Advisory Opinions - A Different Kind of Impeachment

Episode Date: September 14, 2023

The David and David show looks at Speaker McCarthy's call to open an impeachment inquiry against President Biden. They also break down a big win for the Fellowship of Christian Athletes in Ninth Circuit free speech case. And... -Trump cases update -New Mexico Gov v. the US Constitution Show Notes: -How Trump’s DOJ gave Biden a major assist on impeachment -OLC opinion on House vote for impeachment -Trump Seeks Recusal of Judge in Federal Elections Case -Trump demands recusal by Judge Chutkan -Judge Tells Trump to Use Secure Facility for Secret Evidence -Fellowship of Christian Athletes v. San Jose Unified School District Board -New Mexico’s governor seems to think it’s okay to ignore the Supreme Court Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm David French with David Latt. And my goodness, David, I feel like just sort of starting this podcast by saying, this is one of the podcasts when you're going to realize we cannot be experts in everything. This is a lot to cover. And so some of the things

we're just gonna kind of dip our toes in. One of the discussions, we're gonna jump all the way into the deep end of the pool, but it's stuff that we talk about all the time regarding religious liberty, free speech, freedom of association. But a lot of it's gonna be,

hey, listeners, this is what's happening. We're going to issue spot for you. We're going to tell you what's going to be important here. But quite frankly, you know, I'm just speaking for me, David. I don't know exactly how this should turn out. It's going to be my conclusion for some of this stuff. And so it's going to be, it'll be fun

though. We're going to go through a first discussion of some of the legal issues surrounding impeachment. We're not going to dive into the politics. We're not going to do the political comparisons with various cases. We're going to do, just highlight some of the legal issues that I think are very important to highlight and very interesting. We're going to just highlight some of the legal issues that I think are very important to highlight and very interesting. We're going to do a brief Trump update. There is actually not that much there to talk about. There's a recusal motion that has some interesting arguments. There is a protective order that's in the Mar-a-Lago documents case that is just worth a very brief mention. Then we're going to dive into a Ninth Circuit

en banc decision about a student religious club called the Fellowship of Christian Athletes, FCA, and its challenges in a California high school. And it's a really important First Amendment decision that has direct bearing on a case that really represents maybe the last time that there was a significant First Amendment slash religious liberty loss at the Supreme Court. And so it's got direct bearing on that case. We're going to talk about Google's antitrust trial with a glaring malpractice warning to follow or to precede that. And then there's an Elon Musk lawsuit that actually might have a chance. And also a DACA ruling. So let's just get started, David. Let's start with impeachment. House Speaker McCarthy has decided to launch an impeachment inquiry into Joe Biden.

Okay, that's been news everywhere. There's a legal aspect to that announcement that is very interesting, really kind of two legal aspects. So first, let's sort of set up the facts, set up the scenario. This is a different form of, this is a little bit different from previous impeachment inquiries in the modern era. So in 1998, there was an impeachment inquiry only after the Starr Report came out. The Starr Report came out after sort of Monica Lewinsky's blue dress was tested. And there was DNA evidence just that established beyond any real viable doubt that Bill Clinton had lied. He'd lied under oath. He'd had an affair with an intern.

And so the impeachment inquiry began after this information came out. Fast forward to 2019, next impeachment inquiry. There were a number of reports piling in at that point in 2019, in moving into September 2019, that Trump had exerted pressure on President Zelensky of Ukraine to launch an investigation of Joe Biden and the Biden family, Hunter Biden mainly, and Joe Biden and the Biden family. And this was, there was a Wall Street Journal report saying that Trump had repeatedly pressed Zelensky.

This was when there had, and then Trump had admitted that he had withheld aid from Ukraine for a while. And then right after Pelosi announces the impeachment inquiry, the White House releases the rough transcript of the call with Zelensky and it shows the quid pro quo, or at least the proposed quid pro quo. Then in 2021, impeachment inquiry number two, or number two for Trump, number three in our list of examples after January 6th. Now, what's different about now? What's different about now is you don't have any of the evidence like we had before the

impeachment inquiries began in the previous circumstances. And that's actually legally relevant, David, in an interesting way, because what House Republicans are saying is that we actually need the impeachment inquiry to continue our investigation. So there's a pre-existing investigation about Hunter Biden and the Biden family's business dealings abroad and Joe Biden's role in that. And look, there's a lot of sleaze that's been uncovered, a lot of sleaze, no question about it. But there has not been any direct evidence of Joe Biden engaging in any criminal wrongdoing, certainly. And there hasn't been any direct evidence that Joe Biden has profited from his family's dealings overseas. There has

been evidence that Joe Biden has lied about the nature of Hunter Biden's business dealings, but there's not evidence that he has received benefit from them. And so the House argument is, and David, very interested in your response to this. Essentially, like to continue our investigation diligently, we have to kind of re-hat it. We have to move it from sort of legislative oversight or legislative style inquiries, which give us a certain degree of subpoena power to an impeachment inquiry, which gives us a greater degree of subpoena power. And then now we'll be able to reach documents and reach evidence that we were not able to reach before. So this is a necessary move, they would argue, to allow us to have the legal authority to gain additional information. And that's sort of the basis for it. It's not that they have discovered the blue dress or that there's the rough transcript of the call

or that there's the January 6th riot. It's that stuff might be out there. And the only way we can discover it is through an impeachment inquiry is essentially their argument that the impeachment inquiry is necessary to even see if there is anything impeachable. Your reactions to that? Well, it's interesting. I guess there are analogies to other

areas of law where you have to make some kind of threshold showing before you're entitled to delve more deeply into something, whether you have to show probable cause to get a search warrant, whether in civil litigation, you have to plead enough to get discovery. And I think the point you made in your recent times column, with which I largely agree, is this is a lot like what lawyers would call a fishing expedition. There isn't a lot that we've seen so far.

And so I think there are serious questions about the extent to which this is justified. And I know that we're really trying to focus on the legal aspects here, but it really does resonate much more politically, I think, than legally, just given what we know now. And I should say, I have not made up my mind on the underlying merits of this. I cannot rule out the possibility that someday there will be some smoking gun that top got half of Hunter's income or whatever it is about that stray text message, for instance.

I am not ruling that out. I am not one of these people who says, oh my gosh, the Biden family is clean as the driven snow. But based on what we know now, I do question whether there is enough to go to this next level. And that's not even getting to the issue, which we can discuss in just a second, about whether or not procedurally this impeachment inquiry is authorized. Yeah. Now, yeah, this is what's

interesting because I'm glad you brought up the sort of the legal analogy of it is not just the case that you can sort of say, well, I'm going to open a criminal inquiry. If I'm the FBI, I can open a criminal inquiry of David Latt. I mean, don't really have any evidence that David's done anything, but unless I get subpoenas, I won't know if he really is innocent. And there are thresholds, but you just can't do that. There have to be threshold showings that you have to reach before you can unlock certain kinds of investigatory powers. And the interesting analogy here is because impeachment is a political process. It is not a legal process. Is there a threshold kind of issue that needs to be crossed before you can unlock that larger power? And the Trump DOJ argued, in fact, yes.

So it has a 2020 legal opinion that says, OK, wait a minute, this is the Trump era DOJ. You cannot actually unlock these larger impeachment inquiry powers, including that more expanded subpoena power, unless the House has voted to launch the impeachment inquiry. In other words, it's not that there's an evidentiary threshold showing. That's much more sort of a political argument. What I talked about was, you know, where's the dress? Where's the transcript of the call, et cetera? That it's actually the political process has to work in a particular way to unlock the power. And that particular way is the House has to vote to launch the inquiry. It has to be

an action of the House and not just an action of the Speaker of the House. And this was relevant because in the 2019 impeachment inquiry, Nancy Pelosi launched it unilaterally. So a lot of people who are saying, you know, McCarthy, you don't have the power to launch this unilaterally. Well, Pelosi did. Okay, so on September 24th, she launched the impeachment inquiry unilaterally. So on September 24th, she launched the impeachment inquiry unilaterally. And but in October, the next month, the full House voted on it. But there was a period of time, there were weeks where the House was exercising its impeachment inquiry, was engaging in its impeachment inquiry without the larger House voting. And so what the Trump DOJ said is, as a matter of law, you cannot unlock this expanded power without a House vote.

I'm very persuaded by that opinion. I have to say, David, I'm very persuaded by that opinion. Because if you're looking at the language, the Constitution vests the sole power of impeachment in the House of Representatives. And this is what the Trump DOJ said. For precisely that reason, the House itself must authorize an impeachment inquiry as it is done in virtually every prior impeachment investigation in our nation's history, including everyone involving a president. So the argument there was, wait a minute, these subpoenas issued under the impeachment inquiry prior to the vote or without

a vote, are they enforceable? Are they enforceable? And that's going to be a key question unless McCarthy goes to the full house. And right now, the informed speculation is that he doesn't have the votes. So the real question is, does his unilateral announcement unlock the power that he thinks it unlocks? Did you find it persuasive? I agree. I think that the Office of Legal Counsel opinion, 54 pages long, very thorough. Steve Engel, who was then the head of Legal Counsel opinion, 54 pages long, very thorough. Steve Engel, who was then the head of the OLC, fun fact, he was actually my law school roommate. But anyway, I think the opinion is very thorough and detailed.

And it's, again, one of these classic situations of what's good for the goose is good for the gander. Back then, Engel's opinion was giving an advantage to the Trump administration. So I think some people on the left criticized it then. Oh, OLC, Trump DOJ, just trying to protect their guy. But now the shoe is on the other foot. And now the analysis of this opinion would actually be beneficial to the Democrats in saying that we need some actual authorization by the full House. So just to quote from the opinion, here's the key language, quote, the House of Representatives must expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation before the committee may compel the production of documents or testimony in support of the House's power of impeachment. So that, close quote. So the House of Representatives, the whole body, must authorize this inquiry. It can't just be done by Speaker Pelosi or

Speaker McCarthy. So I think that really is the issue. Now, look, it is the Office of Legal Counsel, which is part of the executive branch and typically is presiding over these intra-executive branch disputes. So maybe the House Speaker can basically say, you're not the boss of me. It is not like a court in that way. Courts sometimes agree with OLC and sometimes don't. But it's just a very interesting question. And it's much more, I think, a classic advisory opinions listener question to delve into that 54-page DOJ opinion rather than to news about, well, people who live in districts that were carried by the president but are represented by a Republican, maybe those representatives don't want to make the political calculus of voting for impeachment. This issue is much more AO wheelhouse. Yeah, and this issue, I think, in all likelihood,

may well take center stage sooner rather than later because basically what, if I'm advising the Biden administration and, you know, McCarthy directs these various House committees to launch an impeachment inquiry and then in comes the subpoenas, what I'm gonna say is,

nope, you don't have to answer. You don't have to answer because the full House hasn't voted. And so then McCarthy's gonna have a choice to make. Is he going to have to try to go to the full House and get the vote? Under which circumstances? I would say, look, this is the constitutional power of House representatives. You might think it's unfair.

You might think it's a fishing expedition. You might think this is an escalation of political combat. You can think all of those things. Those are political arguments. As a matter of constitutional law, once the House exercises this authority reserved to itself by the Constitution, you're going to have to fork over all this stuff, as unfair as you think it might be. But they're going to say, hey, where's the vote? Where's the vote? And that will, in all likelihood, it could well force McCarthy's hand if he doesn't have the vote, if he tries to

persist. The delay here, David, as they're going to fight this out to the Supreme Court of the United States is going to be very long. There will not be documents disclosed for months upon months upon months upon months unless McCarthy goes for the full vote. And even then they might resist it. I just don't think the resistance will, or as the Borg would say, resistance is futile. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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unbiased, that the judge has demonstrated disqualifying bias in the case. And what's the basis for saying the judge has demonstrated disqualifying bias? And I'll read the major quotes. And David, you tell me, because I'm very interested in your view here. Okay, so in October 2022, in a different January 6th related case, Judge Shutkin said this about January 6th. This was nothing less than an attempt to violently overthrow the government,

the legally, lawfully, peacefully elected government by individuals who are mad that their guy lost. I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb and the people who come before me seem woefully ignorant, not to the ideals of this country and not to the principles of democracy. It's a blind loyalty to one person who by the way remains free to this day. And here's quote number two. This is about a different defendant. He went to the Capitol because despite election results, which were clear cut,

despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn't like the result. He didn't like the result and he didn't want the transition of power to take place because his guy lost. And it is true, Mr. Palmer, you have made a very good point, one that has been made before, that the people exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court's position. I don't charge anybody. I don't negotiate plea officers offers. I don't make charging decisions. I sentence people who have pled guilty or have

been convicted. The issue of who has or has not been charged is not before me. I don't have any influence on that. I have my opinions, but they are not relevant. So you have a point that the people who may be the people who planned this and funded it and encouraged it haven't been charged, but that's not a reason for you to get lower sentence. Thoughts? So I do not think that under current standards for recusal, which are fairly demanding, these comments, which look, I admit, I wish she hadn't made, but I don't think these comments cross the line. The comment about that person being free to this day is simply a statement of fact. It is the statement of fact that the man who was

animating this attack on the Capitol was not charged or imprisoned or anything. That's just a statement of fact. And the other comment where, again, she's just sort of acknowledging reality. She acknowledges that, look, I might have opinions, but they're not relevant. And they're all on pretty much every issue. Judges have personal opinions, just like you and I have personal opinions. But she is acknowledging, she is recognizing that her opinions are not relevant. And again, this is not dispositive to the inquiry, but there are interesting articles in the Times and the Washington Post where they show that many other judges

in the district court for the District of Columbia have made similar comments, which while not directly impugning Trump, are commenting on circumstances surrounding January 6th in ways that are similar to what we have here. So I don't think that recusal here is required, but I'll step back and say, just to play devil's advocate, if we think this is a special and extraordinary proceeding, which in many ways it is, maybe there's some kind of argument for a sort of discretionary recusal, that this proceeding is so important to the nation and its integrity must be beyond reproach, that just out of an excess of caution, Judge Chutkan should recuse, even if it might not be strictly required as if she were trying to hear a case about something she owns stock in.

So I think that would be the argument that these statements don't quite cross the line. But for this proceeding, we need to have such an unimpeachable judge. Yeah, I'm glad you raised that distinction between mandatory and discretionary recusal. I do think that's a very interesting question. Like you, I find those statements troubling, to be honest. judges are often unleashed in particularly in sentencing. In sentencing is often when you have judges who will take to the bench and they will scold the defendant. They will vent on the defendant after the defendant has been convicted.

And while the discretionary aspect of the case then sits in the judge's hands. So the judge will have some degree of flexibility over sentencing and over how much time they spend in federal prison. And they'll often explain, sometimes at high volume, David, why they choose one course of action over the other, why they might be more harsh or why they might be more lenient. And they will inject their opinion into that.

Why? Because their opinion, that's the stage where their opinion actually really does matter. And they'll kind of provide larger context, the factors that influence them. And so just give you some flavor of some of these others, these other judges. Judge Mehta, District Judge Amit Mehta, apologies if I did not pronounce that correctly, said one rioter was a pawn in a game that's played and directed by people who should know better.

Judge Colleen Collar Codley, again, apologies if I didn't pronounce the name correctly, said of another, followed then-President Trump's instructions. Judge Contreras has said at multiple sentencings the events of January 6th involved the rather unprecedented and confluence events spurred by then-President Trump

and a number of his prominent allies who bear much responsibility for what occurred. Judge Amy Berman Jackson has cited its reason to keep some rioters behind bars. The fact that Trump quote continues to propagate the lie that inspired the attack on a near daily basis. Judge Bates wrote that one might conclude Trump was urging protesters to enter the Capitol building and stop the certification. Judge Walton called Trump a charlatan who doesn't,

in my view, really care about democracy, but only power. These judges were appointed respectively by Barack Obama, Contreras and Jackson. Judge Culler Cuddley by Bill Clinton, Bates and Walton by George W. Bush. So judges from a variety of different backgrounds are saying, have said these things. None of that surprises me at all. This is what judges do at sentencing. that a discretionary approach here would might say, look, okay, is there someone in the district

who's not said something like that? And that, because the process would be recused and then what? It goes back into sort of the pool? Well, it's interesting. Basically, the judges you named, you know, spoiler alert, they all were appointed by Democratic presidents. Except for the Bush appointees.

Wait, I thought it was all, who was the Bush appointee? So it was judges and Judge Bates and Walton by Bush. Oh, it's interesting because Judge Walton's comments, I think, are actually the most troubling of the ones that you read. Agree. Agree. But I guess what I would say is, I think I can still make a similar point to what I was going to say. It definitely skews the reassignment in favor of a Republican appointee and a Trump appointee because none of the comments read read came from Trump-appointed judges. And so this is one of the dangers of recusal, that it can sometimes violate the principle of a neutral, random wheel because you are sort of adding a substantive skew to where the case is going to go. So that is definitely, that's my concern here. But again, as I said in my earlier comments,

I am on the fence here. Yeah, I'm on the fence as well. I mean, I do wonder about, I totally get this notion that says, okay, we've got the evidence, the jury has rendered its verdict, this is a guilty defendant. And now I am weighing how much of a sentence to impose using the discretion that has been granted

me, which includes subjective as well as objective factors. And so I don't have a problem with a judge weighing in public saying, this is why I reached this decision. This is why I am particularly, might be particularly punitive. This is why I might be particularly lenient. But here's the interesting issue. If you're going to just pull this out in an analogy, if you know there is a, or if you know that someone was part of a larger event that had many players in many places,

it would behoove a judge, I would think, to not opine about the other players in the same event who are not before them, but might be. And that's the beef I have with the judge's statements. She's not just opining on the person in front of her, which in that context is appropriate. She's opining on other players in the same series of events who might ultimately be in front of her court. That's my issue. It's a good lesson for district judges to not opine on people and matters not before them. I suspect that when Judge Chutkin made these comments, she had no idea that someday she would be presiding over a case accusing Donald Trump of subverting democracy.

I think she had no idea. And so I guess for all the judges out there who do listen to this podcast, and there are a fair number, it's a cautionary tale. Yeah. If you know there's like a John Gotti hovering out there, and you've just got like a foot soldier,

like a Jimmy the Butcher Vanetti, or I'm just making up names, but don't opine about Gotti when you're just in front of the butcher. Or it's just the butcher in front of you. Yeah, I'm with you. I do not think it's mandatory. But should she?

Should she is another, because she has the power to say, no, it's not best for me to be the judge in this case. And I might be leaning that she should step aside. Well, one thing I would just flag is, again, just on this sort of veil of ignorance, good for the goose, good for the gander. Sometimes when it comes to Supreme Court justices, there are these optical reasons where people say, oh, you should recuse. And a lot of times,

I think the justices say, no, I shouldn't recuse because the standard is a fairly high one. And look, I know the court is different. They can't just wheel this out to another judge or they can't just get in a fill-in justice. So there is a higher standard for the Supreme Court. But I think we do have to be, try to be very fair-minded in these recusal calls and imagine, well, what if it was, you know, the other team? So that's all I would know. Oh, wait, one more other, one other Trump update, or actually two more Trump updates. The one I was going to mention was the 11th Circuit granted Mark Meadows' request for an expedited appeal of the denial of his removal request, which we had talked about on the last episode. So that could mean two things. It could mean, one, the 11th Circuit is looking favorably

on Meadows' arguments, or it could mean, two, the 11th Circuit simply recognizes the urgency and importance of this case. So I don't want to read too much into that, but we could be hearing from the 11th Circuit sooner rather than later. No, I don't. The main takeaway I take from that is everyone knows this is urgent. But I'm going to say this. The more I think about Judge Jones's reasoning, the more vulnerable I think it is. And mainly because he so thoroughly adopted this, what's the gravamen of the case analysis as opposed to, wait, there's this specific allegations against him that were

less relevant than the general allegations of the scheme. Not sure that's the right analysis, but remember, he then didn't even really delve into, are there colorable federal defenses, the third prong there. So it could be that the 11th Circuit says, hey, the second prong favors Meadows, the third prong does not, or just sends it right back to say, you didn't even look at the third prong, it will be interesting. But I do think the reasoning, the reasoning, it's more vulnerable the more I think about it.

And I would point out, again, shout out to the excellent AO commenters. There is one commenter I've been having a back and forth on, and I think I'm kind of won over to his or her view that the second factor may cut in favor of Meadows, because when you look at the other under color of case law and analogs to other areas, it's not supposed to be a demanding standard. I think that there is a decent argument that the colorable federal defense prong is not satisfied by Meadows, But under color of, just in terms of your office, it's not supposed to be a high standard. So what I would suggest or raise the possibility of is,

if the 11th Circuit reverses here, I wonder, just in the interests of judicial efficiency, given the urgency of this super high-profile case, whether they just go to the third prong themselves. Because one thing that's a little unusual here is, in terms of these interlocutory appeals, we have an evidentiary record. We had a hearing where Meadows testified at length about the situation. And so I could see the 11th Circuit saying, look, just in the interest of efficiency, we are going to either decide that issue or we're going to put so much language in this opinion that it will be glaringly obvious to Judge Jones how he should resolve prong three. And I don't know which way they would go on that, but I just think that this is a preliminary issue

about which court this is supposed to be in, state court, Fulton County Court, or federal court, Northern District of Georgia. Are we just going to have this tennis ball bouncing endlessly back and forth on a completely threshold issue? Yeah, no, I agree with you. I agree with you. I think that the 11th Circuit will behoove the 11th Circuit to settle this. In other words, it is in all of our interests for them to just go ahead and settle this question. And I sincerely doubt, to be honest, that the Supreme Court would take it up, in my view. I think the Supreme Court's going to leave this alone. The Supreme Court's not going to be dabbling into the various interlocutory motions. It's just going to let the circuit court handle

it and the district courts handle it. And that will be that. That's my own, take that opinion for what it's worth, which is basically nothing. But that would be my projection. Okay, the other matter, the protective order. You want to take us through that? So the other Trump update pertains to the protective order that was entered in the Southern District of Florida case. This is the Mar-a-Lago documents case.

And lawyers for Trump and the prosecution have been sparring over whether Mr. Trump, who's accused of mishandling these classified documents, can discuss some of the documents at issue with his lawyers outside of a SCIF, which is essentially a sensitive compartmentalized information facility. And Trump was arguing in favor of having the ability to discuss them in a SCIF at Mar-a-Lago. And the prosecution is not so keen on that idea. And Judge Cannon just issued a ruling which seems to say that Trump should not be given any kind of special treatment

and should have to go to a skiff like anyone else. Right. And what's interesting about the ruling, you know, it's barely worth mentioning, but I kind of feel like we, every piece of Trump news that makes national news on every newspaper in America, we should at least like address it. The only thing that makes it barely worth mentioning in my view is kind of latent within the ruling is the notion

that all this stuff is still classified. Right. So, which is a kind of a big deal in that sense that, you know, if Trump is going to try to make an argument that. I mean, none of this, it's mine, you know, the seagull argument, mine, mine, mine for it to be his as a private citizen. It's it's just it can't be classified. And there's a it couldn't continue to be classified. And so if he is latent within this ruling is sort of this notion that, yeah, there's a bunch of classified information here. So, but take it for what it's worth. It's just a very, very, very, very small element of this case that we will immediately forget in probably two to three weeks. engage in all the Trump tea leaf rooting that we do. It does suggest that Judge Cannon is not total MAGA judge in the sense that this was an issue that was disputed. And she could easily have said that Trump should be allowed to reestablish or set up once again his skiff at Mar-a-Lago. And she didn't do that. So that's noteworthy. You know, and let me just say this. I think Judge Cannon's orders in the Mar-a-Lago search were close to Bonkerstown.

Like, she got on the border of Bonkerstown. And then the Court of Appeals absolutely shut the door on that. And if you're a district judge and you've been in a very, very, very high-profile case and you've had the Court of Appeals in polite judicial language sort of obliterate your reasoning, virtually every district court judge in that circumstance is going to then be extra careful that they're not going to drive near a bonkers town anymore. Because, you know, look, district judges care about their reputation. They care about their future. You know, a lot of district judges walk into the district courthouse not necessarily thinking,

this is my final career destination. They've got an eye somewhere else. And it would be really hard to climb that ladder, that judicial ladder, if you have been obliterated by the Court of Appeals, You have been obliterated by the Court of Appeals, including by judges appointed by Trump. And so I am not as concerned as some people are that Judge Cannon is just going to sort of go rogue here. I think that initial rebuke by the Court of Appeals, if she is even in the realm of a normal district court judge, regardless of party, that's going to make an impact and that will shape her thinking going forward. All right. FCA? Yes.

Okay. So we might not get to everything because we're like more than 30 minutes in and we haven't even gotten to this FCA case. All right. So there was a fascinating decision. And when I say fascinating, I'm unlocking, David, a lot of my own legal career history here. Out of the Ninth Circuit on an issue that was honestly one of the most prominent First Amendment higher ed education issues in the nation 15 years ago. So if you're going to rewind the clock 15 years, I would say that one of the biggest issues that I face in my career, going back to FIRE days as president of FIRE, even going back before then, going back to fire days as president of fire, even going back before then,

when I was the first member of the fire legal network, to when I ran the ADF Center for Academic Freedom, was the clash between free speech and non-discrimination laws. And specifically, the clash between religious student groups' ability to have leaders who didn't just subscribe to a statement of faith, but a code of conduct sort of in line with traditional Orthodox Christianity on sexuality that would say the sexual activity is reserved for a relationship between a man and a woman. Or some of them, it was even broader because they would say, you have to agree with the statement of faith and the code of conduct. And the statement of faith said, you

have to believe it's a classic Christian-like Apostles' Creed kind of statement of faith. And people complained against these groups on two grounds. One, that's discrimination on the basis of sexual orientation. The other one was that's discrimination on the basis of religion, which that latter point never really landed because of course a religious student group is going to have religious criteria. And so that was always sort of the weaker of the argument. So it'd be about like saying,

we're not gonna allow college Republicans to exist on this campus because they discriminate on the basis of political status. Well, of course they do, right? The harder issue was always the other prong, which was a sexual orientation, non-discrimination provision colliding with a religiously motivated code of conduct. code of conduct? And how would that play? And there were sort of two thrusts of cases. One line of cases was essentially, look, this was the combat between the non-discrimination clause and free speech and freedom of association and religious free exercise. And in general, as a general matter, as it all shook out, the religious student groups

tended to win those cases because the non-discrimination clause in some parts was, you know, it only listed specific criteria. So other forms of discrimination were okay. And this form of discrimination was not. And so essentially what courts were saying was, wait a minute, you're allowing some groups to discriminate on some bases and not allowing other groups

to discriminate on other bases. And then, and sometimes it was arbitrary. What's a recognized student organization versus another kind of student organization? And it got very messy. And these cases by by and large, were resolved in favor of the Christian student groups. Okay.

Then there was an innovation in another case. This was CLS versus Hastings, a Supreme Court case, where what the UC Hastings College of Law said was, wait a minute, it's not really a conflict between a non-discrimination clause and freedom of association. We're going to say that every student has to be eligible for leadership and membership in every student organization. So it wasn't so much a non-discrimination clause as a all-comers policy. And in that case, the CLS stipulated,

entered into a stipulation that the all-comers policy was applicable and that it wasn't viewpoint discriminatory. So therefore, that case was fought over the all-comers policy. And in a 5-4 decision, the Supreme Court ruled against Christian legal society. In this very specific case of an all-comers policy

conflicting with CLS's religious tests. This was quite frankly, David, the last significant religious free exercise slash free speech loss for religious plaintiffs before the Supreme Court of the United States. And it was more than a decade ago. But the cases had almost no resonance across the country. Why?

Because all commerce policies are actually almost impossible to enact truly. Because what would all commerce policy mean? Well, you can't have men's intramural sports. You can't have women's intramural sports. You can't have fraternities. You can't have sororities. You can't have a men's glee club or a women's a cappella group. You can't have. And so it's just a practical matter and all commerce policy just doesn't work. to stop filibustering here in a minute. Let's fast forward to the present day. And Fellowship of Christian Athletes had long had a chapter in a high school in the San Jose Unified School

District. And this chapter required that student leaders affirm a statement of faith, which includes the belief that sexual relations should be between the confines of marriage between a man and a woman. A teacher finds out about the statement of faith after this chapter has been there forever and launches an absolute crusade against this group. Just an absolute crusade. So here's this teacher, Peter Glasser. He gets copies of the statement of faith Sexual Purity statement from other students. He says the statements contain objectionable moral stances on marriage and sexuality, that he had to react right away to the viewpoints because any delay in his response could have interpreted as agreement or even worse, apathy.

So before his first period, he posted the statements on his whiteboard with a note i'm deeply saddened that a club on pioneers campus asks its members to affirm these statements how do you feel and that launches this really intense attack on this club and includes and glasser puts in a move in an email we move right to the question of whether FCA's views need to be barred from a public high school campus. And then he just absolutely lambasts their views. And so to make a long story short, the campus bars FCA,

but then to do so enacts a version of an all-commerce policy because it can read Supreme Court case law and CLSV Martinez is the governing case in the area. But it does something interesting where it allows David for discretionary opt-outs, for discretionary, to allow clubs on a discretionary basis to opt out of this. So, for example, a girls club could be open only to people who, quote, identify as girls,

or a guys club only to people who identify as guys. So some of the clubs are able to be, to opt out. Case goes up, the district court rules against the FCA, case goes up, Ninth Circuit ultimately ends up on bonk. And on bonk, the Supreme Court, I mean, the Ninth Circuit says, look, the case law has developed since CLS v. Martinez. And under a free exercise clause analysis, if you have that discretionary opt-out, if the officials have the ability to opt anyone out of the policy, well, you're done. You're done. This is Fulton County. You've got to satisfy strict scrutiny. You're done. You're out. And then they also go and overrule a prior precedent from 2011 that would have in the

Ninth Circuit, that would have disfavored FCA in the Ninth Circuit. But it was essentially, look, one ounce of discretion here to public officials and you just lose. Fascinating case. David, your thoughts? Well, it is interesting. It was actually a surprisingly,

I guess I say surprisingly, not because I disagree with the outcome, but because it's the Ninth Circuit. It was a surprisingly lopsided victory for FCA, 9-2 in the en banc court. And it's just kind of another sign that this isn't your father's Ninth Circuit. The reputation of the Ninth Circuit is this crazy, out of control, left-wing court is not really quite deserved today. There are a lot of new appointees, including not just the Trump appointees, but even some of the Obama appointees who are much more moderate and much more willing to follow Supreme

Court precedents, even if they don't like those precedents. So this was a 9-2 decision. The opinion was written by Judge Callahan, Consuelo Callahan, who is a George W. Bush appointee. And it was interesting. FCA did have a very good draw because the Ninth Circuit has this modified en banc procedure. It's such a large court, almost 30 judges. They don't sit en banc with all 30 of them. They randomly draw 11 of them. And so this was a very good draw because out of these 11 judges, the chief judge always sits. Out of the 10 judges who were picked randomly, nine out of the 10 were Republican appointees. So that is interesting. But turning to the doctrine, Judge Callahan distilled recent Supreme Court rulings into three requirements. The first one you talked about already, that a purportedly neutral, generally applicable policy cannot have a mechanism for these individualized exemptions, which can definitely be abused. she said the government cannot treat comparable secular activity more favorably than religious exercise because there was evidence here that some non-religious clubs were getting passes and FCA

was not. And that's a principle we saw a million times during COVID where officials were shutting down religious gatherings and churches, but were allowing casinos and things like that. And then third, the government may not act in a manner hostile to religious beliefs or inconsistent with the free exercise clauses bar on even subtle departures from neutrality. And that is the core classic formulation that even people who don't love religious liberty would have to go along with. We can't target religious beliefs, which is even what that older Ninth Circuit president that they overruled would admit is the law. I'm not surprised by the outcome of this case, given the facts, given Fulton County,

given the development of precedents since CLS v. Martinez, which is essentially kind of, it's about as close to, I'm going to officially declare it zombie precedent. It basically now stands for the proposition that if you have an all comers policy and the plaintiff has stipulated away some of their best arguments, then you're going to lose. And that's not a real world situation anymore. And so I think CLS v. Martinez is really a very limited case at this point. But I think this is a good opportunity to talk about a larger issue. And this is something that I think we're reaching. And I'm really curious on your thoughts on this. I think we're reaching a resolution to a question that goes back almost a quarter century now, and that is, what's the interaction between

non-discrimination policy and the First Amendment? I think we're getting, here's my theory. I'm going to share with you my theory, David, and you tell me if you think I'm all wet. Okay. My theory is that essentially what the court has done is it has reached the, quote, fairness for all compromise, judicially. So, what is fairness for all? So, if you go back in the history of this debate, there was a, it's also known as the Utah Compromise. So, there was a legislative compromise that came out of the Utah Compromise. So there was a legislative compromise that came out of the Utah legislature years and years ago that was essentially saying,

look, when non-discrimination policies touch on things like commercial activity and employment and your ability to get a job and the economy and all of these things where non-discrimination law has traditionally reigned, we're going to add sexual orientation to race and sex, etc. But we're going to carve out a zone of free exercise for religious institutions, religious organizations. for religious institutions, religious organizations. And so that was called the fairness for all compromise. Essentially, hey, in the commercial world of commercial activity,

this non-discrimination policy rules. In the world of like religious expression and religious organizations, your religious expression and your religious doctrines are going to win the day. And that was, and experts in this will listen and say, you're oversimplifying, but just bear with me. I know I'm oversimplifying, but isn't that where we've largely landed? Isn't that where the Supreme Court has largely landed? So if you are part of a religious institution, whether it's like the

Catholic Charities or a religious student group or religious institution, whether it's like the Catholic Charities or a religious student group, a religious organization, then the combination of ministerial exemptions, free exercise, etc., has really created a hands-off edict order to state authorities. But if you're in a secular commercial organization, good luck raising a First Amendment objection to non-discrimination policy unless you can tie that to specific expression. Like in the 303 creative context, like I'm actually engaging in expression with my, by designing this web. That's my speech. That's my speech. And so what we've got in actuality is kind of after two decades, the Supreme Court has created a fairness for all type arrangement.

That's kind of how I see it. But I'm very curious how you see it, David. Well, I think that's roughly correct, but I think we still have more fighting on this front. For example, there is the huge issue, which AO listeners will be familiar with, of what happens to Employment Division B Smith. That was the case about whether or not you can have a religious exemption that allows you to, say, smoke peyote, which would be otherwise a controlled substance. And in the Fulton case, which was the case about whether or not the Catholic organization involved in adoption

could prevent same-sex couples from adopting, the court kind of punted. They actually had to do with exemptions, but they didn't really decide the big issue here in terms of that huge clash between non-discrimination laws, especially as applied to same-sex individuals and couples versus the First Amendment. They kind of ducked that issue. And I think we still are waiting for the court to tackle that issue. And this conflict between non-discrimination and the First Amendment is explicitly acknowledged by Judge Callahan's opinion. The first line of

her opinion is, anti-discrimination laws undeniably serve valuable interests rooted in equality, justice, and fairness. But then she talks about how, in a pluralistic society, she talks about how these laws foster worthy goals, but she says the Constitution also protects the right for minorities and majorities alike to hold certain views and to associate with people who share their same values. And she talks about how often anti-discrimination laws and protections of the Constitution work in tandem, but sometimes they regrettably clash, and this is a situation where they regrettably clash. And this was a similar point that was made by Judge Ken Lee, who was on the three-judge panel that first heard this case, which also, interestingly enough, ruled in favor of FCA. So this was a case where the court went en banc and it actually wound up the same way, I guess, just because of luck of the draw. Presumably, it went en banc because a majority of judges actually disagreed with the panel opinion, but here they ended up agreeing with the panel opinion. The other observation I would just make is it is interesting. I think a

lot of the cases you were mentioning, David, they're all First Amendment cases, but some of them are free exercise cases. Some of them are free speech cases. 303 Creative, for example, about the website designer, that was a free speech case. Just to be clear, analytically, this case, FCA, the Ninth Circuit case, is a free exercise case. There were some judges on the panel who would have preferred to resolve it on the speech grounds, but this en banc majority resolved it on the religious grounds. Yeah. And what's interesting to me about this, David, because if you look at Fulton County, it appeared that there might've been a majority for overruling

Smith. And then there wasn't because there's some speculation that, for example, I believe it's the Alito concurrence was supposed to be a majority opinion. And then you had sort of the Barrett and Kavanaugh saying, we're not going to get rid of Employment Division v. Smith because we really don't know what should replace it. And so it, but the bottom line is it left Employment Division v. Smith hanging by a thread. But that doesn't mean that we don't have any idea of how the court would rule. Again, if precedent still does matter, it's not as if we're left with no idea how the court would rule, even if Employment Division v. Smith was overturned when there's a conflict between an asserted free speech or free exercise interest and non-discrimination policies in the commercial context. And why is

that? Because there's a case called Newman v. Piggy Park from the civil rights era where a restaurant owner, a barbecue restaurant owner, asserted that they had a free exercise right to exclude black customers. And the Supreme Court, and it's really important to note this, in the pre-Smith era, when there was a heightened scrutiny, there was strict scrutiny applied to alleged violations of free exercise. And the pre-Smith era said, sorry, I believe the phrase was called the free exercise argument to get out of a non-discrimination policy applying to customers, called it patently frivolous. What I postulate, what I would argue, David, is even if you got rid of Employment Division v. Smith, existing precedent would still leave us pretty much where we are. I say pretty much, I'm not saying exactly, but pretty much where we are.

Because in that commercial context, the existing case law says you're going to overcome strict scrutiny even to allow the state to prohibit that kind of discrimination, as long as it's not like compelling speech like 303 Creative. Exactly. And people have to remember in 303 Creative, Lori Smith, the website designer, was not seeking a right to discriminate against LGBT customers.

She was willing to serve LGBT customers. And Kristen Wagoner of ADF would point out that some of her customers are LGBTQ. She just didn't want to write certain messages. So there is that important distinction. So I don't think I disagree with you. I think that that's probably the accommodation that we have reached. But I think it's still going to be an ongoing battle because even if the Supreme Court sort of blesses this type of accommodation, local officials are not necessarily going to go along with it. And I think this is why we are seeing things out of, you know, blue states or cities where there are these clashes of values. Well, you know, it is interesting to me that one of the sad realities of our current time is it appears that we have both red state legislatures and blue state legislatures and red state officials and blue state officials who have fallen into a habit, shall we say, David, of just going ahead and passing laws in defiance of settled precedent. Well, actually, this might be a good time to mention New Mexico.

Right, exactly. Well, let's close on just a very brief mention of New Mexico. Here you have the New Mexico governor in response to a spate of shootings, basically suspending rights of carry. And the bottom line is in the city of Albuquerque, it was the only city that sort of met the threshold test that she articulated. And it was both of open carry and concealed carry in specified places where it's previously permissible. And then basically doesn't come out and say,

I know this is unconstitutional, but sort of says that, you know, like, I know this is going to be challenged. And it's a hopeless, I mean, there's no, I don't feel like there's any credible argument under existing precedent that that's gonna ultimately end up being an enforceable. And in fact, the Albuquerque police chief said,

this is unconstitutional. Like we can't enforce this. But she went ahead and did it anyway. And it was funny, I posted on threads about this, that I don't care where you stand on gun rights, this is just blatantly illegal. And, you know, in come all the comments. No, it's not.

It's fine. You know, what? I'm like, no, it's, just watch. Just watch. It's going to, you know, unless she rescinds it or it's, there's just no, this is a blatantly unlawful order.

But just to go back to your earlier point about how both blue and red state or city politicians engage in this, before you get on your high horse about how she's defying the Supreme Court, what about the Alabama Republicans who basically refused to create a second majority black district,

even though they were basically told to create a second majority black district? So it's kind of in fashion right now, you know, flipping the bird to the Supreme Court. Well, just stop woke act, right? Yeah. It's like, yeah. Oh, heck yeah, we can regulate the speech of college professors and private corporations.

Let's go. And, you know, and it is so funny to me to watch some of these conservative commentators who are saying, this governor, you know, that's impeachable. Like this is, I'm thinking, okay, Ron, what about Ron DeSantis, guys? You know, and then here comes Gavin Newsom galloping in saying, Ron DeSantis is, you know, look at how much he tramples the rights of dissenters. I'm like, Gavin Newsom, take care of your own house, man. He's too busy hanging out at the French laundry. Yeah, I know. The list of unconstitutional actions

from the California legislature of the past several years, pretty long, and it's actually resulted in some major losses at the Supreme Court. So, like, physician, heal thyself. It's a mess.

It's a mess. Well, sadly, we don't have time for the other topics. Including California, actually. Exactly. Including California. But we will be back next week on Tuesday.

And we won't forget these other topics. And no doubt more stuff will happen. So thank you, as always, for listening. Thank you especially for participating in the comments. As you see, David, you're a champ on responding comments. It's amazing. I try. David's fantastic in responding.

I dive in and out. But we really appreciate your comments. I read them. I find a lot of them. You can actually learn something reading our comments. And I don't say that lightly. You can learn something reading our comments. So thank you for listening.

And we will be back next week. you