Advisory Opinions - Arguments About Arguments

Episode Date: February 11, 2021

During the second day of the impeachment hearings on Wednesday, we got some more video evidence from the House impeachment managers exhibiting just how close the rioters got to lawmakers during the Capitol siege. “A lot of this was more fully fleshing out how dire the situation was on January 6,” David explains. Stick around for an update on the criminal prosecution of Paul Manafort, new developments at the Department of Justice, the super viral Zoom video of the cat lawyer, and a lament on football-splaining. Show Notes: -Video of police officer Eugene Goodman steering Sen. Mitt Romney away from the rioters and Zoom cat lawyer video. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And I know I always say this, but we've got a lot to cover today. We're going to talk about impeachment developments. We're going to talk about relatively obscure New York law that might allow Paul Manafort, well, is going to allow Paul Manafort to get away with his crimes. Some developments at the Department of Justice. And we promised, Sarah, we promised, listeners, seven solid hours on the cat lawyer. The now viral, super viral Zoom of the lawyer who logged

on to a court hearing, a virtual court hearing with a cat face, a cat filter. And there's so many layers to that, but I'm afraid we're going to renege on our promise. It's not going to be seven hours. I'm still giggling though. I know. I finally watched it. I just sort of scanned past it and I finally sat down and watched it late Tuesday night. And I just couldn't stop laughing. No, it's the eyes darting and it's the I am not a cat said by a cat. Well, and so, well, I don't want to, we can't leave it all out there right now. But there's layers to that, that if you've practiced law, especially if you've practiced

law on some of these sort of routine kind of local court hearings that are just sort of perfect about it. But we got to leave that to the side. And then I'm going to go on a rant that people try to footballs blame to us. But that that's going to be at the end, too. All right. Let's let's start with impeachment. uh yesterday the house managers uh put into evidence quite a bit more information into the senate impeachment trial and it was there was some new stuff that we had not seen before i mean the basic contours of the story are still the same basic contours of the story. But there was new information. I think one of the things that kept

sort of being brought home in the House manager's presentation was that, and we knew this, but we saw much more video evidence of how close the rioters, the insurrectionists came to getting a hold of the actual, you know, of senators, of the vice president, of the speaker of the house. And there's this, there was a particularly memorable video of a person we already knew was one of the heroes of the day in this really outmatched and Capitol Hill police force, officer Eugene Goodman, who was already famous for leading protesters away from members of the House and Senate. And there was earlier video that showed him turning Mitt Romney, Senator Romney, away just moments before he would have run into a mob. And this mob would not have

been kind to Mitt Romney. And I thought that that really stood out. And I think, again, I'm going to go back, Sarah, I'd love to hear your thoughts on this. I'm going to go back to something I said in our dispatch pod yesterday. A lot of this was more fully fleshing out how dire the situation was on January 6th. how dire the situation was on January 6th. And from a standpoint of bringing home to the Senate exactly the situation, which they should know already, but it was also bringing home to the public exactly how serious the situation was, it was the kind of information that I think is akin to what I said yesterday. It's like showing the crime scene photographs at a murder trial.

It's something that shows the magnitude and makes it less abstract of what happened. I don't think it's going to make a difference to the senators who are determined to vote to acquit. I'm not sure what would make a difference, but I spent much of the day yesterday, I'll just be honest, just sickened. Just sickened. It was one of the more depressing spectacles I've seen on two counts. One, reliving in details that I had not previously seen what happened on January 6th, thinking through what could have happened on January 6th, and also realizing the lack of accountability that's almost certain to the lack of account and accountability that's looming in the not too not too distant future so um i was frustrated

yesterday because while what you're saying if that had been the main thrust of it, first of all, I don't know how relevant it is. You're right, and crime scene photos aren't that relevant, right? We told you she was murdered. We don't need to show you the crime scene photos, and yet we know they are. Same thing, right?

Like, no, it is not relevant how close they got to Mitt Romney or Mike Pence, but it is nevertheless sort of this visceral, emotional argument. Fine. My frustration, though, is that Nancy Pelosi, in appointing House managers and writing the article of impeachment,

did not appear to reach out to seek counsel from anyone on the other side of the aisle. And the result is that you have folks like Representative Castro, Representative Swalwell. I mean, two of the most, not just liberal, actually. It's not that they're more liberal than some of the other Democrats in the House. It's that they're more partisan.

Right. I actually don't think that someone's politics would be particularly relevant here. You could have sort of a Bernie Sanders way out there on the left, but that could also be someone who's just not very partisan and is well-liked by all his colleagues. I mean, Castro and Swalwell are two of the most overtly partisan Republican-hating members in the House, and they're the ones that you sent to persuade Republican senators, I am left with two possibilities. Either you're that like oblivious that you actually thought that was a good idea. And I don't think Nancy Pelosi

is at all oblivious. I think she's an incredibly smart political strategist. oblivious. I think she's an incredibly smart political strategist. And that leads me to the second point, which is, no, you want to make it as hard as possible for Republicans to be able to vote to convict because actually you don't want Donald Trump convicted. You want the talking point. And that made me so angry yesterday. Now, obviously there are exceptions to that. I thought that Raskin's presentation was very nonpartisan and intended to persuade. And you had Representative Neguse, who did just a fabulous job, new guy on the scene. Interesting to hear from new members, of course. But when you had folks like Castro making the case, I thought it was very telling that almost all of Castro's presentation yesterday was on things that happened during the campaign, basically before October or during the presidency. during the presidency. And so the result of that is that if you were persuaded by that, you already agreed with everything he was saying and with all of these arguments. But if you were someone who supported Donald Trump for president, encouraged other people to vote for him, then how can you

agree with an argument that says, basically, he should be impeached for conduct that happened before October and things he was saying and things he was doing and the stuff he said to the proud boys, you know, in the debate, the standby and stand back and stand by. If we're impeaching him for that, well, that doesn't allow any Republican senators who supported the president for reelection to then vote for the article of impeachment. I don't think that was an accident. Most of what I thought Swalwell and Castro were arguing was about Donald Trump's a bad guy. And we knew he was a bad guy, and he's been a bad guy, and you all should have known he was a bad guy, and we should impeach him for being a bad guy.

Again, it's not that their arguments about whether he's a bad guy weren't persuasive in some ways. But if that's your argument, you cannot get any of these members, Republican members, to vote for it because then they're voting against themselves. And there is something like the whataboutism is absolutely ridiculous when it comes to January 6 and what happened after the mob reached the Capitol. He was the president of the United States. There's no whataboutism in terms of whether to continue tweeting about Mike Pence,

whether to send the National Guard, what to say to those people who are currently storming the Capitol. No whataboutism there. But if you're Castro and Swalwell and your argument's gonna rely on Donald Trump bad pre-October, well, then the whataboutism does become more relevant because there certainly have been Democratic members who have said some pretty wild things and we're not impeaching them

or talking about their comments. And so that's what I mean when I say that they were very partisan arguments, which to me means that they didn't want. They, in fact, the opposite. They want Republicans to vote to acquit so that they can use it in future campaigns. cynical about these types of things around the immigration debate in 2008. They had both houses of Congress. They had run on immigration. And then they didn't do anything about it because they wanted the issue more than they wanted the solution. And that feels echoey to me. And I don't like it. And I was very angry yesterday about watching that unfold and seeing so many people talk about how persuasive it was. It was only persuasive if you already agreed with it. Yeah. So I would say, and again, I don't want to repeat too much of the points that I made yesterday in the Dispatch podcast, but it's very clear to me that overall in the American political culture, we're not overrun with statesmen and stateswomen. And I think that what we do not have, and you're absolutely correct, Sarah, is we do not have a case made to the Senate that is designed from the ground up to bring about conviction. Correct.

from the ground up to bring about conviction. Correct. That is not what we have. If you are going to create a case that was designed from the ground up to bring about conviction in the same way that when you walk into the Supreme Court, everything about your case before the Supreme Court is designed not to give you an issue,

not to give you talking points, but it's designed to give you- It's about counting to five. Yes, it's about counting to five. And that influences the lawyer you choose, the tactics you choose. It's one of the reasons why it so often feels like textualism and originalism are so ascendant across the partisan spectrum, because you know you're going to be talking to six justices out of the nine eventually for whom textualism and originalism are to varying degrees persuasive.

And so the best elements of the case to the Senate is when they began to appeal to a textualism and originalism on the underlying constitutional issue of is this trial appropriate? Is this trial constitutional? That was some of the best of it. but that is not what has happened here. There has not been a conscious decision to put a trial team in place that has the trial arguments in place that has the maximum possibility of persuading. Now, the counter argument to that is obvious. The counter argument is we could do that and it won't get us a single vote. That's the counter-argument. That's answering cynicism with cynicism.

So the rational thing then to do under all of this endless game theory that we conduct in our politics is, well, then if we're not going to win anyway, what we can still do is motivate and continue to motivate the majority that we have. Yep. The majority that we have. Which then means, of course, that we keep playing with fire here. We keep playing with fire that we don't learn lessons. We don't learn lessons. And everyone kept punting what to do about Donald Trump to someone else and kept punting and punting and punting and punting.

And then the Capitol is taken. And then we're still punting. And now I'm hearing people say, well, you know where we need to really punt this to? The Atlanta Fulton County District Attorney. the Atlanta Fulton County district attorney. That's the person who's going to really save us here is a city district attorney because the elected branches of government are going to punt again. And so, yeah, I mean, look, Sarah, I'm, I, I am as cynical as you on this. I am going to say because of the sort of... And look, if they were wanting to further inflame somebody who was already persuaded impeachment was appropriate,

well, it worked on me. I was more inflamed. But I also know that I'm absolutely not the intended audience or should not be the intended audience, but the presentation was conducted as if I was the intended audience. Yes. Well, so I've taken my beef with the impeachment managers, which is, it is large and whole and big.

Now, let me take some beef with the defense attorneys. Oh, please. I look forward to this. Okay. So you just said that the most persuasive part of the House managers was when they made their textualist and originalist arguments about why the Constitution not just allows, but expects former office holders to be able to be impeached for conduct while they were in office. And in this case, of course, the president was impeached while in office. The trial and conviction is happening after he has left office. In doing so, they talk about various constitutions, state constitutions before the ratification of the U.S. Constitution.

They also talk about some trials that were going on in England at the time, which is to inform what the word impeachment would have meant to the founders. If impeachment, of course, means former officeholders, then why would they say impeachment, including former office holders? That's the originalism argument around this. So they're making that argument.

So then the defense attorney comes up and says, and I'm paraphrasing here, though, if it sounds unwieldy, that's not a paraphrase. That's not a paraphrase. Why would we look to anything that was happening in England before or around the time of the revolution? That's why we had the revolution. And if we looked to all of those precedents, then we would still have a king and a parliament. I mean, has this guy ever, like, ever been even introduced to the concepts of originalism or textualism? I am left to wonder. So that was an interesting moment.

Then, of course, their First Amendment arguments, to the extent there were arguments, First Amendment arguments, to the extent there were arguments. I mean, I hope that very few of you in some ways watched the first day of the impeachment trial, the opening statements by the defense attorneys, because Castor, one of the attorneys, spoke for just over 45 minutes. And it became entertaining in the sense that you kept seeing how long someone could talk without forming really a coherent sentence or argument. There were just meanderings that were bewildering. In fact, just to give you an example for those who didn't watch, I'm going to read you one section that I went back to, listened to three times, got the transcript to then see if I could read it and see what the point was.

And now I will read it to you to see if you can determine this. Okay. This comes out of nowhere, by the way. There's no lead into this. I saw on television in the last couple of days, the honorable gentleman from Nebraska, Mr. Sass. I saw he faced backlash back home

because of a vote he made some weeks ago. His political party was complaining about a decision he made as a United States Senator. You know, it's interesting because I don't want to steal the thunder from the other lawyers, but Nebraska, you're going to hear, is quite a judicial thinking place.

And just maybe Senator Sass is onto something. You'll hear about what it is the Nebraska courts have to say about the issue that you all are deciding this week. There seem to be some pretty smart jurists in Nebraska, and I can't believe a United States senator doesn't know that. A senator, like the gentleman from Nebraska, whose Supreme Court history is ever present in his mind, and rightfully so. He faces the whirlwind even though he knows what the judiciary in his state thinks. Compelling. Like, I was reading, as you all have probably figured out by now, I love reading about,

you know, science and nature long forms in my free time. And it just happened to be that I was reading about AI writing and how far it's come. And I was reading some examples of AI writing where they feed them the first couple paragraphs of a scholar's work and then see what it says for the rest of it. It is significantly further along, our AI writing, than this. Signific significantly. So much so that very few experts can tell where the AI starts. I think here you would know right away where the AI started. So some confusing aspects of that. So the First Amendment arguments weren't really made so much as like the word First Amendment was used quite a bit. But then it got to some weird, somewhat textual arguments from Schoen. So this was the second attorney who spoke far more prepared,

had an outline clearly that he was going through, but his arguments were, I mean, silly time. So he was reading from the text and said, Article 2, Section 4 says, the president, vice president, and all civil officers of the United States shall be removed from office on impeachment for conviction, bribery, high crimes, president can't be impeached. What? No, that's not. Huh? So he said. A president, because the president can't be removed from office, he can't be impeached. That's just a logical fallacy that would be like on the LSAT before you even get into law school. The argument would be that you can't be removed from office if you're a former president based on that section. No one's arguing that he can. Right. But it does not necessarily hold that you can't be impeached just because you can't be removed because there are other sections of the Constitution.

because there are other sections of the constitution. Now, they also argued about high crimes and misdemeanors and that because he hadn't committed a crime or misdemeanor that therefore he couldn't be impeached. But David, and I had not really given this a whole lot of thought before, so I'm very curious what you think of this. So I'm going to read it again. The president, vice president, all civil officers, the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. I actually now reading that believe that what that means is that the automatic removal, because remember in the other section, it says that the only two judgments that can be handed down are removal and disqualification from office. Why would you repeat that up above

and then have this automatic removal provision if the automatic removal encompassed all impeachments? Because then the higher phrase would have to be different. It would be, well, and then obviously they're removed. So the only other judgment available is disqualification, but that's not what it says up above, which to me now means that this is simply that you shall be removed only applies to conviction for treason, bribery or other high crimes and misdemeanors. And that, in fact, you can be impeached for other things.

It's just that you won't be automatically removed for those other things. Yeah, no, that makes a lot of sense. And I think one thing, you've highlighted a couple of things here. One is this utter butchery of originalism, just this mutilation, this just bludgeoning of originalism in the context of this argument. But this is of a piece with a lot of the legal arguments that were being brought to bear on behalf of trump during the election contest period in the sense that a lot of long-standing sort of conservative legal movement arguments and doctrines and understandings about federalism and separation

of powers were just completely discarded just completely discarded this is why for example you did not see trump judges ruling for trump lawsuits because those lawsuits were so contrary not just to the weight of the evidence although that was actual uh that was true but they're utterly contrary to the very legal philosophies and legal doctrines that have underpinned conservative jurisprudence for decades, for decades. And I saw some people, so this was another thing that I think was very interesting, was how few people who you would consider to be leaders in the conservative legal movement, you would consider to be the heavy hitter lawyers in the conservative legal movement, were participating in any of this. I mean, we've talked about it before.

We talked about the Texas Attorney General's lawsuit, which was a constitutional atrocity. And what? His Solicitor General did not sign that lawsuit. And so when we're watching the Trump impeachment managers or the Trump impeachment defense, what we're seeing is sort of, and I would not even say the bench, like the conservative legal bench, we're talking about people are sort of outside of entirely outside of the mainstream of the conservative legal argument. And what was particularly disappointing to me about this whole procession after, well, there were many things that were disappointing, but one thing that was disappointing about this entire charade post-election was the number of politicians who

purported to be closely linked and in fact, set themselves up as quasi-intellectual leaders of the conservative legal movement who jettisoned all that i'm talking to you ted cruz i'm talking to you josh holly and and in pursuit of these legal theories that would make a living constitutionalist blush that would that were well outside of the norm even of of sort of some of the most flexible kinds of interpretation of the Constitution. And so I think that's one thing that a lot of Trump's fans who have really appreciated his judicial appointments, as I've appreciated most of them, don't understand about this election contest. This was the they were swinging from they were coming from way out of left field, way out of left field with these arguments. And you're kind of seeing that now. And then there's this other thing about it. I kind of had this flashback to my own litigation days

when Trump's first lawyer, Castor, was, Castor was speaking, it reminded me about how sometimes it's harder to respond to bad legal arguments than good legal arguments. So true. Yeah. Because you hear something out of left field and you don't have precedent rebutting it. You don't have precedent even dealing with it. You might've never even heard it before. And it's kind of ridiculous on its face. And you kind of just want to say, wait, he just said, and restating the argument is rebutting the argument, but that's not the way it works. And so there's this just talk to a lot of lawyers and they will tell you they would rather face a high quality opponent than somebody who is just shooting from the hip. And even though they may have a greater likelihood of losing

against the high-quality opponent, but there is something that is difficult about responding to a shotgun blast of nonsense. Well, and for instance, they kept saying, as if in an incredulous tone, the idea that you could bring an article of impeachment against a former president for his unconstitutional actions while in office yeah no that and they're like this is where this argument goes no it is like no one's we're not arguing it doesn't. Yes, that is what this means.

Exactly. As long as the action was taken while in office, I do think that's where that argument goes. Now, this is a little different, again, because he was impeached while he was still in office. So actually, this is not perfect precedent for what those guys are referring to. But I won't disagree with that. I think that you can bring an article of impeachment against a president who is currently living or any other federal officer currently living. And if the action was while they were in office. Yeah. So that's hard to argue against because you're like, yeah, yeah, sure. I know it leads exactly where you say it leads, and it's not a problem.

Not a problem. It's, in fact, the text of the Constitution. The defense attorneys will come back up today to start their portion. They have, I believe, 16 hours. They're not expected to use them all. It'll be interesting to see where this goes. The president, according to, you know, quote, sources close to the former president, was not happy with their opening. So maybe they've prepared more. Maybe not. We'll find out. your first ever run around the park or going for your personal best in a marathon. Speed, strength,

stamina, whatever goal you're working toward. New Balance has the running shoes, clothes, and accessories to push your run further and help you run your way. Find yours at newbalance.ca slash running. New Balance, run your way. So shall we go from corruption to corruption? So shall we go from corruption to corruption? Let's do it. All right. This won't be a long discussion, but it is somewhat interesting. Paul Manafort, not yesterday, earlier in this week, the highest court of New York held that Manafort could not be or rejected New York's attempt to prosecute the Manhattan DA's attempt

to prosecute Manafort for some of the same offenses, but the state criminal version of the same offenses that Manafort had been tried and convicted for under federal law, and then Trump had parted him for. And there was a lot of hope on the part of some that Manafort could still be held accountable for his crimes, but under state law, not federal law. And the state courts in New York said under New York state law, no, you cannot do that, that there is going to be a double jeopardy problem. And this is a little bit interesting because it's a quirk in New York law and New York has uncorked itself. But Sarah, you've got the statute,

you've got the dual sovereignty doctrine loaded and ready to go. Why don't you just throw out some truth for the people? Right, so New York has New York criminal procedure law 4020, something that was wildly supported by the ACLU, and it undoes the Supreme Court's rule on dual sovereignty. So just as recently as June 2019, just before we started this podcast, David, the Supreme Court in a case called Gamble v. United States continued the doctrine of dual sovereignty. And this is the idea that the state

and feds can prosecute you for the same crime using the same evidence, theory of the case, all of that stuff. And it's fine because they are separate sovereigns. And the theory behind this goes something like, if you didn't allow this, then the feds or the state could step on one another or would have to compromise and that one or the other would be intruding on the sovereignty of the other. And so who would take, you know, if there were a conflict, who would win out in that conflict? And so the easy answer is, ah, both of them win and you, the defendant, definitely lose. Is the compromise that was reached. Not a great compromise for criminal defendants. So New York has fixed this. In New York, you cannot be tried by the state if you have already been tried for the same crime close enough using the same evidence and the same theory by the feds.

But then Paul Manafort happened and Andrew Cuomo, the governor, saw the writing on the wall. And even though they had wanted to be this very pro-criminal defendant state, they didn't want to be pro-criminal defendants that they didn't like state. Right. And so he signed- You just described about every state. That's right. And so he signed a bill into law that, quote, closed the loophole, which is like it wasn't a loophole,

guys. Like it was the bill you put into law for New York criminal procedure. So it doesn't totally undo New York criminal procedure 4020. What it does is it makes an exception for someone who has been prosecuted at the federal level, but then pardoned. Then the states can come after you. We'll just call this the Steve Bannon Prosecution Act. I mean, truly. So the ACLU, to their credit, the New York ACLU, put out a statement before Cuomo signed this bill, saying that it was really bad. This legislation would undermine New York's model double jeopardy statute to give effect to short-term political gratification. The New York ACLU opposes this and urges lawmakers to reject it. Double jeopardy protections reflect

the principle, quote, that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal, and compelling him to live in a continuing state of anxiety and insecurity. This statute would eliminate New York's strong statutory double jeopardy protections for a specified class of individuals who have received a presidential pardon, reprieve, or clemency. So it's just hard not to agree with the ACLU here. I get all the feelings about Paul Manafort, but to make a whole statute that, by the way, can't apply to Paul Manafort because this all happened after Paul Manafort's conviction that would have basically, this is what the New York courts were ruling on, that because Paul Manafort was convicted by the feds before this statute was put into place, the old 40-20 applies, not this new Cuomo law.

And therefore, they can't get to Manafort anyway. And so you created this whole law that is now going to allow the New York state to go after anyone who has received a presidential reprieve or pardon. Look, do I think it's going to be that many? No, I don't. But, you know, just to have a political talking point, because it had no other effect, you can't go after Paul Manafort. I just found it fascinating because I did not know about New York's anti-double jeopardy or pro-double jeopardy, however you want to phrase it. I did not know that they had banned dual sovereignty, which is fascinating and proof

that the states actually can do things when they don't like Supreme Court precedent. The Supreme Court says the states and Fed can go after the same person. And New York was like, you know what? We're not going to do that. Great job, New York. You did exactly what you're supposed to do as a state. Other states can choose to follow that or not. But what New York did here was like politics at kind of its worst to me and beneath Andrew Cuomo, in my opinion.

No, I agree with you. I mean, if you're passing laws that are transparently aimed at targeting specific individuals for criminal prosecution, you need to check your motivations because this is, so number one, it's that kind of individualized targeting that has got real problems with justice all on its own. And number two, prepare for the unintended consequences. Yes. Just get ready. And this is similar. We've seen similar things post January 6th, where I saw actually, it was a fairly thoughtful piece.

It was not treated on Twitter as a thoughtful piece. There's a shock, but I actually went and read the link that people were mocking. And I thought it was pretty thoughtful. And it was a woman who is in the abolish prisons movement. She believes that we should not be incarcerating individuals for the vast majority of crimes. And she said, but then after January 6th, I found myself really wanting all of those people in jail. Right. And here I am struggling with this contradiction of my principles and values on the one hand, and this visceral emotional response that I had to what happened,

and trying to make exceptions for why it doesn't violate my principles and morals, but it does. That's all I want from people is for them to acknowledge that things are hard. There are gray areas.

It's not all one thing or the other. And she doesn't end it by saying, and therefore, here's how this is all resolved. She ends up by saying, and so this is hard for me. I applaud that person. And instead Twitter was like, see, you're all hypocrites. No, she's not being a hypocrite. It is okay to question your principles and values and wonder whether they apply to everything you hoped they would, or whether you're just human and inclined

to the frailty of your own principles. I mean, extra points for her. But same with the bail people. They don't want these January 6 folks out on bail, but they don't want bail for the protesters who were arrested over the summer. And now some of their arguments are, okay, but what seems to happen is that over the summer for black and brown protesters, they get exorbitant bail that they can't meet. And then these white protesters are getting much lower bail. That's a different argument. But if you're just against having bail, then it has to apply to the January 6th folks as well. I mean, I just have this sort of basic rule of thumb in life that is you don't

know if you have a principle until the principle is hard. I just think that you can think all day long that I am this kind of person with this set of beliefs, and these beliefs are reasonable. I'm consistent in them until the moment it gets hard. That's when you know. That's when you know. And I applaud this person for saying, wait a minute, I've been arguing this position all along, and then all of a sudden, I find it being deeply contradictory to the sort of visceral felt need for punitive justice. That's an interesting discussion. That's a very interesting discussion. But yeah, I mean, I keep going back, and I just had a great time talking to students at Covenant College in Lookout Mountain in Georgia, in Marjorie Taylor Greene's district.

And we were talking about principled approaches and specifically Christian approaches to legal principles. And I often talk about this as a principle that fight for the rights of others that you would like to exercise yourself, sort of a legal corollary to the golden rule. And it is a great sounding thing in the abstract, right until the other that is exercising the right that you want is somebody you really don't like. And then you're going to try to find a way to make sure that that other person isn't actually really truly entitled to the right. You're going to parse that. You're going to try to figure that out. So I applaud people who are willing to look with open eyes at the consequences of ideas that they've long held and wrestle through them. I think that's a good thing. All right, Sarah,

do you want to talk about some DOJ changes? Yes. So things are happening at the Department of Justice, not surprisingly, with the new administration. And we're going to kind of lump these all in one bucket today, the bucket being things happening at the Department of Justice, even though they're pretty disparate. But we're going to have plenty of time to break these out later. So I just want to do some general DOJ updating. First thing is that the Department of Justice officially switched its position in the Affordable Care Act case. This case was argued in November. We talked about it at length. Really, it's going to turn on the severability argument. Sure, the individual mandate is gone now because the penalty has been zeroed out. Therefore, like Justice Roberts upheld it in 2012 as a tax, can there be a tax without a penalty? Is it still

constitutional? We think, David and I, that the answer to that is going to be clearly no, even if the penalty for the tax is zero, it is still a tax. So that's going to be struck down. Then the question is, do you have to strike down all this other stuff that comes with or just that? And current severability doctrine would pretty much hold that it's just the individual mandate, so nothing is going to change. And there was a whole bunch of litigation and time and effort spent for no particular reason. That was what was argued in November. Remember when I said this opinion day was coming and I thought there was a chance that they were going to do the ACA opinion off schedule so that the Biden DOJ didn't switch positions just because it's kind of like messy and save them some face to not have to. That didn't happen. Instead, they released some

really boring opinions. So this week, the Biden DOJ did switch positions. Interestingly, Paul Clement, the guy who argued in 2012 that the law was unconstitutional says that he thinks this is exactly the type of case where the Department of Justice should switch positions. I found his argument pretty persuasive. It has long been, sorry, it has been the long-term position of the Department of Justice to defend the constitutionality of statutes whenever reasonable arguments can be made. And even if you think that part of the statute is unconstitutional, it would be in the long-term tradition of the office to have as little of the statute as possible fall. The Department of Justice, in my view, tends to get itself in trouble when it deviates from that tradition.

So I think that's interesting. Paul Clement basically saying, as long as when you're deviating, you're deviating back to defending more of a statute, that that's the sort of DOJ deviation that should be fine. not fine under that Paul Clement standard. The Biden DOJ changing position is fine because it is more in line with defending the statute. Now, here's my one quibble with this, because seeing it in action, I find it a little troublesome. The other longstanding tradition at the Department of Justice is to always argue in favor of the most expansive reading of executive power. That leads to basically the most powerful and talented attorneys in the country always arguing for more coming into Article 2 at the expense of Article 1 legislative power or state power

or all these other parts of our constitutional structure that are frankly fading, and it's causing big imbalances and problems that you and I have discussed. So I wouldn't mind revisiting some of the longstanding Department of Justice traditions on that front. But anyway, I thought that was interesting. When asked, by the way, if going back to 2012, he would do anything differently, Clement said, sure, I'd start with the taxing power. So that was the first one, David, the Department of Justice changing positions.

It also changed positions, by the way, in the, well, it didn't change positions. positions, by the way, in the... Well, it didn't change positions. It dropped the net neutrality case that was being brought against California's net neutrality statute. Basically, the federal government hasn't done anything on net neutrality yet. California was one of those states that was like, fine, we'll do our own thing on net neutrality. And then the feds come in and said, well, no, if we haven't done anything, you can't do anything because we have filled the space with our lack of action. Right. The Department of Justice dropped that case. So this is, yay, federalism is sort of one of my responses to this. There's been a couple of Biden executive orders that I don't know if they were so much motivated by federalism as they were by

agreement with the underlying policies or at least political coalition making and building, but it dropped DOJ objections to sanctuary or punitive actions against sanctuary cities and now dropping this lawsuit over net neutrality. Both of those things are, I think, proper federalist actions. However, my general view on federalism is that it is primarily used as a tactic, not as a, it is primarily wielded as a tactic and not adhered to as a principle. Clearly that is the case here, since everything they have done happens to align with the desired political outcome. So I fully expect to see aggressive DOJ activity

directed at states that try to wield federalism as a tactic of resistance against Biden administration initiatives. But we'll wait and see. I'm just predicting that. And there's another thing, Sarah, that is particularly triggering to me. Is it the third-party memos?

Yes, it's the third. Third-party settlements? Yes. So this is the biggest thing that happened at the Department of Justice this month, I think, which is that in the Obama administration administration and really all time before that as well, but the Obama administration sort of became more infamous for using it when the Department of Justice settled with certain types of defendants. So rather than going all the way, you know, against you, David Corp, you sit down with the Department of Justice and they say, look, David Corp,

we think what you did, spilling oil intentionally on top of all of those baby seals was really bad. You owe us a billion dollars for your actions. But instead of giving us, But instead of giving us, the United States Treasury, a billion dollars, we'll make a deal with you. You only have to pay $500 million, but a good chunk of that is going to go to some of these organizations, these nonprofit organizations. Now, oftentimes, the nonprofit organizations that David Korp had to pay were seal cleanup 501c3s. But not always. So they could use any of eligible charities that came on a list from housing and urban development. They included Habitat for Humanity, for instance, Catholic Charities. They included the National Urban League, the National Council of La Raza. And so you could, in one of these

settlements, for instance, the defendant could get $2 of credit toward what they owed for every dollar they gave to one of these organizations. So if you owed a billion dollars, you only had to pay $500 million. That's a great deal. So what defendant wouldn't take that? But the problem is the federal government is now, I mean, wildly funding some of these 501c3s and they're deciding which ones to fund. So there was a lot of complaint that they were partisan or partisan leaning, even if they were 501c3s. For instance, the National Council on Raza was seen as a liberal

organization and that that was being funded by these groups. So enter Jeff Sessions. And again, full disclosure, I was there for this in the Department of Justice. Jeff Sessions ends the third-party settlement practice. Any money that you get in a settlement has to go back to U.S. taxpayers. The end. Really non-controversial on that, right? If you wronged the U.S. taxpayers, you owe the U.S. taxpayers money, not La Raza or Catholic Charities for that matter. Right. So in their first month in office, the Biden Justice Department rescinded that. And now third-party settlements, back on the table. Yeah, this is something I really don't like.

There's a couple of things that, in sort of this private litigation space with the federal government, that were problematic. The third-party settlements, one aspect, sue and settle, another one where you would take a friendly, say a non-profit that would say friendly to the ideology of the current administration, sues the administration, and what turns out not to be all that hostile a proceeding, but really a means for engineering a settlement that institutes new policy without going through the rulemaking process. So that was sue and settle. And then these third-party payments, you stated it very well. Here you have the DOJ using aggressive litigation sometimes,

or other federal agencies using aggressive litigation litigation that is then turned around to fund favored private entities. Something, by the way, that a court couldn't order. So if the Department of Justice at the end of that trial won and you, David Corp, lost for your seal oiling, the court could not order as a punishment that you pay money to Catholic charities or La Raza. Correct. Correct. And so this was, I mean, the possibilities for favoritism and corruption are pretty obvious. So I'm disappointed the administration did this. You know, there's sort of this, I think there's temptation to just sort of try to sweep aside everything that the previous administration did. And not everything the previous administration did was bad.

Some of it was actually, there were some good government reforms in there that mattered. And this is one of them. And now it's being tossed aside, and that's not good. So the one piece of good news is that there was pending legislation in the House in 2017. It passed the House,

but then the Senate never got around to it. I don't think that's going to happen in any of the near term, but I think if... I think there will be a lot of people watching these sort of third-party settlement deals really closely. They're ripe for abuse. There was a 2013 email from an Obama-era deputy in which he said,

Can you explain to Tony the best way to allocate some money to an organization of our choosing? Ah! That just sounds terrible. Yeah. of our choosing? Ah! That just sounds terrible. Yeah.

So, A, Congress could absolutely do something about this at some point. I wonder who would have standing to sue about this. It's a little hard because there isn't really taxpayer standing of any real sort.

But we'll keep an eye on this. Slush funds. Bad. Yes. Yes. All right. Are we there? Is it cat lawyer time? We're there. Cat lawyer time. All right. I'm just going to assume, Sarah, that everyone has seen the cat lawyer Zoom where a Texas attorney logs on to a hearing on his secretary's computer and he has not just any sort of cat filter, but probably one of the most sophisticated cat filters available. In fact, like the New York Times and Washington Post tried to get the cat filter and apparently it was

something that was available as a niche product years ago through Dell or something. But anyway, and extremely. So he looks like a cat. And the filter is so good that it traces his mouth when he talks. It traces his eyes when his eyes move. And there's just so many things about this, Sarah. So I've never been prouder because this happened in Texas's 394th judicial district. Rod Ponton was the Presidio County attorney, and he was using his assistant's

computer, and his assistant has a young daughter daughter and so the thought is that the young daughter must have put on the filter sometime the night before and they didn't check it a lot of people have pointed out that it says in the corner that uh basically you can't record this video and the recording can't be released not to worry the recording was released by the judge judge roy ferguson he thought it was hilarious and And he also wanted to, you know, warn people not to do this. Everyone seems in on the joke at this point. Everyone's having a fine time. He was on the Today Show. But I mean, the important part of the video david is where the cat says i'm not a cat i don't know that it would have been that funny if it's just like a cat frantically trying to figure out how to turn off the cat filter it's it's the cat saying i I'm not a cat. And the internet saying, that's what a cat would say.

Yeah. Yeah. So to me, what was so much funnier about this was how it connected with sort of the drudgery and kind of boredom of your typical court hearing. Like how this was, you could tell that everyone involved, so you had two other attorneys on there and they just didn't want to be there. This was some normal court hearing that happens countless and millions of times in local courts where you got to check boxes and get some stuff done and it's not all that exciting and you're just doing your job and it some stuff done. And it's not all that exciting. And you're just doing your job.

And it's so routine. And there's this slowly dawning realization that something is amiss. And that's what's so hysterical about it. And then the resignation. So the attorney recognizes that he's a cat. And the funny thing is that the face, the cat face, grows alarmed. That's true. That was, to me, what made it. It wasn't that I'm a cat, I'm not a cat. It was that the cat face was obviously alarmed

and the cat eyes are shifting back and forth and up and down on the screen as he's obviously trying to find that filter button. And then he gives up so fast. I'm prepared to go forward. I'm prepared to go forward. Which just says sort of everything about like the box checking, sort of, you know, look a lot, there are parts of law y'all who are thinking about becoming lawyers that are exciting and interesting and kind of high points and adrenaline, but there's an awful lot of it.

That's just box checking drudgery and the speed at which he capitulated to participating in a court hearing as a cat just to get the hearing over to me was like the capstone. That was the perfect, that was fantastic. Well, the judge in the case released it as a warning. They don't have an IT department in the 394th district. It's way West Texas. If y'all know where Marfa is, Alpine, Marfa is the one with the art installation, the Prada art installation worth looking up, worth visiting. Lovely place. Great observatory out there, the McDonald Observatory. But yeah, it's real, like, it's not close to El Paso, but like it's El Paso is the closest thing. Anyway. So, uh, the judge's advice is there are some very colorful things from lawyers being heard.

Watch what you say because YouTube hears all and never forgets. Every one of those people in that room kept their composure. The lawyer who was, I guess you would say the butt of the joke, has handled it with absolute grace. The lawyer, who it turns out is a dog person, not a cat person, said, it happened to me today. It can happen to you tomorrow. I mean, can it though? You know, I have to say that I have briefly logged on to Zooms with some of the... So I think I've mentioned this before. I have a D&D campaign that I'm on, Dungeons & Dragons, with friends from Iraq. And when we're on the campaign, we have various backgrounds on our Zoom. So if we're in a dungeon, we have a dungeon background.

If we're in a village, we have medieval village background, blah, blah, blah. Fun times, good times. And I briefly logged on about to go on TV with one of my dungeon backgrounds, which I wish I had just rolled with it, but I didn't. So David, important term that was used around Cat Lawyer is milkshake duck. Are you aware of what milkshake duck refers to? I am not aware is milkshake duck. Are you aware of what milkshake duck refers to? I am not aware of milkshake duck. I am so glad because I would love to tell you. So in 2016, a pretty random Twitter account tweeted, the whole internet loves milkshake duck, a lovely duck that drinks milkshakes. Five seconds later, we regret to inform you that the duck is racist.

And so it's now a thing like, when will someone be a milkshake duck? Will they get milkshake ducked, et cetera? And it's this idea that we fall in love with a hero on the internet who we do not know only to find out that they have a dark secret past that then is uncovered also by the internet. and now we're all mad at the person who five seconds ago we loved.

And so many people on the internet were wondering whether Cat Lawyer was about to have his milkshake duck. Our friends over at Reason in 2014 reported on this lawyer misbehavior in which he used federal agents to torment a former lover with drug raids and bogus charges. So this is, you know, a story alleged on Reason's website. You can go read the milkshake duck downfall of Cat Lawyer. But you know what, David? The story is terrible and I'm not excusing any of that behavior, but that's not really why we're rooting for Cat Lawyer. We're rooting for the cat. We're rooting for the darting eyes. The moment was the moment was the moment. Yes. Yeah. We're not saying that the fact that the guy showed up in the cat filter means that the guy is an awesome dude. But he still showed up in a cat filter. It was still hilarious.

That moment did happen. People were also noting that this was a hearing on civil asset forfeiture. And there's lots of people against civil asset forfeiture. And as the county attorney, Kat Lawyer was the one trying to take the assets. Again, I don't super care about your feelings on asset forfeiture

because that's not what we were all cheering for. In the middle of the second impeachment hearing, in the most partisan moment in modern U.S. politics, we just wanted to enjoy Kat Lawyer, guys. And so we did. And I think I watched it five times in a row and laughed harder each time I watched it. Because I noted different things, different little details. Because I've actually heard,

there's this one point where Cat Lawyer goes, ah, you can tell he's you. And that was the, uh, of a lot of lawyers I've known over my lifetime who don't know tech. And they're in that grips of, I've just pressed, I've clicked the wrong link. I have done the wrong thing. And now, now there's so much about it. Well, thank you Presidio County for bringing us that joy. Thank you, judge Ferguson for releasing the video and thank you. Whoever made that cat filter and to the young lady who was clearly enjoying the cat filter the night before you are the true hero of this story. Uh,

and I'm sorry that we don't get more from you are Presidio County, young lady. All right. Are we ready for to end on a, shall I call it a lament about football splaining? Yes. So we opened the last podcast

with a fun little 10 minute, 12 minute argument about the pass interference calls at the end of the first half, correct, Sarah? End of the first half of the Super Bowl, where Sarah and I had a disagreement about the flags as to whether the flag should have been thrown, whether or not the ball was catchable. And we got football-splained primarily because of me, because I kept using the term holding, okay, that they were holding these receivers. And I was being football-splained that why are you talking about holding when these were pass interference calls?

Well, of course, they were pass interference calls. What i was using was a vernacular term to describe the actual physical action of the player while the ball was in the air okay i was not saying these were holding calls and i not that i don't know the difference between holding and pass interference Sarah, please do not football-splain a lifetime SEC football fan whose first live football game was when he was six years old at Death Valley in Baton Rouge, Louisiana. I know the difference between pass interference, but I was describing an action that the vernacular term for it would be holding somebody, would be impeding somebody. That being said, we did get one really great email that included a lot of the NFL rulebook and encouraged us to discuss the creation of the NFL rulebook vis-a-vis the Constitution and textualism and originalism and things like that.

And I'm very down for that conversation come fall, David, when football comes back. Some of the appellate review standards, I believe, are not being used correctly. And I think we should dive into that. I would love to have that discussion of real-time appellate review

from the booth in NFL games. I think that would be a fantastic discussion. They need our help, clearly. The NFL rule, when you actually dive into the NFL rulebook, it's every bit as intricate as a statute book it is every bit as intricate um with some interesting ambiguities so anyway so yes i do not pretend to be a football coach or the kind of person that you would pay to hear opine on plays like Tony Romo, but I do know the difference between holding and pass interference. I do. And so does Sarah. So, but thank you. And I do apologize if my repeated use of the term holding was ambiguous, but we were talking about pass interference calls. That's what we were talking about. Rant over or defense over or touchy, sensitive defense over,

whatever you want to call it. Anything else, Sarah? No. Okay. Well, thank you guys for listening as always. And as always, if you've got feedback, please email us, Sarah at thedispatch.com, David at thedispatch.com. And I got to say, Sarah is just the champ at responding compared to me.

But we have gotten some really, really interesting emails in, in the last week, two weeks, just fascinating stuff. Really thoughtful questions. Appreciate it very much. Appreciate the feedback very much.

And speaking of feedback, go to Apple podcasts and please rate us and subscribe. We also appreciate that. Until Monday, thank you for listening. 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, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift

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