Advisory Opinions - Blood Libel at MIT

Episode Date: March 14, 2024

Sarah and David react to the Robert Hur’s congressional testimony, but first Sarah responds to a recent article that claimed she was assisting Hur in his testimony (and thanks the loyal listeners who came to her defense). The Agenda: —David’s thoughts on the Hur hearings —Lessons in media training —Differences between the Trump and Biden documents cases —Partisanship making people awful —Complaint by Jewish students at MIT —Blood libel at MIT —Free speech or no speech on campus? —Positive racial discrimination? —The end of judge shopping Show Notes: —President Reagan, Mastermind - SNL —UC Berkeley Jewish students successfully march without confrontation Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And yes, we're going to get to the testimony of Robert Herb. We're also going to walk through several of the complaints coming in hot and fast to college campuses around the country and a little bit of a diversity lawsuit heading toward the government, an update perhaps to the affirmative action decision from the Supreme Court last year moving up the chain. But first, David, some breaking news of a sort. There was a headline from the New York Times,

new federal judiciary rule will limit forum shopping by plaintiffs. This sounds pretty awesome because right now, if you file a case, let's say in the Northern District of Texas, it doesn't go to just anyone in the Northern District of Texas. It matters what division you file it in. So if you file it in the Amarillo division, there's only one judge in the Amarillo division. And that's the judge who's become famous for forum shopping, Judge Kazmarek. A lot of people have noted the problem with nationwide injunctions. I mean, I think the biggest problem is that 400 judges can say no, and then one judge says yes, and bada bing, you get a nationwide injunction. But certainly judicial forum shopping has been a problem as well. Now, this new rule, as it's been reported, wouldn't prevent you, you know,

from say, filing in the Northern District of Texas versus the Northern District of California. And those can have some pretty ideologically different judges in them. But it would prevent you from being able to pick the exact judge. It would be randomly selected from all of the judges in that district if you were filing a civil suit against a state or federal policy. But David. Yes. We got an email from a federal judge that would like to correct the record. I know. I know.

It's a pretty long email, but I think it's really important because essentially what he's saying, I'll just read one paragraph of it and we can go as far as we need to go with it. Part of me just wants to read the whole thing, but yes. I'll just read one paragraph of it and we can go as far as we need to go with it. Part of me just wants to read the whole thing, but yes. I know. You know, we could do it. You know, you could even like swap it off paragraph by paragraph. But basically what the this is a this is a federal judge. He's saying everybody is getting this

wrong, that this is not actually a policy that binds judges. It doesn't bind the districts. It doesn't bind the circuits. It changes nothing. It changes. It's not a rule. Literally, the New York Times headline is wrong. It's not a rule. It's a thought. Yeah. Yeah. It's here. Let me read this part. The policy referenced in the article was adopted by the Judicial Conference of the United States, a group of judges appointed by the Chief Justice of the United States. Except in limited circumstances not relevant here, the Judicial Conference has no authority

to impose rules on the federal courts. I'll read that again. The Judicial Conference has no authority to impose rules on the federal courts. The federal statute creating the Judicial Conference, 28 U.S.C. Section 331, makes this clear. It authorizes the conference to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.

The case law confirms it, cites cases. The judge says it is the various circuits around the country that have policymaking authority over courts within the circuit. And then the district courts can adopt policies covering the district so long as it's not in conflict with the circuit policy. But the judicial conference cannot impose a policy like this on the courts. impose a policy like this on the courts. So that is about as clear a statement as you're going to find. And it's also at odds with, I don't know, Sarah, all of the reporting that I have read. Literally every single thing. I haven't read one place that's gotten that correct. I also appreciated the way this line, was this just a case of somebody using sloppy language when drafting a press release? Nah, dog. Let me give you another example. Most people who pay attention to the judiciary think that federal district courts are not

allowed to have cameras in the courtroom. This includes, by the way, many, many federal judges. Why do they think that? Because the judicial conference has long been announcing, quote, policies that prohibit the broadcast of federal proceedings. And the AO, not us, by the way, has long been issuing statements that make people think these policies are binding. Take this AO press release from September of last year. to its broadcast policy that expands the public's access to civil and bankruptcy proceedings over the judiciary's longstanding pre-COVID policy, which prohibited all remote public access to

federal court proceedings. This press release contains no mention of the fact that the judicial conference is merely making a suggestion or that there is currently no prohibition in the civil context on federal courts providing remote public access to proceedings, including video access. So, yeah. And David, I will just tell you, this is not the only federal judge who has taken issue with this, although I enjoy this one in particular because it's just everyone else is wrong about something that's a fact. Yes. And I also love the language included of the email to us included the phrase gnaw dog. Exactly. Yeah. If you want to know how to reach our hearts, send an email that includes the words gnaw dog. But, you know, Judge Ho on the Fifth Circuit also had a response to this. And this was interesting, too, David. I'm curious for your

response. Judge Ho said, judges are supposed to follow the laws enacted by Congress, not bend the rules in response to political pressure. If reformers are sincerely troubled by venue shopping, they can start by examining the serious concerns that have been voiced about our nation's bankruptcy and patent dockets. Well, I thought he was actually going to head in a different direction. And maybe he is. The point being that this sort of emphasizes that forum shopping does matter. And that, in fact, the judicial branch should be emphasizing the opposite, that forum shopping doesn't matter because judges are not making decisions based on politics.

But it sort of took a turn there. It was like, so we should fix the bankruptcy court. Oh, okay. Yeah, I interpret that as form shopping shouldn't be an issue because judges should just follow the law. And then with a final, but it is an issue, especially in these areas. So yeah, lots of judges responding to this. We certainly appreciate the judges who have reached out with their thoughts. And we'll see whether the various districts adopt this rule, whether, in fact,

it doesn't matter that it's not binding because if everyone thinks it's binding, it suddenly becomes the rule. Anyway, I don't know. I guess we'll find out. I don't know. I don't know. And one last thing on this real quick, Sarah, just a note of sympathy for you and I in the journalistic profession, for the journalists out there more broadly. Here comes a press release. Yes. That you should be able to rely on. It's not ambiguously written, actually. Right.

A press release that you should be able to rely upon, but you can't because the press release contradicts the actual enabling language for the judicial conference. So to actually know and to have done this, you would have had to read the press release, know the enabling statute, gone back to cross reference the enabling statute with the press release to make sure it was within authority, and also perhaps know some of these cases, which happened to be district court cases. Or have friends in the federal judiciary. Or have friends in the federal judiciary.

Yes, exactly. Exactly. I will note that the judge who wrote this to us, as this person wrote in the postscript, it's a good recommendation though. I hope the circuits adopt it. As in, it appears this person has more of a beef with the AO, as it it will again, not us,

then with the actual recommendation. But yeah, we'll see. We'll see if it gets adopted anyway, or if people like the TV thing, just think it's a rule and don't know the difference. If a tree falls in the forest and everyone says that it fell, does it matter whether it really fell? And can I just make one last point of privilege? Sarah, your professionalism right now, I wish listeners could see this. You are absolutely bringing it on the subtleties of the law while you have in a baby Bjorn, you have Case, who's being a very, very good boy, by the way. He's being pretty good. He really likes the cord for the microphone, and he's touched the mic a few times. All right. So first up, David, there was actually some weird

shenanigans. First, I just want to say thank you to Andrew McCarthy over at National Review and all the AON Dispatch people who really stormed the castle on the Internet after this reporter for some British news thing tried to do this attack on Rob Hurst saying he was being coached by Trump World. With me is like this marquee name about how Trumpy I am. And we all know how Trumpy I am, David. How I was trying to reinvent myself as a journalist. It was like some secret, you know, thing. And he never reached out to me to find out if it was true. He just said in the story, like, my source tells me that Sarah is the one coaching Rob. So just to reiterate here, Rob and I are

very good friends. We worked together at the Department of Justice on the Mueller investigation. We all know how Trumpy that was. Trump loved everyone who worked on the Mueller investigation. He was Rod Rosenstein's principal deputy. So he was the sort of day-to-day touchpoint for Mueller and his team. And Rob and I talked about it and decided for me not to work with him at all on his congressional testimony. So we actually had like kind of a friendship blackout of sorts for the last couple weeks. With all that said, David, also, I do have to say the journalist pushback when I tweeted like he never reached out. This is untrue. He said, though, when I reached out to you, you said you don't do interviews. I was like, what? I don't even know who this guy is. And I went back to my Twitter DMs. And in like May of 2020, when he was writing some story about

COVID, he reached out and I responded, I don't do interviews. And so that was his reason for... I was like, come on, dude. I don't believe that for a second. Four years ago at a different job, I said I didn't do interviews. Also, you weren't asking for a second. Four years ago at a different job, I said I didn't do interviews. Also, you weren't asking for an interview. You were asking to fact check something weird. Yeah, that is weird. And also, can I say this? Reaching out via Twitter DM should be an absolute last resort for a journalist because I don't, you know, I don't monitor my DMs. I don't, there's just too many channels coming in, too many ways of communicating.

I can't monitor them all. So for me, if you go to my New York Times bio page, you have my New York Times email address right there. Don't do a Twitter DM. I can't tell you the number of times I have thought, I need to catch up on my Twitter DMs. And I've seen an inquiry from a reporter from four weeks ago. Yeah, no. But what does it tell you, David, that he didn't even send a Twitter DM? Yeah, that's that's absurd. By the way, it does appear that this was coming from the White House rapid response team, which makes it even funnier in some ways. But OK, so we had this congressional hearing where special counsel Rob Herr was, well, playing a game of ping pong with members of Congress, Republicans and Democrats, except Rob Herr was the ball.

What do you think, David? It was a frustrating symbol of everything that is wrong in our hyper-partisan times because there was really no interest that I could really discern in finding truth here. What I saw was an attempt to excoriate her on both sides for not doing exactly what both sides wanted him to do. And so, you know, on the Republican side, it was obvious that, yeah, they were happy that elements of her report were talking about Biden's age and mental cognition, etc.

But what they really, really wanted the report to do was create a cause for prosecution and to create grounds for prosecution of Joe Biden. And it just doesn't do that. It just doesn't do that. And then the Democrats wanted to excoriate her and tried to, and then sort of began to use kind of the zeitgeist of left-leaning social media to really try to plan into the public's brain that her just made up the mental cognition stuff, that there was just no real mental cognition age-related stuff at all. When I looked at the transcript after sort of seeing a lot of this dunking on social media, and I thought, wait, am I taking crazy pills here?

Because the transcript does show that Biden had some real confusions, Sarah. There were real confusions. And so, and I saw exactly what Herr meant when he talked about a well-meaning older gentleman, just the way that he talked, the way he was kind of scattered, absolutely reminded me of a normal 81 year old, you know, a normal 81 year old. And so I just, you know, there's some 81 year olds who are much better, sharper than normal, some who are less sharp than normal.

But he reminded me of a normal 81-year-old. So this sort of idea that her report was refuted by the transcript to me made no sense. So first of all, I thought the entire hearing was an ad against representational government. Like if the ad had ended with with this hearing was brought to you by dictatorships, I would have been like, yeah, okay, that makes sense. This is not, this is not giving me a lot of faith in article one, but it's the worst form of government except for all the others. Right, David? Yeah. Yeah. I mean, look, both sides, as you just agree with everything. I did find it to be funny. At one point, Representative Hank Johnson said, you're a member of the Federalist Society, right? And Rob's like, no. He's like, you're a Republican, right?

He's like, I'm a registered Republican. And you're going to get a judicial appointment if Trump wins again, right? Rob, like it's the one time he sort of broke character, if you will, and kind of chuckled. And his answer was, that is not something I've considered or I'm thinking about. Yeah, the reason he laughed is the same reason I like spit out my drink at home. The idea that Donald Trump is picking anyone who oversaw the Mueller investigation for a judicial spot is a joke, an actual hilarious joke. This is the one person, Rob Herr, who has worked on both special councils, the one into President Trump and the one into President Biden. Everyone hates him. And I think it should give him a lot of credibility in people's minds. Because look, if he wanted to get Biden, he could have indicted him. There is enough in people's minds. Because look, if he wanted to get Biden,

he could have indicted him. There is enough in this report. He absolutely could have moved forward. A grand jury would have indicted. He could have done it. Now, mind you, you can't try a president until after he leaves office. But all the more reason that he could have done it because then he wouldn't even have to go to trial. He wouldn't even, you know, lose. Right. So the whole like he did this to get Biden thing is really weird. I also found it really weird how much the Democrats kept pushing back on the memory stuff because the memory stuff is one of the reasons that he believed he couldn't win at trial. So if you're saying Biden has no memory problems that a jury, no reasonable jury could think he has memory problems. So you wanted him to recommend

indictment? Like the logical consequence of what you're saying is bonkers. Also, Hank Johnson, who I mentioned, who had the federal judiciary question, and again, on the substance, that question might have played well on Twitter, but it was quite stupid for anyone who actually knows what they're talking about. But now I will make a non sequitur attack on Hank Johnson. If that name sounds familiar to you, he's the same guy who asked the admiral whether it would be a mistake to build a naval base on the other side of Guam, because wouldn't that potentially lead to Guam tipping over? And the admiral's response is something that literally anyone who does media training or congressional hearing stuff shows their client this video because the admiral, without missing a beat, says, that's not something we've looked into. It's perfect.

It was the perfect answer. Yeah. So that hearing was annoying. There was a memo that was circulating around Republican circles on the House Judiciary Committee, which held this hearing, David, that I thought actually laid out what Republicans should have done and in the inverse, what Democrats should have done. the Senate Democrats who, you know, the Senate is in Democratic control. They're not having a hearing with Rob Herr, which makes perfect sense. Why would they want to have more time dedicated to weather Biden's a vegetable? So they're not doing it very smart. And so if you take that smart and apply it to the House, the House Democrats should not have wanted to make this about Biden's memory either. They should have wanted to make it about Trump. And Republicans should have wanted to make it about Trump as well. Republicans should have wanted to use this as an opportunity to show why Trump should be exonerated based on Biden's

defense. And the Democrats should have used it to show why Trump should be convicted based on all the differences between the Biden situation and why Rob Hurd did not believe he could pursue an indictment against Biden versus Trump. So I thought I'd read some pieces of this memo, David, and just get some of your reaction. Sure. This memo, by the way, I do know was prepared by a Republican lawyer and a smart one at that. So he first lays out the similarities between the Biden and Trump cases. In both cases, the National Archives was unaware of the extent of the missing documents. Next one. Both Biden and Trump staff or counsel were told to strengthen the security of the areas in which classified materials were thought to be located.

The put a better lock on it quote. There was a lack of formal tracking system for classified materials. It was the staff that was charged with collecting Presidential Records Act materials. It is not surprised that outgoing vice presidents and presidents do not pack every box. The fact that boxes moved from the White House were not unpacked heavily suggests that all of the contents in those boxes were not possibly, could not possibly be known. Both Biden and Trump had documents found in multiple locations. Both Biden and Trump believed incorrectly that the items moved to their residences were their own property. Both Biden and Trump stored the boxes containing national defense information in

relatively disorganized and poor conditions. Both Trump and Biden directly insinuated to third parties without clearances that they were in possession of classified materials. Trump to a reporter, Biden to his ghostwriter. It is clear that the Presidential Records Act has not provided clear procedures more observed in the breach since its inception. This is the Reagan diary example that I talked about before, David, where Reagan kept diaries of classified material

at his home. Both the National Archives and the Department of Justice were aware of this, allowed him to keep them at his home until his death. There is no evidence that either Biden or Trump passed a long classified material that would damage the U.S. or national security. Both Biden and Trump were operating under the same Obama-era executive order. The sheer number of boxes and contents is actually proof that neither Biden nor Trump could have possibly known what was in each box. Herr uses Biden's words,

totally irresponsible, criticizing Trump against Biden in the report. Her uses Biden's words, totally irresponsible, criticizing Trump against Biden in the report. And both Biden and Trump could be a witness for the defense in United States versus Donald Trump. All right, those are the similarities. Here are the differences. The National Archives was not aware of any missing Biden docs and didn't immediately pursue Biden with demands after he left the White House. However, in stark contrast, they were somehow immediately aware of missing Trump documents, even noting in their first letter to Trump staff very specifically that two dozen boxes were missing. Biden's personal counsel continued to disturb the contents and context of the storage of classified materials at Biden's residence.

Biden had documents going back 45 years, while Trump's documents spanned less than a decade. Biden had financial incentives to keep records in order to write both of his books that came out. It's in the report. It also came out at the hearing. That was an $8 million payment. What's the word when you get the first payment for advance? Advance your book. To this day, it is unclear whether a competent authority ever stripped former President Trump

of his executive privileges as it relates to the initial 15 boxes. Trump had a security clearance for approximately four the initial 15 boxes. Trump had a security clearance for approximately four years of his life. Biden had a security clearance for half a century. Trump knew the grand jury was inquiring about the documents he had retained. Biden brought the documents he had retained to the attention of DOJ and a special counsel was later appointed. However, Biden, for unknown reasons, began looking for classified materials after the search warrant was executed at Mar-a-Lago. Biden was vice president. Trump was president. All right, David. So I actually like the way this was laid out, because while obviously the purpose is to show why the her report can be used to

exonerate Trump, the way that's written is pretty straightforward. Like, here are some of the differences you can find. Here are some of the similarities. I'm curious if you found any of that legally persuasive. I find what I found persuasive about it was the initial removal of the documents from, you know, the process of removing boxes and boxes of documents. I think it is very understandable. And something that we have seen is, I'm not going to say universal, but quite common that when these civilian officials who are not accustomed to handling classified information or have been in government forever and have imbibed sort of a more casual view towards classified

information that you and I have talked about, that the military and intelligence side of the American government looks at the political side of the American government routinely, utterly appalled at the way the political branches treat classified information. And so I think it is very understandable that a Trump or a Biden or a Pence or a Reagan or you name it would have classified information with them when they left office. All of that is, to me, why you don't immediately file an indictment when classified information is discovered. The question is, and to me, the material differences between Biden and Trump are what happens after there is this real awareness that classified information is there? How does it respond to attempts to locate and examine classified

information to evaluate it, et cetera? This is where, you know, Trump's got the real issue and the case is much more on the obstruction point than that initial removal of the documents from the White House. And, you know, again, hovering all over this, Sarah, is something that I've written about repeatedly is, you know, in 2016, Comey comes out, says he's not going to prosecute Hillary Clinton. And he lays out a standard. He's sort of laid out. And now, can an FBI director do this? Not really. But the problem is once you've laid out a standard for one public official, it's really hard to switch that standard for other public officials, especially if they're on the other party.

And so that's why I've made the argument that you should apply the Hillary Clinton standard, at least for the foreseeable future. And the Hillary Clinton standard was, no, this isn't really a strict liability offense, where if you just have it, and even we're going to kind of tinker with the words gross negligence a bit and kind of read that as intentional retention with elements of obstruction. And I think that's where this really tips over on the Trump against Trump are those is the combination of indications of intent with indications of obstruction that as her laid out, you know, her laid out a lot of these differences in the report himself. And that's the thing that got Republicans really angry here. But can we circle back just a minute to something you said about sort of the age issue? Sure. Democrats were not really, you know, they

have this they're trying to sell this vision of Biden that is very similar to the Saturday Night Live sketch of Ronald Reagan, where, no, no, no, in public, Ronald Reagan was sort of, you know, there's this famous Saturday Night Live sketch where he's like meeting with Boy Scouts. He's like, well, it's really good to meet you. And kind of comes across as a kindly old man. And then the instant the cameras are off, he's like, all right, let's get to it. And his aides come flying in and he pulls down a map and he's just as sharp as you can imagine. And the Democrats are kind of trying to sell an image like that of Joe Biden. They're trying to essentially say your eyes are deceiving you, that what you see with Joe Biden isn't really

what you get with Joe Biden. And he's really just sharp and on it. And they'll have these reports that they say where someone will say, hey, I just spent two hours in a meeting with him and he was tremendous. And it's just remind you of that dichotomy in the Saturday Night Live skit. Like, who are you going to believe me or your lying eyes is kind of the way it goes. But they haven't really thought this through from a legal perspective, because if the actual Joe Biden is this incredibly sharp, incredibly engaged, incisive mind, well, what's this incredibly sharp, incredibly engaged, incisive mind doing with all this classified information at his house? At some level, you can't have it both ways. You can't say, hey, move along. Absolutely nothing to see here on the merits of retaining classified documents. And oh, by the way, this guy is really

sharp and he's got it all together. And everything that the special counsel says about him not having it all together is just a partisan hit job. And that just doesn't work. And it's reminding me, Sarah, of the way in which people are generally, Biden's defenders are generally approaching the age issue as if, hey, can I yell at you more? And if I yell at you more, you'll see Biden is younger. And that's just not the way any of this works. I wanted to focus on the obstruction question because Andy McCarthy, second name check this pod, Andy. Andy McCarthy made the point that

the difference in Trump and Biden's reaction when they find classified material, that Biden sort of calls immediately and is like, oh my gosh, I found this stuff. And that Trump is like, you know, the seagulls on finding Nemo. Mine, mine, mine, mine, mine. That that goes to an obstruction charge, but it doesn't actually affect the underlying crime of willful retention of national security information because either Biden willfully retained it this whole time or he didn't. And

it doesn't really matter that the way they got it back was also from Biden if there's evidence that he willfully retained it. I think that is absolutely true as far as it goes. And I've said that the classified documents case would have been much easier if Jack Smith had only brought the obstruction charges against Biden. They could have moved faster. They wouldn't have, you know, some of these legal problems, I think, on, for instance, the Reagan example. And now, to some extent, the Biden example. But here's the other piece of this. Because a mental state is required to show willful retention, the obstruction stuff is actually part of both. Yeah. Separate obstruction charges for Trump. I've never heard a defense of those.

Nobody's ever told me one way in which Trump did not obstruct justice. I've not heard a credible defense at all. No. On the willful retention part, though, Biden sort of saying, oh, my gosh, I just found these. I didn't know they were here and now I'm giving them back. Absolutely would be part of his defense against a willfulness mental state. Now, as Rob Hur pointed out, there's him on audio recording saying, hey, I just found the classified stuff in my basement.

That's why he's bringing up the memory, by the way, is because they have that evidence. He's like, yeah, and I think that the next day he didn't remember it. And that a jury at least could believe that he didn't remember it, for example. So I very much accept Andy McCarthy's argument sort of at its largest position. But when you get down to it and you're trying to prove a mental state,

of course the, I know I have these and I'm not giving them back, goes to the willfulness. It goes to the mental state. So it is relevant, of course, the I know I have these and I'm not giving them back goes to the willfulness. It goes to the mental state. So it is relevant, I think, in a way that the people who are attacking the Trump case don't want to acknowledge just in the way that the Biden White House saying that this exonerated him. First of all, that's not what the Department of Justice does. Department of Justice doesn't exonerate people. They either bring charges or they don't. And then this idea that it was so gratuitous

to write a report, that's required by the special counsel regulations. This is actually what happens in every, most, many Department of Justice cases. They decide not to bring charges and then you explain to your superior why you didn't. What's unusual here is that a confidential report was required to be written

and then it was up to the attorney general whether to release that. Of course, the attorney general was going to have to release that report. But you want to see some trashing of witnesses and credibility and like, well, I think that our lead witness, the jury will think they're a liar.

Doesn't mean the person is a liar, but I think the jury will think so. So I don't think we can bring these charges because I don't think I'll win at trial, even though we've got good evidence, we've got an eyewitness, but it doesn't just require, like I said before,

the Department of Justice regulations don't just require that the prosecutor believe the person is guilty beyond a reasonable doubt. You don't just have to have evidence that you can prove the person's guilty beyond a reasonable doubt. You have to also believe

that it is more likely than not that you will win at trial. That's what the report was about. He had the evidence, he had some evidence, but he didn't believe he would win at trial. And then he lays out the reasons why. One is the Reagan defense, which will be Trump's as well. Those defenses actually very much apply to both cases in my mind. And then one of the four was the memory stuff. So I'm very annoyed with the White House sort of, it exonerated him and or he never should have written a report. And that's proof that he was out to get Biden. Don't worry about the fact that he didn't indict him. And very annoyed with the Republican defense of, well, it doesn't matter that Trump obstructed justice

and that Biden didn't, because what matters is that they both had classified documents in their possession. And it just totally ignores how you would prove willfulness to a jury. This is, you know, partisanship makes people awful. I mean, it just makes people awful in many ways. Now, sometimes not always mean, but it makes people sloppy. It makes people sort of, in a fundamental way, it really incentivizes

dishonesty. And let's be, let's just be really blunt here. In normal circumstances, with anybody, if you brought a lawsuit against an 80, not a lawsuit, a criminal complaint against an 81-year-old because he's in the White House. He either, you have to wait until Trump wins this time, or if Biden gets a second term until after that, you could be talking about an 86-year-old. But please continue. Yes. Yeah. But just move, remove it from politics for a moment. Like remove it from, so it's an 81-year-old man who has obvious memory lapses that you can see and read. There's obvious decay in his ability to communicate at the very least, at the very least. And prosecutors don't tend to bring those cases, right? They just don't tend to bring those cases. So in that circumstance, her's treating Biden like an ordinary citizen. But now, for the Democrats, just because of the stakes of the presidential election and because Joe Biden has made the decision on his own that he's going to keep, he's going to try to be,

continue to be president, then it becomes a moral imperative. It becomes for the sake of democracy, we can no longer say what's true or what's obvious. And this is what drives people insane about politics. And I guarantee you, it is not actually helping Joe Biden to have a bunch of people yell at you about an issue that's so obvious that you can see it with your eyes. And this is the thing that has so frustrated me about this conversation is because Joe Biden has chosen on his own to run for reelection. Nobody made this choice for him. He was not conscripted. He was not drafted.

He made the choice on his own. And therefore, it becomes a moral imperative to not say true things about your concerns. And that's not, you're not hating him by being concerned that he's 81 years old. This, this conversation is maddening to me. And I get why it's maddening to partisans because look, I'm, I agree that Donald Trump is awful. I mean, newsflash, I think Donald Trump is not great. And I don't, I want to see him lose. But if we have a political pattern in this country where we just can't say the truth because the truth is just too harmful for your position,

man, rethink your position. Don't rethink the truth, Sarah. Indeed. And we'll take a quick break to hear from our sponsor today, Rethink your position. Don't rethink the truth, Sarah. Indeed. You'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame.

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plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, let's move onames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, let's move on to these schools. David, you're going to brief us on some of the facts and these complaints. We've got three schools, two lawsuits. Go.

Yeah. Oh, guys, buckle up. Okay, I think the best way to describe the way how bad things have gotten at some of these schools is there was an act, this is an actual headline of ABC7 News in the Bay Area, okay? You see Berkeley students, you see Berkeley Jewish students successfully march without confrontation. It's news that there wasn't violence, Sarah.

Now, why would that be the case? Well, because earlier in the month, I mean, earlier in the year, in February, Berkeley students, Jewish students tried to hold an event featuring an Israeli scholar who also had served in the IDF. Now, there's universal conscription in Israel or near universal conscription. It is not like you're making an ideological choice to join the IDF when you're an Israeli citizen. Come on. But anyway, the event was scheduled for one venue.

It was moved to another venue to avoid what was thought to be imminent violent protests. And so when the protesters found the new venue, they broke the windows, they broke into the building. There are reports of assaults of students. There's a student who was interviewed by Campus Reform, and she described what happened. And campus and were not attacked. And that was news. Just let that sink in for a moment. It's news that there's a protest and that they're not attacked. Um, in earlier this month, there was a lawsuit filed against MIT, uh, alleging a, just an absolutely unbelievable cascade of abusive acts against students at Jewish students at MIT. And it includes, uh, details again. Now these are. Now, we'll do the standard advisory opinions caveat regarding complaints. These are allegations. These are allegations. MIT has put out a statement that, you know, one of these, we don't comment on pending litigation kind of statements. But the allegations are incredibly grim. And they include things like protests being so aggressive, so longstanding, and so threatening that they essentially become parts of the campus become essentially no-go zones where Jewish students are just warned away from parts of their own campus. invite invite now now we're going to back up and look at this from the legal perspective but just um just these are we're putting all this kind of anti-semitism out there uh inviting people to

speak on campus that had said anti-semitic things that were so gross that you can't even imagine that they're every bit as gross as if you had invited a member of the Aryan Brotherhood to come speak. So you have people who are every bit as anti-Semitic as, say, the Aryan Brotherhood. You have situations where there was a protest against students and faculty who were involved in a program involving Israeli scholars, and they were in their offices, and people were trying to break into their offices. They're scared, kind of huddled in their own offices. There is an incredible amount of double standards where the kinds of speech that had received penalties before, again, these are all allegations, the kinds of speech that had received penalties before, again, these are all allegations, the kinds of speech that would receive penalties if they were directed at anyone else other than

Jews suddenly become free speech in the eyes of the university when they're directed at Jews. Just, it's a very long complaint. We'll put it in the show notes. And it's just, I would say that the key elements of it are, number one, you have a lot of people who are blatantly anti-Semitic, who are brought on campus, engaged in, who are brought on campus, who, and no one of any similar outlook from other ideological views would have been brought to campus at MIT. But these people who are grossly anti-Semitic brought to campus. Protests that violate MIT policies, but where MIT policies were not enforced. So these are protests that violate MIT policy that were not enforced,

that not only prevented Jewish students from having full access to the campus, placed Jewish students in fear for their safety. Also, direct acts of intimidation, such as trying to come into offices, into locked office doors. The list just goes on. And that's MIT. And then at Harvard, now remember- Oh, but David, you left off my favorite one. Do the blood libel.

Yeah. So this is in that category of complaint where you've got tweets or you've got comments on social media that are just unbelievable. Now, they might be free speech and we'll get into the distinctions between free speech and harassment here in the complaint. But just this is what we're dealing with. So this is a tweet. Zionists not only steal our lands, food, and culture, but our dead bodies as well for organ harvesting. I feel like I've seen this movie before. Sounds like some crazy horror film. No? office told the students in an email, quote, I would be very cautious before accusing any of one of our colleagues, staff, or trainees of hate speech. Can I gently suggest in the same spirit of working against polarization that if we believe, as I genuinely do, that it is wrong to accuse Israeli soldiers of harvesting organs, it may also be a little misleading and inflammatory to

compare recirculating, in effect, an old and decontextualized but confirmed report to accusing Jews of murdering Christian children for ritual purposes. Confirmed. How helpful. Confirmed report. And this is coming from an administrator at the school where students are supposed to reach out. Right.

Exactly. Got it. And, you know, it's very difficult, actually, to summarize this complaint, Sarah, because it is so long. It involves so many different kinds of accusations, everything from, OK, yeah, you can put Palestinian flags up on campus in violation of certain campus policies, but Jewish and Israeli students have been forced to remove their flags. I mean, it's just one thing after another after another. And it's a big mix of some of it is utterly repugnant conduct that if MIT were a public university would be protected by the First Amendment and some of it absolutely clearly an act of intimidation or harassment prohibited by Title VI. And so it's just this giant mess. And what I would say, here is the

thing that came to my mind when I read it. And well, before I get to that, let me get to Harvard, because Harvard, the complaint has a summary statement that I think is really well done. And the summary statement at the upfront just sort of, it summarizes the essence of the complaints, the double standards, et cetera. And this one really zooms in on some of the double standards because that's the thing,

if you're dealing with universities, if you've dealt with universities for a very long time like I have, this is the thing that makes you crazy because you've been through massive confrontation and controversy on campus after massive controversy on campus where campuses take extreme actions

against sometimes quite normal and conventional speech that's to the right of the campus consensus. And then here you have these stories going on for page after page after page that would have caused the campus to shut down for mandatory counseling and teach-ins for days at a time to try to address the level of hatred, but it just rolls on. So here's a good summary. Harvard permits students and faculty to advocate without consequence the murder of Jews and the destruction of Israel, the only Jewish country in the world. Meanwhile, Harvard requires students to take a training class that warns they will be

disciplined if they engage in sizism, fat phobia, racism, transphobia, or other disfavored behavior. This is something that really gets at what we're talking about, this double standard. I highlighted it after the president spoke and that when the president spoke and they waxed eloquent about free speech, I said, you're the worst ambassadors for this. Harvard is the last ranked school for free speech.

Everyone can see what's happening. Everyone can see what's happening. Everyone can see what's happening. And so what then the complaint relates is, again, the same kind of behavior, extremely grotesque anti-Semitic statements, advocacy for violence, acts of intimidation, alleged acts of assault into one big giant stew where sometimes people are just subjected to grossly anti-Semitic speech. Sometimes people are put in fear for their safety. And here's how I would put this. Remember in the racial reckoning, Sarah, of 2020, we talked and learned a lot about systemic racism, that systemic racism was something where people, where institutions, sometimes even unintentionally,

found themselves in a position where blacks, where black members of the institution, black citizens, black employees, black students, find themselves facing systemic, consequential disadvantages merely because of their race. What we're seeing in these schools is what I would call systemic anti-Semitism. It is a process where top to bottom, the university has become hospitable to anti-Semitism, and it has become inhospitable to Jewish students. And I think that's the key

takeaway, is that from top to bottom, there is a culture that has been created in these institutions that sees all the nuance in gross antisemitic behavior, is extremely diligent in protecting the free speech rights of antisemites, and sometimes even goes above and beyond allowing them to violate university policy to spread their anti-Semitism.

And that is the culture that has been created on campus. And that's what I would call systemic anti-Semitism. And one last thing before I finish this monologue, Sarah, we have a long history in this country of, well, the great blessing of this country is that founding promise. All men are created equal, endowed by their creator with certain inalienable rights, among them life, liberty, and the pursuit of happiness. We are incredibly blessed with a constitution and a bill of rights that recognizes human dignity. But we have had a society that hasn't lived up to those ideals. We know this. And one thing that compounds that is that when a community has found itself marginalized, oppressed, almost always the

responsibility for liberating that community falls on that community. It was Black Americans who led the fight for civil rights. It's Native Americans who've led the fight for recognition of Native American dignity and humanity and equality, et cetera. And here we are in the year of 2024, and here's what really worries me. It feels as if it's just now overwhelmingly left to the Jewish American population to defend Jewish Americans. And it should be all of us. It should be all of us. And when I see a lot of what's happening on campus and K through 12 colleges. And I see the people raising their voices in alarm. Yeah, of course, in normal matters, it'd be disproportionately Jewish people because they've been suffering through it. But actually persisting in the defense of these American ideals, it

shouldn't fall just to the American Jewish community. Every one of us has to stand against this. This is utterly repugnant. And this isn't some backwater. These are the institutions that hold themselves out as training the next generation of not just American leaders, but often world leaders, Sarah. And read these complaints. And you tell me, even if half of the stuff

isn't proven in court, the half that's proven betrays a sickness that is just horrifying. It's just horrifying. And the moral superiority that you see out of some of these institutions is just utterly, totally unmerited. Okay, end rant slash filibuster slash factual summary.

For those who think this feels maybe a little like the David show today, just know that I dropped my kid off at school without shoes and he gave me pink eye. So that's where I am, just in my mental emotional state. David, I have an exact analogy from my own life that I'd like to tell you about and then ask you a question.

And I just want to point out, like just it's totally one for one, exact in every way, in every context. Okay. So when I was in school, it's important to understand that teachers universally did not like me. It is also important to understand that my best friend was perfect. She looked like Nicole Kidman,

long red curly hair. She was a ballerina. My mother one time described the sort of jungle-esque chaos when the school bell would let out in junior high. And then this like ethereal creature would be walking, parting through the student jungle atmosphere. And it was my best friend, Kenzie. Teachers loved Kenzie. So fast forward to senior year, I am taking BC Calculus, which is an AP placement class for like, it was at my school, the highest math you

could take. And Kenzie and I would do our homework together every night. And I was getting D's and Kenzie was getting A's. And I was getting pretty frustrated with this. So one time, I took Kenzie's homework and I compared every answer that we had before I turned it in. They were all the same. And I went in, turned it in. She got an A, I got a D and I was like, aha, now I've got them. And so I took Kenzie's homework from her without her permission. I did a lot of this to poor Kenzie. Apologies, Kenzie. And marched up to the teacher and said, we have the exact same answers. Why did she get an A and I get a D? And the teacher said, well, Sarah, it's not that your answers are right. It's that her answers are also wrong, but she has better handwriting. So your choices are that you

can keep your D and Kenzie can keep her A, or I can give Kenzie a D and you can keep your D. Which do you want? Hopefully you're seeing my analogy here of like, which do you want on campuses, David? Do you want two Ds or do you want some people to get the A and others to get the D? Like what is worse in your mind? And just as a footnote of what happens over the course of this. So I got a 5.5 on the AP exam. And you get that right before class lets out in Texas. And so my

teacher who had given me horrible grades on my report card, I then got the highest grade available in the country on the exam that is quantitative and not qualitative based on one's handwriting. And boy, she said she knew all along what a brilliant student I was. Oh, of course. Of course. So, yeah, what I want, Sarah, is protect students against harassment, protect rights of free speech and exercise the same sensible moral judgment about speech and about anti-Semitism when it comes from the left. No, no, no, David, I know that's what you want. I wanted an A. That's not one of the options, I fear. And so I'm giving you a choice. Oh. Everyone can have fewer free speech rights on campus. We can sort of lower everyone's free speech rights

to what the Jewish students have on campus. Or you can have uneven speech rights based on favored speech. And I'm just curious how you'd take that choice. I don't think that's the choice. I think that what you have here is a longstanding existing culture in these institutions that is morally broken and that there is an ideal, it's an ideal time for the law to intervene and for the law to create, to adjust incentives. And so, you know, one of the things that anti-harassment law can do that's genuinely good is it can protect students' sense of physical security, physical safety, and well-being on campus. That's job, that's minimal job one. harassment provision or robust anti-harassment construct is you also can create the, and what we have learned is it's very difficult to deal with harassment without dealing with the underlying moral cause of the harassment. And so one of the things that I think that is very important here is that the university, you need to expose the extent to which the universities have broken

their own public moral promises about being intolerant, inclusive environments, and that you impose consequences on them for both for their legal violations and also for their violations of their moral promises and declarations. And it might take some time, but what you have to do is you have to readjust the moral incentives on campus so that the path of advancement is not through what it so often is now, Sarah, edgy, radical, left-wing scholarship and speech. Because you and I both know, we've been there, we've seen it. The way the culture of these campuses works is if you say something one millimeter to the right of the campus consensus, you're going to either face social sanction often, or many times you'll face actual sanction. And then you'll encounter a wall of

administrators who look at you like you're an alien from another planet. And just by allowing you to be on the campus, they're somehow exercising their magnanimous. And then you can have the most radical, edgy stuff on the left. And the response is, that's challenging. That's interesting. That's intriguing. And this has developed into a culture in which mainstream right-wing speech becomes difficult to utter and radicalized left-wing speech is incentivized as somehow being almost inherently interesting or provocative. And it is now veered into a world in which that radical left-wing speech is just flat-out anti-Semitic. It's just flat-out murderous in many ways. And I think that the universities can, in fact, get a handle on that.

I think they can. I think they have the ability to get a handle on it. They just lack the will because of the incentive structure, and we have to adjust the incentive structure. Hmm. I fear this is gonna look more like shirtless than you think. More like, I'm sorry? The Boston City Hall case, where the result always in these cases of, well, we were going to just use our own sort of moral intuition on which flags could be flown.

And then someone wants to fly a flag that offends their moral intuition on which flags could be flown. And then someone wants to fly a flag that offends their moral intuition. And the result isn't, so now we let all flags fly at City Hall. It is never the outcome of these cases that the result is now we let all flags fly at City Hall. The result is we don't let any flags fly at City Hall. And I just don't know that that's the best result. It might be. It's certainly the, you know, there's only two legal options you have at that point. All the flags or none of the flags. But I just find it interesting that it's, I can't think of a single case where the sort of resulting government choice or authorities choice is all the flags. And that should be a little concerning.

authority's choice is all the flags. And that should be a little concerning. Well, it is concerning, but also City Hall isn't a major research university. And so they have, it's a very different institution. It has, the flag is just, it's a, the flag is just, it's nothing. It's meaningless to the mission of City Hall. But when it comes to open inquiry and the free exchange of ideas, and also, by the way, actual diversity where people from you know, a state government's displays, religious displays, where inevitably the Satanists get a religious display and the result is not, oh, great, now we have all the religious displays we want. The result is no more religious displays. Universities should be different, but will they be? Here's my counterexample. Harvard, MIT, and Berkeley are not the only elite universities in the United States of America. There's another one where the son-in-law attends the University of Chicago Law School, and my daughter is about to attend the law school. And I'm not going to say the campus has been utopian by any means since October 7th. But it is substantially different from Harvard, from MIT, from Berkeley, substantially different. And the difference, Sarah, is not that Chicago has cracked down.

It's just that Chicago has intentionally cultivated a culture of openness for a very long time. And so even when massive straining events like October 7th occur, again, I'm not gonna say it's perfect. I know there has been a couple of incidents on campus that I've been aware of, but it is far better prepared for this kind of environment than say Harvard was. Because Harvard was primed to be like this, because Harvard for years has been

an institution that has kind of cast itself not as a beacon of freedom and academic, I mean, a beacon of academic freedom and open inquiry, but it's been much more of a kind of social justice oriented institution with all of the ammunition on the left. And so, as so often happens when you get these kinds of ideological monocultures, the Cass Sunstein, law of group polarization, they become more and more extreme. And an open community, an open community is one that is less vulnerable to the law of group polarization. And so we do have elite academic institutions that have actually weathered this pretty darn well. Vanderbilt down the road in Nashville, one of the top academic institutions in the country

committed with its new chancellor to openness in the Chicago model. I think the quote he gave me was, I want to out Chicago, Chicago, which I then transmitted to the president of Chicago as a challenge. And he was the former provost, they're friends. And those institutions that have been dedicated to openness have been able to weather this storm. They've been able to fly all the flags, Sarah. We do actually have a counterexample. It is not inevitable that the answer is either anti-Semitism or universal repression. All right. Last up, interesting court case on a diversity office. David, once again, kick us off. So, Sarah, let me just start with the Washington Post account of this court decision. And the headline is Federal Judge Orders Minority Business Agency Open to All Races. A federal judge in Texas has ordered a 55-year-old federal agency created to help minority-owned businesses to open its doors to all races, a ruling that potentially imperils dozens of government programs that also presume racial minorities are inherently disadvantaged. This is a case, this is an opinion from a district judge, Mark Pittman,

and he ruled that the minority business development agency's presumption that businesses owned by blacks, Latinos, and other minorities are disadvantaged violated the Constitution's guarantee of equal protection. He permanently enjoined the agency's business centers, which have assisted minority-owned businesses in accessing capital and government contracts from extending services on the basis of the applicant's race. This is a quote from the case. If courts mean what they say when they ascribe supreme importance

to constitutional rights, the federal government may not flagrantly violate such rights with impunity. The MBDA has done so for years, times up. This just seems like an inevitable result after the Harvard case, Sarah, that in the absence of concrete evidence of discrimination, the use of racial classification as a means of granting advantage or disadvantage to anyone is going to be extremely constitutionally suspect going forward. Yes. And I think it underlines the answer to the question, is there such a thing as positive racial discrimination? Because that's really what

the affirmative action case was about. Now, I think the record in the affirmative action case could also be just read as just normal racial discrimination because of the record about how they treated Asian applicants. Right. But at least on the front end, the purpose of the case, I think, was to answer the larger question of can there ever be such a thing as positive racial discrimination or sorry constitutionally positive racial discrimination and so in some ways this case tees that up maybe more helpfully that question rather than having a record that showed in fact quite invidious racial discrimination just against a different racial minority this is a whole organization within the government

dedicated to positive racial discrimination. But in a similar fashion, the affirmative action cases, in order to put the thumb on the scale for one race, you must discriminate against another race. That race in this case is the majority race in the United States, at least for now. And that's what sort of failed in Fisher, the previous affirmative action cases. I don't know. I'll be curious. This is different in that sense. Like the record will be different.

And there was plenty of evidence, I thought, brought up of varying levels of persuasion for me on the 14th Amendment's history of actually having positive racial discrimination in the immediate aftermath of the 14th Amendment, and that the text does not seem to support that, but the history does. So, you know, text, history, and tradition, am I right? Yeah. You know, Sarah, this goes back to something we talked about a lot, which was, was it the right decision for universities to say, we are engaging in racial discrimination for the sake of diversity versus saying we're engaging in racial discrimination, positive racial discrimination to remedy past rate, negative racial discrimination. And yes, that is a better way to say the question that I was trying to tee up.

They teed up. The purpose might have been that positive racial discrimination to remedy past wrongs, but it turned out not to be the question that was teed up in the Harvard case. This case tees up that question. Yes. And now and this also tees up the difference between local and national standards. So, for example, if the affirmative action cases originally, you know, remember the first one came out of the UC system,

came out of California, not a state from the former Confederacy. I do wonder if University of California, which has a very different racial history than, say, Alabama does, if the very first affirmative action case had come out of the University of Alabama or out of Ole Miss just a decade or just less than a decade after the riots in Ole Miss over desegregating Ole Miss, if you would have had the same kind of outcome, because one of the things that you have with these big federal programs is you have a unified federal standard of positive discrimination, does that apply where the history of discrimination is very, very different? And I think that that's what the Harvard case was actually trying to get at was the majority

opinion was saying, no, you can still consider race, but you have to tie it to your race to an act of discrimination or to something that required additional perseverance, not just the simple fact of your racial classification isn't going to be the thing that can tip the balance one way or the other anymore. And I wonder with a minority business development situation, if you have a Black-owned business in the heart of Chicago versus a Black-owned business in the heart of Tupelo, Mississippi, are they in the same position? And those are the kinds of questions I think that, those are the kinds of questions

the next wave of case law is gonna have to answer. And with that, we are still expecting the decision from Judge McAfee in Georgia on what to do about a problem like Fonny Willis by the end of this week. So we'll have that before the next episode. In the meantime, he threw out several counts of the indictment, though not enough to make much of a difference, frankly. So that's all stuff that we might cover in the next episode. We'll see on the next Advisory Opinion.