Advisory Opinions - Automatic, Still Is

Episode Date: September 9, 2021

In today’s episode, Sarah and David discuss a fiery concurrence from Judge James Ho in the U.S. Court of Appeals for the 5th Circuit’s opinion upholding a Texas ban on certain abortion procedures. They then discuss an indictment related to the Ahmaud Arbery killing, a death penalty case with religious liberty implications, and a Donald Trump Jr. defamation case. Lastly, listen till the end to hear about the cult (which centers around a current Supreme Court justice) that our hosts are vying to join. Show Notes: -The 5th Circuit’s opinion on Whole Woman’s Health v. Paxton -Indictment of former District Attorney Jacquelyn Lee Johnson -Supreme Court’s stay of execution for John Ramirez -District Court opinion in Blankenship v. Trump -“Automatic, Still Is.” soundcloud Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinion Podcast. This is David French with Sarah Isger. And Sarah, you know this already, but I'm going to tell the listeners, I'm recording from the bleakest place in America, the Hilton at Chicago's O'Hare Airport. I don't know why. I don't know why it feels so bleak, but it just feels bleak here. I can't put my finger on it. So this podcast is going to have to brighten my day.

Yeah, I was at O'Hare actually on Monday and felt looking around that it was people who had lost all hope, like the expressions on everyone's faces. It wasn't good. It's like the island of lost souls here, right? Looking across to the terminal. Okay. So I said we're going to need to be less bleak, but my goodness, our topics today, okay? We're going to talk about the Texas abortion case or the Texas abortion law, some legal developments there. We're going to talk about an indictment. And if you remember the Ahmaud Arbery shooting and vigilante killing in Georgia that occurred before George Floyd's murder, it was sort of part of the buildup to the sort of explosion that occurred across the country in the summer of 2020, there's been an indictment of the first prosecutor in the case, which is something that I think we

need to talk about. It's really troubling, at the same time, I think has some larger implications. We're going to talk about the Supreme Court granting a stay in a death penalty case for religious liberty reasons. We also have got some Don Jr. content, and Sarah's got an interesting potpourri. So that's a lot. So let's get started. Let's start with the Texas abortion case. There have been some developments. One of them I'll hit quickly and then the other Sarah will hit. And one of the developments is this, that there has been a temporary restraining order granted last week. Planned Parenthood of Greater Texas Surgical Health Services brought a case against the Texas Right to Life as an organization and John and Jane Doe's 1 through 100. And it obtained a temporary restraining order that enjoins the defendants and any all persons and parties in concert and participation with

them from instituting any private enforcement lawsuits against the plaintiffs, their physicians, or their staff under SB8. And a lot of people forwarded this around on Twitter as a sign that SB8, this is the Texas abortion law, had already been blocked. And this was Travis County, Texas, which, correct me if I'm wrong, Sarah, that's Austin, isn't it? Correct. One of the blue islands in the Sea of Red in Texas.

And that this essentially blocked enforcement of the law, blocks lawsuits brought under the law. And the answer to that is no, no, it does not. It certainly applies to Texas right to life, but just filing a lawsuit against John Doe's one through 100 does not really have much of an effect on say, Bill Smith and Dallas County, Texas. I'm right, there's a Dallas County, right, Sarah? There is a Dallas County. You're getting very good at this.

Thank you, thank you. I'm learning my Texas counties. So it just doesn't have any real effect on a lawsuit filed in a different district court in a different county in Texas against an individual who has not been named as being enjoined. And I think that what this illustrates is, once again, sort of the difficulty that this law presents in blocking enforcement, or at least blocking the mechanism of a lawsuit. And so what we'll probably see coming is if

Planned Parenthood or other abortion providers in Texas are going to get very serious about blocking this law, what we're going to see much more likely is the kind of setup case that we talked about involving an actual piece of litigation. And when I say setup case, it's not necessarily one that's transparently fake, but one that appears real, but is in fact been essentially an arranged piece of litigation. So a number of readers sent us this T and asked what's it what is its effect and its effect quite frankly is minimal to non-existent fair enough um you know the biden administration has said that they will uh the department of justice is going to announce

legal actions it's taking they They announced that earlier this week, but when the follow-up question of like, okay, what legal actions? There was a like, we'll tell you when we tell you, which a lot of people were interpreting to be like, okay, you don't know yet what you're going to do. I wanted to throw out an idea of what they might be thinking of. So David, 18 USC 241, conspiracy against rights. It is unlawful for two or more persons to conspire, to injure, oppress, threaten, or intimidate any person of any state, territory, or district in the free exercise or enjoyment of any right or privilege secured to him or her by the constitution or the laws of the united states this is the conspiracy to deprive someone of a federal right um i'm surprised that this hasn't happened sooner frankly uh the lawyers the department of justice are very smart they definitely know this. They use this statute all the time. I am not saying it will work here because you

still have a problem of who is your defendant when you bring this. Sure, anyone who brings one of these individual lawsuits, but that doesn't exist yet. So are you bringing it against the state legislature? Are you bringing it against the governor who signed it? That part gets a little messy. Nevertheless, my 50 cents that I'm willing to bet on this is that this is not the last we've heard of 18 USC 241 when it comes to the Biden administration and the Texas abortion law. Another fun note, David, is I did not mention this, I don't think, last week in our quasi-emergency pod. The idea for this law, remember we talked about how it was like way too clever and that it was like this law school hypo. Well, I kind of like, that wasn't a guess. Uh, I knew, I knew where it came from. Um, it is the former Texas solicitor general, Jonathan Mitchell. He is a visiting professor at Stanford Law School, I believe, this year,

but maybe it was just last year. He wrote this law review article called The Writ of Erasure Fallacy. So the overall gist of the law review article was about the power of judicial review, quote, is all too often regarded as something akin to an executive veto and like that this is bad, injunctions are bad, et cetera, that it's an abuse of judicial power, that there's this, quote, writ of erasure fallacy, the fallacy that equates judicial review with a veto like power to strike down legislation or delay its effective start date. This article identifies the origins of the fallacy, describes the ways in which the writ of erasure mindset has improperly curtailed the enforcement of statutes and explores the implications that follow when judicial review

is correctly understood as a temporary non-enforcement policy that leaves the disapproved statute in effect. David, I mean, we know where this ends, so you can see where it's going. So let's take a little journey to a certain section of this. Okay, so scrolling down to the end of the article, there's a section, and it's called Drafting Legislation to Counteract the Effects of a Judicial Injunction. And he's got some ideas. One, you could draft a statute where there will be no statute of limitations for the civil and criminal penalties provided in the law, i.e. if the injunction is temporary and then later the law is found to be constitutional 20, 30 years later, you could go back and prosecute people who benefited from the stay or injunction in the meantime. stay or injunction in the meantime. Two, there will be no mistake of law defense for those who violate the statute in reliance on a judicial pronouncement of unconstitutionality. Again, this is like the concept of like, okay, well, Roe v. Wade was on the books for 50 years,

but if they overturn it in Dobbs, you can't say, but I thought there was a constitutional right to abortion for 50 years. Nope. Three, those who violate the statute remain subject to penalties, even if they act at a time when the courts have blocked the statute's enforcement. Yeah. Okay. So those three sort of have to go together in one way of doing this, but he also provides a second way. The legislature can also induce compliance with its statutes by providing for private enforcement through civil lawsuits and key TAM-relator actions. These mechanisms are especially powerful because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it. When a district court declares a statute unconstitutional or enjoins its enforcement, its decision binds only the named defendants and it has no precedential value in other court proceedings. The statute continues to exist. Private litigants remain free to bring their own enforcement actions in state or federal court. And it goes on from there discussing how

this might work and basically predicts everything that happens. Not shockingly, this came out in 2018, Virginia Law Review and SB8 was drafted and passed in the spring of 2021. I don't think they came up with it on their own. I don't think they came up with it on their own. So the former Texas Solicitor General writes down a how-to guide that the Texas legislature then followed and that has stymied the courts, which we sort of make fun of law review articles that no one reads them.

But in this case, A, someone did read them, but also a whole lot of other people didn't or else we could have spent a few years thinking about how ex parte Young might apply in these situations instead of everyone being kind of blindsided. So I thought that was fun. Last thing on abortion litigation in Texas, David, there's another SB8. SB8 that was passed in 2017. This was also the Texas legislature and was on banning a person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency. The district court said no. The Fifth Circuit said no. Then

the Fifth Circuit took it on bonk and said, but yes. 14 judges, nine said that the law was actually constitutional. But that's not even why I wanted to talk about this and mention in particular, it is the Judge Ho concurrence that had a lot of people talking about it, chit-chatting. Let me read you a section of it. Follow the science, it's often said, and rightly so. But what do we do when scientists disagree the supreme court's abortion precedents are unequivocal judges have no business deciding which scientists are right and which ones are wrong moreover this principle is especially vital because as it turns out scientists don't always follow the science themselves i write

separately to explore this concern and explore it. He does, David. So we have the story of, I'm going to butcher this poor guy's name, Ignat Szilweis. He was a Hungarian physician. You've actually probably heard of this study that he did back in the 1840s. This is the childbed fever problem where all these women at the hospital were dying of childbed fever, but they had two wards. One where women were with midwives and one where women were tended to by physicians and the physician tended to women were all dying and the midwife women were dying at a far less

rapid rate. And he hypothesized that in fact, it's because the physicians were also working on women who had died of child bed fever, uh, suggested that they wash their hands in between that. And all of a sudden, the death rates between the two wards became the same. And so what happened, obviously, is that every physician started washing their... Nope, that's not at all what happened. Instead, he was mocked, ridiculed,

and driven out of the practice of medicine for being a quack. He also mentions, of course, Joseph Lister, same sort of idea, except he actually comes up with the whole germ theory of disease, these invisible particles that we can't see that are causing people to be sick. And if we used antiseptic solution on these wounds, maybe people wouldn't, they wouldn't get infected from these quote, invisible germies. And everyone said that these were like spirits and witches. And he was burned at the stake. No, he wasn't burned at the stake, but germ theory was not accepted for a long time.

And Jim Ho, Judge Ho walks through this very well-written. It's a fun story about the history of science. Doctors and scientists deserve enormous respect. We ignore their advice at our peril, but we also follow them blindly at our peril. He tells the story of baby Richard, born at 21 weeks, who survives. States have a profound interest in respecting unborn life. Surely that interest includes protecting the unborn from unnecessary pain and suffering. Indeed, and this will lead us to our next topic, David, if states must avoid unnecessary pain to convicted murderers on death row as a matter of constitutional mandate, then surely states may

avoid unnecessary pain to innocent unborn babies as a matter of constitutional discretion. He mentions cancel culture, scientists getting canceled. Obviously, COVID is just like not ever mentioned but woven throughout all of this. Someday scientists may look back on today's abortion debate as shocking and barbaric, just as we look back in disbelief at those who ridicules and ostracize proponents of handwashing and sterilizing surgical instruments to prevent disease and infection. So that is one of the concurring opinions out of the Fifth Circuit. It had very up Eddie feels to it, but people have mixed feelings about that. I find a judge explaining their thinking,

not in the majority opinion, but in a concurrence to actually be helpful because it gives you an insight, not only into that judge, but into how judges think in general. It shows you that they're real human beings who are part of this earthly temporal world that we all inhabit. But there are also people who think, for instance, judges should be writing far fewer dissents, that these are advisory opinions and they're basically this exercise in stretching and yoga. And I was curious, David, how you fall on the, is stretching yoga helpful to illuminate the judiciary transparency or is it in fact undermining judicial opinions because it's showcasing all the disagreement and all the humanity and the dirtiness and the muck and the mire oh yeah this is oh boy this is a rich topic um so first can i

just say when you walk through some of those scientific disputes, it's kind of a miracle the human race still exists. You know, like, hey, wash your hands, quack, idiot, you know. And the other thing is, as you were walking through this, I thought, is Judge Ho winding up to a pitch for Ivermectin? Because there's kind of a couple of aspects to this, like, hey, I'm going to point out all the ways in which people like Galileo or Lister or others were quacks in their time, and then they were proven right. And then in the internet age, what this means is, therefore we shall listen to only quacks. It's sort of the way that it all works out. But what we forget is there might've been 150 wildly wrong ideas, and then there's the right idea. So it's not so easy to sort of sit there in our armchair, flipping through YouTubes and finding the true, bright, shining science that almost always dovetails quite neatly with our preexisting politics.

But anyway. Well, and just to so he ends the science part with this. The bottom line is this. Of course, we should follow the science. But that doesn't mean we should always blindly follow the scientists, because like the rest of us, scientists are first and foremost human beings. They're susceptible to peer pressure, careerism, ambition and fear of cancel culture, just like the rest of us as courts have recognized. And this all turned, of course, because the district court and the panel for the circuit had basically dismissed the state's experts who said that fetuses can feel pain earlier than what the larger group of experts had said. And so that's why he's going into this science debate.

But to me, this actually misses the point a little. Science is a process. Scientists are human beings. We should always follow a scientific process to try to move closer to truth. But that process is done by human beings, and therefore it will be flawed. It will miss things. We will need to revisit. Newton followed a scientific process. It was very helpful. It got us Newtonian physics. But it turned out that Einstein revisited Newton. And actually, Einstein's theory of relativity predicts the movement better than Newton's did. It's just how the scientific process works itself out. And I feel like all of the Twitter debates on believe all the science, don't believe the science, kind of misses that science, that's just hypothesis, test, confirm. It's a process.

There was a, and if I can find it, I will put it in, we'll put it in the show notes, but it was a long read and medium. And it was about, when I say long read, like a 47 minute long read, you know how medium posts have the projected read time. So this was, you gotta, long read. You know how medium posts have the projected read time. So this was, you got to, you got to settle in for this one. But it was a really interesting discussion of the dynamic of how the public is thinking through science and how science is presented to the public. And, and, and because it was a long read about ivermectin and how did, and trying to really sort of do two things at once. Say, how did this ivermectin sensation start? And two, what do we actually know about it? Is it effective? Is it not effective? What's the state of the science on ivermectin? And what he started out with a thesis that seems pretty right to me, and we're running a little bit a far field from our topic list, but this is good stuff. This seems pretty right to me, and that is a lot of folks in the mainstream media are very cautious about platforming individuals who are outside of consensus views on science,

which then therefore means that often they will miss or be delayed or wrong on emerging new theories that are better than the old or that are better explanations for what's happening than the old. So often the mainstream media will miss what is true and what is real and what is happening because there is an over-reliance on consensus. So then up comes a right-wing media or sort of the intellectual dark web or whatever you want to call a lot of the dissenters. And so what they then do is often make the opposite problem, or they create the opposite problem, which is platforming the dissenters almost unreservedly. And so what you then have is you'll have the consensus that people are wrapped, their arms are wrapped around

a little too tightly. And then you have a dissenting wing that platforms people who have opposing ideas, but platforming them without enough critical analysis of the opposing idea, so that then it seems more credible in any idea if it is presented without dissent, especially if it's sort of presented heroically, rebelliously, like this is the sacred knowledge that nobody else wants you to hear, is going to sound more credible. It's going to sound more convincing.

It's as if I've got the key that's unlocked the box that's got the secret is gonna be quite alluring to people. And so you have two kind of media universes making major mistakes, but in very different ways. And I thought that was an interesting analysis of where we are. And it actually applies to how courts

deal with scientific theories. As Judge Ho said, courts are not supposed to debate the science, and yet there are absolutely times where courts have to make a ruling, for instance, in criminal cases, is it accepted science in a criminal defense, um, that the prosecution, you know, in some of these arson cases, for instance, on when accelerants are used, looks at the, you know, whatever thermography, um, people have been put on death row on science that has then later been found to be

like, maybe not all that scientific. Why? Because a judge said, it looks right to me. And so you do have- Or a jury. I mean, 12 people just yanked, yep, 12 folks dueling PhDs, here you go, Make the call. So the law has not come up with a very good way to deal with this except to rely on consensus. And that's where you see this abortion debate on when a fetus can feel pain. Maybe the question on the constitutionality of a statute shouldn't turn on that. But in this case, it was at least relevant of whether the state acted rationally and could overcome its burden. So anyway, something to keep an eye on. That case,

I'm sure, will petition for cert at the Supreme Court. But after Dobbs, we certainly won't hear from it again for several more months. Well, we didn't even talk really about the concurrence dissent advisory opinions part yet because we talked about the science part um i think that's a very i overall like it this uh this trend of saying i'm dissenting i understand that the law is running against this position but it shouldn't here is what the law should be. But I'm, you know, I'm saying this in dissent. I know that, that, um, you know, I know that I'm out of step or I know that this is where I believe the law should develop. It's got a number of virtues when done well. Okay.

When done well, it has some virtues of number one, your understanding for purposes of, you know, just from a district court judge to a circuit court judge, a lot of these guys are also sort of auditioning for the next level. They are saying, hey, look, you know, if I'm elevated, this is my philosophy. And I appreciate that. I appreciate understanding more about a judge's philosophy overall. Again, when done well, if it reads like an op-ed on Breitbart, no. But if you're understanding and explaining the law and, you know, for example, our friend of the pod, Judge Willett, has talked about qualified immunity. He knows he's in the

dissent, but he's doing, I think he's articulating a proper legal standard properly. And it's one that I think, you know, he is explaining his philosophy, but it's also another thing. A lot of these judges are working the refs. They, every, every layer of the judiciary, except the Supreme court has a ref over them. And so what are they doing? They're working the refs at the next level. And so it's a combination of sort of a higher degree of transparency. Here is my philosophy. It's also part of it is an audition for the next level. And part of it is working the refs at the next level. So I think it has multiple uses, but I could pull any given opinion. Here's one. Do you remember, Sarah,

in the height of the early phase of the pandemic, there was an opinion from a district judge in Kentucky that basically cited no law and was just an extended rant against, I believe it was the city of Louisville. I believe that judge is now a DC Circuit judge, Justin Walker. That judge is now a DC Circuit judge, Justin Walker. Exactly, exactly. And that was a kind of a form of audition in the Trump era, a quite successful form of audition, I might add. And so I do think there is definitely a downside,

but there are uses to it. And I do, on balance, appreciate it. Where are you on it? See, that's interesting. I think our reasons are really different. All the reasons you cite are real reasons, but I'm not sure if I like those reasons. The reasons that I like it

is the Justice Harlan reason. You are speaking to posterity generations down the road, even though you know that your current culture, society is not with you. And I think there is something noble about that. Second is the transparency aspect. I think that allowing people to see more about the inner workings of courts and judges is a positive. I don't think it's an end into itself. I am against TVs at the Supreme Court, for instance, even though that would be more transparent, because I think the downsides are greater than simply the transparency upside. But I think that the concurrences and dissents usually write in a different way than the majority, which is like, here's the problem.

Here are the facts. Here's the law applied to the facts. Here's why we're coming out this way. Thank you. Next. The concurrence and dissents really sit there and like grapple with the problems often and showcase a little bit more of the difficulty, why this wasn't an easy case. And I think that is good for people to see about the law. So yeah, my reasons are different. I don't think auditioning is a very good reason, even though it is very, very true. So anyway, that's my take on it. But David, oh my God, we're never getting through everything we have to get through today. I know. Okay. So let's go next to the Supreme Court. Last night, pretty late, the Supreme Court halted the execution of John Ramirez so that it could

fully consider his request that Texas allow his pastor to, and I'm quoting from the SCOTUS blog summary, to audibly pray and lay hands on him during the execution. The execution had been set for last night. So this is a, I mean, we're talking last minute stay here. And just to give some context, this is one of a series of cases that are answering the question of, in the death penalty context, who can be with the condemned man? Who can be with him? So there was, for example, in 2019, I remember, oh my gosh, I was hopping mad about this, that the Supreme Court refused to stay the execution of an individual named Dominique Ray. And the reason was that Ray's request to have an imam with him had arrived essentially when he died, had been made too late. And on

that basis, the Supreme Court had refused to stay as execution. The state prohibited, quote-unquote, outside spiritual advisors. And since the imam was not an employee of the prison, that this created a security concern. There's a security process. And so I was hopping back about this decision. And since that time, there has been an escalating sort of series of questions about the role of a spiritual advisor in the moment of execution. And this case is very interesting because it's taking the spiritual advisor and putting them not just in the chamber, but asking for the spiritual advisor to be hands-on in the execution itself. And I think Sarah and I have a difference of opinion as to how this is going to come out

ultimately when they decide this. So your view is when they decide this, that they're going to not permit the pastor to audibly pray and lay hands on the defendant. Well, there's several problems that the Supreme Court is going to be looking at in this case, potentially. Let's walk through a few of them. One, basically, the state of Texas said, we're still deciding whether this guy can be in the room. We'll let you know on the day of the execution so that you can't possibly seek review and get to court in time.

That, I think, is a problem disfavored under the law. Second, they often try to say that, as happened in the case that you mentioned earlier, that the person being put to death ran out of time, that they didn't apply to have their spiritual advisor there soon enough. And so in this case, the guy basically applied in 2019 and then sued them. And they said, if you drop your lawsuit,

we'll drop this date for the death penalty. He said, okay. And then they put up a new date and then said he was too late asking for a spiritual advisor. That's also going to be disfavored. Okay. But then the substance, there's a lot of procedural problems that not, not problems for the case going up state based procedural problems. They also have switched. case going up state-based procedural problems they also have switched sorry there's one third procedural problem they keep changing the rules and uh who can be in the room and every like month it seems like according to this petition at least they're like oh new rule and that before this like nobody could be in the room. Now somebody can, but you can't do any of this stuff. Okay. That's going to be a problem. So now the substance of this specific claim, one, he wants Pastor Moore to be able to lay hands on him during his death. During. Second,

he wants Pastor Moore to be able to pray, speak, read scripture, move his lips, or do anything at all, which the state is saying no to. They said he can be in there and that alone. So they are challenging both of those. So yes, if you're asking for my prediction, they will say he can pray, speak, read scripture, move his lips, and or do anything at all. But I actually think that the state will be found to have a compelling interest in not having someone's hands on a person during a medical procedure that the state is both required to oversee in a lot of detail, three different injections. They need to monitor his vital signals. Things can go wrong in this process. And the last thing you need is someone with their hands somewhere that you can't quite

see or who's moving their hands. I mean, no, I do not think that the Supreme Court is going to give a thumbs up to that. I think that's, well, I thought we were going to disagree on the outcome. I think that's probably right. I mean, the notion that even a small risk that a person, let's say they've passed a background check, you know, so there's a security, you take care of your security interests. There's maybe even an interview process to make sure that the person, the spiritual advisor is going to be a person of sufficient stability, et cetera, et cetera. and the spiritual advisor is going to be a person of sufficient stability, etc., etc.

But if something goes wrong and there's a need for dramatic intervention, having somebody literally physically touching the defendant could be an impediment. There's going to be a very powerful state interest there. Less powerful state interest, much less powerful state interest in preventing the defendant from hearing a prayer. Much less powerful state interest there, especially if the person is a reasonably safe distance away. They've passed all the background checks, et cetera, et cetera. You just can't sort of wave the security flag and use it as sort of the I win flag. So I tend to think that that's

going to be the outcome of the case. I thought you were going to come out pro-hands-on. I'm pro-hands-on, to be honest. I'm just predicting the outcome. We totally misread each other in the green room. I thought we were going to have a nice big fight about this. Sad. No, I know. No, I think you're right. It's a matter of analyzing the outcome.

I would be pro-hands-on. And you could say you touch maybe their foot or that there's a specific way in which you do it in a specific location, et cetera. I would be pro that, but I don't know that that's going to win. So unfortunately, what I am pro is not always what happens at the Supreme Court of the United States. Now, because this is going to be a religious liberty case, it's going to be interesting to see ultimately what kind of standard they be interesting to see ultimately how they,

what kind of standard they're going to apply, how they run through the employment division, B Smith's, uh, analysis here as always, since that's in a state of flux. So we're going to pay attention to this one. Um, two quick points as we wrap on this one,, this is an example of something that could have been shadow docketed and then was removed. And it's what the anti-shadow docket people want to see happen. This comes up in an emergency posture. Instead of the court ruling on it, they say, okay, pause everything. We're going to have briefing. We're going to hear oral argument, et cetera, and then we'll rule on it in the regular course. So when people complain, when Kagan complains about the shadow docket or people in the press, this is what they want instead. You come up on

the emergency posture and then the court figures out some status quo that it can leave things in for months while they then put it into the regular process. Obviously, death penalty is much easier because we know what the status quo is. In a lot of cases, what the status quo is, is a lot harder to determine. All right, second point. I got to the end of this and the petition, the lawyer who signed the petition, counsel of record, was Seth Kretzer of the law office of Seth Kretzer. And I thought, wow, this was a great petition for a solo practitioner. Let me just read one line to it that stood out to me as particularly delightful. In other words, Pastor Moore is compelled to stand in his little corner of the room like a potted plant,

even though his notarized affidavit explains that laying his hands on a dying body and vocalized prayer during the transformation from life to death are intertwined with the ministrations he seeks to give Ramirez as part of their jointly subscribed system of faith. Generally speaking, David, some of these petitions have not been very well done. The potted plant reference to, was that, was it Oliver North's hearing? That's the Oliver North hearing. Yeah, absolutely. That's a good,

yeah, that's a good poll. And he says, they tell him he can't, you know, speak or talk to his client. And he says, I'm not a potted plant. I'm his lawyer.

So yes, the potted plant reference, I enjoyed. So I was impressed. There were a few typos, a missing word in that paragraph, for instance, a weird little hyphen later in the paragraph. I'm not saying it was perfect, but I was going to give some real shout out to this lawyer. Until I looked at his resume, Seth, Seth is a very impressive lawyer, graduated with honors from the University of Texas, has argued more than 30 criminal appeals in the Fifth Circuit, including his first appellate

client was the guy who had 19 illegal aliens in the back of his truck and then left his truck without AC and walked away and they all died. Oh my. This is a very experienced criminal defense attorney in Texas. He clerked at the district court. He clerked at the fifth circuit for Judge Reveley. So congrats, Seth Kretzer, though now I'm just, you're expected to do very well now. You're not exceeding expectations anymore. And you're less, Now you're not exceeding expectations and you're less, you're suddenly less tolerant of his typos. I am less tolerant of the typos.

Now, Seth, come on. You had to have someone read over this. The problem is that under the TC, the TDCJ is most recent policy. Pastor Moore, not lay hands may pastor more may not lay hands.

The transformation from life to death hyphen are intertwined. No, that hyphen, I don't know how that ended up there. So yeah. Now you're just being mean, Sarah. You're just being mean. Hey, he just got his case granted. His client is alive. His case is granted. This guy is like win, win, win. So he can take it from me a little bit on the typos. So what you're saying is what you're doing now is a public service by keeping him from just getting too arrogant about his prowess. That's right. Oh, hey, David, did you see the tweet from the CIA recently? I did not.

If you don't catch typos, you let the errorist win. Oh, my gosh. Oh no. Okay. All right. So let's, we've gone from abortion to death penalty. Let's now go to vigilante murder. Man, what a podcast. So anyway, let's go back to the Ahmaud Arbery case.

Now, this was a case, if you remember, there were three cases that really built up to the wave of protests in the summer of 2020. The Breonna Taylor killing in Louisville, which was when she was at home with her boyfriend. Police knocked down the door in the middle of the night. Kentucky's a stand your ground state. Boyfriend comes out with his gun as he's entitled to do, fires a shot at a shadowy figure as he's entitled to do. Police open fire in response to being shot at as they're entitled to do. And Breonna Taylor is killed. And so that was number one. Number two, and there was a ton of problems with the investigation that led up to the raid. We don't need to dive into all that. You can, I've written about it at length, Just terrible. Then you had this videotape came out

of a shooting of Ahmaud Arbery. Ahmaud Arbery was a young man who had walked through a vacant construction site, was running slash jogging down the road. Some folks call into the police, say there's a black guy running in the road. And then literally, basically a three-person armed posse, I mean, mounts up to go after him. And a car and a truck, and they corner him. The car is recording what happens. They stop him in the road. These two individuals, Gregory and Travis McMichael, are in the truck. One of the older ones, Gregory McMichael, is a former investigator, used to work for the district attorney's office in his county in Georgia. Arbery tries to go around, tries to

escape them. He approaches Travis McMichael, tries to get past Travis McMichael, and McMichael just shoots him dead. There's evidence that McMichael uses a racial slur right after that. Horrible situation. Horrible. The video is just beyond chilling. The whole thing is just horrible. Well, then what happens? So then what happens is before the video comes out publicly, there's a prosecutor by the name of Jackie Johnson, does a couple of things. One, she directs responding police officers and directs two Glynn County police officers not to arrest Travis McMichael, says don't arrest him. Then because she is conflicted out of the case because of the relationship she had with Greg McMichael, she appoints another prosecutor. Well, the other

prosecutor that she appoints is a person named George Barnhill from a different judicial district. is a person named George Barnhill from a different judicial district. Well, he had already advised the McMichaels in this case. So he had already helped them out. He advised them that they're protected by the state's citizen's arrest law. Later on, Barnhill goes and writes this memorandum that is laughable, Sarah. I wrote about all of this months and months and months ago. It's laughable how ridiculous his legal memorandum was saying that there was no basis for arresting them at Michael's. Well, eventually the Georgia, when the video surfaces, it's a classic story. And I hate to say classic story because it just happened too many times. If the video hadn't surfaced, they would have gotten away with all of this.

Video surfaces, Georgia Bureau of Investigation gets involved, Attorney General of Georgia gets involved, and ultimately they're arrested. They're about to stand trial for, the three guys are about to stand trial for murder here in the next, I believe it's coming up in October. Well, what's the development? Last week, Jackie Johnson, the original prosecuting attorney, was arrested, indicted on two counts. Count one is that she violated the oath of her district attorney. And here it says, by failing to treat Ahmaud Arbery and his family fairly and with dignity, when after the shooting of Ahmaud Arbery, she sought the assistance of this other district attorney after disqualifying

her office, recommended DA Barnhill to the attorney general's office for appointment as the case prosecutor without disclosing that the accused had previously sought the assistance of Barnhill on the case. So the fix was in here. And then also count two is she was accused of obstruction and hindering a law enforcement officer by willfully hindering Stephanie Oliver and Stephen Lowry in lawful discharge of their duties by directing that Travis McMichael should not be placed under arrest. Okay, that's a long wind up for a short pitch, Sarah. And people say we don't have systemic problems. And if you raise the idea that there's such a thing as systemic injustice left in the United States of America, you're going to get roasted, fricasseed, lambasted, destroyed all over the place because everybody

knows that systemic injustice is totally not a thing anymore. But my goodness, if you are talking about a system, here's a system. A system is a DA putting in the fix by referring a case to another DA who's put in a fix, and the whole thing would happen. A person would get away with murder if it weren't for a tape getting out of the public. Rant over. It'll be interesting to see how far this prosecution goes, since generally prosecutors enjoy an enormous amount, not only discretion, but immunity. You know, as long as what they did was even remotely, possibly okay,

whether it's accepting a plea deal, declining to prosecute. I mean, declination decisions are, I mean, this is, anyway, we'll see. It made for a good press release. It's going to be very interesting. It's going to be very interesting because there's also a civil lawsuit that the Arbery family has filed. And the civil lawsuit has more allegations in it than are contained in this indictment. I think the civil lawsuit may actually be more

likely to fail. Yeah, the civil lawsuit, but one of the interesting aspects of the civil lawsuit is essentially there is an argument that what the law enforcement did was essentially tried to act as if it had deputized the McMichaels to essentially be conduct citizens investigation and citizens arrests and the persistent and pervasive problem of people walking through construction sites. And so it's a, it's a mess. It is a mess, Sarah. I'm with you there. We do know there's an enormous amount of legal immunity that is granted to DAs. I'm mainly, and it's going to be very interesting to see how this falls out legally, but I'm mainly interested, I'm interested in this legally, but I'm also interested in this

systemically. And that we have this argument that is constantly made that, quote, systemic racism or systemic injustice, you can't say those words. You can't say those words in parts of the right. And yet here we are. Here we are. The fix was in pretty darn comprehensively across multiple law enforcement officers crossing multiple counties in the vigilante shooting, chasing, shooting a young Black man whose entire, the only thing he'd done, quote-unquote, wrong was walking through a construction site. And, you know, I remember when this came up, I live in a neighborhood where there's a lot of homes under construction. And you know what I've done before, Sarah? I have walked through the construction site to say, huh, this is a cool looking house.

Let me see how this is laid out. I remember when we first talked about this, David, and I was, I remember when we first talked about this, David, and I was, what was I like six months pregnant, seven months pregnant and the pandemic had started basically. And so I was at home trying to get out of the house whenever I couldn't take walks. Scott and I had literally like several days beforehand just walked a construction site. Yeah, right. I mean, this is something that happens. And you had no thought in your mind that a couple of dudes in a pickup truck armed to the teeth and another dude in a car could then chase you down. And unless you stopped when they said stop, they had a right to execute an arrest. Well, more to the point, David, of course I didn't. to execute an arrest. Well, more to the point, David, of course I didn't. Right?

Right. There's a big difference. Yep. 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 that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my

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Use code ADVISORY at checkout to save. Terms and conditions apply. All right. Don Jr. Don Jr., Sarah. Don Jr. And this case, I got to say, is like the Iran-Iraq war of cases because can't they both lose? Can't they both lose? This is Don Blankenship, a GOP Senate candidate. Now, Don Blankenship has two sort of claims to infamy. One of them, much less serious, but more sort of pop culture-y, is he's the guy who coined the nickname Cocaine Mitch in a campaign ad. It was meant to be an insult. It's too silly of a claim to even dive into, but it was meant to be an insult. Cocaine Mitch turned into a compliment that even Mitch's own team has on occasion embraced. But he coined the term cocaine Mitch. He was sort of this outsider, maverick candidate against the establishment, etc. Well, he had a problem also in that there was an explosion. He used to run a coal mine. There was an explosion at a mine that he ran.

He was charged with felonies in connection with that explosion, but he's convicted only on a misdemeanor count. And this is the Washington Post account of it. And so Don Jr., the other side of this case, tweets calling Blankenship a felon, saying that Blankenship was a felon. So Blankenship sues him saying, I'm not a felon. I was just convicted of a misdemeanor. That's slander. That's defamation. And a judge recently ruled that Blankenship's case can go forward, that Don Jr. knew, should have known that he was not a felon. He had only been convicted of a misdemeanor, and he still put out that he was a felon.

Interesting case. I'm not sure I'm so high on this opinion, Sarah. And I think you feel the same way. What are your thoughts? That's because this opinion is absolutely, totally wrong in every respect in which it could be wrong. You compare this to Iraq and Iran, maybe so, but the law is the law. And actually, defamation law like this is pretty well established.

We have the case against Rachel Maddow, where she says the word literally and the judge finds the word literally to mean metaphorically, the first time in a judicial opinion. And by the way, that was correct. Annoying though it may be, she was saying that a news organization was literally funded by the Russian government when in fact one of their reporters was paid by the Russian government separately from their pay

from this news organization. They sued her for defamation. The judge was like, look, you haven't really met, frankly, any of the standards here because the word literally was in context, quite obviously meaning metaphorically. Okay, so let's just back up for a second. By the way, same thing with Tucker Carlson. He's having like currently the exact same lawsuit. It's going to come out the exact same way. Okay, in order to recover a libel action, the judge did set out the law correctly, so I will just read from the opinion on that. There was a publication of a defamatory statement. Check. The stated or implied facts were false. Check. The person who uttered the defamatory statement either knew the statement was false

or knew that he was publishing the statement in reckless disregard of whether the statement was false. Now, I just want to go up again to give a little more context on the felon tweet. to give a little more context on the felon tweet. Don Jr. tweets something about how you shouldn't vote for Blankenship. Then a guy responds to it, a reporter. So now Don Jr. says, ha, now I'm establishment? No, I'm realistic. And I know the first thing Manchin will do is run ads featuring the families of those 29 minors killed due to actions that sent you to prison.

Can't win the general. You should know that. And if others in the GOP won't say it, I will. Twitter user replies, says, don't think Manchin will do that. His ads are usually about him. Trump Jr. replied, he's never run against a felon. Okay, so we're off to the races. The judge in this case basically says this is a question for a jury. It is a fact question of whether they can prove actual malice, but they've overcome at the motion to dismiss stage that there is enough stuff here to show actual malice and to show that this was defamatory. I think that someone screwing up felon versus misdemeanant is not actually going to pass

muster on appeal. And even if for some reason this went to trial and a jury found for them, he would still then win on appeal because felon and misdemeanant in this context are pretty easily mixed up. It was a serious misdemeanor. He was tried on the felony. Like how much are you supposed to keep track of all of this in the context of responding to people on Twitter? Look, we can change our defamation laws. I'm not even saying I want this to be the standard for defamation, but our standard for defamation is very clear. And this ain't even in the ballpark. Yeah, you're so right about this. I mean, so let's even go to the judge's decision. So it says, on the question of falsity, West Virginia libel law overlooks minor inaccuracies and concentrates upon substantial

truth. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of the libelous charge can be justified. He was convicted of misdemeanor in the connection of the deaths of 29 people. Okay, I should have mentioned that right from the get-go when I talked about that there was a mining split. The deaths of 29 people. explaining the deaths of 29 people. Do you think that the, just the sting, the substance of saying felon can be justified when somebody has been convicted of a crime in the connection with the deaths of 29 people? I don't think this is that, I don't think this is a close case.

I don't think this is a close case. It's, you know, this is a case where, I mean, yeah, Don Jr. said something that was false, but false is not a synonym for defamatory. Those are not the exact same words. Yeah, and in this case, I think it's so similar to the Rachel Maddow thing. What Rachel Maddow said came from a kernel of truth.

A reporter at that news outlet was being paid by the Russian government. She conflated that reporter's income coming from Russia with the news organization, which is not an entity or not a person, it's an entity. And so when she said they're literally getting paid by the Russians, entity. And so when she said they're literally getting paid by the Russians, yeah, like in context, what she meant was the Russian government is funding some of their reporting, which they didn't even dispute. In this case, the initial tweet reads, I know that the first thing Manchin will do is run ads featuring the families of those 29 minors killed due to actions that sent you to prison. And then he says he's a felon. Junior's defense, and I think it's a winning one, is the crux of my point is true. 29 people died and he was convicted in relation to those facts. And that's what the guy is going to run ads against him about in a political campaign that we're

like now 27 steps removed on whether it was a felony. That wasn't even my point. I don't know whether it was a felony. I don't care whether it was a felony. The point was he can run ads against him for his role in the death of 29 people. That's going to be just fine on Twitter in the context. Rachel Maddow had a TV show and it was fine. Right.

Right. Now, I'm trying to remember, was it in Parks and Rec that the Rob Lowe character was always saying literally? Literally? When literally did not mean literally. Is it possible that Parks and Rec literally changed the meaning of literally? I don't know. Erickson rec literally changed the meaning of literally. I don't know.

But now if you look it up in a dictionary, it says the definition of literally it, the second definition is metaphorically. Oh, Sarah, Sarah, Sarah, Sarah. Okay.

You have a potpourri. Do we have time for your potpourri? We're just going to do one of the potpourris. Yeah. We're just going to do one. Okay. So David, I just going to do one. Okay. So David, I found out about a cult. Oh, boy, boy.

Okay. And it's an awesome cult, I think. I'm not sure because I'm not in the cult, but if anyone's listening who is in the cult, if we could get honorary membership after maybe you explain to us a few more things about the cult, because I do have maybe a couple questions.

It is a cult of brett kavanaugh um and it's not that just like anyone is in this cult very specific membership uh as i have found out it is a bunch of navy pilots what yes a bunch of navy pilots have a brett kavanaugh worship cult based on based on this thing he said so i want to read you what what came this was in september 2018 in front of the senate judiciary committee during the weekdays in the summer of 1982 as you can see i was out of town for two weeks in the summer of 1982, as you can see, I was out of town for two weeks in the summer for a trip to the beach with my friends and at the legendary five-star basketball camp in Holmesdale, Pennsylvania. When I was in town, I spent much of my time working, working out, lifting weights, playing basketball, or hanging

out and having some beers with friends as we talked about life and football and school and girls. Some have noticed that I didn't have church on Sundays on my calendar. I also didn't list brushing my teeth. And for me, going to church on Sundays was like brushing my teeth. Automatic still is. So David, the cult is centered around automatic still is. And I guess they say this to each other all the time. And it's turned into this like phrase that everyone knows the meaning of within this Navy pilot cult. And shout out to you guys. I want to know more about it.

I want to know if it really is related at all to Brett Kavanaugh or if it's just that that's an awesome phrase all by itself. Is it about the beers? So anyway, if anyone here is listening, is a Navy pilot married to a Navy pilot, simply can email their Navy pilot friends and ask about Automatic still is. David and I would like to know about it.

Yeah, because I'm totally, I did not look up the Kavanaugh cult at all because I wanted to be surprised by this. I really did. And it has delivered. That is the exact last group of people because I thought, because we've talked about these clerk armies before, how these appellate judges, the circuit court judges, when they're being considered for the Supreme Court, they're on a short list. These armies of clerks activate and start bombarding you with not just my judge is the best judge, but also surreptitious memoranda explaining why other leading judges are not the best judge. I don't know if you got those, Sarah, during all the confirmation wars. And nobody had a clerk army like Judge Kavanaugh. I mean, Judge Kavanaugh's clerk army was the SEAL Team 6 of clerk armies.

It was remarkable. And so I thought they'd just gone ahead and devolved into a cult. No, but in fact, if you look up on YouTube, you can find many remixes of Automatic Still Is set to music with like hundreds of thousands of viewers. Really? Yeah, this is a thing. Okay.

It's a thing. I learn something new every day. Learn something new every day. I'm sure some listeners will say, nope, I've been down with the automatic still is. The church of automatic still is for months, but totally new to me. Totally new.

I don't know exactly how to use it correctly in a sentence. I also need some guidance on that, listeners. But I would like to start using it a lot in appropriate context. Would it be if you said, are we recording our pod Monday? And I'd say automatic still is. Is that a proper usage? I like that usage. And when we redo our music

because people hate the intro music to our pod, maybe we could do our own automatic still is remix. I'm so glad you mentioned that because we're about to start a subscription drive, Sarah. Okay. And so for the dispatch, we're starting a subscription drive, Sarah. Okay. And so for the dispatch, we're starting a subscription drive. And if enough Advisory Opinions listeners subscribe to the dispatch, you know what we could do? We could afford my dream intro music, the guitar riff of Sweet Child O' Mine by Slash

and Guns N' Roses. That's my dream intro music. Okay, please do not send us money for that purpose. We will use the money and our resources far more wisely than that. We will make a remix of David and I talking about the Naught Dog Doctrine. Automatic still is Spicy Alito, and that will be remixed to some good, I don't know, club music or something. That's Caleb's job. No. No. Sweet Child, Oh Mine, glorious intro music, enough subscribers,

we can do it. We can make this happen. But no, we really are starting a subscription drive. So if you are one of our listeners, and you've heard us talk about TheDispatch.com, Sarah's newsletter, The Sweep, mine, French Press, please go check us out. I'm very proud of the work that we do at The Dispatch. We have a fantastic team of reporters. One of the most common compliment that we get from our members, that's our term of art for subscribers, from our members is, you have helped keep me sane in troubling times.

So if you want to be sane, subscribe to The Dispatch. That should be like our tagline, preserving sanity since 2019. But yeah, please check us out at thedispatch.com. Also, please rate us this podcast on Apple Podcasts. Please subscribe on Apple Podcasts. We'd appreciate it very much. And we will talk to you on Monday. Automatic still is. Thank you.