Advisory Opinions - Case Against Comey Dismissed

Episode Date: November 25, 2025

Sarah Isgur and David French provide an update on the Texas redistricting case and criminal charges against former FBI Director James Comey and New York Attorney General Letitia James, before moving on to recent grant, vacate, remand (GVR) orders. The Agenda:—Grand jury indictment update—Texas redistricting—GVRs, confrontation clause, and party presentment—SCOTUS doesn't move to end birthright citizenship—Metering at the border—Ruth Bader Ginsbird —Join our livestream analyzing Trump v. Slaughter on December 8 Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. That's David French. And breaking news, the Comey indictment has been dismissed. We'll break that down as well as the latest news in the Texas racial gerrymandering or partisan gerrymandering case, plus two GVRs coming out of the court, granted, vacated, and remanded. And we'll update you on the birthright citizenship

case that is making its way to the Supreme Court slowly, but it appears surely. The Faris doctrine. Bet you hadn't heard about that before. And then two cert grants. Ballot arrival versus receiving and metering at the border. All this and more on advisory opinions plus a little pre- Thanksgiving gratitude at the end. Have you ever seen Ruth Bader Ginsburg? At Desjardin, we speak business. We speak equipment modernization.

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The indictment against James Comey and Letitia James have both been dismissed on the grounds that Lindsey Halligan, the prosecutor who brought the indictment, was invalidly and pointed. So let me back up for a second. After the Biden U.S. attorney resigned, the attorney general appointed Eric Seiberd as interim U.S. attorney under the Vacancies Reform Act. So that was good for 120 days. As that was set to expire, the judges of the district then appointed him to continue. in that role as a judge-appointed interim U.S. attorney. Then, of course, he resigns, and the attorney general issued an order authorizing Lindsay Halligan to be the interim United States attorney for the Eastern District of Virginia as of September 22nd. So well after that

120-day period, obviously. So let's start out with this. Because Siebert had been appointed as the interim U.S. attorney by the judges in the Eastern District of Virginia, they were all recused from the question of whether she was validly appointed. So this question, the motion, got sent by the chief judge of the district to a district judge in South Carolina. So that's why, David, we had this podcast that we just did before, where we had the magistrate judge ruling on a motion about those 6E grand jury materials that was then going to the district judge and that hearing, that was all in the Eastern District of Virginia. This is going to be totally separate in front of a separate judge because it's about the validity of the appointment and that judge and all the

other judges in the district are recused. Okay. So this judge down in South Carolina gnaw dog this appointment really hard. It's a textualist argument. So I want to read you the text of the 28 U.S.C. 546 about vacancies for these U.S. attorneys. Okay. The Attorney General may appoint a United States attorney for the district in which the office of United States Attorney is vacant. The Attorney General shall not appoint as U.S. attorney, a person whose appointment by the president to that office, the Senate refused to give advice and consent. A person appointed as United States Attorney under this section may serve until the earlier of the qualification of a United States attorney for such district appointed by the president, like,

as in confirmed by the U.S. Senate, or the expiration of 120 days after appointment by the attorney general under this section. If an appointment expires under that 120-day provision, the district court for such district may appoint a United States attorney to serve until the vacancy is filled. Okay. So the question is, is that a one-time 120-day interim appointment? Or is it 120 days per person that you appoint to that interim slot? So what the district judge held here in throwing out these indictments was that Lindsay Halligan could not be an interim U.S. attorney because they'd already spent all 120 days on Eric Seibert. Therefore, the only way to have an interim U.S. attorney was through that last part. If an appointment expires under

that 120-day provision, the district court for such district may appoint a United States attorney to serve until the vacancy is filled. So again, because Eric Siebert spent his 120 days, then the district judges pick him as the interim, basically they may appoint a United States attorney to serve until the vacancy is filled, meaning someone is actually confirmed by the United States Senate. I think this is a little unclear. There's not actually a ton of case law on this, David, because it says a person appointed as United States attorney may serve for 120 days, not any person appointed as United States attorney. So the argument is by the government that like, yep, Eric can serve 120 days, Lindsay can

serve 120 days, then David can serve 120 days, and we can keep doing 120 days. days, and that would still sort of fulfill the purpose of this, which is that you can't just have someone sit in the office. So it's a downside to have to keep switching people, you know, out every 120 days. But if that's the case, then why would you ever need that last part about the district courts appointing someone? It would basically make that a never going to happen type situation. Yeah, which is sort of the, one of the core elements of textualism is all the words are there for a reason. All the, everything is there for, a reason. And if your, if your reasoning of the statute essentially takes you to a point where part

of the statute doesn't have any meaning, really, then you've got a problem textually. And then also here you've got a problem with this sort of idea that, okay, can you really circumvent Senate confirmation that easily with serial 120-day interim appointments? Is that what we're doing? But you're right, Sarah. not something that has been extensively litigated. This is not something that's, you know, where there is this absolutely crystal clear answer from the case law. I think the decision makes sense. I'm actually more interested in the is dismissal the right remedy than I am. Is Lindsay Halligan properly appointed? Because I think I'm pretty convinced that she was not properly appointed, but I'm much more interested in, is dismissal the right remedy? Okay. So, right, you've

gotten to the real question. Like, so what? Now, fun fact, the judge in this case inciting why the proper remedy is dismissal of the indictment, guess who she cites for that? Judge Eileen Cannon, when Eileen Cannon dismissed the indictment against Donald Trump for the classified documents case because she found that Jack Smith was not properly appointed as the special counsel. So a little cutesy citation there. But David, let me read you another statutory provision, the one that everyone is debating tonight as we record this. 18 USC 3288. Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate

jurisdiction within six calendar months of the date of the dismissal of the indictment. Okay, so for James's case, Letitia James, like, none of this matters. Forget James for a second. Basically, like, they can just re-indict James any day they want, and that's fine. Yes, because we should be very clear. It was dismissed without prejudice. In other words, this was not a fine. dismissal. This was a dismissal without prejudice. So, but that still raises the next issue you're going to talk about, statute of limitations. Yeah, and her argument, by the way, on the without prejudice is that basically it's like Lindsay Halligan never existed. So you just return everyone to the status quo ante. In order to dismiss with prejudice, you would need to find flagrant misbehavior,

substantial prejudice. There's no lesser remedial action available. None of the things that seem that are obviously present here, by the way. So everyone just, it wipes the slate clean. The problem is that here we are in November of 2025 and the statute of limitations ran like a month and a half ago. So does that statute that I just read you, 3288, whenever an indictment or information charging a felony is dismissed for any reason, you get six more months to file it? Did they basically figure out how to toll the statute of limitations against James Comey and by themselves six more months starting Wednesday of this week, which would be a huge win when remember they only had a few hours left they were bringing this indictment? David, the judge in this case, first of all, doesn't need to reach this question, but in footnote 21, she kind of like goes out of her way in something that is definitely dicta, meaning it is not a holding of this decision. And she says, generally, the return of an indictment tolls the statute of limitations on the charges contained in the indictment. An invalid indictment, however, cannot serve to block the door of limitations as it swings closed.

If the earlier indictment is void, there is no legitimate peg on which to hang such a judicial limitations tolling result, citing several cases, David, that I actually went and read. I got to tell you, these are not helpful for Comey. So first of all, let's look at this. We have a District of Maryland 1991 case, and then that's citing a Northern District of Illinois, 1987 case. and that Northern District of Illinois, 1987 case, actually kind of holds the opposite of what the judge is saying it holds. It does have that quote about if the earlier indictment is void, there is no legitimate peg. But in that case, they held that a grand jury that had basically indicted after the time of the grand jury, absolutely 3288 applied and the government got six more

months. It seems to me that Lindsay Halligan, being out of time as an interim U.S. attorney, looks pretty similar to a grand jury that is serving past its allotted time. And so 13, sorry, 3288 would apply. Yeah. I mean, the language in this statute is just so broad, David. It says whenever an indictment is dismissed for any reason. I don't quite see how they're going to get around that. Yeah. I agree with you. I do not. think this is the end of the Comey case. It is a sign of, it is yet another sign of how slapdash this whole thing has been. But I do not think this is the end of the Comey case. And it's not the only confusing element of the Comey case. One of the things we've already recorded this portion of the podcast

you all earlier today before this dismissal. And we talked about some of the confusion that's emerged over the last couple of days in the case, including the DOJ seems to have reversed its position that it did not present the two-count indictment that was the final indictment to the grand jury, is now saying that it did present the two-count indictment that is the final indictment to the grand jury. So there's a lot of confusion, which is incredible to me, that we actually, in the year of our Lord, 2025 cannot quite figure out if an indictment was presented to a grand jury in the Eastern District of Virginia a few days ago. What? Why can't we figure this out? So that is still happening. That is still a drama. And we still have all of the issues around that the magistrate judge talked

about, in his opinion, the 10 other major issues in three to four other big buckets, including potential misuse of attorney-client-privileged information, potential mis-instruction of the grand jury, et cetera. So this is a case that just gets more confusing and weird every day. So what happens from here? The government could appeal this dismissal of their indictment to the Fourth Circuit, where they are very unlikely to prevail and then go to the Supreme Court, or they could just try to refile under 32.

288 and then have Comey have to say that that's an invalid indictment. But no matter what, that other case, the one that we talked about with the constitutional problems and was the second indictment actually presented to the grand jury, all of that's just going to get held in abeyance because as far as today is concerned, that indictment has been dismissed. So it's moot. Now, they'll hold it in abeyance, meaning they'll wait to see if the government appeals. but if they don't, that case just goes away in the Eastern District of Virginia that we discussed and there'll be some new indictment or not. Anyway, we'll see. All right, let's move on to some updates. One, we obviously covered Texas redistricting last time.

Since then, we have the smallest of small updates. Texas, of course, appeal to the Supreme Court. Will Peterson, my co-clerc, is now the Solicitor General of Texas. So he's counsel of record on that case. Always fun to see his name on a filing. Hey, Will. And Justice Alito is the circuit justice. I don't know. We haven't explained circuit justice in a long time, but every appellate court circuit is a signed a justice. And that justice often speaks at their circuit court conferences, but also they are in charge of these administrative stays basically if you're appealing you appeal to that justice they refer it then to the rest of the court in this case justice alito stayed that two to one decision and asked for briefing that would be due Monday by 5 p.m so they do plan to move

quickly because of this filing deadline but david what makes this i think important is that it tells you at least which maps Justice Alito thinks are the status quo maps, which would be the 2025 maps, not the 2021 maps. Yeah. And as we have said 800 times when we were talking about this case, partisan gerrymanders are really hard to lose. It is hard to lose if it's a partisan gerrymander. About the only way to lose a partisan gerrymanders, if you say, hey, this isn't actually

a partisan gerrymander, it's a racial gerrymander, which was the reasoning of the lower court. And so to see the stay from Alito is not at all surprising, because as we said, when you cut through all the rhetoric in the dissent, the dissent has good points to make about the underlying facts of the case. And so, as we've said from the beginning, this is a situation, it's a very strange situation because most of the time, you would say, Texas is absolutely. winning this case after the Supreme Court said it's not interfering in partisan gerrymanders. However, did the Trump Department of Justice taint this case with its letter? This is going to be the core issue. So nothing that Justice Alito did surprises me at all, especially after reading

the dissent. So we'll see. But Justice Alito, this is not the whole court. This is Justice Alito. So we shall see. There's also an interesting little wrinkle in here that we didn't talk about last time. which is in the law that the Texas legislature passed for the 2025 maps, it had this little provision that said, basically, if for whatever reason these maps are struck down, the 2021 maps are no longer valid, and this provision is severable from the rest of this law. As in even if you strike down the 2025 maps,

the 2021 maps as a separate piece of legislation for all intents, and purposes they're saying, are no longer good. So if you don't like the 2025 maps, you have to draw new maps. You can't just revert back to the 2021 maps. So you see the dissent pointing out, like, even if, you know, this is a racial gerrymander and the 2025 maps are no good, you can't reinstitute the 2021 maps. And of course, Purcell's just sitting over all of this. Obviously, there's no time to write new maps. And Will Peterson, in his filing to the Supreme Court, says, you know, with this little amount of time left, we are in serious jeopardy of people not being able to file for districts at all. Come on. What are we doing here? Which again, I said,

like, I think that Texas will use these 2025 maps for the 26 midterm elections, regardless of whether they are eventually struck down because of DOJ, you know, racial gerrymandering shenanigans. We're just out of time. I'm glad you mentioned Purcell. We've mentioned it every time, but it is like kind of this presence looming just off screen. You know, just off stage is the presence of Purcell. No way you can draw new maps. There are many different ways that this could go, but the time crunch is very real. I would not be surprised if we don't see some pretty definitive action really soon. I know. And the problem is, I mean, there's so many problems here. The severability thing was pretty clever because you have to be able to draw new maps what they're out of time for.

But the time crunch itself is caused by the mid-cycle redistricting. And so can you sort of invoke Purcell and say that federal courts can't change election rules so close to an election if you're the one who caused the litigation so close to the election, basically preventing someone from being able to challenge maps? Is Purcell an equity principle? And so you have to come with clean hands to invoke Purcell? That's a great question. And to put it, you know, just very plain English, in essence, if there is a time deadline and you, the legislature, wait, or suddenly decide, I don't think wait is the right word.

This was a suddenly decide, not a long hatched plan. You suddenly decide to redistrict hard up on this Purcell deadline. Do you get the benefit of that doubt? does that mean you get sort of one free swing at redistricting without thorough judicial review simply because you did it so close to the deadline and then you sort it out later. But then what if you swing again at redistricting? What are we doing here? Is this a clean hands issue?

I think that was it. I think that's an excellent point here. Yeah. And look, I mean, Purcell isn't equity in the sense that it's not one of the parties asking for something. It is a sort of separation of powers judicial principle of not wanting the judiciary to sort of have its own unclean hands by messing with the election. But nevertheless, again, I expect we hear from the Supreme Court this week, and I think that will all be about Purcell and sort of where the status quo lies. I actually expect that we won't hear a lot about the racial gerrymandering issue or the DOJ letter because we're basically out of time to do merits analysis. Yeah, it's an absolute mess. It's just an absolute mess.

All right, David, we got a couple GVRs from the court on Monday morning that I thought were worth just a moment of our time. First of all, what's a GVR? So that's when the Supreme Court grant Sir Sherari reverses the lower court and remands it back to the lower court to, you know, try again. But they don't hear oral argument. So two GVRs here. One, David, on the confrontation clause. So in May 2020, a minor child spent a weekend visiting her father, Jeffrey Pitts. After returning home, the child told her mother that she had been second. actually abused, led to criminal charges against Pitt. At trial, the state moved for permission to place a screen between the child and Pitts when she took the witness stand. In support of its motion, the state pointed to a Mississippi statute providing that child witnesses shall have the right to a properly constructed screen that would permit the judge and jury in the courtroom to see the child that would obscure the child's view of the defendant. Pits objected, basically,

to whether it was mandatory or whether you had to sort of do a fact finding, whether it was necessary in this case for this child. The court held that it was mandatory under Mississippi law, and you have the Supreme Court here reversing, saying, the court must hear evidence and make a case-specific finding of the requisite necessity, simply pointing to a state statute that authorizes screening, even when premised on generalized findings of necessity, will not suffice because the Sixth Amendment, of course, confrontation clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. These child abuse cases have an exception, but it does have to be a fact-specific exception. And then there was this ending, David, that I thought was very interesting, where basically they find an error in the trial that there was at least supposed to be a finding of whether he should have been able to see the witness.

having resolved that much, we pause to underscore what we leave unresolved. Just because a constitutional error took place at trial does not necessarily mean a new one must be held. Even constitutional errors are sometimes subject to a harmless error rule and do not require a new trial if the prosecution can show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. This court has held that the denial of the right to face-to-face confrontation is among those errors subject to that harmless error analysis. accordingly on remand the state remains free to argue the Mississippi Supreme Court remains free to consider whether the error in this case warrants a new trial so basically finding even if so first of all they have to decide whether the screen should have been required in this case whether this was a specific exception to the confrontation clause in the Sixth Amendment then if it was not an exception if there should not have been a screen and he should have been able to see the witness his child child, whether that was harmless error. And David, this was a percurean opinion, meaning

that justices don't say who wrote it, but there's also no noted dissents. We can assume from that, though it is only an assumption, that it was unanimous. I just found it interesting on the harmless error review question, in part because we've talked about harmless error, the last few podcasts, that even a constitutional problem could constitute a harmless error. Yeah, that's very interesting that they raised that. It seemed to be I don't know. I mean, we had a thoughtful email the other day about someone objecting to our phrase, the bad man stays in jail. And I get it. The objection was, in essence, we were sort of being a little bit flippant about constitutional violations and how constitutional violations are sometimes excused and rationalized to continue to incarcerate people who maybe don't actually merit incarceration, at least on the evidence. presented constitutionally in their case, the reason why we use that terminology is not to make light of jurisprudence, but to rather explain how in many ways you can determine

outcomes of the resolution of constitutional issues by the fact patterns that are selected to highlight the issue. So for example, and the classic example we've talked about a lot is the Rahimi case involving a person subject to an agreed domestic violence restraining order who opened fire like some sort of deranged Yosemite Sam over a messed up, you know, fast food order who had a long and checkered criminal past. And he was a person in possession of a firearm in response, in defiance of a domestic violence restraining order in federal law. That's one case you can take to resolve it. Another case would be somebody, let's say. You know, Deacon Jones, long-time volunteer for the local homeless shelter,

who had a wife who had a schizophrenic episode and filed a completely meritless domestic violence restraining order that he didn't know about ex parte and was pulled over while it was in effect. And after his wife gets back on medication, it's restored. And in the meantime, he's a felon. You would have very different sort of underlying dynamics and, you know, at the risk of, I mean, we're not being cynical about the court. We're just talking about how many, how these issues get elevated. And it struck me reading that paragraph, Sarah, that what the court seemed to be saying to me was, this bad man can still stay in jail. Yeah, but they cared enough about the confrontation clause to sort of send a note down to the Mississippi Supreme Court that they got this one wrong for future cases. I was surprised because to me it seemed like the harmless error would be if they do the individualized assessment and decide that, yes, a screen was, in fact, necessary here.

That would be harmless error to me, as in you don't get a new trial just to do the assessment and then decide that the screen would still be in place. clear harmless error, even when the assessment wasn't done on the front end. What is less clear to me is if you say, no, he had a right to confront his accuser, that was denied to him, and that was harmless error. And obviously, they're pointing to previous precedent from 1967. You know, I don't know how you really determine that, because what is the worth of the confrontation clause? When is confronting your accuser ever not harmless error then? How does the Sixth Amendment on the back end ever really get enforced in that sense? I could imagine a scenario where you have sort of overwhelming additional evidence, forensic evidence, for example, eyewitness testimony,

for example. I mean, there are circumstances where I could absolutely imagine a huge weight of evidence in addition to the eyewitness testimony. I mean, in addition to the eyewitness testimony. I mean, in addition to the victim testimony, I can imagine that scenario or one in which the factual circumstances permitting the screen all existed in the case. I don't know. I can see ways that it could get there,

but I agree with you, confrontation clause is so fundamental. I think it should be a very narrow path to saying there's harmless error, but I could imagine a path. But you see my point, like if the confrontation clause requires, requires you to be able to see the person who is testifying. And that's the only constitutional

infirmity. But it is constitutional. How are you ever going to prove that that was a real error, that you didn't get to see the person, and that more importantly, that person seeing you might have changed their testimony? And I get in really any case where you're talking about a victim of a crime, it's sort of uncomfortable to think that that's a constitutional protection, that they have to be able to look at the person who they're accusing of the crime. But that is what's in there. I think the only way to make sense of this and still grant a high privilege to the Constitution is to essentially say what has happened is we've created a rebuttable presumption of reversible error

that can be the reversible error, the rebuttable presumption of reversible error can be rebutted by overwhelming additional evidence. But it seems to me there would have to be to really respect the constitutional provision, a strong presumption that what we're dealing with here is actual reversible error. Actual new trial must be granted. All right.

The next GVR we got was a party presentment GVR. David, I'm not sure we've ever talked about party presentment on this podcast, and I'm so excited. I'm excited. I have old anger related to this. Sarah, but please explain. Okay, so Jeremiah Sweeney was found guilty of second-degree murder and several other crimes, as it turns out. His convictions were affirmed on appeal, and his bid for post-conviction relief in state court was unsuccessful. So when you sort of go up the state side, you then can move over to

the federal side to seek habeas relief. There's all sorts of laws about that as well. So now we're on the habeas side, David. He sought habeas relief in federal district court, and that court too denied relief. the Fourth Circuit reversed in order to a new trial, relying on a claim that Sweeney never asserted. Okay. So basically, he's having a fight with neighbors about stolen marijuana. He opens fire. He misses his intended target, but kills a bystander who was 75 yards away. At issue was whether Sweeney could have been the shooter given his location and the angle of the bullet. So in the jury deliberations, juror, as they say, juror forced curiosity got the best of him. And he went to the crime scene, juror number four did, and sort of saw for himself whether the

location and the angles and everything checked out. He then comes back to jury deliberations and tells the jury about his field trip. The jury reports him to the judge. And basically, they decide rather than declare a mistrial, the court would just dismiss juror number four, and it would proceed with 11 jurors. Okay. So he's convicted by 11 jurors. And then on appeal, he just argues ineffective assistance of counsel because his lawyer during the trial did not seek voir dire meaning to question all of the 11 jurors to make sure that no other juror was tainted by juror number four's field trip. And basically they said, like, no, that was not ineffective assistance of counsel. When the Fourth Circuit reversed, though, they said his trial

was, quote, marred by a combination of extraordinary failures from juror to judge to attorney that deprived Sweeney of his right to be confronted with the witnesses against him and his right to a trial by an impartial jury. By the way, another confrontation clause there because juror number four was basically testifying to the jury, but in the jury deliberation room, and he had no ability to confront that witness, right? Juror number four, who's now providing like sort of these outside facts. Reading from this percue. Curium GVR. In our adversarial system of adjudication, we follow the principle of party presentation. The parties frame the issues for decision while the court serves as a neutral arbiter of matters

the parties present. To put it plainly, courts call balls and strikes. They don't get a turn at bat. The Fourth Circuit didn't follow party presentation rules. They decided it on questions that the state never got to argue against or brief against or anything else because they weren't presented to the court. So they GVRed it, David, and sent it back down to, for the Fourth Circuit, only to look at the ineffective assistance of counsel claims brought by swinging the shooter in this case. David, thoughts and feelings on party presentation, because this can get kind of sticky. Like what, how narrow, how broad can you interpret the party presentation rule, especially in, you know, appointed counsel type cases where you're trying to give criminal defendants the benefit of the doubt.

Yeah, this is a really interesting case to me because, as virtually any litigator can tell you, it is not uncommon at all for judges to bring up matters that parties have not briefed, to have ideas, to have legal ideas, especially, you know, say at the trial court level, but I've seen it at the appellate court level to have some specific ideas about the case that have not necessarily been subject to the litigation below. So this is, I said I have a story, Sarah. I have a story about this. I've told this before, I believe, some time ago. But my first and only argument to the Kentucky Supreme Court, which occurred, this is the 20th anniversary year of my first

and only argument to the Kentucky Supreme Court, was over a really obscure issue of Kentucky law. We had won a multi-million dollar verdict at the trial court. The verdict had been upheld. Actually, the verdict had been paid, but there was one last element left that Kentucky had this really interesting statute that if you appeal a judgment to the Kentucky Supreme Court under discretionary review and discretionary review was denied, there was a very high interest rate that applied to the money that you're paying. So it's about 10%, I believe. And so the defendant in our case reserved the issue of whether that penalty was constitutional. We took that all the way up to the Kentucky Supreme Court. So this was our second trip up. We'd won an affirmance.

below. But this was an ideal case for a senior associate slash junior partner to argue because it was a secondary issue and an already victorious case. It wasn't going to be terrible if we lost. So I go up there and I argued the case, Sarah. I'm very, very, very nervous. And guess what? The argument starts to revolve around an issue of Kentucky Constitution separation of powers that nobody had briefed at all in the case. This was something that just came up with a Kentucky Supreme Court Justice who was an expert on the history of Kentucky

constitutional law, somebody deeply interested in a separation of powers, I believe had written like Law Review articles on it or Barr articles about it and absolutely had an idea about this case and that ended up being one of the grounds for reversal. Totally new thing just brought in at the level of the Kentucky Supreme Court.

court. And if I'd had had my wits about me, this was on me. This was my fault. I would have said, Your Honor, can we have 30 days to brief this? Because I was caught flat-footed. Opposing counsel was caught flat-footed. But for her, it was awesome because she just got to ride the wave. I had to endure the storm. And so I just read this with extreme interest because not long ago, I actually was responding to comments at the New York Times. And someone said, is it okay for judges to bring up new issues and arguments. And I said, it happens a lot. And here we have this decision. It's really, so anyway, there's some personal elements to this because I still, I'm still feel a little burned by that. Yeah, you know, this in particular was a little interesting to me because it was the

Fourth Circuit. And the Fourth Circuit in some ways has become a little bit of the new Ninth Circuit, I feel like. The Ninth Circuit now has a lot of outspoken conservative judges on it. And so you get a lot of these dissentals, for instance, from the Ninth Circuit. And it kind of feels like, you know, their own debating society out there. The Fourth Circuit, I think, has had a lot of the decisions, David, that we have said are kind of the most liberal outlier decisions. And so interesting that this was kind of a slapback, if you will, to the Fourth Circuit. We'll see if we see more of those or if this is just an outlier. I don't know. This is just, just vibes theory, David, Fourth Circuit vibes theory. Well, and one of the interesting things about that case,

I'm just, which kind of cracks me up, even though it's highly, highly improper, was that part of the core underlying issue was one of the jurors just took it upon themselves to go do an investigation at the crime scene themselves. You wonder how much of this is like the true crime problem, right? Only murders in the building and like, the jurors, like, out there deciding to be his own Selena Gomez? It's like every generation has its own pop culture influenced juror problem. So for a while, you had the CSI problem where everyone's expecting the absolute killer forensic evidence. And now maybe you've got the true crime problem where everyone wants to podcast the case.

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and I want to prove that to you. So I pulled some strings with the powers that be of the dispatch, and I'm happy to announce that we're making TMD free for all readers this week. You can get the full edition of the morning dispatch for free when you sign up at www.thedispatch.com slash TMD. And consider this our way of saying thank you, ahead of Thanksgiving. Whether you want to read our daily article or just hopping in for our quick summaries of the most important news, we've got something for you.

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All right, David, at their last conference, the justices considered the birthright citizenship case. And I mean the merits case of the birthright citizenship. Whether a president, acting alone, can change the 14th Amendment's application to those born on U.S. soil, whether subject to the jurisdiction thereof includes exceptions where the president can define those exceptions to include a child born to someone unlawfully in the United States and whose father is also not lawfully in the United States or not a green cardholder actually. So I'm going to read here from Amy Howe. So, David, they considered it at their last conference, and then we got the orders list, drum roll, nothing, which means that it is being

relisted for the next conference. Now, as Amy Howe wrote over at Scotus blog, the court's decision to reconsider the government's petition for review at its next conference, a procedure known as relist, is not an unusual one. When a case is relisted, it can signal one of a few different things. It could mean that one or more justices want to take a closer look at the case, or that a justice is trying to pick up a fourth vote to grant review, especially when a case is relisted several weeks in a row, not yet the situation here, it may mean that a justice is writing an opinion about the court's decision to deny review, or the court could be summarily reversing, that is the GVRs that we just saw in those other two cases.

In the birthright citizenship cases, it seems very likely that yet another possibility could be in play. Since 2014, the court has generally granted review only after it has relisted a case at least once. The court has never officially acknowledged this practice or provided any explanation for it. But the conventional wisdom is that the court uses the extra time provided by a re-list to make sure that the case is a suitable one for review. So basically, David, what we think has been happening is that at the first conference, there's at least four votes to hear a case. And then by practice, they, you know, probably assign it to a clerk to just go run sort of some known checklist of traps, check the procedural posture, check the mootness issues, you know,

things that you may believe are all fine here, but they're vehicle checks. And you just sort of would go through a checklist. And then the next week, you bring back a memo from the clerk saying, I went through the vehicle checklist, no problems. Then they grant review. Now, it's a little hard to know which one the birthright citizenship case is because we just have one relist. So with one relist, it could be that it's going to get relisted five times and we're going to get some statement on the denial a review, or it could be that it's about to get granted at the next orders list. But either way, David, like, now's where it gets exciting. The first conference for birthright citizenship was never going to be very interesting. Right. Right. And

to be clear, the order is the birthright citizenship order is still blocked. This is the Trump administration's appeal from lower court decisions blocking enforcement of the order. So you had a district court in New Hampshire, you know, as Amy Howell writes about, that issued an executive order that barred the administration from enforcing the executive order against the class. This is a class certified case, class certification case. You have the Ninth Circuit case that declared the order to be invalid. So the birthright citizenship order is still blocked. We're just waiting on the final word from the court as to whether they're going to take it. All right, David, we also got a denial that I thought you would be really

into? So this is a case in which there is a petition for writ of certiorari denied. Justice Sotomayor and Justice Thomas wrote on this. And they both wrote on the question of a case called Ferris of the United States. It's a 1950 case. So this thing is 75 years old. And essentially what Ferris did is it created an exception. This is a judicially crafted exception to the Federal Tort Claims Act. So the Federal Tort Claims Act, as a general matter, is going to make the government liable for torts that it commits as if it did not possess sovereign immunity. This is a partial waiver of sovereign immunity. So this is what allows you to sue somebody from the federal government for things like

medical malpractice, for sexual assault, for car accidents, et cetera. But there's been a doctrine carved out since 1950 from this case, of the United States, that says that service-related injuries are not included in this Federal TORC claims Act waiver of sovereign immunity. Now, to be very clear, as both Sotomayor and Thomas explain, this has been tough to justify textually. This is how Justice Sotomayor says it. Since it was decided 75 years ago, Ferris's a textual expansion of the Federal Tort Claims Act, has garnered near universal criticism, has caused significant confusion, and has deprived service members and their families of redress for serious harms they have suffered during service to this

country. And this is for someone who voted to deny cert. Now, she says, even so, out of respect for the court's rules of stare decisis, and in recognition of the reliance interest that Paris has generated, I vote to deny this petition for cert. Thomas comes in and says, yeah, this is bad, and I don't have the same stare decisis approach to Ferris that Justice Sotomayor does. And so this is just as it's almost on cue, Sarah, to follow up the stare decisis discussion that we had. That is an ex, I would look at the Sotomayor discussion, which is essentially saying, yeah, this thing was really flawed, but for 75 years, Congress has had an opportunity to reverse it and hasn't done so. This has been a known problem for 75 years. Congress hasn't done anything about it. Sounds a lot like sort of the qualified immunity analysis.

Thomas comes in and is sort of like, who cares if Congress hasn't done anything for 75 years? This thing is completely a textual. And it does raise that very interesting stare decisis question. But for me, you know, I talked about stare decisis in terms of shades and zones of gray. this is so atextual. It's so completely atextual that it strikes me as it's not in that zone of gray. It's in the zone of black and white, but that's what a textualist would say, is that if you have a totally a textual or even worse, contratextual legal doctrine created by a judge, that is something that is absolutely ripe for reversal. And I'm not so. sure about that there's all that many compelling reliance interests? Yeah, I was pretty confused about the reliance interest part of this. And generally, we don't think of the government as actually having reliance interests.

And so the only reliance interest that I can think of would be the governments, because they're the one for whom sovereign immunity has not been waived. Like, this is the exception to that. So what? Reliance interest? But, David, the facts of this are pretty tragic. Air Force Staff Sergeant Cameron Beck was on his way, he was off duty, was on his motorcycle driving home for lunch with his family, and a woman driving a truck, a civilian federal employee driving a government-issued van was texting and driving, turned in front of his motorcycle, and killed him. So the question is whether Beck's widow, on behalf of her children as well, can sue the government because it was obviously a wrongful death case. And here, they're saying that

while the Federal Tort Claims Act waives the government's sovereign immunity for most of the government's torts, not if it's incident to military service. And so you have Justice Thomas saying, on the one hand, this doctrine's totally atextual, where did this come from? And on the other hand saying, and even if we don't overturn Ferris, how was this incident to military service? He was off duty going home for lunch. Well, at least we could narrow Ferris. But, yeah, only two votes. You have Thomas and Gorsuch.

And David, as you said, I don't see the reliance interest. And, you know, the first question you ask is basically how wrong was the previous case? How wrong is the precedent? and most of the justices have said where something is egregiously wrong, that that would be a reason to revisit a precedent. But statutory stare decisis is the strongest form, as Justice Barrett has said, that's the, you know, venty-sized stare decisis. That's the big one, right? Venti's big. And the longer it goes, almost the stronger the coffee is brewed because Congress has had that many more years to overturn this and seen it at work. As Justice Sotomayor pointed out, Congress has specific.

considered Farah's legislation. And each time it's failed to pass. And so do you take that to mean that they have acquiesced to the Ferris doctrine? But like, surely they didn't acquiesce to a guy going home for lunch who was off duty. Like, what the what? Yeah, yeah. I mean, and especially when you consider, as Thomas points out, the FTCA does include a military exception. So the Congress did consider the military aspect when it passed the law, but this military exception's really very narrow and very common sense. It doesn't apply to claims arising out of combatant activities during time of war. That's the text. Just to be clear, that's the only texted issue here that's actually in the statute. Combatant activity at a time of war is accepted, but somehow through Ferres,

that turned into incident to military service. And, you know, some of this makes, that makes sense. we had a terrible, terrible. There were terrible rollover incidents, for example. When I was in Iraq, this was a huge problem. These Humvees were loaded and so heavy. And they were not stable. And so there were times when a driver would make an unexpected maneuver. And that was that. And it was horrific. And this was something that, you know, there were a lot of families that were extremely angry about this, as you might imagine. But a lot of the reasons why these maneuvers happened were because of combat. You know, this was, you're on a combat presence patrol. There is extreme alertness. This is not a normal negligence kind of driving down I-65 in Nashville kind of situation. So this

makes sense that you would carve that out. But to carve out liability in this circumstance, I mean, and as you said, this was so clear that even the driver who killed the sergeant said, it was 100% my fault. And so if you want to talk about the most favorable facts, this is the kind of case that you would expect if a court wanted to reverse Ferris. These would be the facts that you would choose, right? This is the sort of clear injustice kind of case. And so consider me team Thomas and Gorsuch on this one. All right. When we get back, that was our cert denial. Let's talk some cert grants. David, there have been two cert grants since we last really dove in. We mentioned one briefly, but I thought we would dive in a little bit deeper today.

So the first case is Watson. Right now, 16 states permit absentee ballots to be counted as long as election officials receive them within a certain period of time after an election, as long as they were postmarked, and thus cast on or before election day. So it makes sense, right? You fill out your absentee ballot and you put it in the mail on Monday before election day, but it's not received until three days after election day.

That's okay in 16 states. Mississippi, where this case comes from, allows five business days for the absentee ballots postmarked by election day to arrive at the local election offices where they will be counted. Now, the Republican side has sued claiming that no, under federal law, the day for holding a congressional or presidential election is on the Tuesday, quote, the Tuesday next after the first Monday in November, requires that the absentee ballots not only be cast, but also received. Same as if you voted in person, right? That ballot has to be done by election day. So does an absentee.

ballot. You're welcome to vote absentee, but it needs to have been, like, arrived with all the other ballots that were cast on election day on election day. And that election day means that, right? It's a single day. All the ballots have to be in. David, it's kind of an interesting question because 16 states have been doing this. It's sort of a well-known thing that happens that you need to have postmarked your absentee ballot by election day, but that yes, ballots can come in after election day and that we keep counting. On the one hand, I guess, guess since I've, like, grown up in campaign world with that as the rule, it just seems like it makes a lot of intuitive sense to me. On the other hand, if I'm visiting it sort of from a

first principles basis, I got to say there is something very appealing to me about saying, nope, when we start counting ballots after the polls have closed on election night, that is a set universe of ballots, and that's it. And we just start counting at that point, that we don't keep adding to the denominator after election day. I like that rule. I guess the question is, is that federally mandated me liking the rule? Or should I vote that way in my state to change the law? Does that make sense? Yeah, that makes total sense. And I tend to think it's more the latter that this is sort of a classic policy question as far as do you want it to be, do we want to call election day when we start counting or is election day when you're finished casting? And I think

there could be, so there's, if you have under the system that many states have, you cast your vote when you mail it. It's not counted until it arrives. And think of it conceptually like this. When I voted, when I voted in Tennessee, we have dominion voting machines. Dump, dumb, dumb. No, anyway, we have dominion voting machines. and the system works like this that you vote, at least the machines I vote on, you press a button and that is me casting the vote, but then there's a piece of paper printed that I then go and is scanned, and that is when the vote is really actually counted. So let's imagine you have a situation where you press the button, but the printer's out of paper, Sarah, and you can't go

get the paper until after midnight the next day, and then they're printed later. In that circumstance, would you say, I did or did not participate in Election Day? Right. By casting, I would, from the standpoint of the voter, it's a casting issue. And by the counting issue, seems to be very distinct from the casting. So it's a fascinating issue, but it seems like it's not one inherently solvable by just the word election day, or the phrase, election day. I'm not sure that the phrase election day carries an inherent meaning one way or the other. Okay, well, then let me take you to another case where we're going to talk about the inherent meeting of very tiny little words. This was another cert grant about metering at the southern border.

So in 2016, Customs and Border Protection adopted a policy of metering asylum seekers at ports of entry along the border between Mexico and the United States. Under that policy, whenever border officials deemed a port of entry to be at capacity, they turned away all people lacking valid travel documents. Many of those people intended to seek asylum in the United States, but were not allowed to even apply. They could try to come back some other time, but there was no guarantee that they would ever be processed if the port kept being at capacity and they kept not being at the front of that line. Okay, here's what the law says, David. A non-citizen, quote, who is physically present in the United States or who arrives in the United States

whether or not as a designated port of arrival may apply for asylum. So the question is all about what does it mean to be physically present in the United States? The two to one ninth circuit panel wrote that that encompasses non-citizens within our borders and the phrase arrives in the United States encompasses those who encounter officials at the border, whichever side of the border they are standing on. So in that sense, the border in the United States moves with the border officials, David, like they are their own little piece of American land, if you will, sort of like an embassy. If you're a border official and you're 75 feet from the border telling people that the port of entry is closed as at capacity, they can still apply for asylum

basically when they touch you, is what the Ninth Circuit said. There was a big dissental from the en banc denial. Judge Dan Bress, who I have mentioned is my cousin, if you include sort of seventh twice-by-marriage consanguinity cousins. He's the best. Love you so much, because he wrote that the panels holding violates clear statutory text precedent, the presumption against applying U.S. law outside the United States, and long-held understandings limiting application of the asylum and inspection laws to aliens in the United States, which aliens in Mexico are not. So, David, this is sort of a text versus intention case, what the purpose of asylum laws are versus what the text quite clearly says you have to have arrived in the United States.

And of course, that's the asylum law for basically like a port of entry or if you're already in the United States, like in the continental United States. There are separate asylum laws for applying for asylum outside the United States. And so what the government is arguing is even if you're 75 feet from the border, those outside the United States asylum application laws apply to you. Yeah, to me, this case is interesting because, you know, I like the way you put it, text versus intent. I mean, this is about as sharp as that's going to get because there's not a lot,

there are a lot of statutes that I read that have ambiguous language, that have language that seems to be like you look at Congress and you say, guys, I know a lot of language is a product of consensus, I mean, not consensus, but compromise. and sometimes ambiguities are the only way this thing was going to be passed. This is not one of those times. I don't know how you could write the statute more clearly if you wanted someone to be physically present in the United States than to say physically present in the United States.

I mean, this does remind me about how, you know, when you were, the textualist approach says that every word, has a meaning. Like every word is there intentionally, such as physically and in. You know, those words have a meaning. And it reminds me I just had a really fun conversation. One thing that's fun about having two 1L kids is you get to have fun legal dinnertime conversations. And the question that she was asking is if the, if a statute prohibits physical restraint of a person and you have charged a someone who never touched a person but held them up at gunpoint is holding someone at gunpoint a physical restraint.

And I thought, interesting question. I would say no. If the statute just said restrain, then that could encompass, that's broad enough to encompass just holding someone up at gunpoint. If it says physical, that's a limitation on restraint. In other words, a smaller universe of action. And so if you apply the meaning of both words, this strikes me as a similar kind of analysis, physically in. Yeah, look, the fact that they granted certain this case, and we know, of course, about 70% of the cases they grant CERTon, they're reversing the lower court.

Given that the Ninth Circuit had the sort of the border moves with the CBP officer, my guess is that they're going to overturn that Ninth Circuit decision. And, you know, it was two to one. You have the 11 people judges joining the dissental. Again, my cousin wrote it so you know it's really brilliantly smart. That being said, there is something to me about the fact that you like send a customs and border patrol officer who is designated to work at the border of the United States. You send them out a few feet and say, you can't reach the border because we basically have a law that says if you reach the border, then we have to process your asylum application. that does seem a little weird to me. But what seems weirder is to say that the border moves with that doesn't.

That just isn't in the statute in any way, shape, or form. Yeah, and it does seem, I mean, I get the point that's a little weird to say, okay, if someone moves in five feet. But in reality, that moving in five feet matters a whole bunch because it can only happen with the consent of Mexico. So, in other words, what you're talking about here is an international agreement, between Mexico and the U.S. to allow U.S. border officials to enter Mexico and to implement this policy. It's one of the reasons why we have said before that the sort of the remain in Mexico

policy as created by practice regulation, et cetera, is not a permanent solution because it depends on the diplomatic cooperation of Mexico. And if Mexico doesn't want to cooperate with things get really tough fast. So I think that there is a very substantive, meaningful reason why that border is treated as like a magic line, because it is a magic line. Once you get past it on the other side, you can only conduct yourself with the consent of the host country.

And this case has been pending since 2016, fun times. All right, David, next episode we're going to have guest, guest, of the pod. Adam White joining me to break down, I don't know what. I mean, I've got feelings about INS Vichata. Adam says that he doesn't think any podcast audience could be nerdy enough to want a deep dive into INS Vichata, but he said it wasn't like in the holiday spirit. I think a single house legislative veto is absolutely in the spirit of Thanksgiving. But, you know, we'll see if he can convince me otherwise. And then David, after Thanksgiving, there's several really good ones. in December that I think we do need to do previews for.

There's the campaign finance one about independent expenditures between parties and candidates. There's the death penalty and IQ, multiple IQ tests. Is it a vibes IQ theory to not be eligible for the death penalty? Or are we actually looking at numbers on IQ tests? And this first choice women's resource centers versus Plotkins, it's sort of about crisis pregnancy centers. but it's really about red states and blue states kind of weaponizing their attorney's general offices to go after disfavored groups inside the state. I am looking forward to this case. This has been a pet peeve of mine for a while. So, yeah, the weaponization of the subpoena power of an attorney general, yish. But by the way, Sarah, has anyone been trying to appoint an executor for Humphrey's executor? Because

I think Humphrey's executor is, you know, we've had a zombie precedent. We've talked about zombie precedent before. Can we coin a term if this might sound like, can we coin a kind of brutal term and call it something hospice precedent? Oh, I think dead precedent walking? Yeah, that's, yeah. You know, I actually got to talk to someone, the guy who officiated Rebecca Slaughter's wedding. And I guess he told her that, you know, she was going to kill Humphrey's.

executor. She was going to be like the next Humphreys executor. And she's like, but Humphreys was dead. So, sorry, Rebecca Slaughter, but I think everyone's pretty clear-eyed on what's going to happen in that case. You know, David, before we go, there was a tweet that I just needed to read here because it has brought me so much joy as we think ahead

to what we are grateful for this Thanksgiving. I mean, things aren't perfect, but the universe is 14 billion years old, and you managed to be alive at the same time as Ruth Bader Ginsburg, so I don't know. Ruth Bader Ginsburg, David, is a black rooster with white, doily-esque feathering around its neck. He's a very handsome bird, and yeah, I see the resemblance.

You should put the tweet in the show notes so that people can check out Ruth Bader Ginsburg. If you can't find anything else to be grateful for this Thanksgiving, there you go. I got you one. I'll tell you, you know, I'm grateful for all the normal things this Thanksgiving. I'm so grateful for, you know, family and we're down in Houston. I'm grateful for Tex-Mex, you know, the really most important things in my life. But this year, David, I am particularly grateful for antibiotics. And, you know, I weirdly have gone and read a bunch of books on the discovery of antibiotics.

And I just wanted to recommend to everyone my favorite one. It's called The Demon Under the Microscope, from Battlefield Hospitals to Nazi Labs, one doctor's heroic search for the world's first miracle drug. This is the history of sulfa antibiotics. And David, it's so amazing, like, of all of the people in history who, like, we idolize, know the names of, name elementary schools after, and all of this stuff. I mean, really, probably nothing has been more important to our lives. than antibiotics.

When you think about it, how much suffering and death has been avoided, gosh, I don't think I'd have made it past six years old. I had bacterial pneumonia. I was hospitalized with a super high fever, and antibiotics took care of it. And I don't know what would have happened to me in the absence of those. So go do your job as a human being in the year 2025 and learn about the miracle of sulfa antibiotics. And I thought the demon under the microscope was highly readable. So yeah, that's what I'm thankful for this Thanksgiving. Anything unusual on your list, David? Nope, just looking forward to being

with family. And I've got two one-Ls who are Thanksgiving break is just the marker that says, start studying for exams. Go now. My one-L Thanksgiving, I was a ball of anxiety. I probably shouldn't have gone home. I probably should have just stayed in Boston and just kept my head down and grinded away. But I came home and just was like basically in a fetal position of anxiety. I remember carrying all of my books on carry on. Well, David, let me tell you. So one L year I did not go home for Thanksgiving and I stayed, but for exactly the reasons you thought, it did not help. The ball of anxiety was still very much there. I binge watched the Colin Firth Pride and Prejudice and made my own somewhat sad, I will admit, turkey in my efficiency apartment.

It didn't help. And it's not like I did well my first semester. I did very poorly. As I say this, because it's my way of getting over the trauma, I got a B minus and torts. And like, you know, you might as well end your whole law career if you get a B minus in torts, as we can see. Yeah, everything was downhill from there, Sarah, quite obviously. It was like my biggest shame for years, like maybe a decade of my life where I couldn't talk about that B-minus. So this is part of my therapy right now. Mort the tort. Mort Horowitz gave me a B-minus.

Well, I think you should, you're encouraging people right now. Your destiny is not set. Your destiny is not set by a B-minus and torts. It got worse, David, because when I went to Mort the tort afterward to talk to him about it, he said that I should consider dropping out of law school. that it was like, I was like, it was that bad? What is happening here? So, yeah. So that's a great way. Your first semester grades do not define you. All right. Well, we will have a Thanksgiving episode with Adam White, who will be so much fun. And then David, you and I will do those case previews next week. Happy Thanksgiving, David. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join,

and if you use promo code A.O, you'll get one month free and help me win the ongoing, deeply scientific, internal debate over which dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership at the dispatch.com slash premium. That'll get you an ad-free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns, or corrections, you can email us at advisory opinions at the dispatch.com. We read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.

Hi there. This is Ross Anderson, editor of the morning dispatch, interrupting your listening experience with a shameless plug. I believe that the morning dispatch is the best morning newsletter on the market by far, and I want to prove that too. So, I pulled some strings with the powers that be of the dispatch, and I'm happy to announce. that we're making TMD free for all readers this week. You can get the full edition of the Morning Dispatch for free when you sign up at www.thedispatch.com slash TMD

and consider this our way of saying thank you ahead of Thanksgiving. Whether you want to read our daily article or just hopping in for our quick summaries of the most important news, we've got something for you. After you already a dispatch member, you can help us out by forwarding one of our newsletters to a friend or loved one. We can only grow if people read us after all. Sign up for the full free edition of the Morning Dispatch

at www.thedispatch.com slash TMD. I'm proud of the work we do every day to deliver clarity, sanity, and understanding to our readers. And I can't wait for you to read it. Cheers.