Advisory Opinions - Did Congress Stretch the Commerce Clause Too Far? | Interview: Jonathan Karl

Episode Date: November 18, 2025

What does a federal firearm prohibition and a hate crime have to do with the Commerce Clause? Sarah Isgur and David French look at the constitutionality of two cases and whether the Supreme Court will accept a challenge to the law. Plus: Jonathan Karl, author of Retribution: Donald Trump and the Campaign That Changed America, joins the pod to discuss Donald Trump’s legal challenges during the 2024 campaign. The Agenda:—Ken Burns’ latest documentary—United States v. Lopez—U.S. appeals court upholds hate crime convictions—Reason: Is the Federal Prohibition on Felon Firearm Possession Constitutional?—The final act of the Trump Show—The New York indictment as Trump’s campaign stage We’re running a listener survey, which you can find at thedispatch.typeform.com/podcast. Show Notes:—Listen to our Dispatch Podcast interview with Jonathan Karl, Steve Hayes, and Declan Garvey Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger, still suffering from a cold, and that's David French. And we've got a fun show for you today. we're going to go back and do Lopez and the Commerce Clause because we've got two circuit cases to talk to you all about that are both Lopez hooks. And if you don't know about the 1995 case, US v. Lopez about the gun-free school zones, boy, are you in for a treat. Plus, we have special guest of the pod. Jonathan Carl from ABC News coming to talk about his new book, Retribution, which has lots of legal stuff in it.

because frankly, the last year, year and a half of our politics has had a lot of legal stuff in it. So, stay tuned for John Carl. When I think about the holidays, I picture those quiet moments, relaxing under a blanket with my family, the lights twinkling, just enjoying being together. And there's always that one person who's tough to shop for, but cozy earth has gifts everyone will love. It's the kind of present that doesn't just get used once. It becomes a favorite all year long. For me, it's about giving the gift of comfort, calm, and home. And that's exactly what cozy earth does best, with quality and coziness that truly stand out.

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Or would you rather focus on your argument? Type law can take your draft and exhibits and transform them into a court-ready, rule-compliant e-brief and appendix overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more at typelaw.com and use referral code advisory to save 10% on your first order. That's typelaw.com. David, before we hop into Lopez, I am watching the Ken Burns American Revolution documentary that is airing every night this week. And it is incredible.

Oh, I can't wait. I haven't started it yet. I cannot wait. Okay, the cast is amazing. These are the people who read the quotes. I mean, Tom Hanks, Merrill Streep, you have Paul Giamatti re-apprising his role. as John Adams. And for some reason, the whole cast of Homeland,

Claire Dane's, Mandy Patankan, and Damien Lewis are all there as well. Samuel L. Jackson, like, there's barely a voice you're not going to recognize. Matthew Reese, the actor from the Americans, is Welsh-born. And so he's going to read quotes from someone pretty important, too, in his original Welsh accent. Okay, but David, here's the part. that really sticks with me and feels very a.O. When we talk about the civil war, I think it's almost too obvious because of the regional differences and the near total homogeneity of the two regions, of which side you were on, to say if you were born in Alabama, you know, in 1840, we know what side

you were going to be on. There wasn't a whole lot of moral or character-defining stuff going on there. Very few people broke with their homes. And so it's not that hard to have intellectual humility to think, boy, based on where I was born, I might have been fighting on the wrong side of history, literally. The Revolutionary War is a little more interesting to me. First of all, yes, the majority are going to side with the patriots. But there's a healthy amount of people who side with the loyalists, the Tories, and I, I, I will just say for myself, like, what defined those people tended to be a fear of and hatred of mobs, democracy, riling-upidness, if you will.

And it's like, ooh, that strikes home a little bit. Now, on the one hand, I hate authority and I hate people telling me what to do. But on the other hand, I am also not a big fan of, you know, going where the mob leads and propaganda type stuff, and I don't know. I have a friend who swears he would have been a Tory. I'm not sure he's right about that, but I really appreciate him saying that because I think it should make us all kind of think to ourselves. I wonder what would have defined me more, this part of my, you know, personality, this part of my character, and which side I would have taken up for. Sarah, I have thought about this question so much, so much, because, yeah,

I thought, you know, if you've spent any time with history, you know that there was a strong Tory contingent. There was a strong contingent of Americans who did not want to rebel from the crown. And I have heard, you know, it's very hard to know with any precision, but I grew up sort of thinking it was more along the lines of one-third, one-third, one-third, and the one-third was the strong patriots from the beginning. Another third were people who were inclined towards the revolutionary movement, but very worried it was going to fail. So they were not early adapters. And then one-third or so was extremely all in for the crown. And okay, so Sarah, I know my disposition. I'm a patriotic person. I try to be a loyal person. And also, I really don't like bullies, really don't like bullies.

And how do you combine all of those things? And I don't like mobs. Yeah, but like, who's the bully in this case? Is Parliament the bully? Or are these, you know, patriots who are taring and feathering people, which is no joke, by the way. They're pouring scalding tar on you and burning all of your skin and then putting feathers on you, then whipping you sometimes. I mean, those sound like bullies for being a tax collector, which was legally authorized by the crown and by parliament?

This is my self-justifying narrative of how I would become a patriot as opposed to a Tory. So my narrative how I'd become a patriot is that I probably would have been extremely upset at things like the Tea Party or the tarring feathering, that that would have been, I would have considered that lawless, I would have considered that unjustified. And then I would have been double, triple, quadruple upset when the troops came. And the troops, the troops start being quartered in people's homes. The troops start sweeping through the countryside. That, you know, I've talked about, and I talk about with my students

at Lipscomb, I had a class on the philosophies of the founding where we really got into sort of how this thing kicked off because initially the response to the crown was really don't bully us, not, it was not let us become an independent nation. And only when the bullying just wouldn't stop. I mean, the Continental Congress from the First Continental Congress to the Second Continental Congress changed. And so I've talked about how manageable disputes can become unmanageable by excessive response. So that's my how I tell myself I would end up at Patriot, but there's another narrative where I would not have ended up at Patriot,

where, you know, depending on the severity of the tarring and feathering, depending on sort of the climate and location where I was, that would I have seen the intervention of redcoats as a sad necessity? I don't know. It's a very interesting question to ask yourself. And like you said, Sarah, it's a very different question from the north-south. Very different question. the number of people in the South who said no to the South, very small, very small.

George Thomas being the most, General Thomas from Virginia, the great Union General, the Rock of Chickamauga, is probably the most notable example of a Southerner who stayed with the Union Army. But this, the revolution, very different, very different. I think if I lived in Boston, I probably would have been an early adopter. But I also think I would have been like the first. Continental Congress, almost certainly believed that it was Parliament's fault, not the Kings. You know, the King is just getting bad advice. We really need him to intervene. You know, Parliament is full of morons who've never been to the United States. They don't know what

they're doing. They're causing this rift. And my loyalty, obviously, is still with the King. I think I would have followed that if I lived in Boston pretty closely in terms of like, Yep. First Continental Congress, we just want the king to intervene. Oh, then you sent troops and we had Breeds Hill, we had Lexington, we had conquered. Like, okay, now I'm done with this nonsense. Like, regardless, we are now of such a different character as a people than whatever it is you think you're doing, a break must be had. But, you know, you read some of the Tory writings. They're not crazy. They're actually pretty sympathetic. And I think that Stacey Schiff's book on Samuel Adams is like a must read because, and I'm not sure she intended this, but Samuel Adams is not a

holy good guy. And so you can't help, but read this and be like, if you knew Sam Adams and knew what kind of a manipulative bully, all the stuff he was, would you have been like, I'm not following Sam Adams across the street, let alone into what amounts to a world war. Okay, well, David, interesting. Now, David, I want to get to Lopez. As I said, this is a 1995 case, USV Lopez. Alfonso Lopez was a 12th grade high school student. He carried a concealed weapon into his Texas high school, San Antonio, for those who are curious. He's charged under state law with firearm possession on school premises, because obviously that's a state crime. But then the next day, the feds charge him with violating a federal criminal statute, the Gun Free School Zone Act of 1990,

that forbids, quote, any individual knowingly to possess a firearm at a place that is a school zone. He sound guilty in appeals. The decision from the Supreme Court is five, four, David, and it's basically the conservatives versus the liberals. You've got Chief Justice Rehnquist, O'Connor, Scalia, Kennedy, and Thomas, saying, no, Congress does not have the authority to criminalize bringing a gun onto a school zone with their Commerce Clause power as the hook, Stephen, Souter, Ginsburg, and Breyer saying, oh, yes, they do. I wanted to talk about this for a few reasons. We've got these two cases that I want to get to about it, but also because it's not obvious to me that that that 1995, very clear partisan ideological split, if you will,

plays out remotely the same way today. Now, maybe there's some horseshoe theory going on, some other stuff, but as you're going to see in these cases, it's not necessarily going to play out the same way. The argument from the majority goes something like this. If gun violence affects the economy, and that affects education, and that affects interstate commerce,

and that's how Congress is going to be able to have federal laws about guns and school zones, then the Commerce Clause is no limit whatsoever on Congress. Congress would then be able to federalize anything. There would be no separate police power for the states at all. So no. At the moment this happens, of course, many people think, OMG, we're bringing back the limitations of the Commerce Clause. Maybe we're even going to overturn Wickard v. Philburn that, you know, you know, wheat in Interstate Commerce Clause case, it's like, aha, a conservative Supreme Court is marching toward a thing. There's one more case called Morrison on the Violence Against Women Act, and that's pretty much it, and this whole thing is going to die. Except, David, we have two

circuit cases this week. One is going to be about a very famous murder that we talked about extensively on this podcast, the murder of Ahmed Aubrey in Georgia many years ago when we first started. The other one is going to be about 922G, that law criminalizing someone who has been convicted of a felony from possessing a gun. I want to start with the Ahmed Aubrey case. I know you remember this really well. Do you want to tell us the facts of this case? Yeah, the basic facts of this case. I mean, the facts of this case are awful. So there had been, the backdrop is that there's a neighborhood down in Georgia in which there had had been some break-ins locally, some people, both black and white, had been filmed entering

and kind of walking through an empty house that was being constructed. By the way, something I've done. I've lived in neighborhoods where they're building houses, and sometimes I'm quite curious, oh, let me look at this floor plan, and I'll just kind of walk into these houses under construction and take a look. But there were video cameras, and people had recorded you know, Ahmaid Arbery in there. Also, I believe, a white couple in there. But at one point, Ahmed Arbery is jogging through the neighborhood.

And a father-son combo, see Arbery running, believe he is a person that they'd seen on the video cameras, and grab guns and start getting their truck and start going after him, chasing him through the neighborhood as vigilantes. While they're chasing him,

a third person sees them chasing this individual and just, as he testified, instinctively, does what, gets his gun, gets in his vehicle? And a chase ensues, and it's horrific. They keep trying to block Arbery. At this point, who's done, you know, they're just thinking they'd seen him walking through an empty construction site, and they're chasing him with firearms. They're blocking him on public roads. And then finally, he scored a box.

Roxton, one of the three has a shotgun. Arbery tries to, you know, tries to lunge towards the shotgun, and he shot and killed. They are convicted of state crimes, but then they're also convicted of federal crimes. And in these federal crimes include violation of civil rights, include kidnapping. And what's important to the case is that they have to, as part, as part of the element of the crime, they had to have used the channels of interstate commerce or the instrumentalities of interstate commerce and to be looped into federal jurisdiction here.

And so this is bringing Lopez back into this question. All right. So in the federal kidnapping statute, 1201A1, you can show that it's federal kidnapping in one of three ways. First, a defendant violates the statute of his kidnapping victim is willfully transported in interstate or foreign commerce. That obviously does not apply here. Everything took place in Georgia. Second, a defendant violates a statute if he travels in interstate or foreign commerce during the offense. Also did not happen here. The victim nor the defendant's

traveled in interstate commerce. A defendant violates the statute if he, quote, uses the mail or any means facility or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense. The majority in this 11th Circuit opinion is going to say automobiles, like Travis's truck, are per se instrumentalities of interstate commerce. This is the categorical approach, David. It's a little bit weird because while it's very in line with the majority, like the vast majority at this point of circuits. In fact, the third, fourth, sixth, seventh, ninth, and eleventh, all agree with this categorical approach that if you used a car in kidnapping someone in the state that you can get charged with federal kidnapping, it's a little

bit weird, David, because you can use, I mean, you probably do use a car for almost any crime you could possibly commit. So can Congress federalize every state crime if you used a car or a cell phone, also something that is part of interstate and instrumentality of interstate commerce? Now, their arguments aren't crazy at all, right? That it's not instrumentality in interstate commerce. It's instrumentality of interstate commerce. And cars are that. They allow you to travel interstate. Cell phones allow you to talk to someone out of state. All very easily. Boy, there is no limiting factor. And the Tenth Circuit has broken from this. They've said it should be case by case. And there's a dissent here in this 11th Circuit case. It's interesting, David,

this is a district judge sitting by designation. We haven't talked a lot about this. We've talked to, you know, there's district judges, there's circuit judges, and there's Supreme Court justices. But actually, it's not quite as clean as that. You can have Supreme Court justices, especially senior justices, sit by designation on the circuits. You can also have district judges sit by designation on the circuits. And in this case, we have two circuit judges. And in this case, we have two circuit judges and one district judge. The district judge is dissenting on this part. She's a former federal public defender, which I think makes this kind of interesting. She was appointed by President Biden, and this is what I mean by that sort of 1995 ideology doesn't look the same as

2025 ideological differences, because she's the one who's going to say, this can't be the Commerce Clause anymore, the liberal, so to speak, on this panel. And it's the conservatives, judge Lisa Branch and Judge Britt Grant, who are like, nope, categorical approach. The car, instrumentality of commerce, no problem. The district judge, by the way, makes this argument about the 2006 amendment to the kidnapping statute that adds this instrumentality of interstate commerce language. And it's basically like that amendment can't possibly mean all cars. So sort of no matter what way you look at it, constitutionally, this would be too,

brought, it would not limit the conference power at all. And then statutorily, the text doesn't really make sense because of how this amendment was added in 2006. And you've got Lopez, which is clearly meant to limit the federal government's intrusion into state police power. That's why they strike down the gun-free school zone. And in fact, in Lopez, they have a three, the substantial effects test, which, by the way, Justice Thomas hates, lots of conservatives, sort of hate, but whatever. The substantial effects test is that the regulated activity must be economic in nature. In Lopez, they basically say there's three categories of Commerce Clause regulation. One, channels of interstate commerce, highways, waterways, etc., instrumentalities of

interstate commerce, things that are in commerce and activities that substantially affect interstate commerce. This, of course, has the substantial effects test that Justice Thomas and many others hate. Because this gets to your like, how attenuated can it be? A little attenuated? What about a lot attenuated? That's the gun-free school zone problem. When you get to that per se instrumentalities rule, there's just no limiting factor. So David, this is my Lopez case number one. The Tenth Circuit already said no. Can't be per se. You have to go case by case. This is a descent in the 11th Circuit. Do you think this has any legs? I don't think it has any legs. I don't think it has any legs, to be honest. The question is, will it have legs? It's different from should it have

legs. And I don't think it will have legs. I think in part because if you are talking about an instrumentality of interstate commerce, and you're looking at the exact facts of this case, what is as an instrumentality of interstate commerce, few things are going to be more of an instrument of interstate commerce, something with wheels, that routinely drives across state lines. And so I think that from that standpoint, it's just an exercise in futility to think the Supreme Court's going to intervene here. Because we talk all the time about how facts really matter in cases that the Supreme Court is going to take. And the facts of this case involving if the very concept of an instrumentality of interstate commerce has validity at all, it would apply

to automobiles or airplanes, for example, this would be the paradigmatic object. that this would apply to. And I don't necessarily think this court would be willing to eliminate the instrumentality of interstate commerce concept entirely so much as they might be willing to limit its scope. And this would not be the case that would do that. Yeah, I mean, maybe another way to look at this is what Congress is allowed to say is that you can't use airplanes and cars to kidnap someone even if you don't manage to get across state lines to do it because it's clear that cars and airplanes are made for traveling federally and on those channels of interstate commerce. Yeah, I just totally disagree. To me, it seems pretty obvious that if you allow

cars and cell phones to be instrumentalities of interstate commerce, the commerce clause has no limitations whatsoever. So you think they will potentially take this case? The Supreme Court will potentially take this case? So we're in agreement, in other words? Horrible, horrible agreement. Because this is a bad. vehicle to do it. They didn't challenge the constitutionality of the federal kidnapping statute. They just challenged the applicability of it to this car. I mean, if you didn't challenge the constitutionality, I don't really know what we're doing here. Also, not my favorite vehicle to challenge the constitutionality of this, given the crime itself. The Supreme Court doesn't have

to take the case, right? They can just wait for a different one where the facts are less egregious. But, yeah, I hate it, and I think it bad, David, bad, bad. Well, I would say this. I think that what we're dealing with, what we're still dealing with in these kinds of cases is the legacy of Jim Crow. Because one of the things that led to the expansion of federal criminal law was the total failure of state criminal law during the civil, before the civil rights era. And so I think that's what we're when you're looking at a lot of the expansive reading of some of these civil rights criminal cases, expansive readings of the interstate commerce power applying to federal criminal law, what you really are dealing with is the legacy of the absolute failure of the justice system in the South. And a lot of statutes and case law generated as a result of that absolute failure is sort of a hail Mary to try to preserve a rule. of law in the United States of America. Well, now we're not in a situation. I'm not going to say that every local state jurisdiction is fair. I've spent too much time in local state jurisdictions to say

that. But as a general matter, you don't have the same kind of complete collapse of criminal law and rule of law as you had 40, 50, or I mean, as you had 60, 70 years ago. But we still have the legacy of all of that. And so that's how you have a lot of cases, Sarah, that we've seen, where there's a state prosecution that's successful, they're convicted, and then we have a federal prosecution that's successful and they're convicted, and it's two separate statutes with two separate kinds of elements of the crime,

but one of them rooted mainly in Congress's Commerce Clause power. It's, I don't know that we'll ever untangle those. I don't know what the long-term, consequences going to be, the further and further we get from that reality. But that's why we have this particular system right now. All right. When we get back, we'll talk about my other Lopez case. This is coming out of the fifth circuit. Friend of the pod, Judge Willett, has a concurrence on firearms possession 922G. It's back. What if you could give a gift that keeps your favorite holiday moments alive, not just once a year,

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And David, he's going to challenge this as being unconstitutional under Brahimi, as David Ladd has dubbed it, the Supreme Court's Second Amendment rules, text history and tradition baby. the Fifth Circuit is going to dismiss this entire idea in less than one page. However, Judge Willett, joined by Judge Duncan, has a concurring opinion. I'll just read you from the top here. Like every congressional enactment, a federal criminal statute must satisfy two constitutional demands. First, it must rest on one of Congress's few and defined powers. And second, it must respect the many constitutional provisions that secure individual rights

against government intrusion. I am not certain that the statute under which Arnett Jackson Bonner was sentenced, 922G1, meets either requirement, at least as federal courts have interpreted it. If it does not, then the offense created by it is not a crime, and a conviction under it is not merely erroneous, but it is illegal and void and cannot be a legal cause of imprisonment. Even so, while I harbor doubts that 922G1 is constitutional, I have no doubt about what our precedent requires. For that reason, I join the majority opinion, which faithfully applies controlling authority to reject. each of Bonner's challenges. I write separately to highlight two ways in which our jurisprudence may have strayed from first principles. And then David, he's going to go on to talk about drumroll Lopez. It is difficult to see how 922G1 honors the principle of enumerated powers.

In USV Lopez, the Supreme Court identified three broad categories of activity that Congress may regulate under its commerce power. Channels of interstate commerce, the instrumentalities of interstate commerce and those activities having a substantial relation to interstate commerce. Mere possession of a firearm fits uneasily within any of these categories. The closest candidate might be activities that substantially affect interstate commerce. After all, some have argued that widespread firearm-related crime has a substantial effect in the national economy. But whatever the effect of such widespread crime, the economic consequences of Bonner's individual act of possession is hardly substantial. At best 922G1 can meet the substantial effects test only by aggregating

the impact of all firearm possession by felons. Yet aggregation is ordinarily appropriate only when the underlying activity is economic and firearm possession is not. As the Supreme Court explained in Morrison, that other case, the only other case, David, about Commerce Clause from the 90s, the Constitution requires a distinction between what is truly national and what is truly local, and it is indeed hard to imagine a more local crime than this. So, David, what about this? What about the paradigmatic federal gun crime? Felon in possession, 922G1.

This isn't in possession of a gun while you're using drugs. This isn't in possession of a gun when you were convicted of tax evasion 20 years ago. This isn't possessing a gun when you were under a domestic violence restraining order that was not given criminal due process. This is the heartland of 922G. It's how, I don't have the numbers in front of me, but I would, it's certainly the plurality of federal cases that exist that are brought by federal prosecutors is 922G.

It is the whole kit and caboodle of federal crime right now. Yeah, so I think if you are in a situation where 922G, Let's draw a distinction between evaluating 922G right after it's passed and not evaluating 922G now. Because I do think that what you're going to be getting into in some of these arguments about originalism, do you remember how I used the term dorm room originalism some time ago, which is sort of, and to refer to what I meant by dorm room or originalism is, that is essentially originalism without stare decisis. That's what dorm room originalism is. In other words, you just walk in and you say, what is?

the originalist position here, devoid of any and all other context. And then it's the job of the court, then, to implement the originalist vision, devoid of any in all context. And that circumstance, I don't think that 922G would have a ghost of a chance, that if you were just sort of looking at it

from a fresh slate, that there would be really any sense that 922G would be, but much of Commerce Clause jurisprudence, Sarah, is not what you would call originalist in any recognizable form. But then that gets to, okay, what about stare decisis? How much are we going to walk in and sort of unring the bell of federal regulation, unring the bell of federal criminal law?

How much are we going to completely sort of disrupt the operation of federal law enforcement and federal economic regulation? that's where I think just brass tax becomes, look, if we were writing with the blank slate, this would not have been constitutional. We're not writing with the blank slate. There are consequences to our decisions. We're not going to unwind the federal criminal legal structure. We're not going to unwind the federal economic regulatory structure.

So I wonder, you know, this is, again, one of these will versus should. and I don't think that they will take a second look at this. I'm not sure that they should take a second look at this because I do think that there are stare decisis elements that come into play here, that I'm not sure it's the role of the court to just step in, decide sort of from the platonic form of originalism, and then just steer all of American law into that direction.

Interesting. Interesting to mention stare decisis, because which part of the stare decisis factors are you thinking about? They're sort of like, is it wrong enough? Was it based in something? You don't mean reliance interest, I assume. Well, I mean, I don't necessarily, when I think reliance interest, I think much more reliance on behalf of individuals, not the government.

Right, the defendant. Yeah, yeah. The government doesn't get the benefit of reliance. Right, exactly. But I think about with story decisis, you know, we've talked a lot about story decisis. And it's funny, one of the great joys of having law student kids is we get to, like, talk about stare decisis. And I was having a fun conversation with Camille about story decisis. And I said, I'm a little uncomfortable with the statement that story decisis is about preserving wrong precedent.

I think stare decisis is much more about how large of a zone are we giving to debatable precedent, which is a difference between. So I don't think of law. And I think if you've listened to this podcast, I don't think that the way you think about law should be that there's clearly, there are some decisions that are clearly wrong and there are some decisions that are clearly right. And there's a lot of decisions that are quite debatable in gray. And I think that for me, stare decisis is how much do you defer to the grayness of it and how much, how large of a zone of gray. And so to me, stare decisis is dealing with the, doubtful precedent, not the wrong, clearly wrong precedent, but the doubtful precedent. And that's when you begin to get into what are, okay, what are consequences, what are the practical realities and effects of overruling doubtful precedent. And so I think of it much more on a spectrum, not a black and white, when am I going to uphold something that I believe to be wrong,

much more like, when am I going to uphold something that I, if I was looking at it in first depression, I would say this is wrong, but it is a doubtful. It is a tough call. It's a tough case. It's maybe a different way of thinking about this. Two things. One, don't revisit things that you're not sure we're wrong. Like, it's a revisiting question. Maybe if you had the case in front of you and you had to go through all the things to really think about how you'd come down, your back of the envelope calculation right now is like, I don't know, it'd be close. I think it might have been wrong. But you don't even need to revisit it. That's part of stare decisis. And second, the difference between methodology and outcome.

There's no question that the methodology used would be different now in a bunch of these Commerce Clause cases. Although, funny enough, Commerce Clause is one of the areas where originalism really did flex pretty early. But, you know, as we talked about, the conservative legal movement is both the Commerce Clause, FDR side, big government, federal, you know, doing everything part, and the progressimism side, unelected bureaucrats, exercising power. Those two are animating principles that the conservative legal movement pops up to fight against. So Commerce Clause is one of the animating principles, but nevertheless. So it's like the revisiting side, you know, if you think something was egregiously wrong,

then you should revisit it. If you're not sure, or it might have been wrong, or whatever, like, just don't even dig in. Don't open that can of worms, that's stare decisis. And the second part is, just because a different methodology was used. And you think it might have been wrong. And if you used a new methodology now, you would come out differently. That alone is also not a reason to revisit. Does that sound like what you're saying, David?

That's tracking the way I'm thinking about stare decisis. and also think it tracks, so if you're looking at, for example, Dobbs and you're looking, one of the things that we have said a million times is there's just never been anything like an originalist argument that Roe was properly decided, and then the reliance interests are just completely different. And then it's one, but there's a reason why the court said so very clearly, and Justice Alito said so very clearly, this case is just different. This case is different from Obergefell. This case is different from many other cases in which there had been an originalist minority that had dissented, say, in Obergefell. And still they're saying

this case is different. Now, in that case, Obergefell, it's almost certainly because of the reliance interests. But I do think that the court looks at different. I do not think that the court looks at every single case or anywhere close to a majority of the court at a blank slate and says, what is the originalist answer here without regard to all that came before? And that's just not how they do jurisprudence. All right, David, when we get back, we're going to talk to John Carl from ABC News about his new book, Retribution. Buckle up, folks. I was recently talking to some of my mom friends about life insurance. We were thinking about our loved ones and what would happen if we weren't here. Life insurance gives me the confidence

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By doing so, we can create lasting change. If you don't smoke, don't start. If you smoke, quit. If you don't quit, change. Visit unsmoke.ca. Jonathan Carl, thank you so much for joining us. Hey, it's an honor. Thank you for having me on the podcast.

Now, look, this is your fourth book in kind of a series, if you will. We started with front row at the Trump show, betrayal, then tired of winning, and now retribution. You've been busy. Yeah, it's, you know, we're about five years, almost six years since the, the first book. When I set out to do the first book, it was definitely not to be the first part of a four-part series. It was definitely to be a one and one only. And the second book I wrote was called, the subtitle is important because it's betrayal, the final act of the Trump show. So, anyway, yeah, it's been a process.

Now, retribution obviously comes from Donald Trump's campaign and his presidency, but more than that, it comes from the phrase come retribution. Will you history nerd with us a little bit? Yeah, yeah, of course. Yeah. Com retribution, there's a book actually called Come Retribution, which is about the Confederate plot to kidnap or assassinate Abraham Lincoln. And it was, it comes from what was the code word for the Confederate Secret Service in discussing this plot. and I didn't know any of this, by the way, even though I've spent a fair amount of time covering, you know, and reading about, I didn't cover the Civil War. That was before my time. But it was Steve Bannon who referred to that first speech where Donald Trump uses that phrase, I am your retribution. It was actually at CPAC. It wasn't his Waco speech, but it was at CPAC, you know, a couple of months after he announced he was running for president for the third time. And Bannon kept on referring to it as the come retribution speech. And he kept on saying it, kept on saying it. And then I found the connection and I asked Bannon and he's,

oh yeah, that's what he meant. I mean, not in the case that he was like, oh, you know, that we're trying to assassinate Abraham Lincoln, but it was about, you know, the South's feeling that they've been aggrieved by the North and they wanted to get back at it. So anyway, but yes, come retribution. Okay, so this book is really meant to trace Trump's campaign, well, the 2024 campaign. You have a lot of reporting on Biden and Harris as well, and the very first part of Trump's presidency. And so why are you on a legal podcast, some might wonder? Because as I read this and as, you know, we looked back on this, this was one of the most legal presidential campaigns in American history that turned on so many legal questions and decisions in the Department of Justice, obviously playing an

enormous role. Donald Trump had four different criminal indictments brought against him, two from Biden's Department of Justice, one in New York, one in Georgia, as we know. And so that's going to be interwoven through the entire narrative, really, from start to finish. And in fact, it's where your book starts is Donald Trump sitting in that courtroom in New York? It's both where the book starts and where it ends because it also goes into when Trump wins. I spent a great deal time on the transition and the effort to wrap up Jack Smith's cases and those attorneys that are representing Trump during the transition who then take over the Justice Department. So we can get to that. But it starts, the first chapter is the felon and the frontrunner.

And I spent a fair amount of time in the courtroom in New York for the one and only criminal trial. You had the four cases that led to indictments, but obviously there was one criminal trial. And I was in that courtroom at 100 Center Street. You guys have both been there, I assume, in southern Manhattan. It's a beautiful old building that is quite decrepit because it hasn't been gotten a good cleaning probably since it was built in the in the thirties um i described kind of walking into that place and the first thing i noticed was a big old rat trap you know one of those black plastic traps right right right by the entrance and then signs in the hallways that say danger because

there's asbestos removal going on um the flickering fluorescent lights the dirty marble um the elevators that only occasionally worked anyway that's where trump had to go every day um for about six weeks every four days a week, no trial on Wednesdays. And, you know, he used that, as you remember well, he used the hallway outside that courtroom as his campaign stage. But more importantly in that, because we saw all that play out. It's the way that experience solidified in his head what he had said months earlier about I Amier Retribution. He was seeing an election where, I mean, the stakes couldn't have been higher for him personally, he either faced the real possibility of prison or at least spending the rest of his life staying out of prison or getting elected

and seeing that all go away and becoming, thanks to another, to a Supreme Court decision in part, but not only becoming the most powerful president of our time. So a quick question about this. You know, one of the things that I've long thought is that this first case against Trump was set the tone for all the cases that followed in the most unfortunate way possible, and that this first case against Trump was the weakest by far. You had, for example, on this podcast, Sarah and I were completely united that this was a case that would not have been brought against anybody else. You had legal commentators across the political spectrum saying this thing shouldn't have been done. It was weak. It was trying to bootstrap a

misdemeanor into a felony. This was a bad case. How much in your reporting did this matter at all sort of to the narrative that flowed out from the other indictments when you had the Jack Smith indictments, which were undoubtedly far superior legally to the original New York indictment? Or did it just not matter at all? He could have been indicted. New York could have indicted him or not indicted him. Jack Smith could have been the only guy with the best possible case. but it still wouldn't have mattered, or did the New York case, in your view, set kind of a tone for how the public viewed, especially the GOP public viewed all the cases that came after? If you really wanted to see Donald Trump held accountable for his actions, this was the

worst possible scenario. A case, as you say, of weak legal grounds, also not making much sense in terms of the public understanding of it. I mean, what does he be? being charged of he like hush money to a porn star but he's not being charged with the hush money that's not illegal it's how he accounted for it and it's i mean what i mean it just it just didn't make it didn't make a lot of sense so it it made it very easy for don't trump to get up there day after day and say that he's the victim of a witch hunt it's like look they're they're making me do this because of an accounting because i called a legal expense and a legal expense you know he's not entirely wrong in that? I mean, it wasn't really a legal expense, but

I mean, that's what we're talking about. Meanwhile, you know, you had the classified documents case, which is the one that they feared the most, you know, where Trump is taking the nation's most sensitive military and most sensitive secrets, national security secrets, to his home in Palm Beach, Florida, leaving them scattered all all around and in ballrooms and bathrooms and storerooms, talking about sensitive matters that were clearly classified to campaign advisors, to all kinds of people. You know, an Australian cardboard magnet is hearing Trump go on and on about, you know, these classified information about nuclear submarines.

And that guy then is sharing it with a whole bunch of other people, Australians and journalists and all. Anyway, this was a very damning case and the public got to hear not one whit of it outside of, you know, the indictment. That never went to trial. January 6th, more difficult case perhaps, but also a much more damning set of facts never gets to go to trial. So this is interesting. Okay, here's the two things David and I agree on. We both agree the New York case, the worst case to go first and really, to me, undermined the rule of law. This really was weaponization. They would not have brought the case but for Donald Trump running again, in my opinion. Like, they really did find the man and go search for a crime

in that case because they had tried so many other things they thought he might have done. Okay, David and I also both agree that the classified documents case, strongest case by far. No question. Where David and I start to diverge is on that January 6 case. And it's also where you have a lot of great reporting about what took so long as they had various leads of things that I think I would have said were then much stronger slam dunk case that fell apart. Will you tell us about some of that reporting? Yeah. I mean, look, on the January 6 case, actually on both of those cases, but particularly the January 6th case, Merrick Garland is the one that you hear so many Democrats blame

for the fact that Trump has never actually brought to trial. Merrick Garland was too slow. Merrick Garland was too plotting. It was actually kind of funny because, you know, I was just talking to Bill Barr a little while ago, and Trump always said Bill Barr was too slow. Someone's, I guess, justice moves a little slower than people would like. I think there is an argument, and I...

present the facts on this in the book, that Garland actually is, was unfairly criticized on this. I mean, perhaps, I mean, perhaps you could still say he went too slow, but the, but the argument that is made is not accurate. The argument is made is that, is that Garland waited, you know, way too long before trying to investigate Donald Trump's role in the attack on the Capitol and the effort to overturn the election. You know, we spent all this time. you know, on the, on the people that were in the protest, on the people that went into the building, you know, the 1,500 that ultimately get, uh, uh, they get prosecuted. Um, but he did, you know, he waited way, way, way too long to actually look at the guy that instigated

the whole thing. Well, it's not true. Um, and as you know, Sarah, as somebody who has worked at the Justice Department and taken a lot of annoying questions from reporters like me asking for information about ongoing investigations that you cannot confirm. Actually, what I learned is that very early on, Garland was investigating Trump's role, and he was investigating what would have been the real smoking gun. Did Donald Trump have any direct connection with those guys in body armor that attacked the Capitol? Did he have any direct connection with the proud boys and the oathkeepers, the militia groups that really spearheaded the violence. And there were various theories, and there were, there was all this talk about

the war room that was set up at the Willard Hotel and, you know, where you had folks like Bannon and Roger Stone and they actually hate each other, but they were all there. And were they coordinating with the people that were, you know, marching up on the Capitol? They spent a lot of time investigating that. And then they got, they got a tip, which had never previously been reported. They got a tip that Dan Scavino, Trump's longest serving aid in the White House, his former golf caddy, somebody had been with Trump forever, Deputy Chief of Staff, that Dan Scavino had set up a meeting in Las Vegas. It was a very specific tip. In Las Vegas, shortly before the election, 2020 election, between the leaders of the proud boys and Trump.

And it was a secret meeting. So they spent a lot of time looking into this. It was bogus. No evidence whatsoever came up. Trump was, in fact, in Las Vegas. That was the one thing that was true. But all his movements are accounted for. There's no evidence that proud boys had anything going on.

There's no evidence whatsoever that such a meeting went underway. But that's what they were looking for. Was there something tying Trump to the violence? And after months and months and months and months and months of investment, investigating it, you know, the investigation went into other areas. But that would have been the most damning evidence and the easiest case to make. You know, it's also interesting because Garland gets blamed for the delay on the front end as if the thing was about to go to trial two seconds later. Like as if we'd move the timeline back one year, you know, Garland cuts out a year on the

front end, then Trump would have gone to trial on those federal charges. Another piece of your reporting that I thought was spot on was you have a quote from someone saying, we were were at least two years away still. Yeah, yeah, absolutely. So Garland, in other words, is not, doesn't even blame the slow-moving Supreme Court, the people around Garland. I mean, this is, you know, this was going to take a long time. And given the Supreme Court decision, there were going to be at least two more cases that were going to have to go to the Supreme Court. This was the view from Garland's team. You know, because they re-indicted, they white, they, you know, airbrush the indictment, whatever term you have, they changed the indictment.

It's the same charges, but different narrative. Different narrative. So to comply with the immunity decision. So as this went forward, there was certainly going to be a challenge to that, and that challenge, they believe, was ultimately going to go to the Supreme Court. That was going to take a long time. And there was also going to be a challenge to the appointment of Jack Smith as the as the special counsel in the first place. After all, Elaine Cannon, you know, had said it was an unconstitutional appointment.

So that was going to be challenged. That was likely they believed to go to the Supreme Court. So he had two separate Supreme Court decisions that were going to have to play out arguments, decisions, all that stuff before this ever went to trial. That's why they say it was at least two years away. You know, what I think is really helpful about that reporting is that when I read the indictment,

the first one of the first thoughts I had was all of this stuff in the indictment, Jack Smith had this this was stuff known well before the indictment was brought like as early as early mid-22 as I read that indictment about 90% of that stuff was stuff we knew

in late 2021, early 2020 but when you talk about that there was additional leads that were needing to be chased down that makes a lot of sense as to why something would be brought later and one of Serenized theories was

this case, there was no scenario in which these cases were going to be brought to trial before the election. Immunity decision or not immunity decision. There was just no scenario where these things were going to be tried before the election. But one thing that I'm very curious about is as you're moving through the election process and you're moving through the campaign into the transition, at what point was it, did it solidify and become concrete that Trump was going to pardon everyone affiliated with January 6th. It wasn't just that we're going to see dropping of the charges against Trump, which everybody knew that was going to happen if Trump won. But when were we going to, at what point did it become very clear that all of the January 6ers were going to be

pardoned, granted clemency, etc. When did this become clear? I think I can pinpoint that almost exactly. First of all, it was entirely unclear going into the election and in the immediate aftermath of the election. In fact, you know, J.D. Vance famously went on television and said that, well, you know, we're not going to pardon the guys that attacked cops that beat up cops or that, you know, broke into the building. We're going to, you know, we're going to pardon the people that, you know, might have walked in because they were part of the crowd or whatever. He made it clear that this was not going to be the violent offenders. That's what he said. And it was interesting. I went back to that. I mean, we all remember, I mean, you guys remember, I'm sure when,

when he said that, and it seemed to make sense. It seemed like that was not a controversial thing. You know, I mean, we're not going to, like, pardon somebody that beat the crap out of a police officer, for God's sake. But Vance got pilloried. He got hammered in social media from the kind of hardcore MAGA rights, the people that had been the advocates of the so-called J-6 prisoners, J-6 hostages, whatever.

You know, how could he say this? and their part is everybody had to be pardoned because even those that beat up police officers, they were provoked to beat up police officers. So it's not their fault. We have to look at the root causes of why they beat up those police officers. I mean, this sounds nuts,

but this was a real view of a lot of these people. They viewed it as self-defense, that the rioters were engaged in self-defense. Yeah, I've seen all this argument, yeah. Yeah, they were being attacked by the police officers and they were basically fighting back. So, you know, Trump certainly sees J.D. Vance's, the way he's get hammered to it, and J.D. Vance does this very awkward kind of, well, no, I didn't mean this,

and I didn't mean that. And, of course, and nobody's been more active on the cause of the J6 prisoners than me. And, you know, he really tries to walk it back. And then in January, Trump has a call with, he's actually with Charlie Kerr. and a couple of other people at Mar-a-Lago, and he has them call a woman named Julie Kelly, who you guys probably know. Julie Kelly has been kind of the real activist on this issue.

She wrote a book about January 6th, and she was the one that actually first recorded, the very first version of the National Anthem sung by the J-6 prisoners. I mean, she is there like, this is her cause more than any single individual. So Julie Kelly, Trump gets, you know, has them get Julie Kelly on the phone. I think it's actually Charlie Kirk. It's in the book.

Charlie Kirk is the one that arranges the call, puts her on speakerphone and, you know, asks her, you know, who she thinks he should pardon. And actually, not even Julie Kelly thinks that every single one of them should be pardoned. she thinks all the guys that beat up cops should be pardoned don't get me wrong and it's not those guys but she has this kind of formulation that those that were violating parole to be there that there's a it's a very esoteric subcategory that she thinks maybe you don't give a full pardon to them but basically it's everybody and uh and trump spends time with her and says well i'm going to make you um can make you very unhappy uh julie because i'm going to put you out of war because her entire like career now has been like the advocate of these things and he's basically saying you're not going to

have a job anymore because they're all going to be free so it's at that point the data is in the book i think it's like january 10th or 11th something like that it's it's it's right before uh he comes in that he basically makes the decision uh we're going to go all in on this now there was some suggestion that because Biden issued his very controversial pardons on january 20th at a 11.34 a.m. You guys know noon is roughly when we do this transition, that he's going to pardon all his family members and their spouses, all his siblings and their spouses from any crimes they may or may not have committed

over the past, you know, several years. That that made Trump angry and, you know, made him decide, well, I'm going to go all in and do, but no, but the cake was baked here before. By the way, that pardon is a very interesting one that I get into, the last Biden pardons. This is after, you know, he pardons Hunter in December. He does the pardons earlier for Anthony Fauci and the January 6th Committee and Mark Millie and all of those earlier. This is right at the end. And it's, I report that it was against the advice of his political advisors and absolutely against the advice of the White House counsel.

and the decision to do the pardon actually comes as a surprise to Biden's inner circle. He does it. And there are so few people left working in the Biden White House that there's a real question that there's a scramble to get it out. Do they still have access to their computers? You know, because everything starts to get shut off. And it was a real kind of a white-knuckled scramble for the last. There were two people left in the White House press office.

for instance, how do we get the press announcement out on this and release the pardons? I mean, they obviously did. I think they had a little help from the auto pen in terms of the actual signing of the pardon, which, as you know, pardon doesn't actually need to be signed, so that doesn't really matter. But anyway, that, I mean, what a case. We could do a whole separate book on the, on the pardons of January 2025. And in fact, my favorite maybe piece of the whole book is the little vignette you do of the two people who rejected their pardons from Donald Trump. And the history of rejected pardons, you go back to Andrew Jackson, a man there who was sentenced to die. And Jackson pardoned him. He rejected the pardon and gets put to death by rejecting the pardon because the Supreme Court's like, yeah, sure, you can reject it. It is an act of grace that can be turned away. And John, I was really counting on you to find the reason why he rejected that pardon from Andrew Jackson.

But no. It's entirely lost to history. I spent a great deal. But it creates a Supreme Court precedent that you can reject a pardon, you know, because it wasn't clear because this is something that has been granted. And the president has an absolute power to pardon somebody. But the Supreme Court, it was, it was Justice Marshall. You can summarize the opinion better than I can.

You know, it says that this is actually an act of, you know, it's an act of grace, an act of, you know, it's a gift that can be rejected. basically. And there's a woman in Idaho who had been nicknamed the Maga Granny because she was a grandmother who came to the speech on the ellipse on January 6th, a total Trump supporter. She was, I think, at the time, 67, 68 years old, something like that. And she follows the crowd up to the Capitol. She ends up being with the proud boys when they breached that first barricade on the west front. She goes into the Capitol. She actually live streams it on, I think it's Facebook and YouTube, very, very tech savvy grandma. And she gets, you know, she's broken the law. But in the

course of it, she gets kind of pushed around. And a Capitol police officer actually, pulls her out from the crowd and she thinks that this guy has basically saved her life. So she has a very, she never committed any violence and she feels that the Capitol police that day acted as heroes. And she said that she never intended to break blood. Anyway, she gets charged. She gets sentenced to four months in prison, sent to a notorious prison in California. All women's prison has now been closed. While in prison, Tucker Carlson takes up her cause. She hears about it a little while later when somebody visits her. Um, she doesn't really like that. She's like, I don't really, I, you know, I, I feel like I, I did break the law. I'm serving. But she's, you know, she's still very much a Trump supporter, but starting to get some second thoughts. By the time, you know, fast forward to the pardon happening, she's full on thinks that she acted totally wrongly and that the sentence was entirely justified. And that if she accepts the pardon, that she is accepting the re

right of history of January 6th and suggesting there was nothing done wrong. So, you know, she, she asked, but it takes her months. It takes her months to find out how she can reject the pardon. She asks a professor, you know, that she knows. She hears that there had been a situation where Susan B. Anthony, the Susan B. Anthony, is it, the library museum had rejected a pardon on behalf of Susan B. Anthony that actually Trump had given. And so she tries to, you know, how can you do this? So she finds, she gets some advice. Finally, the Republican senator, one of the Republican senators, Jim Rish, takes up her cause,

presents it to the pardon attorney, and she gets her pardon nullified. You have this footnote also about the other guy who rejects his pardon, Jason Riddle. And in rejecting the pardon, here says, quote, just because the guy who started the riot says it's okay, it means absolutely nothing. That's a pretty, that's a, that's a neat thing to say. Okay, John, there's so much more we could have gotten to the Jack Smith report stuff and the process by which that comes out. People are going to have to read the book for that because I think it's really interesting about Todd Blanche and Emil Bovey who's there. Here's the part that I think is the metaphor. It's the phone in the limo on a

inauguration day and the difference between Trump as he's inaugurated in 2017 and Trump as he's inaugurated in 2025 and what that phone means and what it has meant for the last nine months of this presidency as you know there's headlines in the New York Times about what's going on at the Department of Justice and you've asked me on air many times the difference like what's going on now versus what was going on then. And that phone to me, it just spoke to me as this was the metaphor. I mean, first of all, this is the limousine ride, the White House, the Beast, where the two incoming and outgoing presidents take that ride from the White House

up to the Capitol for the inauguration. So Trump and Biden in the limo for that 2.1 mile ride. I knew when I was going to be writing this book that I would want to find out everything I could find about what was going on in that limo. It was not easy, and I did. What really triggered my interest, just, I mean, obviously, just the fact that two of them are together in a closed car is wild. But if you remember, when they came out of the White House, because there's a reception in the White House that Biden has invited Trump to, they come out of the White House, all the cameras are rolling, every camera, every network is carrying it live. Biden gets in the right side passenger seat.

Trump walks around to the left side and then gets in. And as he's closing the door, you can kind of, you see there's a tinted window, but you can see a little bit. It looks like he's picking up something and going through it. And it looks like it's his phone and maybe he's texting somebody or what is he doing. So I just wanted to know what the hell was going on. And what I found out is that when Biden got into the car, he noticed on the armrest, there was a phone in his limousine.

Now, that may not sound crazy, but this is the most secure vehicle on the planet because it's about to hold two presidents. And also, there's a context here. The Israelis have used pagers, exploding pagers, to take out the Hezbollah leadership. I mean, is this a bomb or is it actually a phone? What is it?

How did it get there? Biden's been president for four years. He's never once seen something in his limousine that he didn't put in there himself or that he knew that his staff had put there. This was neither of those. So what I learned is Trump gets in. He sees Biden, and Biden starts asking this,

what is this? What is this? And Trump gets in. He picks up the phone and says, oh it's mine and I'm just looking I just wanted to see what they're all saying about you oh they're talking about what a great job you've done look they're all saying such nice things about you which by the way is weird too but um it turns out that Trump had somehow gotten his phone pre-positioned in Joe Biden's limo this is clearly because his staff knows the secret service

they've served them before they know how things work they were able to do this I mean a total violation of all protocol, but they knew how to do it. And they did it. And it's a metaphor for, they know the system now. And also, they're not going to abide by the basic rules. John Carl, the book is Retribution. It's a ride, man. I mean, it's a little PTSD, but it's a ride. And there's so much new reporting in it. It was, it was a fun read. Thanks for coming. Oh, man, David, I felt like there was so much we didn't get to. Oh, I know. I know. There's, I mean, just the run up to the transition, the transition period, the immediate aftermath of the transition, there's so much there. There's a really big New York Times report that came out right, you know,

the day we recorded this, about 60 attorneys, 6-0 attorneys from the DOJ, former attorneys from the DOJ talking about this, you know, these last 10, 11 months. And it's a really shocking and alarming read if you haven't been following close, paying close attention. If you're an advisory opinions listener, you're going to read all the testimony of those 60 attorneys and go, oh, okay, this checks out. I knew about all this because I'm a faithful listener of advisory opinions. But when you gather it all together, it's pretty remarkable. But I will tell you, Sarah, my takeaway that's most interesting to me, honestly, is his reporting about that Garland was not exactly afflicted with a case of the Slows, which is what Lincoln said of General McClellan in the Civil War. war, that they were pursuing legitimate leads, and that just takes time. I think that was in,

that's very, very interesting reporting. Also, mirrors exactly what happened with the Mueller investigation as well. They were pursuing leads that didn't pan out. Garland was pursuing leads that ended up not panning out. And then you're never going to really hear what those were, unless John Carls doing the reporting, of course. But, you know, David, I was really left with a question that I keep coming back to, you know, in the multiverse. What if Rob Her had been the special counsel on Trump and Jack Smith had been the special counsel on Biden? Interesting. Interesting. That's a very good question.

Because there's moments in John Carl's book as well that I mentioned that we didn't get to about that report that's going to get released at the end that Jack Smith sort of insists on writing fulsomely, if you will. and the tension that really caused between Trump's team and the Department of Justice and sort of this sense that they were going to try to get him even though they couldn't get to trial in time type thing. And as I said, like obviously I'm friends with Rob Her.

And so one wonders how much this all could have gone quite differently. You know, I'm also just struck again, and this is sort of moving from the non-league, world into just the political world, which is, look, if you're going to make a character argument against Trump, which is a key argument against Trump, this idea that you're going to be making that argument while you're in the process of this comprehensive deception around the physical condition and mental condition of the president of the United States, you're ripping the heart out of your character argument. And you're doing it in a way that's very vivid for people because unlike a lot of the

Trump scandals where people don't know how election, how are, how are votes counted? What's the system for election? What's the system for classified documents? All of these things. Can a president declassify them just sort of by force of will? All of this stuff is pretty opaque to people. Your average person just doesn't know how this works. They rely on other people's reporting and commentary.

but you know what, every single human being and the world knows time is undefeated and that when you get above a certain age, you can fall off a cliff, right? And so in a way, the way in which Biden was pushing through that issue, I think experientially for people, for your average voter,

felt more brazen than some of the stuff that Trump does. And to this day, I don't think the Democrats have really, that has sunk in. with them. To this day, I think they think of that as a mistake and not as a character issue, not as a deception campaign. And those are two different things. Yeah, they think it was a political, a strategic mistake. Right. Yeah, they think of it as, well, you know, it's like the coach and the offensive coordinator weren't on the save page and the 15 plays. We dropped the ball. We should have game plan better. No, no, no, no. This administration,

to the very highest levels was engaged in a cover-up and badly, doing it very badly, very bad. You know, when you look back on it, it really is a symbol of, you know, Trump has never been able to really establish himself as a majority figure in any way, shape, or form. And the fact that the Democrats came as close as they did to winning in 2024 with the economic headwinds that they faced, and with a president essentially vacant. from the bully pulpit, a press secretary who set new records for incompetence? Like, who was giving the Democrats' message here? I mean, this is, it's really remarkable stuff. All right. Next time on advisory opinions, we've got a cert grant to talk about.

And who knows what else, David. So stay tuned. We'll be back later this week with more advisory opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join. And if you use promo code A.O, you'll get one month free and help me win the ongoing, deeply scientific, internal debate over which dispatch podcast is the true flagship. And if ads aren't your thing,

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