Advisory Opinions - Betrayal of the Law Firms

Episode Date: March 25, 2025

Sarah Isgur and David French give us an update on the Paul Weiss legal drama and the frontal attacks on the law firm from the Trump administration. Plus, video dissents and a bill tackling injunctions. The Agenda: —The deal —The Texas Lawbook responds to Trump administration —Skadden Arps and the backlash —Paul, Weiss chair's Sunday afternoon memo —Dinesh D'Souza, for some reason —The Dissenting Judge —The end of universal injunctions? Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Terms and conditions apply. Ready? I was born ready. Welcome to Advisory Opinions, I'm Sarah Isger, that's David French. The Paul Weiss Saga continues. We now have a Skadden associate who's entered the chat. We'll talk about all that, but that's just the amuse-bouche to get to the video dissent from Judge Lawrence Van Dyke of the Ninth Circuit on a Second Amendment case. And finally, a new bill trying to tackle injunctions that will lead us into our next episode's

conversation with a special guest. So all of that to come on Advisory Opinions, plus some fun stuff at the end. David, do you want to update us from the last episode on what has happened in the Paul Weiss saga? Yes. Yes. A lot has happened since the last episode. Enough happened that I was joking at about midnight that we need to just go ahead and record an emergency pod over the weekend. But it really is, this is a very interesting turn of events that just keeps getting more interesting every new detail. So as advisory opinions, loyal advisory opinions, listeners will remember, we talked about the executive order that Trump signed that was a direct attack on Paul Weiss that was very similar to its video, I mean, its video, his order on Perkins Cooey.

So stripping of security clearances, barring from access to federal buildings, examining to whether to see that contractors for the government were working with Paul Weiss. Just a direct frontal attack on the law firm, no question. Can we just spend just a second to explain that contractor thing? So not only was the government, any agency not allowed to hire Paul Weiss, obviously, but Paul Weiss clients would have their government contracts at risk because of this order that potentially if Paul Weiss was your lawyer that then your government contracts could be pulled if you were fill-in-the-blank

fortune company and I don't know probably at this point most major companies in the United States have a government contract or two, even the ones that aren't known for government contracts, right? Yeah. I mean, think of it like this. Imagine that this is not a stretch. I don't know if this is the case or not. But it would not be a stretch to imagine that Paul Weiss would represent Boeing, for example.

And Boeing just landed this sixth generation fighter contract, which is probably going to be worth hundreds of billions of dollars. And so if you say, well, we might pull the sixth generation fighter contract, is Boeing going to call their bluff? Right. Which one is Boeing going to pick? The contract or Paul Weiss? Right.

Right. Exactly. And so this was, and we'll talk about this in a minute, I mean, it really was an existential threat to the firm. This sort of idea that anybody who does business with the federal government can no longer do business with the federal government if Paul Weiss is their lawyer. Okay, blatantly unconstitutional. We've gone through all of that analysis, but let's talk about what happened facts on the

ground. So a few days after this order, there is an announcement of a settlement between Paul Weiss and the Trump administration. And Trump, and I'll read from part of this, it says, today, President Donald J. Trump agreed to withdraw his executive order because Paul Weiss had entered into an agreement with the president. And it number one, Paul Weiss agrees, the bedrock principle of American justice is that it must be fair and nonpartisan for all. Our justice system is betrayed when it's misused to achieve political ends. Paul Weiss affirms its unwavering commitment to these court ideals and principles and will not deny representation to clients, including in pro bono matters and in support of nonprofits

because of the personal political views of individual lawyers. Paul Weiss will take on a wide range of pro bono matters that represent the full spectrum of political viewpoints. Paul Weiss affirms its commitment to merit-based hiring, promotion, and retention, and will not adopt, use, or pursue any DEI policies. Here's the one that really is a core part of the controversy. It says, Paul Weiss will dedicate the equivalent of $40 million in pro bono legal services over the course of President Trump's term to support the administration's initiatives, including assisting our nation's veterans, fairness in the justice system, and President's task force to combat anti-Semitism. assisting our nation's veterans, fairness in the justice system, and presidents task

forced to combat anti-Semitism. Before we go on any further and we get to sort of the internal Paul Weiss explanation, Sarah, when you read that laundry list of quote unquote concessions to Trump, what did you think? I thought they weren't conceding much. Right. So on the one hand, I didn't think Paul Weiss conceded much of anything, right?

Like they're not gonna continue doing unlawful hiring. Like, well, they're never gonna concede that they were doing unlawful hiring. No, they're never gonna concede that, right. And doing pro bono projects, you know, and the Paul, there are, there's two slightly different versions of this settlement, right? There's the version that Trump put out and the version that Paul Weiss put out.

And so you notice in the Trump version, it says that they will commit $40 million to administration priorities to be mutually agreed upon. In the Paul Weiss version, it says commit $40 million to projects that include, and then it lists veterans, anti-Semitism, et cetera, to be mutually agreed upon. It still included that. So I thought to myself, I'm sure Paul Weiss was jumping up and down to agree to this, but it's a belling the cat problem.

I don't know exactly how to describe it, but right? Paul Weiss is facing an existential threat. Paul Weiss does what's in the best interest of its law firm, its thousands of employees and its clients, and it can still be really bad for the legal profession. Yeah. Yeah. And for the rule of law and for the principles at stake and all of that.

And I'm not the chairman of a corporation with thousands of employees. I can't imagine how difficult that decision would be when you're faced with, I'm not the chairman of a corporation with thousands of employees. I can't imagine how difficult that decision would be when you're faced with, you don't have to do anything different, concede anything, and you can make this go away. But in order to do so, you're going to have to give Trump this big rhetorical win and undermine others. Well, and Sarah, I'm glad you went to that transition because we now have the email from the chair of Paul Weiss,

Brad Karp, this is thanks to our friend David Latt. And here's the email from him to the Paul Weiss community sent yesterday afternoon. And there's some doozies in this one. Oh my gosh. Okay, here we go. You wanted us to protect the legal profession? Uh-huh.

Yeah, yeah, okay, I'm not gonna ruin this. Yeah, yeah, you can't, like, steal my thunder here, Sarah. All right, here we go. So, dear members of the Paul Weiss community, I wanted to take this opportunity to speak with all of you regarding more fully about the events of recent days. I know that this has been a profoundly unsettling time for all of you. Information gaps have been filled with speculation, concern, and misinformation, and I wanted

to take this opportunity to address your concerns directly. Late in the evening of Friday, March 14th, the president issued an executive order targeting our firm. Since then, we've been facing an unprecedented threat to our firm, unlike anything since Samuel Weiss first hung out a shingle in downtown Manhattan on April 1, 1875, almost exactly 150 years ago. And this is to your point, Sarah. Only several days ago, our firm faced an existential crisis.

The executive order could easily have destroyed our firm. It brought the full weight of the government down on our firm, our people, and our clients. In particular, it threatened our clients with the loss of their government contracts and the loss of access to the government if they continue to use the firm as their lawyers. And in an obvious effort to target all of you

as well as the firm, it raised the specter that the government would not hire our employees. Here's where it gets interesting, Sarah. We were hopeful that the legal industry would rally to our side even though it had not done so in response to the executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Cooey,

and we waited for firms to support us in the wake of the president's executive order targeting Paul Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys. Whoa. Should we stop right there for a minute? Can we stop right recruiting our attorneys. Whoa.

Should we stop right there for a minute? Can we stop right there? Yeah. Yeah. Yeah. So this whole time, you know, I was complaining that the law firms, the legal industry was not banding together against, again, what I think is the biggest threat to come out of the Trump administration.

And it's nowhere close. And everyone's focusing on the immigration stuff. But frankly, the president has enormous latitude in the immigration context. The question over whether he ignored a court order is at least nuanced. And yet everyone was ignoring what was happening over here with Paul Weiss. And I was complaining about the silence. And I got these emails like, what do you want them to do? Well, how about this? How about not try to poach clients and steal lawyers? Like take advantage of the situation.

Can we start there? Yeah. I mean, you know, there's a very, there's actually kind of easy answer to what do you want us to do. And that would be, well, at least one of you needs to represent Paul Weiss in court and all the rest of you guys need to file amicus briefs or and along at the same time that you put out public statements about this and at a minimum

like that that's what you should do if you care if you care what's happening and then in a minimum you don't just try to go ahead and destroy the wounded firm like you're a pack of hyenas trailing some antelope. I mean, what on earth is going on? But that was according to the chairman of Paul Weiss who's speaking in his own interest to try to defend this thing that has been very unpopular within his firm and within the legal profession. But he does get a little backup,

slightly different to the point, but nevertheless, I think shows the mood in these law firms. Texas law book is a, well, you the point, but nevertheless, I think shows the mood in these law firms. Texas Law Book is a, well, you can guess, right? It's a legal media outlet based in Texas with some very good reporters at it. Here's some of their reporting from this weekend, David. Texas Law Book reporters working on three different stories this past week involving three different law firms suddenly found doors closed to cooperation by the lawyers they planned to interview. Two of the cases involved pro bono representation in asylum cases. The third was a firm handling a health care matter involving a gay military veteran. Lawyers

at the three firms made it clear to law book that they stopped cooperating with our reporters because they fear reprisals against their law firm or their clients by the president or other political leaders who support him. One lawyer whose firm represents large financial institutions and matters such as public bond issuances said that a member of Texas Attorney General Ken Paxton's office made it clear that Paxton's team could make things very difficult for his firm and their clients doing business in Texas. So David, on the one hand, you have Paul Weiss chairman Karp's version of this, where they're like trying to pick over the bones of a wounded, you know, wild beast here. And the other version is that, and this is according to multiple reporters at this outlet,

working on multiple different types of stories, they're very much bending to this. They are afraid of reprisal, they want to avoid reprisal. In doing so, they are very much bending to this. Yeah, they are afraid of reprisal. They want to avoid reprisal in doing so. They are turning away client matters. They're changing how their firms operate so as not to get EO'd. And when the Texas Attorney General threatens them with a potential EO, like, hey, I can call the president and like make this hard for you. No, no, please don't.

Will change? Yeah, wow. Wow, Sarah. And then it's just getting worse because Dinesh D'Souza put out a statement saying that Skadden Arps, which we'll figure into the story here in a little bit. Quite good actually.

Is a firm engaged in systematic lawfare against 2000 mules, says Dinesh D'Souza, that they have 17 attorneys working pro bono. Now, 2000 mules is the trash documentary that D'Souza put out that has resulted in defamation lawsuits. A person being wrongly accused of being, you know, of stuffing ballots,

enduring hell on earth as a result of that. There have been apologies and retractions of 2000 mules by major conservative media outlets. So rather than sort of saying, shut up Dinesh, how about not making a defamatory documentary, Elon Musk comes in and quote tweets that and says, Skadden, this needs to stop now. So we're in a, and again, Sarah, like-

Which I read, I assume you read it this way too, as a direct threat, Skadden. If you don't drop this pro bono representation, which means they're not making any money off of it, then we will EO you in the same way we did Paul Weiss, which will mean any client that has a government contract will basically have to drop you as a law firm. Yeah, and this, we're getting into why Sarah and I

were both so alarmed last week. You can begin to see that this attack, an attack on the legal profession like this is fundamentally an attack on your ability, any person's ability to receive justice and to defy the administration and power. And so what they're doing is they're essentially hacking the Bill of Rights in a way, because they're saying, well, you know, nice little First Amendment you've got there.

But you know, if you actually go to court to try to vindicate it, it will destroy your lawyer. But wait, that's not the end of the story. It gets worse. So then on Saturday, the Trump administration, after the Paul Weiss settlement is announced, puts out a new memorandum called Preventing Abuses of the Legal System and the Federal Court. It ordered Pam Bondi to recommend revoking attorney security clearances or terminating law firms federal contracts if she deems their lawsuits against the

administration unreasonable or vexatious, and authorizes the attorney general and the Secretary of Homeland Security to sanction law firms that file lawsuits that they deem frivolous. Now, this all is like step one, step two, step three, step four and five, by the way, I still think are coming because they followed every other step so far that we warned about, David. So here's what this means. There's something called Rule 11 in the federal rules of civil procedure.

And that is when you feel like the other side has done something, acted in a way, filed a motion that, or the lawsuit itself, is so without merit as to be deemed frivolous, you can file for Rule 11 sanctions if they are being frivolous or vexatious on the other side. We've talked about show cause orders that judges may issue. This is basically a judge raising their hand

and being like, anyone wanna move for rule 11 sanctions? It's an incredibly high bar. The things you have to do to get rule 11 sanctions, actually sanctions, it has to be like really, really intentional. And so I think at first a lot of folks were like, oh, well, they're just holding this to like rule 11 standards. No, no, no, no, no, no.

They're using some of the words of rule 11. I'll give you that. But what this says is, if we think that the lawsuit you filed against us is unreasonable, we're gonna EO you like Paul Weiss. And you just saw what happened to Paul Weiss and you just saw what they had to agree to, and you saw the major victory

and how other law firms treated them. No one's coming to your defense. So you still want to file that lawsuit on behalf of those Venezuelan potential gang members? Or you want to stick to what you were doing best, which is paid corporate work. And David, this is the next problem, right? Is that when they start targeting individuals

and those individuals go to these law firms, any law firm, and are like, I need representation, I'm willing to pay. Are those law firms gonna take those cases? Yeah. I mean, like I said, this is in a lot of ways, this is actually hacking the whole system because how can a counter-majoritarian bill of rights, how can counter-majoritarian constitutional provisions work if you don't have access to the courts?

I mean, that's, I mean, you know, what they're showing is that the American system is vulnerable and has always been extremely vulnerable to people who sort of have no lines. There isn't a line that they won't cross. And so there was this, you know, I've walked through this before, you know, but when the anti-federalists looked at the presidency, they said, this is too much, this is too powerful. And that the federalists answered with sort of two arguments. One was, no, we have impeachment, it's the fail safe, and we know that's just gone.

And then their other argument was actually kind of in the form of a person, George Washington, who actually put in place the model for what an American president is supposed to be. And it was a model of rectitude, probity. And if someone does not care about that model, and a few presidents have not cared at all over the course of our history,

but if somebody does not care about that model at all, and Congress is completely prostate, prostrate. completely prostate, prostrate, Congress is prostrate before the presidency, then the system will crumble. It just, and we're watching this happen right in front of our faces. I also think it really matters on the margins. So I still think that law firms will do the big stuff.

But will they do the little stuff? Like, for instance, Donald Trump just announced that he was replacing an interim U.S. attorney in New Jersey with another interim U.S. attorney in New Jersey. And David, I don't know all the ins and outs of this, but once an interim US attorney has been ratified by the district court, which is how that person serves as an interim instead of an acting, is they're actually there by the grace of Article Three, basically.

My reading would be that a president can't replace an interim with another interim, that in fact they can nominate someone and that person can be confirmed and they would supplant the interim US attorney. But attorney. But what law firm's going to take that on right now? Because like, who really cares? But it would have been the case that someone would have taken that on, but now when there's this huge looming threat on the other side, they're just going to have to weigh that for every case. And I think it absolutely will make a difference as we're already seeing with these law firms running to the hills.

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Yeah. Represent them. And in this case, by the way, again, shout out to Williams and Connolly, who's representing Perkins-Cooey, who is challenging the order against them, and Quinn Emanuel, who took on the Paul Weiss representation and negotiated the settlement, which again, I get that everyone wants to beat up on Paul Weiss. You weren't sitting there facing unemployment, no health insurance, for thousands of employees. I get that it was an unlawful order, but that's the whole genius of it. Having the order replaced doesn't fix the problem. Not really. The threat is still there. Your clients still know Paul Weiss had already publicly been dropped by

one of its biggest clients. I believe the CEO of Cognizant, which is a Fortune 5 company, I think, David. And the CEO cited this as the reason. So, shout out to those two law firms for doing what you said, David. And then as far as amicus briefs from all these other law firms, I agree that's a minimum. However, enter Skadden Associate. So David, you and I talked about this idea of instead of asking, why me? Yeah, that we need a lot more Americans asking why not me, right? If you're in the position to do something, you should do something. And it is with that mind that while a lot

of people have been dunking on this scab and associate, and a lot of people have been heralding this scab and associate, I felt like we needed to clarify what we meant by why not me and the difference between hashtag activism and actually thinking through how to make a difference in large organizations. Because unfortunately, I think we have a whole generation

that thinks hashtag activism is actually activism. You're like, well, I tweeted something. Yeah. So let me read her email. This was an all firm-wide email with gratitude and urgency. Many deals I work on have concepts of conditional notice. This is mine. Please consider this email my two week notice revocable if the firm comes up with a satisfactory response to the current moment, which should include at minimum one, signing onto the firm amicus brief in support of Perkins Cooey and its litigation fighting the Trump administration's executive order against it. Two, committing to broad future representation regardless of whether powerful people view it as adverse to them. Three, refusal to cooperate with the EEOC's request for personal information of our

colleagues clearly targeted at intimidating non-white employees. Four, public refusal to fire or otherwise force out employees at the Trump administration's directive or implied directive. And five, public commitment to maintenance of affinity groups and related initiatives. Well, as you can imagine, they immediately turned off her email and terminated her. Like, two weeks? How about now? David, I take her point. She is an associate at one of these law firms and she thinks more needs to get done. I think more needs to be done. You think more needs to be done. But what did she think would happen? So this person is two and a half years out of law school.

She graduated from our law school, David, for what that's worth. And so she sent a firm-wide email threatening the firm if they didn't do what she wanted, then she would resign. What did she think they would do? Like if they said yes to that, then they're going to get a whole lot more firm-wide emails with associates with random demands about the coffee machine. This is not to minimize her point, but rather, did you think through what it would mean to

be the head of Skadden Arps, an international law firm, and receive this email? Did you think that that would get you the result that you wanted? Because if you did, we have a problem. If you didn't think that it would, and you thought, well, of course, they're not gonna do these things, and of course, they're gonna accept my resignation, then this wasn't actually to make a difference

or to change anything. It was just to get a lot of publicity. I was so happy to unpack this because I have such a totally different feeling about a different scenario. And I wonder why I have such a totally different feeling when I'm not sure my scenario is actually as different as I think, okay?

So, because all of my responses to this preemptive quitting were the same as yours. Like, wait a minute, this doesn't, what did you think was gonna happen? This feels performative, although they actually did, go ahead and immediately remove our access to firm systems. So there was actual consequence. But I feel so very different about this letter,

the way it was done. I will quit if you don't fulfill my list of demands. And imagine another letter that says, I'm very sorry, I need to quit because you did not sign on to an amicus in support of Perkins Cooey or in support of Paul Weiss. That second thing, I think, I admire that a great deal. You've said there was a thing that I wanted you to do,

even though I'm not very much of a power player in this firm, I asked for y'all to do this, I think this is really, really important, you chose not to do it, therefore I can't work here. That seems very honorable, very putting your money where your mouth is. very honorable, very putting your money where your mouth is. This, you know, I had an instinctive negative reaction to it that I did not have and would not have to an actual letter,

a public letter of resignation following the firm deciding not to take an action that they wanted, that the associate wanted them to take. Am I wrong on this? Is that how you see it as well, that there's a big difference between A and B there? Absolutely. I mean, a lot of my negative reaction was the very condescending tone about conditional notice.

Like, the whole start of it was, you know, I have a better moral compass than you. I know how to handle this whole situation and you clearly don't. People who run this multi-thousand person corporation that I've worked at for two years at the very beginning of my career, instead of any acknowledgement that this is pretty hard if you're an individual law firm. And again, I think she and I agree that the law firms should be banding together should be doing more. But I'm deeply concerned if you think this is how you change things. And so David, I think it's worth just expanding on

this. When we said why not me? I think yes, for instance, resigning with a letter as to why and making that letter public. Yeah, because you're putting your money where your mouth is, right? I'm at one of these law firms, I'm benefiting from the hiding, if you will. And so why not me?

Why not me being the one to stand up? Also though, oftentimes you can't make it about you. And maybe that's where I feel bad about what we said. Sometimes you were in a position where you are the person it's about, and you have to make a choice of whether to let someone else do it or you do it. But that doesn't mean you insert yourself

into something either. And I feel like what has happened since then is I believe she is involved in circulating this letter that they're calling an open letter that associates from major law firms are signing, except they're not putting their names on it, David. They're putting their law firm and what year they graduated from a law school. I have no idea how they're verifying that any of these people actually work at the law firms they're saying.

Maybe they are. That's the opposite. Put your name on it and accept the consequences. Yeah. Or don't because what do you think this letter's effect will be when the law firms are like two associates at our law firm think we should do this stuff. We don't know who they are. They didn't have the guts to put their name on it and have any consequences. That is pure hashtag activism, David. It is purely performative so they can tell their friends

that they signed it, but not actually publicly have their clients see it, have anyone in the law firm see that they signed it. And yet they feel like they've done something with, again, no thought process of how you actually change large organizations and change their behavior. And so they're bragging about the fact that now they have, you know, 1,400 signatures or something. It's useless. Those signatures are worthless. They don't have names

on them. Well, and let me just say, I, in the spectrum of responses, as much as I disagree with the preemptive resignation with list of demands, I respect that far more than just anonymously signing a letter. Open letter, and I put open in quotation marks because it's not open if it doesn't have your name on it. You just have 1,400 anonymous. Yeah. Yeah, yeah. But you know, the bottom line here is the associates of these firms are far less equipped to respond to this moment than the leaders of these firms and the CEOs of their clients. These are the individuals who are the key players here. And if I were

an associate right now, and I belong to a firm and it did not sign an amicus brief or decline to represent one of these institutions, I think it would be a very, very honorable thing to quit. I do not think that you have to. I think it would be a very, very honorable thing to quit. I also think you could go talk to the partner that you do the majority of your work for and tell them that you're willing to work on any case involving this, sign your name

to briefs as the associate and take any consequences that may come from fighting these sort of things. The amicus brief, taking on unpopular clients, that you are volunteering to do that work as an associate. Yes. That's how you change organizations, show your willingness to be one of the people who's going to fight it. Step forward, offer yourself as tribute.

Yeah. Absolutely. That's why not me behavior. Yeah. This is about me behavior. Yeah, right. Right. No, and, but you know, to kind of close the loop on the Paul Weiss situation, you had the very next paragraph

in that letter from Brad Karp that we talked about. It says, we initially prepared to challenge the executive order in court, and a team of Paul Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata in the administration.

We could prevent the executive order from taking effect, but we couldn't erase it. Clients had told us that they were not going to be able to stay with us even though they wanted to. And I think that this is something, you know, if you've been in New Right circles or been familiar with New Right arguments, they've always made this argument from the beginning of this sort of era, which was the left has bullied corporate America into adopting our agenda. We can bully corporate America too. And you know, there was a response to that, a long time

response to that was no, no, no, you're misreading the situation that corporate America is actually, these are actually the values of the corporation that they America is actually, these are actually the values of the corporation that they're advancing, right? And that the left hasn't bullied these corporations into embracing it. These corporations are full of employees who have certain values.

And okay, I'm not gonna say that's not true at all, but what has absolutely been established as true is by golly, these corporations can be absolutely bullied like they're a third grader and a seventh grader comes and pushes them over in the playground. So David, a lot of folks have been saying like, well, good for the goose, good for the gander. If the left was bullying these places, then now the right gets to bully them and that'll teach the left.

To which I say like, okay, well, I think this is worse because you're using the full force of the legal system and the executive branch to do so and the federal government as an actual real legal penalty, not the social opprobrium that I think the left was mostly using to bully corporations. But even so, I can still be against both. However, I do want to point out one part of this where I think the left was far worse than what the right is doing in this Paul Weiss settlement. We talked about sue and settle. That's where friendly organizations sue the Obama administration, for instance, has happened the most under them. Then they settle to get a policy change that actually everyone liked, but the Obama administration couldn't do without going through notice and

comment or going to Congress. So instead, it's a settlement signed off by a judge that no one can go back and change. Okay, there's also third-party settlements. This is where the Obama administration sues a corporation for doing something wrong, polluting, or employment discrimination. I don't know, pick your thing.

It's like a regular DOJ civil lawsuit. And that organization agrees to settle for $50 million. Rather than give that $50 million to the US Treasury though, this happened during the Obama administration, they would agree that they would give the money to a third party, to nonprofits agreed upon by the Obama administration. And while these are nonprofits that don't have partisan affiliation,

spoiler alert, a lot of them had ideological leanings. They were environmental groups, voter registration groups, things like that. When Jeff Sessions came in as attorney general, again, I worked for him, he made a letter, whatever, saying no more third party settlements, and no more sue and settle, by the way. When Biden came in and Merrick Garland was attorney general, one of the first things they did was rescinded that so that they could start these third party settlements again,

in my view, channeling tens of million dollars to their friends who were out running these nonprofits. This, at least with the Paul Weiss agreement, is $40 million of pro bono service. It's not direct cash transfers to your friends on agreed upon people who need legal representation. The third party settlements to me, David, actually seems like a worse corrupting thing than this. For just this minimal part, just the $40 million pro bono. I would agree with you if the original lawsuit had no basis.

So, for example, in Sue and Settle, I mean, not Sue and Settle, if we keep doing this, third-party settlements, presumably, although I would not presume enough to know that this is the case, the original lawsuits. You're right. Yeah.

They weren't trumped up lawsuits. Right. Exactly. The problem was the settlement, that reeks of corruption. That settlement process reeks of corruption. But the initiating lawsuit, presumably meritorious. This is the outcome here, the 40 million, I agree, is less egregious than sending, say, 40, imagine if, you know, $40 million went to America First Legal Foundation founded by Stephen Miller.

Like that would be a comparison to what some of the things that happened in the Obama and Biden administrations. That would be worse than for a vague promise of $40 million of pro bono help. I mean, the way this is actually written, you could see that Paul Weiss could be fulfilling the terms of the agreement by suing Candace Owens, Joe Rogan, and Tucker Carlson for some sort of antisemitism related issue because they're told they're supposed to combat antisemitism. Doesn't say on the left, right? And so there, I agree that on the actual line item

of the settlement, it's not as blatant as say 40 million to a specific Trump-aligned nonprofit. I agree with that. My big issue is not with the terms of the settlement itself. It is with the initiating cause that creates the settlement. Fair enough. All right, David, should we move to the Ninth Circuit? Oh, gosh, yes. This was a full alert moment. The Ninth Circuit had an en banc case about those large capacity

magazines. It will not surprise you to hear the majority of the Ninth Circuit held that California's ban on large capacity magazines, which they defined as anything over 10, was constitutional, did not violate the Second Amendment, fit within Brahimi, the Bruin and Brahimi legal framework, and boy were there dissents. There were dissents on process, there were dissents on substance. There were dissents on substance. But then, David, there was one dissent by Judge Lawrence Van Dyke on video. This video is the time we are recording this podcast has close to 200,000 views, David.

Yes. And I think the questions for us are, is a video dissent appropriate? Is this video dissent appropriate? And was it correct? So let's start at the beginning. Is a video dissent appropriate in this year of our Lord 2025? Yes. Yes. I would say, okay, so for example, we have had the Supreme Court for a long term. For example, we have had the Supreme Court for a long term. I answered that so definitively, Sarah. Much more definitively than I felt it.

But anyway, we have had justices read dissents from the bench, and that's been a long tradition at the Supreme Court. And going back to early days of SCOTUS blog, there would be the live blog that they would do and you would be waiting for the next opinion, it would say, sorry for the delay, Justice Scalia is reading his dissent

or something like that. And that's what they would do when they, sometimes they'd feel particularly emphatic. So, to me, that would be a very similar question to are cameras in a courtroom appropriate? That's kind of the analog. If reading a dissent is appropriate, would the broadcasting of the reading of the dissent be appropriate?

I think so. The harder question to me, Sarah, is this dissent appropriate? It's very easy on question three. Is he correct? Yes. One million percent he's correct on the point that he was making in the dissent, which was not the video dissent, which was not the full expression of the issues in the case. But this one, the only thing that gives me pause is I'm really pondering to the extent to which did he almost kind of lapse into like, I'm an expert, a witness in this case. And was it dissent or was it almost like testimony? Because what he did in the dissent

was illustrate a point that he was making about accessories to weapons being arms just as much as the weapon itself as an arm, because the accessories essentially are the weapon, which I think he was absolutely correct about. Did he, in demonstrating that, have a almost testimonial function as opposed to a judicial function?

That is the relevant question, but on one and three, I'm a yes, and then a yes. And on the two, I'm a number two, I'm a maybe. Okay, so number one, are video dissents ever acceptable? I do think it's a little like cameras in the courtroom, David, and I'm a little more torn on it because it's not that I object to cameras in the courtroom on some moral grounds, it's that I think it will change

who becomes a judge, who wants to become a judge, et cetera. I think you move away from sort of nerd love of the law to... Camera ready? Good on... Yeah, good on TV, camera ready, all of that stuff. So that part makes me nervous, I will admit. I agree with you 100% on that. I'm nervous about that as well. Is this dissent appropriate?

For the reasons you mentioned, David, was he acting as an expert witness instead of a judge? Was he introducing facts that were not in the record? I don't think so. I think this was just fine. I think you could have written all of this in a dissent to explain the difference between an accessory, which to me is something that does not go to the core functioning of the item. The item works fine without the accessory.

It just makes it more fun, more comfortable. That's what an accessory is. to the core functioning of the item. The item works fine without the accessory, just makes it more fun, more comfortable. That's what an accessory is. If without said quote accessory, the item doesn't function, then it's not an accessory. And that's what he was explaining. I don't, that's not an expert witness. That's, that would be totally appropriate

in a written dissent. So I think this dissent is totally fine. Well, let me ask you this real quick. Let's suppose, I would absolutely see that in a written dissent, but in a written dissent, it would be citing testimony. It would be like citing record evidence about that. I don't think you'd have to.

I think in a written dissent, you could say, basically just a transcript of what he said, this is how guns function. I don't think you need expert testimony for this is how guns function. He wasn't saying in my experience, this is how my gun functions. That would be expert testimony. I take your point that it's a bit of a fine line here, but how a gun functions, you know, you don't need expert testimony for everything. The sky rises in the East, you don't cite to the record.

Sorry, the sky, the sun. But some of it, some of what he was talking about when he removed out of the magazine and into different things, like he talked about the sight on the weapon. He talked about, you know, like the breakdown mechanisms. He talked about a lot of different things. But is any of that disputable?

Well, is it something you can take judicial notice of? Yeah, like the sun rising in the East. I don't know, because some of the stuff is... in the East? I don't know because some of the stuff is, some of the stuff, I'm just gonna do my standard gun disclaimer when we talk about gun stuff, which is I own guns, I have far more knowledge about guns than the average American,

I do not have as much knowledge as a gun enthusiast, okay? And the gun enthusiasts are very particular about terminology, et cetera. So if I get something off a little bit here, please, please let me know. But there are elements- Or don't actually. Yeah, don't actually.

Not direct emails in the comments. There are elements of gun design where you will have debate, for example, over how much more effective is one trigger than another trigger, or how much better does the gun work with one mechanism versus another mechanism. These are the kinds of things, like gun enthusiasts will sit down and they'll compare their weapons

all the time. Fair. And I would totally agree if he were making the point that this, you know, makes it shoot this much or this much better or it's 20% better with this. But that was not what this video was about. It was about it changes the trigger mechanism and can make it more accurate. I agree the more accurate part is expert testimony-esque. Right. But he wasn't saying how accurate or it wasn't really the point. can make it more accurate. I agree the more accurate part is expert testimony-esque. Right.

But he wasn't saying how accurate or, and it wasn't really the point. The point was it changes the trigger mechanism. And I think that is more sun rising in the East. If you literally change out the trigger, it changes the trigger mechanism. It's a bit tautological. Okay, but this takes us to question number three, David.

For me, was he right? I will tell you, and this should color everyone's impression of everything I've said so far. If I had read this written dissent, I'm not sure that I would have been persuaded, but having watched the video, I think I was. Yeah. Uh-oh. So we see the problem. Yeah, yeah. So the majority held, as I said, that because the magazine was an accessory, it was not a protected

arm under the Second Amendment. And through him showing basically all of the parts of the gun that can be switched out for other parts, and again, I don't really care whether it makes them more effective or less effective or anything else. The point is, without these parts, the gun won't function. But also, all of these parts can be switched out. Even the firing cartridge part itself can be changed. So it's a little like that sideways stories from Wayside School, if you remember that, David, where this bulky, smelly kid comes in and he's wearing a coat and they're like, take off your coat. He like kind of refuses, but anyway, they keep taking off the coats

and they take off coat after coat after coat. And in the bottom, there's just a little rat that scurries away. Like according to the Ninth Circuit then, there is no such thing as a gun? I don't know. And I found that really persuasive. But here's the part that I had a question on David.

Just because it is not an accessory and therefore, I agree, it falls under the category of arms under the Second Amendment. And so you must do a Second Amendment analysis does not mean that it then fails that Second Amendment analysis. And indeed, the majority actually does that alternative reasoning as well. Unpersuasively to me, in terms of how they did it, they tried to apply Bruin and Rahimi, and they had that vertical problem that I've talked about, David, where they went to the highest level of generality. Well, you could prohibit dangerous stuff back then.

This is dangerous, therefore, we did text history and tradition. Yada, yada, yada. They did rational basis review text history and tradition. For sure. But even according to Judge Van Dyke's version, he, I thought in the oral argument and then in this video, the most persuasive part was that if you can uphold a ban on the magazine size, then you could ban the automatic bullet reloading mechanism,

the thing that makes it a semi-automatic weapon. And if you can do that, then now we're having to load a bullet in each time and like, congratulations, you have a musket. But if that's the case, then I don't see why you can ban, according to his reasoning, the automatic loading mechanism that makes it an automatic weapon. Right? Because isn't that the same issue? And why does that? I mean, I get his point. It's not an accessory. So step one, is it an arm? Yes. Step two, is it an arm, you know, protected

by the Second Amendment that, you know, under text history and tradition could be banned at the time of the founding? And if his answer to an automatic firing mechanism that makes it a semi-automatic is yes, that's protected, but an automatic that makes it an automatic weapon can be unprotected, then I think we're back to the magazine problem and we didn't really solve a lot, except I get it. Step one, is it an arm? Yes.

Yeah, I interpreted the dissent like this, that he would say, okay, if you're going to ban fully automatic weapons, just ban fully automatic weapons. Don't say I'm banning weapons with a mechanism that includes the following features, which has the effect of banning fully automatic weapons. Okay. fully automatic weapons. Because it seemed to me that in essence what he was saying was, wait, you screwed this up pretty monumentally because, and what you're calling accessories are just improved versions of indispensable elements of the gun itself.

So is a gun even an arm if it doesn't have a magazine, right? A capacity now, and maybe as you were saying, loading in the single shot at a time. But then that's saying that the Second Amendment protects only single shot weapons, which California wouldn't have been arguing that at all. So essentially the way it seemed is that California was saying anything that is better than what sort of the minimum necessary to make the gun work is an accessory and that's not an arm. So conceptually that the definition didn't,

conceptually it just didn't make a whole lot of sense. And so I took him to say, you can't shortcut the analysis by calling these things accessories and therefore not arms. But the bottom line, Sarah, I think that that's, the dissent made that the video dissent, which is very well done, by the way, he explains it in a very clear way. I think if you're a gun curious person, watch it. You're going to learn something about firearms.

But- Judge Van Dyke gets caricatured in the press often as a YOLO judge. And this is such a good reminder to people. If your version of someone is that they're clownish and that they're a threat, I start questioning that right away, right? Generally, clownish people aren't threats. Sometimes there's exceptions. But here, for instance, I think you have to grapple with Laurence Van Dyke as the real person who is brilliantly smart, incredibly articulate, and able to explain something in a way that's very persuasive.

And it's not a caricature of how I think others have portrayed him. I don't agree with him on everything. I don't even know if I agree with him on this. But Judge Bumate had a separate written dissent as well, where he pointed out that, and this gets to the accessory point, that it's not that this is some not common accessory that in fact, the 10 round magazine is the not common one.

The one that California is basically saying you must have the manufacturer now make this and send it because the standard issue is the 17 or 21. It sounds like 17 is really the standard. And so the most common magazine in the United States violates California law. That is the point, that boomatee dissent on, okay, how can this be, say, unusually dangerous when it is the most common way these guns are sold? So a lot of times you'll hear the words large capacity magazine, and they're referring to what is in fact, as a matter of fact on the ground,

a standard capacity magazine, the magazine the gun was designed for. When I think large capacity magazine, I think a magazine larger than the magazine the gun was conventionally designed for. So, for example, if you see, you know, I have nine millimeter handguns and you might have a 17 round magazine and it fits flush. It fits flush with the handle.

And you can buy longer magazines that do not fit flush. That is something that I would say that to me would be a high capacity magazine or like if you have an AR-15 20 to 30 round magazines are very common for that. That's the norm. But you can buy these giant drum magazines that have dozens more rounds maybe even more than a hundred rounds. That's what you would that would be unusual. So I do think, Sarah, what we're going to end up getting to, because really the majority opinion goes straight to this very, this very question, the very questions we've talked about a million times on the Second Amendment, which is at what level of generality

is text history and tradition? And are we really, really, truly just boiling all this down to unusually dangerous people and unusually dangerous weapons. And is it unusually dangerous or is it extremely dangerous? Because those are two different things. A large capacity magazine paired with a semi-automatic rifle or a standard capacity magazine paired with a semi-automatic rifle is extremely dangerous.

Extremely dangerous. Is it unusually dangerous? No, because this is the most common form of rifle in the United States. And so I do think that that's where you're gonna see the ultimate tension playing out. I still struggle with the Judge Ho point, which is, especially when it comes to the Second Amendment,

how do you know that Congress was legislating to its maximum? And I was reading a history of the six shooter and that original Colt gun, David, that doesn't become popular until around 1848. And it becomes very popular because especially in the West, you're on the, if you're in Texas, you're bordered by

Mexicans who want to kill you and you're bordered by Native Americans who want to kill you. And the idea that Congress would ban the Colt six shooter, like wouldn't occur to them. Right. Because it was clearly useful and necessary. But that's a very different question than did they think they could ban it though? Just imagine a world where you want to ban it. Do you think Congress has the power to ban it? And I think that's really hard in these gun contexts because it wasn't even on the radar

that you might want to ban some of these guns, especially as these new innovations come. Because right before the six shooter, there is no way to, and I'm going to use automatic here somewhat loosely, but you're having to feed in each bullet and even only slightly before that, little gunpowder pieces too. And so the six shooter is really going to revolutionize that because you've got now bullets cycling through so that you can get off six shots without having to basically disassemble your gun. So that's a huge technological leap that's going to make the guns

extremely dangerous, David, to your point. Yeah. And in 1847, unusually dangerous. There's the first battle, so to speak, against Native Americans. I believe it was Comanches where the Texas Rangers have six shooters. And the Comanches are used to the Americans having those like one bullet guns. And they're slaughtered. So it was unusual and extreme,

Lee dangerous at that point. Could Congress have banned it? And there's no right answer to that question, but it makes text history and tradition kind of a folly. Exactly. Thank you. That was the best way, and I think that's the best description or the best explanation of the problem in text history and tradition

that we've said yet on this podcast. Because if you have a gun invented and disseminated in the United States in a period where the entire frontier of the United States was engaged in a continual low-intensity warfare, then the invention of a gun that is both extremely dangerous and unusually dangerous is like, yay, we have an advantage in this ongoing low-intensity warfare that's being waged across the length and breadth of the frontier is a very different

situation than saying, look at this thing that is extremely, extremely dangerous in a fully settled, ostensibly peaceful nation that is fully developed. And the fact that Congress chose not to regulate a six shooter in the 1850s is not the same thing as saying Congress did not have the ability to regulate a six shooter in the 1850s is not the same thing as saying Congress did not have the ability to regulate a six shooter in the 1850s. Like imagine if you had an invasion of the United States by it's the Red Dawn scenario, number one, not number two, which was absurd.

But you have the Soviet allies landing in the United States, we still have a function in Congress. And next thing you know, everybody's got fully automatic weapons that would not then be precedent for all time in the future that you can have fully automatic weapons as a private citizen. So I think that was a brilliant explanation, Sarah.

Thank you for that. Sick of dreaming smaller, Brilliant explanation, Sarah. and managed for you. Invest for a fraction of the cost and become wealthier with Quest Wealth Portfolios. Get yours. Questrade. Oh, eco-friendly towels? And they're quick dry. Yeah, you know, HomeSense always has a lot of great towels. Let me see that. Quick dry. Will it dry quickly enough that I won't notice

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So next episode, David, we're going to have a special guest. In fact, back in 2021, he was our first judicial guest and he will be making his triumphant return. This is former Fifth Circuit Judge, Greg Costa, coming off of his trial where from reports, he just won a, just hold your, just take in some breath now because you're going to lose it after I tell you this, a $667 million verdict, like just a few hours ago, basically. So he's going to come from that high to this podcast. So just up and up for...

Do you think it'll still be hung over from the celebration? The trial team, by the way, was incredible. It also had Trey Cox on it, who is the wonderful husband of Aaron Neely Cox, the former US attorney for Dallas, Northern District of Texas. So it was just a hell of a Texas team. And I don't know if the case is on contingency,

but if we don't hear from them for a while, you'll know why. What's that old saying? You won't know when I've won the lottery, but there will be signs. And he's gonna come in and like, I don't even know, like what are the most expensive clothes you can wear now?

I don't even know that. I was gonna say like mink coat, but nobody does that. Okay, so he's gonna come talk to us about the universal injunction problem. What the potentials are to solve it, what the upsides are, what the downsides, why it's not as easy as you think to wave a magic wand, but that it's a real problem. And so I thought I would just set it up with some interesting stats and proposals from this term so

far. For all the talk of ideological bias, David, someone has actually run through all of the rulings so far. Now, most of these are going to be injunction rulings because if there's been a ruling so far, it probably hasn't been on the merits. In that first month and a half or so when we had the flurry of EOs, when it was broken out across liberal, centrist, and conservative, it was exactly even. Basically 82% of conservative judges ruled against Trump. 86% of centrist judges ruled against Trump. 86% of centrist judges ruled against Trump. 84% of liberal judges ruled against Trump. Now, even updating

that to what it is right now, it actually in some ways gets more interesting because now the centrist judges are the ones, 88% ruling against them. It's 50% for the conservatives and 76% for the liberals. But of course, David, that doesn't tell you the whole story. It's telling you the percentage, but it's not telling you the denominator. And of course that's where the story is because all of these are getting filed with liberal judges. So we have 34 as the denominator with the liberal judges

who are ruling against Trump 76% of the time, eight with conservative judges who ruled 50% of the time and eight with centrist judges. Forum shopping. Yeah. So it doesn't tell you the denominator when you see stats like that. It also doesn't tell you the qualitative difference between these executive actions and Biden's executive actions and Trump first executive actions and Obama's executive actions. So whenever we compare, like there have been more universal injunctions against Trump in the first two months of his time in office this term to the first three years of the

Biden administration, that's a crazy stat. But it doesn't tell you a lot qualitatively, because if Trump did super outlandish stuff, then we'd expect him to be enjoined more. So Darrell Issa has proposed a bill about this, David, it would limit the authority of United States District Courts to provide injunctive relief. But there's a big exception. If it's an agency action.

So this gets to that APA set aside language, first of all. So during the Biden administration, almost all of the universal injunctions were about the Administrative Procedures Act, that you didn't follow this or you didn't do that. It exceeds the agency's authority. So all of those would be exempted from this bill, but it actually just says agency action. And I just questioned whether that's everything. I mean, at the end of the day-

When Trump issues an EO, he's instructing an agency to take action. Yeah, all an EO is, is a direction to agencies under his control. An EO is not a statute. It is not a law. It is a, think of it as a memorandum by the boss to his subordinates about how they are to, and that is if an EO is lawful, that it's a memorandum from a boss to subordinates about how to exercise the authority within their control. It is not a new statute.

But David, A, love that Congress is getting in the game. I want to reward that type of behavior. And of course, remember, you're looking to get both Democrats and Republicans on this because everyone's sick of this problem. Yeah. And so you need to find a way for both sides to feel like it's going to at least help stop the flow of nationwide adjunctions against their people. And if this is the way to do that,

and then we can litigate over what agency action means, I'm still more for that than Congress just going on cable news. So applauding Darrell Issa for even getting the ball rolling while so many of his colleagues are spending their time tweeting about impeachment, which is not a thing that's going to happen because you can't count to 67 in the Senate. I don't even think you can count to 50. But they're doing that to raise small dollar donors. Whereas Darrell Issa over here actually doing legislation.

Look at that. Not getting the small dollars rolling in for actually proposing a real potential fix. But there's a second part to the fix, David. And I'm really curious what you think of this. And of course we'll roll right into our conversation with Greg Costa in the next episode. And that is if you want to issue a universal injunction

beyond the parties suing, it needs a three-judge panel. Four. I was going to say that as a proposal, like even before you said anything about it, that a... Yeah, because one of the problems with the universal injunction is not just the fact of the universal injunction, it's the combo of forum shopping plus universal injunction. So somebody did this really fun exercise of the Trump advisor, Stephen Miller, was putting out all of these tirades about injunctions from district court judges. And somebody went back

and found his celebration of injunctions by district court judges of his own organization during the Biden administration. So the guy was very much for universal injunctions when it was Biden, very much against universal injunctions when it's Trump. You know, partisans are partisan, news at 11. But one of the big problems here, as I said, is it's not just that universal injunction. It's going into the hand-picked judge. There was, you know, a... Heck, they probably had to widen the roads

into Amarillo, Texas, just to accommodate all the lawyers, conservative lawyers, going to file in that court. With the three-judge panel, it's so much more difficult to do that sort of one-two, forum shop, universal injunction. So I'm for it. All right. So we will continue that conversation in our next episode. Before we go, though, David, I had an incredible experience last week that I wanted to tell you about. So do you remember how I mentioned the board game first Monday in October, that was a Kickstarter, and it was going to be a

board game about the Supreme Court. And I got it for husband of the pod for Christmas, or like I got him, that he was going to get it once it's actually been produced. So it turns out that the creator of the board game, Talia Rosen, lives like a mile and a half from me. So she invited us over and we played this board game. David, the details in this

are incredible. You're going to freak out. So first of all, this is not like Monopoly. You haven't played Settlers of Catan, Pandemic. The word board game means two totally different things in those contexts aside from the fact that they both have boards. So I am not talking about a Monopoly style board game. I'm talking about, like, yeah, one of those complicated multiplayer, blah, blah, blah board games. First of all, on the box, the clock is at 10.05, not 10. That's when oral arguments start.

But Justice Tawny always set the clock five minutes ahead so that people wouldn't be late. So this is the time that the clock would show during the Tawny Court when arguments start. What? Yeah. So, so much detail. Amazing. Each justice has a little write-up.

So I'll just read you George Sutherland. George Sutherland, one of the quote, four horsemen who rode together to coordinate decisions striking down New Deal legislation. And then every justice card is assigned points based on their commerce clause, executive branch power, civil liberties, and free speech. And then that's like how the game works is you're trying to move up or down the court's jurisprudence in those four areas to match with your side. And there's like there's this whole side thing where you can get a clerkship, you can get rehearing the cert pool, an amicus brief, emergency remand, targeted retirement. You can get borked.

Unbelievable. If you get to the very top of this one in the robing room, you can get impeached. So it's just, it was super thoughtful. It was really fun. I am not surprised, but nevertheless dismayed to report that husband of the pod, according to Talia, and I don't think she was just blowing smoke. Husband of the pod got the highest score that anyone has yet gotten on this game. Wow.

Deeply annoying to me. Wow. That is... Yeah. Has, is he the kind of person who just continually like, dunks, hangs on the rim, and just taunts his opposition? Yeah, and I just want to say that like, with maybe 15 minutes left to go in the game,

the whole gameplay took about two hours probably. Yeah. About 15 minutes left, I was probably winning. Maybe not like dunk winning. And then the whole thing, he just had all this stuff up his sleeve for that last round and just crushed us all. It was awful.

Like not only did he go way ahead, he also took points away from me. I mean, it was a bloodbath there at the end, but David, this is what he does. He spends, he's a huge nerd. People don't think that about him because he sounds cool, but he's not. He plays the board games constantly.

Sounds cool, but he's not. So anyway, the game is still not out. This was the pre-production model. So I think you can still find it on Kickstarter, but I don't know. We had a great time. Super nerdy, lost stuff. So first Mondays in October.

All right, David. I've got some bobblehead discussion for next time. Oh, bobbleheads and universal injunctions? That's right. Well, you saw behind Judge Van Dyke, he had some bobbleheads, and I'm gonna get you some intel on that. Oh, bobbleheads and universal injunctions? That's right. Well, you saw behind Judge Van Dyke, he had some bobbleheads, and I'm gonna get you some intel on that. Oh, nice. Okay. I mean, can we just go ahead and record now? This sounds just too good to wait.

That's the teaser. That's the cliffhanger. Okay, okay. Come on. Okay. Bye. Bye!