Advisory Opinions - Cut to Black

Episode Date: April 14, 2020

David and Sarah discuss the sexual assault allegation against Joe Biden, the president's tweet about who has the power to "open up" the economy, a federal judge's ruling that a Kentucky church can conduct Easter drive-in service, and The Sopranos. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And we've got some really interesting stuff to talk about today. All of it, actually, except for the final topic, which is dunking on the Sopranos as overrated television, which I can't wait to get to. But the first topics are all law-related, all interesting, all extremely topical, and all extremely contentious. So we're going to talk about the Tara Reade allegation against Joe Biden, the Tara Reade sexual assault allegation against Joe Biden. We're going to talk about a Trump tweet and use it as a launching pad for yet another brief discussion of federalism. granting a restraining order against the enforcement of a mayor who decided to ban drive up church, not in-person church, but drive up church. So there's an awful lot to cover. And as Sarah says at the start of every Dispatch podcast, let's dive right in.

David, wait, I have a small disclaimer, mostly to save Caleb, our wonderful producer. We've had a bit of a traumatic morning with the cats over here, and I'm just anticipating a lot of meowing. We had one cat lock herself somehow all by herself in a closet. She went in and the door shut behind her. And then the boy cat, who many years ago was adjacently struck by lightning, so is very afraid of bad weather, found himself trapped outside during a bit of a sudden thunderstorm that we just had here in D.C. And he has feelings. So just flagging the meows that may be coming.

Look, I mean, the official Advisory Opinions podcast position on cat trauma is that we're very gracious towards our furry friends during these troubled times. Now they may just go nap, right? They may nap it off. I don't know. Right, right. So I'm sure the listeners will be forgiving in advance of any meowing, distressed meowing that they hear. be forgiving in advance of any meowing, distressed meowing that they hear. So diving right in from the light to the heavy, have you tracked the Tara Reid allegation against Joe Biden? Have you, before, say, this weekend when New York Times and Washington Post really kind of dug into it, how closely had you been following that? Yeah, so I've been following it for the last several months when it first when she first changed her initial story from last year

to include now an assault allegation. So let's why don't we just start with your thoughts? Just that however you want to start the merits of the allegation for the media coverage of the allegation, just roll with it. in the past in dealing with allegations does not mean that we need to force journalists to make the same mistakes this time to prove some sort of equity in allegations. And I think that it's a good conversation for journalism to have to say what mistakes were made during the Kavanaugh situation that don't need to be repeated this time. And I understand they're going to be, this is our judicial confirmation wars in some ways all over again, where it's a one-way ratchet. And somehow the only way for journalists to prove that they're not biased is

to have the exact same coverage of an, of an assault allegation against a Democrat. I don't feel that way. I feel like journalism should be able to make mistakes and correct those mistakes. And I think that you come up with what I think the law has already grappled with for hundreds of years, which is a quasi statute of limitations. There's a reason that we have statutes of limitations in law. It's not to be mean or to simply say we've moved on or you're innocent. It is to say that basically the defense cannot put together an adequate explanation so many years

later for various crimes. And I think when we're unfortunately dealing with something that happened so many decades ago on either side, regardless of who, it's very tough to ask Joe Biden or Brett Kavanaugh to be able to say, where were you at 430 on Tuesday, you know, et cetera, et cetera. And for them to be able to put up a defense that will convince someone who is inclined not to believe them. Right. Now, so let's sort of walk through the Reid allegation and the story. And then we can deal with some of the obvious Kavanaugh comparisons. But there's also, Kavanaugh isn't the only comparison here. You know, it's it's kind of funny how we look at this and we say and what immediately has come to mind is sort of comparison between Kavanaugh and the media treatment of this allegation. But that's not the only comparison here. And I think that if we broaden the look at this, some of our conclusions can kind of come into sharper focus. But her basic claim is that while she was working in Biden's office when he was a senator in 1993, that he sexually

assaulted her in a semi-public area near a Senate gym and then spoke to her. And it was in her allegation isn't sort of the Biden neck nuzzling or neck rubbing or, you know, that sort of stuff that we've seen on camera many different times. Her allegation this year is that it was an actual out and out sexual assault, one that would be and could be criminally prosecuted. Now, what do we know about the facts? And what do we know sort of about the veracity or the credibility of the claim? Well, we do know that she worked with him and so that she had occasion to be in his physical presence, which is more than we could ever establish with independent evidence

in the Christine Blasey Ford allegation against Kavanaugh. That's the comparison. We'll get to that comparison. But there's some interesting aspects about this. So she had earlier claimed that Biden had engaged in that kind of standard Joe Biden behavior that he apologized for. She had told the Washington Post during the investigation of these sort of Biden touching claims that there was harassment in the office, but it was not Biden. She allegedly told her mother about this, but her mother has passed away. She allegedly told her brother about this, but allegedly and apparently told her brother more that it was old classic Biden behavior that, you know, that kind of touching and neck rubbing, etc. So there's not there's more corroboration than existed with the. Wait, hold on. She claims she told four people, her brother, who has declined to comment since then, and two friends, one of whom she told at the time who was interviewed by the AP in 2019 and didn't mention this, but now corroborates her story.

And another friend who she says she told a decade later, that friend also corroborates her story. She says she told a decade later that friend also corroborates her story. So, yeah, The Washington Post says this. Reid's brother now talking on the record to the White House. So this is evolving. Said she told him in 93 that Biden had behaved inappropriately by touching her neck and shoulders. And then several days after the interview, he said in a text message that he recalled her telling him that Biden had put his hand under her clothes so this is yeah this this sort of goes to your point that you you began with about you know we're talking about some stuff that was that, you know, some time ago and that there's there's now competing versions of this.

She said she also told a therapist, but has not produced the therapist's notes. She said she also filed a report, but has been unable to get the report. get the report. And the Biden library has not provided all of his, you know, documents to reporters. But we'll see about that. There's also, not surprisingly, contradictions. So one of the things she claims was that her job responsibilities were scaled back. And she was told by a person named, last name Toner, that she was not a good fit for the job that's what she told the ap she told the new york times that the person who told her she was not a good fit for the job had the last name of kaufman both of these people worked in the office at the time again i it's a small contradiction in some ways but it goes to how long ago this was and the inability to sort of pin some of this down. And then this is another just interesting

journalism point in the AP story. During the 2019, April 2019 interview with Reid, she alleged that Biden rubbed her shoulders and neck, played with her hair, and that she was asked by another aide in Biden's Senate office to dress more conservatively and told, don't be so sexy. The AP declined to publish details of the interview at the time because reporters were unable to corroborate her allegations and aspects of her story contradicted other reporting. That's very common, actually. Now, it's not always the case that the reporters will tell you, we interviewed three other people, but aren't including their interviews because we weren't able to corroborate it and in fact found some contradictory stuff. But this is all

part of how reporting over almost any story works. You interview a lot of people and you include the ones that you're sort of able to back up what they're saying. You interview a lot of people and you include the ones that you're sort of able to back up what they're saying. Yeah, well, and I would say that, you know, I'm not a hard news reporter, but I there are many there are things that I have reported on. tried to figure out if they were correct or not and have abandoned more than one story that could have been relatively juicy just because, A, the initial story was contradictory and, B, I couldn't find any corroborating evidence. And, C, I started to feel like I was being played. I was people were attempting to play me for oppo research purposes. Well, and this goes to something that people Biden allies have pointed out, that she was a Bernie supporter. That, to me, is the least persuasive pushback on an allegation, because if if you were assaulted by a candidate for the Democratic nomination, you probably wouldn't support them for the

Democratic nomination. Yeah, exactly. Yeah, that's the least persuasive. What's more persuasive is stuff like this. So she's interviewed in The Post last year and she said she blamed she laid more blame with Biden's staff for bullying her than with Biden. She said, this is a quote, this is what I want to emphasize. It's not him. It's the people around him who keep covering for him. For instance, he should have known what was happening to me. Looking back now, that's my criticism. Maybe he could have been a little more in touch with his own staff. I mean, these are the kinds of things that let me, I try to, when I'm, when I'm thinking through these allegations, because there's been an awful lot of them against powerful men over the past. And it's, this isn't

new. I mean, like this isn't new. We're going back to Clarence Thomas era here. We're going back to Bob Packwood. We're going, I mean, this has kind of come and gone in waves for two decades plus three, almost three decades now. Holy cow, I'm getting old. And so you sort of you kind of try to organize it in your mind. And when the whole Kavanaugh thing came out, I said, look, my view is and this is just my view. If the weight of the evidence demonstrates to me that it is more likely than not, just like let's just take the lowest civil standard, preponderance of the evidence, because I don't even really know what, quote, credible means because people say things like credibly accused. More likely than not. Is this more likely than not that this happened? If it is more likely than not, especially when dealing

with a high public official, no one's entitled to these jobs. If it's more likely than not, then I don't want them in that position. Just kind of my view. And, you know, I went back and I looked at some of the famous claims over the last several years. And was it more likely than not that Bill Clinton sexually harassed Paula Jones, for example? Was it more likely than not, based on the available evidence that Bill Clinton assaulted and raped Juanita Broderick? And time and time again, or what about the Roy Moore allegations? Time and time again, I started to construct these things the way I, and think about these things the way I would construct a case in court. And I'd ask myself, would I take this client's case? Is this a case I would take to court? And one of the things that I was thinking about with the Kavanaugh

allegations is consistently no, like not even close. And with this allegation, I get a lot of that same feeling that this is if you're a lawyer and she walks in and this is the state of the evidence, do you file the sexual harassment suit, which is the preponderance of the evidence standard? And for me, I look at it and I, I'm not going to say with metaphysical certainty whether this happened or didn't happen. But I can't imagine under the state of the evidence proving that it was more likely than not that it happened. Does that make sense? It does. But I also think in a larger way, it highlights why we don't try these cases in newspapers only. we don't try these cases in newspapers only. If you didn't bring a claim at the time,

it makes it nearly impossible to hold reporters to a standard of having to present all the evidence and the other side to be able to present a defense. We didn't set up journalism to be that, to have that role in our society. and so how should journalists 30 plus years later handle allegations that are unsubstantiated but maybe more to the point unsubstantiatable right and it can't be the answer that well we don't report on any of them the end right um but there's something in between. And I'm, you know, I've reached out to some reporters. They're not dumb. They understand the problem here.

This is tough and it's not easy. And anyone who says, oh, I know exactly how the New York Times should have covered all of this is not telling the truth. And I think that the double standard point that's being raised is also, I'm not saying excusable, but explainable, which is the way that the two came about. If you remember on the Blasey Ford situation, it came into the public eye in a more salacious, ooh, there's something being hidden way, which is what journalism is really good at. It was an allegation that was being kept secret that had gone to Dianne Feinstein's office, and they had it, and they weren't telling anyone about it, and so the Washington Post broke this story, and it all started unraveling from there. Journalists are very good at pulling threads.

This is very different where the allegation actually comes as part of a I want to tell my story. Less thread pulling needs to be done right away. And reporters, I think, are just less like, ooh, someone's hiding something. I need to go find it. Yeah. You know, one thing that was really interesting and a lot of people forget this about the Christine Blasey Ford situation is. So she reached out to The Washington Post and she reached she reached sort of up the chain on the political side that landed in Feinstein's office. But she also went straight to The Washington Post with on WhatsApp, you WhatsApp, the encrypted messaging service. And the Washington Post was looking into this.

And they did not break this story. And this is a subtlety, but it's important. What they ended up doing was breaking the fact that the Feinstein's office was withholding this. the fact that the Feinstein's office was withholding this, which is a different thing than the way they broke the Roy Moore story, right? So they broke the Roy Moore story after they had received tips or received information in the course of reporting about Roy Moore and then just really started to pull these threads, laid it all out, laid it all out with, even though it was decades ago, a pattern of behavior, contemporaneous corroboration of, in the sense of people telling friends and family members that what Roy Moore had allegedly done,

et cetera, et cetera. And they sort of unveiled it as this package complete with evidence, told how they got the information, just sort of like laid it all out there. It's actually, I thought, really good reporting. This one came differently. It was saying, yeah, we got reached. They reached us about, Blasey Ford reached out to us about this and also reached out. And it was much more of a story of how she reached out and what she said and how it wasn't, we've discovered this, if that makes sense. And it's a subtle difference, but then I think that difference got completely lost as then it was off to the races towards a media environment and a atmosphere of public anger that, quite frankly, wasn't like much that I had seen for many years. And now I remember the Clarence Thomas confirmation hearings pretty well,

and there was an enormous amount of fury. I can only imagine if Twitter existed then. But once that report got out, which included some elements, the initial Washington Post report about Kavanaugh included some elements that really undercut Blasey Ford's story and demonstrated to me as I'm reading it with sort of this critical eye, oh, I can see why this came out the way it did as opposed to the way the Roy Moore story did, this came out the way it did, as opposed to the way the Roy Moore story did, got completely lost in this just race towards anger and fury, etc. But I think the worst thing that if you're upset about how the Blasey Ford allegations were handled in the press, the worst thing you can do is then say, and from now on, we're going to hold every story to

that standard. And particularly this Reid story, we want the exact same treatment for Biden, because the next time that there's an allegation against someone you like, they're going to say, well, you just told us we had to hold this Reid story to the exact same standard as the Blasey Ford story. So that is now the standard, which is that we, you know, treat all allegations basically as entirely substantiated. Yeah. Regardless of whether they are substantiated and that reporters now serve this role of prosecutor to the reader who is now the juror. And that's a very uncomfortable thing for me to say is a proper role of journalism. And I don't think a lot of journalists want that role. Yeah, that's a really good point. And there's another aspect of this here that I think,

if you're talking about the Kavanaugh situation, that is very different. And that is there was an active Senate hearing with – or an active Senate process with politicians who could completely circumvent the media and put out their own allegations, put out their own press releases that would then have to be covered. And so what you begin having was this cascading series of – now I still am, Ronan Farrow has done some good stuff. No question. Ronan Farrow has done some incredible journalism. I'm still upset, though, at his New Yorker story about Kavanaugh and the allegations at Yale, which I did not think met his standards. But the bottom line is you're also having the situation where the politicians were coming into play in a way in the real time of this actual Senate hearing.

And if the politicians are going to grab something and they're going to run with something, well, then the press is going to run with this as well. And it created this sort of feeding frenzy mentality where, again, unlike anything that I had ever seen, and it struck me as like this perfect storm where at some point, several days into it, I'm sitting here thinking, is no one taking a step back and like dissecting these things with a critical eye? Or is it more like, oh, here comes another one and here comes another one. And what, you know, the most gang tackled I've ever been on Twitter and I've been gang tackled on Twitter was with, was it Julie Swetnick, the Michael

Avenatti client? I don't want to, I think so. Yes, I think so. When she made, you know, the gang rape allegation, which are still just kind of shaking your head at to this day. And it struck me as transparently dubious, like just transparently dubious. And I said so at the time. And the list of prominent blue check marks who just came down on me like a ton of bricks was remarkable. And it struck me that people had just, for the time being, had suspended critical judgment at all and were treating any expression of skepticism as if you just didn't flat out didn't believe women. I'd never seen a feeding frenzy like that. just didn't flat out didn't believe women. I'd never seen a feeding frenzy like that.

Whew. Yeah. I mean, let's also separate blue checkmark Twitter from actual journalism. Well, fair enough. Even though a lot of those were actual journalists. I know, but somehow even actual journalists on blue checkmark Twitter are different than the process that is required to publish a story with the New York Times or the Associated Press or the Washington Post, which goes through editors and lawyers and other things. So they're held to none of those standards on their Twitter feed. So just because it says, I work at the Washington Post or the New York Times, or in the recent cases, former New York Times, it doesn't go through go through like it's not fair to call that journalism in the same way because uh hard appropriately done journalism actually is not

one person expressing an opinion it is an entire less entire sum i'm sure uh process behind the scenes which is where you get to that AP line. The AP initially declined to publish these allegations because it didn't meet their standards. And that's what I think journalism would be better suited with more transparency on those type of moments back when they initially happened, which I know is really tough because who cares? But you turn out to care later and it really, I think, builds credibility for the role that journalism plays, the appropriate role, the inappropriate role, and why blue checkmark Twitter is not the same as a story published in the Associated Press.

So, Sarah, if you're running a newsroom, what's your Twitter policy for your hard news reporters? Oh, I have so many feels on this. Oh, feel away. your hard news reporters? Oh, I have so many feels on this. Oh, feel away. I actually, I have, I've written something that has not been published on this, but I think that we will move to a time where if you have a blue check mark next to your name and then in your bio describe the news outlet that you work for. So you are, you are verified because of where you work. Yeah. You have to meet the editorial standards of your outlet before, quote, publishing anything on

Twitter. You can have a personal account similar to like candidates do this, right? A senator has an official Senate account and an unofficial thoughts from Ted Cruz account or whatever. Journalists could have the same thing. You can have your personal Twitter account, but you're not going to have a blue checkmark next to it. Yeah, I think that one of, I would say that impulsive tweeting has done an awful lot to undermine the credibility of the mainstream media, especially in the hyper online political class. Because there is just a countless number of examples of people tweeting things that they would never publish and would never get published in The Washington Post, in The New York Times, in Wall Street Journal. But the incentives, unfortunately, like there's a reason that that happens. It's not just that they're, you know, dum-dums. Building, like you used to work at the New York Times for your entire

career. That's no longer the case. You're going to bounce between outlets. And so building your own brand with your own name and your own, you know, credibility, Ronan Farrow might be a great example of this, actually. It's not a it's the incentive to do that that drives that behavior. And that incentive is driven by the economic factors of what's driving down news organizations hiring. news organizations hiring. You know, we talk about we tie this all back to coronavirus, which is the science reporters that we used to have 20 years ago aren't in these newsrooms anymore. Right. Right. Yeah. So anyway, that's that's my blue checkmark Twitter rant. But I don't it might be time to move to federalism. Oh, my gosh. I almost forgot about federalism. Yeah, yeah. We can't skip federalism. So it's so funny how quickly arguments shift. So over the weekend, there was a big argument because Brian Stelter on had retweeted a quote from Washington Post basically saying that, hey, look, the administration position is that the presidents, I mean, the governors and the mayors are in control of when we open back up. And he added in like a let that sink in.

And everyone just piles on to him and says, look, federalism, federalism, federalism. This is, you know, if the administration is thinking along those lines, then the administration is actually understanding the Constitution. And, you know, the typical articles went up, look at the mainstream media and its ignorance, yada, yada, yada. So then at 9.53 a.m., my time, Trump tweets, for the purpose of creating conflict and confusion, some in the fake news media are saying that it is the governor's decision to open up the states, not that of the president of the United States and the federal government. Let it be fully understood that this is incorrect, Sarah. It is the decision of the president. And for many good reasons. With that being said, the administration and I are working

closely with governors and this will continue. A decision by me in conjunction with the governors and input from others will be made shortly. Your thoughts. So I sent this in our little Slack channel today and said, normally I understand what he's trying to get at and the political purpose behind it. And in this case, both of my tests fail. First of all, the political purpose, he is, and his allies and senior administration officials have been very clear that he is allowing the governors to decide what's best for their state when it comes to PPE and ventilators and everything else. And the federal government serves as a backstop to that.

And so it's particularly odd politically to say, oh, never mind. Now we're the front stop to that. But when it were OK. Second. Oh, here's a cat. Second. Absolutely. The bully pulpit is not small. It is the probably the biggest tool that a president wields. And so, yes, it will be up to the president when and how to stand before that podium and say, I believe that we can open up large sectors of the economy.

And I encourage every governor and mayor, etc, to do that. And they've, they've done the reverse of that, right? They've, they've suggested mass and other things. So for sure, that's a real power. However, the way he phrased it was not like that. He said, it's actually the decision of the president. the decision of the president. It kind of isn't in any way that I can come up with. Now, Declan, who we all love and adore, who spends a lot of his time on the morning dispatch, said, yeah, but what about funding? I mean, he could, in theory, withhold funding from any governor who keeps a stay at home order in place. Only if there's no strings attached to that funding from Congress. And like, yeah, that's like kind of a weak sauce way down the road, maybe kind of on the margins.

He does not have the power of the purse, though. Yeah, there's going to be some discretion over how to distribute funds. That would also be kind of a crazy thing to do. over how to distribute funds. That would also be kind of a crazy thing to do. Oh, and could you imagine if he said, let's say Governor Newsom said there's a conflict, the CDC. So he does have control over, for example, CDC guidelines. For sure. Guidelines. But let's say Governor Newsom says, you know what, because of the density of some of our West Coast cities and because of the contacts that these cities have had with international travel, it's still not prudent for us to open up San Francisco and L.A., etc. And Trump says, oh, yeah, you're opening up San Francisco and I'm not going to give you X grant dollars, etc. the land speed record between the moment in which Trump withholds vital medical supplies from San Francisco and the time between when an injunction is issued from the Northern District of California freeing up those funds, it might not even be measured in hours or minutes. It might just be seconds.

This is where, to bring this back to, you know, nothing's new under the sun. Remember that the administration tried to withhold funding from cities that were implementing various, quote, sanctuary city policies around immigration. And there was grant language that said, we don't need to get into all the details. But basically, there were some strings attached to that grant language that said we don't need to get into all the details but basically there were some strings attached to that grant language that it needed to be you know to help federal law enforcement and the administration said by you not giving us these detainer notices for 48 hours you're not helping federal law enforcement therefore you're not getting this grant and they did they went straight to court and got a nationwide injunction where the court said, this is not sufficiently close to the language in the grant of why you're denying funding. And what you're describing, I think, is like way, way further in the bad

direction than anything around the sanctuary city grant notions. Right. Exactly. Exactly. So the bottom line is, as we've explained on this on this podcast, the fact of the matter is that the police power to make an order shutting down, for example, a stay at home order. There's a reason why all of these have come from state from governors and mayors. You can scour the CDC website all day long and you're not going to find a stay at home order applicable to your jurisdiction. You're going to find some guidelines issued and those guidelines are just suggestions. So the fact of the matter is President Trump could say tomorrow we're going to open up New York City, the most important city, the most important city for GDP in the United States. True. So it's hard for America to be economically healthy if New York isn't economically healthy.

We're going to open it up on April 20th. And Governor Cuomo could say, no, we're not. And Governor Cuomo wins. And it's not even close. And Governor Cuomo wins. If you were saying that federalism is stupid and we should get rid of states and the Electoral College and all of those things, now is the time to say that you agree with Donald Trump that he should be able to make this decision on behalf of the entire country. Is that wishful thinking? Is that too much? That's way too much. Consistency is the hobgoblin of little minds. Well, let's move on. So over the weekend, a federal judge in Kentucky issued, I think, I'm not sure, I could be, the first really publicly talked about order overturning

a local public health measure. And the public health measure was an order prohibiting a church, and the church is called On Fire Christian Center, from holding a drive-up Easter service. Now, wait a second. Hold on, David. This is going to become very important. Language, words matter. Yes. I would like to also flag there's a difference between what you're describing as drive up, where you stay in your car in a parking lot, versus drive through. So what you're saying is drive up. I think the mayor refers to as drive in. Drive in church versus drive through church. Please continue.

Yes. And so the church wanted to hold a service where people stayed in their cars. Cars were a certain part, you know, certain amount of space apart and maintain that this did not violate or at least should not be banned on public health grounds, because it was not, in fact, the same as these large in-person mass gatherings that we have seen spread coronavirus. Large church gatherings have spread coronavirus, period. Western Kentucky had an outbreak because of a revival service in early March. We've had funerals in Georgia that have cost lives.

There was a choir. Now, this was a secular choir in Washington, but there's no spacing difference between a secular and religious choir that caused an outbreak that's cost lives. There have been churches in Illinois. I mean, we can go all day long that these in-person gatherings have in fact been, um, caused coronavirus outbreaks. There was a church fundraiser in Nashville not far from me that led to more than two dozen people getting it. So they're saying that's not us. And so they filed suit to get relief from that order. And the judge applied strict scrutiny, which under the Kentucky Religious Freedom Restoration Act, he should have applied.

We could talk about whether he should have applied it under the free exercise clause. But applying strict scrutiny found that while there is a compelling state interest in the federal, the local government had a compelling state interest in controlling the coronavirus, that banning a drive up service was not least restrictive means. That's sort of the short version of this, that this was and that there was some perhaps even some favoritism, et cetera, or some targeting in the sense that, look, there was no ban on people going to parking lots to go to Lowe's, for example, or liquor stores, liquor stores, for example. And so a little bit of a false comparison to your drive through versus drive up

contrast. But in other words, essentially, while there was a compelling governmental interest, this was not the least restrictive means of accomplishing that interest. Therefore, on fire could hold their drive up service. So that that was the legal analysis. Pretty conventional. There were problems. OK, before we get to the next part, your thoughts on the legal opinion. Just the substance of it before we get to just the substance. I think there's a couple of problems with the substance.

One, he starts with the constitutional analysis and then only second reaches the statutory analysis in every canon of uh legal thought you would do the reverse you only reach the constitutional analysis after it you do the statutory if the statutory does not resolve it. You do not need to reach. It's the constitutional avoidance doctrine. This flips that. Two, this was an ex parte TRO grant, meaning that the mayor's office did not get to participate. I think that that is odd substantively because it'd be one thing if he turned around and did this in an hour, but he actually took a long time writing the opinion, which to me says that you could have had the time to have evidence that would have demonstrated there has been no legal enforcement mechanism communicated. We attempted twice to contact the court. We were not given an opportunity to respond. And this is where we get to my drive through versus drive up.

Throughout the opinion, it cites the mayor's public statements where he says we are not allowing churches to gather either in person or in any kind of drive through capacity. We're saying no church worshiping, no drive-thrus. Repeatedly, he uses the term drive-thrus, which to me is much more like a, you know, Starbucks drive-thru communion wafer situation than a stay in your car social distancing and i think that's where having a status conference and not doing this ex parte could have illuminated some facts here because actually you'll notice there's no order that's cited it's these public statements and the public statements to your point are a little um like does he mean drive through and drive in does he mean only drive through and i

don't know that and therefore i don't think that the judge did either so i have some fact problems and some legal analysis problems here uh overall if i take the facts as only what the church says they are then i tend to agree that if you can gather in a parking lot to go into the Walmart, you can probably say that not allowing someone to gather in a parking lot and stay in their car and hear a bullhorn church service is a little different. I mean, it is not different, but I'm not sure that's what was happening here. Yes. No, you're exactly right to bring up the highly unusual aspects of this and the procedural posture, highly unusual. I agree with you. I think that if the distinctions that we have from parking lots and other places. This is not least restrictive means. Fine.

But my goodness, this opinion, the actual opinion itself. Sarah, it's one of the first own the libs opinions I have ever read in my life. I mean, this this is not written the way you normally write a judicial opinion. Well, and let's get some background here. The judge, Justin Walker, spoiler alert, I did go to law school with Justin and he was on my board when I was Federalist Society President at Harvard Law School. So, you know, David, that was just for you. Yeah, that was for you. He has been nominated to the D.C. Circuit, and he has not had his hearing date set, etc.

But he had been thrust into the public spotlight, if you will, in the last month. The chances, by the way, of all the gin joints in all the country that this opinion lands on his desk. But yeah, the opinion itself. Now let's set aside the law. Let's get to some of this rhetoric. David, you can go first, but boy, I have some thoughts too. David, you can go first, but boy, I have some thoughts too. Well, so, okay, first, you've got the use of italics for emphases, which is, it sounds like he's trying to write as if he's in a Fox hit. And he's, two days ago, citing the need for social distancing during the current pandemic, Louisville's mayor, Greg Fisher, ordered Christians not to attend Sunday services, even if they remained in their cars to worship, even though it's Easter. The mayor's decision is stunning. It is beyond all reason unconstitutional. This is interesting because I took a different,

because I took a different, I didn't like that, I think, for a different reason. Even though it's Easter, he also capitalizes he when referring to God throughout and quotes biblical verses, not in a legal sense of this is what belief system, but in a like this is the belief system. Well, the first lines of the substance, you know, so that's the intro. Then he begins with, according to St. Paul, the first pilgrim was Abel. With Enoch, Noah, Abraham, Isaac, Jacob, and Sarah, they, quote, died in faith, not having received the promises of God's promised kingdom. That is not a legal argument. No. No, that's not a legal argument. It is not legally relevant whatsoever to the least restrictive means.

And I found it. I don't know what the right word is, but I don't see those quotes from the Koran very often in judicial opinions. Yeah, I actually had the exact same thought as a comparison. And then he takes shots. Like, so yeah, he recites that there was, there has been religious persecution. Slave owners flog slaves for attending prayer meetings.

Is that remotely comparable, Sarah? Also, still not relevant to least restrictive means. Murderous mobs drove the Latter-day Saints into Utah. Not relevant. Then he goes to Blaine Amendments. Then he talks about Harvard's quota system against Jews. But wait. Yep, here we go.

Then he goes. KKK time. And over three decades ago, another ex-Klansman was the majority leader of the United States Senate. Super not relevant. Just super owning the libs right there. I found this remarkable. I literally, I found this remarkable. And people piled on me.

I said on Twitter, I said, I agree with the substance, but the rhetoric is just a bit much. And people piled on me on Twitter like, oh, we always knew you didn't care about religious liberty. But wait, there's one other legal problem here. Go for it. Footnote 86. Oh, well, I have not read Footnote 86, I must confess. Guys, this is really just me owning David just because I wanted, I mean, there's nothing better in law than when you get to cite an obscure footnote and the other side has to like be like, oh, footnote. But in this case, it is the last footnote. It's getting a lot of attention because, and this is the line first in the opinion,

for them, for all believers, quote, it isn't a matter of reason. Finally, it's a matter of love, end quote. First footnote 85, Robert Bolt, A Man for All Seasons, page 141. Second footnote, JRW, SDR, ampersand, PBB. comma SDR, comma ampersand PBB. Best anyone can tell, those are the initials of the judge and his two law clerks that worked on this opinion. That is unheard of. Law clerks do not take credit for the opinions that they work on. It is not your opinion as a law clerk you did nothing you were barely there you fetched coffee and what that footnote would actually imply is that they're citing themselves for that for the facts of that sentence for the substance of that sentence which again i'll repeat

for them for all believers it isn't a matter of reason. Finally, it's a matter of love citing themselves, the author. Yeah, I found that I found that last sentence. I did not laser in on the footnotes, but I found that last sentence way excessive because you know what? In court, it is a matter of reason. Good point. It's exactly a matter of reason. Good point. It's exactly a matter of reason in court. And with that, Sarah, I propose we make the listeners really angry at us.

Let's do it. Because, you know, one of the you don't want to have the dispatch media is not about telling people what they want to hear. You know, our basic I think our mission statement is a daily truth grenade lobbed into your inbox, not responsible for the casualties caused by truth shrapnel. So let's back up. I mean, this started because Scott and I decided to go back and binge the entire Sopranos repertoire. Yeah. Start to finish. And we knew when we did this that we were watching it out of its time. Like you were supposed to watch it in real time in the very late 90s, pre 9-11, etc. And so it was more almost a, you know, anthropological choice that we made. And we recognize that you can't hold it to 2020

standards. Right, exactly. You have to judge it in the context of its time. I appreciate that. So judging it in the context of its time. Here is my review of Sopranos. Overrated. Clap, clap, clap, clap, clap. Overrated. Okay. And you watched it at the time as well, right? Yes.

Yes. But so, okay. So I'm not sure i agree because i think at judging it through 2020 lens for sure it built this foundation that all these other shows built upon and improved upon but that's like saying newton isn't important because we know more about gravity now well no joke but like you got to start somewhere um. And I think that the last episode of The Sopranos, even in 2020 standards, has not been beaten. Go. Okay. I'm going to say the last episode of The Sopranos is super solid. I agree with that. I agree with that. So here's the thing about all of this, the idolization of the Sopranos.

Number one, it is, okay. Oh, it invented the antihero. Really? Did no one see Godfather? Did no one see Godfather 2? Did no one see Goodfellas? Did nobody see Casino? I think that's different because i think how okay i think that

those were actually the heroes of the story i think the difference with the sopranos is you actually don't you're not rooting for him anti-hero is that they're still a hero i think the sopranos invented a new genre that um madmen may be built upon a little and that Breaking Bad took to its inevitable conclusion. You don't like the characters. But at the very end, are you not wanting Tony Soprano not to get whacked? I mean, aren't you wanting the New York mob to get what's coming to them? I mean, like, I mean, I'm watching it and I'm sitting there thinking, you know, just like when I watch Goodfellas amongst these cast of awful characters.

There are some that I want to see become made men and some that I want to see, you sort of say, OK, there's – unless you have the – from the beginning, the law enforcement angle to it, which is you've got the heroic cop who's cracking open the mob. But in a lot of these, the law enforcement, to the extent it matters at all, sort of comes in at the very end. Like literally in Goodfellas, it's the helicopter hovering in the air. the helicopter hovering in the air. But when you're walking through this mob world, you immediately adjust to it and you say, amongst these low lives, I hope low life number one beats low life number two. I mean, that's... I think what you're describing is more like when I watch nature shows and like it's the gazelle versus the cheetah. Like you're, you know, you may be sad that the gazelle is going to get eaten, but you're like the cheetah needs to eat too.

I think this is a different genre. I think it's, I think it is when you're watching a nature show, who do you want to eat the gazelle? The hyena or the cheetah? Right. So you've got the competing predators, right? So which predator do you want to win? And so you just sort of suspend all that. And when you look at it like that, like to me,

I felt like I was watching sort of a B version of Goodfellas every week, which is better than No Goodfellas at all. Like if I have the choice between Goodfellas and No Goodfellas or No Goodfellas and B-Movie or B-TV Goodfellas. You're also comparing The Sopranos to movies. Name a TV series that had really accomplished over years what you're talking about. And I think you're hard pressed to find one. HBO was sort of genre inventing during those years in particular quite a bit. I'm going to have a show. Okay. And you're going to laugh. I will. But you should not. Uh-huh. 24. Okay, still different. I think 24 was

different, but. You had a movie star. You had Kiefer Sutherland. You had the completely serialized drama of it. I think if, now the problem is it doesn't hold up from a tech perspective. And then later on, 24 kind of became a parody of itself. Like when Kiefer Sutherland's daughter is, you know, there's the terrorist and the terrorists and the terrorists. And then one of the episodes ends with a cliffhanger of his daughter being menaced by a random cougar. Wait a minute. No, it kind of jumped the shark a little bit but and then on another one um oh gosh uh nypd blue okay nypd blue but no now you're just naming tv shows that happen to also be good that's different that were better than sopranos that's

different like yeah i love law and order uh in fact, on other conversations that Scott and I had last night as we're falling asleep, he's like, top five TV shows of all time and like listed his. We're just not that couple where we have those conversations. This is a quarantine only type of relationship we're developing. But I was like, huh, I'd date that guy just based on his top five tv shows so i preferred miami vice in real time to okay you're just naming tv shows but the sopranos i think created a movie like narrative over the like with a plot arc over the course of years which hadn't been done before,

and which we have seen since taken to another level with Mad Men and Breaking Bad and The Wire. So we now started The Wire and that's his number one TV show. And I think the wire takes all that you're talking about and the sopranos aspects of the narrative arc for years and really perfects the genre i think is where i'm going to land on on all of this in hopefully not just a couple weeks when we finish the wire hopefully it takes us longer the sopranosranos is like NYPD Blue with a therapist. No. Like I remember when it first came out, like this was the big hook of Sopranos was,

what if a mob boss was in therapy? And like, I admit it hooked. Oh yeah, that's an interesting twist. Which turned out not to be a particularly important part of the plot also, which was kind of weird. Like that, there were a lot of weird cul-de-sacs in The Sopranos that detract from its overall effect. But I think it's worth ending on the ending of The Sopranos,

which was as near of perfect television as I think exists. So do you have a theory as to what it was? What's your theory about what happened one second, two seconds, three seconds after the black? That's the beauty of it, is that you have three people in that bar who they're Chekhov gunning you with. And then you have Meadow trying to parallel park the car,

a situation that at 18 or 20, whatever she is at that point, we've all been in. Like, come on. How does this? Geometry is hard. I am now, by the way, the world's best parallel parker, and I will dare anyone to beat me. I can can with three

points get within an inch and a half on both ends of the bumper like it's like nothing you've seen it's it is my art form um but that's what makes i don't need to guess at what happened that is what happened is that you as the viewer get the experience that tony gets which is it you never hear the shot that's they they, they were leading you there. They said that they said it multiple times and then Kaiser Soze like, boom. So your theory is he was whacked. Oh yeah. I don't even, I don't think that's a theory. Like they set it up through the whole thing. You never hear the shot. Yeah. I mean, I think that's highly possible. yeah i mean i think that's highly possible not up to interpretation really have the creator said he was whacked

i mean caleb can you fact check that let's do some real-time fact checking have the creator said he was whacked it doesn't matter because repeatedly throughout the series, they said you would never hear the shot. Mm-hmm. Yeah. No, I think that's incredibly plausible. Maybe even likely. Oh, David.

I've also thought of it as, okay, we just stopped telling the story. Nope. Story's over. You know? Series over, story's over. I don, we're series over stories over. I don't know what happened to Tony Soprano because we've just stopped telling the story. No. No. OK. But I continue to maintain that the Mount Rushmore of television.

It's nowhere near that. Nowhere near. The Mount Rushmore, Washington, Breaking Bad. Ugh. Ugh. Jefferson, Jefferson, Jefferson, Game of Thrones.

Oh, God. Lincoln, Battlestar Galactica, the remake, and Roosevelt is Arrested Development, first three seasons only. Yeah, there's a lot that's wrong there.

Breaking Bad, that's offensive to George Washington and everything that he did for our country. He went back to being a citizen farmer, David, and you're comparing that to Breaking Bad and all of its flaws. I mean, we're going to leave it there. We have to leave it there. I can't. Until next time. Until next time. I think my truth grenade, the truth shrapnel for my truth grenade has harmed Sarah here. Yes. I'm bleeding out. Until next time. I can't wait to read the comments, the comment section under this podcast, which will probably be 90 percent Sopranos dominated. But thank you, as always, for listening. And we will be back later this week. Bye.