Advisory Opinions - Can Trump Be Gagged?

Episode Date: September 19, 2023

Prompted by Hunter Biden's indictment, David and David go through a slew of second amendment cases to try and figure out which kind of gun control is constitutional. The two also discuss: -An attempt to get a gag order on Trump -Friend of the pod smackdown Show Notes: -Special counsel asks for 'narrow' gag order for Trump in election interference case -Are Felon Gun Bans Constitutional? -French NYT Opinion Article: The Most Interesting Element In The Hunter Biden Indictment -Calabresi: President Trump Can Not Be Disqualified -Sweeping and Forcing the President into Section 3 -Professor Akhil Amar, On His Podcast, Responds to Attorney General Mukasey and the Tillman-Blackman Position Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm David French with David Latt. And we've got another one of those podcasts where we're going to bounce around a bunch of different interesting things. We're going to start off with, of course, the Trump update. And that's always bouncing around to interesting things. We're going to start off with, of course, the Trump update. And that's always bouncing around to interesting things. Then we're going to talk about the Hunter Biden indictment and the state of the law on gun regulation. And then we're going to end with

what is rapidly becoming the anchorman fight scene, except instead of a bunch of different news teams going at it, it's a bunch of friends of the pod going at it on 14th Amendment, Section 3. I will bode, may have killed a man with a trident. I don't know. It's a melee. It's crazy. So we're going to dive into those big three topics. But let's start with Trump. There's a couple of things we want to talk about in the Trump update. One is briefly address the gag order

issue. So Trump has, to no one's surprise, engaged in just an avalanche of disparaging rhetoric about the prosecutor in the case, about basically everything to do with the case, the judge in the case, the prosecutor in the case. The prosecutor has filed a request for a gag order in the case, and it's a pretty narrow gag order. The special counsel wants a gag order that is going to ask Trump or require Trump not to make any statements about the identity or testimony of witnesses in the case or any remarks that could be considered disparaging and inflammatory or intimidating about anyone in the case. And this comes in the aftermath, as I said, of after a lot of rhetoric, extremely heated rhetoric. And now there are reports that some of the people involved in the case have started to receive

threats. I mean, this is this is what happens. Trump highlights somebody, that person received threats. It's just it's like, you know, night following day, Trump highlights somebody, they receive threats. And what's interesting about this is that there's actually a local rule at work here. There is a local rule of court in the district court here that does permit some limited gag orders. There's also some precedent for limited gag orders, but they're highly disfavored, David. This is getting a gag order on a litigant. While it happens, it absolutely happens. I've been gagged in a case. I have. I have. I have been gagged in a case. Now, I believe it was not a limited gag order. It was extremely broad. I think we could have launched a collateral attack on the gag order and probably won. But it was one of those situations where you're making this calculus of the judges obviously ticked at somebody. It's somebody. And the question is, do you just want to go ahead and litigate the case?

Or do you want to challenge the gag order and therefore thereby increase the anger of the judge? So in that case, we chose not to challenge the gag order. But yeah, I've been gagged, but they're not favored, David. They are not favored in the law. What are your thoughts? I think you might've described this as narrow, but I'm not so sure how narrow it is, David, because to the extent that it prevents Trump from commenting on the case, it covers a lot. So for example, it covers what the government wants,

the order the government wants. It would cover potential witnesses. Potential witnesses would include somebody like Mike Pence, who's running against Trump for president. It would include former Attorney General Barr. It would include a whole host of people. And then the government wants to restrict Trump from talking about the judge and the prosecutors. But as a lot of folks on the right side of the aisle have pointed out on Twitter and elsewhere, of course, a defendant is entitled to question the prosecution and to proclaim their innocence and to question the motives of the prosecution.

And so even though I'm really not a fan, obviously, of all of Trump's extrajudicial statements, I'm very queasy about this gag order. And the other thing I would just flag, and I wrote this the other day in original jurisdiction, is if Judge Chutkin decides to implement a gag order, she better be prepared for what to do if he violates it, as he inevitably will, as you mentioned, because it will look really bad for the credibility of the court. If she puts out a gag order, he ignores it. And then what is she going to do? Is she going to hold him in contempt? Is she going to impose a monetary penalty? Is she going to try and, you know, get him arrested? I mean, what is she going to do? It just, this could turn out to be a big mess.

Yeah, it could turn out to be a very, very big mess because the bottom line is, if she issues a gag order, and I agree with you, it's limited in the sense that it's got two main sort of thrusts and it's really trying, and what it's plainly trying to do is try to prevent him from keeping scorn on individual witnesses, which then leads to threats, which leads to, you know, maybe reluctance of witness to testify. I mean,

this is kind of a form of witness intimidation, not kind of a form. It is a form of witness intimidation. So there are real tensions here. But at the same time, he does have considerable First Amendment rights to comment upon his own prosecution. Quite frankly, there's a reason why when you look at some of the case law that's out there, it's more like this gag order or this rule is wrong, but we could imagine a gag order, a rule that would be right, but it has to properly respect First Amendment values. And one of the elements is that you've got to show that the gag order will be effective, that it will actually address the concern at issue here because they're competing constitutional concerns. You have your First Amendment rights to speak. You also, they're constitutional fair trial issues. But the bottom line is, it's really hard to find gag orders, even of the limited breadth, which, as you noted, there's a way to read it that's not so limited. It's really hard to find just a good model for constitutional gag orders.

I mean, I was trying to imagine if I was uncomfortable with this gag order, how could I narrow it? And I was having a hard time narrowing it. Could you just say, well, only witnesses? Well, like you can't comment on witnesses. Well, why wouldn't he want to comment on the prosecution and the motives of the prosecution? It's the second part where they say that if the Trump team wants to do some investigation of the jury pool by sending out questionnaires, they should have to run those questionnaires by Judge Chutkin ex parte so the government doesn't get to see the content of the questionnaires. And that seems fine. And I don't know that that's going to be a big problem. But on the core about the gag order, on the one hand, again, I think his statements are terrible, many of them. But on the other hand, this is core First Amendment speech in the middle of an

election. It's not like the example you mentioned in an earlier pod where, oh, he's just some run of the mill organized crime figure. He's a leading candidate for the president of the United States. Yeah. I saw a suggestion, which I think fixes in some way I think doesn't fix the problem, but is a better way to deal with a bad situation. Because I'm with you, David, what are the remedies here if he violates the gag order? Well, the conventional remedy is contempt of court, right? And contempt of court means sometimes taking somebody into custody. Would she be willing to do that, to actually take him into custody? So one solution I saw was move up to trial date. In other words, okay, if the real concern here is a sustained public attack that on the one hand

creates security problems, Well, the security problems to an extent, you could say, well, the DOJ has resources to deal with that by providing security for witnesses or in tainting the jury pool. If the other issue is sort of tainting the jury pool, well, limit the amount of time that Trump has detained it. Move the trial date up so that he doesn't have as much time. So I do think that a gag order here, because you really have to think through, okay, look, if the language is inflammatory or disparaging or whatever, there are certain kinds of language that is obviously inflammatory, like Mike Pence needs to die. That would be one kind of comment. But what about Mike Pence is just not credible?

Okay. Is that inflammatory? Is that disparaging? Well, yeah, it's disparaging. I don't know if it's inflammatory. It's certainly disparaging. It's certainly identifying a witness, you know. So it's just hard for me to see how you can constitutionally gag a comment like that. Mm-hmm. And the other thing is, again, I know this is not a defamation case, but if you just think about sort of analogies to that,

some of these things would be either opinion or just epithets. Like for example, when he calls Jack Smith deranged, as he frequently does. Or when he calls Jack Smith's team of 40 something lawyers, a bunch of thugs,

does that violate the gag order? It's certainly, I guess you could say, inflammatory and disparaging. But on the other hand, doesn't a defendant have the right to protest their innocence and to say they're being railroaded? It's just, unfortunately, I feel this is one of those situations where we may just have to say, this is a terrible situation, but unfortunately, there's not a good remedy and we're just going to have to suck it up

and hope that everybody has good security and pray. I just, I don't know that there's a good solution here. Yeah. It's so funny, David. How many times could we say that over the last eight years? I just don't know that there's a good solution here. I don't think there is a good solution here. You know, look, there are the First Amendment issues, interests that he absolutely

has as much as any defendant. And in some ways, as you rightfully pointed out, there are some enhanced interests here because he's running against one of the witnesses in the case. He is a candidate for president of the United States. Again, you know, how do you dictate what is the right kind of disparaging versus the wrong kind of, you know, the kind of disparaging that is just critique? It's a mess. It's a mess. And then you have to think through the what if, what if he violates? That's why I think I'm pretty sold on the idea of moving up the trial date. But then I think the problem there is you run into this argument that he hasn't had enough time to prepare. And it's not a huge, given the complexity of the case, it is not a huge amount of time. I think, again, it's so hard to keep all these prosecutions straight, but wasn't this the case where Loro wanted a trial date in 2026 or something like that?

That was a troll. Yeah. I mean, yeah. Yeah. Yeah, true. But, you know, five months or however many months Judge Chutkin gave to move it up, then you're going to... Now, look, I think that one kind of clever idea about that solution is it sort of merges the trial date issue with something that is usually given to the discretion of the district court, how to manage these types of extrajudicial statements. And so you're kind of trying to get

the better standard of review and the general discretion that's given to district judges. You're trying to fold that in there, but it's still tricky. I could see an appeals court getting uncomfortable if you cut that down too much. Yeah, I could see if you said, well, instead of, what is it, March 4th or whatever it is, if it was, all right, January 1, it's go time. Like I could,

I could see some real problems if you'd had something like that, but one where it says, okay, February 28th. I mean, I don't know if February 28th is a weekend or, you know, I, let's just say a few days, we were moving it, inching it a few days in this direction, which is a consequence. It's not, a consequence. There's no appeals court, I think, that would say, well, it was fine to go on March 4th and it's reversible error to go on February 28th. That would be difficult to see because there is a lot of discretion given to trial judges on trial dates. But something that does move it in the wrong direction, according for Trump.

Because I would say that Trump right now has real hope that he can move it in the other direction. Because these are just initial trial dates. They are not chiseled and granted. And so, but the last thing he wants is for any movement to go in the other direction. So even if you move it just a couple

of days or just a week, it could, no, what am I saying, David? What am I saying? Nothing is going to deter him from saying what he wants to say on Truth Social. It's really just a matter of Judge Chutkin saving face when he just ignores her order brazenly. Right, exactly. And that's why I almost wonder, you know what, maybe don't provoke the confrontation or don't play the game of chicken because he doesn't care. He'll crash into you. Like, it's just and again, it's really unfortunate. He's just but he's incorrigible.

He's unlike any other defendant. Yeah, yeah. And because of his status, he's immune from the consequences. And because of his status, he's immune from the consequences. There's a reason why he's unlike any defendant, because he's immune from the consequences that every other defendant would experience in a similar circumstance. So it's very difficult. The best of a bad situation that I can see is incremental moves of the trial date. And with the understanding that that won't stop him at all, but you are at least mitigating the length of time that he has to taint the jury pool, threaten witnesses, things like that. It's just stunning stuff. But speaking of stunning stuff, let's go and talk about he had a Meet the Press interview over the weekend and talked relatively freely about his case. And he talked to Kristen Welker, who's the new Meet the Press Sunday host.

And she asked him if it was his decision versus his lawyers to challenge the 2020 election. So here's the exchange. And David, I'd love your thoughts on it. Were you calling the shots though, Mr. President, ultimately? Welker asked Trump. And Trump replies, as to whether or not I believed it was rigged, oh, sure, it was my decision.

But I listened to some people. Some people said that. But a lot of people focused in on the, it was my decision. But I listened to some people. Some people said that. But a lot of people focused in on the it was my decision and said that that, for example, Neil Katyal, former acting Solicitor General, said that Trump's comment had made the obstruction case against him a lot easier. Andrew Weissman said it was a twofer admission

because he also admitted to Welker he demanded the vote stop being counted. He just said it on air to MSNBC, stop counting the votes. That's not allowed. I don't have the same view. Of course, it was his decision. I mean, that I don't think the issue was, decision. I mean, I don't think the issue was, was it his lawyer's decision? The issue was, was he acting under advice of lawyers, under advice of counsel? But always it's the client's decision what case they pursue or not don't pursue. I mean, this is always the client's decision. It is not the lawyer's decision. So I don't know. I just didn't find that. There are some other things that he said in connection with Mar-a-Lago where he said things like, I can do what I want that maybe are a little bit more problematic. But I didn't find that

all that eyebrow raising, David. I don't know. Am I off? No, I tend to agree with you. I don't think the comments were as significant as Katyal and Weissman were making them out to be because we've always known that it was, in a way, his decision. But he can also still say that, again, as he said in the interview, I consulted with people. I talked to people. My lawyers told me this, that, and the other thing. You know, John Eastman, what have you, Rudy Giuliani. And so, again, I think he still has opened him a defense. So, and again, there are responses to the defense. And people have even talked about whether maybe there should be a willful blindness instruction

because he was just willfully blind to the reality. He was just wanting to listen to the people who were telling him what he wanted to hear. So again, there are also those responses to his defenses, but I don't know that the needle has been terribly moved. Right. Yeah. I don't think it's been moved. I don't think it's been moved that much when he says, I can do what I want with the documents. Yes. He's basically said that. His lawyers have been a lot more careful. So he'll talk about declassifying things and they won't really go there when they're actually appearing as officers of the court.

But again, it just seems like more of the same at this point. Yeah, it seems like more of the same. Didn't find it all that interesting. I think what's interesting about it is that normally when you're talking to a criminal, a criminal defendant who's been fully prepped for an interview and then goes ahead and grants an interview, which is relatively rare for criminal defendants to do that while charges are pending to grant interviews on the charges. I mean, it's the kind of thing that causes lawyers who have hair to lose it.

But normally, we're used to a kind of language that would go along something like this. Well, Kristen, I was acting under advice of counsel at all times. Okay. Which is not the same thing as saying, well, the lawyers did it. I mean, it's it you know, it's it's all on them. He's saying I was acting under advice of counsel, which acknowledges that clients act right. But if one of his one of his better defenses is going to be I was surrounded by I've got this Thomas clerk on one side. I've got this, you know, Rudy Giuliani, former U.S. attorney on another side. And they're telling me full speed ahead, I'm just, I'm not even a caveman lawyer.

I'm not even a lawyer. Like, I've got competing teams of lawyers telling me different things. And I went with one and not the other. And you're going to prosecute me? That's always been one of his defenses that's been available to him. And so to say, well, I talked to lawyers, but it was my decision, substantively is not really different from saying I was acting under advice of counsel. It just sounds more blunt.

I think that that's it for the Trump update. There was, the government did file a response to the recusal motion, which I thought was a good response. I think it is consistent with what we were suggesting on the other episode where we said that, look, under the existing law, the standard for recusal is pretty high and Judge Chutkan probably is going to be okay. And then one other little update, the D.C. Circuit had to rule on a decision about whether the speech or debate clause

protected messages on the cell phone of Representative Scott Perry, the Pennsylvania Republican congressman who supported Trump's efforts to overturn the 2020 election. And in that opinion by Judge Rao, the D.C. Circuit basically rejected the extremes on both sides. Perry was trying to claim all of my messages are privileged. The Office of the Special Counsel was on the other side. And she basically said, look, you have to undertake a fact-specific communication by communication analysis, looking at whether the communication goes to the concerns that are raised by the speech or debate clause. So I think that's that is probably it, I guess, in terms of a lot of the Trump news. Yeah. So a little lighter half week.

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cut them out of their foster adoption program. That's Fulton, not Fulton County. My apologies to Fulton and to Fulton County. So that's kind of funny, though. It's amazing how these brain worms come in. And when I think Fulton, my mind just goes to county immediately as soon as I hear the word Fulton. All right. So Hunter Biden. Okay. Hunter Biden. We'll talk first about the actual charge against him. And then we'll talk about what's interesting about it. And then David will take us through some of these circuit splits. And I've kind of got some overarching thoughts. So first, Hunter was indicted late last week. He was indicted on three counts. Now, interestingly, most of the count, two of the three, do not deal with illegal possession. They deal with lying. They're related to lying on the federal firearms form that you fill out when you purchase a firearm. So they're lying cases. They're not unlawful drug user in possession counts. That's the last count, which is unlawful drug user in possession. And I wrote about it for my Sunday newsletter. And because I think it's interesting, if you're in legal nerd land, David, like you and I live, you're so aware of these gun cases coming up and how much they really are, have the potential to shake up existing

federal gun regulations. You're hyper aware of it. If you're a member of the general public, you have no idea. There's just no clue. And so I wanted to use my Sunday column to highlight this issue because that third count, the count of unlawful drug user in possession, is in real doubt as to whether or not that's viable. That post Bruin, because if you remember, the issue with Bruin was there was the easy question and the hard question in Bruin. The easy question was, do you have a right to bear arms outside the home in the same way that you have a right to keep arms in the home as outlined in the Heller decision. Supreme Court, as everyone predicted, said, yeah, you have a right to bear. Well, that was the easy.

The hard part was, what's the test? Because the circuit courts had kind of, a lot of them had kind of settled on sort of a couple of step process. Well, one, did you, step one, does the regulation implicate sort of that second, of course, second amendment right? If it does, you move on to step two, which was usually an intermediate-ish level of scrutiny. So there's going to be a lot of, all eyes were on SCOTUS, all nerd eyes were on SCOTUS over what is the test. And this is where Thomas comes out with

the text history and tradition or text and history test. And this is one where, as I've freely confessed for a long time, I've been text history and tradition curious. And oddly enough, I got cured of the curiosity just by reading the Bruin majority opinion, which was, as I read through it, it's like, oh gosh, this is going to be a mess. So far, it's proving to be, the courts are kind of proven to be all over the place, David. So kind of where are we now on this with the circuit courts? Yes. So it's very tricky. The main issue in these cases is whether or not a felon can be in possession of a firearm if they committed some kind of crime in the past, or maybe they are engaged in some crime currently, maybe they're using illegal drugs,

maybe they used drugs in the past. But the offenses can vary. And so the outcomes will also, I think, vary depending on what is the nature of the felon's prior offense. And so the courts have gone all over the place. And this is a non-exhaustive highlighting or summary of some of the recent cases. non-exhaustive highlighting or summary of some of the recent cases. So in the Third Circuit on Bonk, in the Range case, which AO listeners might remember, ruled in favor of the defendant in that case. The defendant had years ago engaged in some kind of food stamp fraud, and they basically said, look, this guy still has Second Amendment rights,

and his long-ago conviction for this nonviolent offense shouldn't bar him. And again, I'm summarizing very crudely. So that was the range case from the Third Circuit. They ruled in favor of the defendant. In the Fifth Circuit, in the Daniels case, again, that was also a ruling in favor of the defendant. This was an opinion by Judge Smith,

a pretty conservative judge on the Fifth Circuit. He said that, again, I'll just quote from him, our history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage, close quote. And in that case, I believe it was marijuana. So those are two pro-defendant rulings. But then you had the Eighth Circuit case in Jackson. And this was a three-judge panel that basically ruled against the defendant and said that, look, there is a long history in our nation of disarming people who are perceived to be

dangerous. But that case in Jackson, was actually contentious within the Eighth Circuit. There was a call for a rehearing en banc, and Judge Strauss wrote a dissent there going up against Judge Colleton, who wrote the three-judge panel opinion. Both are Republican-appointed judges, by the way, so I think that it's not strictly an ideological issue. You're going to have judges on both sides of the aisle who are struggling in good faith to apply this. So Jackson basically, I guess you could say, was consistent with the earlier law, which was pretty deferential to attempts to criminalize possession by felons. attempts to criminalize possession by felons. And then very recently, I guess last week, you had the Tenth Circuit in the Vincent case. And again, it was a similar situation. The plaintiff challenged the constitutionality of the felon possession ban when applied to individuals

convicted of nonviolent felonies. And Judge Bacharach had to decide whether or not Tenth Circuit's prior precedent saying that these types of bans were okay was overruled by Bruin. And the court, the 10th Circuit held that its precedent remained intact post-Bruin. And so it ruled against the defendant. So just those four circuit rulings I mentioned, you have two going one way, you have two going the other way. The courts are in big need of guidance. And I do hope that when the Supreme Court goes to this issue, which it inevitably does, I do hope that they go beyond, you know, I know that a lot of times we don't like dicta,

we don't like courts talking more about stuff that, you know, is not an issue in the case. But I think the court does need to provide some significant guidance here, because one thing that was interesting in the Range case was when you read Judge Hardiman's opinion, there is this sort of quality of, you know, one ticket good for this right only because it was like, okay, well, if you're a guy who was convicted of food stamp fraud many years ago, well, then your Second Amendment rights are okay. But well, if you just say, well, this particular defendant is okay, well, what about this person who used marijuana X years ago? What about this person who used cocaine Y years ago? What about Hunter Biden, who was addicted to drugs at the time?

We need guidance. Help us, SCOTUS. Yeah, no, exactly. We're screaming for it. And guess what? They're going to start to provide it because they did take the Rahimi case. So that's going to be that was about the domestic violence orders, people subject to orders of domestic violence. Yep. So that's that's going to be settled. Oral arguments for that, I believe, are as early as next month. So we're going to at least begin to get some clues as to where the thinking is. we're going to at least begin to get some clues as to where the thinking is. But David, I'm really intrigued by this whole thing because it is very interesting. And we've talked about this before, about sort of the Chesterton's fence aspect of this layers of

scrutiny, strict versus intermediate versus rational basis review. And a lot of people thought that you were going to have the Supreme Court sort of say which one of those three general levels of review with rational basis off the table. But was it going to be intermediate level scrutiny or strict scrutiny? And also, interestingly, after Heller, there was this kind of a sense that,

wait a minute, with the exception of sort of the assault weapons bans, which are all over the place as to whether or not, you know, the jurisdictions, the states are all over the place on assault weapons bans. It had two elements of it that really seem to say quite explicitly that a lot of the existing gun regulations aren't to be touched. So here was a general principle. The general principle in Heller was law abiding, responsible citizens. So there's a right of, quote, law abiding, responsible citizens to use arms in defense of hearth and home. OK, what does it mean to be law-abiding and responsible? And then, so, also in the opinion, it said, "...nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or laws imposing conditions and qualifications

on the commercial sale of arms. And so I'd say the consensus view post Heller was this Heller doesn't disturb sort of existing general federal firearm regulation quite explicitly. Now, the District of Columbia, which had a unique and highly restrictive regulation against gun ownership, that was struck down. But you kind of had these two concepts going at once, law-abiding and responsible. Well,

what's your definition of law-abiding and responsible? One definition is, you know, the prohibitions on the possession of firearms by felons and the mentally ill. So then Heller, after Heller, you have Bruin. And Bruin, interestingly, Thomas goes back and I reread Bruin. It's really fun to go back and reread the whole thing before I wrote my Times column. And it was interesting to me because on the one hand, Thomas sort of column. And it was interesting to me because on the one hand, Thomas sort of roots the text and history test in Heller, says this is the natural reading of Heller as opposed to the intermediate scrutiny or layers of scrutiny you saw from the circuit courts. But then on the other end, once he implements the history, the text and history test, that seems to throw into doubt the pretty clear statement in Heller, which was regarding that nothing is, nothing in the opinion is

going to be dealing, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on possession of firearms by felons and the mentally ill. So, on the one hand, it's saying, aha, our test comes from Heller. And then the result has been, aha, our test comes from Heller. And then the result has been, aha, that language from Heller then no longer applies. Seems to be where we are now. And then I'm just going to go ahead and say, the history's a mess. It's a mess. There are some strands that, you know, there are some rather consistent strands within it. But man, David, you know, when you're looking back at history of gun regulation, there's a lot of gun

regulation that you shouldn't use as precedent because it was quite clearly discriminatory. Like it was quite clearly aimed at specifically Black Americans, right? So it's designed to prevent, there's a lot of, there's a racist history of gun regulation. Well, okay, let's push all that out, even though a lot of that dates pretty far back. There's a history and tradition of racist gun regulation. Let's push that away. We can't, don't use that. Let's push that away. We don't use that. Then what's left? Well, then what's left, you know, as I wrote in my piece, let's look at the domestic violence situation. Domestic violence is a sort of a separate category of crime or a separate area of concern of crime really is a 20th century invention.

The same with prohibitions, the same with comprehensive drug laws. These things really are relatively recent. So you have very recent comprehensive drug regulation. You have pretty darn recent comprehensive domestic violence regulation. Does that mean they're just out? Like what's going on here?

And I know listeners will say, no, no, no, no, no, no. Well, you can draw this analogy. You can draw that analogy. But what you're doing is drawing analogies. You're not drawing straight lines. To me, David, it's one of the reasons why layers of scrutiny was wise, has been wise, because how do you take the text and give the text real substantial meaning in an environment where a lot of the underlying legal circumstances have changed as a result of the development of society and culture, but you still want to preserve the text, layers of scrutiny have made a lot of sense. But I'll stop filibustering.

Love your thoughts. I'll disagree with you. I think that your column was pretty critical, I think, of the text history tradition analysis. And I think just now you've expressed a criticism. And I don't dispute that the work is hard, but I think what a lot of folks would argue is, look, that's the enterprise that judges are called upon to engage in. And I think that the layers of scrutiny or the tiers of scrutiny you could argue was,

one, just as difficult to apply with a lot of gray area. And two, unlike the text history tradition test from an originalist perspective, the tiers of scrutiny were entirely made up. So at least, look, if this work is hard, fine, but it's work that judges are authorized to do under the Constitution, whereas basically making stuff up, they're not authorized to do. And so I think what Thomas was saying was, look, all of this just is not what we are supposed to be doing as judges. We are very good at analogical reasoning. That's what you do. You learn that in one L year in law school.

What is an appropriate analogy? What analogies make sense or don't make sense? And I think that the range case from the Third Circuit sitting on Bonk is a good example. I think that you have some smart, thoughtful judges there who reason by analogy and you can dispute who has the better of the argument. Judge Krause has a good opinion there. I think it's the dissent. But Judge Hardiman has a good opinion too, and that's the lead opinion for the outcome that prevailed. And so I think it's going to be tough,

and it's going to take a lot of pages. These opinions often are quite long, but that's what judges are supposed to do. My issue is not so much with the idea that, okay, But that's what judges are supposed to do. My issue is not so much with the idea that, okay, it is difficult to really understand clear themes in history. It's that my issue is, why are we looking to various state legislatures as the constitutional scholars who are interpreting this? Okay, so this is the issue because the issue isn't, the issue isn't, is this hard? The issue is, are we looking to incompetent interpreters? So, for example, part of the history and tradition of the founding generation is the Alien and Sedition Acts. acts. So you have the text of the First Amendment, then you have the Alien and Sedition Acts. And that's the founding generation, right? But what's happened is you have all of a sudden, this generation that writes, you know, that ratifies the First Amendment, all of a sudden,

one faction gets in charge. And another faction is not in charge. And that natural human nature that says, well, now that I'm in charge, I need to limit dissent against me, boom, locks in. And pretty much everyone would acknowledge that the Alien and Sedition Acts were one of the first examples of the founding generation violating its own principles. And so, but then when we do text in tradition

or text in history on the Second Amendment, we're often looking at, what did the the Kentucky state legislature say in 1876? Well, I don't look to the Kentucky state legislature to interpret the Constitution in 2023. In 1876, they're suddenly qualified to opine on what this thing really means? No. And how much do we know about the Kentucky state legislature and say, and I'm just making this up, 1876, what were the competing interests, for example? If you had a history and tradition test of the First Amendment now, one of the things you would say is, let's say we are rewinding the clock. One of the things you would say is,

well, you know, it's pretty clearly the case that if you have liberal views on race, they're gonna be in doubt because look at all of these state legislatures passing laws dealing with particular views on race or sexuality or you name it. That one of the things that we know from American history is that state legislatures are often the very entity that these constitutional provisions were designed to guard against. They're not necessarily, there isn't a magic window where they're suddenly super competent to explain the Second Amendment. And then magically that window closes and they're not competent anymore. And that's my issue with it.

It isn't so much, is this hard? It's, I question the whole premise. The premise is saying, well, there's this window between 1865 and 1885, say, where there's this particular insight that we have into the meaning of the Second Amendment. And then after that, we don't. I don't know. Really? Did they really have particular insight in 1878? Or were they, a lot of them, really corrupt? A lot of them driven by local political factions and interests?

Also remember, David, this is not in an era when there was very much civil rights litigation at all. And so you didn't have this immediate check and this immediate sort of litigation process that tested these legal doctrines. That's much more of a modern invention that we really painstakingly test every single statute that touches upon the First Amendment or the Second Amendment or the Fifth Amendment, you name it. So that's my issue is I just question the premise that that population of people in that period of time has kind of this unique insight into the meaning of these words. That's my thought. Well, you know, and there's another interesting issue that I'll just flag here, and this was flagged by Justice Barrett in her Bruin concurrence, there is a,

I'll just quote from her, there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the 14th Amendment was ratified in 1868, or when the Bill of Rights was ratified in 1791. And so that's also a little bit of a tricky issue. And if you really don't like some of the things that were happening in state legislatures around the time of the founding, well, maybe you might like things better if you fast forward to the sort of post War period. But again, that's a disputed issue. That's an open question. Because you're right, that there is, if you are going to look at history, history isn't always great. You mentioned that there were restrictions on gun ownership by certain populations, certainly Black Americans, but also Native Americans, also Catholics. And so the history

isn't always great. Or again, there was, I forget which case it was, but there was a district judge who was looking at the domestic violence order issue and basically said, domestic violence, back at the time of the founding, they didn't care about domestic violence, or I'm basically crudely summarizing. And so Barrett basically said, this guy gets to have a gun because we didn't care when people were abusive to their wives and children back at the founding. So it's tricky. And I think you have to figure out what are you importing that is legitimate in terms of the principles and what is really just sort of fact bound and not relevant. Again, just to kind of compare it to another area of law, if you think of the Fourth Amendment

and reasonable searches and seizures, you take that principle and you can apply it to technology that didn't exist at the time, like thermal imaging, when they had that case about the marijuana growers, Kylo, I canlo, I don't know whether to pronounce it compared to the eminent domain case. But they basically said that, look,

that is a search controlled by the Fourth Amendment, even though thermal imaging didn't exist at the time. So I guess the question is, when you're picking analogies and when you're picking language that was contemporaneous to the enactment? What is correctly enshrining the principle and what is just sort of fact bound noise that is not relevant to today? And because, you know, a person could listen to what I just said and you're like, well, wait a minute. Are you an originalist if you're questioning sort of the original public meaning? But there is such a thing as sort of original public defiance or original public ignorance. In other words, they just did it without regard to it at all.

You know, that's one of the things we see in state legislatures is they will often legislate without even regard. They don't think through the issue at all. And so to, or in any meaningful way. And so, yeah, that that's where the more messy and confused the history gets, which, and I, and again,

your mileage may vary, but when I read the Thomas opinion and he's writing it from the standpoint of someone who's trying to argue a point that history is pointing in the direction he's saying it's pointing. But I found that argument not incredible. I found it all much more all over the place than I thought I would. You know, and I'd read some of the amicus briefs, the historical amicus briefs opposing the, you know, the idea. Now, I think the idea that you do, I have a right to bear arms outside the home. You just stop at text with to answer that. Yes. Keep and bear. Text says bear. Boom. It exists. Right now on the limits of that, right, that's where you really have to dive in a lot more.

So on these historical briefs that were saying there's no historical right to bear, they were, in my mind, pretty unconvincing. But then when you talk about the historical briefs about the various forms of regulation on bearing. My gosh, David. Wow. It's really difficult. And then in the back of your mind, as you're reading it, it's like, did these people think through the Second Amendment aspects

while they were doing this? Or were they just making a policy judgment? Or were they making a prejudicial judgment? And it's just very difficult. So yeah, it's going to be interesting to see what the Supreme Court does. I mean, any thoughts or predictions on that? Well, one thing I will say is,

if you kind of think of chapter one of the Supreme Court's modern Second Amendment jurisprudence, I think you could kind of say that Justice Thomas was driving the train on that. Well before Heller, he had a separate opinion, in some case, whose name escapes me right now, where he basically said, hey, the Second Amendment's been kind of neglected. We need to dust it off. And in many ways, he was proved prescient when Heller came along years later. And then, of course, he wrote the opinion in Bruin.

So I think that reviving the Second Amendment or giving it teeth is really a Justice Thomas enterprise. But in deciding how sharp those teeth are, I think that we really are going to have to focus on Justice Kavanaugh. Because think of his Bruin concurrence, which is sort of echoing the language you highlighted earlier from Heller about how nothing in this opinion should be construed to disparage traditional limits on gun regulation. Basically, Justice Kavanaugh controlled C and controlled V that into his concurrence. And so he's really going to be, and I think perhaps with the chief, perhaps with Justice Barrett, he's going to be the arbiter of regulations and specific questions. So I think that the intellectual groundwork and architecture was laid by Justice Thomas. But now that the rubber's hitting the

road, I'm going to get into nitty gritty stuff about felon in possession statutes and which prior felonies are going to be problematic, and bump stocks, which is another issue where there's a circuit split, and of course, the domestic violence order issue. When you're going to be dealing with these specific questions, I don't know that Justice Thomas's big picture analysis answers it. I think you're going to basically, it's going to come down to Justice Kavanaugh and that middle section of the court. I agree with you. Kavanaugh, Roberts, Barrett to an extent.

Although Barrett has already come out. She had a dissenting opinion when she was a circuit court judge about a nonviolent felon, that a nonviolent felon should be able to own a weapon. And so I think she'll probably come down on one end on when it comes to the nonviolent felons, but the domestic violence orders, that's a different issue. And the facts in Rahimi, the guy agreed to, unless I'm completely forgetting that, the guy agreed to the domestic violence order. So it was an agreed domestic violence order and then charging the conviction as opposed to sort of saying, well, there was insufficient due process for this domestic violence order.

Well, if you agreed to it. But yeah, it's going to be it's going to be very interesting. I think the court took Rahimi to reverse, but that's a softly held opinion. That's a we'll see how the we'll see see how the oral argument goes. But I'll take a wager, a gentleman's wager. I think I'll go the other way. I think they'll affirm. Interesting. Interesting. Well, then the question, so then the question will be, David, this is going to be an interesting question. So if they affirm Rahimi, if they affirm Rahimi, which says you cannot criminalize

possession of a weapon by someone subject to domestic violence restraining order, the question is going to be which forms of gun control are going to be constitutional. Now, I would bet money violent felon,

right? I would say actual possession under a current state of intoxication. Hunter Biden. Right. Hunter Biden. Probably. What else? And you alluded to this just a few minutes ago with Rahimi. Just remember, this was not something that went through the due process crucible of conviction after trial. You mentioned, I think this was either an agreed to order and or this was in the civil context, which I think was important for the lower courts.

It's one thing if you have a criminal conviction that was obtained because you pleaded guilty to a criminal offense or you were convicted after a trial. That's why I think Rahimi is a little bit different and maybe it's not as useful with respect to some of these felon and possession cases that are going to percolate up now that we have these circuit splits. Rather than just speculate, we went ahead and took a little brief time out here and pulled up the opinion and says, I'm just reading, there have been a number of shootings and here's the opinion. Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings, obtained a warrant to search his home. Officers executed the warrant, found a rifle and a pistol. Rahimi admitted that he

possessed the firearms. He also admitted that he was subject to an agreed civil protective order. So it was agreed and it was a civil protective order entered February 5, 2020 by Tarrant County State District Court after Rahimi's alleged assault of his ex-girlfriend. protective order, as you indicate. It was also agreed. So how does all of that cut is going to be very interesting. Because on the one hand, it's civil, lower thresholds of proof involved. On the other hand, it was agreed. So he's like, yeah, I'll agree.

I'll agree to this order. So it's going to be fascinating. I mean, one thing I'll flag before we move on is just, it does remind me a little bit, again, to think of comparisons to other areas of law. Do you have to be aware of or consent to the collateral consequences? In the immigration context, you all the time have this issue of, well, I pleaded guilty to X. I didn't know it was going to get me deported. Here, you had a lot of people who might be agreeing to orders of domestic violence or who are pleading guilty to what they think are low-level offenses.

And little did they know that maybe they were giving up their Second Amendment rights. And so that's sort of interesting. Yeah, yeah, absolutely. All right, should we move on to our anchorman fight? Yep. This is friend of the pod, the friend of the pod, the friend of the pod. It's wild.

So Josh Blackman and Seth Barrett Tillman have written a Law Review article called Sweeping and Forcing the President into Section 3, a response to Will Bode and Michael Stokes Paulson. So these are now two other conservative law professors who have written a rebuttal article to the Bode and Paulson article. At the same time, we've had some drama, nerd, nerd drama, because Stephen Calabresi, who originally came out, one of the co-founders of the Federalist Society, originally came out saying that absolutely the 14th Amendment bars Trump, then wrote a letter to the editor of the Wall Street Journal where he reversed himself and said, no, wait a minute. The president is not an officer of the Wall Street Journal, where he reversed himself and said, no, wait a minute.

The president is not an officer of the United States for purposes of Section 3, which then backs the Blackmun article and the Blackmun Tillman article. And then another friend of the pod, Akhil Amar, released a podcast about Section 3 that contained a lot of strong language. And this was collected by Josh Blackman in a post that he did for a reason in the Bullock Conspiracy. We can put it in the show notes. And here's some of the choice comments. And I was laughing.

This is Professor Amar. And I was laughing because I actually couldn't resist because to even hear these formulations elicits laughter from me. This is talking about the officer of the United States element. finest moment. I think the Tillman position is daft. And then goes on, on the Tillman-Blackman position, I actually didn't think it was worth the audience's time. I thought it was such a ridiculous point. And goes on and on. Let me be clear, this is a genuinely stupid argument on the merits. I'm going to demolish it. It's embarrassing that someone so distinguished as Mukasey at the end, near the end of his career, would say something like this. This is wrong. It is silly. And then Josh at the very end, and there's much more, many more insults lobbed. And he was talking about promote. And then at the end, he puts up a advertisement for an event at Baylor Law School on September 28th,

Akhil Amar and the importance of founding fathers and the importance of civil discourse. But we've all heard, if you're a longstanding listener of the pod, you've all heard Akhil Amar, who was one of our favorite guests, listeners, loved him. favorite guests, listeners, loved him. And he has this really polite and gentle way of absolutely lacerating a person. You can hear his voice. This is very wrong. It's silly. It's so silly. Where on the one hand, the tone conveys almost affection, but the words are brutal. So, David, your thoughts after the Blackmun-Tillman argument, the Calabrese reversal, where are you on all of this? Yes, and also I should flag for listeners, the references to Mukasey are because former district judge and former attorney general Michael Mukasey wrote an op-ed for the Wall Street Journal,

also making the point that the presidency is not covered by the officer of the United States language. So on the one hand, you have Mukasey, Blackmun, Tillman, and Calabrese v. Amar, Bode, and Paulson, with Calabrese being somebody who was previously with Team Bode, Paulson, Amar, and who being somebody who was previously with team Bode, Paulson, Amar, and who switched over. And as Josh highlights in his blog post, it will be interesting to see what Professor Amar would have to say about Professor Calabresi's switch, because they are

good friends, they have co-authored things. And to the extent that Amar is willing to dismiss things as stupid or daft, would he say they're stupid or daft if they've been endorsed or supported by his friend and co-author, Steve Calabresi? So it's interesting. But I have to say, I'm very impressed by Josh and Seth's ability to come up with a 120-something page article so quickly in response to Bode and Paulson.

No kidding. The points they make, again, I'm just looking at the abstract. It's a very hefty article. You should definitely dig into it. But I think the key points, there's also some sort of more inside baseball stuff about Griffin's case, which I won't get into. But one issue they flag is, is Section 3 of the 14th Amendment self-executing? Bode and Paulson say the answer is yes, but the answer is not so clear. Constitutional provisions are not automatically self-executing, nor is there any presumption of

self-execution for such provisions. That's Blackmun and Tillman. And then the other issue that I would say they flag is what triggers disqualification. So the offense element has these two prongs, engaging in insurrection or rebellion against the United States, and two, giving aid or comfort to the enemies thereof. What Blackman and Tillman argue is that Bode and Paulson conflate engaged in insurrection, a direct and substantial criminal offense, with giving aid or comfort to enemies. to enemies. And basically what they're kind of claiming is that Bowdoin and Paulson have kind of created this new thing, which is like giving aid or comfort to insurrectionists. And then the final point that they make in part five of their article is, was Trump ever subject to section three? And again, I refer you to that, or I refer you to a former Attorney General Mukasey's Wall Street Journal editorial, but this actually does require a lot of digging into the constitutional text, including references

to officer of the United States in other provisions besides Section 3 of the 14th Amendment. There's also some evidence that's derived from the fact that officers of the United States take one oath that is mentioned in the Constitution and the president takes a different oath. So there is a lot of detailed and subtle argumentation on this point. I think one argument that Bode and Paulson make is, look, this is just a commonsensical thing. President of the United States is, of course, an office under the United States, and constitutional interpretation should not be some kind of secret code. But I think on the other side, what Blackmun and Tillman would probably argue is, look,

we have to construe the same language consistently throughout the document to the extent that we can, and usage of it elsewhere is indicative of what it meant, the original public meaning. And so, of course, we have to look at the structure of the overall document and references to this language elsewhere. So again, it is definitely a sort of WWF battle royal, like everyone's in the ring and throwing punches or hitting each other with chairs or whatever. But very, very interesting for people like AO listeners who like nerding out over this stuff. So David, I just got to note that this is a magical moment.

This is when the power of the AO mind meld. So because I was actually thinking, I think the better analogy is to WWE wrestling than the Anchorman fight. And as you were talking, I was imagining this whole scenario where you've got Bode and Paulson and Blackman and Tillman.

And then you've got, is that Akil Amar's music? And then it's like, is that Steve Calabrese's music? And he comes in and he picks up the chair and you've got the two sides and like Amar and Bode and Paulson are cheering because they think they've got Calabrese

and then he turns around and just lambast Bode with the folding chair and the crowd loses its mind. So we are completely on the same wavelength. So I would say, so I find the self-executing argument not that interesting for this reason. Whether you call it self-executing or not, somebody's still got to do something. And the court will ultimately wait.

Let's take something that's not controversial, like the age limit, right? So let's suppose somebody who's 19 years old files to run for president. Once they file, somebody has to do something and, you know, Secretary of State can reject it, whatever. And then the 19 year old file suit. Well, courts got to decide something. So somebody's got to do something. Somebody's got to decide something no matter which direction this goes. So in that view, I find that to be sort of the I agree with Bowdoin Paulson from a conceptual standpoint that it's a qualification in the same way. You've got to be a certain age. You've got to be a natural born citizen. And oh, by the way, you couldn't have, you know, aided or abetted enemies of the United States. Right.

you know, aided or abetted enemies of the United States, right? So I agree with them, but at the end of the day, somebody's got to do something and a court's going to review it. So I find of all of the arguments, I find the officer of the United States argument most interesting. I'm still in the boat in Paulson camp, but I think reading the critique, it's a serious critique. This is not something that's a 100% slam dunk. It reminds me, and we've talked about this before, the otherwise language in the obstruction of an official proceeding statute, which starts off quite specifically

and then says, oh, and otherwise. So how are you reading the otherwise as sort of the big broad catch-all or just an amplification of the specific main element? It's an interesting question. Again, like I come down on the Bode Paulson side of this, but I have to disagree with friend of the pod, Akilah Marr, that this is somehow like laugh out loud, ridiculous, right? Um, it's a, it's a real question. And we, and, uh, one which I think will likely see courts weigh in on that very question. And as there are different suits filed around the country, I don't expect them all to weigh in exactly the same way here, which is going to be a sign that this is a real live question.

Yeah, I agree with you. I think that it actually does have some, I mean, look, the fact that you have such smart and learned people disagreeing suggests that there is actually something to this. And even if at the end of the day you come down on the side of both Paulson and DeMar, I would not call this a frivolous argument. No, no, no. I mean, Blackmun Tillman Calabrese is not the same as Linwood, Sidney Powell, Jenna Ellis. same as Linwood, Sidney Powell, Jenna Ellis, like, right. You know, those are serious legal minds who should be taken seriously. And, and so, yeah, I think it's kind of a, if you're just thinking, okay, well, this is a dispute between learned conservative scholars and then sort of like Trump defenders. No, no, that's not this. This is a-

And Steve Calabresi made very clear in his letter to the Wall Street Journal and in an interview he gave to Adam Lipchik of the New York Times that just because he no longer thinks Trump should be disqualified from the ballot does not mean he supports him. And he says, everyone should do everything they can

to stop this man from getting the presidency again. And Steve Calabresi, co-founder of the Federalist Society, very conservative, basically announces that I'm going to vote for Biden over Trump if it comes to that. So again, he is not letting his political views color his constitutional analysis. Yeah, exactly. Exactly. No, we'll put the paper in the show notes and you can read it. And I would love, I'm going to love to see the listener comments here on this, because I think it's a fascinating, extremely important point of

constitutional law. The one argument that I think is not credible is essentially, well, all this is just sort of, all this is past stuff dealing with the Confederacy and really doesn't, isn't that viable going, you know, going, no, it's, it's a viable provision of the constitution that has real force and effect. The issue to me is the most interesting issue is does it actually apply to the president? Which seems like a weird question to ask, doesn't it, David? Because on the one hand, like of all of the people in all of the government of the United States that you would most want to not be involved in an insurrection would probably be the president of the United States. And yet it's a weirdly written amendment. I mean, section of the

amendment. It is strangely written. Well, it could be that I think, and you and Sarah, I believe, talked about this before. It could be that they never thought about this prospect of somebody who would be president, elected, or a candidate for doing this. But if they didn't think about it and they didn't put it in the language of the provision,

then he's not covered. And then I think a second argument could be sort of like almost like a waiver or ratification kind of argument that, look, if we know this person is on the border of an insurrectionist kind of person and we elect him anyway, well then, you know, we kind of, we almost waived the problem here, or we just kind of said, you know what, we get the, like they say about democracy, we get the government that we deserve. So, you know, at the end of the day, and I don't know which prong or prongs I go off on, I think I come down where Judge McConnell came down when he joined you. And again, he's somebody who has great respect for Bowdoin, Paulson, Boat, clerk for Judge McConnell. But

I think I'm with Professor McConnell. I just think there are too many open questions here for this to bar Trump from the ballot and he should be defeated at the ballot box. So, but one thing that we can unequivocally take away, if you're in the ring and you think Steve Calabrese is on your side and you hear his music, make no assumptions. Be on your guard. I will just say,

I find it, I think it's great. In a day and age where people never change their minds and just double down on their original position, whether it's wrong or not, I really respect the intellectual honesty and open-mindedness of Steve for being willing to say, you know what, mea culpa, like, we need more people like that. I agree with you. I agree with you. I'm kidding. I'm kidding. If you're listening to this, if to this pod, but still, if I hear your music, I'm not going to make any assumptions, but it's because of a good reason. You have an open mind. Yeah. Maybe my opponent persuaded you in good faith. And that's what I'll keep in mind before the folding chair comes down on my head. So, well, thanks, guys, for sticking with us.

All of our podcasts have run a little over an hour because we've just not lacked for material at any point in the D&D show. So, yeah. So thanks for listening. Thanks for sticking with us. And we're going to have the D&D show is coming near to an end. We're going to have a live podcast on September 27th at Georgetown University Law School. And we'll give some details at the next pod about time and place if you're in the DC area. I'm going to make sure that it's open to the public before I give you time and place. But if it is, we'll give you time and place on September 27th because that's going to be Sarah's triumphant return. So we've hoped you've enjoyed the D&D show.

You're going to get to enjoy it a little bit more. But until then, please leave thoughts about this episode in the comments and both David and I dive in and read them. So thank you very much.