me just say, I don't love that matchup for the Grizzlies.

Tim Miller (62:47)

As long as we avoid the Timberwolves in the first round, I'd be okay with the Grizzlies matchup, but. Okay, we don't want to get ahead of ourselves, but we're just going to keep our eye on it, and maybe, I don't know, maybe I'll pop up to Memphis or maybe a live stream. Maybe a live stream together. We'll see how it goes.

David French (63:00)

If the confrontation goes down, we got to do something about it, Tim. There's got to be a bat. There's got to be something, because I'm going to back my Grizzlies to the hill.

Tim Miller (63:08)

We'll figure out. We'll keep an eye on it. David French, thank you so much as always, for coming on the podcast. Everybody else, have a wonderful March weekend. We'll see you back here on Monday with Bill Crystal. Peace.

Unknown Speaker (63:19)

Round and round the world we go again where we stop nobody know It's a cold, cold world It's a cold, cold world how can we stop the changes going in America today? Come back, go back to the golden rules Go back come back to the golden rule Round and round the streets we go still seeing the same old pain they still keep feeling more prison to take our kids away why can't we show more love to make this a better day oh, go back go back to the golden rule Go back go back to the love, my brother. The golden rule. Now you know what I'm talking about. Now you feel my heart and know I'm for real. Look into your souls and know that the truth is lies.

Tim Miller (65:50)

The Bulwark Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.