Advisory Opinions - A Nerdy Amuse Bouche

Episode Date: April 18, 2023

Justice Alito stays the Texas abortion pill ruling, leading to Sarah and David going full law nerds as they push back on bad reporting and evaluate the legal versus real world consequences. Also: -A snarky(?) Gorsuch -Sarah's favorite recent opinion -Updated takes on Alvin Bragg and Jim Jordan -*Sigh* Clarence Thomas -David’s insight into the Pentagon leaks Show Notes: -NYT Opinion Piece on ethics of SCOTUS Justices -National Constitution Center: Interpretation of Speech and Debate clause Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinion Podcast. I'm Sarah Isger. That's David French. And okay, this is, it's going to be a lot. There's going to be a lot in this pod. And I don't know whether this is going to be a good thing or a bad thing for those listening, but this one's going to be one of those nerdier, legalier pods. That's

just what it's going to be. So we've got a nice little opinion from the Supreme Court that we're going to do a little quicky quick. Then we've got the Fifth Circuit abortion pill ruling, as well as then the Supreme Court stay to talk about. And we promised we would talk about that January 6th D.C. Circuit ruling. There's a lot to dive into there. It's one of my favorite opinions of late. And I want to revisit that lawsuit from Alvin Bragg. Some new thoughts, new feelings, other cases that we need to talk about. A little bit deeper dive there. And yes, we need to revisit also the Clarence Thomas kerfuffle. New facts arising means new things to discuss. Finally, that leak dude,

David has feelings on how this has gone down. And then we'll end with a little feel good story as we've tried to do of late. David, it's a lot. It's so much, but it's a good pod. And I'm especially excited to talk about, well, maybe excited is the wrong word, but looking forward to talking about the leak story,

because everyone's been asking me, how could this possibly happen? And I have answers. Well, good. That'll be a nice little dessert. But first, an amuse-bouche of the Supreme Court in the Axon Enterprise case versus the FTC. This was kind of cool because it came up from the ninth circuit and you had judge Ken Lee writing the majority opinion and then judge Bumate writing the dissenting opinion. And why is that neat? Because they're friends, like real friends, real life friends. Uh, and so to have them on different sides was always kind of interesting to see who was going to win the battle royale of the Ninth Circuit buddy judges. Judge Bumate coming out ahead on this one. This is a case about

when you have to, you know, quote unquote, sort of exhaust that administrative process. This involved the FTC. Axon saying that the FTC's process itself with their administrative law judge was basically unconstitutional. So do you have to actually go to the administrative law judge first and say, hi, we think you're unconstitutional? What do you think? Have the administrative law judge clearly say, no, I don't think I'm unconstitutional and waste your time there? Or are you allowed to go straight to federal court? And it was a unanimous opinion in the result. It was eight judges agreeing with Justice Kagan's majority opinion. But David, that concurrence from Gorsuch just, it brightened my day.

And so I thought I would read some from the, again, concurring in the judgment, which is, no, you don't have to argue in front of the agency itself that it's unconstitutional, specifically, as Justice Kagan pointed out, when your argument is that the process itself is what's unconstitutional. Therefore, even if you get to go to federal court after they find themselves to be lawful, that the unconstitutional thing has already happened. That process that you're supposed to feel that Congress has implicitly deprived federal district courts of jurisdiction based on an administrative agency's process. Let me just read from Justice Gorsuch and then David, I want you to hop in. There are many problems with the Thunder Basin project, but start with its sheer incoherence. At the outset, Thunder Basin requires litigants in

courts to ask whether a, quote, comprehensive review process exists. What does that mean? It seems a review process will, quote, typically qualify as, quote, comprehensive when, quote, review in a court of appeals follows the agency's own review. But typically does not mean necessarily just because an agency can hear a case does not mean a district court cannot. To decide whether a particular case belongs in an agency rather than a court, you must consult three further considerations commonly known as the Thunder Basin Factors. That's where the magic happens. The Thunder Basin Factors require assessing whether, one, precluding district court jurisdiction would foreclose all meaningful judicial review. Two, the plaintiff's claims are wholly collateral to the statutory review scheme. And three, the claims are outside the agency's expertise. Harnessing the energy of these various

factors, we are assured, will allow anyone to detect a latent congressional intent to oust district courts of their jurisdiction in any given case. Just see how easy it is. To apply the first factor, all you have to do is ask a few more questions. They include whether the plaintiff could eventually obtain review in some federal court, whether that court's review would come too late to be meaningful, and maybe how analogous the plaintiff's plea for immediate review is to government officials' plea for qualified immunity. If this is starting to seem more confounding than clarifying, do not worry. The first factor is, quote, least straightforward anyway, citing Justice Kagan. When it comes to the second factor, you need only evaluate the collateralism of the plaintiff's claim. Apparently, that requires

considering the nature of the claim, not the status, pending or not, of an agency proceeding. The third factor is just one easy question, too, focused on whether the plaintiff's claim is, quote, intertwined with or embedded in matters on which the agency is an expert. If that does not help, try asking if the claim is entangled with the agency's expertise, or if the agency can bring to bear quote distinctive knowledge. Even after you make it through these twists and turns, a final surprise sometimes awaits. The court holds that all three Thunder Basin factors favor Ms. Cochran and Axon, so their cases may proceed in district court here. But what happens when the factors point

in different directions, some in favor, others against, immediate judicial review? No one knows. You get to guess. Footnote one. This is now quoting from the oral argument, Justice Alito. Does Exxon have to win on all three? Do you have to win on all three? Or can either of you win if one or more factors go in one direction and the other factor or factors go in the other direction, Deputy Solicitor General, I'm not trying to be obstreperous, but I think it would depend. Oh, Justice Gorsuch. That was actually, you know, David, we've said we don't like snarking opinions, but I think that was a very well done bit of sarcasm, not snark. And it perfectly lays out on my two axes, conservatism axis. But here it's actually that institutionalist axis. Justice Gorsuch saying the text of 1331, which provides that, quote, district courts shall have original jurisdiction of all civil actions arising under the Constitution laws or treaties of the United States. Not may have jurisdiction, but shall, he writes. Not some civil actions arising under federal law, but all, he writes. Like that is pure non-institutionalist Gorsuch. It's a cool little concurrence. Yeah, it's a very cool concurrence and it's not snark. I think sarcasm is good, but it's not sarcasm directed really at, you know,

it's not a biting concurrence at any particular justice, just kind of at the situation of it all. It might be biting at Thunder Basin. It's biting at Thunder Basin, but I'm not sure that anyone's going to take Thunder Basin all that seriously, or Thunder Basin's feelings all that seriously. But yeah, as you're reading that out loud, I was thinking, this is one of those reasons why you see such specialization in different areas of law out there, maybe even listening to this podcast, are Thunder Basin lawyers. People who know more than anybody else about the Thunder Basin test. An absolutely unnecessarily complex test, by the way, but that's one of the reasons why we have so

many subspecialties in law is because many of those subspecialties are unnecessarily complicated. But yeah, you're right. The case was not terribly interesting to me other than that concurrence by Gorsuch. Well, I think it matters. It's unanimity matters to me, this idea that you don't need to go through agency review if you're challenging the agency itself. And again, I'm overly summarizing probably. But the fact that you had Kagan write it, that it was unanimous, is definitely curtailing some agency power and certainly agency's power to review itself. No, this isn't actually about Chevron deference. But overall, I put this in the bucket of courts deferring less to agencies about their own power. True. It's chipping away. Everything is chip, chip, chipping away right now at the autonomy and authority of the executive branch agencies.

It's just, at this point, a trend too unmistakable to ignore in its magnitude. And then you're right, Sarah, this was one where typically we've seen as the administrative agencies have seen, you know, as we've seen that chipping away, the three Democratic appointees have been resisting that. But here, no. Not an earth-shaking opinion, but interesting. So congrats to Judge Bumate. Sorry, Judge Lee. I think Judge Lee here would tell us that he was applying circuit precedence and doing his best with those Thunder Basin factors. As Justice Gorsuch points out in what amounts to wanting to overturn not really just Thunder Basin, though clearly Thunder Basin, but this idea of judicially created balancing tests with factors. Justice Gorsuch has it in for him. This is one of many. Nobody joined. Huh. Interesting. Now, you can't read too much into

that if there were more justices and it actually were potentially to become the majority opinion. All of a sudden, people come out of the woodwork. Just because you don't join a concurrence doesn't even mean you don't agree with it. But nevertheless, Justice Gorsuch, the cheese is standing alone here. A perfect example of that is before Dobbs, the only justice in writing who had said reverse row in writing in a court opinion was Clarence Thomas. And he had said reverse row and none of the others had said that. And so there was some thought that, hmm, do some of these folks that we think want to reverse row really do?

Because they haven't said so yet. And yes, indeed, there were five who wanted to reverse. So watch out, Thunder Basin. He's coming for you. The clock is ticking. And who doesn't like just saying Thunder Basin factors? It sounds really fun. Okay, next up, the Supreme Court by Justice Alito issued a stay.

The stay heard round the Twitterverse. Upon consideration of the application of counsel for the applicants, it is ordered that the April 7, 2023 order of the United States District Court for the Northern District of Texas is hereby administratively stayed until Wednesday, April 19th at midnight. It is further ordered that any response to the application be filed on or before Tuesday, April 18th by 12 p.m. David, that sounds really boring. Why ever?

So why would this have made so much news? Well, because what is it staying, Sarah? We haven't said that yet. Yeah, it's staying that abortion pill ruling from Judge Kaczmarek in the Texas case. Remember, we had the dueling injunctions of sort. And by the way, they did become fully dueled because the district judge in Washington

clarified her injunction to say it is in direct conflict with the Texas one and stuck her tongue out and went, nah, nah, nah, judicially speaking. Okay. So in the meantime, though, remember Judge Kaczmarek had stayed his ruling for seven days to allow for appellate review. The Fifth Circuit did appellate review it, issued a 42-page opinion, which is quick in short order. I think that there was some misunderstanding in some of the news stories that I read that said that it was two to one. That's not quite true. All three judges were going to stay part of it. And the judge who dissented in part, it wasn't on the merits. She was just saying there should be an administrative

stay rather than a stay on the merits, which is what the other two had done. I know that's a little bit in the weeds, but it annoys me to see things that are slightly wrong. Okay. So the Fifth Circuit granted in part and denied in part. In short, what they said was, look, that reopening idea that you had where you can now reach back 23 years to the 2000 approval, nah, dog. That just got hard gnaw dog. But everything from 2016 on was going to live in that opinion. They found that the doctors and the group of doctors, the organization, both had standing, which was fascinating and something that's going to come up. is fascinating and something that's going to come up. And then, of course, the Supreme Court Justice Alito was like, administrative stay while we sort this all out. And remember, an administrative stay, they're basically saying we don't have time to even look at the merits.

This has nothing. It's like we didn't read anything at all. We're just keeping status quo in place while we look at it. It doesn't tell you anything about how justices are going to vote on this whatsoever, except that they think it's important enough to review. David, did you have any reactions to that Fifth Circuit opinion? Do you think the Supreme Court's going to agree, disagree? Where do you think this is all going? Yeah, so I had a couple of reactions

on the Fifth Circuit opinion. And the main one was, I mean, it was unsurprising that the reachback theory did not survive. That one was the biggest stretch of the district court's legal theories. I'm mostly interested, actually, and very interested in the ultimate standing ruling. That's the one that I think is going to be the most interesting legal consequence versus sort of the real world consequence of how available is this abortion pill. But the most interesting legal consequence, because how many times have we talked about standing, Sarah? we are constantly talking about standing and whether or not the concept of standing is being really truly expanded to such a degree that it's just going to be ever easier to get in court to

challenge government actions and this is exactly the kind of case where you might see that further extension of standing we have the student loan case, for example, hovering out there, where you might see some movement on the standing doctrine. So that's where, as a legal consequence, I think of this case, the most enduring element of this case. Now, of course, the real world consequence, because how many people are walking around the streets of the United States thinking about standing. Me. You're thinking about it. All of our legions of listeners, which you are legions, but a scattered legion.

You're probably not going to bump into each other too often on the sidewalk. Aside from our legions of listeners, the availability of the abortion pill itself is the core fundamental outcome here that for which standing may be the ultimately be the core determinant. So all of the interpretation of the Alito stay that I've seen some online saying this means the Supreme Court is leaning against the plaintiffs in the case. No, it's administrative, as you said. It means nothing other than a pause button. That's it. So Jonathan Adler wrote up his take on the standing thing at Reason, the Reason blog.

I thought I'd just read a little piece of it because I think it's interesting here to understand what their arguments are and why he thinks they're quite weak. I'm not sure that I think they're as and why he thinks they're quite weak. I'm not sure that I think they're as weak as he thinks they're weak. And before I get into that even, this, David, is something that's coming up more frequently at the court. And I think standing is the best example I can give of it. But culturally and politically, it's coming up every single day and all the time. And this is to fight the other side. Do you say that the thing they're doing is wrong and we're not going to do it?

Or do you say the thing they're doing is wrong and so we're going to do it too to teach them a lesson? And on the standing thing, especially because the number one place that I think conservatives would say that standing has been most abused is the abortion context. Yes, true. Also the environmental context, but abortion probably would be number one. And this idea that either the justices on the court can say, nope, you do not have standing. Otherwise, standing is becoming less and less even meaningful of a test for these cases. Or do you say, well, you know what? You found standing for all of these doctors who wanted to perform abortions when they were suing in the pre-Dobbs era. So here we are. What's good for the goose is good for the gander. Now we have standing for these doctors as well, who don't want to perform abortions. It's not as simple as that, but it will feel that way.

So here's Adler's take. And remember for standing, just for those who are playing at home, article three standing requires among other things that plaintiffs have suffered an injury in fact that is both concrete and particularized and actual and imminent. Speculative injuries or those based on mere probability of future harm are insufficient. And here's him writing, here the plaintiffs argue that some of their member doctors suffer an injury because they have to provide medical care to women who suffer complications from mifepristone. Assuming that this constitute an injury, a contestable assumption, the plaintiffs have a problem of identifying that this injury is actually going to happen to them as a result of the government's actions. The Fifth Circuit panel seeks to overcome this hurdle by arguing that plaintiffs are statistically certain to suffer their alleged injury of having to provide emergency room care to women suffering complications. But to make this

argument, the panel had to sidestep existing doctrine and play a bit of sleight of hand with the relevant allegations and claims. For starters, the claim that an organization can claim standing because there is a strong statistical probability that some of its members will suffer an injury from a government action has been expressly considered and rejected by the Supreme Court, most notably in Summers v. Earth Island Institute in 2009. Goes on to talk about Justice Scalia saying that, and this was the case, David, about people visiting the parks. Justice Scalia rejecting says, some unidentified members have planned to visit some unidentified small parcels affected by the Forest Service procedures and will suffer

unidentified concrete harm as a result. Not enough. Scalia explained that would, quote, make a mockery of our prior cases, which have required plaintiff organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. The Fifth Circuit does not even mention this case. The statistical certainty, by the way, is that two to seven percent of cases of women taking mifeprestone will involve potential complications from the drug not fully working if a press stone will involve potential complications from the drug not fully working because 5 million women have taken the drug since 2000. That's between 100,000 to 350,000 cases in which women have needed additional treatment. But note, that's for a 20 plus year period. On an annual basis, that's 5,000 to 17,000. And here's Adler even making the demonstrably

false assumption that all of these cases require a visit to one of the thousands of emergency rooms in the United States, it is far from a statistical certainty that one of the plaintiff doctors will handle one of these cases as these cases represent a tiny fraction

of the over 130 million emergency room department visits each year. Fair enough. There's a little bit there. I don't think it's as strong as he made it, in part because the Fifth Circuit does go through multiple of these specific doctors who have handled specific injuries coming into their emergency rooms related to complications from women taking this drug. But I actually agree with him that I'm not sure that's an injury. A doctor having to take time away from other patients to treat this patient

because of a complication from a drug that the FDA approved? Woo, that's not concrete to me at all. Yeah. Yeah. It would seem to me that you would have to show some degree of severity of the problem that is requiring an additional expenditure of resources, perhaps costing the money in some concrete way. But the idea that you're- The doctors are salaried and work for a number of hours. Yeah. Yeah. That's the issue is the question is by treating the patient as a doctor, what is the harm to the doctor? That's the key issue to me in the standing analysis. I'm pretty darn convinced in looking at the Fifth Circuit opinion that, yeah, it's probable to certain

that these doctors will end up treating individuals who've taken the pill and have suffered complications from the pill. Again, probable, perhaps certain, but at least probable. But the question is, how does that hurt the doctor? That's the key question to me, Sarah, and you hit the nail on the head. Now, again, let's go back to how we framed this from the beginning. If you're extending and stretching standing doctrine to not really mean concrete particularized injury, but concrete particularized impact or some sort of way in which you are part of the process or part of the treatment, then that changes the analysis. But as of now, when you think of standing, you think of injury, not just impact,

not just that you're involved, but that you're injured. And that's where I think this case is. This is where the plaintiffs are going to have their biggest challenge. So we'll see. This will all be moving relatively quickly. We expect something from the Supreme Court in advance of that administrative stay

lapsing next week. 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. She'll love looking back on your childhood memories and seeing what you're up to today. Even better,

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there's hundreds of these cases of folks involved in January 6th being charged with crimes. This case involves three that were charged with obstructing an official proceeding and all three, there's evidence that they assaulted police officers on January 6th. I am so into this opinion, David. It's why we actually delayed it so we could spend some more time on it. Because you just have such thoughtful analysis from all three judges. And you've got three opinions. You've got Judge Pan writing the quote-unquote majority opinion, though we'll get into that. Judge Walker writing a concurrence and Judge Katsis filing a dissent. And for some reason, when you have three judges all coming out differently on a question, it's way more

interesting than there was just one side versus another. Because it really shows, I think, the thoughtfulness and the difficulty in really discreet questions. So obstructing an official proceeding, I'm going to read it, the statute to you, and then I'm going to point out the two words that these hundred plus pages are going to turn on. Whoever corruptly alters, destroy, mutilates, or conceals a record document or other object or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding or otherwise obstructs, influences, or impedes an official proceeding or attempts to do so shall be fined under this title or imprisoned not more than 20 years or both. So this ain't your mama's obstruction charge. This is up to 20 years in prison.

So 100 plus pages is going to turn on first that word otherwise. So in part one, you have alters, destroys, record, document, other object, clearly like about evidence. And then it says, or otherwise obstructs is otherwise a broadening function or a narrowing function. Two of the justices are going to, two of the judges are going to say it's broadening. The dissent is going to say that it's actually narrowing and it needs to be something closer to evidence. In which case these guys didn't destroy any evidence or alter any evidence. Therefore, you can't charge them with this. And then the second part is whoever corruptly, as in it's not enough to just do the thing. You have to do it with a certain mental state, that mental state being corruptly. What does that mean? All three judges are going to have

different opinions on what corruptly means? And not only does it affect this case for these dudes, it's going to really affect all these other January 6th cases where they are charged. Might also impact one Donald J. Trump. Yep. There's that little bit. So let's start with otherwise. What the word otherwise means. I'm going to read from the dissent here because I found Judge Katsas' examples to be most illuminating. Now remember, Judge Katsas in dissent is going to argue that otherwise is

a narrowing function, not a broadening function. Right. So here's his examples. If a rule punished anyone who punches, kicks, bites, or otherwise injured someone, you would recognize that the examples involve physical injury. And you would understand that the residual term likewise involves a physical injury. Further, you would do so even though the dictionary defines the word to include reputational, financial, and emotional injuries. Or consider a residual clause introduced by the adjectival form other. If I claim to love lions, tigers, giraffes, and other animals, you would recognize that the examples all involve large game. You would thus understand that animals likely included elephants, may include dogs, and likely excludes mice. You would certainly

not think that animals unambiguously includes mice. The ambiguousness of this statute will also come into play when we talk about if it's ambiguous, what about the rule of lenity? All right. Another example he gives. Suppose a companion and I are setting off to a mountaineering adventure. And by the way, if you know Judge Katsas, this is kind of a funny example. He doesn't strike me as the mountaineering adventure type, let's just say. This is a judge's judge, the nerdiest of nerds. If my partner says, please don't drive too fast or otherwise put us in danger during this trip. I will have

difficulty discerning whether otherwise put us in danger is meant to be all-encompassing, i.e. covering both driving and mountaineering hazards, or limited to dangerous driving besides speeding. But suppose my partner says, please don't drive too fast, accelerate or decelerate suddenly and without warning, change lanes without signaling, cut off or tailgate other cars, yell, gesture, or make strange faces at other drivers or their passengers, or otherwise put us in danger during this trip. In that case, I will have no doubt

that the otherwise clause refers only to driving hazards. The reason is plain. A speaker would not waste time and effort enumerating a reticulated list only to render it meaningless with a catch-all that subsumes and is not delimited by the list. The longer and more complex the list of examples preceding the word otherwise, the stronger the case for giving the residual clause a contextual rather than an all-encompassing interpretation. What'd you think? I was unconvinced. And the reason why I was unconvinced by that is,

let's just go back to the statute. Now, the most convincing part of his, of the reasoning, I think is sequential, not linguistic, if that makes sense. No, it doesn't. Say more. Okay. So the way the statute read, let's go back to it. No, it doesn't. Say more. Okay. So, the way the statute

reads, let's go back to it. It's really interesting to me. The statute is quoted in full so many times in this opinion because it's so important to just go back and stare at it. So, here's what's convincing to me. So, you have C, whoever corruptly, and then number one alters destroys mutilates or conceals a record document or other object or attempts to do so with the intent to impair the object's integrity or availability for use in official proceeding okay clear then or two otherwise obstructs, influences, or impedes any official proceeding or attempts to do so. In sequence, like if you're going from the, typically you'll go to the greater to the lesser, not the lesser to the greater, if that makes sense.

When, if I was drafting the statute and I wanted to make it very clear, I would say whoever corruptly obstructs, influences, or impedes any official proceeding or attempts to do so, including by altering, destroying, mutilating, then that would, to me, make more sense. But now imagine you work in Congress. Now how would you write it? Now, how would you write it? Yeah, but I work in Congress, so I'm not going to do the most sensible thing. But the problem that I have is subsection two, which says otherwise obstructs, influences,

or impedes any official proceeding or attempts to do so, reads literally just like a different statute from one, which is talking about availability of tangible things for use in official proceedings they're just two different things and so that's what makes me go with judge walker and the majority here to say wait a minute that in this context where one is quite narrow talking about the availability of physical things for use in official proceeding okay clear and but number two reads as if like you're just talking about an entirely different statute an entirely different concept and so how do you give meaning to those words and the way I give meaning to both of them

as they're written is the way I said it. I read it in essence as saying, whoever obstructs, influences, or impedes any official proceeding or attempts to do so, including by altering, destroying, is I think the way this reads logically, the way it applies logically. But it's a mess to me. It's a mess to me. Let me ask the follow-up question. Do you think there's any ambiguity in that that would trigger the rule of lenity? You know, I don't because to me, both one and two are clear. So C2 should read in my, whoever corruptly obstructs, influences, or impedes any official proceeding or attempts to do so. Once you get to Walker's opinion about the word corruptly. Oh, we're about to get there. Yeah, that's where lenity comes into me.

That's where the statute needs to be narrowed. But one and two seem to be pretty clear independently of each other. Okay. I think I entirely agree with you on that. I think that, yeah, for all the reasons you just said, I think it's a not crazy argument that it narrows at all. And I think without the numbers and without the, as you put it, it almost could read as a separate statutory language. It's not just after the comma and otherwise does X.

I would feel differently, but I agree that the numbers, the delineation, all of that. Yep. I think it's its own thing. Okay. so now we go to whoever corruptly does this thing of obstructing. So the majority, and again, forgive me if you are Judge Pan, because I'm going to do this in a sort of quicker way. The majority says, look, there's three different ways to read corruptly. And lucky for us, they are violating all of them. So we good here. They assaulted a police officer. It's sufficient, even if it's not necessary. So let me give her three different ways in which she could read corruptly.

And she doesn't care which one it is. One, under the Arthur Anderson test from the Supreme Court's 2005 opinion, acting corruptly may require nothing more than an act that is, quote, wrongful, immoral, depraved, or evil. Number two, the use of unlawful means, here assaulting a police officer,

is again, sufficient, but not necessary, but unlawful means would be test number two three justice scalia in the aguilar decision that's a 1995 er uh acting corruptly requires quote an act done with an intent to give some advantage inconsistent with official duty and the right of others um so doing it for a benefit, basically, that's what corruptly means. And again, she says, doesn't matter. We good here. Moving on. The concurrence, though, says, no, you've got to have some real mens rea here. And what I found really fascinating from the concurrence from Judge Walker was actually footnote 10, where he notes for himself that he believes that his

concurrence is actually the controlling opinion in this case. You normally let other people say that about you and your opinions. But I like that Judge Walker's like, I'm just going to make the case for myself here. Footnote 10. He says he's making the case. He says, put differently. If a defendant is guilty under my approach, he will be guilty under the lead opinions. But some of the defendants guilty under the lead opinions approach will not be guilty under my approach. Mine is the position taken by the panel member who concurred in the judgment on the narrowest grounds, citing Marx, which is sort of the famous way in which you're supposed to tell in a divided opinion which one controls. A, I think he's actually totally right. His is the narrowest, therefore it's controlling. I'm just, I'm not sure he needed to point it out. I do like it. I win.

I win. Just noting, this should be the majority. Okay. But Judge Katz is again in the dissent pointing out why all three of these tests aren't as easy as you think, don't do what you think they're doing, and are particularly concerning in this statutory framework. So under one, again, that was the Arthur Anderson, evil, immoral, bad heart type stuff. Would a lobbyist violate this section

because his conduct was wrongful or immoral in some abstract sense? What if the lobbyist believed that his work was wrongful or immoral, but did it anyway to earn a living? Would you now have the corrupt intent? Under the second one, and remember that one's unlawful means, like the assaulting a police officer, he says, imagine a protester who demonstrates outside a courthouse hoping to affect jury deliberations has influenced an official proceeding or attempted to do so, which carries the same penalty. So has an EPA employee who convinces a member of Congress to change his vote on pending environmental legislation. And so has the peaceful protester in the Senate gallery. Under an unlawful means test, all three would violate this section because each of them broke the law while advocating, lobbying or protesting. And then he cites the various laws that this would violate. And each would face up to 20 years imprisonment rather than the maximum penalties of one year, a criminal fine and six months respectively. So while this approach would create an escape hatch for those who influence an official proceeding without committing any other crime, it would also

supercharge a range of minor advocacy, lobbying, and protest offenses into 20-year felonies. That still gives this section an improbably broad reach because it posits that the Corporate Fraud Accountability Act extended the harsh penalties of obstruction of justice law to new realms of advocacy, protest, and lobbying. Now, under the third test, that was the Scalia improper benefit test. That may significantly narrow this section, but only by excluding these defendants. As traditionally applied, the test seems to require that the defendants seek an unlawful financial, professional, or exculpatory advantage. In contrast, this case involves the much more diffuse, intangible benefit of having a preferred candidate remain president. If that

is good enough, then anyone acting to achieve a specific purpose would satisfy this requirement or the purpose of the action would qualify as the benefit. Let me just repeat that. The purpose of the action would be the benefit. For example, the hypothetical firearms lobbyist would be covered if he sought a, quote, benefit of less stringent gun regulations. Likewise, the hypothetical Senate protester would do so if she sought a, quote, benefit of defeating the bill under review and so on. Okay, don't get to lenity yet, David. Just talk about who, which of these tests for corruptly would you use? Who has the better argument? You've got three choices. Which door will you pick? You've got three choices.

Which door will you pick? I am entirely persuaded by Judge Walker. Yeah, I am persuaded. So what Judge Walker did is he says, he says, I would give corruptly its longstanding meaning. It requires a defendant to act with, quote, an intent to procure an unlawful benefit either for himself or for some other person. That's the Scalia test under Aguilar.

That's, yep. And the thing I like about it is, and Judge Walker did a good job of doing this, I think, was distinguishing it that corruptly has to mean something different from, say, willfully, right? It has to mean something different from even say, you know, the word unlawfully, corruptly, willfully, they're not all synonyms. Corrupt means something different in the context, especially of official acts, official actions. You're thinking of it in the sense of, you know, and use the bribery analogy.

You're thinking of it in the sense of corruption. Corruption is not a synonym for just all unlawful activity. All unlawful activity is not corrupt or all willful activity is not corrupt. And so I thought that that was a very well-explained distinction that the word corrupt is something different. It does mean something different. And what is that in the most logical meaning of it in context, according to precedent, is there's got to be an unlawful benefit lurking around there somewhere. I totally agree with that. But does it apply to these defendants? I totally agree with that. But does it apply to these defendants? Well, Walker would say it might. You just need to introduce evidence that it does.

Would trying to keep Donald Trump in office as president be an unlawful benefit? Well, OK, so here is the quote with an intent to procure an unlawful benefit either for himself or for some other person. And that's where I think that the effort to keep Donald Trump in office unlawfully is the benefit to Donald Trump. So there is a benefit to some other person. So I do think that that would satisfy this definition of corruptly. Interesting. So I think I agree with Judge Katzis that that. So first of all, I agree with Judge Walker that that is the correct definition of corruptly. I think I agree with Judge Katzis that in order to give that any sort of limiting definition, you have to actually give it a limiting definition. I'm more than willing to wait for trial,

see how that evidence plays out. But it's not clear to me that a protest that turns into a riot that wants something will come anywhere close to reaching that test, unfortunately. Luckily, you get to charge them with other things, by the way. It's not like these guys just go home, like they assaulted police officers. We could. Yeah, yeah. There are other crimes here that are not so controversial. And I think, you know, in Judge Walker's opinion, he says,

the defendant must not only know he was obtaining unlawful benefit, it must also be his objective or purpose. So in other words, the unlawful benefit can't be a side effect. It's not the same thing as a objective, it's not the same thing as consequence. So just proving that the unlawful benefit could be a consequence of the corruption is not the same thing as saying it was the objective of the alleged corruption. It's making it the objective is that what makes it corrupt. All right, let's do a little bit of rule of lenity at the end, because this is discussed throughout with various judges accepting and rejecting the idea that lenity even comes into

play in this case. Again, from Judge Katsas, I thought he did a nice job of delineating the dispute over rule of lenity, and it's Gorsuch versus Kavanaugh here. Gorsuch defines rule of lenity, applies, quote, where the traditional tools of statutory interpretation yield no clear answer. Kavanaugh, quote, it applies only when after seizing everything from which aid can be derived, the statute is still grievously ambiguous. Now, if those sound like the same thing, this probably isn't your podcast, first of all. But I'll just say that, first of all, because there is a judge in dissent, or even many judges in dissent, justices in dissent, as it were, if this were en banc, judges, that can't be enough to trigger lenity. The fact that somebody thinks it has a different meaning doesn't make something ambiguous.

And I think that's something I'd like to see more written about as we go through rule of lenity. It's not just a disagreement. It has to be some core ambiguity in the language itself, not a disagreement over what the language means. And so in this case, even though, David, I think you know how I feel about, A, expanding criminal law to reach the bad man stays in jail theory,

which, you know, and B, the idea that like if Congress can't write their statutes well, we should like help them out. Nevertheless, I think this is a disagreement, not an ambiguity. What do you think? I would say disagreement, not ambiguity. Yes. To the extent the rule of lenity plays in at all, it would play in the word corruptly, in my mind. The word corruptly is in so many statutes. OMG. where I'm not sure that you could say under the current state of case law that it truly is an ambiguity. And to me, the Walker definition and the Walker approach is the way the rule of lenity would operate

in the construction of the word corruptly. That kind of narrowing construction that Judge Walker articulated is sort of the effect of, say, a rule of lenity in action as a practical matter after decades of precedent. All right, let's move on to the revisitation of the Braggs lawsuit. David, I want to confess that I feel like I didn't spend enough time on this before we talked about it on the last episode, and I would like to correct that grievous oversight. I stand by the grandstanding about grandstanding, don't get me wrong, and everything we said about it, but I

wanted to dig more into some of the precedents and especially the recent ones. And so I want to do a little timeline for folks. First of all, and again, the Braggs lawsuit, he is suing Jim Jordan and the committee that issued a subpoena not to him. There has not been a subpoena of Braggs. There has been a subpoena of one of his former prosecutors, Pomerantz. So he's suing both the congressional committee, Jim Jordan, blah, blah, blah, and Pomerantz to enjoin Pomerantz from complying with the subpoena and enjoin the congressional committee from enforcing the subpoena. And I talked about Mazars, right? That's the 2019 Supreme Court case in which Donald Trump tried to enjoin Mazars from complying with a congressional subpoena as well. And they had all these, you know, this multi-factor test to determine legislative purpose and all that stuff.

And I was like, la la la, and we're done. There's this little line in it, though, that's worth quoting from. The court also was cognizant of the fact that the Constitution's speech or debate clause forecloses plaintiffs from compelling discovery from the oversight committee, its members or staff. OK, it was just sort of in there hanging out, not doing much work. Fast forward. And that's the district court opinion in Mazars. It then goes to the D.Cazar's. It then goes to the DC Circuit. It then goes to the Supreme Court. The Supreme Court at no point mentions jurisdiction or standing or anything else. They just handle the facts of it all as well. 2022, the RNC sues to

enjoin a subpoena that was issued to Salesforce, a company that it uses for its email marketing. it tosses the portion as applied to the members of Congress saying, and I'll read here, the speech or debate clause provides that for any speech or debate in either house, senators or representatives shall not be questioned in any other place. Its purpose is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. The clause serves the additional function of reinforcing the separation of power so deliberately established by the founders. When The clause serves the additional function of reinforcing the separation of power so deliberately established by the founders. When it applies, the clause provides immunity

from both criminal and civil suits. And in our circuit is a jurisdictional bar. Thus, although this clause speaks of speech or debate, it protects all legislative acts. I'll get back to what a legislative act is in a second. Then a few months later, they subpoena Mark Meadows. Mark Meadows sues the congressional members and committee. And here's a little snippet from that opinion, also dismissing. Given the unique circumstances of this case, including the congressional defendant's non-assertion of speech or debate clause immunity

up to this point, the court must address three subsidiary issues to determine whether the immunity applies here. One, whether the immunity is only effective when asserted by congressional defendants, or whether the court instead must or at least can raise the immunity sua sponte, meaning on its own. Two, whether the subpoenas issued to Meadows and Verizon are protected legislative acts. And three, whether the congressional defendants have waived their speech or debate clause immunity. Surprise, surprise. He finds it is jurisdictional. They don't have to have even raised it. He can raise it sua sponte on his own because it goes to subject matter jurisdiction

of the federal court. If deprived of subject matter jurisdiction, we done. Whoa. Yeah. So A, on the Bragg lawsuit, remember he has sued both the congressional committee and this individual to prevent him.

So it looks much more like that RNC one. But under that D.C. test, the congressional committee is going to be immediately dismissed. They lack subject matter jurisdiction. Then you're going to get to Pomerantz himself. And that then comes a test of whether it's a legislative act, this subpoena. So a couple of factors to consider here. This is the Eastland test coming from a 1977 Supreme Court case. I know we're burying a test today. So many tests. It has to be related to an furtherance of a legitimate task Court case. I know we're very into tests today. So many tests. It has to be related to an furtherance of a legitimate task of Congress and then the propriety of making the subpoena

target whose bank records were deemed a subject of the investigation and subpoena. But you can't look too far into it. And the motives don't matter. So, for instance, Congress cannot issue a subpoena for the purpose of law enforcement. Congress has no general power to inquire into private affairs and compel disclosures without a valid legislative purpose to do so. Congress cannot expose for the sake of exposing. And for the court to find a subpoena invalid based on improper purpose, the subpoena must be solely for a prohibited purpose. Such an exposing for exposure's sake. Mixed purposes do not defeat an investigative act. So it's exposing for exposure's sake, but also we'd like to maybe do some legislation around it. So David, that does

change things a bit because here's the subpoena that was issued to Pomerantz. The committee says that legislative reforms could include, one, broadening the existing statutory right of removal of certain criminal cases from state court to federal court, two, investigating potential conflicts between federal law enforcement officials required by federal law to protect a former president

and local law enforcement officials required to enforce an indictment, and three, enhancing reporting requirements concerning the use of federal forfeiture funds or to prohibit the use of federal forfeiture funds to investigate a current or former president or presidential candidate. So A, the congressional folks, Jim Jordan and all of that, they're gone. This is jurisdictional. That's over. For Pomerantz, they're not supposed to look too far in to whether this is a real legislative act, but I think this is going to really

put that test. Yeah, I'm glad we went back and revisited it. And I share your chagrin, Sarah, that we did not dive into this aspect of it last time. And I think it's, I'm glad we went back and did it. It really does raise though, it's interesting. If you go back and you read the speech and debate clause and you're looking at the actual words on the page,

just reading the language and its common meaning, it really doesn't seem to be that broad and as broad as it has been construed. And I just put, we'll put into show notes a little short summary from the National Constitution Center. And I like how it says, it says this, the Supreme Court has described the speech or debate clause as a provision that cannot be interpreted literally, but instead it must be construed broadly in order to effectuate the clause's vital role in the constitutional separation of powers. And it described phrases like

shall not be questioned, speech and debate, and even senators and representatives as deceptively simple. In other words, those words are just too simply phrased to accomplish the purpose that is allegedly much broader than the actual language would imply um uh that's a that's a bigger discussion you know one of the i i would love one day if we just really want to nerd out and it's a slow news week if those ever i, I mean, slow legal news week, if those ever happen again in America, to actually bring somebody in, an expert on the speech or debate clause, and talk about why it has been so necessary, allegedly, to construe this beyond what the language seems to pretty plainly indicate. beyond what the language seems to pretty plainly indicate. But that's all to say, David, as a wrap on this little topic,

Bragg's lawsuit, we had said, was grandstanding and had all this nonsense in it, but that we thought it underlying had some legal merit. I'm now 100% I'm sure that it's going to get tossed in half part. And I am, you know, sort of 50-50 on whether the Pomerantz part itself gets tossed. I think it's relevant that there's also no subpoena to Bragg himself, which is actually pretty unclear in the lawsuit, because he talks about all these letters that have been flying around,

but that's not a subpoena. And can I just, this is like, tis, tis Gibson done for filing this lawsuit the way that it was filed and not mentioning speech or debate, not mentioning why there was, you even had the ability to bring this lawsuit in the first place. ability to bring this lawsuit in the first place. Yeah. Now, other things that we need to revisit, David, we talked about the initial ProPublica story about Clarence Thomas and not disclosing in his financial disclosure form private jet travel. And remember, I said there's versions of this that I think don't fall under the, at that time, financial disclosure rules. For instance, flying on a private jet with Harlan Crowe to a place. And I said, there's another version where Harlan Crowe sends the jet to come pick him up and bring him to Harlan Crowe. And then the third version where he simply lends his jet to Harlan Crowe. But we didn't really know

the only ones in the ProPublica story seemed to fall really in the first one, maybe in the second one, and there was no real discussion of anything in the third one. However, there's now been an additional ProPublica story and a Washington Post story. In the next ProPublica story, it references a 2014 sale of property that Justice Thomas co-owned with his family and his mother of his mother's home to Harlan Crow for $130,000 that was not put on his financial disclosure form. His mother continues to live in the home. Harlan Crow has done upkeep on the home. She doesn't pay rent, but she does pay taxes and insurance. Pretty clearly was supposed to be disclosed. Justice Thomas has since said he thought that because he had a financial loss on the property

that it didn't need to be disclosed. I got to tell you, you can hire or not even hire, have for free help from many good attorneys and accountants who will help you fill out this financial disclosure form. At some point, the I just can't figure will help you fill out this financial disclosure form. At some point, the, I just can't figure out how to fill out this form over and over and over again. And this one, which is clearly meant to be included, not good. I want to get your reaction to that. But two, the Washington Post then puts out their bombshell story. Okay, here's the headline. Clarence Thomas has for years claimed income from a defunct real estate firm and says that he's been claiming income from something that doesn't even exist. And then when you go read it,

he was erroneously claiming income from Ginger Limited at 7632 Ferry's Drive rather than Ginger LLC at 7632 Ferry's Drive. Really, the limited partnership dissolved and they reconstituted it as an LLC. instituted it as an LLC. And that was an entire story from the Washington Post about Clarence Thomas's sloppy disclosures. I just want to be clear. The not disclosing the sale of the property is real. And the Washington Post story is very, very unreal. But when you do unreal stories, it muddies the water a lot and takes away from the credibility of the real stories. So we're going to talk about the real story, but I just want to note how unhelpful stuff like that is. And I don't want to compare the two, but in the sort of media

environment sense, it's very much the Avenatti gang rape story about Kavanaugh. There were actual real allegations here, but when you come with a clown show, you clown up the whole thing. So boo on the Washington Post for that. But David, thoughts on what you think now about Clarence Thomas's financial disclosures? I got to say the real estate story really bothered me. This wasn't a close call. It wasn't a small amount of money either. You're talking over $100,000. Now, he may have taken a loss on the property, so it wasn't as if there was some major financial benefit to him. But still, it had to be done. It should have been done. And Sarah, as you said, there are people to help here. If you're a Supreme Court justice, you can't be saying, well, I just messed this up. It was too confusing or I didn't understand. No, you've got to get help and it's got to be done right. You're under a microscope. you got to get help and it's got to be done right. You're under a microscope.

And so I just don't, I don't see the excuse for this. It bothers me. And, you know, all of this disclosures that we've made before, we hereby repeat and reincorporate as far as that, you know, the Harlan Crowe's an investor in the dispatch. I have debated, I think I've done three debates at Harlan Crowe's place in Old Parkland. So get those disclosures out there again. But this was just full on a failure by Clarence Thomas, full stop. And then I wholly agree with you on the Washington Post non-story, because what ends up happening is you get in this raging partisan debate online and on cable news and stories like that give partisan defenders a total freebie to sort of focus on the one thing that's frivolous and ignore the thing that's substantive and this is something we saw a version of this a hundred thousand times in the Trump era. And it would go something like this. Donald Trump might do something that was like a nine on a scale of one to 10. And then a news report comes out and it says, no, it's actually an 11.

So then all of Trump's defenders say, look at the news, exaggerating, exaggerating, and they never deal with the conduct that's a nine. They just make fun of, mock, debunk, etc., the argument that it's an 11. And we're left with underlying misconduct that isn't really fully addressed the way it should be addressed. So, yeah, I found that disclosure, failure to disclose, not good. Not good. And it's not his first failure to disclose where he's had to amend his financial disclosures. He's agreed to do so. He's going to amend that financial disclosure, but he failed to include, for instance, his wife's salary and other things. And each time there's like, well, I didn't know that that counted. Each time? Each time.

However, I also want to point to a New York Times editorial board piece that we'll put in the show notes. I actually thought it was really well done, David, and fair and interesting. And it took up what I think my biggest complaint was in the initial story, which is in order for this to be meaningful, you have to show that Clarence Thomas was acting uniquely

in some respect, or if he wasn't, then your beef is different. Your beef is with the disclosure policies of the justices, not with, for instance, aha, impeaching Clarence Thomas. So I just want to read this one section. Justice Antonin Scalia took at least 258 subsidized trips while on the court, often to distant destinations, all paid for by private donors, some of which were at least partially disclosed. He often tacked hunting trips onto trips to give speeches, but disclosed only the speeches. He died in 2016 while staying in a luxurious Texas hunting lodge owned by John Poindexter, a wealthy businessman whose company had legal matters before

the court. That trip was never officially disclosed, although I'm not sure how you were supposed to disclose, but anyway. Justice Stephen Breyer took at least 225 subsidized trips from 2004 to 2018, including trips to Europe, Japan, India, and Hawaii. One was a trip to Nantucket paid for by David Rubenstein, a private equity mogul. Justice Ruth Bader Ginsburg got a private tour of Israel in 2018 that was paid for by an Israeli billionaire, Morris Kahn, who has had business before the court. Many other justices have taken questionable trips over the years, including week-long trips paid for by big universities and law schools, some of which were not fully disclosed on their annual reports. And they talk about the reputational damage this does to the

court. This is what I'm willing to sign on to, that there is a disclosure problem at the court that you need to change the disclosure rules. And they have quotes, including from Gabe Roth, who's the executive director of Fix the Court. And he points out judges are still not required to disclose the dollar amounts of trips and can wait up to a year to report them. So that's all to say, it's not that I don't think there's a problem. It's that I don't think that the problems equal impeach, investigate, blah, blah, blah, Clarence Thomas. I think the problems are more fundamental, actually, and much bigger and more serious

than I think people are actually treating it. I think they're mad that I somehow don't think this equals Clarence Thomas. But remember, when I referenced those other justices who we knew were taking these trips, this is a nice summary of what I had not had the resources to investigate myself. Yes, exactly. Exactly. When the story broke, we couldn't investigate this, but we did know, and you actually said this pretty clearly in the podcast, this was not unique to Clarence Thomas and making it a Clarence Thomas story detracts from the fact that it is a court story. Now, the failure to disclose on the money

of the real estate purchase, that's a Clarence Thomas story. That's not a court story. But the other aspect, the travel, kind of a court story. And I was talking to some people the other aspect, the travel, kind of a court story. And I was talking to some people the other day, and it's interesting. News organizations are and will be devoting more resources to the Supreme Court. It's going to be under more scrutiny as the court becomes more prominent.

I already thought in many ways the Supreme Court got less scrutiny than its power dictated it would ordinarily, often because people don't understand the sheer extent of the court's power. But now it's just becoming unmistakable. And there's going to be more scrutiny on the court. transparency than any other branch of government in some really important ways. And extended periods of less transparency can lead to cavalier treatment of rules. Yep. And I don't agree with Gabe Roth on every single thing he advocates for or believes in, but I think he's doing God's work on some of this stuff. And I'm glad he's getting quoted in these pieces. So thanks, Gabe, for all you're doing out there. All right. Leaky leak time. Okay. So this is a legal story in the sense that we have had a young airman, National Guardsman arrested for leaking really explosive classified documents about the Ukraine war. And he's really young, a national guardsman, and popped them in Discord, this sort of Slack-style communication software that is used by an awful lot of gamers, leaked it to his gamer group.

And I've had a ton of people just incredulous that he would have access to this information and I was not incredulous about it and I wanted to explain a little bit why and why we have a problem we need to fix and I'm not sure exactly how to fix it so if you look at the recent history of leakers you're going to find a lot of young people who are pretty low level in the world. So you'll have had the Bradley slash Chelsea Manning leak from Iraq, which was a very young soldier who had access to an enormous amount of classified information and leaked it to the public. You had Reality Winner, who was the furthest thing from a senior official. Ed Snowden was not a senior official. So you have these young people leaking really explosive or, you know, in some greater or lesser degree explosive classified documents. And everyone's saying, how do these

young folks have access like this? Well, Sarah, there's a lot of people with security clearances that are really pretty darn young who end up with pretty major access. And how does this happen and why does this happen? Well, let's suppose you are a lieutenant colonel and you're going to be doing a major briefing, say, of a two-star, a three-star, whatever. Or you're going to be doing a major briefing, say of a two-star, a three-star, whatever, or you're going to be briefing Congress, you're going to be doing some sort of major classified briefing. Well, what you're going to do

is you're going to build, for example, this is just a hypo, you're going to be building, spending hours building a PowerPoint deck. Now, you're say a 42-year-old lieutenant colonel who has a lot on his plate. Are you building that entire PowerPoint product yourself? No. Much like a senior attorney will rely on associates to create first drafts or paralegals to help put together trial exhibits, guess what? Senior officers rely on younger enlisted soldiers

to help them build their intelligence, presentations, briefings, and products. And what ends up happening is these young soldiers are, of course, even though they don't necessarily understand everything that they're seeing, are seeing everything. So they have to have security clearances. So you have a kind of a pyramid structure in some ways where you have a few senior people directing a larger group of more junior people to create highly classified briefing materials, which are then uploaded on shared drives. And when these materials are created,

the younger soldier who created the material sees them. And in many cases, unless you're super, super, super careful with security, which of course you should be, but often are not, then people who have joint access to the shared drive have access. And so when you're thinking about classified information and the creation of it,

don't think of it as a sort of super special process that is unlike the way companies create all kinds of products with confidential company information, where a combination of senior and junior employees work together to create products. That's what happens in the military. And in the military, your junior employees are these young enlisted soldiers, airmen, who have to get security clearances, but often they're, Sarah, as I said, they're really young. So in many ways, they're so young, it's even hard to know, even if they've lived a squeaky clean life to that point, if they actually possess the character to have the clearance. And so this is an issue.

And I saw someone write something on Twitter that I thought was right. This was not an over-classification problem. This is a question of overly broad access. And it's very much related. Both are still problems. Both are still problems. But they are different problems

and with very different solutions. Yes. And so a lot of people have asked, how could this possibly happen? That's how. That's how. It's one way. Now, it could be he did it a different way.

But when I saw this, I thought, uh, I know how he could have access. I doesn't. It's not shocking to me that he had access. All right. We'll save our fun story for tomorrow. In the meantime, this, for whatever reason,

was one of the most fun pods to prepare for. I spent all of my free time this weekend. People ask whether we have research assistants and helpers. No, it's just David and I. It's just us. Doing homework all the time. So thank you for letting us do this because it is really, really fun.

I mean, footnote 10 alone, David. I just, it was a treat. So thank you for letting us do this because it is really, really fun. I mean, footnote 10 alone, David. I just gave it a treat. So thank you all for listening. Thanks for being part of our family here. And we'll talk to you in a few days. Oh, oh, oh.