Advisory Opinions - 5th Circuit Blocks OSHA's Vaccine Mandate

Episode Date: November 9, 2021

On today’s podcast, David and Sarah briefly preview key Supreme Court arguments before diving into the 5th Circuit's stay of the new Biden administration vaccine regulations, discuss the role of race in jury challenges (with an emphasis on jury selection in the Ahmaud Arbery murder case in Georgia), and finish with the latest developments in John Durham's investigation of the Trump-Russia investigation, complete with thoughts on the infamous Steele dossier. Show Notes: -5th Circuit blocks OSHA's vaccine mandate -The Dispatch: “A Vigilante Killing in Georgia” -National Review: “The Unwritten Law That Helps Bad Cops Go Free” -National Review: “The Steele Dossier, Hillary Clinton’s Malignant Gift to America” -National Review: “Shame on Buzzfeed” Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Sasquatch here. You know, I get a lot of attention wherever I go. Hey, Sasquatch, over here. So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Welcome to the Advisory Opinions Podcast.

This is David French with Sarah Isger, and we're back in our respective podcast studios. Just a tremendous thank you to the folks at the University of Tennessee who hosted us for our live podcast that you heard late last week. It was a great time. We had a great turnout. And I don't know, Sarah, that was fun. That's something I'd like to do again. So much fun.

Yeah, we're definitely going to do this again. Live podcasts. Very fun. I don't know, quarterly or something, maybe. Yeah, yeah, absolutely. Absolutely. And I think a commenter noticed this, and I think we also talked about it afterwards, was that it was interesting having the

live podcast audience in the room. We could see the quizzical expressions when we went a little bit too deep into the weeds, which allowed us to like in real time pull back and sort of say, okay, let's explain this a little more. So that was helpful. Yeah, thank goodness. We're back to just being alone. So that way I can continue not explaining things well. That was tough.

Yeah, we'll just have to imagine the quizzical looks now. So, but we got a lot to cover. We're going to talk, Sarah's going to do a got a lot to cover. We're going to talk. Sarah's going to do a brief SCOTUS update. We're going to talk about the Fifth Circuit decision staying the Biden OSHA vaccine mandate. We're going to talk about the Ahmaud Arbery trial and jury selection that was quite controversial over the last couple of weeks. And then we're going to talk about the indictment of Igor Danchenko by Justice Department Special Counsel John Durham for his role. Well, not for his role, for his response to the FBI for his role in the infamous Steele dossier.

So that's a lot. So, Sarah, let's just launch. Get us started on SCOTUS. For those playing at home, the Supreme Court hears arguments October through April. But what that actually translates to is about two weeks of arguments per month. And so we're at the second week of the November arguments and a few good ones that we'll get to talk about Thursday,

David. We've got a state secrets FISA court one being argued today. That's coming in number three for me this week, for sure. Number two is that kind of quirky First Amendment case about digitized billboards and whether banning digitized billboards off company premises, basically, is content-based and whether the city of Austin can ban digitized billboards, like, for instance, along the highway. That's going to get weird because we're going to have some fun talking about what is content-based restrictions under the First Amendment, because I'm not sure they got that one right at the lower court. And then we, of course, the number one case this week, Ramirez versus Collier. This is the execution that was stayed about what, whether that pastor can do in the execution chamber.

And we have lots of friends of the pod involved this week. So on Ramirez v. Collier, the University of Texas, the premier UT, their Supreme Court litigation student group had brought that case. So really interesting, headed up by Erin Busby, wonderful, wonderful litigator in her own right. And then that First Amendment case I mentioned, of course, Cannon Shanmigan is arguing on behalf of the billboard providers on that one. So lots to talk about Thursday. Looking forward to another exciting week of OT21 arguments. Yeah. And the Ramirez case is the one where what I want to

happen is probably not going to happen, but part of what I want to happen is going to happen. And what that means is this is the question about whether or not Romero's pastor is allowed to enter the execution chamber and lay his hands on his parishioner as he dies. And so we talked about this at some length in a previous podcast, and my thought is he should be allowed to do both. My suspicion is he'll be allowed to enter the execution chamber but not to touch um the condemned man as he draws his last breath and i think that that's i think you're gonna have that outcome but we talked about that at some length but we'll see it's going to be very interesting to see this play out. And this has been such a

contentious issue for a while now, the role of a pastor, a priest, an imam, a spiritual counselor, an advisor in the execution chamber. So maybe this will sort of put that line, that will end this line of litigation, but we shall see. So I'm going to be very, very interested in that one. You're not worked up over the digitized billboards? Come on! You know, it is hard to get a First Amendment case to the Supreme Court that does not work me up in some way, like that doesn't get me excited. That's what I'm surprised about here. This is like your jam. Like it, that doesn't get me surprised about here.

This is like your jam. I know, I know, but we'll see if the argument does. Maybe you just, maybe I'm not presenting it in a jazzy enough way. And maybe only spicy Alito can get you there. We'll see. Maybe,

maybe, but you know, and not, not every expansion of world of Warcraft has been good. I mean, the, not every MCEU, all MCEU movies are good. Not all of them are has been good. I mean, not every MCEU, all MCEU movies are good.

Not all of them are great. So, I mean, this is kind of in that same genre. So, I'm interested, but not excited. That's the category. This would be a huge expansion of what it means to have a content-based restriction, David, but you know what? We're gonna

not do it. We'll save it. Wait for the argument. We're going to... We'll save it. Wait for the argument. We'll save it. All right, OSHA time. Yeah, Sarah, tell us about your former boss and what she did and what's going on. Okie dokie. So OSHA finally came out with their vaccine mandate rule. And they did it under their emergency powers, their ETS standards.

Everything looks about as we expected. It is a vaccinate or test for, it would cover about 84 million workers, according to the New York Times, roughly 31 million of whom are unvaccinated. It is for businesses that are over 100 people. They did, however, David, listen to our podcast. And it is specifically for those who are working in the office. Like if you are never showing up, this doesn't affect you. There was a separate one that's not getting a lot of attention. It would affect about 17 million more workers. Nursing homes and other health care facilities that receive Medicare and Medicaid funds must ensure that all employees are vaccinated by

January 4th with no testing alternative. So basically for almost all workers, over 100 people in businesses, over 100 people, you got to get vaccinated or testing regime and masking by January 4th, unless you are a health care worker basically receiving federal funds, in which case you must get vaccinated by January 4th with no testing option. Not surprisingly, there were a zillion, I believe was the number of lawsuits that were filed just so far. The night is young. And the fifth circuit. And remember, by the way, under these emergency temporary standards, the ETS, that OSHA, the power under which OSHA did this, there are some interesting judicially parts to this. So as we've noted in a previous podcast where we covered how this would all work, these will all be moved into a single circuit eventually.

But what we also said was it's kind of a race because once they're moved into that single circuit, all the other circuits have to stand down where these were filed. And that single circuit will be picked from among the circuits in which a case was filed. But before that single circuit is picked, all of the circuits can still act independently. And I think I even gave the example that the Fifth Circuit would have a rush to stay behold, the Fifth Circuit, in fact, basically issued a stay pending their review of the stay application. So it's like a, I mean, we've got stays all the way down, basically. The briefing is due, all briefing will be done Tuesday by 5 p.m. I expect the Fifth Circuit then to rule by the end of the week on the actual stay motion, not just this stay pending, stay pending, stay. And this is a case brought by the Texas Public Policy Foundation. So not one of the businesses, not one of the state based cases.

so not one of the businesses not one of the state-based cases if you remember about 15 republican-led states have sued um and in a lot of different circuits what's interesting also worth noting because again there could be a lot of strategery here there are certain circuits that are going to be viewed as more friendly to invalidating the vaccine mandate and certain circuits that would be viewed as less friendly. At the same time, there's other incentives going on, which leads me to the Republican National Committee's case, which was filed in the D.C. Circuit, much to the chagrin, I think, of many of the other attorneys watching this and conservative commentators who were quite annoyed, A, because for two reasons. One, the RNC just opened up the D.C. Circuit as a venue for all of these cases. And not just that, there's always kind of a thumb on the scale for the D.C. Circuit to get these types of cases because they do have a certain amount of administrative law expertise. But second, the RNC is kind of a

bad plaintiff, frankly, because it's going to be seen as so political because it is so political. And if the RNC is then out fundraising on it and seen as just doing this to like stick it to the Biden administration, It undermines their legal case in a way that, David, you and I have discussed in which unsympathetic plaintiffs make for unsympathetic judges. Wait a minute, Sarah. Are you suggesting that some people are filing these cases in part to fundraise off of them? I would never suggest such a thing, but... Look, I have not seen any fundraising from the RNC related to this yet,

so I could just be far off, but this is what I think conservative commentators are criticizing them for, that they wanted so badly to have their own case, which is why it had to be filed in DC because they needed to file it where sort of the main part of their business is, is what's required actually. But they could have joined on to the TPPF case or the Montana case, uh, and instead sort of clearly wanted their own case and therefore opened up the DC Circuit and opened up this political line.

So I think they're, well, we'll see what happens in which circuit is picked. But I think a lot of people will be quite annoyed if the RNC ends up being the poster child for the pushback on the vaccine mandate, which as we'll get to in a second here,

has real legal questions around it. Right. And now the interest, so your contention is what we have here is a little bit of maybe possibly fifth circuit saying, Ooh, pick me, pick me. We're first. We got to have our hand up first. Um, no, the other way, the fifth circuit does not think they will be picked, but their stay will last regardless. Ah, gotcha, gotcha. Yeah, you know, I am going to be very interested to see how this comes out because we have a couple of factors working here that are a couple of real world factors working here. One is, of course, you have this emergency rule that is promulgated months after the articulation for the requirement of the articulation of the, you know, Biden saying we need an emergency rule.

Also after the peak of the Delta variant, especially the really deadly wave in the South. And so I think that we that it's going to be interesting to see how this plays out as COVID plays out, because the Delta variant hasn't really gone through some other areas of the country. And are we going to be back into a seasonal surge as the cold weather increases? And then the other one is, you know, you're beginning to reach a lot more. There's still been slow and steady vaccinations across this country for a long time. And so it's going to be very interesting to me to see as this percentage of Americans who are vaccinated

just continues to get up, up, up, up, up, how much some of these real world factors play into it. If COVID is plunging or staying low or doesn't hit that yet another wave and vaccinations continue to tick slightly up, what kind of role will that play? What kind of role does the delay play in promulgating this emergency regulation? So I'm very interested in this case from a standpoint of, oh gosh, every possible front, Sarah. Administrative law, all of... Let me walk through a little bit

of Administrative Law 101 then and how you start thinking about how to challenge an administrative rule. So the first question you're going to ask is, did Congress have the power to do this? As in, if Congress had done this themselves through a statute, could Congress have done this through their Commerce Clause powers? I think there will be those who even challenge that. Number two, can Congress delegate that power? So Congress has the power to make a vaccine mandate.

Can they hand off that power to an administrative agency? That's, of course, called the non-delegation doctrine. Let's assume the answer to that is yes. Okay, so Congress had the power to do it themselves. They then delegated that power legally to an administrative agency. Did they delegate the power? In fact, that is called the major question doctrine. Meaning if it's just sort of like unclear, we assume that Congress didn't delegate major questions to administrative agencies in a unclear fashion, opaque, vague, that if they wanted to allow OSHA to mandate a vaccine for 84 million workers, they would have been real, real clear about that. Okay. So now we get over to the OSHA side.

One, did OSHA act within the delegation? So remember, this is, it has to be a grave danger in the workplace. So to your point, David, with COVID numbers going down, is OSHA acting within that delegation? Is there actually a grave danger? And then did OSHA follow the rules in promulgating the regulation? And that's where you get to the ETS powers, where they then took a really long time to do it. And they didn't go through notice and comment. Was this valid under those emergency powers? Did they need to go through notice and comment? And of course, if then the court sends them back and says, ah, this needed to be notice and comment, that's of course where you'd get into the arbitrary and capricious standards,

which are at issue here because it is under those emergency standards right now. So that's, I mean, look, this is a very administrative law 101, but if someone hands you these OSHA regulations on your law school final, those are the questions you're going to want to go through as you look at the possibilities for your lawsuit. Yeah. As we watch this, I really appreciated that breakdown because one of the things that I'm, I am much more interested in the first questions in this that you raised. Does Congress have that authority? Can Congress delegate that authority? Now, those to me are the two most interesting questions.

And I'm betting you dollars to donuts we don't get near to them ultimately in a supreme court resolution in this case that it's going to be based much more on the small ruling and the smaller decision rather than the bigger decision which longtime advisory opinions listeners will know it's the court has been been sort of, that's a general trend. Courts will swing small, aim small, miss small, rather than aim big. So yeah, that's my expectation. Well, and indeed, that's its own doctrine.

You as the litigator need to start from the top of that list and work your way down. You as the judge do the opposite and ask whether you can rule at the bottom of that list and work your way down. You as the judge do the opposite and ask whether you can rule at the bottom of that list and rule for the plaintiff. And if you can't, you move up each question in its sort of breadth and seriousness avoidance canon. Yeah. Yeah. No, it's going to be, we're going to be covering the heck out of this. we can't there's not much we can say about the one like micro decision that we have uh which is the stay because all it says is because the petitions give cause to believe there are grave statutory and constitutional

issues with the mandate the mandate of state not much to read into that not much to be interesting that they include that at all they don't need to that so there it's you know there's the first paragraph um before the court is the petitioner's emergency motion to stay enforcement because the petition gives cause to believe there are grave statutory and constitutional constitutional issues with the mandate the mandate is hereby stayed pending further action. It could have just said the mandate is hereby stayed. Why that is interesting to me is because this is the same Fifth Circuit panel that reviewed the Texas abortion law and did not stay that. And so to believe that there are grave constitutional issues with this, but not grave constitutional issues with SB8? Really? There were none? You didn't see any? Didn't see them?

Well, Sarah, that's why you're paid the big bucks because I just brought in, hey, not so much about this to read and you brought the additional context. So thank you for that. Because it was a PC opinion, but we know the panel is Jones, Duncan, and Englehart. So this is awkward for me. Yeah. But, well, stay tuned. I mean, we have the Justice Department is filing its papers today.

We're going to have the petitioners by tomorrow at 5 o'clock. So this is the rocket docket. And I don't mean one of the slower NASA rockets. I'm talking about like, this is full on SpaceX Starship rocket docket. So stay tuned. That's the sound of fried chicken with a spicy history.

Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. All right. Should we move from one contentious thing to another contentious thing, Sarah?

Yes. So there is a trial going on right now in the Ahmaud Arbery shooting and killing in Georgia. We have covered this case, gosh, almost since the beginning of advisory opinions, since early in advisory opinions days. This is happening down in Georgia. There was a jury selected. It's controversial because there's one black juror out of the 12. And so this is going to be a subject of contention throughout the trial i mean not not so much in the courtroom the jurors the jury is selected they're they're presenting the evidence to this jury but this is going to be talked about a lot and especially going to be

talked about a lot because here is a headline from cnn judge says quote there appears to be talked about a lot because here is a headline from cnn judge says quote there appears to be intentional discrimination in arbery jury selection but allows trial to move forward with one black juror huh i have issues with that headline sarah, because it kind of, while it's strictly true, it leaves one impression that I think it sort of leads, if you're just scanning the news, as many of us do, what you're thinking is, holy crap, a Georgia judge just said there's race discrimination going on in this jury selection, and I'm letting this thing go forward anyway, which sounds completely and totally unlawful. And so I think it might be worth a little bit of, just a little bit of a primer about how these peremptory challenges work and for cause challenges work. So if you are, if you are a trial attorney, you're a defense attorney, you're a prosecutor,

a jury pool comes in and different judges do Vardir differently. Vardir is the process of interrogating, essentially questioning a jury, potential jurors for bias. And they all do things differently. I've been in trials where a judge does the whole thing. You submit questions that you want the judge to ask to the judge, and the judge might take some of them or might do his own questions entirely. So I've seen judges do the whole thing. I've seen attorneys do it. It's quite an interesting exercise to watch unfold because there's an awful lot of people. I mean, when you're talking about litigants who have a lot of money, they often hire jury consultants because there's a real view that the case is often won or lost at juror selection.

And so you get to ask questions of the jurors or the judge asks questions, but typically attorneys get to ask questions to the jurors. The judge will prescreen the questions to make sure that you're asking legal, lawful questions. And then you will have a couple of kinds of challenges. One is a preemptory challenge. And essentially that means, I don't like this person. You're out of the jury. And you don't really, it could be anything. You could say, you know, somebody who works as an accountant,

I don't want somebody who's pretending that they have sort of kind of forensic accounting expertise in my commercial litigation case. I want them out. I mean, or, oh, this person is a, you know, one of their volunteer time, they are a tea party activist in their volunteer time. And my, my client is obviously progressive. I'm worried about that. I want them out. But you cannot strike people on the basis of race. You just cannot do that. And so once you raise a question,

if you've struck somebody and there's a concern that this person was struck on the basis of race, then you're going to have to show that there was a non-racial reason why you struck the person. And so it doesn't just hold that you can say, hey, your honor, they struck this juror because of race. And the judge says, yep, I agree. The judge is going to ask a question. No, why did you strike the juror? And if then I can come forward with a legitimate,

non-discriminatory, clear, reasonably specific and related reason for why I struck the juror, this is quoting the judge in the case, then I can overcome the burden of showing it was for non-racial reasons. And so this is how this plays out a lot in very racially conscientious trials. As you'll see, a defense attorney, for example, strike a black juror under a preemptory challenge, and the prosecution raises a Batson issue. That's what the issue is called, a Batson issue, based on a case called Batson v. Kentucky. And then there's a fight over whether there was a non-discriminatory reasonable reason for the challenge. All that make sense, Sarah? Yeah, I just thought it'd be fun to do a little history on Batson.

It was decided in 1986 by the Supreme Court. by the Supreme Court. Batson was on trial for burglary and the prosecutor had used his peremptories to strike all four potential black jurors. So Batson was then convicted by a jury composed entirely of white jurors. It was appealed, of course, all the way to the Supreme Court. They held that was a equal protection no-no under the 14th Amendment. That was a equal protection no-no under the 14th Amendment. Some fun after the fact, though, the prosecutor has since said that he thinks that Batson was correctly decided, but said that he was not striking those four jurors because of their race, but because of their age. He thought they would sympathize with Batson because of their age,

which is interesting because while we have Batson for race and gender, we do not for things like age, sexual orientation, for instance, that has been ruled on. Batson does not really go on to have a happy life. When the Supreme Court reversed his conviction and it went back down, he decided not to take the risk of a retrial and pled guilty, actually. Got five years, though, instead of the 20-year sentence he was initially convicted of. But after being released, he was arrested and convicted again of burglary, theft, receiving stolen property, and persistent felony convictions. persistent felony convictions. He was released in 2003 and remains on parole through 2026. He is a construction worker. And the last time he was asked said about the case, it's so old, they ought to let it go. I mean, you're like the most famous name when it comes to jury selection. I'm sad that he isn't more proud of that.

So there have been so many tests of what the Batson rule means. Obviously, if you say, I want to strike that juror for no reason in particular, and they're like, is it because of their race? And you're like, yes. Okay, That's clearly a Batson violation. That's what this 1986 case was about. But, um, and a example I've used before on this, what if you strike a black juror and when asked you say, ah, no, it's actually because, uh, they have dreadlocks. And I believe that someone who has dreadlocks has a certain personality type. It's going to be more sympathetic to the defendant. And so I didn't want people with certain hairstyles on the jury, even though those hairstyles are closely associated with race. These are the sort of questions that we have been litigating since 1986. But in this case, David,

I've been litigating since 1986. But, you know, in this case, David. So we don't know exactly why these jurors were struck. They're preemptory. As you said, you don't have to give a reason. But in this case, we do know that all of the jurors that were struck answered yes to the following question. Do you believe that the former Georgia flag that included the Confederate battle flag on it? Do you believe that that former Georgia flag that included the Confederate battle flag on it, do you believe that that is a symbol of racism is racist? And so the defense used their peremptory strikes on those jurors, all of whom had that in common. I think it is safe to assume that that was quite relevant to why the defense struck them. And David, while of course, that's an applies equally why the defense struck them. And David, while of course,

that's an applies equally to the defense and prosecution. In general, our criminal justice system wants to put the thumb on the scale of the defendant. And so whereas I think that would be more questionable if the prosecution had used something like that to strike jurors of a certain race. I think that in this case, when it's the defendant striking jurors because they believe that's something on the car of their defendants, these jurors think is racist that they would have trouble then being fair and impartial jurors against these defendants, I think that's going to fly. Yeah, I think that's closer than you might think, but I think it is likely to fly as well. Here was one thing that did not fly with the judge and does not fly, And this was the Bubba request. So this, you know, one of the things

when you actually look at some of these straight trial state, let's put it this way. If you listen to Supreme Court oral arguments and then read the transcripts in state trial court murder cases, you see a very different way of speaking. And at one point, the defense lawyer said, it would appear that white males born in the South over 40 years of age without four-year college degrees, sometimes euphemistically known as Bubba or Joe Sixpack, seemed to be significantly underrepresented when he was talking about the jury pool. Now, the Batson case says nothing about class, age, etc. There's no Bubba category when it comes to Batson. So that is not something that fits within sort of that profile.

And while there is a requirement or there's a desire to have a jury pool that is relatively demographically representative, there's no constitutional requirement that it match, that the jury pool itself match all of the demographics of the community. No, in fact, quite the opposite. What the Constitution requires is the accused shall enjoy the right to a speedy and public trial by an impartial jury. Impartial. So this whole like jury of your peers is actually something, you know, that we sort of

have written in legally. It is not a jury of your peers, how you define your peers. It is an impartial jury. And so the question is, for instance, on that question about the Confederate battle flag and whether you find that to be racist, that goes to your impartiality as a juror, not the jury of your peers. what is the what's going to be the issue here because this is one of those killings that was caught on video actually we've caught on video by one of the defendants who sort of was chasing Arbery in his car and one of the issues here is going to be was this were they in the act of conducting a lawful citizen's arrest? Were they in hot pursuit of a suspect? And that's going to be one of their defenses is that they were in some sort of hot pursuit with a suspect. And then in the course of this sort of lawful pursuit of a suspect, that they were then acting in self-defense when the suspect attacked one of the defendants that's going to be the essence of their defense and if you think all that sounds a

little strange that you would have three guys mount up in two vehicles and start chasing a guy running down the street and what the heck where what are you even talking about? There is an explainer that I wrote when the video became public all the way back in early March of 2020. And we'll put it in the show notes. But there is a Georgia statute that I made an argument really does not apply here. here and that what you actually had in process was not a citizen's arrest of a suspect that was you know under a credible under credible hot pursuit but what you rather had was essentially an attempted false imprisonment uh almost like in a an attempted sort of not not so much kidnapping that they're wanting to just hold him apparently but, but an unlawful attempt to take and hold a person, false imprisonment. And so Arbery was being seized, essentially being held against his will without any legal justification.

And that was the actual, at issue. So it's going to be, that's going to be the core defense is that they were pursuing a suspect as opposed to, uh, following a jogger for no reason. And so, um, yeah, it's, it's a very, the, the issue under Georgia law is, um, a little bit complicated. I think ultimately resolves itself in a pretty simple way. But I've got the whole explanation in a piece that I wrote a long time ago. And so that's going to be what this case is fought over. And for all of these cases, and as much as we can pull them apart on the evidence and the legal standard, there is a just jury aspect to this. And to me, this seems pretty clear cut. And I would listen to all the evidence. I plan to listen to all the evidence. But it's hard to see with just the video going into it, this coming out as a pure not guilty verdict. However, I would like to bring up the case of Michael Slager. So this was in South Carolina. A police officer pulls over a man who then flees on foot and he shoots him in the back,

plants a taser next to him and says that it was self-defense, someone outside the fence line turns out to have been videotaping it, clearly shows that, in fact, the taser was planted. He shot him in the back while the suspect was fleeing. Walter Scott was his name. And I mean, it was about as dead to rights as you can get. name. And I mean, it was about as dead to rights as you can get. You know, even the consciousness of guilt of planting the taser. He was charged with murder and a lesser voluntary manslaughter charge. And when it went to the state prosecution, it ended in a mistrial. Now, this was during my time in the Department of Justice. The feds swooped in on a quick order and Mr. Slager is in jail.

But it goes to show you how juries can just see evidence quite differently. The jury foreperson said afterward that there was one real holdout and five undecideds on that jury. Yeah. I remember that case.

I remember writing about that case. And that was actually one of the cases that helped me really understand the way in which the fear defense, the way in which officers use the fear defense in a way that often confuses jurors, and how clever defense lawyers use the fear offense combined with the split-second argument to really confuse jurors. saw this also in the Philando Castile case. And what you saw both in the Slager case and in the Philando Castile, the shooting of Philando Castile, was you had officers who testified that they were in an enormous amount of fear, that they were really, really, really afraid. And then when you

have officers who testify that they're afraid, and then they pull out their gun or they shoot to relieve their fear, then that's when the defense attorney comes flying in and says, this officer was afraid. Who are you sitting in this chair in this super safe courtroom to determine whether or not that fear was legitimate? Who are you to second guess? Who are you to second guess that fear in these split second situations? Nevermind that that was not a split second situation with Slager in the Slager case. The Walter Scott was running slowly away from Slager

when he was shot. But it's remarkable how often that works, Sarah. It's almost like there's an unwritten rule that fear equals acquittal when there's a word in virtually every statute involving a police shooting, and that is there has to be a reasonable fear. to be afraid, they have to have a reasonable fear. And is shooting someone in the back as they run slowly away from you, is that manifesting a reasonable fear for your safety or the imminent danger to others? No, of course not. But this is sort of an unwritten law that has helped a lot of bad officers go free. And I've actually got a piece I wrote about this years ago that I'll put in the show notes as well, that this testimony that says,

I'm afraid, followed by, well, then the argument, who are you to question, has had an incredible amount of power in jury cases. And I think it's actually having a diminishing amount of power now. There are signs that under cases where a cop would have been acquitted in the past, they're no longer being acquitted. But that case is almost the paradigm of that. And, um, uh, that officer was convicted. Now, of course these were not police officers, but just again, to go back to that Michael Slager case, this is what the jury foreperson said after in a television interview. Uh, he was the only black member of the jury. Initially it was going

to be murder, but after reviewing the evidence and reading the legal definitions the things that were presented to us by the judge we had come to find out he didn't do anything malicious he said he believed slager demonstrated quote a brief disturbance in reason so based on the law that would be classified under manslaughter voluntary manslaughter um when asked whether as the only black person in the 12-member jury, what was the role of race in the trial? Due to the society that we live in,

race will always be a factor. But he added that he did not believe race played into the decision for the majority of the jurors. Asked about the one holdout, he just had his own convictions. And I'll leave that right there. So look, I think that the Ahmaud Arbery case will come out with guilty verdicts. But if it doesn't, I think we're going to see some very similar quotes to the jury foreperson in that Slager case.

Yeah, but I tell you, this one, gosh. So let me just go back to this because it's in the piece that I wrote, but it's worth highlighting. They're likely going to rely a lot on this sort of citizen's arrest statute. And it says that a private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. In other words, if you watch somebody snatch a purse or if a woman turns around and says, he snatched my purse and you see somebody fleeing, you know, then there is something that's happened right within your immediate presence. than your immediate presence. And then it says, if the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion. Now, one of the interesting things about this is the McMichaels didn't actually witness anything happening. They apparently just witnessed Arbery running on the street.

So they've got a lot of legal hurdles here, Sarah. They've got a lot of legal hurdles. So what they may end up doing is trying to center a lot of it around the one or two seconds where the video is actually kind of, um, unilluminating when, uh, Arbery goes around the truck and there's a confrontation sort of around the

truck, but that is, they, they've got a tough, they've got a tough road. The defense here has a tough road. The facts of this case are yikes. But again,

like you said, the Michael Slager case, the facts there were yikes, perhaps even double yikes, the video, and we had a mistrial. So we'll see. And we will circle back to these cases when the arguments from the prosecution and defense rest. This and the Rittenhouse case, the prosecution and defense rest, this and the Rittenhouse case, the prosecution is expected to rest today, I believe, in that case. And we'll take a quick break to hear from our sponsor today, Aura.

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And he issued, this is now, for those who don't remember, John Durham was appointed under the Trump administration to investigate the circumstances surrounding the beginning of the Trump-Russia investigation. And he has issued another indictment. He indicted a man named Igor Danchenko, who was, quote, the principal subsource, subsource for the Steele dossier. quote, the principal subsource, subsource for the Steele dossier. And this is one of these straightforward lying to the FBI kind of cases.

And the essential allegation is that Danchenko lied to the FBI about whether some of his information came from a longtime Democratic Party operative. came from a longtime Democratic Party operative. And that longtime Democratic Party operative has since been named as a guy named Charles Dolan, who runs a PR firm, ran the Clinton-Gore campaign in Virginia in 92 and 96. He's just kind of been in Democratic circles for a while. And, you know, it just really highlights the sleaziness of the Steele dossier, the sketchiness of the Steele dossier. And it isn't really indicting anyone for the Steele dossier.

It's for lying to the FBI. And Sarah, you had some pretty straightforward thoughts about this in the green room. This is a very straightforward 18 USC 1001 case. If you lie to the FBI, you are very likely to get charged with lying to the FBI. We've seen a lot of these recently. Lord knows, David, you and I have talked about it. It's just not a good idea. I see a lot of people, though, trying to take this 1001 case and making broad statements about the Durham report, about what the Hillary Clinton campaign did, about the Mueller investigation. And I guess my thoughts are, huh, that's an interesting indictment. Looks like that guy probably lied to the FBI. And I guess my thoughts are, huh, that's an interesting indictment.

Looks like that guy probably lied to the FBI. And I'm going to wait for the Durham report to find out what is relevant to the larger picture about this indictment. And the reason that I say that is because, again, as someone who was at the Department of Justice for the entirety of the Mueller report, the Department of Justice, for the entirety of the Mueller report, it was frustrating bordering on comical to see people try to state with, I mean, deep authority what the Mueller investigation was going to find on both sides, by the way, based on like nothing and just or things that were wrong. Even weirder, they would say like, well, as someone who's been a prosecutor before, I'm looking at this and that to me tells me that they've got this, this, and this.

And I was like, whoa, whoa, whoa, whoa. You sound dumb to the people inside. So in an effort to not sound dumb to those inside, I'm just gonna say like, yes, it looks like that guy intentionally misled the FBI when he was asked pretty straightforward questions in his interview. And beyond that, I will be looking forward to John Durham's report. Yeah. One of the things interesting about the Mueller report was at least the quote unquote collusion side of it.

In other words, the part of it where you're worried, concerned about what were the Trump administration. I mean, Trump campaigns, contacts with Russians and a lot of that, it turned out, was largely mapped out before the report came out, mapped out by the series of indictments that were filed. before the report came out, mapped out by the series of indictments that were filed. And so that part of the Mueller report only contained a few really interesting or surprising nuggets to it. It was the obstruction of justice portion of the Mueller report that was most of the sort of new news in the Mueller report. The indictments had the breadcrumbs. There were a lot of breadcrumbs, and you kept saying, wait, these are breadcrumbs. Don't know where they're leading. Turns out they were leading where they

were, had already been. They were just sort of showing us what, what the case largely was. Yeah. So for instance, to go back, the 12 Russian GRU officers from their intelligence agency were charged with hacking and attempting to interfere in the 2016 election. When that came out, there was this sudden like, aha, the Trump team is next. See, these people were, and I was like, wait, what? No, just take it on its face. So take this indictment on its face and just stand by. Just keep a nice tight hold on those reins for your horses. Patience is not a virtue that we seem to have anymore, but we'll see what John Durham says. Look, he could say that all of the tea leaves were there and this led to this. And actually, the Hillary Clinton campaign did this. It won't mean that I was wrong today. It'll just mean that I like actually hearing from the person conducting the investigation. general, because I think this is something that is why I wrote a piece I put in and show nuts. You know, when you write a lot, Sarah, it turns out that you've written a lot about almost everything that pops up. But anyway, I wrote a piece about this and I, I called the,

the steel dossier was Hillary Clinton campaigns, malignant gift to America. And it essentially had sort of two, there were two ways in which the Steele dossier was particularly problematic in the public discourse. One that impacted the left and one that impacted the right in similar ways. One is when BuzzFeed just vomited this thing into the public square, an action that I thought was and still think was incredibly irresponsible. Ben Smith, by the way, who's now a New York Times contributor, opinion author, has defended it and saying that all of this attention proves that it was newsworthy. newsworthy. And I think the pushback to that has been, yes, it was newsworthy, but you as a journalism outlet had a responsibility to determine whether it was also true. Correct. Correct. So, man, okay. Screed incoming starting now. Okay. So let's go back to early

2017. BuzzFeed gets a hold of this dossier, which was something that was created through the course, a series of quote-unquote reports created during the summer and going into the fall of 2016. It was kind of in circulation in the background in the way a lot of opposition research is sort of in circulation in the background. I remember this was a weird, wild time where there were lots of rumors about basically everything flying around. So I would get emails, do you want to talk to so-and-so who accuses Trump of such-and-such?

Well, what's the foundation for the accusation? Well, we can't go into that. Or do you want to? And a lot of sort of wild oppo research was flying around. And part of that oppo research was this, and again, I'm using air quotes when I say research, was this Steele dossier. And so BuzzFeed gets a hold of the Steele dossier.

And it turns out that at least parts of it were being sort of briefed to Obama and Trump as this is what is circulating out there. And so BuzzFeed tries to validate it. They put some of their resources on validating it. And they can't. They can't validate it. And then they put it into the public square and Ben Smith does a lot of good work. Okay. He has done a lot of good work. This one, he puts it into the public square and he says

as he puts it into the public square, we haven't been able to validate it, but we want people to see it and sort of make up their own mind. What the heck do you mean by that? There were allegations in there like Michael Cohen having clandestine meetings in Prague. How am I, Joe Reeder, supposed to decide if Michael Cohen actually had a meeting in Prague? Put my team on it? Are you kidding me? That's what the media is supposed to do is when they get an accusation, put a team on it, kick the tires on it, investigate it. If it doesn't pan out, you don't broadcast it. So here's what happened, Sarah, in my view. Two things at once.

Number one, a lot of people on the left read the Steele dossier and said, aha, this is what the Mueller investigation is going to prove. So here's who Trump really is, and here's what the Mueller investigation is going to prove. Then there were folks on the right who said, you know what?

If they don't prove this, there is no scandal. It's all nothing. And so on the one hand, you had the left saying, here's the roadmap for what the scandal is. And on the right, you had, if you don't meet this test of this garbage document that never should have been in the public square, then there's no scandal. So every new revelation that came forward that was deeply troubling about Trump campaign conduct that didn't match the magnitude of the Steele dossier was totally dismissed by the right.

And every new nugget that came forward that was not the Steele dossier, but pointed to troubling conduct by the Trump campaign, the left was like, aha, we're moving towards the Steele dossier. And what a mess. I mean, what an absolute mess when in fact the Steele dossier. And what a mess. I mean, what an absolute mess when in fact the Steele dossier didn't even launch the Russia investigation at all.

It was relevant to some FISA applications as is outlined in the indictment. We'll put the indictment, Durham's indictment in. But that's where we were is it gave the left a roadmap and in all its absurdity, it gave the right an out to where they could say, well, you didn't prove the Steele dossier, so why are you talking to me about Paul Manafort sharing confidential polling information with a Russian agent? Or why are we even having a conversation about Trump Jr., Manafort, and Kushner meeting with a Russian lawyer in Trump Tower? That's not proving the Steele dossier. So that's my short rant about how malignant that document was in the public square.

And indeed, you can see me at times talk about it on the ABC Hulu documentary, Out of the Shadows, The Man Behind the Steele Dossier. George Stephanopoulos sits down with former MI6 spy Christopher Steele for his first exclusive interview. Interesting. So I didn't know you were in that. I didn't know you were in that. So I am. know you were in that. I didn't know you were in that. So I am. So you are. Well, stay tuned. We're going to learn a lot more. But I tell you one thing. It's interesting. If you go back and you look at all of the commentary for years, the people who come out well in that are the people who are consistently saying, let's wait and see, let's wait and see.

The people who don't come out well were those who were saying either there's nothing to see here or we're headed for the big reveal. or we're headed for the big reveal. And that was kind of the predictable partisan breakdown. And gosh, I just can't emphasize enough how much this Steele dossier behind the scenes and sort of in people's minds and hearts influenced how they saw this thing. And once again, just to go back to this BuzzFeed thing,

and I don't think I made the point well enough, maybe, and just in reflecting on the last five minutes, when you're a journalist, you get all kinds of rumors. They come in about candidates, and some of them are lurid. You will get lurid rumors about candidates. And the last thing you do is you say, well, if this rumor is just talked about enough, even though we can't verify it,

let's just go ahead and put it out there. And that is so fundamentally irresponsible. And again, Ben has done a lot of really good work. He really has. I'm just, this one, frankly, mystified me at the time and it mystifies me still. Well, on Thursday,

we're going to have some good SCOTUS arguments to dissect. Outstanding, including First Amendment. It's going to be great. And this is why Sarah's going to teach me that I need to care about billboards more. So I'm looking forward to it. You should be looking forward to it.

Thank you again to the great folks at the University of Tennessee for hosting us last week. And please subscribe on Apple Podcasts. Please rate us on Apple Podcasts. And please check out dispatch.com. We will talk to you on Thursday.