Advisory Opinions - A Mumbling Indictment

Episode Date: April 5, 2023

Sarah and David are back for a Wednesday (!) episode to give the people what they want: a review of Trump’s indictment. The verdict? Not great. Also: A Twitter user convicted over trolling Hillary Clinton supporters SCOTUS back-scratching? The Justices are taking their time Justice Ketanji Brown Jackson's praiseworthy approach to equity Show Notes: -What You Need to Know About the Trump Charges -Social Media Influencer Douglass Mackey Convicted of Election Interference in 2016 Presidential Race Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome back to another Advisory Opinions. It's Sarah Isger and David French back at it. David, this isn't an emergency pod, but it is an emergency pod. We would be podding today regardless.

Yesterday, Donald Trump was arraigned in lower Manhattan. District Attorney Bragg put out the indictment. We've seen now the 34 counts. He put out a statement of facts and he held a press conference. And if you cobble those three things together,

we have a few more answers than we had from the day before. Not as many as I would like. And I know you've got feelings. Do you want to just dive right in? Yeah, yeah. I would love to dive right in. And you know, Sarah, I think people might get tired of this. We've had expanded podcasts because of Stanford.

We had three podcasts last week. I mean, now we're going to have an indictment podcast. It's regularly scheduled. But there's been a lot of AO content being thrown out there. But you got to give the people what they want. And they want some analysis of the actual indictment. Okay, so let me just go with a couple of thoughts. One, and I know you felt a little bit this way as well, because we expressed it in Slack, but there's a part of you that when you read an indictment, and it's largely what you expected it to be, there's a part of you that when you read an indictment and it's largely what you expected

it to be, there's a part of you that goes, whew, I'm glad I didn't waste time on a completely useless analysis. I read the indictment and nothing really surprised me. There were some nuggets that were either new or at least were new to me that may help the argument that the payments to Stormy Daniels were made because of the election and not to save his family embarrassment, such as the thought that they might cancel

the payments after the election when it doesn't allegedly matter anymore. Well, it would matter if they're trying to suppress information from the family. It doesn't matter if it's the public. And so there are a few nuggets, but the bottom line is this was exactly what we expected. It was a Stormy Daniels centered indictment. All 34 counts, all 34 counts are just different bookkeeping phases of the Daniels payment scheme. So the way it worked is when Cohen submitted an invoice, the way that invoice was classified was a count. When a ledger entry was created to pay Cohen, the way that ledger entry was categorized was a count in the

indictment. And then when the check was written, that was another count. So there were 11 payments, three discrete instances per payment with one payment having four instances. So the whole thing, all 34 were about Stormy Daniels. But then you move over to a statement of facts that is about Stormy Daniels and McDougal, Karen McDougal, and a doorman story that we hadn't heard about where a doorman was paid $30,000 to be quiet about a potential love child that doesn't seem to actually exist, but who knows. But the bottom line here, Sarah, was the only crime they really laid out as the other crime, because remember, falsifying business records is a misdemeanor to make it first degree and making it a felony. It has to be

in furtherance of another crime. So the only other crime that they really laid out was the same campaign finance crime that we've talked to death, that we've talked about a lot and have analyzed how that's iffy. But then a lot of people were trying to sort of salvage what was, in my view, plainly inadequate indictment by pointing to his press conference. Because in his press conference, he laid out, well, there's this other New York state law regarding promotion of a candidate, conspiracy to promote a candidate through unlawful means, which is only a misdemeanor itself. So even with that, it's one misdemeanor contributing to another misdemeanor equals a felony. And then there were other people really grabbing on

to oblique references to New York state taxes. Maybe he's got an ace in the hole about New York state tax law that the falsification records was contributing to tax fraud. Let me tell you why I'm skeptical about that, Sarah. If you had that on lockdown, do you just obliquely reference it in a statement of facts? why I'm skeptical about that, Sarah. If you had that on lockdown,

do you just obliquely reference it in a statement of facts? I mean, in statement of facts, it's oblique. Like it is, it's a stretch to even say they're talking about tax fraud. And, but a lot of people seized on that as some sort of new thing. Aha, aha, tax fraud. And I'm thinking, where is the tax fraud described?

So that's where I am. On the facts, look, if you're going to make a claim that they falsified business records to hide hush money payments to Pornstar, you win, absolutely, absolutely. But that's a misdemeanor with a two-year statute of limitations. Look, on the factual claims, strong.

But you got to have the law also, the way we talked about Bob McDonald, the factual assertions of McDonald's pretty sleazy behavior were easily established. It just wasn't a violation of the law. And that's where I am. Yeah. You're actually calmer than I thought you would be. You have a firmer grip on your horses than I was expecting. So I guess I'm the one whose horses are getting out of, you know,

out of their bits a little bit here. All right. out of their bits a little bit here. All right. So all morning yesterday, you have wall-to-wall news coverage of Trump's motorcade going down Fifth Avenue. Every second, we're just waiting for the door to open on the 15th floor of the courthouse. And people keep talking about making history. And some people are saying making history in a, you know, not a good way necessarily, but like, it's just making history. And other people are saying, we've crossed the Rubicon. This is, you know, the end of the country as we know it, when you're indicting former presidents, things go badly from there. So let me just start by saying that none of that really bothers me one bit from a 30,000 foot standpoint. We don't have titles of nobility. Former presidents aren't sacrosanct

in any respect. I've said this before, but Donald Trump isn't above the law. He's just not below it. And so I think that the question that Alvin Bragg needed to answer yesterday was not why are you indicting Donald Trump despite him being president, but rather to show that he wasn't indicting Donald Trump because he was a former president. And there were a few things going against Alvin Bragg just from the get, right?

He ran his campaign saying, I'm the guy who can get Donald Trump. Right. So right away, we already think you're targeting someone because they had been a political figure that you didn't like. I was pretty open though to that not being the case. And as I said, David, I was nervous yesterday

because we had talked about this so much. I know. And it could have gone any number of directions, but I just had this feeling in my gut. And I said this to you, I was like, I think this is going to be weaker than we thought it was, not stronger than we thought it was. As we were heading into those final few hours,

because there weren't any leaks, there wasn't any pushback. That's very unusual if you've got it. Okay, so then we're all sitting there. We get the 34 count indictment. It's not a speaking indictment the way that, you know, the Department of Justice puts it out. It's just the counts. And pretty quickly, you realize the 34 indictments are all just the Stormy Daniels payments, like you said, David. you realize the 34 indictments are all just the Stormy Daniels payments, like you said, David. But then we get the statement of facts and it reads much more like,

you know, a filing in court that you would make, a complaint that lays out a narrative. But David, I have never seen a statement of facts that is this hard to follow, this sloppily written, this lacking in any sort of logic to follow. It doesn't answer any of the biggest questions that anyone has. I've never seen a sloppy one in a major case like this. Honestly, I don't think I've seen one quite this bad in a minor case. I've seen civil complaints, lawsuits filed, the vast majority of which are better than this. There were typos and missing words. They had had, I mean, Alvin Bragg's been in office now quite some time, been working as far as we know, a lot on this case. They had endless time, been working, as far as we know, a lot on this case. They had endless time, basically. This was their foot, their first foot out the door with non-lawyers. Statements of fact aren't

really meant for lawyers, right? You don't need it because you've got the indictments. We can all read the indictments. This is for reporters, the public, for people to understand what you are pursuing and why. Yep. And I read it and I couldn't really understand it or piece together what we were doing. There was a whole lot, for instance, on AMI's involvement. That's the National Enquirer's Parent Company. You don't get to Stormy Daniels actually until like way into it. And then there's no tie-in about why this, what, how is this all connected? How are you connecting it?

What's the underlying crime that you're attaching to falsifying business records? I mean, just David, there was not a story here. It was like puzzle pieces that they just sort of threw in a box. And it's a thousand piece puzzle. Yeah. So then we have this press conference it was worse he refused to answer questions um in some respects but then answered others that weren't more or less legally cognizable to answer you know i'm gonna let the statement of fact speak

for itself oh no i'll answer that one even though, I'm going to let the statement of fact speak for itself. Oh no, I'll answer that one, even though it's supposed to be in the statement of facts also. Just a real lack of clarity. Okay, so that's my overall beef with like, yikes. I really thought they'd have this tied up a little bit better than they did. So now let me walk through the legal infirmities that I saw. One, I don't necessarily agree with you

that they've got the falsification of business records. As Trump's attorneys are sort of quietly pushing back behind the scenes, this was payments from Trump's personal family trust. Now, Trump Organization employees were touching these invoices. Like you were noting, David, you know, we've got basically three counts per payment. But the money wasn't coming from the Trump Organization. wasn't coming from the Trump organization.

Under New York law, it's very clear then that it's a business record for the purpose of the falsification of business record statutes if it wasn't coming from the Trump organization. Now, maybe because it was Trump organization employees, you know, logging in the invoices and things like that, maybe some of these counts stand and some of them don't. But at the end of the day,

the actual falsification, classifying it as a legal expense is a little weaker than i thought i i don't you know if it were just this and that was what was going to trial i'd be like i'd rather be the prosecution than the defense right yeah i i think that it favors the prosecution, that piece. Yeah. But. But. Yeah. But where you thought it was a slam dunk, like, well, no, not dunky. More like a two-point shot that's not from the free throw line, you know?

A floater in the lane. Okay. Yeah. Yeah. Yeah. And there's like, you know, some real defense there with their hands up jumping. Um,

all right. Next up, we have those underlying, you know, you've got to tie it to something else. Um, woof. So,

A, you have the, the one we've talked about, as you said, um, I mean, ad nauseum in the one we've talked about, as you said. I mean, ad nauseum in the very literal sense. Yeah. There's three different possibilities at this point, and one of them has two subsets.

The biggest possibility, the leading possibility, is this federal campaign finance violation, David, that we've talked about, though, again, based on a statement of facts that just sort of says a bunch of stuff and doesn't actually tell you what they're doing. They mentioned both Cohen's conviction on this.

It was a plea deal, which will be relevant here and Donald Trump's involvement in violating federal campaign finance law. When we talked about former FEC commissioner Brad Smith's points on why Donald Trump couldn't have violated federal campaign election law on this, one of those prongs, I think, becomes very weak. You're less like, it's absolutely the weakest, but I think you'd reverse that, right? That the defense has a little bit of a stronger case than the prosecution, probably on that one. And again, I think that the one thing that the statement of fact had

was the allegation that Donald Trump, as you said, told Michael Cohen, try to delay the payments because if it's after the election we don't need to pay it at all okay so if the whole thing is as brad smith said it needs to be for the sole purpose of helping the campaign like polling hiring a campaign manager paying for campaign headquarters you don't need to do it after the election has been held, starts to look like sole purpose. However, there's a factual problem there, which is that's a conversation between Donald Trump and Michael Cohen. Michael Cohen is a cross-examination,

like defense lawyers, dream, truly. Yeah, absolutely. I've never seen someone who would be more fun to cross-examine than Michael Cohen, who for anything that has come out of his mouth, he has also said the opposite of that thing. And the problem is, in that single paragraph in the Statement of Facts, it basically says, and then Michael Cohen told, emailed, et cetera, lawyer B, I'm not sure who that is, and Pecker, who's the head of AMI,

to delay the payments. And so I got some questions on like, okay, but like there is some corroboration. Well, it depends. You'll note that the statement of fact is very, like quotes the Michael Cohen Trump exchange, but it doesn't quote the Michael Cohen pecker lawyer B exchange. If Michael Cohen just said, Hey, let's try to delay these payments.

It corroborates that Michael Cohen wanted to delay the payments. Right, right. Exactly. But for instance, even if Michael Cohen told these guys, Hey, here's why Donald Trump told me this, Cohen told these guys, hey, here's why Donald Trump told me this, that's not coming in. That's hearsay. And it goes to the truth of the matter asserted, as it were. We won't go through all the hearsay exceptions now. There's plenty of exceptions. I think you could get that statement in on actually some other grounds, but for the fact that the reason you actually want to get it in is to get to that conversation between Cohen and Trump. So you're not getting it in that way. And the emails themselves, I think, are very unlikely to contain that information, or else I think they'd be quoted in the statement of fact. Also, why would you put that in email? Instead, the emails are going to

say like, hey, no rush on these payments. And then they're going to paint a picture of like, yeah, because we didn't have the funds available or we didn't want to have this huge outlay of cash in case we needed it for the campaign. There's all sorts of reasons why you might want to delay. And so you're really hanging a lot on that Cohen testimony, which people have said since the beginning. I hope this case doesn't rely on Michael Cohen's testimony. That's true. All right. So that's the Donald Trump federal campaign violation as the second one.

And remember, they're just pure legal problems with that. A state prosecutor now being responsible for proving up a federal charge. I'm not even sure that's going to pass muster

just from that legal standpoint. Okay. Then you've got the Paterico Michael Cohen theory. Well done. And his name might be Paterico. We don't... Someone, got the Paterico-Michael Cohen theory. Well done. And his name might be Paterico. We don't... Someone, please, Paterico, tell us that we're mispronouncing your name because we've done it now for four episodes and you haven't told us. We'll blame you at that point. That's on you. Okay, so this is the theory that the other crime that was trying

to be hidden or facilitated by the falsification of business records was in fact Michael Cohen's crime that he pled to. Some problems with that. One, if it's not a crime, it doesn't matter that Michael Cohen pled to it. I.e., it was never then legally challenged under sort of a legal sufficiency claim and Donald Trump can still collaterally attack whether it is a crime to pay hush money in these circumstances

under federal campaign election law. So you end up in the same place, actually. I think it's a little bit stronger from that 30,000-foot legal problem. There's a federal conviction, so you don't have a state prosecutor proving up a federal case. Okay, so that's the federal campaign election law. Then, David, you've got Section 17152 of New York State Code, as you mentioned, conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means, and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.

I'm not as bothered by the one plus one equals two, misdemeanor plus misdemeanor equals felony. It's a little weird. I wish that there was something more clear about, like, that the other crime crime it's fine if it's a misdemeanor but because it doesn't say okay i think it is fine then um however you have to promote the election of any person to public office by unlawful means david it's turtles all the way down what are the unlawful means yeah so, it's turtles all the way down. What are the unlawful means? Yeah.

So now we have the falsification of business records has to be to hide or facilitate another crime, which is the promotion of a candidacy by unlawful means, which requires another crime. They can't point to each other. Yeah. You can't like, that would be amazing by the way.

It's unlawful because it's unlawful because it was unlawful from the other thing that made it unlawful. No. Right. So now we need a third crime, which almost makes this irrelevant because if there's a third crime, you didn't need it in the first place because all you need is whatever the other crime is. Um, and I don't really know. I mean, again, I think think you could you could now have these in either direction just make it the state election law with the unlawful means and then point to the facilitation of business records and then you still need a third crime i mean whatever you could cut out the middleman here um and there's again a problem of preemption with pointing to

this as the second crime even if you don't have the unlawful means or you think they can point to each other. A federal candidate being bound by state election law is iffy. I think in the Georgia case where Donald Trump is calling a state official for the purpose of threatening them, that is different under Georgia law that you're violating. But how is Donald Trump promoting the election of himself to public office by unlawful means? If it's anything finance-related, record-keeping-related, anything that would have a counterpart in federal election law, as a campaign lawyer, you are not required to know all 50 states and four territories election laws in order to run for office. You have to know federal election law.

It is preempting all of these state laws. Again, there are a few things, you know, in terms of where you can put your signs near the polling place. That's not preempted by federal law. Taking down someone else's signs, things like that, perhaps. But all this campaign finance stuff? Nope, nope, nope.

Okay, so then we still need a third crime. So I don't think it does you much good anyway. Now you've got, David, like you said, this like floating tax monster and I'm waving my arms like the Kraken. What is this tax monster? Yeah. It's not spelled out in any way in the statement of facts. It basically says this helped AMI commit tax fraud, or maybe it was Michael Cohen who paid state taxes instead of federal taxes. I've seen a lot of theories on Twitter. That's cool. Why aren't they in the statement of fact? All right, I'm done. Yeah, that's exactly my point. Why aren't these things in the statement

of fact? And one of the reasons why the dollar figure was grossed up for Cohen was to pay taxes on it. So the money was grossed up to pay taxes. So I'm just looking at it saying, okay, where is the tax fraud here? What's the tax fraud? And I've seen all kinds of stories. Well, Bragg unveiled a new theory. No, he didn't. No, he didn't. He, he requires a citation of law and story behind like anything.

And then this, there's this idea that, well, he didn't want to tip his hand. Guys, a criminal trial is not Pearl Harbor, okay? It is not a surprise attack. That is not what a criminal trial is. I mean, there is discovery. You know the legal theories that are going to be presented when you go into the case. I mean, this is not a situation where, you know,

Trump's legal team is going to walk in during trial and Bragg is going to say, aha, here is the tax theory at long last unveiled for all of you to see. Behold, no, that is not the way this works. So the tax theory to me, you know what the tax theory to me reminded me of is when the Mueller investigation was underway and we were getting all of these indictments that, as we've talked about, the indictments told a story, right? And there was always the story that was obvious from the indictment. And then people were reading

tea leaves and saying, well, there's a hint of this, or there's a hint of that, and there's something else. And there's always, it seems to be with a lot of these Trump scandals, it seems like there's always something just around the corner that's shadowy and mysterious. It's about to, aha, get him. And you turn that corner and there's not actually the shadowy and mysterious thing there. And that's what it just felt like to me with the tax fraud issue was, well, look, if you've nailed him to the wall on tax fraud and the Stormy Daniels payments and ledger entries and invoices and all of that were in furtherance of the tax fraud,

lay it out there. Say it. It's not like you're going to get some sort of major tactical advantage by holding it back for just a few more weeks until, you know, a motion to dismiss or whatever. Quite the opposite, in fact. Let me just say, A, if you don't have it now,

you don't got it. Two, if you can't write this out in a compelling narrative now, we've got one or all of a few problems. One, there are no good writers in the Manhattan District Attorney's Office. I find that hard to believe. Possible. Two, there's no good lawyers in the Manhattan Attorney's Office. Find that hard to believe, but okay. Three, for whatever reason, this was rushed out so quickly, David, that they got a day to write this,

maybe two or three, in order to get ahead of Georgia. I can only speculate as to why you would do something like this so quickly that was so important. But let me tell you why any of that matters. A lot of this case is going to depend, as I think we've laid out, on lawyering and writing, because a lot of this is going going to depend, as I think we've laid out, on lawyering and writing,

because a lot of this is going to be an appellate case. It's not going to be charming a jury. This is law problems, not fact problems. Right. And if you don't have someone who is fluent in understanding what the legal problems are and able to write in a persuasive manner, this isn't going to work. And that's when I say this all felt actually much, much weaker than I thought it would. Some of that was pure presentation. As I said, they're not going to get this better

than they've got it now. You don't do roll out these indictments if you're still looking for evidence, if you're not quite sure what the theory of your case is, nope. You need to have the theory of your case. I don't mean you have your opening statement or closing statement all written out for the jury. But frankly, that statement of fact is supposed to be your opening argument. That, no jury's going to follow that. 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

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and I said, I'm actively angry. Like I had the relief like, oh, okay, when I wrote less than two weeks ago in Sunday in the Times that I think the indictment is unwise because it's weak. I had the same sense of relief of, whew, okay, I'm glad I predicted this accurately. And then it's weak, I had the same sense of relief of, whew, okay, I'm glad I predicted this

accurately. And then it turned into, wait, I predicted this accurately and this is bad. This is really, really bad. And I agree with you 100%, Sarah, no matter what I was doing, when I was litigating, whether I was, you know, whether I was filing a civil complaint or I was making a criminal complaint in my military justice life as a JAG officer, if I couldn't explain the goods, the goods that would get me to a jury in, you know, particularly in the civil context, get me to a jury on the strength of the complaint alone. Because a lot of what I would then do in my civil litigation is then demonstrate why the claims that I made in the complaint are in fact supported by evidence. If I couldn't write it out in a way that

I felt like I could get to a jury on these allegations alone, I wouldn't write it out and I wouldn't file it. I wouldn't file it. I never filed a case that says, well, wait a minute, we don't have the evidence right now, but I'm really hoping to get discovery to prove this sucker up. And I read this complaint

and I know it's, they're not, it's the statement of facts. And I know, I know it's not exactly analogous, but as I'm reading the statement of facts, I'm thinking this, they have to come forward with more to survive a meritorious motion to dismiss or to survive a serious motion to dismiss. They have to come up with more than they've got in the statement of facts. And that's where I am. As you've said, as we've said, this is the legal case.

This is primarily a legal case. And I'm getting some major Bob McDonald vibes off this sucker. I thought, let's be clear, it is very hard to win any motion to quash for legal insufficiency, motion to dismiss. I'm having trouble thinking of any cases where that worked. However, so I don't think it'll work here. Again, I'd rather be the prosecution than the defense. But most of the time, they're pro forma. They're

a total waste of everyone's time. Yes. This isn't going to be. And I think there's a chance that, especially if that legal records, if those aren't legal records under New York law, this will all have been... Business records. Sorry, sorry, business records.

Yeah. If those aren't business records under New York law, this will have been a very embarrassing episode for New York City district attorney. Well, can I just jump in real fast? So I'm just sort of thinking down the line a bit. So it is not certain that Fannie Willis is going to indict in Georgia.

I mean, a lot of people- Clearly, here we are. Yep. A lot of people are, you know, and I've thought that that's a much stronger case. I still believe it's a much stronger case, but it's still a big deal to indict a former president is not certain that the Georgia indictment is coming. It is not certain that a federal indictment is coming. And a lot of people have sort of thought this is domino one, then there's bigger domino two, and then there's bigger domino three.

Don't be thinking like that. Don't be thinking like that. In fact, I could easily imagine a situation where the, frankly, the almost, I'm not going to say it's a universal side eye because I just had a Morning Joe appearance where some smart folks were saying, this was better than I thought it was going to be. I disagree with them. But there's a lot of side eye, even from the left on this indictment.

Especially from the left, actually. I think there's more frustration from the left because this is something that they wanted. And for those who are lawyers or legal reporters on the left, and here I'm thinking Vox, Slate, I think they are more frustrated to see something with this many problems. Even, let's not describe it as weak necessarily.

So many legal problems that have not been addressed or answered in this statement of fact, trying to move forward. It feels like you're getting out of the gate on a horse with a limp. Yeah. I mean, it went over like a lead balloon with everyone, almost everyone except a few isolated voices here and there and sort of resistance Twitter, right? And it just went over like a lead balloon. And I think that actually, Sarah, can I engage in some basic

pop, some really dime store pop psychology? Love it because we're definitely good psychologists. Oh, totally. Well qualified. I actually think it raises the barrier a little bit in Georgia. Love. I actually think it makes it a little tougher. And that I just base that on it's a big freaking deal for a local district attorney

to indict a former president. You need the goods if you're going to do it. No man is above the law, but as you said, no person's beneath it either. And he's done it. It's gone over like a lead balloon. What's Fannie Willis doing right now? How is she thinking about it? Well, maybe she's writing a statement of fact and taking her time to look for typos. It could be. Could be. Yeah, it could be.

It could be. All right, can we move on, by the way, to another case? There was a conviction in this case, but I actually think it's worth a few minutes, A, because the case was interesting. But also, I went back and looked at the initial indictment and press release with that indictment.

This was done by the Department of Justice. I'm not sure I'd call it necessarily a speaking indictment. It's from a technical sense, not. Yeah. But nevertheless, let me read you how they explained their case against this person. Please. The complaint alleges that in 2016, Mackey established an audience on Twitter

with approximately 58,000 followers. A February 2016 analysis by the MIT Media Lab ranked Mackey as the 107th most important influencer of the then upcoming election, ranking his account above outlets and individuals such as NBC News, Stephen Colbert, and Newt Gingrich. I don't know why Newt Gingrich got thrown in there, but that's fun. A funny little jab.

Yeah, okay. As alleged in the complaint, between September 2016 and November 2016, in the lead up to the November 8th, 2016 U.S. presidential election, Mackey conspired with others to use social media platforms, including Twitter, to disseminate fraudulent messages designed to encourage supporters of one of the presidential candidates to, quote,

vote via text message or social media, a legally invalid method of voting. For example, on November 1st, Mackey allegedly tweeted an image that featured an African-American woman standing in front of an African-American for... It's Hillary Clinton.

Spoiler alert. African-American for it's Hillary Clinton. Spoiler alert, African-American for Hillary Clinton signed DOJ is not going to write that, but I'll just fill it in for you. Right? The image included the following text, avoid the line, vote from home, text Hillary to five,

nine, nine, two, five, vote for Hillary and be part of history. The fine print at the bottom of the image stated must be 18 years or older to vote. One vote for per person must be at the bottom of the image stated, must be 18 years or older to vote. One vote per person.

Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska, or Hawaii. Paid for by Hillary for President 2016. The tweet included the typed hashtag, hashtag GoHillary, and other slogans frequently used by the Hillary Clinton campaign. On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted Hillary Clinton with that number or some derivative to that number, which was used in multiple deceptive campaign images tweeted by

the defendant and his co-conspirators. The charges in the complaint are allegations and the defendant is presumed innocent until proven guilty. David, that lays out the case. Yep. There's your case right there. That is what I am missing from the Manhattan District Attorney's office. You know what they're charging him with. You know why.

And you've got some of the juicy parts. Yeah. So anyway, last week, this person was convicted. And if you're curious about how long these things take, that initial, those initial charges were January 27th, 2021. The conviction was Friday, March 31st, 2023, which is about right, even with relatively speedy trial stuff implicated. Bob McDonald, by the way, that was also a January 2014 indictment. The Supreme Court unanimously overturns the conviction in June of 2016. It's not that all these cases are identical or run identical paths. I just thought it would be interesting for some people to see some of the timelines. Okay, so he's convicted. There's been a lot of discussion around this, David, that this implicates First Amendment.

It implicates parity, like rights to parity and be sarcastic on social media. Why were they going after this guy with 58,000 followers anyway? I'm curious if you think there was a First Amendment problem here. Because again, this is just the jury conviction. Now we're going to do the appeals.

Of course, yes. So, you know, all over Twitter, I saw on some of the right-wing accounts that I follow, he was convicted for memeing. If he was actually convicted for memeing, it would be a First Amendment issue. But this is a little different. And let me try to use an off.

I think when it's often helpful to analyze online speech through offline analogies. So let's imagine that you had 500 voters in line at a polling place. And somebody went to the last 100 voters in line and said, look, the polls might close and I don't want you to miss out on your vote and I'm gonna hand you out a paper ballot.

You mark it here in line and give it to me and you'll have voted and you won't miss out. And 100 people mark their fake paper ballot, give it to somebody and leave the line because they voted. Nobody would be saying this is a First Amendment issue, right? That would be just flat out inducing, that's just flat out election fraud. So the question is, does making this a very, very, very similar thing, putting it through a text format, does that render it somehow different and constitutionally protected? And I do think it's at least a little bit different, but not so substantially different from that offline example that I provided that

he's going to prevail on appeal. But I'd love your thoughts. Yeah, I don't think this is a close call. To use a popular example, remember the line is not, you can't yell fire in a crowded theater. That is protected. Right.

You can't falsely yell fire in a crowded theater that's the distinction i think that any appellate court is going to make here he didn't yell fire in a crowded theater he falsely yelled fire in a crowded theater for the purpose of having people stampede each other and hurt people basically yeah and you're not allowed to do that. It's not a meme. Frankly, you know, when we've looked at, for instance, that Ohio Facebook page about the police department, where he's like, come into this white van if you want to be molested, or come here for racist training. You know, remember what I said was, those were pretty obvious parodies. Like, I find it hard to believe anyone thought it was serious.

Now the police department was getting some calls that were like hey what is this but people read the onion and think it's serious that's right um and what i said would be a huge distinction is if he said don't call 9-1-1 call 457 when you have an emergency because these people aren't going to answer anyway or you know something to that effect that would actually, in an emergency, create that confusion or for the purpose of creating that confusion, then it's much closer to the line of whether the parody itself crosses into that

falsely yelling fire in a crowded theater. But that case didn't. I feel like this is so clearly on that other side. There is nothing to indicate this is a joke unless you happen to know that you cannot vote by text in the United States. The fact that 4,900 people, I guess, tried to vote that way

makes me really sad. Yeah. It's not that 4,900 people swayed the vote in any state if they had all been in one state even. None of the elections were that close for president. But why are you trying to do that? Don't do that. Yeah, I mean, I think this is a valid conviction. I think it stands. If you read anybody online saying he was convicted for memeing, then either they haven't paid attention or they're trying to deceive

you. Yeah, it is interesting. I think this is part of a larger puzzle here, Sarah. There's this really interesting thing happening, and that is, and I want to repeat something that you've said earlier, that some of the legal measures that have been taken post-2020, I think, are beginning to bear some real fruit. You're seeing less wild conspiracy theorizing in right-wing media. in-your-face deception that you saw from this guy, for example, in context with Republican campaigning, you're actually seeing this consistent pattern where really MAGA voices are losing in swing states. There is a real sense in which the sort of,

the conspiratorial, aggressive, pure sort of MAGA pugilism is running out of a lot of legal and electoral steam right now. But it's not clear to me that the Republican base is aware of that yet. The polling is still showing Trump with a massive and increasing lead over DeSantis. And so it feels in many ways

as if you've got just a critical mass of Republican voters who are still sort of living in that MyPillow extended universe, but everyone else has sort of signaled about as clearly as it can be signaled, this ain't gonna fly. And we had the Wisconsin Supreme Court election yesterday. There's just an enormous amount of evidence

that is particularly in swing states that this kind of style of politics just isn't flying anymore. All right. We've got some Supreme Court potpourri that I wanted to touch on. We've been collecting it over the last week and a half or so. I want to start with some kind of bombshell-y accusations coming out of a new book from CNN senior Supreme Court analyst Joan Biskupic about vote trading. So in her book, she claims that basically Roberts and Kennedy were doing vote trading. You know, both were scratching each other's back, so to speak and let me read what uh she wrote roberts would join kennedy in favor of lgbtq interests and ruling that arkansas could not

prevent two lesbians from both being named on their baby's birth certificate meanwhile kennedy would vote for the court to hear the appeal of the owner of masterpiece cake shop in colorado who'd been sanctioned for refusing to bake a wedding cake for two gay men. The pact had an additional result of keeping a testy draft from Samuel Alito regarding the Masterpiece Cake Shop petition from becoming public.

Uh, David, I don't buy it. I don't mean that, I mean, those two things happen, right? Roberts joins that Arkansas case majority and Kennedy is part of the cert vote. I think, I guess, I believe that, that we now know. Part of the cert vote that allows him to hear Masterpiece Cake Shop. I also believe that Alito had a dissent from denial of cert that was going to be incredibly spicy

if they didn't take Masterpiece Cake Shop. All of that sounds right to me. But in order for it to be vote trading, it has to be the case that they weren't all going to do those things but for the vote, as in it was against what you would otherwise expect. Here's the problem with that. One, we've seen Roberts do the exact same thing in the abortion context. He voted to uphold the Texas abortion law in Hellerstadt. But then when they lost that, Hellerstadt became the precedent of the court. He then voted to uphold that precedent by striking down the Louisiana law in June Medical, i.e. the exact same thing that she's describing that just happened here.

He voted against Obergefell, but then voted like Obergefell's precedent, and we're applying that precedent to this Arkansas case. Exact same behavior from Roberts. So I don't know why we would think that that needed a vote trade to happen, because it looks like just what Roberts believes. And again, I've talked about this sort of institutional axis and that Roberts is the high institutionalist. Even if he loses a case at the court, he supports that precedent then moving forward just because the numbers change in some other respect, he's not gonna flop his vote around. So then let's move to Kennedy.

Kennedy and Obergefell said very specifically that you needed to protect religious liberty and all these other things and that they were going to keep an eye out for that is basically what Obergefell said and that's exactly what Masterpiece Cake Shop was now maybe Kennedy might have wanted a different vehicle or thought it wasn't a clean vehicle hey guess what it wasn't so if he thought that he was right but regardless it wouldn't surprise clean vehicle. Hey, guess what? It wasn't. So if he thought that, he was right. But regardless, it wouldn't surprise, it is not against the Justice Kennedy that we know and love to vote

to hear the Masterpiece Cake Shop case based on exactly what he wrote in Obergefell. And then the Alito thing's just sort of a red herring. Of course Alito was gonna write a dissent from denial of cert if they didn't take Masterpiece Cake Shop. Of course it was gonna be spicy. Of course. Of course, masterpiece cake shop of course it was going to be spicy of course of course of course of course and because they granted cert then yep it didn't see quote the light of day but it's not because something was orchestrated

just so they wouldn't see the alito dissent from denial that would be weird roberts does this whole big vote trade just so the dissent from denial doesn't see the light of day. So instead, they're going to hear a whole case where maybe Kennedy votes the other way and then that dissent from denial just turns in to a really angry dissent. Oh, I don't, okay,

you're like punting the ball like 10 yards down the field. That's not even a field goal. So none of this story lines up for me. It doesn't make sense. So then it comes back to the idea, do you think there's any vote trading at the court? I don't doubt there are conversations

where people lay out what they think they're going to do, ask what someone else is going to do, and that those conversations range over the course of several cases. They don't just focus on one case. But no, not the type of vote trading that's like, I was going to do X, but I'll do Y if you do Z. There's just not a lot of incentive.

So here's how I would sum it up. So Sarah, you're familiar with how a Sith Lord will say, all is unfolding as I have foreseen, implying like specific prophetic knowledge. This is completely different from that. This is everything unfolded as anyone could have foreseen. So no one's looking at this and going, how did this happen?

Now, if there's some weird quirky way that everything reached the predictable result, is that interesting? Maybe, I guess. But it makes me more dubious of the anonymous insider reporting when everything unfolded towards a completely predictable result, if that makes sense. So yeah, I looked at that and a lot of these, you know, anonymously sourced Supreme Court reports have kind of salacious promises that they rarely ever deliver on.

And this is one where I left it scratching my head and thinking, I mean, I'm not saying it's wrong, but you have not borne the burden of proof of convincing me that it's right. I think that's right. All right, next up, we are at the halfway point for the october 2022 term and steve vladik was giving some math on twitter comparing this term so far at the halfway point to the halfway points of the

last two terms signed decisions and argued cases eight in term, 15 and 18 in the last two terms. Grants of emergency relief, two in this term, 12 and 19 in the last two terms. Grants of cert for next term, four in this term, 11 and 18 in the previous two terms. David, some of those are more meaningful to me than others. The grants of emergency relief, for instance, are A, pretty random, I think, and B, we're always going to be heavier in a COVID context. We're sort of getting out of COVID. A lot of those emergency petitions were related to that or the election, et cetera. Nevertheless, when taken all together, this court is behind. all together, this court is behind.

Yes. Is it Dobbs? Yes. What's happening here? Yeah. And part of me is looking at this with a sense of looming dread. The avalanche is coming. Because you and I are going to have some, oh man, the marathon podcast that we have in store. But yeah, I mean, that's a really good question. Is it Dobbs? I have no evidence that it is. I have no idea. It's just absolute rank speculation. But something is without any question, something is absolutely different right now. Yeah. Yeah. And the way that all three of these happen is pretty different. So it's not like you can point to one like, oh, they're just behind in

writing. Well, no, because that doesn't have a lot to do with the cert grants. Is it harder to circulate opinions now that they're taking anti-leak measures? I mean, like there's a lot of things that I just there's a lot of questions. Yeah. So just a fun little data nugget. And lastly, David, I thought we'd end on something, again, that I really like coming out of the courts, but this time it's coming out of the Supreme Court. So Justice Kataji Brown Jackson issued a memo on her approach to law clerk hiring. issued a memo on her approach to law clerk hiring. And this was highlighted by David Latt in his, of course, wonderful newsletter, Original Jurisdiction. And he points out three big changes compared to other chambers. One, you submit it through email. And believe it or not,

that's not true for any of the other nine, chambers because former justices also accept applications for clerks. So everyone else, you have to mail it in. She is going to accept email. That's great. That's not why I'm highlighting this. Number two, it has a specified timetable. It's not, and again, I'm going to quote David, it's not an ad hoc thing like applying for a summer internship at your dad's golfing buddy's company. For the hiring cycle that just ended, application materials were due on or before December 31st. And after Justice Jackson completed her hiring, unsuccessful applicants received an email informing them that she filled her positions with a fixed timetable. Applicants don't twist in the wind, wondering whether perhaps they might still be called for

an interview. I want to get back to that one because that is very meaningful to me. Two, it's a closed universe. She makes very clear, and this is the quote from her memo, No information will be considered outside of the formal application process. Neither applicants nor their references, recommenders, or other advocates should contact Justice Jackson or her current or former staff regarding a pending or prospective application. David, I think that is wonderful. As some of these elite schools have gotten rid of grades, as frankly Supreme Court clerkships have always been concentrated in the elite schools, it's turned into a club where the only way you can even become a member of the club

is to already be a member of the club. Right. If you get rid of grades, someone can't stand out through their grades. So instead, they're having to stand out through professor recommendations or relationships with other people who are already members of the club. Number two, the Supreme Court hiring process itself is so opaque. And this is where the timetable comes in.

You send in your stuff and then you have no idea when you're gonna get a phone call. And then if you do even get a screener interview or an interview with the justice, when you're gonna hear back. And by the way, for some of these, you don't. And then a year later, they call you and are like, are you still interested? And you're like, what? I didn't even know this was still a live thing. Unless you have friends inside the process. And so I actually do think it's turned into a bit

of the, you know, your dad's golfing buddies company's hiring process here. If you have a professor willing to go to the mat for you, then all of a sudden, they know exactly when your application material should be turned in, how the hiring process is going internally. They make phone calls to the justice to explain what a great kid you are. Your judge who you clerked for at the circuit court level is doing the same thing because in a lot of cases, they either clerked for this justice or they used to be on the court with this justice. And it just, this is why you have a very specified number of feeder judges often case because they have those advocacy relationships

with the justice. I get it. It's a very natural consequence of a very few number of slots. But this is so much better and you actually might see quality candidates coming who aren't already members of the club. And yes, David, I am speaking from a place of,

I just know me as a college student, as a law student, hell, as a junior high student, I was never any professor's favorites, really anyone in a position of authority. That was never gonna be my strong suit. And I think having recommendations is great. And she obviously is still taking letters of recommendation. You've got to have those.

But not having people pick up the phone and making it about who has the closer relationship with the justice, I think it's a great thing. And I hope the other justices will consider it. I think it's a great thing. I mean, I'm with you. I was so far outside the club in law school, I'm with you. I was so far outside the club in law school, I didn't know what the club was. I didn't know the club existed. So

one of the things I think that is important for folks to understand is a lot, and I'm glad you brought up the law school grades issue. A lot of things that have been introduced, a lot of reforms that are introduced in the name of equity, right? Where we're getting rid of SATs, we're getting rid of grades, all of these things which create more subjective, more subjective flexibility on the part of decision makers. It's all a subsidy in many ways

for the privileged and connected. Look at it this way. If you introduce more complexity, complexity is a subsidy. Who is complexity a subsidy for? It's a subsidy for people who understand the system. And look, you know, when I was in law school, I'm coming from, you know from K-12 rural public schools, small Christian college that had never sent somebody to an Ivy League law school.

I had no connections. I didn't know anybody in an 800-mile radius from Boston when I went to Boston. I didn't know to make relationships with professors. Like, I didn't know. There's so much I didn't know to make relationships with professors. Like I didn't know, there's so much I didn't know. And I had a ton of classmates who rolled into law school with a plan. I'm gonna create, have a, you know, I'm gonna have a close relationship with professors.

They're gonna help me with recommendations, yada, yada, yada. And I was just outside of that entirely. And I just wish all of this movement and look, I like equality. I like equity. But when you're looking at the reforms that at the end, you know, when somebody has been through 12 years of high school and four years of college, and then you're going to try to create some subjectivity in the name of equity, that ain't how you do it. That ain't how you do it. If you

want more equity, you need to go way back to earlier education. There's a lot of work that has to be done before you get to this. Well, we'll just not have grades. We'll just not have the SAT. Doesn't work out like you think it's going to work out. Yep. And the lack of grades thing, I think really doesn't really affect those who are already going to be at the top. If you were going to get straight A pluses, then you're going to get straight high passes or smiley faces, whatever Yale's using these days. Stickers. Yeah, just stars. And if you were going to be a B minus student and get the frowny face sticker, that was going to happen regardless. The problem is without

grades, you miss the difference between a B plus and an A minus. And those used to actually have a big effect on clerkships and Supreme Court clerkships, etc. That distinction's gone. So now you're relying, you're falling back on someone telling the person that this is an A- student, not a B- student. Well, you've got to have someone who thinks that about you. Because now it's arbitrary, because there is no B- in A-. So now it's feels about whether they think you're an A- or B- student. Not that the grading process was so perfectly quantitative to begin with. This isn't math. I'm going to get emails about how math isn't perfectly quantitative, by the way, just noting that. And I think you're exactly right, David, on the equity side, it's,

it's good intentions, but trying to take the easy way out and then not caring about the fact that like you can pat yourself on the back because now we're using a different, you know, we're not using the word co-pilot or whatever. It's like, you didn't stop racism or sexism or whatever. Cockpit, that's what it is. You stopped using the word cockpit, which has nothing to do, by the way, with what you might, you have to kind of want it to even think that,

but that's not the etymology. So we've stopped using the word cockpit and now sexism has ended. Let's pat ourselves. Let's do a big round of applause, everyone. And in the meantime, of course, same logic applies to regulations. If you pile on regulations that require an army of lawyers and accountants, you know, and tax professionals to get through, guess who that helps? The companies that can afford an army of lawyers and tax professionals and accountants, not small businesses. So every time complexity favors the wealthy, the well-connected, and the already resourced. And the same thing works in a lot of these equity cases. And that's not to say that we can't distinguish between the equity changes that I think at least could have some positive effect.

But DEI trainings, word policing, all of those are really easy fixes that actually don't seem to have a lot of their activity without accomplishment, David. And I just want to pat Justice Jackson on the back because this actually looks, it's activity, mind you. And I just want to pat Justice Jackson on the back because this actually looks, it's activity, mind you. We'll have to see whether her law clerks are coming from more diverse schools and aren't all just the people who already were going to get

the Supreme Court clerkships anyway. But I think this is a, you know, quote unquote, equity attempt that actually has the chance of producing results and accomplishment. It's a fair process. It's a fair process. Whereas the completely subjective,

gradeless, testless black box is not a fair process. So yeah, I think that I applaud her. I absolutely applaud her for this. I think it's a great move. It's a fair process. And I also applaud her because it allowed

us to rant a bit about window dressing equity that actually favors rich people. I'm not even sure what you're supposed to say instead of cockpit. And maybe I just like saying the word. But again, if you'd like to look up the etymology of the word cockpit, you will find that it has to do with rowing. I would prefer if I was the captain of an airplane, I would want to call it the bridge. I think that's fine. Maybe that has some technical definitions that don't apply in airplanes.

I don't know. Only in spaceships. It has to be a big plane, like a 747. Like I'm on the bridge of the 747, but I'm not on the bridge of an F-35, right? So we gotta have... My little Cessna bridge. And then I saw today that Dungeons & Dragons

is reportedly doing away with all half race characters. So you can't be a half elf in Dungeons & Dragons anymore or a half ororc because, Sarah, that's somehow inherently racist. They realize that people are though, right? That we still allow people to marry other races and procreate? It's unclear to me.

I would need to really dive into whatever obscure Twitter rabbit hole convinced D&D to get rid of half-elven characters. Huh. I mean, half-elven characters are long a staple of fantasy literature. I mean, Elrond. Elrond, the great Elrond of Lord of the Rings.

Half-elven. I mean, come on. By the way, David, did you see that one of our wonderful listeners put into chat, GPT, give me an exchange between David French and Sarah Isger about what Lord of the Rings can teach us about constitutional law. And what's concerning about this is that it A, nailed it, I think, but also B, had me knowing nothing about Lord of the Rings and being deeply sarcastic

about the whole thing. It was actually really well done. We are still looking for a name for popcorn, though. Other than popcorn, Colonel has been suggested, which frankly is coming up at the top of the list. And so if you have Lord of the Rings suggestions, I'm mostly kidding here, but

kind of not. I mean, we've got months, but I'm a little worried we're going to head into that delivery room and be like, uh, uh, uh, bookshelf. Yeah. Well, you know, we are talking about little Aragorn, right? I know you've already named him. I have been pitching Aragorn forever. Like I pitched it when, when Camille and Jarrett, uh, when I found out Camille was pregnant and it was going to be a boy, I was like, how's Aragorn? And they were like, no, no, that is not happening. See, I tried Atlas and I'm sharing this because I think Atlas has now, it's lost all altitude. But everyone I talked to was like, oh, Atlas shrugged. And I was like, no.

Because then I sound like I got pregnant at 15 years old after I just read the book and wanted to name my kid Alice. In your libertarian phase, yeah. All right. With that, thank you for joining us for another episode of Advisory Opinions. I got to say, I'm getting a little sick of the Trump stuff. I don't know how much more we're going to cover it.

The only exception will be a guest and we have a few guests that are potentials. But other than that, we're moving on. So if you're sick of Trump stuff, don't worry. So are we. And thank you for bearing with us through what was, I mean, it was an interesting legal news cycle. It was. It was an interesting legal news cycle. And can I tease a question that I want to answer in a future podcast? Okay. Is the tide turning amongst elite administrators and their attitude towards free speech? Because we had a, in addition to the Stanford Dean, which we've talked about, we had the Stanford president, and then we had the Cornell president and provost putting the hammer down

on a trigger warning initiative that came up through the Cornell students. We've also got the Columbia Instagram feud. I don't know about the Columbia Instagram feud. And with that, we'll talk about this next

time.