David French (3:23)

There are, let's do it.

Sky Jutani (3:24)

A lot of stories about the second Trump administration. David Frum wrote a piece recently in the Atlantic. I don't know if you saw this. The title was Trump's Golden Age of Corruption. This presidency is taking self enrichment to a scale never before seen in America. Sort of the token of this, the symbol of this is the acceptance of this 747 private jet from the Qatari government, which Trump wants to use as an interim Air Force One. Before we get into some of the details, can we talk about the constitutional check on corruption? And that's the emoluments clause. You are an attorney. You're a constitutional expert. For those who aren't, explain what the emoluments clause says and how it has been operationalized, at least prior to this presidency.

David French (4:20)

Well, let me, if we can take a quick time out, I'll just read it. Okay. Right. So Article 1, Section 9, Clause 8 of the Constitution says no title of nobility shall be granted by the United States and no person holding any office or profit or trust under them shall, without the consent of Congress, accept of any present emolument, office or title of any kind whatever from any king, prince or foreign state. So essentially what this is trying to do is just to prevent people, foreign governments, from lavishing American leaders with gifts, lavishing them with personal benefits. And so it's, it's not really a clause that has been litigated before the United States Supreme Court. It's a clause that really has not been too much of a problem in the past because previous presidents have been very pretty Scrupulous about the way they handle gifts. So it's very common, for example, for foreign leaders to bring gifts to each other, like a bust of Winston Churchill or maybe some scotch from a particular region of Scotland or whatever, to bring gifts. And these gifts can sometimes be quite valuable. They could be portraits, et cetera, but they become the property not of the president, but the property of the United States. And so these gifts don't go with the president when the president leaves office. They're not decorating their homes with what the foreign leaders gave them when they were in office, et cetera.

Sky Jutani (5:58)

Excuse me, though, but these gifts often do end up in presidential libraries.

David French (6:02)

They'll often end up in presidential libraries. But this is. So you will see the key is, is the gift for the use of the person or is the gift really to the nation, to the country?

Sky Jutani (6:15)

Right.

David French (6:16)

What is the object of this gift? Is it for the person or is it for the country? And so with the 747, in theory, Qatar, say, giving the United States government a 747 that the United States government then modifies and turns into Air Force One and ret. For its own purposes would not be a problem. Instead of a purchase, they're receiving a gift, but it's to the United States government. The plane is then modified, and then it's used by the next president while we wait on the delivery of the new Air Force One that's coming out of Boeing. And Boeing has been very delayed in this. So in that context, it doesn't raise the same kind of red flags. However, under the terms, as I understand it, and I have not seen anything yet to change this, that this would then go to. From it would essentially go with the president, not to the presidential library, just for display, but essentially be for his use, running through. Maybe running through ownership by the presidential library, but for his actual use after his presidency.

Sky Jutani (7:26)

Yeah.

David French (7:27)

So in that circumstance, the gift of it to the presidential library becomes kind of a legal fiction. It's really, for him, channeled through this third party. And so that is what really causes all of these alarm bells to ring. If it was a plane for use by the government that then is put on display. There's an Air Force One, for example, on display at the Reagan Presidential Library.

Sky Jutani (7:52)

I was there about two months ago. Yeah, right.

David French (7:55)

That's a different thing. But if you're talking about something that he's then using after he leaves the presidency for his personal use and travel, that's a different thing entirely. Okay. That becomes something much more like an.

Sky Jutani (8:09)

Emolument to make this even more brazenly a violation of this clause, the story's now come out that President Trump toured this plane when it was in Palm Springs. Not Palm Springs, in Palm Beach. I think before he took the oath of office in January. He really liked the plane. He has been annoyed with Boeing because in his first term is when he signed or renegotiated the deal for these new 747s that would replace Air Force One. And Boeing has been majorly delayed. And when he found out that he wasn't probably going to be able to take delivery of the new Air Force One during his second term, he told someone in his administration to see where we can go buy another Executive 747 for use as Air Force One. They approached the Qatari government about this private jet and inquired about purchasing it for the use of President Trump. And somewhere along that conversation, the Qatari government decided, no, we're just going to give it to you.

David French (9:09)

Right?

Sky Jutani (9:10)

And then they came up with this legal fiction, as you put it, this framework to make it possible for the President to not only to use it while he's in office, but to continue to use it personally after he's out of office. The whole thing just stinks to high heavens.

David French (9:26)

Oh, and then what makes it even worse, guy, is that this was allegedly signed off on, approved by the Attorney General, Pam Bondi, who, by the way, used to be on the Qatari payroll.

Sky Jutani (9:36)

Oh, I didn't know that used to.

David French (9:39)

Be on the Qatari payroll. Pam Bondi, she had a contract working with the Qatari government. I believe the amount was 100,000amonth. So. Yeah, so she, she was on that. There is a whole nother story, Sky. There is a whole nother story about the role of Qatar in influencing American politics. The largesse that the amount of money that Qatar has spent trying to influence American politics is extraordinary. There was a piece in the Free Press not long ago about the Qatari influence operation. And it is extraordinary, just extraordinary. And so you have an individual who was working for Qatar later approving a gift from Qatar. Extraordinary, just extraordinary.

Sky Jutani (10:40)

So I don't want to get just fixated on the plane. It's just the most vivid, tangible example of the corruption that's going on. There's a whole nother layer, which is the cryptocurrency stuff that this White House is engaged in. And a lot of us are just unfamiliar with how crypto works. It's this weird thing. There's been super bowl commercials, but we're not entirely sure, of the whole deal. And so I think it's flown under the radar of a lot of people. But let me read an excerpt from David Frum's piece that captures some of it. And then I want to transition over to people's responses to what Trump and his White House are doing. So David Frum writes this. The record of Trump real estate and business projects is one of almost unbroken failure. From 1991 to 2009, his companies filed for bankruptcy six times. Few, if any legitimate investors entrusted their money to Trump's businesses when he was out of office. But since his return to the White House, Trump has been inundated with cash from Middle Eastern governments. Obscure Chinese firms are suddenly buying millions of dollars worth of Trump meme coins. So are American companies hard hit by the Trump tariffs and desperately seeking access and influence? After Trump invited major holders of his crypto funds to dinner, Wired magazine quoted a crypto analyst about the coin's value proposition. Quote, before you were speculating on a Trump coin with no utility. Now you're speculating on future access to Trump. That has to be worth a bit of money. End quote. Last bit, he says here, nothing like this has been attempted or even imagined in the history of the American presidency since. Throw away the history books, discard feeble comparisons to scandals of the past. There is no analogy with any previous action by any past president. The brazenness of the self enrichment resembles nothing seen in any earlier White House. This is American corruption on the scale of a post Soviet republic or a post colonial African dictatorship. So that's David Frum's take on what's going on here. I mean, just as he keeps saying, an unprecedented level of corruption. Which brings me to why aren't people reacting to this? Why isn't there outrage? Why aren't the other branches of government stepping in and saying, hey, this is a clear violation of the emoluments clause. And in fact, even what the Constitution says about impeachment or grounds of impeachment, one of the first things it labels is bribery.

David French (13:01)

Yeah.

Sky Jutani (13:02)

So why is none of this rising to the appropriate level of. Of concern?

David French (13:09)

Yeah, that's a great question. And I think we're not going to like the answer when we look into it. And, and I think the answer is this guy that let me break it into a few branches. Let's say branch number one. Branch number one is there are a lot of people on in MAGA world who just don't believe these news reports. Okay? So when the cutter plane issue came out and in the Terms of the gift and everything had been articulated. There had been multiple reports confirming the arrangements. And you would talk about it. I remember I saw some of the reaction online. This is fake news. This is fake news. So there's this like automatic. There's one branch of people who just, just disbelieve it. And they would read like an account of the, the me, a media account of the Trump dinner, which, you know, a lot of the right wing outlets are not covering in the same way. Right. And they'll read a media outlet and they'll say, that's just not, that can't be right, that can't be right. And so there's just a lot of denial that it's just not right, that this is not happening. So then there's another strand which is, it's not wrong. And here's the. Where this gets weird, sky, because he's so open about it, because it's just out there. It's just right out there. He talks about it, he's. Everything is so open. The quid pro quo is so obvious. Everything's just right out there. It doesn't ping the corruption sensors because we're used to corruption being buried and hidden and you have to dig and dig and dig and they deny, deny, deny. And then, aha, here's the proof you had the dinner you had. And then it's like, see, we caught them, we caught them. But if somebody is saying, look what I'm doing, there's not a sensation that it's surreptitious, that it's clandestine, that it's wrong. Well, it's, he's just, it's so open. It's so, you know, he's doing this out in the open. Well, what's the problem?

Sky Jutani (15:17)

So there's, there's that old cliche in politics that it's not the scandal, it's the COVID up, or it's not the corruption, it's the COVID up. When there's no cover up, it feels like, well, then there must not be a scandal.

David French (15:28)

So, you know, it's sort of like, imagine a situation where in 1998, there's the news breaks with Drudge that Bill Clinton had an affair with a White House intern. And instead of Bill Clinton walking out and wagging his finger and saying, I did not have sexual relations with that woman, which then triggered this huge effort to uncover the truth because nobody believed the denials really, or at least, you know, there was enough evidence, enough smoke there that it looked like there was something more to the story. And so then that leads to months, culminating in finding the blue dress, blowing up Clinton's lies, et cetera. Well, with Trump, it's like every day starts with a new blue dress like this. But. Except it's just right out there in the open. Everything is just so. Imagine if Clinton came out with Monica Lewinsky and said, yep, I loved her and she loved me. And there's, we're consenting adults, and there's nothing wrong with it. And then all of a sudden, everyone says, yeah, they're consenting adults. There's nothing wrong with this. And so it's almost like. It's like this. The very brazenness of it, in a very weird way, sky becomes the defense of it, if that makes sense.

Sky Jutani (16:45)

Yeah. In fact, this is exactly the defense that some of the Republicans in Congress have been offering. So Mike Johnson, the Speaker of the House, was interviewed by Jake Tapper this past Sunday on cnn, and he was asked about some of these really grotesque displays of corruption coming from the Trump White House. Now, to give a little backstory, Johnson, in his role as leader of the Republicans in Congress, has also been an outspoken critic of the corruption that he saw from the Biden White House and the Biden family. He kept referring to the Biden crime family. And there's been allegations there for many years, some more substantiated than others, about what Biden did. And here's what Mike Johnson said to Jake Tapper on cnn. This is a quote. The difference, of course, is that President Trump does everything out in the open. He's not trying to hide anything. There's no shell companies or fake LLCs or fake family businesses. He's putting it out there so everybody can evaluate for themselves. So essentially, what he's saying is the difference between Biden and Trump is not that Biden was corrupt and Trump is not. It's that Biden hid the corruption and Trump's not hiding it, so we don't have to worry about it. But it reminds me a little bit of back in 2016 when the tape leaked from the Access Hollywood bus about Trump bragging about sexually assaulting women. And. And it's like he's so brazen and open about his immorality and his depravity that everyone just goes, it's locker room talk. Who cares? Despite all the stories that then come out of women who were actually assaulted by him, no one cared. And so here he is, accepting lavish gifts from foreign governments, speaking at private business arrangements where people are giving him and his family millions and millions of Dollars. And in exchange, he's giving them pardons. And. And the leader of the House of Representatives is saying, ah, nothing to see here because it's out in the. Who cares? It's out in the open.

David French (18:45)

What's the old saying?

Sky Jutani (18:46)

It's shocking to me.

David French (18:48)

Yeah. What is the old saying? Hypocrisy is the tribute that vice pays to virtue in the sense that what hypocrisy and cover ups do is they're essentially, they're acknowledging the validity of the moral and legal norm.

Sky Jutani (19:01)

Right.

David French (19:02)

And so that's what hypocrisy is doing. It's saying, I want to be seen as complying with this moral and legal norm, because this moral and legal norm, there is value to me in being seen as being complying with this moral and legal norm, but I don't want to live up to it. So that's the tribute that vice pays to virtue. What Trump is basically saying is, there is no vice here. There is no vice. What I do is okay.

Sky Jutani (19:30)

Shamelessness.

David French (19:30)

What I do is okay.

Sky Jutani (19:31)

Shamelessness is his superpower.

David French (19:34)

Yeah.

Sky Jutani (19:34)

It's amazing.

David French (19:35)

And we're not used to dealing with this. And I do think there are figures like this, say in pop culture, like the guy who is the known Lothario, like the known, like, player, or the person who's like the known. Like, we have this way in which we almost weirdly kind of give a pass to the person who's just out there. This is who I am. Right. And Trump is like that. He's out there, just, this is who I am. But who he is is fundamentally, foundationally, deeply corrupt. He's a very corrupt man. And the fact that he's brazen about it is really, really taking you for granted, American. It's saying, I know you don't care. I know you don't really, truly care about this stuff. And so I'm just going to live how I want to live. And so in an interesting way, what he's doing when he does this is he's actually disrespecting his own base. He's saying to his own base. I know that you don't have a moral compass here. And that's what he's doing. And he understood this a long time ago.

Sky Jutani (20:47)

I want to talk about this. And his base, because obviously a significant part of his base, 80, whatever, 2% of white evangelicals voted for him. And the rationale a lot of them have given is the moral depravity they see on the left that we don't necessarily like Donald Trump and his personal behavior and language and blah, blah, blah, blah, blah. But the left is so corrupt, so evil, so demonic in some cases that we had to pick him. Why do you think more of that white evangelical base of voters aren't bothered by this overt, blatant corruption? Why aren't they speaking out about it? And does it have any. Is there anything about evangelical subculture in America that prepares them to give a pass to this kind of behavior?

David French (21:37)

Yeah. So let me try to steel man this a bit in explaining it. So I think that if you're going to talk to a Christian, an evangelical Trump supporter who is not in denial, in other words, somebody who knows that he's done bad things, a lot of his core evangelical base is in total denial. They do not believe he's ever done anything like, they think he's rough around the edges. They don't think that he has done one tenth of the things that he's actually done. But let's say you're talking to an evangelical supporter who, who knows that Trump is a scandalous figure who disagrees with what happened in the 2020 election, who, you know, who understands that he's done several, many things that are gravely bad, gravely wrong. They would say, well, if I'm confronted with a choice between personal depravity and policy depravity, I'm going to choose the personal depravity over the policy depravity, because the policy depravity impacts the rest of the country and impacts American justice in a way that Donald Trump's personal depravity does not.

Sky Jutani (22:46)

That's assuming those two things never intersect.

David French (22:50)

Well, that. And now, again, like, if you've been alive for longer, if you have a memory longer than a goldfish, you will know that that is exactly the argument, exactly the argument used to defend Bill Clinton in the 1990s, which was, yeah, Bill Clinton, he's a rogue, he's a womanizer. We know this, you know, and however, if I have to choose between somebody who's going to and then the laundry list of more liberal priorities versus, say, Newt Gingrich, I'm going to choose Bill Clinton every time. And the argument back at that was, no, no, no, this is not so easily compartmentalized. It's not the, this is not the way leaders run companies. This is not the way commanders lead their units in the military. This is not how presidents lead nations. In the executive branch, you cannot. They always. It bleeds. One bleeds into the other, the other bleeds. They bleed together. And that compartmentalization argument was the cornerstone of the Clinton defense. It's now in many ways the cornerstone of the Trump defense. And yet, especially in term two, we're seeing how it all bleeds and collides together.

Sky Jutani (23:57)

Yeah. So, I mean, I don't want to relitigate Bill Clinton and his problems, but I think you. I don't want to justify his defenders because I think what he did was awful and unjustifiable. But you could at least make the case that his personal immorality, it wasn't easy to make a direct link to his policy decisions as president. Whereas with Donald Trump, is it coincidence that he accepts a $400 million jet from Qatar and he signs all these personal business deals with the Saudi government for his family and golf courses and hotels and high rises and everything? And around the same time, he decides to turn his back on Israel and basically back out of putting the screws on Hamas when Hamas is getting funded from places like Saudi Arabia and Qatar. Is it any coincidence that he's making God knows how much money on cryptocurrencies, he and his family, and he rolled back regulations on cryptocurrencies that had been put in place by the Biden administration. The policies are right there, adjacent to this corruption. It doesn't take a wild imagination or red string on a bulletin board to figure out, you know, 10 degrees of separation between the gifts and the policies.

David French (25:17)

Look to a degree that dwarfs Bill Clinton. Trump's personal is political.

Sky Jutani (25:23)

Yeah.

David French (25:25)

His political priorities are his personal priorities. Now, this is not some shocking insight. I mean, we know that on a policy basis, he's basically had two north stars on policy, and that's been about it. And that is closing of anti immigrant and pro tariff. If you're going to talk about sort of what is Trumpism as an ideology, the anti immigrant sentiment and the pro tariff sentiment are only through true policy, through lines. But the big through line, the most important through line, is the way he makes the personal political. That's the most important through line. His frontal attack on law firms, you know, for example, in the First Amendment, right? Now, this is rooted in personal grievance. He's taking on firms that took him on. If you're talking about this frontal attack on Harvard, this feels very much more almost like a personal grudge than it feels like an actual coherent policy. And so time and time again, you see how he has this sort of personal grudge towards Volodymyr Zelensky in Ukraine, and he has this weird affection for Putin, and that's impacting all of these policy decisions. And so this idea that his personal depravity does not leak through to his policy has been disproven time and time and time again. And not just on how he treats an individual law firm, but how he treats the balance of power in the world in international alliances, in international armed conflict is dictated by the personal as much or more than it's dictated by policy. So for Trump, almost more than any other politician, the personal is political.

Sky Jutani (27:09)

Okay, so sorry. Before we leave this topic, though, I want to talk beyond Donald Trump because he won't be here forever. I don't know when he's leaving, but he's not going to be around forever. But as David Frum pointed out, this is unprecedented. There's no comparison to any prior American presidency. What does this do for the future of the American presidency? Is this the new normal that we are going to continue to turn a blind eye to this kind of behavior despite the emoluments clause? Depending on if the party in power in Congress is the same as the president's, he gets a pass or she gets a pass on any of this stuff. Is that the future? Or can we rebuild the ethical norms that we had prior to 2021?

David French (27:51)

I don't know, Sky. I mean, I don't know because we're actually beginning to see. I don't know if you've seen some of this stuff, but a small but vocal number of people are beginning to say on the left that what they need is a kind of a blue maga. In other words, a blue punch you in the face kind of worldview where the, where you need to fight fire with fire, which by the way is the justification for Trumpism in many ways is fight fire with fire. And if we're just going to keep going down this fight fire with fire cycle, then Trump is not the aberration, but the trendsetter. And one thing that makes that more likely is the fact that he did win now two elections. He won two elections by doubling down on venom. Doubling and being unapologetically apologetic about his own depravity. And he's won twice like that.

Sky Jutani (28:40)

Well, not just that, but he also.

David French (28:41)

Beat two impeachments, between two impeachments, multiple criminal charges.

Sky Jutani (28:47)

Right. So why wouldn't he feel emboldened to do anything he wants?

David French (28:52)

Right. And populism is not an exclusive right wing phenomenon by any means. There is left wing populism. There's a long history of sort of big city corrupt machine politicians, Democratic America and so the seeds for a kind of Trumpism of the left are absolutely sown. They do exist. So what we're really going to need, sky, this is going to be a matter of leadership in so many ways. What we have found is that the American people are more morally and ideologically malleable than we thought. And we know this now on the right beyond any shadow of a doubt, that there's this moral flexibility that we did not know existed but should have seen coming, an ideological flexibility that we did not know existed, but again, should have seen coming. And why we should have seen it coming is related to a part of your question I didn't ask before. Was, was there something in evangelicalism that made us ready for this? And the answer is absolutely yes. The answer is the rise of the celebrity pastor. The answer is the rise of prosperity, prosperity gospel. The rise of me, me, me, Christianity. What. What is in it for me? How can I be healthier and wealthier? And that is help set the stage. The charismatic leader, which then turns to, if somebody disagrees or has a problem or has been suffering under their leadership, then there's the same kind of instrumentalist view. Look how many souls are being saved. Look how the church is growing. Look at how all of this is working. So you need to shut up. You need to be quiet. You need to fall in line. And so that dynamic has been existing in that celebrity Christian culture for a while and then turned up several notches by the prosperity gospel and the rise of the prosperity gospel ethos.

Sky Jutani (30:50)

Oh, I think you're 100% correct. I mean, the fact that we can look at prosperity preachers, or not even prosperity preachers, but just celebrity preachers with private jets and, you know, $10 million homes and all the lavish lifestyle and not see that as problematic, but actually celebrate it as evidence of God's blessing that primes people. Then to look at a Donald Trump and his brazen leveraging of the White House and his position to enrich himself and his family as well. God's just blessing him because he's doing what God wants. And so, yeah, it's amazing how we've called light darkness and darkness light. And. Well, think about decades to do this.

David French (31:31)

Yeah, just think about the Paula White. You remember Paula White's Give me a thousand dollars? The. I want to read something. I want to read this to you, Sky. This is. This is Paula White's offer that she made and, you know, the Easter holiday. So if you give her ministry a thousand dollars or more, she says, God will assign an angel to You. He'll be an enemy to your enemies. He'll give you prosperity. He'll take sickness away from you. He will give you a long life. He will bring increase in inheritance, and he'll bring a special year of blessing. Oh, and also you'll get a Waterford crystal cross. Okay, so this is a pastor.

Sky Jutani (32:14)

Just a thousand dollars.

David French (32:15)

That's a pretty good deal for a mere thousand dollars.

Sky Jutani (32:17)

That's a good deal.

David French (32:18)

So this is a pastor openly, brazenly, give me a thousand dollars. I'm promising these blessings, right? And notice the nature of the blessings. It's not I will equip you to serve the poor. It is not I will give you strength to endure suffering in the. For the name, for the sake of Jesus, you know, strength to take up your cross. No, no, no. It is. You're going to get your angel. God's going to be against your personal enemies. You're going to have more money. You're going to have an inheritance like it's you, you, you, you, you. And so this is. This is from a pastor. This is from a pastor. Give me money and you get stuff. You get the goodies. And it's open and it's brazen. It's the kind of thing that, like, Martin luther would be nailing 95 theses to the megachurch door over this. And yet millions of Americans are part of this Christian culture. And so that super transactional nature of Donald Trump, it's not that it's a president behaving like their pastor.

Sky Jutani (33:24)

Yes, exactly.

David French (33:25)

And that's what's chilling.

Sky Jutani (33:26)

And his message is, instead of $1,000, I'll give you an angel and prosperity and all that stuff he's saying, give me your vote and turn a blind eye to the crazy stuff I do.

David French (33:33)

And say, and I'll make America great.

Sky Jutani (33:35)

And I'll make America great. I'll defeat your enemies. I'll demonize the people that you want demonized. I will make sure people say, merry Christmas again, and I will make you prosperous and bring back jobs and for coal miners and factory workers or whatever. And I do wonder, though, if and when the other side of that transaction doesn't pan out, will people stop giving him a long leash for. For his corruption? Will they ever hold him accountable? I don't know.

David French (34:03)

Well, prosperity gospel preachers have been preaching from positions of great wealth to congregations of great poverty for a very long time.

Sky Jutani (34:20)

Okay, let's transition to the other story I really want to talk about, one that you have been talking about, which is a recent Supreme Court case about Oklahoma religious charter schools. So a little backstory. In 2023, the Oklahoma Charter school board approved an application to create a Catholic charter school. Was called Saint Isidore of Seville. The school was intended to be explicitly religious, and it would participate in the evangelizing mission of the church. End quote. And the school's contract with the charter school board specifically allowed the school to freely exercise its religious beliefs. Now, for those of you unfamiliar with charter schools, because not all communities have them, charter schools are publicly funded schools. They're part of the public school network within a city or state or whatever. But this was the first time that an explicitly religious charter school was created, and this happened in Oklahoma. The Oklahoma Republican attorney general went to the Oklahoma State Supreme Court and asked them to invalidate the school's charter because they said it was a violation of the first amendment of the Constitution prohibiting public money for being used for the establishment of a religious institution. And the Oklahoma Supreme Court agreed with the Republican attorney General, and they denied this charter for Saint Isidore. Well, this has gone all the way to the Supreme Court. I'll turn it over to you here, David, and explain what happened at the Supreme Court, because obviously, the Supreme Court's decision set precedent for the whole country. So a lot of people were thinking this could open the door for the funding of religious schools by public funds throughout the country. What did the Supreme Court end up doing with this case?

David French (36:12)

So this case had a very unique resolution, very interesting resolution, because the most important thing you have to know to know about the resolution is that Amy Coney Barrett recused herself from the case. So that meant there were only eight justices deciding it. Now, an oral argument. It seemed that St. Isidore was going to win because it seemed that a majority of the justices were putting Saint Isidore in the category of a private school, that this is a private Catholic school. And the state of the. The Attorney General's office was arguing, no, no, no, charter schools are not private schools. They're just alternative public schools. And just like you can't have a Catholic public school, you can't have a Catholic charter school, you can absolutely have a Catholic private school that, like, gets voucher money and things like that that's been established by a majority of the Supreme Court for a long time, but you can't have a Catholic public school. So then it looked like a majority of the justices were in agreement that this was a private school, not a public school.

Sky Jutani (37:18)

Now, a majority of the only eight.

David French (37:21)

Who are left of the eight justices, it Appeared, although Justice Roberts maybe seemed a little more iffy on that issue. And when I was explaining the case on advisory opinions, I said, this is a very easy case once you get past a complicated factual question. So what's easy about it? If it's a state school, if it's a state actor, in other words, it is deemed that this charter school is part of the state of Oklahoma. It cannot be a Catholic school.

Sky Jutani (37:50)

Right.

David French (37:51)

You cannot have a state Catholic school. All right? That would violate the establishment clause. But if it's a private school and say non state actor, then it's going to have the same rights to establish a charter school as any other point of view, whether it's Muslim, Jewish, secular, et cetera. Everyone will approach the state in the same posture.

Sky Jutani (38:14)

The state cannot discriminate against one charter.

David French (38:16)

School because it's discriminate against because it's religious. If it's not a public school, if it's not a state actor.

Sky Jutani (38:23)

Right. So that's the question. Is it or is it not a public school?

David French (38:26)

Now here's what's weird about it. Sky. So when, when the charter school was initially established, Oklahoma was saying charter schools are public schools. So Oklahoma is saying charter schools are public schools. Well, to get around that, the charter school argued. Well, by public school, they don't mean state actor. They just mean open to the public for enrollment for free.

Sky Jutani (38:48)

In other words, if I understand what I read about this correctly, St Isidore would not deny anyone enrollment in their school because of their religious conviction. So you could be a non Catholic and be a student.

David French (39:01)

And it didn't charge people for. Yes. And it didn't charge tuition the way a public school. You go to public school and you don't. So it had been fully funded by the state or funded enough by the state.

Sky Jutani (39:11)

So they define a public school as a school that's open to the public.

David French (39:16)

Free and open to the public. Yes.

Sky Jutani (39:18)

Not necessarily. Okay, go ahead.

David French (39:20)

Yeah, but that's not normally the way we define public schools. Normally we define public schools as state actors.

Sky Jutani (39:25)

Right.

David French (39:25)

A public school is a state school.

Sky Jutani (39:28)

It's funded by the state, and it's. It's teachers and administrators are employees of the state and they act on behalf.

David French (39:34)

Of the state or there's enough control from the top. They might be employees of the charter school company, but there's enough state control and regulation that they're deemed state actors, et cetera. So that's the question, under the facts of this case, is this a state actor or not a state actor? If it's not a state actor, the school wins. If it is a state actor, the school loses. And it looks like the court split 4 to 4 on that point. And so when the court splits 4 to 4, there's no definitive ruling. It essentially means an affirmation of the lower court. So because the Oklahoma Supreme Court ruled against Saint Isidore, this means that the Supreme Court let that lower court ruling stand. Saint Isidore is barred from being a public charter school in Oklahoma. And that's the resolution case.

Sky Jutani (40:23)

So let me put you in an uncomfortable spot, David. If Justice Amy Conway Barrett had said, I'm recusing myself because of relationship with one of the attorneys or something like that, and she said, David French, I want you to take my seat on the court for just this case. Which side would you have fallen on?

David French (40:43)

That's a great question, Sky. It's a very good question because it's extremely fact dependent inquiry. And so the facts. As I understood the case at the start of the case, I understood this charter to school to be much more of a conventional charter school in the sense of state regulation, et cetera. However, it appears that the charter school was so separate and so distinct from the state that I think there's a very good argument that it was a private actor and not a state actor. The problem that I have though is that there's insufficient clarity on the distinction between state actors and private actors in public school. In charter schools across the country, is.

Sky Jutani (41:34)

It fair to say that the label charter school covers a wide spectrum of different institutions and so some might be more on the St Isidore end of the scale and others way closer to a traditional public school. So you can't use that label to make a definitive decision here.

David French (41:50)

So there's a 50 state divergence here. You have 50 states with different kinds of charter school regulations, etc. So what I would have liked to have seen was for the court to come out with a test. What is the test for when a charter school is a public school versus a state act? I mean a state actor versus a private school. Articulate the test and then kick it back to the lower court for a deter. Factual determination. This is what the lower courts do to marry the facts of the case to the. The arti. The test. That's what I would have want to see happen. Because the very important thing here is not is Saint Isidore recognized as a charter school. The very important underlying issue is under what circumstances are charter schools state actors and not state actors? Because that matters for school discipline. That Matters for student free speech. That matters for teacher free speech. This is a big freaking deal far above and beyond the fate of this one school. So I would have wanted to see regulations to say here. If it's a private school, then there has to be very limited curricular control. There has to be, you know, you have to have firewalls between the state and the charter school for it to be a private actor.

Sky Jutani (43:06)

So. But that raises the question, if there's a firewall between the private school and the state in which the state has very little control over what happens in that institution, even not dictating curricula in that institution, then why should we be giving state funding to that institution?

David French (43:26)

Well, you raised the very interesting political point, sky, because the very interesting political point becomes, okay, should the state be funding free public education through private entities.

Sky Jutani (43:42)

Over which they have no control?

David French (43:44)

I think over which they do, they have very, very limited, I would say not no control, but very, very, very limited control. So should the standard, in essence, be the state is going to provide a free public education through kind of whatever institution you choose to enter that process, there's going to be a lot of political resistance to that. A lot. Now, it's one of the reasons why sort of vouchers, which are not the same thing, because vouchers only tend to cover a portion.

Sky Jutani (44:13)

Right.

David French (44:14)

They don't tend to cover the whole tuition, but it's one of the reasons why vouchers have not taken off politically. And in a way, that kind of surprised me, sky, when I was on the front end of making the school choice argument, I thought that vouchers and things like that would be more popular than they've proven to be. And one of the reasons is that it's interesting, a lot of people are discontent with public schools in general, but like Congress, they don't like Congress, but they like their school. Yes. So they have affection and loyalty to that school. And so they're very leery and wary of reforms that would fundamentally transform the schooling environment. They're much more willing to accept reforms that nibble at, that give people options on the edges, but they're very reluctant to fund a total transformation of how we do public schooling in the US that has been a very tough political sell.

Sky Jutani (45:14)

So as I was reading in on this story and trying to understand the arguments in this case, I felt conflicted, and I wasn't engaging it the way you were from a constitutional, legal, scholarly framework. I was thinking about it just as a citizen. But when I think about the idea of my State tax dollars being used to either fully fund or partially fund a Catholic school. Charter school, I'm kind of like, okay, sure, why not? Or even another religious Christian school. Fine, no, no big deal. But then you got to have your imagination, go beyond that and realize, okay, this same precedent would allow my tax dollars to fund a Muslim charter school.

David French (45:59)

Sure.

Sky Jutani (45:59)

In which any. Anyone could enroll in that school. And they would be taught, you know, the basics of whatever the state requires to be taught, but they would also be taught the Quran. They would also stop five times a day to pray towards Mecca. They would also engage in Islamic prayers and customs. Am I okay with my, with my tax dollars being used for that? Or maybe, you know, go to the other side of it. Would you be okay with an explicitly LGBTQ charter school that your tax dollars are being used to advocate that? And some would say that's happening in the public schools anyway. I don't know. But like, as we get more and more specific in ideology or religious doctrine, do we want our tax dollars going to that? And I think a lot of people heard this story about Saint Isidore and they didn't care because, like, Catholic education is everywhere anyway, and Christian schools, that'd be wonderful. We should have more Christian schools. Sure, my tax dollars should go to that. But when you start playing that out and the implications of it in other areas, I can see a lot of people going, whoa, wait a minute, I didn't want that.

David French (47:00)

So I'm very wedded to the principle of non discrimination. In other words, it says if I create a government program and just to use some real life cases, for example, to repave playgrounds that are open to the public or to help subsidize the cost of private education to, you know, or that fund student organizations on college campuses, I'm very wedded to the principle of non discrimination that says religious speech and secular speech approach the public square as equal, as equals. And so if you were saying, well, we're going to fund the repaving of a playground at a secular school, but not at a church, that even though both playgrounds are open to the public and kids play at both of them, I'm very comfortable with that principle of non discrimination. I think where I begin to get nervous is, or where I think the public gets nervous, and I do, to, to a degree is an idea that sort of says, okay, when you're talking about public education, we don't really any longer have a state run school system. We just have a state funding mechanism and that what we then have Is we just have the big pile of money. And that big pile of money is for free education for people in the public, free education for members of the public. And that's what that pile of money is for. And all comers, we're going to have some state schools that qualify, but then we're also going to have some charter schools that qualify, and all comers can come and sort of drink from the same trough. That is a degree of change that I think that most Americans are not quite comfortable with because. And you're seeing this play out a lot in the, in the higher education controversies, that there's this instinct and this impulse that people have that if we're going to open this floodgates and we're going to pour billions of dollars of taxpayer money into private entities and institutions, we need to have a say. Right? We need to have a say. This is taxpayer money. We need to have a say. Well, then the more say that you have from the government in the religious context, the more you implicate that entanglement that implicates the establishment clause. So I think, as a policy matter, here is where I am. I like vouchers, these programs where, you know, that allow people greater opportunity for school choice. They allow people for more opportunities to educate their children. And it's been proven that uptake on vouchers is modest but meaningful. Right. I'm okay with that.

Sky Jutani (49:45)

For those who aren't as familiar with the terms, vouchers are estate funds that follow the child or that go to the family, that then the family can use that to pay for a private school of their choice. So it's not going to an institution, it's going to the family or the child.

David French (50:00)

Okay, Follows the family, Follows the child. So that I'm much more comfortable with sort of a notion that says the charter school program is a completely private program but heavily regulated by the state, because that's the condition that we're attaching to this lavish amount of funding. That's where I've got a real problem. That's where you're going to have that entanglement issue. Sky. And then if you say, well, we're going to give this lavish amount of funding with no entanglement by the state at all, that's when you run into the political firewall, which is, wait a minute, do we want to just open the floodgates for all comers who just meet very basic, minimal requirements? And so I think that. I think actually, and Sarah, my advisory opinions podcast co host, she says as well, she Says she thinks that this is actually going to be good for the school choice movement, that it would be bad for the school choice movement had this gone the other way and that had these free private charter school or free charter schools be deemed sort of on. Be by default deemed private, but with hundreds of millions, you know, nationally of public funds flowing into them with no ability of the public to influence the education. That was going to be a political, that was going to be politically unpalatable.

Sky Jutani (51:22)

I feel so double minded about this entire topic and I don't know where I will ultimately land on it. And part of it's because like you said, everyone's critical of the public school system, but they love their public school. I'm a product of public schools. My kids are all products of public schools. I benefited and they benefited from very good public schools. And I'm very grateful for them and many of the educators that, that we had. And at the same time, I'm grieved at what I see going on in a lot of the public schools. I think in some cases they have really lost their way. And I'm not, you know, some of the craziness in the teachers unions and here we are in Illinois and in Chicago and during COVID it all came to the surface. And a lot of people have a lot of legitimate criticism of the system. And yet I worry about what does it mean for America if our public school system fails. I worry as we become so diverse and so pluralistic as a society. Public schools was one of the few places where people of different and divergent backgrounds were forced to be in community together and cooperate with one another. Both the children in the classroom and the families and parents in the broader community that gathered to keep those schools going, to do the PTA stuff, to do youth sports, all that was centered around the school. And it brought together divergent communities of people because of their geographic proximity to each other. If we lose that as a society and we atomize into just more and more identity groups based on religion or politics or preference, and we send our kids to those appropriate schools, what does it mean for America? I don't think that's a better America, but I don't think the system as it currently exists is doing a great job either. So I'm double minded.

David French (53:02)

I share a lot of your double mindedness, to be honest. I mean, I think I do. I do. As I said, I am very much in favor of greater school choice. And for those people who say, no, no, no, don't do that. Realize that most middle class, even middle class, upper middle class, and certainly upper class families all engage in school choice anyway. That's right. Because they choose where to live and they have the financial resources to live in better school districts. So that's school choice right there. You've made major life decisions because you could choose where to live to choose that school. And I want more kids in America to experience that kind of option where more parents and more children can choose from a menu of schools. I do want that. I think that's valuable. At the same time, I'm totally with you that there's a melting pot element of American public schooling that is very important. One of my favorite things I like to quote is from this case called Pico versus Island Tree School District. And Justice Brennan was talking about. One of the purposes of public education is to prepare students for participation in the pluralistic, often contentious society in which they live.

Sky Jutani (54:09)

Exactly.

David French (54:10)

And one thing that I wonder about, you know, a lot of these elite schools where you have some of the least tolerant students in America have come. These elite schools are not pulling giant. This is not giant. Giant numbers of public school kids coming in, tons of kids coming out of the, these bespoke private schools where they live in a bubble, an academic bubble, a cultural bubble from a very young age. And they walk into a Harvard or a Brown or a Dartmouth coming from these feeder schools and they don't have the slightest clue about America.

Sky Jutani (54:49)

Right.

David French (54:49)

They have not been exposed to a broad range of viewpoints at all. And by exposed to a broad range of viewpoints, I mean something different from just reading about them in a book.

Sky Jutani (54:59)

Right.

David French (54:59)

Or having your professor teach you about them, meeting people in the flesh who have actual well thought out systems of belief that are different from yours. And you know, I can't help but think that a lot of the siloing of education, especially in these elite corridors of America, are leading to some of the dysfunctions that you see in elite American education. Because, you know, it should not be the case. Guy. I, I was, when I was in A1L in law school, I was public school educated K through 12, then went to a private Christian college, which was a great combination for me. That was phenomenal for me. And then I go into law school and more than one person said to me, I've never met an evangelical Christian before. And so. But they had definite opinions, but they'd never met an evangelical before. You're living in a bubble. You're living in a bubble. If you've never. And I acknowledge I've lived in A bubble. I mean, you know, I've written about this. I, I had never had a conversation with a Jewish American before I went to law school because that was just there. I don't know that there were any Jews in, in my county in Kentucky when I was growing up. At least I didn't know any. And there certainly weren't any in my college at a very fundamentalist at the time, a private Christian college. And so then it was not until. So I, I was in a bubble. I was in a bubble. I out of it. But we're raising a lot of bubble kids now and that's creating problems for our country and for the kids.

Sky Jutani (56:33)

You and I have talked about this on previous episodes. There's the big sort. People are self selecting to move into communities that are more homogenous, at least politically, but very often culturally and religiously. And they are birds of a feather. It's that old adage, right? We like to be comfortable among people who are like us. And yet I don't know how we have a thriving, functioning, pluralistic society with a bunch of homogenous bubbles because there are certain things we must do together, like run the federal government. And so it's only going to break down this experiment in American democracy if we don't know each other across those differences. And I mean, there's a place for camaraderie and closeness and homogeneity. And I'm not saying that's always terrible and bad, but it's. We seem to be building more bubbles than we are bridges.

David French (57:30)

You know, it's very interesting sky there we have two trends that cannot, that are not ultimately compatible with each other. One is greater atomization. In other words, this is what you're talking about. Like that we're splitting off into different cultures, communities. And so, you know, it's not just that our culture is more highly individualistic, which it is, it's also much more concentrated into these super dense landslide counties where people are overwhelmingly on one side or the other. So we're, we're separating into our little enclaves, our ideological enclaves, our socioeconomic enclaves. Like when I was growing up, poor kids and rich kids didn't necessarily live in entirely different neighborhoods and entirely different parts of the town where I grew up. Now poor kids and rich kids don't mingle nearly as much as they used to. And by the way, cross class friendships are a prime engine of social mobility. And if you don't have cross class friendships, you diminish social mobility. So you're race segregated in this country, your class segregated in this country, you're ideologically segregated in this country. And at the same time. So all of that is happening at the same time that we're having greater centralization in government. So government is getting more. And attention on government is getting more clustered on this one place in Washington, which is decreasingly able to meet the conflicting various demands of all of these highly atomized, starkly separate communities around the country. So centralization and atomization are contrary trends, and it's creating an incredible amount of tension in American government. So we either have to move towards more centralization, sort of in the way, like, break our bubbles, or we need to have more decentralization in our government, which is give greater, more local autonomy. And so these are trends, I think, that are really important to understand, and they're very difficult to address.

Sky Jutani (59:33)

So to bring that back around to education, we have the same two options. One option is, well, we need stronger public schools to break down the bubbles so that these young people and these families can actually engage with one another because they're too atomized and isolated from each other. Or the other option is because we're so atomized and separated in our bubbles, we need to have more vouchers or more charter schools that are funded so that they can create the schools they want in their area that fit the homogenous values of that little location. So you get people happier with their public schools that way, or their educational options. But you haven't solved the fact that we're atomized well.

David French (60:15)

And also, let's lay on top of this, the culture war.

Sky Jutani (60:17)

Oh, let's do that. That's fun.

David French (60:19)

Let's just lay on top of it. So then what happens is exactly what we've seen today, which is if you're somebody who's going, yes, absolutely, we need private schools to get a giant. The fire hose of public money needs to be flowing into these private schools in the same way they'd flow into the public schools. The charter school system, free, open to the public, should be open to all viewpoints to create an entrepreneurial systems, et cetera. Look at what's happening right now with the Trump administration yanking unlawfully billions of dollars from pri from public and private higher education. And to. With millions and millions of his supporters cheering him along, saying, well, they get public money, they're accountable to us. And so what you would have then is imagine another, a change in leadership, and you have a new president or new governors, and then they don't like what's being taught in the private Catholic.

Sky Jutani (61:14)

School, and they yank the funding and.

David French (61:16)

They just cancel it. They just yank the funding. And then when the private Catholic school says, you can't do that, we're private, then politically, that governor is going to have an enormous amount of COVID to wage war on that school because of the amount of money that's flowing into it. We just saw this guy with the amount of money flowing into private Christian charities like World Relief, World Vision, et cetera. A lot of Christians were fine with the Trump administration yanking the money and funding from these private Christian organizations because, well, they're too woke or whatever. And so. Or they didn't like that they're reaching out to immigrants or to refugees. And so what you see is in this hyper polarized culture war, that funding, which should not be a weapon of war, of culture war, but is lawlessly becoming a weapon of culture war to the thunderous applause of millions, these people don't seem to realize that could flip right back on them in a heartbeat.

Sky Jutani (62:22)

Well, I remember Beto o' Rourke, when he was briefly running for president. When Was that? In 2020, saying that he would pull tax exempt status from churches that don't support gay marriage. And it's like, well, first of all, legally, that's never going to happen. But the fact that that rhetoric got applause shows you that both sides want to use federal fiscal policies and funding to punish their political adversaries in the culture war. And you're right, it's unconstitutional, it's unlawful. But it's a sign of a deeper illness in our society that we want to punish our neighbors with our political power and the pocketbook.

David French (62:59)

Well, you know, I can't tell you how many conversations I've had with my friends or neighbors who are more. Who are MAGA and love. What's. Love, what Trump is doing to Harvard. And you said, but it's not, not lawful. The way he's doing this is not lawful. And they say, what? Harvard does not have a right to billions of dollars of our money? Like, that's the response that comes.

Sky Jutani (63:21)

Okay, how would they feel if the Biden administration or the whatever, the future Democratic administration decides to do that to Liberty University?

David French (63:29)

Liberty depends on federal funds to an enormous degree. Enormous degree.

Sky Jutani (63:35)

So you can't cheer it for the goose and not for the gander.

David French (63:39)

Well, they will, but, yeah, they should. But, but yeah. I mean, this is the precedent that is being set here. And to just thunderous applause as if they're going to be in charge forever.

Sky Jutani (63:51)

Right.

David French (63:51)

It's no, the, the. I per you know, the, the actual course of action that we have now, which is a viewpoint neutral approach to grant funding, a viewpoint, viewpoint neutral focus approach to the GI Bill, to Pell grants. Yes, we have to keep that. But the Trump administration is blasting through that right now because it's saying, oh, all of that money, all of that money, we're going to make it contingent upon how much we like what you do and like what your students say and what your professors say.

Sky Jutani (64:19)

Well, I guess there's, there's two options here then. One is to maintain that neutrality, that rule of law rather than the politicization of these funds. That, that would be ideal. But the other solution is just perhaps to realize there's always strings attached with money. And if you're able to create a ministry or an institution educational structure that is not dependent on that government funding, then you're immune to these games. But it's a lot harder to do that, especially in the, in the realm of education. David, thank you. There was the last topic I wanted to get to. We may have to cover it in the future. I want to get your thoughts and maybe people can add theirs into the discussion of whether we should have age limits on federal offices. Should there be a cap on how old you can be and serve as president or senator or representative or Supreme Court justice? I think that's worth talking about. I have thoughts. I know you do, too, but we'll do that maybe next time. Enjoy Chicago. Hopefully we can get together in person. I'm glad you're, you're one of us now. We gave the world a pope and we gained a David French.

David French (65:26)

So I think, you know, fair trade, I don't know. That's not an equal trade there.

Sky Jutani (65:32)

SKY well, we're glad to have you and thank you all for being part of Holy Post plus and for tuning in. I'll be back next week with another episode. French Friday is a production of Holy Post Media featuring David French and me, Sky Jutani. Music and theme song by Phil Vischer. This show is made possible by Holy Post patrons. To find out how you can become a Holy Post patron and to find more common good Christian content, go to holypost.com.