Advisory Opinions - ...But Was It a Crime? (Live From Harvard)

Episode Date: April 2, 2023

Sarah and David return to Harvard Law School to beguile the next generation with stories of squirrel rescues and FedSoc of yore. Oh yes, and to discuss the Trump indictments. -FedSoc: Generations -What we don't know about the Trump indictments -Sarah and David, criticized -Stretching the facts // Stretching the law -What happens now? -Alan Dershowitz reminiscence -DeSantis and the Questionable Circumstances Exception Standard -Q&A Bonus discussion: Jonesing for Sarah's explainer on anti-perpetuity? Check it out on The Dispatch Podcasts YouTube channel. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to a live emergency episode of Advisory Opinions. I mean, it's not really an emergency because this was long planned, like way long planned, including last fall. But nevertheless, we would have done an emergency podcast regardless. So hard to say. But I am Sarah Isger and this is David French and we are live at the Harvard Law School. But David, a few notes before we really get started here. One, it is so weird to, as a former chapter president of the Harvard Federalist Society, to meet one's great, great, great, great, great, great, great, great, great grandson. I mean, it's like, it's been 800 years and I get to like visit my, you know, future generations.

And what's, I think weird about it is that like he does the three principles of the Federalist Society. And what I've noticed, I thought every chapter did that, but it appears to be a little bit specific to Harvard. And he did it with grand hand gestures. And really, again, he has genetically, it has been passed down to really hit that emphatically word emphatically. He's just elected. So this is his first day as Harvard Federalist Society president. And we have a email chain that goes back now 22 years of Federalist Society presidents. And we all send him messages. They can be snarky or heartfelt. And anyway, welcome to the fold. We are just waiting for you to screw up. Yeah. But also, David, this is, it's not my first time back, but for some reason,

the nostalgia hit me hard walking down Mass Ave. I will say it hit me hard too. And I'll tell you why it hit me hard because it was late March and the howling cold wind hit my face. It's much nicer today on Friday, Thursday, the wind was blowing pretty strong. And I thought now this feels like Cambridge. Where did you live? So I lived in, oh gosh, is it called North Hall? Oh, you lived on campus. I lived on campus. With the cool kids.

Well, for one year, for one year, and then I was at a literally rat infested apartment. I'm not even kidding. Rat infested apartment near Porter Square. They thought it was law student infested. You could hear the rats in the walls. When you would get up in the morning to go to the bathroom, sometimes they'd be just sitting there looking at you on the bathroom floor. My roommate who could not see without his glasses one day thought there was a gray wash rag on the ground. And he reached down and he grabbed a rat. And then in an interesting test of conservative economic principles shortly after we left

they lifted rent control and in Cambridge so I was in a rent control department they lifted rent control and within 18 months that rat infested apartment was a showpiece total renovation beautiful place like if you went to it now, you would say, what are you complaining about French? This is an incredible apartment, but I promise you it was so bad. We had mouse traps all over and you would be laying awake at night and you would hear the trap snap shut

and the mouths kind of thrash and die. And I felt no remorse, no remorse. I am impressed. Many of the like, you know, standbys are still here. Chang Show, which used to be a Federalist Society go-to lunch spot, still there. Cambridge Common, where I've made many a life mistake. Montrose Spa, that was my sustenance throughout. I actually lived on 3 Langdon Street, so right in front of Montrose Spa that was my sustenance throughout. I actually lived on 3 Langdon Street, so right in front of Montrose Spa. And in fact, as I walked by, I looked up at my old place. It is the sunniest, happiest apartment that I ever lived in. And the person who lives there had the window open the same way I used to have the window open right above the radiator because you couldn't

control the temperature otherwise. And it's really, it was this wonderful memory because I had, I got my two cats while I was in law school here and Zooey just passed away a few months ago. And Zoo used to love being at that window when it was open on the top floor and watch me walk back from class. And so I got to look up at that window and could almost see him there. So many, and then I told you the squirrel story, David. Yes. So on the other side of this building is the library, Langdell. And I was walking to a meeting. I'd just become Federalist Society president.

I was meeting with the executive, sorry, the editor-in-chief of the JLPP, which is sort of the sister journal to the Federalist Society here. And a hawk swooped down into one of those trees that has a little knotty hole in it. And it ate mama squirrel. And in doing so, knocked out, pushed out of the hole, two baby squirrels. And so me and the two baby squirrels are now up against the staircase going up into one of the classrooms at Langdell. And another squirrel comes up. And before I knew it, that squirrel had killed one of the baby squirrels. And so at that point, I felt quite responsible, you know, in sort of the legal sense for the remaining baby squirrel that now perhaps I had put into some danger. And so, but I was late

to this meeting. So what are you going to do? So I... You did the one thing that I would not expect. Well, no, now that I know you, you did the one thing I would expect you to do, but continue. I scooped up the baby squirrel, put it in my sports bra and went to the meeting. At the hark with the baby squirrel. And no one was surprised. Well, should we start, stop reminiscing and start podcasting? We'll start podcasting. So we have two big topics before we get to question and answer.

Obviously, the emergency pod topic, which is the sealed indictment of Donald Trump. But just in case you're not into that topic, I have provided a dessert incentive for those listening and for those who are here in person, which is the rule against perpetuities. That's right. We're going to finally do a deep dive into the rule against perpetuities because I love property law. And whether you do or not, you're going to do this with me.

The problem we have, of course, is that everyone in here is more immediately familiar with the rule against perpetuities than we are, because I heard about it in Property Laws 1L and have not heard about it again until I saw it trending on Twitter, what, two days ago? And I thought, well, I need to brush up on this. Well, here's the question, David, that when you saw the line in question that we'll get to and you saw 21 years, did you immediately know? No. What? No. Outrageous. But you have to realize.

Your property law professor is turning in their grave or very happily here still at Harvard Law School. You might have news for me. I don't. But that was 32 years ago. 21 years. I don't, but that was 32 years ago. 21 years. Anytime you see the phrase 21 years,

any normal person thinks drinking age and any lawyer thinks rule against perpetuity. I know, I know. It's my own fault. It's my own fault. Okay, but let's start with Trump. So David, is there anything new? Yes. Okay.

So, well, everything has changed and nothing has changed. The nothing that has changed is we- It was the best of times. It was the worst of times. The nothing that's changed is we still haven't seen the indictment. We don't, there's a ton of speculation that it was, is related primarily to Stormy Daniels. I have since been hearing information from people

in a position to not know, but suspect that there's more than Stormy. And then Trump truthed out today that there were 34 charges. So right now, we know there's an indictment. We believe it might be 34 charges. We can't know from Trump's truth if that's the truth, but so there's 30, that would be new. It would be very difficult for me to imagine 34 Stormy Daniels charges. So then the question becomes, if it's not 34 Stormy Daniels charges, what else could it be? Well, there's the McDougal hush money scheme,

which some of you guys may remember this. This was a Playboy playmate, I believe, who had an affair, alleged affair with Donald Trump. And instead of getting paid by Michael Cohen, the intent was to pay her through the National Enquirer apparatus. And so the question there was, would that be a corporate campaign? Is that an intent to try to engineer a corporate campaign contribution, whereas Cohen was allegedly an individual campaign contribution?

But I don't know that the McDougal piece of this really changes my underlying skepticism about the wisdom of the charges. But again, there's allegedly 34. So that's kind of a change from what we might've expected. We still don't know what it is. But then the other thing is, well, now we have an indictment. That's the everything that's changed part. And so what now? I think that we you know, we'll get to that. But before we get to the sort of process point, let's talk about a critique of our position on the Trump indictment.

Yes, we had an amazing listener who is, in fact, a attorney and prosecutor in a different state who basically picked apart our critique of the potential Trump indictment. And it was incredibly well done. And I think it's worth going through his critiques to critique his critiques of our critiques of the Trump indictment. Right, because this is going to be,

and again, this is a part dealing with the Stormy Daniels with implications for McDougal as well. If there's more to the indictment was to say, in essence, this, wait, to turn a misdemeanor falsification of business records crime into a felony, which would, to move from a two-year statute of limitations for a misdemeanor to a five-year statute of limitations with a felony, with the much more enhanced penalties that are inherent in a felony, you had to do a particular legal maneuver, which was tie the commission of the falsification of record business records misdemeanor to another crime. So if the falsification of business records was facilitating the commission of another crime, then you can turn that falsification into a felony with the enhanced penalties, with the longer statute of limitations. And the way we analyzed it was to say, well,

the other crime, what other crime of Donald Trump is this tied to? And the best thing that we could surmise was federal campaign finance violations tied to the Cohen federal campaign, Michael Cohen federal campaign finance violation prosecution. And so that's how we analyzed it, tying the misdemeanor falsification of business records to a felony federal campaign finance violation that was shaky because the federal campaign finance violation that was shaky because the federal campaign finance violation, A, is problematic under its own terms, and B, was never prosecuted by the DOJ.

So both the Trump and the Biden DOJ declined to prosecute. And that was the core reason why we said, this seems shaky. So Paterico, hopefully I'm pronouncing his last name correctly, said we're missing something. Yeah. So he has a few points on this. One, to the extent I said that it had to be to sort of facilitate Trump committing the crime. His point is it could also be simply to hide the crime, not just to facilitate. Fair enough.

I, you know, loose lips sink ships. My whole thing is about being precise and I was not precise enough. So yes, he could be guilty of it simply for trying to conceal this additional crime. But more to the point, his second argument is that it doesn't have to be Trump's crime. It's just any other crime. What about Michael Cohen's, right? Michael Cohen pleads

to the same federal, well, it's not the same, similar federal campaign finance charge. Why can't it be that the Trump state falsification of business records was an attempt to hide Michael Cohen's federal crime of campaign finance violation. That's a pretty good point. And I think that there are weaknesses to that because you've got to prove a lot more stuff. You don't have to prove that Trump knew he was helping Michael Cohen commit a crime, But you do have to prove a level of knowledge, right? It can't, you've got to show something connecting into like, he knew he was hiding payments, for instance. He knew he was falsifying.

Right, right. And he was falsifying to support Cohen's actions. And then the third one, and then I'll come back to each of these maybe, is, hold on, what was the third one? I'm Rick Perry. And the third one was repeatedly saying that the Department of Justice had declined to bring these charges without saying why the Department of Justice had declined to bring the charges, because those varied at various points within DOJ history. You know, one reason why the Department of Justice could have declined to bring the charges was that Trump was the sitting president

and there's multiple OLC opinions saying that you can't indict a sitting president. That wouldn't go to the merits of whether Trump had committed a campaign finance violation. And in fact, by virtue of the Trump Department of Justice charging Michael Cohen with a federal campaign finance violation

that he then pled to, isn't that evidence that in fact, DOJ very much thinks that these or similar actions, i.e. not reporting as a campaign expenditure, hush money payments basically, is in fact a campaign finance violation, regardless of what happened in the John Edwards case, which I talked about at some length, where the Department of Justice went to trial, in fact, against John Edwards on six counts related to a donor providing money to his mistress, saying that that was in fact a

campaign expenditure. The jury hung on five counts, acquitted on one, and DOJ dropped the charges. You have the former head of the FEC saying in no way is this a campaign expenditure because if you can't use campaign donations for it, how can it then be a crime to basically not use campaign donations for it? I still think that's a very strong argument, but the fact that Michael Cohen pled to that, it undermines that argument. I don't think it demolishes it. No, it doesn't demolish it.

It does undermine it. It makes the argument more difficult. And I think the point that, look, the point that, of course, the Trump DOJ didn't prosecute it because the Trump DOJ was barred by policy against indicting a sitting president. Good argument. Good argument. No problem with that argument. Now, what about the Biden DOJ argument? The Biden DOJ not prosecuting. And his argument was they didn't prosecute because he'd done a lot of worse stuff.

That's not really how DOJ works. Yeah, I do think that he's done worse stuff. I agree completely with that. But my issue was not that the DOJ declining to prosecute settled the issue. That in other words, this is not a crime because DOJ and its exercise of prosecutorial discretion can choose not to prosecute things that it believes are a crime, but will not prosecute for allocation of resources purposes or other purposes. So my position in stating that the DOJ had not prosecuted it wasn't that that therefore means it wasn't a crime.

I took it in the totality of the circumstances, including the failure of the John Edwards prosecution, the legal complexities of the campaign finance charge themselves, and the declining to prosecute. All of those things together said to me, this is a tough case. Not that it's no case at all. It's a tough case. It's also not clear to me that the state law can be bootstrapped to a federal law. And all the more so if there isn't a conviction related to that federal law, because how does a state prosecutor prove a federal crime without the conviction? I mean, and that, again, it doesn't

really matter why DOJ declined to prosecute at that point. They didn't prosecute. Right. And the other thing that I think is important to point out is that the idea that this is a novel legal theory to bootstrap a misdemeanor falsification of business records to a felony federal campaign finance violation. The idea that this is novel or a bit of a stretch is a view that has been held by people who also very much want to prosecute Donald Trump for other violations. For example, when Bragg, it appeared that Bragg was not going to prosecute, then he had some attorneys quit on him. And one of the things that, and one of the former attorneys, Mark Pomerantz, wrote a book, basically saying, here's my book-length indictment of Donald Trump. But even he called

the Stormy Daniels-related indictment, quote, too risky under New York law is how the Times characterized the report. A Reuters analysis called the payments, the prosecution's theory about the Daniels payments is, quote, untested. Another Times analysis called it largely untested. And this is talking to people who are not exactly Donald Trump's defenders. And this might come as a surprise to most of the room. I'm not also traditionally one of Donald Trump's defenders. And I find that shaky as well. But I will say that the piece, the Patergo's piece about another person's crime is a very valid critique. I think that's a valid critique of our analysis. And it does,

I think it is a perhaps a better way of looking at the possibility of bootstrapping in the other crime is Michael Cohen's already existing guilty plea. I acknowledge, I think that's a solid analysis and a better way for the prosecutor to pursue it if he chose to do that. Yeah, you could also potentially even have Weisselberg who pled to tax-related crimes, false, you know, that Trump knew and allowed the falsification of business records for the Trump organization in order to conceal Weisselberg's crime. So it can go along many different directions on that. Paterico was good to point that out. I want to do a couple of big picture critiques as well. One of which is turning a misdemeanor into a felony because you use the misdemeanor to commit another crime,

why is that weak? Why does that bother you? Oh no, it doesn't. I want to be very clear. That gets charged all the time. I am great with it. No problems. The problem here is it resting on this federal charge that I don't think is a crime. And this gets to the second critique that I've gotten, which is prosecutors overcharge people all the time. Why aren't you doing, you know, podcasts and writing op-eds about how unfair all of that is? Yes. And we have. Well, and we have. To be clear, yeah. People don't have to listen to every single episode.

Right. I want to draw an important distinction between factual stretching and legal stretching. So a prosecutor who takes the elements of a crime and says that the facts of what you did, I'm going to stretch and make them sound worse, or maybe you didn't even do some of these facts, and I'm going to charge you with that crime. I'm not saying that's great, but that to me does not in any particular way undermine the rule of law. As long as there is probable cause, for instance, for the arrest warrant and stuff like that, stretching facts may not be good. It may even rise to the level of unethical at some point. But it is a factual

dispute basically about what you did, not about the law itself and the elements of that crime. My issue here is that they're stretching the law itself. I am willing to say that Donald Trump did every single thing that Alvin Bragg says he did in that indictment. All of it. 100% no changes. And then my point is that's not a violation of the law. That's the problem. And that's the difference. And that's where I think you undermine the rule of law by stretching the law. And the example that I've used, David, is treason, because that's a light topic that everyone enjoys. Wait, well, there is such a thing as light treason, according to Arrested Development. If you don't want to go to law school,

just watch Arrested Development, because that has some really good legal lessons in it. Bob Law's Law Blog. That's, yeah. But I only acknowledge the existence of the first three Fox seasons, not the latter two Netflix seasons. Aren't you missing the chicken salad season then?

The chicken salad one's pretty good. Anyway. Nope, didn't exist. Okay. So imagine if the Department of Justice charged Trump with treason related to his retention of classified documents after the statute of limitations had run on the actual crime related to the retention of the documents themselves. Treason is a crime, right? It's not that they've just arrested him for no crime. That's also not my argument here. But nobody has ever been charged with treason because they held on to classified documents. The elements of treason would have to be stretched beyond their textual limits, their purpose to achieve a desired outcome. That is my point about the difference between stretching the law versus stretching the facts.

And I think it is a important distinction because I am not all upset about the rule of law for stretched facts. Again, I'm willing to take at face value all the facts. Well, and I think another example without going to light treason that is really appropriate here might be the Bob. Well, and I think another example without going to light treason that is really appropriate here might be the Bob McDonald prosecution,

which we talked about before, because that was a situation where the facts, I mean, there were some facts in dispute, but even assuming the truth of the facts, the question was, was what he did a crime? And that's where the Supreme Court, what was it, 8-0? This was before Gorsuch's confirmation.

8-0 said he was prosecuted for something that's not a crime at all. And that was the key dispute when Bradley Smith and I went back and forth in 2018 about Michael Cohen. Bradley Smith's contention, he's not just anybody, former FEC chair, said, look, Cohen pled guilty to something

that wasn't a crime. And so there is a very strong argument that in fact, Cohen, for whatever reason, capitulated on a case that he never should have capitulated on. So that's... And that's where the Paterico thing, it's meaningful to me that Cohen pled. And so there is a crime, for instance, that you could bootstrap sort of as a pejorative term,

but that you could tie into the state charge. But to me, it doesn't prove that the facts are actually a campaign finance violation because I don't think they are. I think Cohen pled to something that's not a crime. That's why it's important to have good lawyers, which is why all of you are here. Don't let your clients plead to things that are not crimes. Yeah, that's a good general advice. And I'm very cognizant that as we talk about this,

we might be talking about five of the 34 charges. Yeah. So let's do process. What happens now? Right. So when the indictment is unsealed, we may actually not know that much more than we know now. We'll know more. Don't get me wrong. But sort of broadly speaking, two different types of indictments. One indictment is just going to list each of the counts. But a speaking indictment is basically a novel that the prosecutor gives you of their entire opening

arguments at trial, basically. And it's really fun. So to give an example of this, the Department of Justice during the Mueller investigation, when they indicted 12 GRU Russian intelligence officers, that wasn't going to go to trial. So we released a speaking indictment that had the whole narrative for you. So you got a real nice flavor for what the Department of Justice was saying had happened. I will be very interested to see which direction Bragg goes.

I think there's arguments for both, frankly. And I think it will tell us a lot about Bragg as a prosecutor in terms of which one. Do you have a strong opinion on which one will or should be? I'm fully expecting the speaking indictment. And it's interesting, just as a sort of a bit of history, that speaking indictment style got popularized during the mob prosecutions of the 80s and early 90s. And one of the pioneers of the speaking indictment was none other than the star of the show at Four Seasons Total Landscaping in 2020, Rudy Giuliani,

who pioneered and used the speaking indictment. And I remember one of my favorite class days was when I had the ethics of the criminal defense lawyer taught by Alan Dershowitz. Let me just say, he did no work at all in that class. And it was my favorite class because all he did is he brought in prominent defense attorneys every single day for an off the record conversation with us. No recording devices, no attribution. But I think after 30 years- Wait, I had him for a class

called like Jefferson and the Law or something. And Thomas Jefferson did not come up for the first three classes. OJ did. For me, it was the Von Bulow. Oh, yeah. So this was pre-OJ. Whoa.

I know, I know. I know exactly how old I am. I just feel younger. Was there a world pre-OJ? Yeah, there was. So one of my favorite classes is he brought in a mob defense lawyer, somebody who openly bragged about being paid in bags of cash

and how that created tax challenges because he wanted to be not the Al Capone of the legal profession, you know. And he talked about the, but he, the most interesting part was he talked about how the Giuliani speaking indictment practice was inherently prejudicial to a defendant because it put into the public square the prosecution's version of the case in a way that the defense could not readily respond to. And it's one of the reasons why it's so popular with prosecutors is it's a first shot at the jury pool in some ways. So I fully expect a speaking indictment. I think that's fair. So the next step, right, is arraignment. Yeah. And this gets us to the question of how that gonna work?

I thought it was odd. A lot about this case is odd to me. So for instance, the reason that we all were drinking heavily by 5 p.m. last night thinking the world was fine was because we knew the grand jury wasn't meeting for the next month through the month of April. And everyone assumed that meant that Bragg was going to put the brakes on and let Georgia go first. When in fact, the grand jury, you know, I'm kicking myself for not saying this out loud, but the alternative option was that the grand jury had finished its work and had already indicted him two weeks ago.

And that it wasn't that Donald Trump had played us by saying he was about to get arrested, that in fact, Bragg had played us by having this done and not then actually releasing the indictment. So why did he hold onto it for two weeks? I don't know. And then last night as the sealed indictment leaked, then it's also been reported that they asked Donald Trump to surrender today.

That's like, well, wait, if you sat on it for two weeks, then why the urgency to have him surrender the next day? So there's all sorts of weird shenanigans going on around this. But the question will be whether Donald Trump surrenders himself like the vast majority of people do, or whether he declines to do so because Ron DeSantis has made a big, and what I might argue, unwise bet on what Donald Trump will do. So Ron DeSantis basically sees that Donald Trump has agreed to surrender and is like, cool, cool, then I definitely wouldn't extradite him. Because then he gets all the political benefits of saying he wouldn't extradite

Trump without ever having to be tested on whether he would extradite Trump. So if I'm Donald Trump and I haven't actually surrendered yet, and also F Ron DeSantis, why? I'm so proud of you for censoring yourself there. Yeah. Thank you. At the University of Kentucky, she dropped three consecutive F bombs

like they were like J dams being dropped on ISIS. And poor producer Adam only caught two of them. It was a whole thing. There are people who listen to this podcast driving their children to school and I'm very cognizant of that. And I try to be respectful of them most of the time. I got worked up at Kentucky.

Okay, so is Donald Trump gonna call Ron DeSantis' bluff? I would say, okay, gosh, no, I'm going to say no. There was a report that he's already planning to be arraigned in New York on Tuesday is the latest report. But when the governor of Florida says, Florida, quote, I'm reading the quote, Florida will not assist in an extradition request

given the questionable circumstances at issue with this Soros-backed Manhattan prosecutor and his political agenda. Oh, right, the legal standard of questionable circumstances. How did we forget that when we talked about the standards for extradition? I mean, Article IV of the Constitution mandates extradition

in the absence of questionable circumstances. No, this is not a call that is Ron DeSantis' to make. Article 4 of the Constitution requires extradition. There is, I believe it's the first or second of the Congress of the new republic enacted that requirement into statute. The Supreme Court has said it is not optional. I don't have the ability to refuse to indict.

There are some limited circumstances where you can delay extradition. I said refuse to indict, refuse to extradite. There are some limited circumstances where you can delay extradition, such as if you're already trying the defendant for a crime in your jurisdiction. Right, you can't steal defendants. But you can't steal a defendant, right?

And, but he has no ability to block extradition. Including if the statute of limitations had clearly run. Like there's no even argument, statute of limitations is over. Those are questionable circumstances. You got to hand him over. Got to hand him over. So there's no discretion. And my view is Trump, I don't know, will not, that he will surrender. That's my prediction, but that is worth nothing. Okay, but David, Ron DeSantis went to an otherwise decent law school. We have talked about our skepticism around Ron DeSantis' love of civil liberties

when it comes to First Amendment issues before. This actually bothered me. Yeah. Oh, it bothered me, but I was bothered by a lot of things before this too. So yeah. I guess with some of the first amendment-y stuff, there were arguments on both sides. I think one argument is worse and loses. There's, this is a pure political statement with no legal basis from someone who should know better. Yeah, correct. And even if he never learned this, his legal team certainly did. And we'll take a quick break to hear from our sponsor today, Aura.

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to DeSantis and Disney? Yes, so how exciting. You know, again, on things we're kicking ourselves for not talking about, So how exciting, you know, again, on things we're kicking ourselves for not talking about when Ron DeSantis changed the, what do you want to call it? The body that was overseeing the Disney property. Disney was very quiet about it. And I'm kicking myself for not saying that's weird. Yeah. Because it was weird. Disney had all sorts of claims that they could have brought around that and they didn't.

And now we know why, because Disney had a plan. And their plan was to, in the waning hours of the Reedy Creek District, vote, have the board vote on a restrictive covenant that basically stripped any future board of all power. And in doing so, we'll talk about whether we think that will stand up and what potential problems there might be with it. But also there's an important line in there that the restrictive covenant is good in perpetuity. And if

that is found to violate the law in any respect, it shall continue until 21 years after the death of the last survivor of the descendants of King Charles III, King of England, living as of the date of this agreement. And yes, this will be on the bar exam. Yeah. Yeah. That now the question. So I'll let you shepherd the rule against perpetuities discussion. All right. You do the contractual problems. Yeah, so that is the rule against perpetuities issue. But the more interesting substantive issue is- Not more interesting. No, I reject that right off the bat. No, more interesting substantive issue is-

I will fight you. Can they do this? Can they strip the board that DeSantis has appointed of virtually all power? they strip the board that DeSantis has appointed of virtually all power. And now let me tell you my answer very clearly. I have no freaking idea. This is so deeply in the weeds of Florida law that I've talked to Florida lawyers who don't know specifically,

but have strong feelings that probably, yes, it will hold up. But even if it is shaky, there are reasons why Florida and Disney might just call it a day on this. And that reason is if Florida sues, that's when Disney would uncork all of the legal claims that it held in abeyance while it was planning to undermine the Reedy Creek Improvement District Board's powers. So there is a very strong First Amendment retaliation claim against the DeSantis administration in the state of Florida for the stripping of the Improvement District, followed by the appointment of the new board. There are very strong retaliation claims that Disney never brought.

Kind of surprised me. And again, I'm kicking myself because obviously Disney had a plan. So when it comes to the merits, there are some off the top of your head arguments that we have talked about a little bit, like, is this kind of stripping of powers from a governing body against public policy? Right. A contract can be void if it is against public policy. So for instance, there are certain powers that the government can't give away. A state government can't leave to a private entity to provide you, the neighbor, you know, a fire department in theory. But if it is a private fire department, it's still a public fire department in many ways, right? It's complicated, but there is such a thing as essentially trying to do what contract law won't permit you to do.

Oh, like, I mean, this is a real example of a contract void against public policy, a hitman contract. Right. It can all be good contract otherwise, but if it's for a hitman, it's void is against public policy. We don't just honor that contract. Right. But I will tell you this as somebody who's done commercial contract litigation for years, or I did it for years. If you're arguing void against public policy, that's your last ditch. That's everything. All of the walls have fallen and you're in the inner citadel like Theoden and Helms Deep. That's your last line of defense. So, but that's not the only one. We don't know what the consideration was,

as anyone in this room knows. You can't just contract on one side getting a benefit. The other side has to get a benefit as well. So what is the benefit to the board, if you will, that they got in exchange for giving away all this stuff? A vacation? And, you know, for instance, sometimes you'll see a dollar in these contracts. That would be questionable. If Disney gave a dollar in exchange for all of this,

that could be a lack of consideration. And then there's the hyper-technical elements of Florida law of which we're completely unfamiliar. And I've heard a number of people say, but Disney's lawyers would be good enough to dot the I's and cross the T's. Probably, probably, but not certainly. And then there's what's probably the strongest argument

and the leading argument whenever you're trying to collaterally attack a contract, which is a violation of your fiduciary duty as a Reedy Creek board member. So they have responsibilities to the Reedy Creek board itself and to the state of Florida that perhaps they violated in giving Disney so much.

It almost ties in with that consideration issue in some ways, but again, not necessarily our- Yeah, this is going to be, if it is fought out in court, it's gonna be fought out on the terms of some really obscure elements of Florida law. And the interesting thing is the Disney counterclaims could get quite interesting because in addition to the retaliatory elements of the initial decision, there's a lot of evidence

that the new board members were intending to use the government power that they were wielding to control Disney's First Amendment protected expression. And you can just go to the Twitter feed of some of these folks, one of them in particular, and it's all over the place. And so it's gonna be very, very interesting to see what happens. But again, this is diving into the weeds of Florida law to a degree that I'm not super comfortable.

But you think part of the reason for this might be that Disney is trying to avoid litigation. Yeah. So we'll see if that works. Yeah, we shall see. All right. We'll take a quick break for those who have class at 1.30. Quickly, and then take questions.

Thank you, guys. So the question is, if you're concerned about free speech on campus, and if free speech on campus is in a state of disrepair, to put it mildly, what can students do to contribute to the restoration of a culture of free speech, creating a culture of free speech? It's a really good question. It's one that I dealt with when I was here. We had a culture of shout downs when I was here. We had cancel culture before anybody knew what cancel culture was. There's even an article you can read that sort of tells the story from 1993 called Beirut on the Charles,

which has a real ripped from the modern headlines feel until you look at the pictures. And it's all the 1993 fashion, which is- So many shoulder pads. Yeah, lots of shoulder pads. But anyway, one of the things I think that is really important is, and I just, I think of this as a general, a good general life rule, and that is exhibit the values in yourself that you would like to see in others. And so one of the things that was really infuriating to me when I was a student was this very notion that I couldn't say my thoughts, even when I wasn't being malicious, when I wasn't

trolling, even though we didn't know what trolling was then, when I wasn't being anything, the very expression of my genuine religious, political, cultural, whatever views was deemed too offensive to hear. And one of the things that I vowed was, I'm just not going to be that. I vowed that I'm not going to be an offendable person in the absence of overwhelming evidence of actual malice, not in the New York Times v. Sullivan sense, but in the sense of human beings, that I wanted to be a sort of, for lack of a better term, a walking safe space for conversation. You can talk to me about anything. And so therefore, by exhibiting the thick skin to hear your point of view, it laid the groundwork for some reciprocity.

And sometimes the way I would do it is you go first, say whatever you want to say. And that would create sort of the terms of the conversation in a way that allowed me to respond. Again, not in a malicious way, but in a heartfelt way. So a big part of it is being open to the very kinds of conversations that you want to engage in. Then the other thing is understand often that when people are angry at you, there's often a larger group that still wants to hear from you. And that was a big component that I've confronted, not just here, but elsewhere over the years when I've gone to colleges and been protested. There's often, unless the protesters just take over the whole room, a larger group of people who actually want to hear. So it's a combination of tolerance and perseverance. Have a high degree of tolerance for other people's views and a high degree of patience and perseverance

in presenting your views. Because just don't let censorship prevail to the extent that you have any say in it, to the extent that you can keep talking, keep talking, just push through. And that's not a license to be a troll or anything like that. But understand that the mob, to the extent that's not a license to be a troll or anything like that. But understand that the mob,

to the extent that it's a mob, often doesn't represent the majority. And the majority actually wants to hear a conversation. I mean, the only thing I guess I'd add to that is I wish we could share a definition of the word tolerance. You don't tolerate that which you approve of and agree with and celebrate. That's not tolerance.

That's affection. Yeah. Tolerance is for that you loathe, disagree with, find horrible or offensive. Inclusion, similar definition in a lot of respects. And so I think the more we can think of free speech as protecting that speech, which you hate, we don't need free speech laws to protect the speech we all like. Then it's just called having a nice conversation, a chat out, you know, in the garden.

Same with tolerance. And for some reason in the free speech context, we seem to intuitively know that a little bit more than in our personal relationships when we throw around words like tolerance and intolerance. And I wish that we could have more of those conversations. My favorite discussion of tolerance comes from a guy who used to write under the pseudonym Scott Alexander in one of the greatest blogs of the old blog era. And he tells a story about talking. He's living in a very, very blue area and he's talking to some of his friends and colleagues

and says, you know, would you consider yourself a tolerant person? And the response is, well, yeah, absolutely. I love people of all races, sexual identities, sexual orientations, et cetera. And his immediate response is, well, then what are you tolerating? What's there to tolerate?

If you're just liking everybody, you're not tolerating. And I think that's a really important point. Tolerance presumes, the actual word tolerance presumes that there is something to tolerate. Other questions? No questions about the fertile octogenarian or the precocious toddler.

The question is, we've talked a lot about the decay in the rule of law. What needs to happen to shore it up and to protect it for future generations? I do think it's important to remember historically that the rule of law has always had a few very strong defenders and a lot of people who don't get it at all. And we have always had a country that is a republic, right?

It's not a democracy. We don't let the majorities decide. And if we did, well, historically, there's never been a democracy, a pure democracy that has survived for good reason. about a democracy, a pure democracy that has survived for good reason. Throughout our history, you can find mobs demand all sorts of things that violate the rule of law, some of which are funny and some of which are deeply unfunny. You know, I had talked about that book, American Midnight, about the civil liberties violations during World War I. You know, there's this one story from it that is just, there's several that are horrific, but one just stuck out where, you know, a mob grabbed a man, a black man and killed him. And when his wife protested, you know, that he hadn't been

tried, that there was no jury, that he hadn't been convicted. They strung her up from a tree and cut out her baby and then stamped the baby to death on the ground while they killed her. That's mob justice. That's not understanding the rule of law and it's not new in American history. So it's not that I'm expecting everyone to listen to this podcast and agree and sing kumbaya as we all praise the rule of law, but it does make it really important for that small group of lawyers

to understand how precious it is and how fragile it is and how the country doesn't survive without it. And that's what I'm concerned about. Not about all sorts of people saying, good, Trump's been indicted. Karma bees. It's the lawyers who say they don't care. And it's the lawyers who aren't saying anything at all. That's what concerns me right now. at all. That's what concerns me right now. I think that's exactly right. And just from historically speaking, we're actually living in a golden age of the rule of law in the United States of America, just given the historical perspective. And I want it to stay that way.

I want it to stay that way. And I look at it like this. Think of the rule of law, the risk of oversimplification and having really two major components, just laws and just processes. And each one sort of, you can't have the rule of law, you can't have a really effective rule of law if you have the most fair processes in the world, but the laws that the processes are applying are absurd and ridiculous. But you can actually survive some absurdity and ridiculousness in substance. For example, if the brag indictment, if is as weak as we think it might be,

then just process helps correct for an unjust charge. And so one of the things I think is very important is to uphold both. And that's why I get nervous when I see things like Tucker saying last night, talking about this indictment, this is why we don't need to give up our AR-15s. What do our AR-15s have to do with the Trump prosecution? Exactly nothing. Or when Glenn Beck was again on Tucker's show and he says,

by 2025, we're going to be at war. The Bill of Rights has been shredded. When DeSantis says, I'm not going to assist in the extradition, these things are attacks on the process. And so there's a reason why we, this is not, even if this is weak, again, with the if, that won't be the first time we've had a weak indictment brought against a prosecutor. Rick Perry was prosecuted for what, a veto threat by local prosecutors in Austin, Texas. And Rick Perry, in the grand tradition of Tom DeLay, shows up, gets arraigned, grins for the camera, for the mugshot, and then goes and beats the charges. And so the charge was degrading the rule of law. Rick Perry's response to the charge

of following legal process peacefully and defeating the charge sustained the rule of law. And so I look at it in those two components. Good answer. Thank you. Yes. So the question is, what relationships from Harvard Law

helped us the most in our weirdo careers? It's a great question. Mine is so ubiquitous as to be difficult to pin down. I think yours has been less so, but there is not a job that I think I have had that doesn't trace back to a relationship that I had at this law school. I got a job on the Romney campaign in the legal department from I had at this law school. I got a job on the Romney campaign

in the legal department from an alum of this law school. And then I went to work for Ted Cruz, who was an alum that I met at this law school when he mooted a case here. You know, my first, well, no, that's not true. My second job at the Department of Justice was for an alum at this law school. The first summer associate position I had was for an alum of this law school. All of those people have stayed mentors of mine. One of the most fun things that happened recently was that I was on a panel with Jack Goldsmith, who was one of my professors here. And I hope I'm not betraying any of Professor Goldsmith's confidences here, but he was like,

it's such a proud moment to be on a panel with one of my former students. And that is a cool thing. And I don't think it's Harvard specific, for those who are listening who aren't here. It is investing in the community that you're in, in law school or college or high school or anything else and wanting to invest in other people and my you know best girlfriends by the way from going here who I actually like we're we were all in one l section together none of them are

conservative this isn't like some federalist society cabal, though there's a lot of Federalist Society cabal stuff in my career. But funny enough, my like actual best friends were all very liberal. I owe my entire career to the relationships I made here and in a way that's not, you might not expect. And so, you know, like a lot of folks coming here was a wonderful, for me, even though it's a super contentious time, I loved it. And not always for great reasons. I found out I have a little bit of Sith in me. So like, you know how the Sith gain power from the anger of their enemies? Like when people would shout me down in class, part of me was like, yeah, but, um, the, the, uh, what really, it wasn't so much that, uh,

I owe my career to relationships because of connections in the way that you normally think it's, I made close friendships here And we were all across the political spectrum and we stayed in and still stay in daily contact. And because we were all across the political spectrum and because we're all quite passionate about our beliefs and because we loved each other as close friends, we were able to engage in intense, intense conversations for years

about issues of national importance that nobody was reading but us, but we poured our energy and effort into. And I promise you that forum is where I learned to write. I'm not even exaggerating. It was that testing, that back and forth with my peers from law school that really formed my ability to do what I do today.

And that sounds crazy, that sounds strange, but it's actually the truth. And then the other thing that I would say about, let me just say this, you're gonna make friendships here because you're going through a difficult experience together and people kind of bond together in that kind of environment,

prioritize retaining these friendships, not because of career, but because of you. And one of the things that we're finding in this country is that people have fewer friendships than they did 20 years ago, 30 years ago. Men especially, but women too have fewer friendships. And why is that? Well, one of the reasons is people make friends, get busy and lose touch with friends. And why is that? Well, one of the reasons is people make friends, get busy and lose touch with friends. And then when they're in their middle age, like my age, they're like, where did my friends go? Middle, middle, early, mid, early, mid, early, mid. Google tells me that like dramatic life extensions are coming in quickly. So we'll say first third, first third. But-

Words matter, David. But retaining these friendships, forget careers for a minute. It's incredibly important for the rest of your life. And you're gonna make some great friends here and hold onto those. What should other law schools do to prevent the

attacks on free expression and scholarship if they're not being led by Elena Kagan? That's a really good question. So I think there's a top down and bottom up answer. So I think the bottom up answer is one we've actually talked about a little bit before on advisory opinions, and that is admissions committees are not selecting random samples of high achieving students. They are taking a huge pool of very high achieving people and selecting and building and intentionally building communities. And one thing that I would urge admissions committees to do is intentionally build intellectually diverse communities. Intellectual diversity and viewpoint diversity is an underappreciated aspect of diversity on campus. It is not true diversity, even if you have a kaleidoscope of Americans who are representative of all of America's ethnicities and sexual orientations, et cetera, and all think alike.

That's not a good, that's not a truly diverse environment. So I think that admissions committees should intentionally, and I've been on an admissions committee before. I was on the admissions committee when I taught at Cornell Law School. And so I've seen how the sausage is made and it's a bloody process,

but you actually can intentionally shape amongst highly qualified candidates for, and you can intentionally shape your environment to be more intellectually diverse. And then from the top down, I honestly thought that Stanford Dean's memo was fantastic. That on multiple fronts, one, I love the mandatory First Amendment re-education camp. That's a re-education camp I'm going to endorse. A First Amendment re-education camp. I thought that was fantastic.

I endorsed it. Number two, though, that I thought was really interesting was she basically came out and said, don't look to the school to mirror all your values. Don't look to the leadership of the school to put out statements and to mirror what you believe. And it reminded me, I was at a conference at Duke where a bunch of college presidents were talking about when do we put out statements? And I was the last person to speak

to address the issue from an academic freedom standpoint. And I got up and my first words were, have you considered not? Like I remember, you know, one of the biggest event of my college years was the launch of the Gulf War. Okay. So this was Saddam Hussein invades Kuwait, massive, we mass troops on the border of Kuwait. And the decision is, do we go or not go? And do you know what? I do not remember whether any of my college administrators put out a statement on Desert Storm. Why? Doesn't matter. Doesn't matter. And I think there's this world in which a lot of these institutions are thinking to placate students, we have to stand beside them in some sort of concrete way. And I love the Stanford

Dean sort of saying, yeah, no, we might not. I'm going to give a crankier answer. I think intellectual diversity is important, but it doesn't mean much if the people believe intellectually diverse things are then an intolerant to people who don't believe the diverse thing that they believe. Because then you just have a whole bunch of people who believe different things sitting in a room screaming at each other, as we've seen play out now at university after university. So the admissions office either needs to bring in a class of people who not only are intellectually diverse and diverse on any number of other metrics and value diversity and tolerance and want to learn from that culture of intellectual diversity,

or if they don't want to screen for tolerance, then they have to inculcate tolerance. And right now we've seen neither of those two things from a lot of these schools. It's a bundle of sticks, right? You can't not pick any of them and then go, I can't believe this is happening. My God, there's gambling in this institution. Well, and the other thing, especially when it comes to a public university, there's an option that we haven't talked about. Sue the heck out of them when they don't comply with their obligations to protect academic freedom. That's what I did for a bunch of my career. At one point, I like to say, and I don't think there's any database to fact check me on this, but I think at one point I had sued more universities than any living lawyer, especially, certainly on free

speech grounds. I think some folks have passed me since, but it's entirely appropriate to use the mechanisms of law to pry open marketplaces of ideas that are unlawfully closed. Now that's not really an option, say at a place like Harvard or Yale, unless you violate contractual obligations. But that only fixes part of the problem. It doesn't fix the culture. Like to the point about the sort of one free bite rule, surely the purpose is not that we've,

our metric of success is that the Federalist Society is allowed to have a speaker without fear of violence or disruption. That shouldn't be the metric of success is that the Federalist Society is allowed to have a speaker without fear of violence or disruption. That shouldn't be the metric of success. Right, for sure. Suing the school allows you to have a speaker without violence or disruption. That's it. It can only provide you the legal minimum.

It cannot provide you the cultural maximum that an academic institution should be striving for because it's the whole fricking purpose. Agree, mostly disagree a little because I don't want you denigrating my entire career. Legal minimums are important, but don't confuse them for cultural maximus. I also believe and have seen that legal intervention also gives room for factions on campus who have said that you're leading us

into disaster. Witness the fact that to take one of my cases at Georgia Institute of Technology, not only did you lose a complaint, but the free speech policies at this university are under federal judicial supervision for the next five years, gives a faction of the faculty and the administration the ability to say the intolerant extremists have led us astray. We need change. And sometimes it takes a sort of smack in the legal, legal smack in the face like that to wake people up and to help them realize that extremist factions are leading them to ruin. All right, we were coming over here. Yes. Yeah, how do you engage with progressives who believe that the court's legitimacy is at issue slash already undermined to the point that we should consider not even following Supreme Court opinion? Sort of the President Jackson, he had his ruling,

let's see him enforce it type idea, which obviously will work out super well, I think, for the country if we were to do that. So first of all, to a limited degree, I simply agree with them. I think that getting rid of the filibuster for judicial nominees has been incredibly consequential to the reputation of the judiciary, let alone who's choosing to pursue judicial appointments, who's getting confirmed to those judicial appointments and how they act once they're on the bench. I have a whole song and dance about that. But I think it's important to acknowledge the legitimacy of part of the argument. What I don't acknowledge the legitimacy of is that you don't like the outcome of the argument, or sorry, of the decision, and therefore

the court's illegitimate anytime it disagrees with my preferred outcome. Well, then one side of every single decision is going to say the court's illegitimate. That can't be the way this works. And you know, beyond that, it's really easy to point out problems. It's really hard to come up with good solutions. And I think that the Biden commission, which had such smart, thoughtful lawyers on it, showcased the problem. They went through several, five different buckets of solutions and basically came out saying all of them have enormous downsides that we can foresee, constitutions and basically came out saying all of them have enormous downsides that we can foresee, let alone the consequences that we can't foresee. So, hmm.

You know, I think of the legitimacy debate as being engaged in by a lot of people who don't actually believe what they're saying. And one of the ways you can tell you they don't actually believe what they're saying is that when the current Supreme Court agrees with them, of the ways you can tell you they don't actually believe what they're saying is that when the current Supreme Court agrees with them, they're all about it. And in fact, they will use the fact that some of these hated Trump appointees agreed with them to bolster and to say, look how credible we are. So let's take the 2020 election challenges. Those cases were heard in front of Trump appointed judge after Trump appointed judge, and then ultimately ended up in a Supreme Court controlled by Republican appointed justices. And the election challenges failed at every level. That's my, if you're longtime listeners to the podcast, this is my The Federalist Society Saved America riff.

And those cases failed time and time and time again and did not hear one statement that was to the effect of, well, that would be nice, but too bad it's coming out of an illegitimate court and I'm not going to pay attention to it. No, it was this case has so little credibility that dot, dot, dot, even Trump appointed justices issued a ruling and their identity helped bolster the credibility of the ruling, ironically enough. So a lot of this is the kind of political rhetoric that I would say pre-2016, a lot of elites engaged in recklessly, thinking that we all kind of understood the wink and the nod. Like the way you watch WWE, which I'm sure you all, at least at some point, have watched WWE wrestling. Remember where you are. Well, I was in their seats. And when I was in law school. It doesn't even count. No, but I was in law school and I saw Hulk Hogan wrestle Andre the Giant in Rupp Arena Live.

It was glorious. But anyway, when you're watching professional wrestling, there's this sort of hint of this is not, this isn't real. We're yelling at each other. There was this sort of sense, and a lot of times pre-2016, that you could yell at each other on a cable TV hit

and then ask about the kids when the cameras were off, right? But a lot of the public wasn't in on the game, right? And so they only saw the yelling. They only heard the rhetoric. They did not see the friendship. And so all of America is hearing these words and taking those words at face value and had incredibly negative effects on our culture and I think that's part of what's

happening when you hear things like illegitimate president or illegitimate court it's people who don't really believe what they're saying because they're not acting the way they would if they truly believed it but a lot of ears are listening and they hear illegitimate and they act accordingly. And I'm not one who's really big on this context. I've written about the concept of stochastic terrorism. I think there's a kernel of truth there, but it's an overused term, essentially creating the conditions for violence

by your rhetoric. But there is a kernel of truth there. You tell enough people, you tell enough people that an entire institution of government is illegitimate. Some are going to act like that, C-E-G,

the assassination attempt on Brett Kavanaugh. So I think the people who are in elite positions really need, and I'm speaking to myself, if you go back and read some of my stuff

in 2014, 2015, I was more strident than I sound now. And then after I saw where that stridency was taking us, I was like, oh, I need to be more careful. All right, we have time for one more over there. Wait a minute. Okay. Hold on.

This is a great question. If we believe that there's data showing that DEI trainings are at best ineffective and at worst counterproductive, what's the difference between that and mandatory First Amendment re-education camp? And it's a good question. Man, I'm having trouble being tolerant to the question because I like First Amendment mandatory re-education so much.

No, here's how I would put it. I think the DEI training, much of it, especially the mandatory DEI training as opposed to DEI training that you're attending because you're interested, the mandatory has been sort of shown to not really adjust worldviews, okay? If the mandatory training was something like

we're teaching you the facts of, say, the race massacre or the civil rights movement, you would see some measurable differences as people learned the knowledge, the underlying realities. not necessarily so malleable when you're talking about the teachers. So here, what I think is valuable about First Amendment re-education, or re-education is probably wrong given what happened at Stanford, education, is that hopefully it is designed to impart the knowledge of First Amendment doctrine and free speech principles. One of the things that was fascinating to me and has been fascinating for a long time is the persistent false legal belief that a shout down is another form of protected expression. And a big part of the Dean's memo is explaining under controlling California law, how a shout down is not protected expression. So I see that as valuable because imparting knowledge, if the mandatory re-education is,

here's free speech and you need to love it, that's gonna work about as well as, you know, a lot of the mandatory DEI stuff. But if it's, here's the doctrine and here's how it plays out, that's valuable just from the standpoint of imparting knowledge. If the admissions committee let in a bunch of people

that they knew were going to be intolerant toward people they disagreed with, no amount of re-education camp is gonna help one bit. That is a true statement, yeah. And with that, Mr. President, we hand it back to you.