Advisory Opinions - Crimes, Plural

Episode Date: July 13, 2020

With Joe Biden’s popularity rising in battleground states (according to several recent polls), Democratic lobbyists and party officials are urging the presidential candidate to try and win over purple and even conservative-leaning states like Georgia and Texas. But most of his advisors are urging a more conservative path, encouraging him to focus on states he knows he can win. David and Sarah discuss these opposing strategies and offer their insights on what a winning 2020 presidential campaign should keep in mind. In today’s episode, they also discuss the president’s pardoning power, theological and constitutional arguments related to the death penalty, and Trump’s tweet about re-examining the tax-exempt status of academic institutions that “are about Radical Left Indoctrination, not Education.” They wrap the podcast by responding to a listener’s question about what to include in an intro philosophy course. Show Notes: -New York Times piece on warring factions within Biden’s campaign, Fox News poll, University of Texas poll, Dallas Morning News poll, CBS/YouGov poll. -Death penalty opinion. -Andrew Kent’s congressional testimony. -Ex Parte Garland case from 1866. -Notes on Virginia ratifying convention from Brookings Institution. -“The Traditional Interpretation of the Pardon Power Is Wrong” Atlantic article by Corey Brettschneider and Jeffrey K. Tulis. -John Rawls’ A Theory of Justice. Learn more about your ad choices. Visit megaphone.fm/adchoices

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with Uber Eats. Order now. Alcohol in select markets. Product availability may vary by Regency app for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And listeners, you may have thought that this podcast was just going to fold up its tents and go home after that action-packed Supreme Court term, that we would have nothing left to give. But you would be so, so wrong because the news cycle marches on, the law never sleeps, and the need for Sarah's political expertise is only increasing as time goes by.

So we've got a lot to talk about today. We're going to talk about whether or not Joe Biden should violate the ancient Southern lawyer's maxim that admonishes, as I've said before, pigs get fat, hogs get slaughtered. We're going to also talk about whether or not, or can or should, Nancy Pelosi attempt to limit the president's pardon power. We're going to talk about the president's threat to weaponize the IRS against progressive institutions. We're going to talk about the president's threat to weaponize the IRS against progressive institutions. We're going to, if it's possible to even do this, have a brief conversation about the death penalty. And then we're going to answer a reader question about the philosophy of law at the end of this pod. So there is a lot there to cover. And we also have multiple sponsors today. So that tells you this podcast has momentum. Sarah, you are a noted political analyst, a noted political operative, and you are a public Texan. So I'm going to read a couple of paragraphs from a New York Times report that came out late last week on Saturday. And I'm going to ask you, whose side are you on?

Okay. So here are the two paragraphs. With President Trump's poll numbers sliding in traditional battlegrounds, as well as conservative-leaning states, and money pouring into Democratic campaigns, Joseph R. Biden Jr. I love the way the New York Times begins with that full name, is facing rising pressure to expand his ambitions, compete aggressively in more states, and press his party's advantage down the ballot.

In a series of phone calls, Democratic lawmakers and party officials have lobbied Mr. Biden and his top aides to seize what they believe could be a singular opportunity not only to defeat Mr. Trump, but to rout him and discredit what they believe is his dangerous style of racial demagogy. Now, when I say whose side are you on, Biden is being pressed to go for it, to swing for the fences, and some of Biden's advisors are urging a more conservative path. If you were advising Joe Biden today, Sarah, would you advocate for the swing for the fences or the conservative path? And why? Let me explain first why it's an even harder decision than I think The New York Times made it out to be. Although footnote real quick, at least in 2016, the campaigns got to decide how their candidates would be referred to for the first time in writing in the New York

Times. So if you had a nickname or your full name or whatever else, because Carly's name is actually Carlton. So we got to pick what she was referred to as. So I find that interesting because at least if things hold, that means that probably the Biden campaign chose to have that middle initial there. Funny. I guess the junior does make him seem younger. Does it? Maybe. I mean, he's a junior. So here's what makes this even harder, David. There's a few things. One, the Biden campaign is raising the lion's share of the money compared to the DNC, which would normally, in sort of an ideal world, the party would be the one pouring money into some of these

down-ballot races, and the presidential campaign wouldn't need to make these decisions. But the DNC has been notoriously broke in the last decade. And so to the extent they have money, it's really the Biden campaign's money coming through joint fundraising agreements and stuff. Okay, so that's problem number one, is that you don't really have a DNC capable of doing this heavy lifting. Two, even if, let's say, the money just existed everywhere and now you're just determining where to put it, some listener out there is thinking like, well, why don't you just wait a little bit, see how this looks in September and then make a decision? Yeah, except what the majority of that money can really go to. Yes, there's TV on the one hand that you can hold off on really that you can hold off on until mid-September probably.

But a lot of it goes to putting boots on the ground. The boots don't do anything on the ground if you put them there too late. In fact, like it's mid-July, which by the way, I can't believe. How did that happen? But it's mid-July. If you don't have boots on the ground already, it's getting dicey. This is about registration. It's about forming relationships with community leaders to help drive turnout and think of community policing, but on the voter side. And then, you know, then there's the stuff that the New York Times, I think, does mention pretty well, which is what if it's 2016 all over again and you have your candidate spending time in Texas and you lose Pennsylvania or you lose Wisconsin or you lose Michigan? Then it's not only did you

lose the presidency, which is real bad, because I do believe that most people are in this for the right reasons. But there's also the problem of you look like you committed malpractice and it will hurt your career. If you don't think that Robbie Mook has taken the lion's share of the blame for where Hillary's schedule was in those last few weeks, You're crazy. And what candidate can hire Robbie now when it looks like he made a dumb decision, even though I think there's a pretty good argument he didn't make a dumb decision. It just turned out that they lost. So there's a certain amount of risk aversion if you're the campaign staff, because your job is to win the presidency.

If you do win the presidency, you win. If you lose it, you're the worst ever with these headwinds or tailwinds, as it were. So, okay. So those are all the problems. David, do you see any additional problems that I'm missing, by the way? I don't see any additional problems. I do think it is helpful to know additional problems. I do think it is helpful to know why on earth, for example, any rational person would tell a Democrat to swing for the fences and go for Texas. Why is this alluring? And I'm, which, you know, if you just said this to somebody who's not been paying attention to recent polls, you would think you're nuts. You're nuts to think about going for Texas. Yes, I know that Beto got close, but Ted Cruz is not the most likable candidate in the world. Beto invested, what was that last count? $7 trillion into the race. Artificially close, you would argue. But here are all of the polls since June in the Real Clear Politics Texas general election.

And this is something that I had not been tracking this until this weekend. So Fox News poll, taken June 20th to June 23rd, 1,001 registered voters. Biden plus one. University of Texas poll taken from 619 to 629, 1,200 registered voters. Trump plus four. And here's the real head scratcher.

Dallas Morning News poll taken from June 29th to July 7th, 1,677 likely voters. Gold standard. Yes, margin of error 2.4. Biden plus five. And then there is a CBS News YouGov polls from July 7th to July 10th, 1,212 registered voters,

3.3 margin of error, Trump plus one. So does that, how does that influence your calculus? Okay, so here's what I would do if I were advising the Biden campaign. No, you're not heading to Texas. We're spending no time in Texas. John Cornyn is getting reelected. The only reason to win Texas is to run up the score

to have this mandate for your policy positions. But there's a lot of things that have to happen before that. A, you need to win Texas is to run up the score to have this mandate for your policy positions. But there's a lot of things that have to happen before that. A, you need to win the presidency, and B, you need to win the Senate to have any hope of having your policies enacted. And there's plenty of states where you can argue that mandate point that also have Senate races. Texas is far too close in those polls to bother spending time there, I would tell the campaign. I'm not saying that other people won't disagree with that, but that's my take. So what I would say, however, is now in the summer, before we get to September, I would put on his schedule several fundraisers with the Senate

candidates in states that would run up the score for that mandate as well. So I would actually spend quite a bit of time in Georgia. I would spend real time in North Carolina and other states that I think in 2016 or 2012, particularly, you might not have had your candidates spend real time in and that aren't necessary for Biden to win the presidency. Come September, I would stop doing that. I would concentrate on your job, which is to win the presidency. These Senate candidates, by that point, you've given them money. They need to fly on their own little birdies because if you don't win the presidency, you're not going to win these Senate races. And by and large, coattails are coattails. Politics has become more nationalized. If he can

run up the score nationally, that will help these Senate candidates in September and October. So, no. I'm somewhere in between the New York Times, two warring factions in the Biden campaign, and my guess is that actually the two warring factions

are not that far apart either. I bet they're talking about whether to have, you know, three fundraisers in Georgia or one. But, you know, your job is to win the presidency. Don't, you know, keep your eye on the ball keep your eye on the prize and the mandate will come or it won't but it's not going to come because you spent time in texas where then you're raising expectations and let's say you lose texas by six

well then you sort of have a reverse mandate you spent all this time there and texas actually did tighten far more than you'd expect but it won't be enough. So I see no reason to spend time in Texas. You know, I'm going to be maybe even slightly more conservative than you. So if I'm advising Joe Biden

and it says here's a paragraph from the New York Times story. At the moment Biden is airing TV ads in just six states all of which Mr. Trump won four years ago. Michigan, Wisconsin, Pennsylvania, Arizona, North Carolina, and Florida. In this highly polarized, closely divided country,

if you win all those states, if you sweep all those states that Trump won, it's going to be one of the larger electoral college victories in recent years. Yes. It would be a big victory. one of the larger electoral college victories in recent years. Yes. It would be a big victory to dilute your strength because you're talking about a, you know, it's not a limitless amount of resources.

To dilute your strength to try to not just dunk on Trump, but sort of like dunk, hang on the rim, point at him as he's fallen to the ground on the court. I just don't see the upside. And I also would add this, Sarah. One of the things that we learned in 2016, because remember, the Trump team did not have the kind of massive, well-funded, get-out-the-vote operation that we've come to see hyped in previous presidential candidates. I remember there was this Bill Mitchell, I believe it was a Bill Mitchell tweet right before the election. And it says, the Trump ground game is in our hearts.

I remember that. You remember that? Oh, yeah. And everyone's like, ha, ha, ha. Oh, yep. Whoops. I think there's a point at which

if there is a sufficient amount of momentum, if momentum continues to build to run against Trump and for Biden, a huge if, there's a point at which this momentum just kind of swamps everything. Well, I've got three quick points, which is one,

what you're describing is running up the national vote versus the electoral college vote. Meaning if they follow the six states, they're running up an electoral college win. They need to prove that they can win the electoral college. If they're running up the vote, but still losing a state like Texas,

but let's say they come within one point and they're like, look, we came within one point in Texas. All you've done there is, is be able to say later on that, like he won the national vote by X percentage, but the electoral college votes the same. So I think that that's not

a great talking point for Democrats. They tried it in 2016 and I don't think it's worked particularly well at two. I will say like, do television ads still matter? It's hard to say that in 2020, that they're going to matter with such a, um, just a high concentration of all news centering around Trump and politics for the last four years between impeachment or Russia, Mueller, all of this stuff. I don't think people lack for knowledge about Trump. If anything, they lack for knowledge about Biden. But again, I guess I would tell the Biden campaign, you don't want this to be a referendum on Joe Biden. So I would err on the side of, uh, the ads probably should be more about be a referendum on Joe Biden. So I would err on the side of the ads probably should be more about being a referendum on Trump and less about introducing Biden. I've seen some great ads

about introducing Joe Biden. And I'm like, wow, that's a great ad. I would not put a lot of money behind it though. Yeah. You know, Joe Biden cares about his children. Like you care about your children. I don't know if you saw that ad. It was a good ad. I wouldn't spend a lot of money on it. And then three, you've got to make this and keep this focused on Trump. And that's where the ground game can matter. Because the Biden ground team can sit there and say, here's why you should vote for Joe Biden or, you know, and they're able to micro target in the most micro targeted way, because in theory, they're going to know the voters at the precinct level, these little precinct captains that run around all day just getting to know their voters. So, yes, concentrate on those six states, help raise money for the Senate candidates that aren't in those six states, and then get out and focus on your own race.

Well, you know, I think the Biden campaign has done a good job, really from its inception, of filtering out the social media noise. Yes, surprisingly so. Oh, remarkably so. I mean, they've almost run as if Twitter doesn't exist. Which is so hard for staff. I'm not surprised that Joe Biden has been able to maintain that discipline, but I'm nothing but impressed that he has maintained that

discipline at the lower levels in his staff, not really taking the bait. And the reason that it's so impressive is because you can look at all the other campaigns from 2020 and none of them had that sort of like ignore the very online Twitter. Yeah, if anything, it is now the GOP that is very online compared to the Democrats. Now, of course, sort of the far left is very, very online. But Trump and the Trump team are very, very online themselves. And Biden is just plowing ahead. And he's kind of done this from the beginning. He sort of said, the main thing is the main thing.

And the main thing is, I'm the most electable alternative to Donald Trump. The main thing is winning the presidency. That's just the focus. And there was this great quote, and I can't remember which one of his aides said this in a Politico piece uh last year where it was talking about his persistent strength in the polls in spite of the fact that he's not trendy

in any way shape or form online and one of his aides said something like well look i mean our argument is if there's a gigantic pile of crap in the living room, except this family-friendly, he didn't use the term crap, giant pile of crap, the first thing you say is, nothing else matters except removing the pile of crap. That's our campaign.

And I thought, you know, if they kind of just stick to that, which is the referendum on Trump that you've been talking about, they're going to be very, very solid, barring black swan type events. And so if 2020 has been anything, it has been a black swan year. So who knows what's coming? Who knows? Which is absolutely true, which is why we preface everything with if, if, if, if. And it's another reason why, by the way, the Biden campaign should not

so turn their strategy to focus on these peripheral states because you don't know what's coming and you don't know what will shift. You don't know if there's going to be a terrorist attack. You don't know if aliens are going to land, my pet theory. Yellowstones, you know, geysers finally going to erupt with the super volcano. Lots of options out there that would totally shift this campaign. So don't move your ground team to states that you don't need to win. Right, right. And especially not near the Yellowstone volcano.

No, that seems like a mistake. You're just at your tempting fate then. That's right. It's overdue, David. It's overdue. Yeah, it is overdue. Well, that's a matter of scientific disputes here. Maybe we should invite an expert

onto advisory opinions just to talk about when we're going to all die to the Yellowstone volcano. You have no idea how much I would love to do that. There's no limit on the joy We should have a series of podcasts that are interesting people, interesting ideas. And by interesting ideas, like some of these things which are obscure, like extinction-level human events. I mean, how obscure is it, though, really? But yes. Well, I know. And, I mean, we could have Steve Br brusate on my dinosaur guy uh who i think his book is amazing and i follow him on twitter and he could talk about all the new dinosaurs

he's finding in china so cool done done okay we'll have a little maybe that's what we'll do with the rest of our summer is occasionally listeners have one-off weirdo podcasts yeah i yeah i would love that so much. That'd make me so happy. And you've just depressed me a little bit because we're going from the thought of talking about the Yellowstone volcano

to Trump tweets about tax exemptions. Doesn't that just sound like a... I know. Small, small ball, you know? Yeah, it's such small ball. But this actually is, I think, interesting and maybe a tiny bit more significant in an odd way than your typical Trump tweet controversy. On Friday morning, Trump tweeted, too many universities and school systems are about radical left indoctrination, not education.

Therefore, I am telling the Treasury Department to re-examine their tax-exempt status and or funding, which will be taken away if this propaganda or act against public policy continues. Our children must be educated, not indoctrinated. Okay. This is peeling a little bit of an onion here, Sarah, and it's an example of how cheerleading he fights

can kind of come back and bite you. But first, let's talk about the law just a little bit. Pop quiz. If a charitable institution is about indoctrination, is it not entitled to 501c3 status? I don't believe the word indoctrination comes into play whatsoever. No. And in fact, a giant ton of 501c3 organizations are in fact receiving tax exemptions with the explicit purpose, they wouldn't say indoctrination, they would say- Inculcation. Repetition, perpetuation of values. Let's see.

Churches. Is a church, if you go to church, is it, I'm going to educate you about Jesus and about Buddha, and you make the choice. Here, here's five points for Muhammad. Here's five points for Jesus. It's all up to you guys. Or is there an incredibly intensive effort to train and educate and perpetuate a particular faith? David, I don't know this for sure, but I would have thought that the word indoctrination actually originated as a religious term. It really is remarkable.

It really is remarkable. Look, I mean, you can criticize an institution of higher education for, say, you are too dedicated to a particular left-wing version of social justice. You can choose, if you're a student, to transfer from that school. If you're a parent, you can say to your son or daughter, if you want to go to Oberlin, I ain't paying for it. But to turn the tax code against Harvard or Oberlin or Yale or Stanford or any other institution because they have a particular point of view, not only is that something that is not contained in the tax code, there's actually a First Amendment doctrine that comes into play called retaliation. And that means First Amendment prohibited retaliation comes when a person engages in speech or expressive conduct that with which the government of the United States or a state or local government disagrees, and it takes adverse action on the basis of that speech. I'm familiar with that doctrine, Sarah, because it was only in about 80% of the complaints that I filed in the course of my constitutional litigation practice. And if there's one concrete action taken on the basis of these tweets,

if I'm a lawyer for a school, I'm considering jumping on into federal court. What say you? Yeah, I mean, I think in general, this is where the president sometimes misreads his base. I think that happens from time to time. I'm not sure that this is the best example of that, but it is an example where his base needs him to lead on some of these issues and find the way to criticize and even potentially punish higher education when they're doing things that cross the line legally and there are things that they've done to cross the line legally but when you make these very simplistic feel-good arguments um it's a real problem because it then will undermine what you can do later and

how seriously people can take it uh when for instance the department of education or the department of justice does actually take some action. Well, and so there's two other things here. One is if you want to take action about higher education, there is a sort of a very clear, broad path for doing that. And one of those clear, broad paths is taking some of the state level free speech on campus legislation and advancing it at the federal and in Congress, seeking to advance it in Congress. Free speech on campus legislation and advancing it at the federal in Congress, seeking to advance it in Congress. Free speech on campus is popular. Now, there are a lot of people who love free speech and they'll add a but at the end of it. But as a general matter, free speech on campus is popular. It is something that independents agree with, lots of Democrats agree with, Republicans almost universally agree with, free speech on campus. In fact,

one of the big fears that you have on the part of conservative parents is that their kids will not enjoy rights of free speech on campus, or conservative professors will not enjoy rights of free speech on campus. That is constitution affirming, it is consensus, and it is fighting. Now, if you, instead of advancing free speech on campus, say, I'm going to weaponize the IRS. Now, let's remember something, Sarah. One of the things that an awful lot of conservatives are really, really afraid of is a weaponized IRS. How do I know this? I represented dozens of Tea Party groups during the Obama administration when they were subject to enhanced scrutiny because of their point of view. And that action in the Obama administration led a lot of Christian conservatives to believe that the tax exemptions of religious institutions would be under threat in a democratic administration.

And here's the president of the United States setting a precedent for directly arguing that the first that the IRS should be weaponized on ideological grounds. I don't think that's a precedent that anyone wants to set. It's a problem. It's a problem. OK. That was just more of me venting um let's no it's not it the the other issue though that is like obviously there is that nothing will happen with this it is just a tweet nobody's actually going to go after the tax status of these schools and so that's why i say it's really more of a a rhetorical problem that the president is not

able to lead his base and less of a legal problem until we see any action on this front, which I don't think we're going to see because we see tweets like this pretty regularly, not all of which have the huge legal implications that we're talking about here, but have other implications nevertheless, and then nothing comes of them. Right. Yeah, there will be, I mean, you will have a rhetorical battle at some point in the future where someone on the left will argue for the yanking of a tax exemption and then say, wait a minute, didn't conservatives cheer when they're... That's right. Yeah, that's what's going to happen. Let's pause for a moment to celebrate the breakout success

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Okay. All right. So let me go. I feel like we're only going to go to a worse topic now. Yes. Oh, Sarah, that's the pattern here. Okay. So are you ready to talk, Roger Stone? So on Friday, Kayleigh McInerney, the White House press secretary, released a

statement from the press secretary regarding executive grant of clemency for Roger Stone, Jr. It starts, today the president signed an executive grant of clemency commuting the unjust sentence of Roger Stone, Jr. It goes on about why they did this, and it ends with, Mr. Stone will be put at serious medical risk in prison. He has appealed his conviction and is seeking a new trial. He maintains his innocence, yada, yada.

This time, however, and particularly in light of the egregious fact and circumstances surrounding his unfair prosecution, arrest, and trial, the president has determined to commute his sentence.

Roger Stone has already suffered greatly. He was treated very unfairly, as were many others in this case. Roger Stone is now a free man. So first of all, David, there's a legal question here. Because they didn't actually release

the grant of clemency, we have not seen it. This will be an interesting test of the White House Counsel's Office about whether they wrote this correctly. Because there are two issues here. One is, obviously his sentence was commuted. That's what the whole statement is about, about him not going to prison and the dangers to his health that

the president wanted to avoid of him going to prison. But that wasn't the only issue. There is also supervised release that he was subject to. And so the judge in the case, Amy Berman Jackson, has asked for clarification to see the grant of clemency to find out whether the president only commuted his sentence or commuted the supervised release as well. So first of all, that'll be a fun little side skirmish if that's not quite done correctly. Especially because Roger Stone says he's going to campaign for the president. If I'm the campaign, I'm like, oh, thank you. Yeah, let's talk dates. It's like when you see someone or like, we should definitely get drinks sometime. And then you're not ever,

ever going to follow up. I think that's going to be the campaign with Roger Stone. It's very different than Michael Flynn, I think, in that sense about who you want on the campaign trail with Donald Trump uh okay but second issue is that this has launched a discussion by Nancy Pelosi herself who says she's going to introduce a bill to quote you know curb the president's pardon powers David let me read you the U.S. Constitution. Please read it. The president shall be commander-in-chief of the Army and Navy of the United States and of the militia of the several states.

It goes on. And he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. That's it. Yep. That's what it has to say about that. Yep. Okay. So what, if anything, can Nancy Pelosi do to curb the pardon power? Well, oh, I'm sorry. No, I'm very open to your thoughts. I've done a little, you know, legal law review research on this as well to see if other people have clever ideas that I didn't think of.

And there are some, none of which seem to be Nancy Pelosi. Please share before I preach my definitive conclusion, because I'm very curious about whether, if anyone disagrees with this definitive conclusion and whether it's credible. I've read some other, I have also read some interesting interpretations of this phrase. But please tell me which one you found most interesting. in a case called Ex Parte Garland, where they basically say that the pardon power is just broad

and largely without limitation, except for that impeachment language. Now, you could argue that that's mostly dicta in Ex Parte Garland. By the way, fun little case on a lawyer who challenged Congress after the civil war, where they said that basically, if you can't take this oath that said you were never part of the Confederacy, you can't serve in the United States government. And whether that applied to bar licensing for lawyers, et cetera. And that's why the pardon power was at issue because, uh, Andrew Johnson had pardoned Garland. And the pardon extended to this as well is the very, very simple version of this.

Okay, so that's 1866. Some things have changed since then. I will acknowledge that. Fast forward to March 2019, a professor named Andrew Kent testified before the House Judiciary Committee, the subcommittee on the Constitution, Civil Rights, and Civil Liberties, about exactly this. Does the Constitution allow a president to pardon himself? Does the Constitution allow the president to pardon family members or Confederates who may be linked with him in criminal activity, et cetera? Very interesting. This was clearly not someone, by the way, who's on the Trump train,

just in case you're curious. But you get to number four, what authority does Congress have to legislate with regard to problematic pardons? And his answer was like, I know you want me to tell you that there's things Congress can do, but, or kind of not. but he did have one thing that congress could do which i think is correct and he says that they can't affect his ability to pardon people again short of impeachment but they probably could require the president to issue a report he says quote either before pardoning concurrently with the act or within a reasonable time afterward explaining the crimes which the pardon covers and the reasons for granting the pardon. He's not even 100% sure that Congress, that that would be found constitutional, but I'd agree with him that that's the most constitutional quasi-limitation. And again, he points out it can't be a limitation. It is simply an

explanation. And I think that in other areas of constitutional law, we have said that an explainer is not a limitation. And so probably I think that gets upheld. I would agree with that. I would agree with that. I did. There was a very interesting article posted in The Atlantic this morning at 914 a.m. Eastern Time, just to be precise. Very specific when David takes his news from the Atlantic. Very specific. Written by Corey Bretschneider, who's a professor of political science at Brown, and Jeffrey Toulas, who's a professor of government at the University of Texas at Austin. You mean UT. You meant to say UT.

He's a professor at UT. Oh, no, no. He's not at Knoxville, Tennessee. Please continue. Yes. The colony of Tennessee does not get to assert the primacy of the UT monikers. Oh, it's so cute when Tennessee tries to act like they're the big guy now. Oh, we're, you know, we're not the big guy.

I mean, any more than the United Kingdom is bigger than the United States, but you are. That's an apt. That's an apt. I'll take that. Yeah. You are our child. Um,

okay. And there's listeners. There's reasons for that. A Tennessean wrote the Texas declaration of independence, a Tennessean heroically sacrificed himself at the Battle of Alamo to give another Tennessean, Sam Houston, the time that he needed to win the Battle of San Jacinto. And that same Tennessean became the first president of the Republic of Texas. To be clear, those are all people who wanted to leave Tennessee, right?

They all left Tennessee? To spread the gospel of Tennessee. All right. All right. So here, here is, uh, I basically, my, uh, contribution to this podcast, Sarah has been reading paragraphs. I like it. It's important. So this is, this is, uh, these are a couple of paragraphs here that I think talk about what they've done is they've gone back to history and they've said, okay, what is the pardon power? Um, and, what is the pardon power? And really, the pardon power is one of the few elements of British sovereignty that have been injected into the executive branch of the United States. And it says, the votes of the delegates on the wording of the pardon clause at the convention reflect the overarching concern to curb the power. Again, this is, they're talking about the power to grant pardons to

individuals who are participating with the president in a potential criminal scheme where the president himself may be guilty. Oh, I hope you're about to do the Wednesday, June 18th, 1788 fight over the pardon power on the convention floor. No. Do it. Do it. Oh, man. No, that's not in these paragraphs. I'm sorry. Take it up. Okay. Okay. I'll do June 18th, 1788 after because I'm sure people are on pins and needles.

I'm on August 25th, 1787. I don't know about your 1788 noise. Okay. Oh, man. This feels like Texas versus Tennessee all over again. On August 25th, 1787, delegates voted on this matter. As it stood, the president had the power to grant reprieves and pardon. Quote, that was the quote,

the power to grant reprieves and pardon, period, unquote. Unanimously, the delegates voted to insert except in cases of impeachment after the word pardon, the language we are familiar with today. Directly afterward, they rejected the addition of the phrase, but his pardon shall not be pleadable in bar in a six to four vote. These votes reflect more than merely semantic differences. The language, quote, his pardon shall not be pleadable in bar, unquote, was pulled directly from the British. It banned the king from pardoning officials who were being

impeached, but did not prevent him from pardoning officials after their impeachment. The traditional interpretation of the meaning of accepting cases of impeachment is that it simply removed this loophole, preventing presidential pardons both during after impeachment and conviction. However, the framers' rejection of the British phrase after having inserted except in cases of impeachment strongly suggests that the American delegates saw the new phrase as having a meaning distinct from the traditional interpretation. If except in cases of impeachment had already covered both of those limits on presidential pardons, why would the framers then need to vote on whether to include the British language?

Given the unclear record of what the framers meant to do that day, any interpretation of its meaning based only on evidence we have about the day the phrase was adopted is speculative at best. So what does that mean in plain English? In plain English, the argument would be that if the framers, the original public meaning of this phrase is speculative, there is room to limit and to legislate or for a court to dissent. I find that interesting, interesting, but not necessarily persuasive. Sarah, do you want to move to 1788? Well, so I have a bit of the back and forth between George Mason and Madison on this question, not that language, but on just the overarching issue about the pardon power, where Mason was saying... This was at the Virginia Ratifying Convention, correct?

Yes, yes. Yes, yes. Mason was saying the president ought not to have the power of pardoning because he may frequently pardon crimes which were advised by himself. Here we are. So Mason is arguing for this exact thing. And Madison's rejoinder is, there is one security in this case

to which gentlemen may not have adverted. If the president be connected in any suspicious manner with any person and there be grounds to believe he will shelter him, the House of Representatives can impeach him. They can remove him

if found guilty. That, to me, ends the debate, really. And that's what's then, you know, they obviously do adopt the Constitution. So they thought about

the possibility of the president pardoning someone who was trying to help him commit a crime. In this case, that's what Roger Stone was being investigated for. The president then commuted his sentence. And the answer to that is not that you can limit his ability to pardon Stone, according to Madison, to commute a sentence. The answer is if you think that he commuted the sentence to protect himself so that Stone wouldn't testify against him or reveal what he knew about the president's crimes, the one security Madison refers to is the House of Representatives can impeach him.

That's what's in the language. That's clearly what Madison is talking about. I think that's the end of the game there. I don't think Congress then has any ability to limit who the president can pardon with the exception that, you know, I think you maybe could have some reporting requirements, some explanation requirement, et cetera, but you can't change him commuting the sentence of someone. So Brett Schneider and Toulouse have an answer for you. Oh, answer back. So, Brett Schneider and Toulas have an answer for you. Oh, oh, answer back.

Yes, so here's the answer. Of course, Sarah. It's not actually in the article, but I'm just reading in it. Of course, Sarah, one Madison quote alone does not resolve the question of original meaning. What do you have to say to that? Snap, clap back. I am generally against legislative history

when it's used to define terms. But that's different than understanding what was meant, like what they thought the power included when we're talking about cabining that power by Congress and whether basically they thought

that the president had full pardon power or whether they thought that the president did not have the full pardon power and that Congress at any point could step forward. And that's why I think the Madison quote is helpful because he believed that Congress's role in this

was then to impeach him, not, well, if Congress finds that this is all going poorly, Congress can pass a law saying the president can't do this later on and we'll let Congress work that out down the road. So this is not like some legislative history one-off. How did Madison see things? I mean, it is Madison after all.

This isn't some random dude I found off the street with thoughts on the pardon power. But this goes to, I think, a much larger point about Congress and the presidency. There are certain things that are written into the Constitution that are presidential powers that Congress can't touch. And then there's a whole list of other things that Congress can do that they're not choosing to do. But they're really their biggest check on the president. And this comes down to the subpoenas with the Trump financial records.

Their check on the president that the founders intended was impeachment. You got to make your case and you've got to win your case. But that was always meant to be Congress's hammer. The fact that they're not very good at hammering right now is perhaps unfortunate, but it doesn't change the constitutional structure. Right. Correct. Absolutely. And by the way, I want to put this, we'll put this article, the Brett Schneider-Tullis article in the show notes. I would urge you to read it because it is

a very, very well done masterclass in some of the debates back and forth at the time of the founding and immediately after about the pardon power. But no, I agree with you. We're talking about a power that was, as I said earlier, one of the last vestiges of royal sovereignty inserted into the Constitution. It's one of the few things where the president's power is as close to absolute as we can get with the important caveat of the impeachment ability. And now what's interesting about that is that we have consistently heard, particularly from some of Trump's most zealous defenders, that if he does something that he has the power to do, that's beyond scrutiny. In other words, like, for example, if he has the power to end an investigation of himself, how could he be impeached for that?

If he has the power to pardon, how could he be impeached for that? And I think the Madison quote is one of these classic double-edged swords. On the one hand, that quote says to people who wish to limit the president's constitutional sovereignty, sorry, it's there. What it says in black and white is what it means. But at the same time, it is also saying that there is actually, in reality, no area where the president is truly sovereign because there is actually in reality no area where the president is truly sovereign because there is the trump card and that trump card is impeachment doesn't feel like much of a trump card now because of a lot of different reasons um oh i just want to wildly agree with the point you just made that the reverse is absolutely false as well that congress can only impeach for

certain things that are felonies defined in law. That's also silliness. It's silliness for Congress to limit the president's power, and it's silliness for the president to think he can make an argument about what Congress can and can't impeach him over. And we had this whole, I mean, as a country, I mean, we had this whole debate over what high crimes and misdemeanors meant, and everyone dug through every single piece of history they could find. But I actually think the answer is just very simple. This is a political action. It's whatever Congress says it is.

Yeah. And now it can be historically and legally informed for members of Congress who are in good faith. Did I say in good faith? I'm sorry. Those members of Congress who are in good faith and not out of partisanship hunting through what would the framers think would be sufficient. But you're correct. Just as a matter of constitutional law, Sarah, you're one billion percent correct. This is a political act by the Supreme Branch of Government, and a high crime or misdemeanor ultimately is what House representatives allege and what the Senate finds. That's what it is. very, very important, is why is it that someone would make an argument that Stone would be part of or related to Trump's activities? Because wait a minute, didn't we learn that the Russia hoax

was just a hoax? That anything to do with Trump and Russia was just made up by Rachel Maddow, a combination of the Steele dossier and Rachel Maddow. I think it is very interesting just to take a moment to sort of step back a little bit and say, what was it that Stone did and why is it that he was convicted of a crime? Crime's a. Crime's a. Crime's plural. Crime's a, yes. So essentially what happened is if you're going to sum up the Trump-Russia controversy in a sentence or two, it would be this.

Trump did not collude with the Russians, but it was not for lack of effort on the part of his campaign. And there are a couple of elements of this that demonstrate the truth of that. One was the obvious Trump Tower meeting in 2016, where it was literally one of the most remarkable email chains I've ever seen in my entire life,

where somebody says, hey, do you want to meet as part of an official Russian plan to get Russian documents to help you defeat Hillary Clinton? And Don Jr. says, yeah. And then they pull in Paul Manafort and Jared Kushner and they have a meeting and all available evidence indicates that what was promised was not delivered, that that meeting ultimately was not about providing oppo on Hillary as part of a Russian plan, but the intention was absolutely there. Yeah, let's meet.

Let's get your official Russian documents as part of your official Russian plan to help defeat Hillary and put Trump in the White House. So that's one evidence. There was real intent here to work with Russians. And another piece of evidence is this whole weirdo story involving Roger Stone. So basically what happens in a short version is that Russia, the evidence is that Russia basically handpicked WikiLeaks to serve as a conduit for public disclosure of hacked information from the DNC and from the Hillary campaign. And so Julian Assange had a long relationship with Russian entities, including RT, Russia Today.

And so they were pan-picked to serve as the conduit. So this is a classic definition of what would be like an intelligence asset. And at the same time, the Trump campaign believed that Roger Stone had an in with WikiLeaks, that they thought that he, and this is from testimony of one of the lead prosecutors in Stone's case. Beginning in spring 2016, Stone told senior Trump campaign officials

he had inside knowledge regarding WikiLeaks plans and he communicated with Assange. Stone made these claims throughout the summer to Gates, a deputy campaign chair at Gates, campaign chair Manafort, campaign CEO Bannon. He believed his claims, and they sought information from Stone about what WikiLeaks would do to help the Trump campaign. So it turns out that a lot of this was puffery. Stone was running this super amateurish like Keystone cops operation to try to get information from Assange that involved Jerome Kersey and a liberal radio talk show host. But anyway, there was also evidence that Trump was in contact with Stone during Stone's outreach to WikiLeaks. And there was evidence that Trump was in contact with Stone during Stone's outreach to WikiLeaks. And there was evidence that Trump instructed Manafort to stay in touch with Stone. So here's the campaign

saying, hey, keep up your contacts with this Russian asset. Why does this matter with Trump? So there was evidence that Trump instructed Manafort to stay in touch with Stone. Trump, however, denies remembering any of this. So there's a conflict in evidence. So then Stone goes, not before the Mueller probe, he goes before the GOP-led House Permanent Select Committee on Intelligence and just lies and lies. He claimed he didn't have anything in writing

that related to Julian Assange. In fact, he had hundreds of such communications. He said that his public statements about an intermediary to Assange, referring to this talk show host, Randy Credico, that Stone testified they had nothing in writing about any of his communications with the intermediary. He had lots of writings. He testified he never discussed his WikiLeaks intermediary with anyone in the Trump campaign. But Stone had extensive conversations with the Trump campaign, with Manafort, Gates, Bannon, and Trump.

I mean, so there's just a pile of lies. And then when he's under investigation, he threatened another witness telling Randy Credico to prepare to die. Stone promised that if Credico didn't keep quiet, he wouldn't just ruin Credico's life. He'd ruin the life of Credico's friend, et cetera, et cetera. Don't forget the dog, David, the dog. I was going to say, I'm going to leave that to you, Sarah.

And he also threatened the man's dog. Bianca. We cannot forget Bianca in this tragedy. The heroic Bianca. So this is an interesting situation in that I think two things are important here. One is that it is absolutely true that Trump commuted the sentence of somebody who's flat out guilty of these crimes. And it's not just, he wasn't guilty of

defying the hated Mueller investigation, hated by, you know, the right. He was guilty of defying the GOP-led House Intelligence Committee. I don't understand why Republicans aren't upset at flat out lies to their own faces um and then it also does another thing it highlights that this wasn't a weirdo idea

to think that the trump campaign was interested in cooperating with a hostile foreign power that was not just pulled out of the fever swamps of conspiracy theorizing. There was credible evidence that these guys tried to do it. Okay, rant over, Sarah, I'm sorry. So let's take a moment and thank our next sponsor on this just so explosively breaking out podcast. Let's thank Gabby Insurance. We're all looking for ways to save money, especially now. When's the last time you looked at how much you're spending every month on car insurance

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insurance. Go to Gabby.com slash advisory. That's Gabby.com slash advisory. Gabby.com slash advisory. That's Gabby.com slash advisory. Gabby.com slash advisory. All right. Last legal topic today. The federal death penalty was supposed to come back this week, and there's been a flurry of court cases and injunctions that have just been pinging back and forth. A district judge in the Seventh Circuit stayed the executions.

The Seventh Circuit then reversed that. They were back on schedule. And now a D.C. judge has stayed them for one that was meant to happen this week. We don't need to dive into all of the death penalty stuff, except that the law on this is such a mess, I believe is the legal term. So right now, to bring an Eighth Amendment challenge to an execution, you have to demonstrate, one, a substantial risk of serious harm, and two, an alternative method of execution that will significantly reduce that risk of harm. And so the first case, the one that was out in the Seventh Circuit, was brought by the victim's families of one of the people who was set to be put to death. And the district judge found that the family's inability to attend the execution due to fears around coronavirus

were enough to stay the execution. The Seventh Circuit correctly found that that was, I again believe the legal term is bonkers town that the family, uh, does not have any right to attend an execution. Therefore any problems that they have attending the execution are legally irrelevant. So now another challenge has been brought that the, uh, 2019 protocol is what it's called the new federal death penalty protocol for how they are going to do the lethal injections violates the Eighth Amendment. But, and this is the part that's sort of, I don't know, funny, not in a ha-ha way.

This alternate method of execution requirement, because basically you can't just say like, well, the execution could hurt because if the death penalty is legal, the execution could hurt. Um, because if the X, if the death penalty is legal, is constitutional in the United States, then they've decided the Supreme court has decided you have to have some alternative that you're willing to suggest. And a lot of, uh, folks get caught up in that little requirement. So they come up, the plaintiffs in this case have a series of alternatives, but most of them are just like, well, you could also do this small other thing. You could have

two lines instead of one central line, stuff like that, which the Supreme Court has said, like that's nibbling at the edges. That doesn't really change what's going on here. And then they say, and firing squad. Now a firing squad was used for the last time, I believe in 2010 in utah so this is not totally outside the realm of possibility but you know i have the distinct feeling that if the federal government says okay we'll do firing squad that you're going to have a series of cases of filing saying that that also has a substantial risk of injury and harm and pain that would violate the amendment. So, right. So this DC judge has stayed these executions for now. I think it's pretty unlikely

that they will stay stayed, if you will, because this was just one of those opinions that I found myself reading. Like, does the judge know that she's against the death penalty and that's why she's trying so hard to come to this conclusion? Or is this an honest attempt to grapple with a very difficult area of the law? But I find some of the reasoning to be pretty weak. Basically, they're saying that the 2019 protocol has a high risk of causing pulmonary edema, which can cause feelings, sensations of drowning, suffocation. It doesn't sound fun, I will fully admit, but the court has dealt with pulmonary edema or the types of feelings associated with drowning or suffocation and found that that does not violate the Eighth Amendment. And her argument is like, yes, but in this case, this is a single drug protocol. And in that case,

it was a three drug protocol. And I'm like, well, but that's irrelevant. The question is whether causing pulmonary edema violates the Eighth Amendment. So round and round we go on this. I bring this all up, David, because I think it'll have lots of interesting legal cases this week that we'll continue to see. But also, I was curious, as a legal matter and as a policy matter, where you stand on the death penalty? Yeah, that's a really good question. One, I think, if you're talking about original public meaning, I think it's just really hard to argue, A, if you're talking about original public meaning, I think it's just really hard to argue, A, that the death penalty is unconstitutional,

and B, that the efforts that the government takes to render the death penalty process as humane as it can are unconstitutional. Because remember, I mean, the methods of execution that were in place in the 18th century, Because remember, I mean, the methods of execution that even against some of these various methods that, though they carry with them risk of suffering, are designed to avoid suffering. So that's a constitutional matter. I look at it in three layers, Sarah. Theology, constitutionality, and morality. And I think that those three things are a little bit different.

So as a Christian, theologically, I do not believe that the death penalty is prohibited by scripture, by Christian tradition. There is debate about that. There is debate about that. But my best reading, and I could dive into it, I've dived into it in previous pieces I wrote for National Review. dive into it. I've dived into it in previous pieces I wrote for National Review. Theologically, I don't believe the death penalty is banned or is per se immoral for the state to carry out. Two, constitutionally, as I just said, I don't think the death penalty is prohibited by

the prohibition against cruel and unusual punishment. But number three, I don't think that that therefore necessitates that the death penalty as a policy matter should be implemented. To say that something is not barred is not to also say it should happen. And, you know, one of the, I think, interesting and meaningful developments of American scholarship and American inquiry into its own reality, present reality and its past, has demonstrated that in many ways our death penalty process is broken. our death penalty process is broken, that we suffer from really dramatic inequities in the death penalty process. And, you know, was it the Oklahoma governor? I can't remember. Listeners will fact check this, but there was a governor who recently pulled what we call a I, governor of this state, call for a complete and total shutdown of the death penalty until we can figure out what's going on. What you end up seeing happen in this country is that your susceptibility or vulnerability to the death penalty depends on a pile of factors that are independent of, and in fact, often not dependent at all in any way, shape, or form on the gravity of the murder and the

strength of the evidence you committed it. It also depends on how much wealth or lack thereof you have when you enter into the process. There's a lot of evidence that it depends that your skin color when you enter into the judicial process matters more, matters at all. It shouldn't matter at all, but matters maybe even more than your culpability for the crime itself. And in that circumstance, I just see red flag after red flag after red flag that says even though constitutionally the death penalty is not prohibited, as a matter of equal protection under the law,

I have real concerns about where we are right now. So that's my not-so-short answer, Sarah. The only thing I'd add to that is there's also the legal machinations that we've created around the death penalty and the protections and the appellate process that doesn't really exist for non-death penalty convicted felons. convicted felons. You know, I think that the amount of time and effort we put into making very certain that we aren't executing innocent people is important if you're going to have the death penalty. But it also seems important to me not to leave someone in jail for the rest of their life for crimes they didn't commit either. And, you know, EDPA has all of these, you know, I think to a non-lawyer, it would seem crazy the ways in which we dispose of appeals or allow some appeals to go forward for someone who absolutely did it. And they don't take into account actual innocence all the time. And, you know,

you can waive certain arguments that actually, it turns out, are pretty real arguments because you had a bad lawyer on the front end and you have your state appeal and your federal appeal. And just when I was clerking, and I did have death penalty cases to review when I was clerking, I am very thankful that for the cases that I worked on, there was no question around innocence. But they were a mess in terms of, again, not individually the cases I was dealing with, but the law you have to apply, I think most people would find pretty arbitrary in terms of what you are and aren't reviewing by the time you get to a federal appellate court, because these are usually state crimes. And that, to me, just seems like if you were creating a system on the front

end, you would never create the system that we've now created in this piecemeal fashion over time that is a cobweb of law that you need a great lawyer to maneuver through or else you end up waving important arguments that could actually help you. And that maybe goes to your point on wealth inequities, because if you have a public defender on the front end or just a bad lawyer on the front end, you can very easily, very, very easily, even with a talented lawyer who's overworked, miss important stuff. So legally, I think the death penalty has some problems right now until we sort of wipe all of this away and create a new system to deal with these cases

that makes more sense. And then you have the moral questions and the victim questions. Should it matter that the victim doesn't want to spend the next 20 years of their life having to go to all of these appellate arguments and retrials and talk to the prosecutors every six months for the next 20 years of their lives and have to continue thinking about this horrible crime that happened to their family, should we just lock this person up and throw away the key? And should the victim's family have some say over that? Yeah, those are all great questions. I understand that justice will not, you know, I understand that justice will not,

the lady justice is blind and ideally lady justice is blind and similarly situated individuals will be treated similarly. There is always going to be a realm and there is always going to be imperfections in a justice system. There's no way to make them perfect. But the inequalities in outcome in our justice system are so dramatic that it calls into

question the death penalty to me. It's just a fact that if your name is Jim and you make half a million a year and you can throw down a $100,000 retainer for the best of the best of criminal defense lawyers in your city, that you're going to have, it's going to be far more likely you're going to have one outcome than if your name is John and you have $0

and you have a public defender who, even if they're super talented, as you said, ridiculously overworked and out-resourced by a district attorney or a federal prosecutor, you're probably going to have a different outcome entirely. Or if your name is Jim and you're white, or if your name is John and you're black, that the odds of a different outcome are pretty considerable. And that to me is so far removed from the lady justice being blind.

It's like the blindfold is just off. Like an imperfect system, the blindfold is on, but it's kind of permeable. There's imperfection within the zone of tolerance, but we have a justice system where it just feels like the blindfold and lady justice is just off. And some jurisdictions are better than others. Some states are better than others. But it is so comprehensive and so systemic that that's my problem.

I'm more than happy to argue theologically about in the abstract with a better system is a death penalty acceptable in Christian theology or constitutionally, but we got to argue with the system we got, Sarah. And let's thank our final sponsor today in our breakout podcast. This is CarShield. Computer systems and cars are the new normal from electronically controlled transmissions to touchscreen displays to dozens of sensors, but you can't fix any of these new features yourself. So when

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That's carshield.com, Code Advisory. A deductible may apply. Okay, we got an email from a listener. He and his wife are both philosophy grad students who will be co-teaching a philosophy of law course in the fall at our university. I mean, first of all, we'll see about that, I guess. But they sent this email fairly recently, so hopefully their class is still on for the fall. And they want to know, what are a few philosophical issues in the law about which you wish the average college graduate could be better informed? Major theories of constitutional interpretation and the legal principles undergirding free speech are already

on the list. What would be next on your must cover list, David? David? That's a really good question. One of the best classes that I took in my legal career was a class called, what was it called? The Philosophy of the Constitution or the philosophy of the constitution or the philosophy of constitutional law. And one of the things that I found really interesting was learning some of the more modern non-originalist mechanisms for interpretation. So in other words, you got to read John Rawls. You got to read John Rawls. I would say reading John Rawls is indispensable to sort of understanding more contemporary interpretations. And I also think that it is very interesting. People talk about things like critical race theory, critical gender theory, critical theory as a general matter an awful lot without knowing what it is.

And back when I was in law school in 91 to 94, it was kind of the dominant mode of legal interpretation and legal thinking at the law school. And it has had lingering and continuing influence on legal thought. So I would say learning some of the more progressive means of interpreting the law and the constitution, and I can think of Rawls, and I can think of critical theory, both of those as being very important to understanding our contemporary debate.

So those are two. So, okay, I also picked two. I picked some discussion on the administrative state and separation of powers and what it means to legislate versus what it means to execute, faithfully execute the laws. And so some distinction between Article 1 and Article 2 and whether those are still unique, whether they've been muddled, all of those things, I think would be really great for a college student to understand what the administrative state actually is sort of in a post Wilsonian era. Um, and two, and this one's more philosophical outcome versus process, which is something that you and I have talked about a lot. When I, you know, when I read that question, I was like, oh, what do I wish a 22-year

old when they saw a Supreme Court headline, what do I wish they would think critically about? And what I would want is for them to say, ah, that headline tells me about the outcome, and maybe I agree or disagree with the outcome, but what was the process that was important to get there? And you and i've discussed this a lot about legal conservatism is supposed to be about following the correct process following the text the intent originalism there's a lot of different ways that i would be fine and feel good about a process but outcome-oriented legal positivism uh comes with a lot of inherent dangers. And so what I would like is for the college, the graduates of that class, to our dear readers, to not read headlines about the

outcome and think like, oh man, that's a terrible outcome, or I like that outcome, but instead say, that's a terrible headline. I like that outcome, but instead say that's a terrible headline. I wonder what the process was. Right. Yeah, exactly. That that's very well put. Um,

you know, I would say, I think it'd be interesting. So the, the key, I, you know, the key roles work as a theory of justice.

Um, and one of the things that my professor, um, shout out to professor Fallon, who was, was, is just a phenomenal, uh,, shout out to Professor Fallon, who is just a phenomenal teacher. Wait, which Fallon? Oh, at Harvard?

The one I had? We had the same teacher? Which Fallon did you have? The main Fallon? He taught FedCourts for me. Yes. Oh, yeah, yeah, absolutely. Yeah.

I mean, he, yeah. Oh, my gosh., absolutely. Yeah, I mean, he, yeah, oh my gosh. Fed courts. Richard Fallon has been a full professor since 1987. That probably does cover your time and my time. Oh, yeah, yeah. Shout out to Richard Fallon. No, and I have a, can I tell you,

this is a brief digression, listeners, but law students, you will shudder at this. Can I tell you my Richard Fallon fed courts nightmare story sure so when i was there uh professor fallon's fed courts class was kind of universally recognized as the um as the most difficult class at the law school you still was by the time I got here. Okay. All right. So this is the class that put hair on your chest. All right.

And so we had in our final exam was a four-hour open book, which usually meant you bring your outline because you're actually not going to be paging through your FedCourt's book at the exam. And if you are, you're kind of in real trouble. And so the night before the exam, I had worked on this class. I had worked on this so hard because I had a good relationship with Professor Fallon. I'd had other classes with him, been fortunate enough to do real well, wanted to

continue that record with him, kind of felt a bit of pride about it, and was really also nervous. And so I'm studying, I'm studying, I'm studying, and this is early computer era. I had nailed down one of the best, I had nailed all of the entire doctrine of FedCorp, Sarah, into a 10-page outline, 10-page outline that would be preserved in the Smithsonian for its incredible and exquisite intelligence and beauty. And then my computer crashed. And now when I say crashed, I mean to tell you, essentially just my computer died. Now this is 1993. essentially just my computer died. Now this is 1993.

We're not talking, there's no cloud here, y'all. Yeah, there's no tech support either. There's no backup. No, nothing like that. And then at the same time, right as I learned that that happened, I got a phone call, just opening up the circle of trust here a little bit to let y'all in on

personal details of life from a person who soon became my ex-fiancee, initiating one of the conversations that led to the doom of the relationship the night before my FedCourts exam, right after I lost my entire outline. And so what did I walk into that FedCourts exam with, Sarah, my textbook. Yeah, that's the nightmare. That's like actually like the nightmare that people have the night before the exam.

But you actually just, you weren't asleep. Exactly. So that's a long way of saying in our philosophy of the constitution or philosophy of constitutional law, I can't remember the name of the class. Fallon did something really interesting. We read selected excerpts of Theory of Justice. We read selected excerpts of Professor Derek Bell's work on critical race theory. And we read extensive excerpts from the Federalist Papers. And it was a fascinating compare-contrast.

Fascinating. So that would be my recommendation. I like it. Well, dear professors slash grad student who sent in that question, I hope that was even moderately what you had in mind

when you emailed us. And thanks for listening. Yes, Thank you so much for listening. And maybe next, some other time, Sarah can tell us a law school horror story. But it sounds like your experience was all sweetness and light. It was all sweetness and light. I mean, the main thing was that I was working full time and so I didn't attend certain classes at all. And so that nightmare that you have about, you know, you're showing up to a class that you've never been to to take the final was not a nightmare.

It was very much just my reality, several, several days. That's amazing. You were bold. It was... You were bold. I don't know that I would do it now. Well, that... We'll just leave that as a teaser out there,

at which point she'll also tell us how she also got an A in those classes, I'm sure. I did better than you'd think. I know, it's pretty remarkable. We had people who did that as well, and it was a little frustrating to hear how well they did. Yep. But until next time, listeners,

this has been David French and Sarah Isger, and this has been the Advisory Opinions Podcast.