Advisory Opinions - Because They Stand on a Wall

Episode Date: June 4, 2020

David and Sarah discuss the stunning critique of the president from James Mattis, the events of the last 24 hours from Mark Esper breaking with the president to Tom Cotton's op-ed, they then breakdown the charges against the police officer who had his knee on the neck of George Floyd, and end with their thoughts on 'The Last Dance.' Show Notes: -James Mattis Denounces President Trump -Derek Chauvin’s Actions Were Cruel. But a Conviction Won’t Come Easily. -Explaining the New Second Degree Murder Charge Against Derek Chauvin Learn more about your ad choices. Visit megaphone.fm/adchoices

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Real Canadian Superstore. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we're going to talk about some of the wild events of this week, and both from a political aspect, from a military aspect, and a legal aspect. So we're going, and also we're going to, for our cultural conversation at long last, at long last, because Sarah is so slow in watching.

Oh my God, blaming me. Yes, blaming you. So slow in watching the most important documentary of sports documentary of my adult lifetime, The Last Dance. We're going to talk about that. I want to be clear. I wasn't slow in watching it. I was just finishing up something else I was watching. I watched it in like three or four days. Well, you didn't watch it when it happened.

Yeah, because I don't believe anymore in having to wait a week for more content. I do full binge. I'm a full binger now. All right, well, let's not leave it here in the intro. We'll get into this later. But we're going to begin by talking about General Mattis. We're going to put his statement in The Atlantic into context for all of the really fascinating and disturbing developments on the military front that have occurred this week. So we're going to put that into context. We're then going to go in and break down in detail the changes in the charges brought against the officer whose knee was on George Floyd's neck. And his charges were upgraded from third-degree murder to second-degree murder, but with a twist.

And so we're going to talk about what are the chances of conviction, what are the defenses that the officer may have. And we're going to just sort of have some real talk about this, about how it may not be as easy to secure a conviction as a lot of people are expecting and what the consequences of that could be. Then we're going to dive into Michael Jordan and the last dance. And before we get to all that, I want to remind you that Advisory Opinions is a podcast from Dispatch Media, thedispatch.com.

Please subscribe to our feed on Apple Podcasts and please rate us on Apple Podcasts. We really appreciate the feedback. All right. So, Sarah, just a super fast recap. Just a super fast recap. Last night, the news exploded that General Mattis had finally broken his silence regarding the president. Now, we already knew as a general matter, and there had been a lot of rumors circulating around Washington, that General Mattis has stuff to say about the Trump administration

and the president and was biding his time. about the Trump administration and the president and was biding his time. And so he writes, and it appears in The Atlantic, a statement, just a very, very strong statement denouncing this president. And I'm going to read the paragraph that stood out to me, and then I want to hear what stood out to you and your first thoughts about it. And then we'll get into some other developments on the military front, that this did not happen in isolation. This happened as the Secretary of Defense disagreed

or seemed to break with the president on the wisdom of invoking the Insurrection Act. It happened in the immediate aftermath of a previous chairman of the Joint Chiefs, Mike Mullen, writing his own op-ed in The Atlantic that was titled, I Cannot Remain Silent. It happened as the chairman of the Joint Chiefs sent out a very curious memo that we're going to talk about, reminding troops that their primary allegiance is to the Constitution of the United States. But here was the maddest paragraph that stood out to me. Donald Trump is the first president in my lifetime who does not try to

unite the American people, does not even pretend to try. Instead, he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership.. We are witnessing the consequences of three years without mature leadership. We can unite without him, drawing the strengths inherent in our civil society. This will not be easy, as the past few days have shown, but we owe it to our fellow citizens, to past generations that bled to defend our promise, and to our children. Your thoughts. and to our children. Your thoughts. Well, as you know, I mean, there's probably no public figure that I have a bigger crush on than Jim Mattis. I think his writing is beautiful. I've thought his thoughts have always been quite well put.

A few things on the statement as a whole. First of all, my favorite portion might be the sentence before that. Instructions given by the military departments to our troops before the Normandy invasion reminded soldiers that the Nazi slogan for destroying us was divide and conquer. Our American answer is in union there is strength. We must summon that unity to surmount this crisis, confident that we are better than our politics. I also thought there was something very smart he did that others should learn from when talking about what's going on in the country right now. In his opening, he says the words equal justice under the law are carved into the pediment of the United States

Supreme Court. This is precisely what protesters are rightly demanding. It is a wholesome and unifying demand, one that all of us should be able to get behind. We must not be distracted by a small number of lawbreakers. The protests are defined by the tens of thousands of people of conscience who are insisting that we live up to our values. I think separating and dividing the protesters from the lawbreakers is a really good rhetorical strategy right now. Yes. Versus what I think is happening a lot of the time is it's like either you're on the side of law and order or you're on the side of justice for George Floyd, which means you're on the side of the rioters and looters as well as the protesters. I really liked the way he phrased that.

We must not be distracted by a small number of lawbreakers and divide those people. Right. So just, you know, again, good writing. Now, here's what Mattis didn't do. There are no specifics in this, David, about his experience. Right. And there's more there. Yeah, here's what I saw. Here's what concerned me at the time. This is a quite broad statement about what's going on currently,

something that he has no behind-the-scenes knowledge of. currently, something that he has no behind the scenes knowledge of. And in that sense, it is, you know, it is a statement from the former defense secretary, but it didn't, this doesn't need to be. He does not have special information. And I think that perhaps detracts from it a little, detracts from the power of it, perhaps a little. Lindsey Graham has put out a statement of his grievance with it. The president, of course, tweeted about it last night, but set aside that. Lindsey Graham said to General Mattis, I think you're missing something here, my friend. You're missing the fact that the liberal media has taken every event in the last three and a half years and

laid it at the president's feet. I'm not saying he's blameless, but I am saying that you're buying into a narrative that I think is, quite frankly, unfair. You don't understand at the president's feet. I'm not saying he's blameless, but I am saying that you're buying into a narrative that I think is quite frankly unfair. You don't understand that the president wakes up until he goes to bed. There's an effort to destroy his presidency. It's so fashionable to blame president Trump for every wrong in America. This goes to your point, David, it engages with none of the arguments and goes straight to this like media critique. Everything is a media story nowadays. That's the response to everything. And, you know, what I think what makes this far more powerful than, say, a general who retired in the Obama administration or a general who retired, say, at the very beginning of the Trump administration.

who retired, say, at the very beginning of the Trump administration. Mattis worked at the heart of this administration and gave it the old college try, so to speak. And he will, I expect he'll have more specifics at some other time. But I do think that... Maybe, although you get into questions of executive privilege and some other stuff that I think he has said he feels duty and honor bound not to disclose. Right. I don't know when I just expect we'll have more specifics. But but to me, here is here is the breaking point. And why I don't I don't think that this was sort of a long-planned statement. I think there was a breaking point, and it was this. And I think this is a very important moment that was a breaking point for a lot of people.

It says, when I joined the military some 50 years ago, I swore an oath to support and defend the Constitution. Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the constitutional rights of their fellow citizens, much less to provide a bizarre photo op for the elected commander-in-chief with military leadership standing alongside. That moment, if you are at all familiar with the history of how the United States military clawed back its reputation after Vietnam, how it became the most trusted institution in the United States, by far, by far, you would look at that moment and every red flag warning siren possible would be going off because that moment you saw the enlistment of actual force on peaceful Americans for the sake of what was frankly a purely political moment and a quite bizarre purely political moment. And the other thing that I would say is, and this is again why I think you've heard from Mike Mullen, you've heard from General Mattis, you've seen Milley's memo, you've seen Esper raising

questions about the Insurrection Act, is the military is A, one of the most diverse institutions of American life. B, achieved a greater degree of success than almost any other institution of American life in dealing with the persistent racial divisions in this country. And they know that that unity in the military is hard won. It's hard won. And the military, to be the U.S. military, to be the institution that it is, cannot, under any circumstances, be seen as minimizing or denigrating or disregarding the concerns of people of color in the United States of America. I want to ask you about the Esper thing here in a second. But before we leave that, I want to ask you about your political opinion of the Mattis statement and to whom it matters. Because I think, by and large, a normal American, this will not change their vote in November,

a normal American, this will not change their vote in November, for instance. But within the military, A, how much is Mattis seen as a leadership figure still? And B, officers and enlisted, do you think this could shake some people loose? I think it will reinforce existing trends. So if you looked at, for a while, the military was more supportive of Trump than the public. And I can't remember who said this. Essentially, that the military is a trailing edge indicator of American public opinion in the conservative direction. So the military will move as public opinion moves. But if a public opinion moves to the left, the military will kind of move. It will move to the left or move against Trump, but slower than the rest of the population.

But what you saw that was really interesting in some recent polling is that the officer corps was much more sour on Trump than it is typically for a Republican president. Which holds for college-educated voters nationwide as well, to your point about leading edge here. Yeah, exactly. Exactly. So I think it will reinforce existing trends. The other thing that I think you're going to look at is what impact does this have on the very small number of people who constitute the upper echelons of the leadership class, both civilian and military, of the military? To what extent does, and amongst those individuals, look, not everyone is a Mattis fan. Not everyone is, but a lot of them are. A lot of them are. And no one's a bigger one than me.

No one's a bigger one than our own Sarah Isker. So I do think that there is, will this make Trump go from 43% approval to 30? No, no. If there's anything that we've learned, it's that Trump's, his approval rating is, as I keep saying so many times, he's got a really high floor. But this is a statement to a select group of leaders in the United States government that essentially says, be really careful right now. Be really careful. It's published in The Atlantic also. Like, bear in mind the audience that's going to see this in the first place. You know, it's not in the Military Times, for instance. Yeah. Stars and Stri, et cetera.

Okay, I want to ask you about Esper. David, I really, you know, I follow the news as closely. I mean, it's my job, right? Yeah. I'm pretty confused. Can you explain to me the Esper evolution from, I thought we were going to look at a damaged bathroom or something to where we are today? I honestly, Sarah, I think. I hear this is. And by the way, this is punctuated by Kayleigh

McInerney yesterday when asked about the president's views on Esper. Her response was Secretary Esper is still Secretary Esper, which we've seen before. It's normally not a great sign for that secretary. Yeah. So. I used to work for one of them. Is it? So you know how Jonah's remnant podcast, he says rank punditry.

Yes. Can we, let's engage in what I would call, it's not exactly rank speculation. Can you just engage in rank timeline? Like, I don't, I literally don't understand. So Esper was against using the Insurrection Act, came out and said that publicly. Yeah. But where is he now? Well, I think the where is he now is, well, he is against the Insurrection Act, but where, but where is he now is not necessarily relevant to where, to whether the Insurrection Act will be invoked, okay?

Because the Insurrection Act does not require his consent to be invoked. Very little does. So let me map this out a little bit. Yeah. to the walk to St. John's on Monday, I am skeptical of the idea that everyone on that walk was fully situationally aware of what had happened in the hour before the walk, that they were fully aware that there was a peaceful protest and that, you know, on the order of the attorney general, that peaceful protest was cleared out pretty violently through the use of, and I'm going to be precise here, riot control agents,

including smoke bombs and pepper balls by the admission of the relevant officials. So I am skeptical of the idea that everybody walking in that procession was fully aware of all of that that had occurred and all of the background and all of the tactics. After they became fully aware of all that occurred, I think there was a sense of, for some of them, holy crap. of, for some of them, holy crap. Okay. And you saw the initial sort of Esper denial that he knew really what was going on and all that, that evolved over time. But then I think when Esper came out against the Insurrection Act and when Milley wrote his memo, and Milley's memo begins, got it right here, every member of the U.S. military swears an oath to support and defend

the Constitution and the values embedded within it. This document is founded on the essential principle that all men and women are born free and equal and should be treated with respect and dignity. It also gives Americans the right to freedom of speech and peaceful assembly. That's a big, big comment. We in uniform, all branches, all components, and all ranks remain committed to our national values and principles embedded in the Constitution. So I think there was a collective, holy crap, what just occurred. And when Esper came out against the Insurrection Act, there is a subtext to that. And the subtext is not that troops shouldn't be used when necessary to quell riots, but that the troops shouldn't necessarily be under the command of Trump. Because when state

guardsmen are activated, they're under the command of governors, okay? They're not under Trump's command. And in fact, point two of the Milley memo says this, during this current crisis, the National Guard is operating under the authority of state governors to protect lives and property, preserve peace, and ensure public safety. I think, and maybe I'm reading too much into this, and you tell me if you think I'm smoking something, safety. I think, and maybe I'm reading too much into this, and you tell me if you think I'm smoking something, Sarah. I think the collective effect of the Esper statement and the Milley statement is in this very subtle way where they can't go out of it, can't really move beyond subtlety, is to say, the National Guard is not right now,

these troops that you see right now in your streets are not under the command of the person who ordered other officials to engage in a violent attack to clear for a photo op. They're under the command of your governor. And then Esper, on the other hand, is saying, and I'm against, I'm against the process that would put troops into these cities that are directly under the command of the president. That's why I kind of had a holy crap here. And maybe I'm reading too much into it, but that's how I, and listeners, tell me if you think that I'm reading way too much into this. But this is not something that is normal. What occurred between Esper and Millie is not normal.

Okay. So I take that as a very plausible reading of events. I think you are discounting how much you're seeing this through the lens of an outsider versus what it's like in the bubble right now. There is,

and this is not this administration, this is any administration, any time there's a crisis, there are people in the bubble, and there's those of us outside the bubble watching through TV, Twitter, etc., etc. In the bubble, there, you know, TV, Twitter, et cetera, et cetera. In the bubble, there can be a lot of groupthink. For instance, to walk to the church, to have a plan to walk to the church, and then not at the church, once you get there, have a plan to say

a prayer for George Floyd and his family, or to say a prayer for the protesters, or to have a moment of, you know, reflection, holding the Bible and reading a piece of scripture on peace or something. That means that nobody in that room, a very smart, capable people either raised that suggestion or that that suggestion was dismissed as not being strong enough or law and order enough, or that it could be seen as siding with the protesters, which they didn't want. These are all options of what is happening inside the bubble. Just using that as one one example of sort of a comms thing, which obviously I'm a little more comfortable discussing how those things go down in general inside a bubble.

And so I think it's just really hard to know because I think people are often surprised how few ideas penetrate the bubble. And so I wonder on something like this that you're talking about, whether there's more bubble, more groupthink than you think there is, and that you're sort of projecting your own outside the bubble perspective on maybe they just think that, you know, anytime you're using the Insurrection Act, the what the emoji with the, you know, grimace face, and that, you know, they did not, for instance, use the Insurrection Act during Katrina and other times of civil unrest, and that they just don't think that, they don't want to own that. So let me, can I, to use a phrase that I've used before that was a podcast title,

can I square our circle or whatever? Yes, do it. Bring our Venn diagram closer together. I totally hear you on the bubble. Gosh, I've been in many bubbles in my life. And I totally hear you. Everyone has. Every listener who has a job, you know what it's like in the bubble. And there are some times when you execute on a plan that sounds awesome in the bubble, and then all of a sudden the bubble pops. And you see that, oh, crud, this plan was bad. Like every advertisement that makes it to TV that like then gets like pilloried. And you're like, who okayed this?

And the answer is it was like 10 people in a room. It was a big room. Yeah. But the bubble thought it was a great ad. Oh, the best example. Kendall Jenner's Pepsi ad. A pretty good example, yeah. But like, it goes to having diversity in your rooms.

And I don't mean, I mean all the diversity. Basically having someone in that room who will say, guys, has anyone realized that like maybe this isn't great? Yeah, yeah. So I think how you harmonize are two, not that we need to harmonize them, but I think there is a way to harmonize them that actually makes a ton of sense. And that is suddenly the bubble pops and Esper and Millie realize we got an issue here in part because of this idea that came out of the bubble.

And Esper, Milley has, how do I, both of them are thinking, how do we protect this institution that right now could very well be at the fulcrum of one of the most divisive debates in the entire United States. And it happens to be so they're they're stewards, they're guardians of this institutional respect and this institutional trust that has been built up ever since Vietnam, ever since the low points during and after Vietnam. And they've got a huge challenge. And so, and they're also men under a chain of, they're men in a chain of command underneath the president of the United States. So what Esper did saying no to the, or urging no to the Insurrection Act, I'm not going to say it was insubordinate, but it was about as close as you can come to stepping out a line that doesn't almost require your immediate termination. I'm going to unsquare our circles and say that I think you are drastically

overestimating how bad they think this is in the bubble. I think that inside the Trump administration right now, they think this is going pretty well and that the protests are becoming less violent because of the actions that they are taking and or encouraging and that they are on the side of law and order and that nobody wants these protests to continue any longer. let me ask you this. Does the bubble for Millie and Esper include Mattis and Mike Mullen? No, no, definitely not. No, I mean, so there's more than one bubble. There's the bubble of decision. But that Mattis and Mullen, you don't, those are peers. Like these are. and those are peers. Like these are... But they're way outside the bubble and I doubt they're communicating. Mattis is in our shoes.

Mm-hmm, yeah. Well, and let me maybe put a finer point on it. Mattis is more like, I'm gonna compare myself to Jim Mattis here because that's like the best thing I've ever gotten to say to myself. Mattis is closer, I think, to my shoes in the sense that he probably still is in touch with people inside the administration as obviously I am from time to time. And I think the bubble's pretty thick right now. Yeah. Interesting. Okay. Okay. Well, let me finish with two quick thoughts, and I'd love your reaction to them. Number one, so this discussion of the Insurrection Act is taking place against the backdrop of governors and mayors who do not want it enacted.

of governors and mayors who do not want it enacted. Okay. So the places where there is the biggest hotspot, the hotspots of violence, I've heard nothing that indicates that, for example, New York wants the Interaction Act invoked. This makes it as a practical matter, extremely difficult to invoke the Interaction Act in a way that is effective and would accomplish what you want to accomplish. Because what's supposed to happen in the effort to, with minimal necessary force, suppress a violent civil disturbance is that military authorities and state law enforcement should be joined at the hip. And when you have National Guard under state control, and you, of course, have the state police and the local police and all of that, that is ideally what should happen. And that is,

the structure is set up for that to happen, for these state authorities to work together. The instant the National Guard is, say, federalized and comes under federal control or active duty troops are deployed, unless there is a request and a unified effort, what you would have then is this extremely toxic environment where you would have an active deployment of U.S. troops into an American city over the objection of the civil authorities in that city or that state. That is an, I'm not going to say it's an explosive situation militarily. It's an explosive situation politically. And it would undermine the effective execution of the mission

because then, you know, the 82nd Airborne might not be interfacing with the NYPD. It might not be interfacing with the New York State Police. And that's a huge, huge, huge problem. So it's a practical matter. If the governors don't want the Insurrection Act invoked, If the governors don't want the Insurrection Act invoked, if the mayor doesn't want the Insurrection Act invoked, it strikes me as almost reckless to invoke it. That's thought number one. I'd love your reaction to it. It's interesting. And I also think this is going to be moot here fairly shortly. I think that the protests will continue for the next few days. But I think we have seen the zenith of the unrest. And I think that it will continue to become more peaceful and more geared towards reconciliation as we head towards Mr. Floyd's funeral on Monday and Tuesday, which will be a private service held in Houston. Now, things around that, I think, could pick up

again. And I think the president always has the ability to get under people's skin. But I don't think we're on the precipice of the Insurrection Act anymore the way that we were, say, Monday. Right. Yes, I think as a practical facts on the ground matter, you're right about that. Here's second thought. The events of the last four to five days have shown how important it is to use responsible rhetoric and to not treat this time as an opportunity to trigger the libs. Look, New York Times published an op-ed by Tom Cotton last night. People went nuts about it, including an awful lot of staffers of the New York Times.

If you read the op-ed itself, I don't agree with it. I don't agree with invoking the Insurrection Act. But the actual text of the op-ed is not threatening. It's not threatening people's lives. It's not threatening, you know, to turn New York into a war zone, et cetera, et cetera. It's a pretty plain vanilla argument in favor of the Insurrection Act. But it's not happening in a vacuum. The Tom Cotton op-ed does not happen in a vacuum. It happens in the aftermath of Trump saying when the looting starts, the shooting starts. It happens in the aftermath of Tom Cotton himself tweeting out no quarter. It also happens in not just words. It also happens in the aftermath of

the photo op attack on Monday. And it just several other videos that show police aggressively moving against otherwise peaceful protesters in other cities. Yes. Yes. And it just reminds me, I think that the cotton op ed asking for more military involvement would have gotten a big reaction no matter what. Of course it would have. But on Earth-2, there is no tweeting about when the looting starts, the shootings start. On Earth-2, there is a patient explanation about how the military can actually, because of its greater level of discipline and training and dealing with urban unrest, actually end violence while it respects constitutional rights. On earth, too, all of those things happen before the op-ed is written that sort of prep the persuasion battle space,

to use the military metaphor, for the idea that, hey, actually, if you're really worried about police brutality, asking the very people who you've accused of brutality to be the sole authority to suppress riots might not make a ton of sense. Why don't we put in place a more trusted and more disciplined and more restrained force very temporarily until order is restored and they'll protect your constitutional rights and they're going to protect your store from being looted? That to me is such a better argument than something that takes place in the aftermath of tweets like, when the looting starts, the shooting starts, or no quarter. Well, leave it to David to make a lovely moral argument for how Earth 2 could be run. Let me make a political one, which is that this was a huge, the backlash itself was a huge win within the Tom Cotton bubble, let's call it.

Yes, yes. I'm not saying it actually will be a win for Tom Cotton, but Tom Cotton could not have asked for a better response to what he wanted than what has happened, which has upped Tom Cotton's relevance within the conversation as a whole. I mean, he's looking to 2024 at this point, and he's got Ted Cruz and Josh Hawley sort of indistinguishable in some ways. And then here's Tom Cotton, who came out early on coronavirus in China

and sort of will have that in his back pocket. And good for him. that in his back pocket. And good for him. And now we'll have, you know, this as being sort of the Senate voice again of the law and order argument and the backlash from the appearing to be woke left and perhaps the overreaction. It's worth noting at the same time, the New York Times published an op-ed on abolishing police departments. Yeah. And I think the New York Times wants to be the paper of conversation starting and the paper of here are ideas that real people are talking about. I think that's a good thing. However, for Tom Cotton, highly relevant. You want to be the center of the conversation on the side that you see as the politically winning side going into 2024. Whether how we will view this in four years as we look back on 2020, assuming we make it.

I mean, Yellowstone, I guess, could blow up at any second now. The aliens may land. This all may be moot in and of itself. But within the Tom Cotton world right now, this was a big win. Yeah, no, I totally agree with that. Totally agree. It separates him from the pack, the Republican pack, and responding to this, the Republican senatorial pack, and responding to this unrest. Absolutely.

And the right has to come to his defense. Yes. And rally around him. Again, I agree with everything you just said that had a different predicate been laid, I think it would have been far more persuasive. I think it would have actually triggered maybe a more interesting conversation than the one we're having. We're having a very uninteresting conversation to me right now. Yeah. And nobody on the right. Not you and I. I mean the country on whether the New York Times should publish the Tom Cotton op-ed. Yeah. Oh, I know. I know. I mean, nobody on the right is going to sit there and say, yeah, that Tom Cotton op-ed threatens people's lives and should never have been published. Like that's just not, that's just not, and even people on the right

who are critical of Cotton's actions or his statements before then are going to still, and you saw it all over Twitter last night, rally to against that impulse to try to knock him off the New York Times op-ed pages. Yeah, now on the flip side, the vast majority of Americans right now are supporting the protests, believe that there is a problem. And, you know, this will get me like all up on my soapbox. So I don't know that what Tom Cotton did

was smart. And I'm certainly not convinced it was good. Right. But, you know, that's not that's not the conversation in the bubble right now. Right. No, I hear you. I hear you. So I want to make sure we talk about Georgia. And I want to set up something that at least had confused a couple readers. So I want to clarify something at the top end. Okay. Okay. So the officers involved in the George Floyd death are subject to two totally different types of liability. Civil liability is when we're talking, you and I are talking about qualified immunity. That's the Floyd estate and the Floyd family suing the officers for money damages. That's where qualified immunity comes in and all those conversations that we were having. Totally separate from that is criminal liability. Yes. Qualified immunity has nothing to do with criminal liability. So I just want to put a nice marker down the road because I'm not sure we were clear

enough that the twain shall never meet. Yes. And so today we're going to talk about the criminal liability side. So you're not going to hear anything about qualified immunity. I know you're applauding. Wait, no, you're booing. You're booing because you cannot get enough of my rants about qualified immunity. So Minnesota Attorney General Keith Ellison has now been put in charge of this prosecution, which in and of itself is fairly unusual. Normally a county or city DA would be in charge of a criminal prosecution. So this has now gone to the state level. So this has now gone to the state level. He included an additional charge of second-degree felony murder in addition to what had already been charged, which was third-degree depraved heart murder and second-degree manslaughter. Depraved heart is usually in quotes. We can

talk a little bit about why that term comes around. And then in addition, they've charged the other three officers with aiding and abetting. David, would you like to talk about the difference in theory between second-degree felony murder and third-degree depraved heart murder. Yeah. So, the difference here between the third-degree depraved heart murder, which was the original charge, and before I go on, I'm going to just say I have to recommend that everyone go to thedispatch.com and read two pieces we have up there that are informing our discussion, both are by a law professor named Ted Samsel Jones, one dealing with the depraved heart murder charge, one dealing with the second degree felony murder charge. So the second degree felony murder charge is not that

he had a greater level of intent. It's that he committed the murder while committing another felony. Okay. That's what, that's what felony murder is, is that if you're committing a felony and then you come and you also shoot somebody or kill somebody or whatever, if you kill somebody while committing the felony, then that is something called felony murder. Let me give the best example of this. It's bank robbery, right? Yes. You go in to rob the bank, and you don't want to kill anyone.

That's not your goal. But you're going to go in with a gun. You're going to threaten all the patrons with the gun, and you're going to go to the teller and ask them for money. So you're committing a felony. You're robbing the bank. a felony. You're robbing the bank. Then someone gets mouthy in the bank or something and your buddy shoots one of the patrons of the bank and kills them. You now can get charged with felony murder because while committing that bank robbery, there was a, you know, totally reasonable probability that someone could die while you're holding loaded guns up to people

while committing a felony. Yes. Now, here's where we're going to get a little wonky. And so I'm going to read you a paragraph and then explain it a little bit. So Minnesota, not every jurisdiction has a felony murder doctrine. So here's our good law professor. Minnesota retains felony murder, but it's a weird form. Of those jurisdictions that still have felony murder, nearly all have adopted what is known as the merger rule or the independent felony rule. Under that rule, the underlying felony, known as the predicate felony, must be separate from the act causing the death. Like a bank robbery, for instance. That's totally separate from the actual shooting of someone. Correct. As a practical matter, that means that the assault and battery cannot serve as the predicate felony for felony murder.

So if I'm punching- And that's worth explaining. Yeah, right. If you're punching someone, you're already hurting them. If I punch you really hard in the head and you fall over and you hit your head on the corner of a table and die, in most jurisdictions, I can't be charged with felony murder. I can be charged with, again, depraved heart, or I can be charged with assault. But in Minnesota, by punching you, I committed a felony. By you then falling and hitting your head, you died. Therefore, in Minnesota, I could be charged with felony murder, and that's unusual. Yes, very unusual. So in other words, the charge is now that Chauvin, the cop, assaulted Floyd, and the assault caused his

death. And as the professor notes, it's a way of seeking a convention of second-degree murder without proving an intent to kill. You can prove an intent to assault, and if the assault results in death, then that is, you prove the assault, you prove the second-degree murder. So that's what has happened. But as our good professor notes, the new charge is mainly symbolic. The felony murder doesn't have a different sentence attached to it. And the bottom line is it's just not that different from the quote-unquote depraved heart murderer. Sounds different, though.

I mean, if you've watched Law & Order, second degree is more serious than third degree. And Minnesota, it's worth noting, has mandatory sentencing guidelines. So the fact that they carry the same potential sentence is very relevant. Yes, exactly. So let's go back to, and this is something that the professor's initial piece, Ted Samsel Jones's initial piece, notes that as horrible as that video was, the cops are going to have some interesting defenses under Minnesota law. One of them that's just a defense that it would apply at any time is, did the attack cause or did the knee, did the hold cause his death? And he highlighted something that I had not been tracking as much.

And that was that the criminal complaint states that Floyd began saying he could not breathe and fell to the ground before Chauvin kneeled on him. And there's video evidence that shows that he was under distress before Chauvin even arrived. And there's a chance the officers believe that Floyd was faking a medical problem to avoid arrest. Obviously, that would have been that would prove to be wrong. But if there was an acute medical event occurring before Chauvin arrived, then he's going to be able to make an argument that he didn't cause the death in the first instance. Yes, although and this is used in law school all the

time, you, David, are at a hotel staying on the 12th floor and you jump out the window. You're going to fall and hit the pavement. I'm on the fifth floor and I put a gun out the window and on your way down, I shoot you. You were going to die anyway. Can I be charged with murder? Yes, I can. Yes. I killed you. It doesn't matter that you were falling out the window, as has been noted in plenty of books and movies. Death is the inevitable end for all of us. We're all dying to some extent. of us, we're all dying to some extent. You know, and you are the MVP of this podcast for bringing up that memorable hypothetical from law school. It's an important day in crim law. It really is. It really is. And the other thing that I think that the professor raises that I think is interesting, which is actually going to go

back to something we talked about in the qualified immunity discussion. I knew we could bring it back. No. of crushing weight or whatever, is what he's been trained to do in rather than doing a chokehold, for example. Yes. Then you're going to begin to get into whether his conduct was so outlandish as to constitute the quote unquote depraved heart or depraved mind that would be necessary to prove the murder charge. Now that is in the police manual right now. However, they also list the times in which it would be appropriate. And it's hard to come up with the eight minutes and 46 seconds appropriate part of that. Yes, exactly. No, I'm not saying these defenses will work. I'm just saying. So to circle back to the having now multiple charges, so there's now,

you know, the two murder charges. And like politically, I think we all get why that's helpful. Legally, I think he also raises a good point. This makes the jury instructions more confusing. And, you know, they can compromise, they can think they're compromising. You can end up with these weird quirks that actually make for appellate issues, where they find something to try to compromise that doesn't actually match the evidence that was presented, for instance. But for me, this just underlines, highlights, like put it in bold, jury selection for this case will be the end-all, be-all determining factor on how this case turns out at the state level. And don't forget, the feds can always follow up with charges of their own.

If you're thinking double jeopardy, you're wrong. The state and the federal government are considered, quote, dual sovereigns and can charge these officers separately because the federal government's charges would be different. Yes. All right. Let's move on to The Last Dance. You know, it's a documentary, but as someone is pointing out to me, it's not a Ken Burns-style documentary because— No, in fact, Ken Burns himself has come out and said this is not journalism. Right. This was Michael Jordan propaganda, but it was really fun, Michael Jordan propaganda. I have so many thoughts.

Let's just be quick. So two of his aides who work for his production company are executive producers on this. And while it has not been publicly stated, it is assumed that he had both control over what it was going to be like and final editorial sign-off as well, probably. Right. Right. And one of the ways you know that, by the way, is that at no point is his personal life mentioned at all over 10 hours. Yeah. His kids, his adult kids make the briefest of cameos. They're barely in the footage. Nothing about his feelings as a father. You know, well, I was, you know, tired that day because my kid had been sick the

night before. Like, nothing like that. Yeah. Nothing about his personal life aside from, you know, what, although it did get, except that it did get pretty transparent and pretty raw surrounding the horrible murder of his father. And I saw, you know, there was some footage of that because, you know, it really took me back because as soon as each moment played, I was telling my kids, I remember that. I remember that game. I remember that. Yeah. We had a lot of fun watching it because, you know, the two years that Jordan's out, the Rockets win. Yes. And so I have like the like that is my childhood memory. Like I went to all of those parades. I had all the T-shirts, you know, I mean, biggest Akeem Olajuwon fan. So for me, like the Bulls are the bookends to my own

NBA history. Yes. So tell me, Sarah, I have lots of thoughts and I actually have a structure for my thoughts. What was your assessment of it? was your assessment of it um overall had a lot of fun watching it recommend it um whether so for instance scott went in very uh jordan skeptic um i went in pretty jordan agnostic i would say jordan actually was just not one of those like i I'm, I'm like a Steve Nash person. Um, yeah. Like I, I tend not to go for the like biggest, um,

uh, John Stark. I remember him really well. Like maybe I just like point guards. I don't know. Um, okay. So,

but I thought it was great. I really enjoyed it. So glad I watched it. One of those fascinating characters of this whole thing for me is Phil Jackson and how he deals with Dennis Rodman, because we've all been there, right? If you've managed a team before, you've got a prima donna and you're trying to figure out how to align the incentives of the group with this individual and, you know, you're human. And so oftentimes you also just want to show that you have the power to punish them and to and you know, you're human. And so oftentimes you also just want to show that you have the power to punish them and to, you know, they can't be insubordinate. They can't

disrespect you because that affects the whole group. And that is not what Phil Jackson did. Right. Instead, um, what you see over and over again is Phil Jackson's like, I'm, I'm not going to give him something to rebel against. Yeah. And it works and he gets the best out of Rodman. And I just found that such an interesting management technique, I guess. Yeah. And part of what made Phil Jackson so effective with, frankly, a team full of potential prima donnas and especially Michael Jordan, maybe the ultimate prima donna in some ways. And Phil Jackson, he talks about how much he studied,

you know, Native American philosophy. And it's just, I think that's a whole separate documentary on management styles. You know, I'm glad you said that because my feelings about Phil Jackson as a coach have evolved considerably as my length of time being a ridiculously monomaniacal NBA fan have extended. So I originally thought of Jackson kind of the way I thought of Pat Riley back in the day and some of these other coaches when they had the constellation of the stars,

which is just roll the basketball out there, man. Right. You know, let Kareem and Worthy and Magic do their thing. Let Bird and McHale and Parrish do their thing. And, you know, so you have this dominant player and then Scottie Pippen, who I don't I think the documentary didn't quite do him justice, how incredibly talented and dominant he was. Some of the supporting cast around Jordan got short shrift, of course, because it's Jordan's documentary. But I had this idea of, you know, roll the basketball out there. And then that kind of modified that, no, really, you got to have some real plans and duh, of

course. some real plans and duh, of course. And then I realized that, wait a minute, it is in the NBA, in professional sports in general, the management of the people is enormous, just enormous. And if we ever doubted that before, you know, we're in this modern era of kind of the players are taking the lead in the NBA. It's this era of player empowerment. And you're really seeing like how many dynasties have just gone to fall in a part, potential dynasties have fallen apart because of that issue of managing personalities. I mean, there was a time when- I mean, Allen Iverson, you talk about practice? We talk about practice? We talk about practice? Like, you know, as a coach of Allen Iverson, you're like, okay, but I do need him to show up to practice. Yeah, exactly. And,

you know, so not only did he handle the Michael, Scotty, Horace Grant combo in phase one. And he then handles the Michael, Scotty, Rodman combo. Then he gets three titles out of and four trips to the finals out of Kobe, Shaq, which was oil and water. And, you know, we've forgotten now because Shaq and Kobe reconciled. But my family, when we were driving to and from church, we got on to reading books on, you know, audiobooks. And we listened to Shaq's biography. Awesome. From years ago.

He didn't like Kobe, man, back in the day. And he got three titles and four trips to the finals. the day and he got three titles and four trips to the finals. And then he comes back and he gets two more titles and three trips to the finals out of this Kobe-Pau Gasol pairing. I mean, has there been somebody who has managed these, some of the most gigantic egos and most prodigious talent in the history of basketball better than Phil Jackson? Well, and like, for instance, I've generally worked in nonprofit arenas where money can't be the incentive. You have to find other incentives to get people to work together and aligned and working hard. It's actually weirdly the same for him because there's so much money. The money also isn't an incentive. Finding them? Who cares?

Yeah, fine. Here's my money, which happened with Rodman, right? It was like an unexcused absence. He was going to get fined. And Rodman didn't even care. He went to Vegas with Carmen Electra during the finals. Um, and Phil Jackson, like there was just no ego in it, which is fascinating to me. So anyway, I love the Phil Jackson part. There's like this whole sideshow going on right now of the Horace Grant versus Jordan. Horace Grant has come out with sort of his own rant on the documentary. I'm very curious of your Horace Grant thoughts. Who's winning that exchange? Well, winning Jordan, because the documentary has received infinity times more

attention than the Horace Grant response. Look, I think that one of the realities, if you're, if you are diving into this from a basketball perspective, But one of the realities, if you are diving into this from a basketball perspective, there is a very strong argument that the first trilogy of championships, the Bulls team in that first three championships was a better team than the Bulls team in the last three. That you have Jordan younger and more athletic. And then also that Horace Grant was better than Dennis Rodman, that Horace Grant was a better wingman, a better player. And that of all of the people in the entire Bulls dynasty who has gotten the least credit versus the actual contribution, it's Horace Grant.

You know who would tell you that? Horace Grant. He's more than willing to take out that billboard. No, I think there's some... I'm not sure I agree with you on the first trilogy versus the second trilogy. And actually, Jordan touches upon this a little. You are right that the athletic ability in the first trilogy is unquestionably superior. athletic ability in the first trilogy is unquestionably superior. Just even just watching the clips, the things that Jordan is doing with his body are baffling and gravity defying.

But in the second trilogy, because he doesn't have that, it's a lot more strategy involved, a lot more court awareness involved. And so it depends why you like the sport of basketball. I think if you like the strategic aspect, you're going to like the second trilogy of championships. If you like the parts where Jordan appears to be 10 feet off the ground and is just a pure ball of muscle mass, then yeah, the first one, fine. Well, and the other thing about the first trilogy is with the exception of that Lakers team that was in the 91 finals, I think he faced better competition in the first trilogy, two of the three years, just as a better team. So I think the 93 Suns were legitimately a scary team for them. No love for the Jazz, man. Now, but see, that's my argument about the second trilogy.

I thought that, you know, but for a few bounces, both the 97 and 98 titles could have gone a little bit differently against a team that was much worse, in my view, than the 92 Blazers or the 93 Suns. And now, of course, that's all quite subjective. We

could argue about that forever. But as our extensive NBA playtime also like, yes. And so I know I'm drawing from a vast reservoir of experience. Yeah. But wait, I have another question for you. OK, this is on Michael Jordan, right? You have Michael Jordan thoughts, Michael Jordan as the sort of human person. And while this documentary was more or less made by Michael Jordan, you don't necessarily come away liking Michael Jordan. And so the two main things I want you to discuss are one, Michael Jordan's made up grudges as motivation. And two, Michael Jordan's sort of regret versus peace

about his own life and career? Okay. Yeah, number one is easy to talk about because it's just legendary. It's kind of one of the most talked about aspects of his life is that not only will he just make something up like that famous lie about LeBradford Smith saying, nice game, which empowered Jordan to score,

drop 30, to go back into Washington and score 36 points on Smith in the first half. And just made up. But his competitiveness is legendary. I mean, you got a picture of it as he seems to be frustrated when he loses in that game of what, pitching quarters or whatever it was. And there's stories of him losing in ping pong. And then he buys his own ping pong table, trains furiously so that the next time he plays ping

pong, he's just wiping the floor with everybody. That's all what made Jordan, Jordan. Now, the second part of your question is super interesting to me because. Because I think they're tied together a little bit, by the way. I think the personality type is all the one ball. I think they're just together a little bit, by the way. I think the personality type is all the one ball. I think they're just different sides of it. So in 98, I remember because everyone was conscious in 98 that this is the last dance. And I remember watching the game, game six against Utah at my house. He hits the shot. And I said to the guys who I was watching it with, remember this so vividly, I said, that is how you retire. You hit the shot.

You know that, you know, that you're fading, but you leave on top. I mean, and there is this perception from a lot of people, and it's one I carried forward for years and actually still had part of it in my mind, even going into this documentary, that he really was fine with it being the last dance until he got out of the game for a couple of years and wanted to test himself against some of the new rising stars. What the documentary makes clear is this was not intended by him to be the last. And at the very end, they show him a clip of, was it Reinsdorf explaining why? And it was the time Jordan got emotional. It was so poignant to me that he felt like he left something, he left the game before he had given it all he could. And that he wanted to go as far as he could go with that team and win as many championships as he could. And it seemed to just really bother him now, all these years later. And you really

began to see why throughout the whole documentary. I mean mean that competitive fire in that guy has not gone out and and it's not as if it doesn't feel like it's mellowed with age it's if anything he seems like what was really interesting to me was how transparent he was willing to be about what a and a giant ass he was to his teammates like he was totally fine with all of that stuff coming out and getting the inside story of the famous punch of Steve Kerr. Yeah, I like that story. And how he just wore out his teammates. And so he was totally,

you could tell that fire still burns and he is not at all, he is not at all ashamed of it. And yet, and because that fire still burns, he's still in pain that that team broke up. I just want to, if you haven't watched this documentary, let me just read you this one thing that Jordan says. I mean, winning has a price and leadership has a price. So I pulled people along when they didn't want to be pulled. I challenged people when they didn't

want to be challenged. And I earned that right because my teammates came after me. They didn't endure all the things that I endured. You ask all my teammates, the one thing about Michael Jordan was that he never asked me to do something he didn't effing do. When people see this, they're going to say, well, he wasn't really a nice guy. He may have been a tyrant. Oh, well, that's you because you never won anything. I wanted to win. I wanted them to win and be part of that as well. Look, I don't have to do this. I'm only doing it because it's who I am. That's how I play the game.

That was my mentality. If you don't want to play that way, don't play that way. Yeah. And then he has tears in his eyes and asks for a break from the interview. Yeah. I felt like that moment. That sort of summarizes the whole documentary. I think it summarizes the guy, which is why he had those tears in his eyes. It was almost like,

I'm finally telling you. This is me. I'm free of the Gatorade commercial. I'm, you know, be like Mike. I'm free of Space Jam. I'm free of all that. And this carefully cultivated image. And I'm telling you right now from the depths of my soul, this is who I am. Well, and that's a part that I could again have a whole, I want a whole documentary on Phil Jackson and I want a whole documentary on, or at least I wanted more in this one on the image stuff. They touch on it a little with Republicans by sneakers too. Yeah. Uh, when he was asked to endorse in the North Carolina Senate race against Jesse Helms,

but you know, you have someone who very few people achieve this, right? Oprah, um, achieved this, uh, I'm trying to think of other Madonna. I don't know, like all these people, maybe one name kind of achieved this. Michael Jordan achieves a level of fame and household notoriety far beyond his job. Yeah. He was not NBA player Michael Jordan. He was just Michael Jordan. Yeah. And that comes at a cost that I think we know of, which is obviously your personal life, like your privacy, anything like that's gone. Fine. But that happens to a lot of celebrities. But this comes at a cost of you don't get to say things, to speak about things, to have yourself shown is instead a version of what people want you to be.

Mm-hmm. And Michael Jordan weirdly seemed fine with that. And it wasn't really about the money, I don't think. Right. And we never really got into like, well, you're this hyper-competitive person who you do know who you are. You do have a sense of self that is um kind of i mean extreme but you were very comfortable playing this persona as well uh which is fascinating to me yeah yeah it is it is absolutely fascinating absolutely fascinating and you know the thing i felt like at the end of it i I felt quite sympathetic towards him about was this is a guy who just was not a political athlete. And in that way, it was one of the things that felt more dated about the culture of how the 90s were different from today. It's hard for me to imagine him being in this super saturated political environment and not

be dragged kicking and screaming into it uh more than he than he was and race by the way is not mentioned really throughout the documentary not much at all and and that sort of had almost a will smith aspect to it for me of like in the 90s, you know, getting beyond race was seen as an achievement for a black celebrity in a way that I don't think that would be as celebrated, obviously, today. Right. Okay. So let's end with this. I have, I think, four questions for you. And this is based on, they can be quick. The answers are quick. So The Ringer, which is Bill Simmons' podcast on The Ringer, which is outstanding, and I listen to it all the time. He has been breaking down, he broke down this documentary episode by episode after it was

aired. And at the end of it, they went through what they called the six lies of the documentary. Now, not all of them are interesting enough. So here are the interesting ones. And this is Jordan. I don't have a gambling problem. I have a competition problem. I don't have a gambling problem. I have a competition problem. Sarah, truth or true or false? I believed him. Okay.

Okay. I believed him. I think the best defense... And I also, by the way, not for a second, believe that he would ever throw a game to win money, which maybe goes to why I believe him. True. It's competitive for him. Therefore, if anything, he's going to bet on himself. So this idea that he threw games is wackadoodle to me. Of course he didn't. Well, although the guys on the podcast said, one of the reasons why they said that was,

they were skeptical, is that he's the kind of guy they said who could look at two ants crawling on the sidewalk and he would be immediately taking action on which ant would hit the first crack next. So or hit the hit the hit the next crack first. OK, here's another one. I never pushed Brian Russell in game six of the 1998 NBA Finals. You know, I actually rewound that last night to watch it again. That's tough. I tend to believe that the amount of pressure that was on his leg is de minimis, but that technically under the rules of the NBA, there is no de minimis exception if there was any

pressure. So do I think it was a foul? Probably. Do I think it actually changed the game? No. Okay. As in, if they had called the foul, it would have. But like, no, I don't think he pushed him enough that it moved him. I, see, I, I was, I've spent years of my life thinking he pushed off. Yeah. I had to issue a public correction in my newsletter, a public apology for my oft-privately expressed opinion. I think that they're correct that all of Russell's momentum was in the direction he

was heading and that the contact was completely incidental. He did not provide additional momentum that Russell was heading there anyway. All right. Are you ready for the next one? Yeah. I did not keep Isaiah Thomas from the dream team. No. But Jordan himself, I mean, I get that he said that.

But then when he explains it, what he's saying is I alone did not keep Isaiah Thomas from the dream team. Other people also had Isaiah Thomas beef. Yeah. Yeah. So Simmons says this, the hatred between the two of them was enough at that point that they knew Jordan is not playing if Isaiah is on a team. So in a weird way, he's not lying because he never said it. Yeah. But they knew he'd never play with them. Yeah, yeah. And like, also, I don't doubt that other people had some Isaiah Thomas beef, but they needed Jordan on that team. Right.

Yeah, oh, absolutely. All right, and the final one. After a messy breakup, like, you're definitely taking sides in that. So here's the final one. I was poisoned by a pizza during the NBA finals. So I didn't know any of that. And boy, whoa. I do have questions, though, which I expressed last night to Scott.

I was like, OK, you certainly don't anticipate Michael Jordan calling and ordering a pizza from your place. But let's even assume that once the call came in, they knew that Michael Jordan was ordering that pizza was going to eat that pizza. And these rabid Utah fans, you know, were like, ha, we've got our opportunity. You've got a limited amount of time then to figure out how to poison that pizza. And David, right now, I'm going to give you 10 minutes. What are you putting on my pizza that you know will cause actual food poisoning, not indigestion? He gets like the flu type food poisoning. I have no idea how I would poison someone. I have no, I have absolutely no idea. Give him 10 minutes to prepare. Isn't there a medicine that induces vomiting called like Ipecac or something like

that? Yeah, but that's not what he had. Right. He had food poisoning, which I've only had once in my life. And I really thought I had the flu because you don't actually have normal food poisoning symptoms. Right. I don't know. But what's an interesting postscript is there's a guy who came forward who claimed to be the person who delivered the pizza. His name is Craig Fight. He's a Bulls fan who was living in Utah. He says he was an assistant manager at the Pizza Hut restaurant, delivered it himself with one other person. There wasn't a gang of people. He said it was a large, thin, and crispy extra pepperoni pizza.

And he just says the five creepy guys part of this is just total fiction. So I cannot independently, listeners, I cannot independently verify Greg Fite's identity or Greg Fite's story, but I'm just quite irresponsibly throwing it out there anyway. There are holes. There's holes in the pizza poisoning story. To be able to poison someone like that, you need to have basically salmonella on hand. And I mean, unless Pizza Hut just keeps a vial of salmonella in case of NBA rival calls, it would be hard. Like I could not poison you in my house right now with real food poisoning salmonella. Right. I mean, maybe I could not on purpose, not on purpose. By the way,

side note of quarantine is the worst part. Like when you go to a restaurant and get sick, you're like, oh, those people, blah, blah, blah. But over the last three months when I've food poisoned myself, I just feel like an idiot. Oh my gosh. Yeah. I have never had a full on case of food poisoning. That is. Yeah, I did last year, and I think it was Pico de Gallo related. That's why you got to stick with the queso burro, Sarah. That's right. There's no pico on the queso burro. That's exactly right. That is that it would be a grave breach of corporate policy.

All right. That is it for this podcast. I think we finally gave our culture topic enough time. Don't you think? Probably too much. Too much. Well, thank you all for listening. This has been the Advisory Opinions Podcast with David French and Sarah Iskender. We'll see you next week.