Advisory Opinions - Clients Don't Always Listen

Episode Date: December 12, 2023

It's a marathon episode as Sarah and David try to figure out: -Will WilmerHale charge the university presidents for their testimony prep? -Is the ACLU making a comeback in NRA v. Vullo? -What’s up with Trump's gag order? -How to correct a chief justice Show Notes: -Students Call for Genocide, Presidents Smirk- -NYT: One Law Firm Prepared Both Penn and Harvard for Hearing on Antisemitism -SEC v Jarkesy Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we have too much content today. So we're going to try our best to zip through some of these. We're going to update you on the university presidents. We've got an update also on that deadspin defamation story about the Kansas City Chiefs fans. Has the ACLU found its free speech true north once again? Update on the Trump gag order. And we've got those three Supreme Court arguments that were argued this session.

And we're going to try to get to those. So, David, let's start at the top here. Since we last talked about the university presidents, things only got worse for them. You know, it was the hearing that launched a thousand op- speech, but they don't. So yeah, no, the hearing was still really bad. There was an interesting New York Times story that it appeared, I don't know, the presidents or enemies of Wilmer Hale, the law firm, did a offensive on the lawyers who prepped the three presidents. I'll tell you, though, lawyers who prepped the three presidents. I'll tell you, though, you know, we talked about that part. And for anyone who has worked in political comms, legal prepping for witnesses, I know this will come as a shock to y'all, but your client doesn't always listen to you. That's true. That's

true. Yeah. You know, so we don't know is my point. Like university presidents are trying to roll the bus over WilmerHale. I have great confidence that WilmerHale would have a different viewpoint, perhaps, on the whole thing. Can I can I project myself into WilmerHale for a minute? Yeah. I'm channeling WilmerHale. What are you talking about? We didn't tell you to smirk. WilmerHale. What are you talking about? We didn't tell you to smirk. But did you tell them not to smirk? That's actually my question. Yeah, right. Yeah. That's what we don't know. But I'm channeling WilmerHale. What are you talking about? We did not tell you to smirk. Okay, David, but real quick, before we leave WilmerHale, do they send a bill? Because that took a lot of time to prep them. But on the other hand,

Harvard, for instance, has been a long-term client of WilmerHale's. Do you send them a bill for how much it costs to prep them for something that was so disastrous? And have you ever had a situation where you didn't bill the time to the client because something went horribly wrong? Thankfully, I've never been in that position. I have vague rumblings in the back of my mind of memories of discussions about this at the firm, like if something had gone really bad, that something had gone badly, should we cut the rate? What should we do? I think if you have a really longstanding relationship with a client, what you end up doing is you just talk it through. Like,

what's fair here? We want to keep this relationship going. But in my experience, if you have long relationships with lawyers and something goes badly wrong, you'd be surprised how rarely that actually does fracture the relationship with the lawyers. I know. I think it would shock people. Yeah. Yeah. Because you form a personal bond and then you're in the foxhole together. And I know. I think it would shock people. And, you know, look, there are some some good points in that, you know, not OK points, because Elise Stefanik did really move from globalize the intifada means genocide like really fast, like that's stealing a few bases there. But it's five minutes. I'm sorry. I'm sorry. It's absolutely clear, though, that there was that this was just a pure disaster. And I've rarely have I seen such immediate consequence from a congressional hearing from a congressional hearing, which, by the way, Sarah, they they had for so long. How many times we've talked about how much they've been joke events. They've just been useless,

how much they've been joke events. They've just been useless, grandstanding events. And then here we have a congressional hearing in a moment of five minutes total of a congressional hearing that has dominated the national discourse for days. I mean, this is unusual. This is not something that we've grown accustomed to. And as you said, in less than a week,

the University of Pennsylvania president has resigned, though she was fired, as well as the chairman of their board. Several questions around that. But I think the one that is most in front of everyone's mind is, is Harvard next? I think the answer to that is a clear no. Not yet. Now, there are allegations that she has committed plagiarism with her dissertation. And if that's solid and substantiated, they've got an issue. And oh, yes, to be clear, if if that turns out to be true, she will lose her job. And it will have been the hearing will have been the but for cause in a lot of ways. But it will not be like UPenn, where it was really the hearing was the culmination of a lot of pressure to push her out.

She needed to perform well and didn't. So she lost her job. Harvard just doesn't have the pressure internally from the donors, from the board. I mean, they have an assault on camera. Yeah, yeah. From an HLS student, member of the Harvard Law Review. from an HLS student, member of the Harvard Law Review, and they're claiming that they can't do anything about that until the FBI finishes its investigation. It's been two months. I mean, this is ridiculous. And it's not true. It's not true. Yeah, it's absolutely not true.

Oh, they also said at the hearing, by the way, David, that they couldn't talk about what discipline happens on their campuses, that was also totally untrue. I talked to another university administrator just to like get a better sense of what that was about, because it didn't make any sense to me. And yeah, I mean, so they were saying because of FERPA, they couldn't discuss individual cases. I mean, yes, that is true. But that's a not where you were asked. Yeah. But also, under the Clery Act, they have to report certain numbers publicly. It includes hate crimes and intimidation. Well, gosh, I wonder if anything that's happened on these campuses qualifies as a hate crime or intimidation. So, look, maybe their answer should have been, look, we're going to report that under the Clery Act. Some of these are closer calls, whether they fall under that reporting requirement.

But the answer isn't just like, I can't tell you about that because of FERPA. Like, and, you know, out of all the outrages, I think that one is not going to come like didn't come to the fore because of the whole, you know, not caring much about genocide thing. But that, again, it was just an example of an answer where they thought they were being clever. They thought they were outsmarting Elise Stefanik, outlawing her. And they sound stupid to people who know what they're talking about. You know, I just can't help but think that some of the analysis going in and maybe somebody who is was privy to the planning going in can can help and shed light on this because we're in speculation mode here. much a pervasive and let's face it, often justified view that these hearings have become clown shows where the people who are the clowns are the congressmen. And so that what you have to do in front of these members of Congress is basically stand up to them, don't give them anything, even to the point of dismissiveness, because they're going to be clowned themselves, that they're the ones who engage in the histrionics, et cetera, et cetera.

And, you know, there would be reason to sort of think that that could be a dynamic going in. However, unlike previous incidents and unlike previous confrontations, like previous incidents and unlike previous confrontations, these presidents were not going into these hearings with their community united behind them or with their ideological side united behind them. They were going into this hearing where their own communities were torn to pieces. Their own ideological side was in many ways appalled by what was happening on their campuses. So they were not coming in here with some sort of solid partisan coalition that they could normally rely on to backstop them and that would applaud them maybe even for being sort of scornful and dismissive.

They were coming in with their own side being anguished and angry. were coming in with their own side being anguished and angry. And then all of that scornfulness and all of that, you know, all of that smirking just was, there was no market for it. Or if there was a market for it, it might've been 5% of America. And yeah, what a, just what a colossal miscalculation. But what a gift to all of you lawyers out there listening who need to prepare clients for depositions, congressional testimony, all of you white collar folks where they may or may not take the stand,

you're gonna get to play this colloquy for years to come and explain that while, yes, of course you want your client to avoid always and never terms and you want them to give short answers and many times the correct answer, most of the time, the correct answer is it depends. But if you're asked if you've intentionally committed a crime, do listen to the question. Do actually have some moral compass in your head. Right. When they ask that question, you don't say, it depends.

Well, and the other thing is, and we do need to move on from this, but it's such an interesting topic on so many levels, whether it's legal, it's political, it's cultural. But, you know, as we were talking about right before the podcast, if you're going to walk in with the lawyerly free speech answers, it's best not to be the presidents of some of the worst schools for free speech in America, including the worst, according to the FIRE rankings. Harvard is the worst school. And so if you're going to walk in like you're some sort of champion for free speech, you're treating us like you think we're idiots. You know, oh, this is a blank slate. We have no prior history with Harvard on free speech topics.

Let's learn from them. No, that is not the situation at all. Okay, so David, we're making bets here. We don't like to prognosticate too much on this podcast, but they've got a choice of which direction they go now. Do these schools become more friendly to free speech after not just the hearing, right? But the whole meal that they've been served here. Oh, this is okay. I'm really torn on this question, actually, Sarah, because I think that their immediate temptation is going to be to crack down on free speech. And so I think that's going to be the immediate temptation.

I think that has five, you know, has any bit of common sense, which should know that, look, this is right when you should run towards the Chicago model. This is exactly, this is your moment. This is your moment. Institutional neutrality and free speech. Move to that model because you know, so far anyway,

who is not being hauled in front of Congress? Chicago. And- I wish they had been there. I think the juxtaposition would have been helpful. It would have been very interesting because what's gonna happen is if they make the wrong choice here, which is they're gonna be immediately tempted to do

to move towards more censorship, is that this will just cycle, rinse, repeat over and over again. Every time something controversial, contentious happens, it's going to be, what's your official statement as a university? And why aren't you suppressing the speech that really, really makes me angry? And that's just going to be all the time, constant. And if you have the Chicago, if you make the clean break from this point forward, people,

we are institutionally neutral. We are tracking First Amendment. And then every time something else comes up, whether it's a Israel-Lebanon war, whether it is a continuation expansion of hostilities in Europe or another police brutality incident like George Floyd, just tap the sign, institutionally neutral, and then move over and tap the other sign, free speech. What would have been great about Chicago being there, and again, sorry, Chicago admins, I'm going to now put words in your mouth that maybe you wouldn't have said, but it also would have highlighted it from the other side, from the pro-free speech side, because you and I have talked about this plenty, the Newsom and DeSantis are actually next to each other in the horseshoe and now a straight circle

at this point when it comes to free speech. Yeah. Let's just call them Newsantis. Right. And so Republicans are now becoming not free speech friendly. Stefanik's questions were not free speech friendly questions. So what I really would have enjoyed is the sort of mealy mouthed answers. It depends on context. You know, MIT, do calls for genocide violate your school's policies? Well, it depends on context. UPenn do calls for genocide violate your school's policies? Well, as she said, it depends.

Harvard, it depends. Chicago, nope. Right. And then make Staphonics come back and say why? Well, as she said, it depends. Harvard, it depends. Chicago, nope. Right? And then make Stefanik come back and say, why? And say, well, let me give you examples in the past of how we've treated this. Because the difference at Chicago would be that they could actually back it up. Yes.

With their actual experience of protecting free speech on campus. The reason that Harvard and Penn and others had to say it depends is not because it would actually depend. Calls for genocide do not violate the First Amendment. But they would on their campuses because that's what their policies actually are. about the FIRE rankings, is they're also evaluating how students experience these campuses. And students have not experienced these campuses as free speech havens. And so there's one other thing about this, Sarah, that's going to be really interesting. So Elise Stefanik was extremely aggressive against anti-Semitism in that hearing. And I'm really looking forward to when she finds out that Donald Trump had dinner with Nick Fuentes and how she is going to unleash on Donald Trump. No doubt, right?

Uh-huh. Uh-huh. Sorry. Sarcasm warning, everyone. That was just for those who don't pick up on David's, you know. David has the sweetest sarcasm. That's the problem. That's why I have to give that warning. It's like, how could David be sarcastic? No.

And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy.

Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, we're moving on. David, there's also been an editor's note added to that Deadspin

story that has at least caused threatened legal action for defamation about that nine-year-old Kansas City Chiefs fan who showed up wearing red and black face paint to the Kansas City Chiefs game. Deadspin wrote that he had found, quote, a way to hate black people and Native Americans. Update? Yeah, so there's a heck of an editor's note. Here goes. It's been attached to the story. So here goes.

On November 27, Deadspin published an opinion piece criticizing the NFL for allowing a young fan to attend the Kansas City Chiefs game against the Las Vegas Raiders on November 26th, wearing a traditional Native American headdress and based upon the available photo, what appeared to be black face paint. Unfortunately, the article drew attention to the fan. Pause.

Pause. My goodness. For her legal consequences. Heavens to Betsy. my goodness for her legal consequences heavens to betsy our article which prominently featured the fan drew attention to the fan and exclusively talked about him remember it even uh uh asked what age we think he might be could he be an adult this nine-year-old hope wilmer held and advise him on that language. Unfortunately, the article drew attention to the fan. Though our intended focus was on the NFL and its checkered history on race, an issue which our writer has covered extensively for Deadspin.

Three years ago, the Chiefs banned fans from wearing headdresses in Arrowhead Stadium, as well as face painting that appropriates American Indian cultures and traditions. The story's intended focus was the NFL and its failure to extend those rules to the entire league. We regret any suggestion that we were attacking the fan. To that end, any suggestion, suggestion. Again, let's read the line. This fan has found a way to hate Black people and Native Americans at the same time. We weren't

attacking him. Any suggestions, Sarah? Oh my goodness. How dare you? To that end, our story was updated on December 7th to remove any photos, tweets, links, or otherwise identifying information about the fan. We've also revised the headline to better reflect the substance of the story. But just to be clear, you know, after they wrote all that, I just want to read then the top of the story. It takes a lot to disrespect two groups of people at once, but on Sunday afternoon in Las Vegas, someone in the stands at the Kansas City Chiefs game found a way, leading to a lot of unanswered questions. Why did the camera person give this fan the attention? Why did the producer allow that camera angle to be aired at all?

Huh. So actually, the story very much still starts with attention on someone. Yeah. And it's team face paint. Team face paint is about, it's one of the most common phenomenon you encounter in any arena in the United States of America. It's team colors face paint. That is so, so, so, so normal.

That is not a cultural appropriation, mimicry, mockery. Okay. But I am excited to talk about the legal side of this. Yes. Because 100%, this is in anticipation of litigation. Right. And I, David, have some personal experience not on the lawyer side of this whole thing. Oh, oh, OK. But in March of 2016, the National Enquirer had a front page full story about Ted Cruz's mistresses.

Yeah. Now we've talked about this. Oh, yeah. But I think we talked about it on the podcast. I don't think we have. I don't think we have. No. Yeah. Please. OK, well, it had my picture on the front of the National Enquirer. And I'm laughing. It was not funny at the time. I very much, at the time, I had about 48 hours notice that this was going to happen. And in that moment, you know, I was working, Carly Fiorina had dropped out at that point.

I was still working for Carly, who had then endorsed Ted Cruz. So I was traveling with Ted Cruz's campaign with Carly. Right. And I had worked for Ted Cruz in 2009. There were no pictures of Ted and I together. In fact, the one picture that I think even exists of me and Ted was at my wedding, which would be not helpful, I think, for their narrative. Right. But I thought I was going to be Monica Lewinsky, you know, you know, in my head. I think it's like really easy to say how silly that was now. Yeah. But I felt like I'd worked my whole life. Yeah. Just really, really hard. And it was all going to be taken away from me for something I did not. I didn't do. I didn't come. Like it

was not in the realm of reality. Yeah. And so, you know, I had, I was losing sleep. Obviously I had plans to, um, be able to get out of my apartment quickly with my cat. How was I going to get the cat out and the back stairs and how close were they? You know, I had all these like emergency plans. And that morning when I called around to some reporters who I knew very well before their morning editorial meetings, I was immediately relieved to have them tell me, they're like, Sarah, we might believe a lot of things about you, but you can do better than Ted. We think you would. John Thune, sure. Ted Cruz? Probably not. And I was like, okay. But long story short, the National Enquirer had been very careful about how they'd written the story. But other publications, not so much.

Right. letters sent to some of those publications. And I didn't really, I mean, I still was worried about my career at that point. I had no interest in having protracted litigation with any of these publications. Just one of the stories gone. And boy, did those stories disappear very, very quickly. Interesting. Interesting. So I'm curious about this, whether this was an agreed upon, we will not sue you if you take out all mention. Or like bucket number two, we will not use this as proof of, you know, a guilty conscience, you know, knowledge of guilt, if you update the story. Or three, this is actually deadspin being concerned about the litigation and trying to head it off,

but the litigation is very much, you know, on. Because I think the update fits, at least, at least it very much fits the first bucket, that this is an agreed upon, we'll drop the litigation if you take everything out about our son. Yeah, it does fit that. It also has a strong whiff of mitigation of damages. So how many days was this story out with the picture, with the declaration, with all the identifying, and now all of that's removed so that if somebody goes to the story, you don't know who it is. And so then there's no continuing damage. There's some mitigation elements there as well. I would not be surprised to see an announcement of some sort of settlement. That wouldn't shock me. Which I think will disappoint a lot of folks on the right. But if you're his

parents, you have a different set of considerations. I'm not saying I wouldn't move forward with the litigation if I were his parents. You've got to sort of dead to rights here. You know, pay for some college tuition. But you're thinking of your kid only at this point, not the right wing culture war against deadspin and whether you can bankrupt them a la Gawker or something. Sarah, college tuition plus college Lamborghini plus like maybe at least a ride share portion of a college G4. I don't know. Can I tell you another funny story? Some of my college was paid for due to a medical malpractice incident involving dental surgery.

involving dental surgery. And my dad, I was, I don't know, 11, 12 at the time, something like that. And I remember my dad asking me, you know, like sort of a practice deposition. I didn't know that's what it was at the time. But I had to redo the surgery. And so he was asking me, you know, about the first surgery and like how painful that was and whatever. And he, you know, and I'm like, Oh, yeah, it wasn't, it wasn't good, whatever. And then he's like, how much money would you say, like they would need to pay you to like endure that pain, et cetera. And I was like, I don't know, um, like $20. And he was like, and we're settling. $20. I mean, I had no concept of money.

Of course. That was a nice trip to Bennigan's for me and my friends. It felt good. $20. Oh, gosh. All right. Well, we'll see where that ends up. Okay.

The ACLU had an interesting announcement, David. Yeah. So this is a case and Sarah, you know, I don't like to toot our own horn. You know, I don't like to compliment our own podcast. I love to toot our own horn. Literally every single podcast when we get off, he goes, that was a good time. I love to toot our own horn. So we have been following this case called NRA versus Vulo before it was cool to follow NRA versus Vulo. And this is the case that involving New York state authorities telling banking institutions

and other financial institutions that were doing business with the NRA that they should consider the harm, reputational harm that could occur to them if they continue to do business with the NRA. And so the NRA filed suit saying that this wasn't convincing. Remember, we've talked about this a lot in this podcast. What's the line between the government convincing someone using the bully pulpit of the government

to convince someone to do something versus coercing, which would obviously implicate the First Amendment? So this is a case that we talked about when it was decided and said, yee, this seems a little bit too forgiving of government coercion. Then the Supreme Court took the case. The case was actually used in, the case was actually key in the appeals of the Missouri v. Biden case, which the circuit court used NRA versus Vulo sort of as the framework for deciding the line between convincing versus coercing. In other words, this case just keeps getting bigger

and more important. So this is the most important case, arguably, that's been taken yet by the Supreme Court on the convince versus coerce line. And it's the NRA, the National Rifle Association. And so guess who's representing the NRA at the Supreme Court? The ACLU. The announcement was put out. David Cole, who I podcasted with not long ago with our mutual friend, Sarah Jeff Rosen at the National Constitution Center, announced, talked about that they are representing the NRA.

And good on them, Sarah. 100% unreserved, good on them. This is classic old school ACLU free speech representation. And I think it's a really good thing. So ACLU is representing the NRA. No love lost between them ideologically, but absolute unity for these purposes on the underlying First Amendment principle. And I think the ACLU is taking the correct position in representing the NRA here. I thought the Second Circuit was overly permissive towards the government on the convince versus coerce line. Yeah, so good on you, ACLU. I'm pretty excited about it because the NRA is such an odious organization to the ACLU staff and donors. And the problem that we've highlighted in the past with the ACLU is they seemed to be more inclined to lean in the direction of those donors. And remember, the ACLU, like, literally every elected politician and every organization at this point has really moved from a large donor fundraising strategy to a small dollar one. And so for the ACLU, then to say you're representing the NRA, that's not going to make a lot of sense to your $5 and $20 donors.

It certainly doesn't, it's not going to have the money rolling in the way that some of their other cases that more politically aligned with their donors would. And, you know, David, we were really concerned when the ACLU basically put out a statement saying, like, our bad for the Skokie case. Right, right. basically put out a statement saying like, are bad for the Skokie case. Right, right. And then, you know, there was some interesting, there was a really interesting reckoning and dynamic that played out because they represented some of the folks who were behind the Unite the Right rally in Charlottesville. That's what led to the like, we're sorry. Yeah, yeah.

South Park style. Exactly. And because, of course, everyone knows what happens in the aftermath of that rally. There was a right wing vehicular terror attack that killed a woman. I mean, it was horrific. It was horrific. And to be clear, the ACLU did not represent them for the purpose of allowing them the opportunity to commit an act of terror or violence. It was classic old school, hey, they may be repugnant, but they have the same right to demonstrate as anybody else. But I mean, you know, look, I get it after you've had an actual terror attack that spawned from the event, there's going to be a hurricane of criticism. But the underlying free speech principle is was still there and is still there. But yeah, I think this is a very positive move. And that is one of the oral arguments I'm most looking forward to.

I'm very interested in that oral argument. Well, great. That'll be fun. And congrats, ACLU. I think you've got a really good chance to do quite well here. Yes, I agree. All right.

The D.C. Circuit issued its opinion in the Trump gag order. This is the gag order that had been issued by the federal district court about the January 6th election interference criminal case against Donald Trump. That original gag order was incredibly broad, saying that Donald Trump could not criticize the special counsel, but he could criticize the Department of Justice, that he couldn't criticize witnesses that could be called in the trial, at least as far as the topic of their testimony, court staff, you know, sort of the behind the scenes folks as well. Largely, the D.C. Circuit upheld that, David. Yeah, it did. It did narrow it. It did narrow it, but it didn't. Maybe it didn't narrow it as much as I thought that it might.

I think this will not be the end of this. That's how much they didn't narrow it as much as I thought they would, in my view. Really, the only narrowing was he can criticize Jack Smith, the special counsel. But the part that I found surprising was that the witnesses, the gag order related to the witnesses stayed in effect. And, you know, like I said before, Bill Barr, Mike Pence, these guys have literally written books criticizing Donald Trump over his post-election actions. A, where's the potential intimidation there? This seemed like an end run around having to actually charge someone with witness intimidation because they don't got it on Mike Pence and Bill Barr, etc. There's got to be a way to distinguish with witnesses between the ones who have made money off of criticizing him

for his post-election activities through these books, ran for office against him, sit on TV and criticize him for the exact same thing they'd be testifying about. What is the purpose of the gag order? It's not to prevent intimidation of Bill Barr. That guy will not be intimidated, I assure you. So that just seems like a big problem to me. Yeah, it's very, you raise a really good point, because many of these witnesses have spoken quite freely about their recollections of what happened leading up to January 6. And they've done so publicly, they've criticized the president, I think rightfully in some pretty aggressive language. Yeah, sorry. And when I say make money, I don't mean that in a pejorative sense. I mean, this is wild that like people can commercially profit off of post, you know, 2020 criticisms of Donald Trump, but he's not allowed to even respond.

the opinion. And let's just make clear what the gag order is. So here's just a very brief summary of it. The order is affirmed to the extent that it prohibits all parties on their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding. So this doesn't stop him from lambasting Barr generally or Pence generally, but concerning his participation. The order is also affirmed to the extent that it prohibits all parties in their counsel from making or directing others to make public statements about one counsel in the case, other than the special counsel, that's your Jack Smith exception, members of the court staff and council staffs, or three family

members of any council or staff member, if those statements are made with the intent to materially interfere with or to cause others to materially interfere with counsel's or staff's work in this criminal case, or with the knowledge that such interference is highly likely to result. That last little catch-all. And I will tell you, Sarah, what's interesting about this to me is here is sort of the difficulty. We now have a lot of water under the bridge where we know when Trump goes after someone rhetorically aggressively, that there is like night follows day, a nightmare that is experienced by the person that Trump goes

after. And by nightmare, I don't mean lots of people are mean to them. By nightmare, I mean lots of people threaten their lives. And there's the story of people having to vacate their homes, for example, because after a Trump social post or whatever. And so it really raises this interesting question. And I think this is something that's really in the back of these judges' minds. This is such a well-established pattern at this point, Sarah, that Trump aims at somebody and they have to leave their house or they have to get 24-hour armed protection or you name it, that I think part of what's happening is I think the judges believe that Donald Trump is intending all of these effects to be that that this is not a mysterious process how this works. When Donald Trump targets these people, he's actually intending all of these effects. And and I think that's sort of the factual reality underlying a lot of this discussion is not that, hey, we think Donald Trump has a right to strongly critique these people.

I think a lot of the judges are thinking, we know what you're doing, Donald Trump. You're intending to incite violent threats and intimidation. But that raises back to the question of, but this is the witness. This is the witness interference intimidation statute. There's law to cover that. There's law to cover that. And I think we run into a real heckler's veto problem. Again, I'm glad Bill Barr wrote his book. I'm glad Mike Pence did too. I'm glad this is not pro-Trump whatsoever. But I'm concerned that if you start curtailing his speech, you can come after mine. And so, look, if the result of Trump's speech is a whole

bunch of third parties, then do something that we don't like. Well, then you can really curtail anyone's speech that's really, really popular or unpopular. Well, and also linking, again, because it's so prevalent, you know, sort of the old phrase, bad facts make bad law. Everything around this is bad facts. Yep. Everything around this is bad facts.

But I don't want to create a legal pattern where it goes something like this. And if I, for example, critique somebody by name on threads, even if I don't do it in Trumpy language, right, that do I have a deranged threads follower who would then decide to issue a death threat or make some other kind of knowledge of how many people follow you, you have knowledge of, you know, that that your posts get a lot of attention. But okay, so like on the free speech

spectrum, right, we've got heckler's veto. We're all like, oh, yes, that's very bad, very bad. On the other side, we have, will no one rid me of this meddlesome priest? Right. And so we're constantly trying to decide where on that spectrum when it comes to third parties actions, how do we protect speech? You know, and on the hecklers veto, again, I think many listeners will point out, yeah, that's about hecklers. That's about people who don't like your speech and saying that we don't shut down your speech because the school would have to, for instance, take on more security because your speech is so unpopular. Right. The, well, no one rid me of this meddlesome priest,

is you wanting to make sure that you don't have a direct link to what happens next, when in fact you want the thing to happen next. And yes, before all you history buffs hop in the comment section, I know that there's a whole strain of history that in fact he didn't want anyone to rid him of that meddlesome priest and, you know, wish Thomas the Beckett a long and happy life. But just bear with me for the sake of the example. I don't actually care what the king wanted. Yeah, no. And I think that there is a lot of evidence that Trump is a will no one rid me of this meddlesome priest kind of guy.

An enormous amount of evidence. But how do you draw the rule? Because courts create they don't just have they don't just adjudicate outcomes. They create rules. They define, sharpen and identify rules, legal rules. And so what's the legal rule? So I'm with you, Sarah. I think we might

see more about this, but I would, we'll put, of course, the opinion in the show notes, but I strongly recommend reading it because it is actually the actual guts of the legal reasoning is wrestling with these two constitutional values. One constitutional value is free speech. The other one is a fair trial, a fair trial. And so what, how do they interact? And the court is pretty emphatic that the default presumption is against gag orders. So that's, that's the presumption. So it takes a high bar to clear. And what I think the court does quite effectively is outline the cause and effect of Trump truth social post means X, Y and Z. And it's pretty horrible what happens. But at the same time, man, this is a this is a hard one.

This is a hard one, Sarah. OK, well, I think there's a high chance this is going to the Supreme Court or at least they will ask the Supreme Court to hear it. I think it's a big question of whether the Supreme Court takes this at all. On the one hand, the Supreme Court has never ruled on the constitutionality of a gag order. And as you said, David, it's supposed to be this balance between, you know, the rights of the accused and just the First Amendment rights of people involved in general versus the orderly conduct of justice. Look, if you want to do some history, text and tradition here, I think gag orders have a real problem, right? Because the First Amendment in general,

there's at least a whole scholarly strain of thought that the only thing the First Amendment was meant to do was prior restraint. This is the definition of prior restraint. First Amendment was meant to do was prior restraint. This is the definition of prior restraint. Right. I think that's worth emphasizing here, Sarah, because if you're talking about competing interests in play, this is reaching into apex reach of the First Amendment. So, yeah, so this is core, core, core stuff. Over the orderly administration of justice. Sorry, I don't think that that interest has as much weight as the judges here, for instance, gave it. On the other hand, I know the Supreme Court would very much not like to take this. the other hand, I know the Supreme Court would very much not like to take this. Yeah, I don't think they don't want to do this. No, no, I could easily imagine that this actually just stands. I

could easily imagine that. And then they don't make precedent. I mean, the D.C. Circuit precedent stands, obviously, but then the Supreme Court still doesn't weigh in. But boy, you know, there was that Harold Ford senior gag order that the DC circuit ruled on back in the 80s, where they narrowed it substantially, much narrower than this now is. I think this is, you know, we've talked about different distortion effects on the law, and it's almost like this gravitational pull problem. And I think of gravity in these like, overly simplistic terms of like, you know,

you spread the sheet out and put the ball in the center of the sheet and everything kind of then is going to roll toward the ball. Like that's what Donald Trump is in so many different parts of our politics, of our law, et cetera. There's just a whole lot of gravitational pull on the law when it comes to Donald Trump. And I very much think the Skag order is an example of that right now. Yeah. No, I agree with you. I agree with you. But at the

same time, don't know. If I had to bet, if I had to bet, I bet we probably end up with the Supreme Court stepping away from this. But I'm not sure. We'll see. We'll see. Okay. Also, though, we have to do Hunter Biden. Oh, gosh. He was charged in California with felony and misdemeanor tax evasion. This was not a surprise to anyone. Obviously, after the plea deal fell through in the late summer, we knew that it was just a matter of time before they were going to charge him, most likely in California. So literally every piece of this is like, yep, yep, yep. But where the severity of the charges, the number of the charges and the detail with which they describe them, a surprise to you, David? I'm not going to say it was a

surprise. I felt I sort of felt months ago when we first really talked about how this plea fell apart and everything that basically the gloves were going to come off against him. There was all of the incentives were now running towards let's show you how we apply the rule of law. And so once the incentives began to shift and that plea deal fell apart, I began to, I started to think that, look, we're going to, we have not seen the end of it with this one little gun charge. We have definitely not seen the end of it. And it wouldn't shock me if we've still not seen the end of all of it, because we still have the matter of his sort of engagements overseas. How kosher were those? We're not sure. But, you know, none of this surprised me, nor did it surprise me when some Republicans went on cable TV and said these indictments are further evidence of the cover up. Well, OK, here's what they were talking about, David. Let's be fair.

All right. There had been various whistleblowers from the IRS and elsewhere saying that David Weiss had been prevented from bringing charges in other jurisdictions. And that's how the plea deal sort of arose. And his hands have been tied by political appointees within the Department of Justice. Their point on this proves the cover up is that this indictment shows that those whistleblowers or it it it would be some evidence that those whistleblowers knew what they were talking about. I thought it was that the fact that he's now indicted means he's less likely to cooperate with the committee. Okay, that's the stupider Tapper's face, I just, that needs to be a meme. Right. The idea is Hunter Biden was going to come testify before Congress, but now that he's under criminal indictment, a different criminal indictment, Now he won't. Well, there's already the fight over whether his testimony will be open, which apparently Hunter Biden now wants versus behind closed doors, which the Republicans now apparently want. It's a mess. It's a mess.

Hard to keep track of. I ended up I don't think a lot of people understand what it's like to be on live TV in the sense that they think everything that comes out of your mouth, like you had planned to come out of your mouth. And that's not what happens. It's a lot like this podcast. Sometimes they're just like saying something and you're like, and that's what I said. Okay, fair enough. But unlike this podcast, we can't edit it. So on ABC this weekend, they asked me about the Hunter Biden. And I was describing sort of the political ramifications of this, that it's much worse than the gun case for the Biden reelection, Biden administration, because it's actually to the core of the Biden corruption charges, right? This is about him being unqualified to get all this money from foreign governments and

foreign entities because of his father's last name, who was paid by taxpayers, and then not paying his taxes on that money that he only was able to get because the taxpayers paid his father for jobs. And I was like, and all the more so salacious because he spent it on, and you can like see the pause in my voice where I'm trying to find a way to describe what he spent it on without spending too much time.

Because, you know, he has sort of a limited amount of time to talk. And what came out of my mouth was hookers and blow on abc news you guys hookers and blow oh man i mean if there's any ever a time to use that in national television it was literally on hookers and blow yeah but it was not my proudest moment. I'll just tell you, like I could have. Is the better way to say sex workers and cocaine? Yes, that would have been better, honestly. That would have been better? Okay. I don't guess I could write hookers and blow in a Times column. I think that would probably be against the style

guide. Oh, I got censored by the New York Times, David. Oh, no. After the GOP debate, I wrote, I think I speak for the entire pundit class when I tell you that we're all running out of synonyms for. And since this is a family podcast. A-hole. Okay. And the editor came back and was like, no, ma'am. I was like, how about D? He was like, no. So now it just says jerk. And it just doesn't carry the punch that it had before. Yeah. How dare they, David? There are a lot of people who pay very, very, very, very close attention to how the Times uses language and what language it allows in the paper, which then leads to a lot of real internal discussions about can we use the S word, for example?

If it's a quote, in what context or how do you handle that? And I actually had a column not long ago where that word was used in quoted i didn't i didn't submit copy that was like hey this is you know total bs but uh i was quoting something and it led to you know pretty interesting back and forth it was fun for me to sort of watch that back and forth and these and these really people take the style guide of the times very seriously. And it's really interesting to see what words pass muster and what circumstances and which don't. So I'm not at all surprised, Sarah, that we won't use the word censored. We'll just say edit it. which is accurate. But nevertheless, I, of course, was allowed to write whatever I wanted on Twitter or any of my own spaces. Yes. So, David, a lot coming out of the Supreme Court these days. We had a very long orders list, including some Munsingware vacaters on federal employee and military employee vaccine mandates with a nice little Justice Jackson. Hey, I still think the way I think about Munsingware vacater. We also had a dissent from the denial of cert in a case about censoring counselors who help minors accept their biological sex.

And some other cert denials in there that I think we'll just get to on the next episode. Because we have spent so long not talking about these oral arguments from last time, from this session, that were fun, but I guess not fun enough. So let's just spend a few moments talking about SEC v. Jarcacy. And, you know, many times, David, we rely on the Chief Justice to tell us how to pronounce these cases because he opens it up, you you know now we will hear argument in case yada yada yada yada party a versus party b well he opened it up by saying and now we will hear argument in case number blah blah blah sec versus jarcusi and i was like oh we've a been pronouncing

it wrong but b if we've been pronouncing it right how am i going to like deal with this that the chief justice just pronounced it differently and lo and behold man the oral advocate for jarcasy stood up and corrected the chief wow because he knows that podcasts like ours you know really rely on that initial pronunciation. So we will keep pronouncing it SEC v. Jarcacy based on counsel. And we will then ignore the chief justice. So, hmm. So, Sarah, you know, SEC v. Jarcacy is one of the cases we've not covered.

Also, we have not covered the Purdue Pharma case yet. And also, we have not covered the Purdue Pharma case yet. And also we have not covered the income tax case. Can I tie them all together on one point just briefly? There's an interesting common thread in all of these is they're all taking on pretty long standing practices, which I find interesting. So they're, you know, in Purdue Pharma talking about how non-parties to the bankruptcy, that liabilities against non-parties to the bankruptcy can have their, that liabilities against those individuals can be discharged in a bankruptcy that is not their bankruptcy. That's been going on for a long time. These adjudications at the SEC have been going on for a long time. The way in which we're taxing

income has been going on for a long time. And this is a very, I'm seeing this pattern over and over and over and over and over again with this new 6-3 court, or we'll get to this, but really 3-3-3-3 or 3-3-3, that there is a volley of litigation coming forward, sort of pent up legal demand from the conservative legal movement of all of these longstanding practices that are, they're challenging. And I feel like the Supreme Court window is closing on that. And this gets us back to jargony because one of the interesting observations, and this comes from Ronald Mann writing in SCOTUS blog, was it's hard to read the justices in the middle. Interesting he used that phrase.

Justice Samuel Alito's brief comments seemed if anything to agree with Gorsuch, but the remaining three justices, Kavanaugh, Roberts, and Barrett, huh, Sarah, huh, seemed open to the possibility of accepting the statutory apparatus. that in tooting Sarah's horn here, that this is a, this court's more complicated than people think. And I think that these three oral arguments are, it's difficult to predict the outcome in each one of the cases because of that complexity. That's my tying them together. I like that. And, you know, we'll spend just a few more minutes than big picture and we'll dive into the details of the arguments maybe in the next episode. I keep saying maybe now because I should stop promising things that aren't happening. But yes, and I think you hit the nail on the head, right? The conservatives thought they

were going to get a revolutionary court. Yes. And the liberals thought they were going to get a revolutionary court that they didn't want. And instead, those three in the middle on that Y axis, if nothing else, you can certainly see that they're Burkean minimalists. Yes. By which, and you know, lots of lawyers like law school stuff will talk about Burkean minimalism or political philosophy. But this is the idea that you make changes incrementally. You don't want the French Revolution. Thank you, Edmund Burke. If there was one thing he didn't like, it was the French Revolution. Rightfully so.

So yeah, this idea that you were going to come in and dismantle the administrative state with a wrecking ball was just not going to ever be the case when you have Burkean minimalists on the court. You're going to do it with, you know, a little pickaxe maybe. And that's just going to take a long, long time and you may not get very far.

So yeah, Chevron may be gone. Chevron was on the outside of the building. It was sort of already hanging off. You just don't need that many like wax with your pickaxe to get Chevron, you know, off the building. But you're going to need a lot of wax to get all administrative judges, huge, you know, uses of powers of the bankruptcy court, or, you know, Congress's power to tax

income, you know, out of the building, you would need a wrecking ball. Now, you know, we'll talk about whether we think any of these cases might win, because they might. But, but yeah, you know, we'll talk about whether we think any of these cases might win because they might. But but yeah, for sure. I think it highlights this aspect of the 333 court. It's not just institutional concerns like what people will think of the court or how lower courts will be able to administer their opinions. There's also just a, like, I think a real interest in small changes first. Yeah, I agree. I agree. And I'll, you know, a lot of more of our more left-leaning listeners are yelling at their phone right now saying, Dobbs, Bruin, we've covered that. There was not an originalist way to uphold Casey and Roe I mean that had any resonance at all with anything approaching originalist principles

to uphold Casey and Roe and Bruin Bruin yeah I'm going to agree with you but only on the text history and tradition test not on the outcome of that. Not on the outcome that I have a right to bear arms outside the home. After the Supreme Court has held, there's a right to keep arms inside the home. That is, that's not revolutionary, guys. That's not revolutionary. The text history and tradition test was pretty revolutionary, not revolution, pretty aggressive. revolution, pretty aggressive. But we're going to find out real soon how that, we're going to find out this term, how, and have more guidance this term on how to interpret that. I also have a slightly different take on those. I think they were revolutionary opinions, Dobbs and Bruin.

But on Dobbs, for instance, if Dobbs was revolutionary, then Roe was revolutionary. Yes, of course. Roe wasn't built upon over time. Roe, you know, sprouted from the foam, if you will. Yes. And I think that's really different than, for instance, bankruptcy courts or administrative law judges and things like that. They were built slowly. You dismantle them slowly. That's the problem with Roe. Yeah. Like Justice Ginsburg said. Yes. Breathtaking in scope is her. That's right. And so that left this weird, again, I'll sort of put it as like a gravitational force in the law. It was pulling everything towards it because it was so large, so revolutionary. You don't quite know what to do with it. So, yep, Dobbs was revolutionary. But I think you can explain why even three justices pretty high on that Y axis would get there. Bruin, I don't think was revolutionary. I think that's been coming for 15 years. They've been building out Second Amendment jurisprudence. And that was just the

next brick. That's not, in my view, taking down anything, if that makes sense. That's more like, we just haven't had Second Amendment jurisprudence in the United States. Yeah. And so here it comes. But I do think it's easy to see both of those are revolutionary. And, you know, that undermines the theory to some extent. Yeah. But there's a reason they feel different than administrative law or free speech or religious freedom cases, et cetera. So we'll see. Yeah. I think the Roe to Casey to Dobbs,

it's kind of its own category. And Roe was so breathtaking, again, quoting Bader Ginsburg, Ruth Bader Ginsburg, not Bork. You know, like this is Ruth Bader Ginsburg saying it was breathtaking in scope. That put it, that meant, you know, this, that anything that would reverse that precedent would feel just as, would feel just as breathtaking. All right. With that, we somehow are still not going to talk about those oral arguments in any depth. We'll save it all for the next episode. But really, we're just, it's a fire hose right now.

We've got a long list of things to get to. Don't worry if you're wondering why we haven't talked about the realtor case yet. It's still on the list. Yeah, there's so much. Texas abortion opinion that's now an administrative state, the Texas Supreme Court that we're going to have to talk about, the amicus brief and the net choice case. Woof, so much. Don't worry. It's all on the list. We're getting to it someday.

And thankfully, Supreme Court oral arguments are over for the rest of this month. So we will now have a little more breathing room. And with that, thank you all so much for joining, for being part of our little family. We hope you're having a wonderful holiday season. I cooked all day yesterday for my in-laws and it was delicious, David. Oh, wonderful. Wonderful.

Can I add one last note? Yeah. I have been very pleased at the actual minimal backlash against the, I could have been a contender. It's not minimal. It was embarrassing. More so for you because you're old and you should have known.

I should have known. But I will say one of our esteemed listeners put on Twitter the exact portion of the program exposing us to further public humiliation. And what made it even worse, Sarah, was he was obviously listening at two times speed. And so we're wrong, but we sound like annoying chipmunks when we're wrong.

Oh, perfect. And so I can't imagine how people listen to podcasts on two times speed. I think it, you know, the very, when we go back and forth and we laugh, our laughs sound like chip. Yes. I couldn't tolerate it. I would not be able to do that. Um, yeah, look, you know what guys, it just, we do edit this podcast a little, but we try not to edit just the embarrassing parts for us. So we left that in for you. So hi. Yes, it's a bonus. You're welcome.

All right. We'll see you next episode. Go out and enjoy. We got our first snow in DC last night. So not enough to sludge yet, but we'll get there. Talk to you soon. Bye.