Advisory Opinions - DOJ Lawmaker Subpoenas Explained

Episode Date: June 14, 2021

In today’s jam-packed episode, David and Sarah discuss the Supreme Court’s invitation to the Biden administration to weigh in on a pending challenge to Harvard’s affirmative action policy. Our hosts also untangle two criminal cases that united the justices unanimously in favor of the government, one on felons possessing firearms and another on sentence reduction. Then, Sarah shares insight from her own time at the Department of Justice into why a New York Times story that the Trump-era Justice Department seized the data of congressional Democrats might be overblown. They also explain why the DoJ appears to be siding with former President Donald Trump in a defamation case brought by E. Jean Carroll. Finally, they discuss why a recent Twitter thread on critical race theory that inspired a “hate tsunami” online should inspire you to go attend your local school board meetings. Show Notes: -Greer v. United States -Terry v. United States -The New York Times’ June 10 initial subpoena story -The New York Times’ June 13 follow-up story about Don McGahn’s records -The New York Times’ June 11 follow-up story about DoJ opening an investigation into the subpoenas -Explanation of Assistant U.S. attorney -David’s Twitter thread -David’s debate with Christopher Rufo on Bari Weiss’ podcast Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ou allez sur rakuten.ca pour en avoir plus pour votre argent. C'est R-A-K-U-T-E-N. day. And I think I just engaged in misleading advertising, Sarah, because I said a Supreme Court opinion day instead of on a Supreme Court opinion day. Yeah, look, you know what? Every day that we have a duller opinion hand down means that we're going to have a really exciting hand down coming. True, true. It's just going to get more exciting. I believe there are 18 cases left, so we're going to have a lot to plow through between now and likely the end of the month. Fun fact, David. Yes. With 18 decisions left, that means the court is going to hand down

no more than 55 decisions in argued cases this term, which would be the second lowest total since 1862. Shout out to Steve Vladek for that little nugget. Huh. Interesting. Do more work, SCOTUS. Give us more material. But SCOTUS did not slumber today. It just almost slumbered. So we'll talk about what SCOTUS did do. We're also going to talk about a couple of controversies out there. We're going

to talk about some subpoenas from the Trump era directed at Apple, for example, directed at members of Congress, Don McGahn, a former White House counsel. We're going to talk about the DOJ getting involved or staying involved in E. Jean Carroll's defamation case against Donald Trump. And we're also going to talk a little bit about the absolute hate tsunami I experienced over the last three days online because of a single Twitter thread about the law and critical race theory.

So, Sarah, let's start. Let's start with SCOTUS. Let's start with Harvard. What did SCOTUS do about Harvard? This morning at 930, as usual, we had our orders list. There were no cert grants uh for today and there were no separately written opinions but buried there in the orders in pending cases students for fair admissions versus president and fellows of harvard the acting solicitor general is invited to file a

brief in this case expressing the views of the united States. This is what's called a CVSG. And if you're curious, by the way, CVSG is not an acronym for some Latin or a Texas pronunciation of Latin. It stands for Calls for the Views of the Solicitor General, CVSG. We talked about this before that this case was coming up at conference on Friday. And pretty much everyone thinks they're going to grant cert in this case. I think the CVSG is sort of another one of our little, you know, chiefy specials. We know what the United States thinks about this case. Yes. There's no mystery here, but it punts it down the road a little bit and no harm in having more input. It also means almost certainly that the Solicitor General will get argument time when

they do grant cert in this case. So this definitely pushes it down the road for a little bit. The Solicitor General's office will now have time to write and submit a brief. So we're probably looking at the fall. Yeah, I was actually a tiny, tiny bit surprised by this since everybody knows what this present administration thinks. Everybody knew what the last administration thought. Why? Why? So it's just a simple little punt, do you think? I think it's just a punt. By punting, they affect when the case is going to get argued as well.

And so because they've already accepted that abortion case and gun rights case, those will get argued toward the beginning of the term. If they had accepted this case today, it would have been argued roughly December, let's say. This will push the argument to more like January, February. So you want to spread those out. Spread them out for the argument and then cluster them for the decision. Exactly. You nailed it. Yes. Okay. So we had two cases decided today. We had a case called Greer v. United States and another case called Terry v. United States.

And when you have v. United States, you're often dealing with a criminal case. Which one is more interesting to you, Sarah, Greer or Terry? I mean, kind of a race to the bottom here, but I would say it's the Gary Greer case, which is the felon in possession of a firearm. So in 2019, in a case called Rehafe, the United States, I actually really was into that case. So that was whether to be convicted as a felon in possession of a firearm, you simply had to know you were in possession of a firearm, or you also had to know that you were a felon in possession of a firearm. And the court held that, in fact, you do need both mens rea elements. You have to know you're in possession of a firearm,

and you have to know you're a felon as well. So, you know, these are like the sequel movies. Rarely are they better than the original, and this one's not better than the original. So this is the question. Greer and Gary went to trial, and one pled out both um basically post rehafe rehafe who knows how that's pronounced um and so the question was basically could they have their convictions vacated because they it was not found at trial and the one guy was not informed at his plea deal

that they would need to be found to be felons as well to know that they were felons. And a near unanimous court with Justice Sotomayor concurring in part and dissenting in part said, yeah, no. Also, there was ample record that these guys both knew they were felons. They didn't even argue that they didn't know they were felons. They basically are just saying like, oh, look, there's a case that's kind of applicable that came out kind of after. Can we do this again? And the court said no. So this case isn't actually really about mens rea.

It's not really about being a felon in possession. It's more about plain error review under Rule 52B, which probably, David, is not worth a whole lot of AO listeners' time right now. No, no. Let me just put this out there. If any of you is, if you're listening to this

and you're in federal prison and you have some questions about your 52B appeal, shoot us an email and Sarah will respond. How about that, Sarah? Yeah. I mean, in short,

you need to show that there was a reasonable probability that but for the error, the outcome of the proceeding would have been different. The error in this case is that, yes, the court should have had both elements met, and they didn't. They were only, the only mens rea element was that they were in possession of a firearm,

not that they were felons. So that's an error. But the question is, would it have affected the outcome? And in this case, not that they were felons. So that's an error. But the question is, would it have affected the outcome? And in this case, they had multiple felonies. They don't argue that they didn't know they were felons. And this is like a practical rule. We don't just redo trials sort of to check a box. It has to have some purpose. That's a lot of wasted resources and time of the government, of the jurors, of everyone. And so in this case, it was found to be harmless. Okay. Next case, Terry v. United States. A little less interesting than the discussion that we just

had. If possible. So this is on the First Step Act. This was the big criminal justice reform bill that was passed during the Trump administration. So Mr. Terry was convicted of crack cocaine possession in 2008. And so he got a mandatory minimum sentence because it was his third penalty. So in this case, the question was about whether he could have a sentence reduction under the First Step Act, whether that was a, quote, covered offense. A covered offense, in short, is one in which the statutory penalties were modified by provisions of the Fair Sentencing Act of 2010. In this case, nope. He was convicted of possession with intent

to distribute an unspecified amount of Schedule I or II drugs, was subject to a statutory penalty of imprisonment of zero to 20 years and up to a million dollar fine. And after 2010, the Fair Sentencing Act, it's exactly the same. So in that case, they found that it was not a covered offense under the First Step Act, and therefore he is not eligible for a sentencing

reduction. That was Thomas writing. It was basically unanimous with Sotomayor filing an opinion concurring in part and concurring in the judgment. So not only were these cases not super exciting for everybody but our litigants, they were also pretty darn unanimous. Sotomayor concurring in both of them. So the Supreme Court's really clearing the decks here of some of the snoozers, USV snoozer, USV slumber. They're all being cleared out. So next opinion day, likely Thursday.

Correct. And we're going to be ready. We're going to be at our computers hitting refresh, refresh, refresh as these opinions come down. And look, I mean, the court has fewer and fewer options to clear out before we get to the really, really good stuff. All right. Quick question for you. Do you think, I mean, the big ones, the big ones, all the last day, Sarah? No.

No. No. No. I don't think so. I stand by that that will not happen. We shall see. Look, let me spin these cases as a little more interesting than we sold them. When we had the last Gorsuch, Kavanaugh, Barrett join the court,

obviously, most attention gets paid to abortion or affirmative action, etc. But something that plenty of people were talking about was how it would affect Fourth Amendment criminal cases. Because Scalia, that was always his joke, right, that he was the best friend to a criminal defendant. These are cases in which you would look to see whether Gorsuch or Barrett will sort of be that Scalia-esque vote to put their thumb on the scale for the defense instead of the United States, can't really be unanimous. Yeah. Yeah. Yeah. So you need better criminal cases that are closer calls in order to test the post Scalia criminal jurisprudence cases. And these could have been them, but they weren't. You know, the other interesting thing, not necessarily these cases, because these cases

are pretty well, I mean, felon in possession. a lot of people are prosecuted under felon in possession. Tons. And that initial case, the Rahaf case, was sort of a post-Scalia, establishing another mens rea element where you have to prove that the person knows that they're a felon in addition to knowing they're in possession of a gun. That was some straight Scalia channeling there. there. Right, right. And so, you know, one of the things about these criminal cases is they actually end up impacting, in a very tangible way, a lot of lives. So not just the rights of the people who are under indictment, but also, you know, of course, their families, friends. I mean, you know, when somebody is convicted of a crime and sentenced to prison for a while, it has ripple effects throughout a community. So, or when somebody who is, uh, you know, when you have, uh, improper constitutional rulings and you, uh, and, and when there's either too little or too much leeway granted to law enforcement, these things ripple throughout communities in very

tangible ways, often far more tangibly than a lot of the big culture war cases. You know, as much as fascinated as I am by Angry Cheerleader, that's not going to impact a huge number of people. And as much as there was just an intense focus on things like Masterpiece Cake Shop, there were not, you know, half a million bakers breathing a sigh of relief about their freedom to design cakes. It was, you know, these were cases that were important, important constitutional principles. But as far as impacting the actual lives of people, that their scope was pretty narrow. In many ways, it's almost as if the

attention was inversely proportionate to the actual number of people tangibly affected, whereas a lot of these criminal cases, there is an enormous number of people affected and very little attention. Same with the immigration ones, really. Yeah, exactly. Exactly. So these are cases that affect a lot of lives. But yeah, they're not the kind of cases that get people up in the morning to follow the Supreme Court. With that said, we're moving on, Sarah, and we're going to talk about subpoenas. Indeed, we are. So I felt a bit like I was back in my old job this weekend.

Oh, I bet. And remind listeners what your old job was. So I used to be the head of communications for the Department of Justice. And on Friday, the New York Times published a story that during my time at the Department of Justice, the Department of Justice issued subpoenas for cell phone data from Adam Schiff and Eric Swalwell, two Democratic members of the House of Representatives and two outspoken critics of President Trump. The, you know, in between the lines of the New York Times stories was that probably the White House had pressured the Department of Justice to go after its political enemies using, you know, the full force of the executive branch of the United States government, you know, wiretapping them, following them, whatever. And then the story took a weird turn. I read the story same as everyone else. And everyone, you know, all the

senior sort of DOJ folks from that time, we kind of all, you know, started texting each other, like, who signed off on this? And I talked to my old boss, Attorney General Sessions. He didn't know anything about it. I talked to the Deputy Attorney General, Rod Rosenstein, who was acting Attorney General over Russia, uh, stuff. He didn't know anything about it. Um, talked to a lot of other senior folks and they didn't know anything about it. So that's a bit of a weird thing, right? Because this isn't just like, according to a source, Adam Schiff and Eric Swalwell received emails from Apple that said in 2018, your information was subpoenaed by the federal government and we complied with that subpoena. So what happened? Here's my theory,

David. Let's hear it because that is very, that is a very interesting twist. It's a pretty big twist because it's a very big twist. It is clearly not what has been blown up in cable news that this is worse than Watergate. Schumer and Durbin have called for Sessions and Barr to come testify. Barr, by the way, has also said that he is not aware of it. The New York Times story mentioned that it was re-upped during the Barr years, like three different times. I think it would be a very big deal if you were collecting data on members of Congress,

especially from an opposing administration, but even if not. So how is it possible that Sessions, Rosenstein, and Barr know nothing about subpoenaing Democratic members of Congress? Okay, first things first. Actually, they don't have to. An AUSA does not have to have some magical sign-off from any of those people to get a subpoena. They need a grand jury. They need a judge's signature. But they don't need the attorney general. They don't even need the U.S. attorney, actually. But this would assume that you have some rogue AUSA who has either no clue what they're doing and decides that it's no big deal to subpoena the data from members of Congress or knows it's a big deal and is like, ha, those pesky politicals aren't going to sign off on this. They're going to tell me not to do it. So I'm just going to go and do it.

Now, internal DOJ guidelines on something like this, were there internal DOJ guidelines that would have required an AUSA to run this up the chain at that time? So if it had been a member of the media, yes, and you would need sign off. So for instance, if this had been a reporter, I, uh, in my old job actually would have needed to like put my little signature on stuff with some exceptions, the rules are kind of complicated, but certainly the deputy attorney general or acting attorney general would have needed to, but members of Congress, um, are a little bit different. And some people out there thinking like, look, if a member of Congress breaks the law, they should be subject to subpoenas the

same as everyone else. Totally agree, but that's not the issue. The issue is whether you want a line AUSA career prosecutor who can vary in experience. They can be David-level experience, or they can be 24 years old level of experience. Do you think that they should just on their own be running these cases? So there's something with IndioJ called an urgent case report. Even if you don't need sign off, you sort of raise your hand and say, oh, hey, you know, we're going down this river and it was kind of a smooth, happy river, but like there are some huge rocks and rapids coming up. And while I don't need to get out of my boat

to get your permission to go over these rapids, I think I should let everyone know that I'm about to take this case over some rapids. So A, AUSA could have sought approval. B, even if they didn't seek approval, they certainly would have been advised to file an urgent case report to let everyone know what was happening in their case. None of those things appeared to have happened. So how can the New York Times story be true? How can Apple's email be accurate? And then none of these people know. So one theory is the rogue AUSA. It is possible, but I think it's very unlikely. The AUSA in

question who signed the subpoena is well-known, well-respected. She's experienced, careful. She's dogged, man. You don't want to get in her crosshairs. She's a pit bull, but in all the best ways. And from all reputation, I don't know her personally, a pretty exemplary AUSA, the type of person you want working in these cases. She works out of the DC U.S. Attorney's Office, so not, we call it main justice, that building you drive by on Constitution between 9th and 10th is called main justice. The DC U.S. Attorney's Office is down the street a little. All right, David, here's my theory. There was an investigation into a House staffer. That's not particularly unusual. During my time, for instance, a staffer of Senator Burrs was actually arrested and pled guilty. He served

jail time for leaking classified information. That actually became a pretty big story because he was leaking to and carrying on relationships with reporters. Ah, yes, I remember this. And using classified information, it appears, to get those relationships with reporters. So anyway, that's all to say, again, if you are leaking classified information and violating federal law, you're not above the law just because you work for a senator. In order to investigate anyone, you're going to pull their toll records, meaning who they called, the numbers that they spoke to at the time that

you think the leak happened. So let's say in that one week period for this house staffer that they were investigating, they hold a hundred phone numbers that he interacted with in some way that his cell phone interacted with. You just got a bunch of 10 digit numbers, David. You don't know who they belong to. You don't know what these numbers are. He could be calling for pizza. So what you do is you go to Apple and say, here's a subpoena.

We need the account information for these 100 phone numbers. Gotcha. In order to figure out who is useless on that list, right? And if you are a House staffer, it is not surprising that two of the numbers that you might have called are members of the House. Also, in the New York Times story, it mentions family members.

It mentions a minor. The Department of Justice is not subpoenaing toll records from a minor unless this is all incorrect. It's not actually data related to their communications, but simply account subscriber information. And that the AUSA who issued the subpoena was not issuing a subpoena for Eric Swalwell. She was issuing a subpoena for 202-555-1111 and had no idea who the number belonged to. So then- Got it. The story got weirder, David, because-

Yes. I was wondering about when this shoe, yes. Yesterday, another story dropped that the Department of Justice also had subpoenaed Don McGahn's records. Don McGahn also got this email from Apple. Same thing. Re-upped the phone tree, right? Call everyone. it to people. It's actually more like being a reporter. It's just that I have really good sources. It's not that I know what's happening. It's that my job is to find out what's happening from the people who know what's happening. So anyway, you just call your very good sources who will tell you stuff. Same thing, right? No one knows anything about subpoenaing Don McGahn. I think it has to be the exact same issue. There was some investigation going on. I think it has to be the exact same issue. There was some investigation going on.

And in this case, that person almost certainly called Don McGahn's cell phone and they needed to find out who all those numbers belonged to, one of which was Don McGahn. And so he also received an email saying, your data was subpoenaed by the Department of Justice back in 2018. The re-upping under Barr is interesting because that doesn't make a lot of sense unless you're continuing to monitor someone's toll data, toll records this whole time. They said it was re-upped three times and in fact only stopped in May of 2021. What? But if you read more closely, what they actually appear to be saying is not

that the subpoenas were re-upped three times under the bar years, but actually that the gag order on Apple was re-upped three times, as in Apple was not allowed to tell its subscribers about the subpoenas until May 2021. That's very different. And once again, would not need sign off from anyone. That would just be the AUSA sort of doing routine stuff until the investigation is pursued or closed. And in this case, my understanding is that the investigations at issue have been closed. So then no more need for a gag order. That's what the AUSA was re-upping. What's frustrating, David, is that the Department of Justice has the subpoena. They were fully briefed on what this was about on Saturday morning, shortly after

the New York Times story dropped and instead of saying what's happening here they simply are asking the inspector general to investigate which I find strange because they could still release the subpoena you know redact what they need to and show whether this was for like a subpoena that names Eric Swalwell and Adam Schiff or Don McGahn for records pertaining to their phone calls for a set amount of time, or if my theory is correct, which is that there were 100 phone numbers turned over to Apple and they asked for subscriber information. Right.

I mean, you can get an IG investigation and release the subpoena. That's correct. You can. You can. You can. Yeah. No, that's a fascinating point. And it will be very interesting to see. But one thing that I want to just dwell on for a minute, just dwell on for a minute,

because I think this is important to sort of place a lot of this in context. Number one, is it certainly possible that a corrupt administration could abuse criminal process against political opponents? Yes, it is absolutely possible. Is it the case that members of Congress should enjoy some sort of special immunity outside of any immunities granted in the Constitution, and there are some. No, no. And if you wonder about that, let me ask you this. If an investigation into January 6th results in some findings that members of Congress conspired with the insurrectionists, you would see folks in the media saying, prosecute them, investigate them, toot sweet, right away.

There are circumstances where, and look, leaking of classified information is a serious crime. You know, it's funny when someone leaks classified information in such a way that it embarrasses political opponents of ours or makes a point politically that we want made, we'll often sort of say, wow, leaking classified information, what a brave thing to do. But the reality is that, you know, and look, I get it. I get it that we over classify information. I get it. Totally understand that there, we do

need reform in that regard. But the idea that we're just going to go ahead and delegate to any given employee of the federal government, the ability to determine whether classified information should be classified or should be in the public domain, that's not the kind of regime that you want. So these kinds of investigations do happen to be important. That's why you need, one, the possibility of political abuse means there should be oversight at the highest levels. But number two, the fact that members of Congress can commit crimes and so can members, their staffs, means that they're still subject to the rule of law. So this is not quite as neat and clean a kind of story that you'll see.

And if there is, in fact, sort of any investigation that reveals members of Congress involvement in January 6th, in a lot of places, you will not see very much reluctance at all to employ the full range of government power against those individuals. So the story has lots of layers to it, and it's just not necessarily, it's not necessarily the story that we've seen sort of run loose online that says, oh, look at what the Trump administration did to its political opponents. David, the other issue about investigating members of Congress is they do have a special constitutional protection in the speech and debate clause. And in 2006, the FBI raided the office of Congressman Jefferson, the Democrat from Louisiana that was keeping money in his freezer. And all the evidence they found during that raid on his Capitol Hill office was actually thrown out. And that was upheld by the D.C. Circuit unanimously, 3-0.

The Supreme Court declined to take the case. He was convicted using different evidence and was found guilty of bribery, racketeering, and money laundering. Wah, wah, wah. So members of Congress can very much go to jail for their crimes. However, when it comes to their work that they are doing as members of Congress,

they have this little speech and debate clause protection which would make subpoenaing their toll records all the more odd because you probably couldn't use it. Right.

Yep. Yeah. So this is going to be interesting. Release the subpoena, DOJ. Release the subpoena. Totally fine with an IG investigation, but release the subpoena. Yeah, and what's, I think, frustrating

for those of us who are sort of caught in the middle of this is by the time the IG releases their report, which will be a minimum of six months from now, is my guess, no one will care anymore. And instead, there was a huge uproar about how people should go to jail and Watergate and Nancy Pelosi saying that this was the peak of corruption, when if my theory is correct, it's actually a career prosecutor doing their job and the story's far less interesting.

And it's not even interesting in terms of it being bad for Schiff or Swalwell. You know, people call you, including a staffer. So it's not weird for them. It's not bad. Same with Don McGahn. This would be very routine investigation activity. But instead, it's been blown up as something else entirely before any of the facts are out there.

And the facts should be out there, could be out there, and they're not. Well, we will see and we'll bookmark this for six months from now. We will see and we'll bookmark this for six months from now and we'll go back and we'll see what the true facts are revealed to be. Okay, now let's move on to an interesting case. Why, Sarah, is the DOJ, why is the DOJ defending Donald Trump? And I'm being a little bit facetious in that description. But why is the DOJ defending Donald Trump from defamation claims brought by E. Jean Carroll? E. Jean Carroll, for those who don't know,

she claimed that Donald Trump raped her many years ago. When Donald Trump denied the allegations and went on and had a number of things to say about Ms. Carroll, she sued him for defamation. Now, this is, by the way, can I just put a pause on this real fast? Because this is an interesting thing, and we've seen this in other cases as well. So, for example, Trump is defending a case brought by Summer Zervos, who's, as I recall, a former Apprentice contestant who claimed that Donald Trump sexually harassed her and assaulted her several years ago. And when he denied it and when he attacked her, she sued him for defamation. This is an interesting way to kind of get around statutes of limitation so that if you make a public allegation of misconduct and you can't sue for the underlying misconduct because a statute of limitations is run, but you can sue for defamation if the person says false things or,

you know, what you claim are false things in the context of the denial of the underlying conduct. There is a fresh tort of defamation created. And so that's an interesting, and you've seen this in a couple of cases, but here's what happened. President Trump responded to Ms. Carroll's allegations of sexual assault, and this is appropriate or that Trump's motion didn't turn on whether Carroll's statements were in the scope of his employment, which then would trigger some federal statutes such as the Federal Tort Claims Act and the Westfall Act, and that that would determine whether the United States was the proper defendant, not Donald Trump. So that's what's going on. or defendant, not Donald Trump. So that's what's going on.

Quite an esoteric, interesting question of law. And Sarah, I know you have thoughts. So the Department of Justice always seeks to protect the executive branch and expand executive power. That is actually its mission, and I question that mission from time to time. I'm not sure that we shouldn't have the Department of Justice having a more holistic view of the workings of the government, of the Constitution, and not just representing the executive branch or the federal government in you know, sort of in that order. But it's hard to come up with a workable way for the Department of Justice to decide which of those interests it's going to represent when they're in conflict. So, for instance, if the Department

of Justice just decides that something would be better left to the states, does it say, like, actually, the federal government should have nothing to do with this? Thanks, XOXO DOJ. Or if Congress and the president are in tension, does the Department of Justice say, we've read the Constitution, and we actually just think this whole government will work better if, in the separation of powers, this leads more toward Congress than to the president. So we're not going to defend the president, even though we work for the president, because this president doesn't want to be defended. So that's just not the way it works. The Department of Justice always defends the office of the president. And in this case, you're talking about, yeah, I mean, the Federal Employees Liability Reform and Tort Compensation

Act of 1988, also known as the Westfall Act after a Supreme Court decision called Westfall v. Irwin from 1988. Footnote, remember when Congress used to pass bills when they didn't like something that the Supreme Court decided? Huh. Yeah. That was interesting. Those were the days, Sarah. Those were the days. When you could get a soda from a drugstore fountain yeah and for a shiny nickel yeah and that same nickel could buy you a newspaper no yeah those were the days so right so the question here is not whether the Department of Justice, like Donald Trump, thinks that he sexually harassed Ms. Carroll or not. It is about whether when he said what he said, he was an employee falling under the Westfall Act and therefore immune personally. And that the United States government would be liable, potentially. There's all sorts

of things that implicate federal interests here that the Department of Justice has to answer. And once again, it's actually kind of similar to our conversation right before this. It feels like the media was ill-equipped to cover a legal question. And instead, there were blaring headlines about DOJ defending Trump and sexual harassment. That's not actually what's going on here. The DOJ is instead defending the Westfall Act. Right, right. Exactly. Well, you know, this is kind of fits in with the general coverage of litigation, which is sort of phrased as and influenced entirely by outcome, who wins, who loses, and is much less interested in process. Who wins, why?

Who loses, why? What are the precedential implications of who wins and who loses and the reason why they won or lost? And so it's very difficult. Not impossible. There are good legal commentators out there, but it's very difficult sort of in a mass market way to get good coverage of legal cases. Because, you know, quite frankly, a lot of the reporters and in their defense, you can't be an expert on everything, right? It's not like you're going to wake up one morning

and you're going to go, you know, I'm, Federal Tort Claims Act, I know about that. So, but of course, they can learn.

And David, this is part of the problem. It's not, you know, to remove some of the blame here. Newsrooms used to have hundreds and hundreds of people in them so that, yes, someone was expected to be an expert on the Westfall Act and folks covering the courts. There would be many, many more of them. And instead, as media has become less commercially viable, you end up with fewer sort of elder statesmen

in these newsrooms. You end up with more young reporters with less life experience, but also just less reporting experience. And so when you give them sort of two options of what to cover. And one is critical race theory, Twitter war. And the other is a DOJ filing about the Westfall Act. Everyone can sort of cover critical race theory, Twitter war and have an opinion and have people to go talk to because you don't really need sources on that. Whereas if you're a 24-year-old starting out in media and they hand you this DOJ brief, that does take some expertise. And more importantly, it takes some perspective going all the way back to 1988 of how we got to this brief today. It would take time. And you know what? A 24-year-old reporter starting out in a newsroom who doesn't have a lot of experience also doesn't have time because there's not a print deadline

at 5 p.m. anymore where you get your assignment at 8 a.m. and you just crush it until 5 and then you're done. When they hand you that assignment now at 10.30 a.m., they want you to have a story at noon or at 12 30 or at 10 30 and so the the way that newsrooms work unfortunately i think particularly undermines legal reporting something that requires expertise and nerdery and not just sources to give you their opinion but sources that you're not going to quote in the story but who can sit there and give you a little bit of federal torts claims acts 101 from a law professor before you write your story in the first place. And the current media environment is just not geared to allowing reporters to do that, let alone rewarding the ones who do. So you default to good guys, bad guys. And under the law, sometimes the good guys should lose.

Sometimes the bad guys should win under the law. And so the reporting defaults to good guys, bad guys. And the other thing, and this is, I think, quite important for people to realize. Outside of the cable news giants and some of the broadcast news, Fox News is a profit machine, for example. But outside of that, what you're dealing with is this really interesting issue of many millions and millions and millions of people consuming a product with the expectation that it will be free. And so what that does is even though there is a large demand for content about politics, about law, et cetera, et cetera, the demand is and the expectation is that a lot of that is free. So even though we have millions and millions and millions and millions of people who seek the content, only a much smaller fraction of those are willing to pay for the content. So to monetize it, to actually pay salaries, you have to move towards ads, ad-based revenue. This leads to the clickbait. This leads to, for example, what a lot of people don't really realize is that a lot of websites, part of the model depends on them putting out an enormous number of stories quickly.

So huge amount of content going out into the world very rapidly. And this is one way to maximize traffic, which maximizes eyeballs, which maximizes ad revenue. And so you have a huge amount of incentives to create content quickly at volume that still generates very little revenue. So you can't hire experienced people. So you can't hire experienced people. So you're relying increasingly on much younger staff who have very little experience and you get the picture. And so not every time, not every time, but quite often a lot of the media mistakes that you see or media scandals that you see are the inevitable consequence of this dynamic.

scandals that you see are the inevitable consequence of this dynamic. Placing young people with less experience in poorly paid jobs and requiring that they rapidly generate immense amount of content that is accurate in real time about concepts they don't understand. What could go wrong, Sarah? What could go wrong? And then the thing is, you go, the media is horrible. And then somebody says, you know, one way to fix it is like to have professional newsrooms who hire experienced reporters. And that requires, oh, I don't know, a subscription. Oh, that's a bridge too far. I can't pay for news. It's a bridge too far. So part of this is there's a lot of sort of societal, cultural blame to go around here. And part of that, I wonder who was the first guy

who said back in like early 1990s in this environment where you were expected and you'd grown accustomed to your whole life, you buy a magazine subscription, you buy a newspaper subscription you buy a newspaper subscription but then somebody said in 1990 whatever you know what when it's online news should be free and that was the expectation like very early on and that's had some fascinating ripple effects in our culture ever since because the demand for news has not slacked

off. The demand for news has continued to grow, but the expectation that one should pay for news has slacked off. Thus endeth my side rant. Well, and to put a bow on it, it looks very likely that the Department of Justice will win in this case and that the president's comments will fall under the scope of his employment. That will put him under the Westfall Act, and that will mean that he cannot be personally liable. And then the United States government will claim sovereign immunity, and this case will get dismissed. Oh, what a mess. What a mess. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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TheRaceTimes.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, Sarah, speaking of a mess, can I go from one side rant to another side rant? Let's do it. All right, y'all. I don't think that words can adequately express how sick and tired I am of the critical race theory debate online. And yet, not only does it not seem to stop, it just seems to get bigger and bigger and bigger and bigger and bigger to the point where it seems like everybody has to have an absolutely definitive position on critical race theory. And that position has to be completely crystal clear. And it has to totally deal with all of the problems that I have about instruction and education everywhere in America to my complete and total satisfaction.

education everywhere in America to my complete and total satisfaction. And I'm asked about it constantly. I have debated it on Barry Weiss's. I've debated the critical race theory bills, the anti-woke bills that Sarah and I have talked about more than once on Barry Weiss's podcast. I'd invite you to listen to that. We'll put it in the show notes. I debated Chris Ruffo. I've written about it on my French press newsletter. And yet, even though I've written about it and written about it for weeks, months, Sarah, I still get questions. What do you think about this? Why won't you say anything about this? Even though I've said things many, many times. So I wrote together a Twitter thread that dealt with the sort of hot topic of the day. And the hot topic of the day is these critical race theory anti-CRT bills that are racing through

red state legislatures, just racing through. And I just want to walk through it real quickly. racing through. And I just want to walk through it real quickly. And I want to deal with some just blatant lies, basically. So first, and this is something that we've talked about, when you read a news story or you see somebody who's on the right saying this, the state of Tennessee, this is one Tennessee that this is when my state has passed an anti-CRT bill, the state of Tennessee has banned critical race theory. False. No, absolutely not. Not a single bill, not a single bill that you see talking about CRT bans, Not a single bill that you see talking about CRT bans, bans CRT in K-12 education. Not one, not one.

Okay, so the first thing you hear if somebody says to you, I'm for those bills because they ban CRT, you're going to know right there somebody is not telling you the truth. Okay, not one of them. The bills are crafted in such a way because critical race theory is a complicated theory with many, many permutations. The way that they're drafted is they're trying to ban the promotion or inclusion in the curriculum of certain concepts. These concepts are labeled as part of CRT. Except often they're not. They're just not.

So, for example, in Tennessee, this is banned in the state of Tennessee in K-12 education. Promoting division between or resentment of a race, sex, religion, creed, creed, nonviolent political affiliation, social class, or class of people. So if you actually look at that law, Sarah, if a teacher says Nazism is bad, they have violated the anti-CRT law. They have violated the anti-CRT. If they say communism is bad, that's promoting resentment of a creed. And it's unlawful. What? Okay, so then, because the language of these statutes is very broad and very vague. So, for example, in other statutes, they will say that you cannot promote the idea or include

in curriculum the idea that somebody should suffer a disadvantage totally or partly because of their race. Okay, that sounds interesting on its face, but wait a minute. Does that mean, therefore, that teaching including an advocacy or including promotion of affirmative action is therefore unlawful in the state. It's unlawful for a teacher to say, to promote or include in instruction, affirmative action. Huh, now we've talked about that issue. Does that, and I have problems

with the way affirmative action works in many contexts, but should it be banned from including it in our curriculum? So again, this is not banning CRT. And so because the language of the statutes is so broad and vague, teachers, parents, students are going to be totally confused about what they include. So when the law is passed, you're going to have parents and students filing complaints against their teachers whenever they feel offended or uncomfortable about instruction, including some of these bills talk about how you can teach history in very broad and vague ways. So that if you learn about the Tulsa race massacre and it makes you feel like your teacher is running down the United States of America, are you going to file a complaint under this law? So then people say to me, well, what do you want to do? Look at this PowerPoint from this school. Look at this

terrible instruction from this other school. What are you going to do, David? You're just going to roll over and surrender? Well, there are other things you can do. out and made to go through struggle sessions, et cetera, et cetera. Well, there's a federal law called Title VI that bans racial harassment and racial discrimination in federally funded educational institutions. Appeal to Title VI. There's a well-developed body of law. Also, it's better to deal with bad ideas with better ideas. Instead of banning thoughts, Instead of banning thoughts, why don't you propose better curriculum? Curriculum that is well-rounded and robust and is not heavily biased towards ideas that you believe are toxic. So you can file lawsuits on the basis of Title VI if there's racial discrimination. You can propose better curriculum. There are robust First Amendment protections for students who disagree with critical race theory. And so we're ending up in a position where for years and years and years, the conservative legal movement has litigated to increase liberty and to decrease control over everything from public employees to contractors and grantees. And now the new right is trying to increase control with incredibly contractors and grantees. And now the new right is about,

is trying to increase control with incredibly broad and vague statutes. And so this was the last thing that I wrote and I will end the rant. Banning ideas is dangerous. The statutes are overbroad and vague. Existing civil rights law provides strong protection against radical excesses without resorting to banning ideas. And the better course of action is replacing bad curriculum with better curriculum to which to which the response was for days sarah for days david french says do nothing in the face T excess. I think I share your frustration days, uh, in part, but I want to underline one part of it in particular, because I think it goes way beyond, you know, curriculum stuff, which is, um, I've gotten repeated emails or DMS and other stuff of,

well, we have to do something. We have to stop this. And when I say run for school board, like this, this, these decisions aren't getting made from people on high. This is how,

you know, a heterogeneous polity works. Yeah. Um, that that's met with frustration because it feels too long, too pointless. Well, I'm not going to make it on the school board, but I still have to stop this. And on the one hand, I'm pretty sympathetic to that.

Like if I don't like something that's happening in a school, like that can feel like a big hurdle that now I have to run for school board to fix it. On the other hand, that actually is how our system works. And B, it's why it matters that you vote for school board and research these people

and support candidates instead of sort of rolling your eyes that you think the two presidential candidates suck. Well, and the other thing, Sarah, is it's not just run for school board, which can feel really daunting to people it's show up at the freaking school board meeting um you know that's the thing is like i think people don't realize how little civic participation there is at local levels of

government so and this is something i've been preaching just a ton and that that is this. If you just decide to engage, just engage at the local level, show up as a human being in person at a meeting and provide your input, your influence in your community just shot up so many orders of magnitude disproportionate to your numbers that it's almost hard to quantify. Because out of any given group of, say, 5,000 parents or 10,000 families in a given, say, school district, that's probably low, 100,000 families in a given school district or whatever, those who show up have a disproportionate amount of influence, period, end of discussion. And guess what?

You're going to have a heck of a lot more input than if you just tweet about it or you Facebook about it, which is the same thing as saying, I have no input. If you're tweeting about something, you basically have no input. If you're showing up and doing something in real life

as a human being, you're going to have a disproportionate amount of input. But there's something else that ends up happening. If you really engage, if you really get involved, in other words, more than just showing up for one sort of drive-by three minutes at the microphone at a school board meeting, but instead organize with parents and try to engage in good faith, you're often going to find out that the situation on the ground isn't quite what you thought it was, or that it's more complicated, or that there's nuances that you don't quite appreciate. And in that circumstance, it just gets, it's time consuming, it's more difficult. And so what we end up doing is we say to legislators,

to legislators, fix this now. I don't want these bad things in my school. And, you know, I talked to somebody the other day who was involved in interacting with some legislators who are crafting one of these bills. And the question was, have you identified any school district in which these things are occurring in our state? district in which these things are occurring in our state? No. Well, why do we need this law? Well, then, and then the answer was, well, if it's not happening, what's the big deal if we pass it? Well, the big deal is that these things are so broad and vague that they're going to, whenever you have somebody who feels uncomfortable about maybe even just factual things that they're learning, you're going to trigger a legal issue. It's ridiculous. So anyway, there are few substitutes when you are worried about something happening in your own community, in your own community. If you're not living in San Francisco, your concern for the San Francisco Unified School District should be pretty limited.

So if you're talking about your own community, there's not many substitutes there for just getting involved in your own community. That's the solution to a lot of problems. But not the solution to our problem, which is the Supreme Court is sitting on 18 cases. Yes, that is a problem. And you know what? Getting involved in your school board ain't gonna do squat about that nothing and just uh you know because we've got a few questions there is no deadline by which they have to release these tradition is the end of june but last year they

went into july because of the pandemic there's no reason to think they won't finish this up by those last couple days in june And 18 actually isn't that many. But man, come on, y'all. And that Obamacare case, I think we're about to see some footnotes fly in, some concurrences happening, and some Thomas severability rage. Yeah, I have to say, just for one second, I know that the likelihood of anything truly meaningful happening to Obamacare is low, but it is just wild to me that it is taking this long. I'm telling you, Thomas severability rage. That's what I'm putting my little bingo chip on. All right. Well, we have two Sarah markers. We have bingo chip on that the DOJ subpoenas were subpoenas of phone numbers that the AUSA had no idea who they belonged to. That's chip one. Chip two, Thomas is going to rage about severability in the Obamacare case.

I like it. See how I do. I like it. All right. Well, this has been Advisory Opinions. Thank you, as always, for listening. We would love if you go to Apple Podcasts and rate us. Love it if you go to, well, if you subscribe on Apple Podcasts, please check out. Please check out thedispatch.com, Sarah's newsletter, The Sweep, my newsletter, French Press. And I think we think you'll like if you're not a subscriber, I think you would really like what you see here. And you can become the best kind of consumer of news, somebody who pays for content. And then we try to deliver value for what you pay. So thank you again for listening.

And Sarah. Signing out, y'all. Thank you.