Advisory Opinions - Eastman Memo: It's Real and It's Not Spectacular

Episode Date: September 23, 2021

In today’s episode, Sarah and David discuss a number of situations where events have proven their predictions true, starting with a challenge to the Texas abortion law and ending with a complaint over critical race theory. In between, our hosts also dissect the legal arguments underpinning the push to get Vice President Mike Pence to overturn the 2020 presidential election and discuss a new bill that would reign in presidential powers. Show Notes: -Alan Braid, Texas abortion doctor, sued over ban -John Eastman memo -Reuters story on critical race theory -Williamson County critical race theory complaint -New York Times story on Protecting Our Democracy Act -House analysis of the Protecting Our Democracy Act provisions Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast, and Sarah, here is our theme for today. Everything stupid we predicted has come to pass. Hmm. Well, it's not going to be the whole podcast, but it's going to be a material part of the podcast. But before we dive into our lineup, which actually is a pretty interesting lineup. Okay, here we've got a lawsuit, a real lawsuit relating to the Texas abortion law. We have a, finally we've seen the legal reasoning that was supposed to compel Vice President Pence to overturn the election. It's real and it's not spectacular.

We also have a very interesting set of, a very interesting proposed legislation surrounding limiting presidential power. And we have a crazy CRT dispute that is taking place, Sarah, right down the street from me. So lots to get to, but shall we start with Yellowstone? Yeah, so look, I sprung this whole Yellowstone perfect crime law review article thing on David without really telling him ahead of time. And predictably, the result was that we missed some stuff. So 16 U.S So 16 USC section 24, the Yellowstone National Park, as its boundaries now are defined, or as they may hereafter be defined and extended,

shall be under the sole and exclusive jurisdiction of the United States. All the laws applicable to places under the sole and exclusive jurisdiction of the United States shall have force and effect in said park. Yeah. So you can't charge, the state of Idaho cannot charge someone with murder if they commit that murder in the 50 or so square miles of Yellowstone State Park or National Park that falls within the state boundaries of Idaho. Now, this is not true of all federal land, David, and that is relevant. Some people emailed us and said like, well, isn't this the same as any federal? Like, nope. Federal land sometimes has concurrent jurisdiction, sometimes has exclusive jurisdiction, and it all has to be laid out by statute. Yellowstone happens to be laid out by statute. So we don't need to commit interstate mail fraud to fall into the perfect crime.

You can, in fact, just commit murder. Also, someone pointed out that most of the elements of interstate mail fraud would actually still be a crime in the state of Idaho. Thank you all for your emails pointing out our incorrectness. I'm actually very serious. It's really fun when you'll do that because it makes me admire our listeners so much. One fun question that I got, though, was how do you know that the reference to district in the Sixth Amendment refers to U.S. attorney districts versus congressional districts? And I thought it was a really smart question. It is actually outlined in the Judiciary Act of 1789. There were 13 original districts, but they refer to not just U.S. attorney districts, although they do, but the

district from U.S. attorney districts is the same district referred to for district courts, for instance. And so U.S. attorney districts and the Southern District of Texas district judge, those are the same districts. And that is what the Sixth Amendment refers to. And that's why we have the lovely Judiciary Act of 1789, which draws upon, by the way, what was happening in England at the time. Also, they had districts that were sort of similar to counties at the time. So anyway, similar to our counties.

So yeah, so it definitely does not refer to congressional districts. Now, the funny thing about that whole, the whole Yellowstone discourse. So we're kind of processing it in real time. Like, okay, the perfect crime. And then wait a minute, is there state concurred jurisdiction? And then we ended the podcast. And then after the podcast, we said, wait a minute, but is it exclusive? And then we both sat there after the podcast researching.

Producer Caleb was like, can we leave? Can we go now? Are we done? Can we please stop this? That's the bonus Patreon content that the world needs right there. Is that- Us silently sitting there reading

and going, wait, oh, or it's just like noises. But if you include the Zoom, then there's the vacant look with furrowed brow as we're doing our research. Because that's the content everybody needs. Okay. So now we are on to, well, back to Texas. So there was a lawsuit finally filed under the law. A abortion doctor violated the law. A person has sued. And the facts sarah they're perfect yeah so let me just read the opening of the washington post story about this a lawsuit that could test the constitutionality

of the nation's most restrictive abortion ban was filed in texas on monday against a doctor who admitted to performing an abortion considered illegal under the new law. Okay. As soon as a doctor admitted that he was going to do that or he had, that he had done it, you knew a lawsuit was coming. Um, but then here we go. The details of the civil suit against Alan Braid, a physician in San Antonio are as unusual as the law itself, which empowers private citizens to enforce the ban on abortion once cardiac activity has been detected. The plaintiff is a felon serving a federal sentence at home in Arkansas with no connection to the abortion at issue. He said he filed a claim not because

of strongly held views about reproductive rights, but in part because of the $10,000 he could receive if the lawsuit is successful. A second suit filed Monday, just four paragraphs long, came from a man in Chicago who asked the state court to strike down the abortion law as invalid. Okay, so the original one, the one, the main one we're talking about, it's being filed by a felon who is imprisoned, who doesn't know any of the parties involved, and wants $10,000 and or, I guess, to strike down the law. So this is one of the things when we first talked about this, and we talked about the objections to what's being called the bounty provision, I got a lot of messages saying, oh, please, no, it's not going to be anything weird or strange. This is going to be when people are actually aggrieved, people actually have a problem with what happened. Maybe it's going to be a father of a child who was aborted without his consent. Maybe it's going to be a father of a child who was aborted without his consent.

And the reality of American law is that if you draft it broadly enough, ridiculous things will happen. Like a felon serving a federal sentence in Arkansas. I thought I was mildly surprised that the first case filed that was really serious was just as stupid as, you know, some folks predicted they could be. But it was the first one. But this but the bottom line is now, I guess you would say, Sarah, that the legal battle over the over the law is now fully joined within the joined within the meaning and within the four corners of that law itself. Yes, which, look, let me give you some good news about this. Now that we have a substantive lawsuit on the merits, the court system can deal with the DOJ lawsuit and the initial lawsuit that went to the Supreme Court and then back down to the Fifth Circuit can actually deal with the ex parte Young stuff

in a more rational fashion because they can deal with the substantive part over here with Arkansas, dude. By the way, you and I, when we initially started talking about this law, talked about one of the 29 million people from Texas suing. The law does not actually specify that you have to be from Texas. It was, I think, sort of assumed that it would be someone from Texas. But David, to your point, it was also assumed that someone

might have some injury at all, or that they might be pro-life, or that surely it would be sort of a staged case, if you will, not staged in the sense that the two parties are not adversarial, but rather that they sort of know that they're going to both create this test case, which is certainly what the doctor believed he was doing. The doctor publicly published an op-ed to say, hey, look over here, come sue me. I am personally prepared to litigate this law all the way through and presumably has the funding to do

so. What's surprising, I guess, is that the other side, nobody was there waiting to catch the ball, except for this former lawyer in Arkansas who is not pro-life. So, fascinating. You know, there's other parts of the law that we haven't gotten to on the substantive side, which is that the law also specifies that a doctor defendant cannot raise the constitutional arguments of his patients right um that to me

doesn't matter one bit but it will have to be dealt with yes and to to make that sort of concrete that is like saying if you passed a law banning gun sales and empowered people to sue instead of giving the state the authority to enforce the law, empowered people to sue, and you sue gun dealers, gun sellers, and then you said if you are someone who sells a gun, you cannot raise the Second Amendment rights of your customer as a defense to the lawsuit. So that's kind of the way this law is. Yeah, exactly what it is. And the interesting thing, Sarah, and as I've been thinking more through this, that it is interesting that there wasn't an immediate lawsuit coming from the pro-life legal community

as soon as that op-ed was published. But I think there's kind of a strategic reason why that might be. I don't have inside information on this, but there's some strategic ambiguity that was benefiting the pro-life side of the argument right now, and that is abortions by and large, the abortion clinics themselves were not defying the law. And Dobbs is still hanging out there. So why would you be in a hurry to get this thing tested in court if you're kind of prevailing on the ground right now, if that makes sense? No, that makes a lot of sense. The sooner you get to court, the sooner the law gets struck down. The whole point of having the pre-enforcement cuteness was to have this law in effect for as long as it could be in effect. And so in some sense, you didn't want anyone to sue in the law. That's a really excellent point. By the way, for those curious, there has been a, well, both a lot of and not nearly enough of jurisprudence on why abortion doctors have third party standing to bring lawsuits against any of these laws. but on, for instance, the 2015 Heller-Statt Whole Women's Health case,

on the June medical case in Louisiana, the Mississippi case itself and Dobbs, like why abortion providers have standing to raise some of those. But basically, they've been found to have that, and there hasn't been a particularly good challenge on that QP itself, that question presented. Some thought the June medical would do it. It did not. Right, right.

And Roe v. Wade, I mean, was actually a challenge brought by a woman herself. She had unquestionably had standing. And one of the reasons why the standing issue matters is because, um, these cases go on for a long time. And as a person who's, for example, say had the child, uh, still have standing to challenge the law. And this is something, the standing issue, uh, when you have a finite time period in which your legal rights are being, um, implicated by the statute you're challenging, that's also an issue that comes up in student cases. You have a student and the student

has four years, three years, maybe one year left since when a speech code is imposed. And what happens after they graduate has often been an issue. And perhaps the most used part of this is election cases. And that's where the capable of repetition yet evading review is most often used because you could basically never challenge a new election law within the two years of election cycle. And so, yes, the standard is, is this incident, the fact pattern, capable of repetition yet evading review, either because the students will always graduate beforehand, but then there's just going to be students coming up behind, and so you're just going to have this over and over again, or in the campaign context. And then there's a question about the abortion context, of course. Right, right. And then also, if you have damages, you can litigate over damages,

even if you're gone, you're out of school or whatever. This is your nominal damages point from last term. This is why you were so hot to trot on it. Hot to trot is an understatement. It was, yes, I was fired up. Fire to gallop. So that was a really nice segue, Sarah, when you brought up election law. Because our next topic is a memo.

A memo. Okay. A memo. Okay. So for a long time, I have been kind of curious as to what was being told to Mike Pence prior to January 6th that as a grounds for him intervening. Words had to be said to him other than make Donald Trump president. There had to be a way in which, a reason why people were believing, or if not believing, saying to him that he had the power, that he had the authority to change the outcome of the election. There has to be a reason grounded in some set of words other than the fact that Trump isn't president anymore, why Trump still has an ax to grind against Mike Pence. And we've got it now, Sarah. We have it. Thanks to the Woodward and Costa book that we've already talked about has unearthed at least stories of an Oval Office meeting where President Trump is with John Eastman. Eastman is presenting a legal argument to Pence,

and the legal argument is now out in the open. And it is a memo that argues that Pence, essentially, what first leaked was sort of a two-page bullet point version. But now there's a longer privileged and confidential, not confidential anymore, January 6th scenario that outlines alleged illegal election conduct in Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, Nevada, says that we're not playing by marquee of Queensberry rules anymore.

And so therefore here we're going to war game the alternatives. And the couple of alternatives that were war-gamed were pretty darn terrifying. And one of them, the one that was essentially, I think, the most operative theory going in, was that Pence would essentially take seven states that had been contested, seven states that had been contested and that there were allegedly competing slates of electors. We can get to that. And essentially just not count them at all. In other words, once they got, start with Alabama,

and then once you get to Arizona, you would table Arizona. And then you get to Nevada, you would table Nevada. And you just sort of table those. And then by the time you get through the 43 states that don't have the quote-unquote competing state of competing electors or aren't contested, the tally would have been 232 for Trump, 222 for Biden. And then because the 12th Amendment says majority of electors appointed, then Pence would just essentially gavel in Trump as the winner of the election. And then if anyone got upset about that, he could toss it to the House where there were 26 states for Trump, 23 for Biden, and one split vote.

And if Republicans stand firm in italics in the memo, then Trump would win. I have thoughts on this, but I'm eager to hear yours. Okay, before we get to part three, which is the part you're talking about i do want to talk about parts one and two okay so because i think part one is worth more consideration than people have given it okay part one is entitled illegal conduct by election officials and it goes through ge, Pennsylvania, Wisconsin, Michigan, Arizona, and Nevada. And what you think you're going to see under there is dead people voting and stolen ballots and boxes being found under tables and sort of the nonsense that we came to expect based on many of the lawsuits filed. That is not actually John Eastman's point.

His point is that state election laws were altered or dispensed with altogether because of COVID. And that therefore that they violated their own rules and that made the voting illegal. I think that that is a very different argument than what was brought in a lot of those lawsuits that were, to me, frivolous means wasting the court's time. What is something that is like, what is frivolous dangerous? Where they were saying that actually like the votes themselves, the voters, you know, that didn't exist, there was ballots, nothing, et cetera. That to me is baseless, dangerous. There's never been any evidence for it. It was thrown out in every court that heard it,

including those that had full hearings, which is always important for me to add. These were not just kicked on standing. The complaint, however, that states ignored their own laws because of COVID, I think is a valid one. It's a problem that that happened. COVID was unique. This didn't happen like in a bubble where states just decided to ignore their laws. The problem with Eastman's

argument in one, he actually lays out in those six states that I mentioned. For instance, the Secretary of State in Georgia altered the signature verification requirements via an unauthorized settlement agreement. Portable polling places targeted to heavily Democrat areas, refusal by the state judiciary to even assign a judge to hear the statutory authors. Okay, well, maybe those are stupid. There were some other ones. Yeah, there's still a lot of them in there. Okay, the Michigan one. Here we go. Mailed out absentee ballots to every registered voter contrary to statutory requirement that the voter apply for an absentee ballot. That was a real controversy in Michigan.

I think that is worth a conversation. And A, I do think it's very different to say that more legal voters voted because the rules were relaxed than that there were illegal votes. That's totally different to me. Like these were legal voters. They had every right to cast a ballot. They only cast one. They were registered, all of that stuff. You just think the method by which they did it, that they needed to request

an absentee ballot. Instead, they got one sent to them, that that was just against the rules. And the rules are the rules and they were set up ahead of time. I am very, I'm happy to have that conversation, but I think it's, I want to define the terms of it. These were legal voters. Okay. Number two, though, he's mentioning six states. What he doesn't mention is all of the states that Trump won that also changed their rules. So Texas, for instance, changed their rules because of COVID as well. Do we toss out Texas's votes? In order to do this, you don't just get to pick your six states. You're going to have to go through all of the states. And it's not enough to say that, well, these were the closer ones.

Well, if there were more, you know, if the rules were changed and that's the objection, then it's not how close it was. Because then what you're talking about is fraud. Well, that's not what this complaint is. You're not saying it's fraud. You're saying the rules changed. Then we have to go through all the states and toss out all the ones where the rule changed. Once you toss out Texas, that's sort of the ballgame as far as that's all concerned.

So section one, that to me is really important that we distinguish between those claiming that there were illegal voters, if you will, versus the rules in individual states. They didn't follow their own law. Not that those votes were illegal exactly, but that they didn't follow the procedure that was set up. And can I jump in here real fast on that? Because, yeah, I'm very glad you brought that up. And also it's important to note, however, that this issue was litigated at least in the Seventh Circuit. So the constitutional basis of this is this idea that if there were these COVID changes and the COVID changes did not come from the legislature itself, then you're violating the electors clause in Article 2 of the Constitution that says electors are appointed in such manner as the legislature of the state may direct. So in other words, if there's any change at all, it's got to come flat out straight from the

legislature. And some of these were settlement agreements. Some of these were election official changes. Some of these were, you know, there were a lot of different ways in which they were changed. And this was litigated. And actually there was a Trump appointees, Trump appointees decided it. So Brett Ludwig on December 12th dismissed the lawsuit involving Wisconsin, and he explained it very well. He said the electors clause, the word manner, refers to the form or method of selection of electors. It requires state legislatures merely to set the approach. In other words, the state legislature could say that the governor appoints the electors. The state legislature could say that it appoints the electors. It could say that the voters-

Winner take all by congressional district. Exactly. And so that means that this is not all of the precise procedures are designated by the legislature merely that the form the is it an election or is it not and that was that approach was affirmed by the seventh circuit with also um a couple of other notations which was these federal courts aren't the final authority on wisconsin law and two a lot of these changes weren't COVID changes that are being outlined. They had been part of the election law for a long time and had not been challenged. So I think one thing that's important to note

is that at least in the Seventh Circuit, this very issue that Eastman is kind of hinging everything on was litigated and was decided decisively against the Trump campaign. Also worth noting, just because you mentioned that some of the policies had been in place beforehand. In general, if you want to challenge an election procedure or policy, you got to do it before the votes are counted. Just generally speaking, our legal system doesn't look kindly on losing and then going back to look at what you don't like. Estoppel, we call it in law, generally speaking.

But Wisconsin, for instance, allowed election officials to add missing information to absentee voters or witness declarations contrary to law, which says that such ballots must not be counted, according to the Eastman memo. witness declarations contrary to law, which says that such ballots must not be counted, according to the Eastman memo. Again, that to me is a relevant thing that people can talk about. So just when we talk about the Eastman memo and people in the press and out there like, it was so bonkers. I don't think section one is bonkers. I think it's incorrect for some very good reasons, but lots of reasonable people can complain when a state doesn't follow its own procedures, even in the middle of a pandemic. And we should litigate it.

And we did. Now, he has a problem, though, because at the end of that section, he says there are thus dual slates of electors from seven states. And I was like, wait, what? What dual slates? And he says that Trump electors in the six above states plus in New Mexico met on December 14th, cast their electoral votes and transmitted those votes to the president of the Senate. No, that's not a dual slate of electors.

That's not what that means. So, okay, we're starting to, it sort of gets a little more bonkersy. So section two, the constitution and statutory process for opening and counting of electoral votes. So there's the 12th amendment, which is pretty short about this whole thing. The president of the Senate shall, in the presence of the Senate, the House of Representatives,

open all the certificates and the votes shall then be counted. Cool, cool. But as we've talked about extensively, and I loved it so much uh the electoral count act of 1887 which came in the wake of the 1876 election and if you're looking for reading don't miss out on chief justice renquist's centennial crisis where he personally writes up the history of the 1876 election and the flor recount of sorts from back then. He writes it after Bush v.

Gore. He must have had a lot of pent-up feelings after Bush v. Gore. That was an unsigned 5-4 opinion, so cool. So you had the electoral count of 1887. You and I talked a lot about how that was maybe the worst written statute that we've ever read. I stand by that. There's endless things to be very confused about how it actually would work in practice. But Eastman says, we believe that that statute is unconstitutional. Okay. That will be very, very important to his section 3. He kind of lays out why he thinks it's unconstitutional, but for instance, he says that Electoral Count Act allows the two houses, quote, acting separately to decide the question, whereas the 12th Amendment provides only for a

joint session. But let me go back and read that to you. The president of the Senate shall, that's the vice president, shall in the presence of the Senate and the House of Representatives open all of the certificates and the votes shall then be counted. I mean, I agree it only talks about a joint session, but nothing in the Electoral Count Act of 1887 directly contradicts that. What it says is that if there is a discrepancy, if there's dueling slates, then both houses go to their separate houses to vote on which slate to accept. If they both accept the same slate, great. It's sort of like those old dating games, remember, from the 80s, where both people have to have the smiley face to actually have their

date paid for by the television show. If, however, the two houses acting separately shall concurrently decide such votes not to be the lawful votes, great. But if the two houses shall disagree in respect of the counting of such votes, then in that case, the votes of the electors whose appointment shall have been certified by the executive of the state under the seal thereof should be counted, i.e. the governor's slate. In a tie, basically, we need to pick a tiebreaker and we're going with the governor's slate. Yeah, the 12th Amendment doesn't provide for that, but it also doesn't provide what to do if there's dueling slates and there's a tie. That's the whole reason that 1876 was a mess. And, you know, the whole Hayes-Tilden controversy.

So if the Electoral Act of 1887 doesn't contradict the 12th Amendment and, in fact, fixes, provides a solution for a situation that is not contemplated in the 12th Amendment, that's not contradictory. It's not unconstitutional but it's very important because the rest of eastman's whole theory rests on the unconstitutionality of the electoral count act of 1887 right and essentially if you boil it all down he's kind of saying and even more than kind of saying well since that electoral count act is unconstitutional pence is just kind of in charge of this whole thing that's right so and this is exactly the problem with the 12th amendment because eastman's saying there's these dueling

slate of electors great the 12th amendment doesn't say anything about what to do in that case that's why there was the electoral count act as i said, so we get rid of the Electoral Count Act, you're back to only the 12th Amendment, according to Eastman. And so his answer is, we just do something else. So instead of the Electoral Count Act, we have our own version of what to do with dueling slate of electors, one that benefits us. And that is the vice president, the president of the Senate, just decides on his own which one to accept or as he actually wants, though that's it. I mean, baffling to me that how he thinks this is the answer. If there's a dual slate of electors, you just don't count either slate. That is 100% not provided for in the 12th Amendment. And it's certainly like that's a weird thing to come up

with once you've tossed out the Electoral Count Act because it's so clearly something that would need to be provided in statute. And the reason that it would never be provided in statute is because what's the incentive at that point, David? For every set of losing electors to meet in a hotel room and send their own slate, if that would ever be counted as a dueling slate,

which of course it would not. That's not what a dueling slate even refers to. But yeah, then every state would just send in their Trump votes and their Clinton votes, and then whoever the vice president is gets to pick. Yeah, sure, that would work for self-government. Great idea. Good plan. So that's his first idea. Then his second idea still relies... That one's even weirder because at that point it goes to the, uh, in the constitution it's provided for that the house of representatives decides who will be sworn in as president if there is a tie. Right. Okay. But Eastman gets it to the house of representatives because you only have the 12th Amendment.

Based on that, the vice president gets to decide, the vice president decides to toss out anything with a dueling slate of electors. People are mad about that, so it goes to the House of Representatives. That is truly made up of whole cloth like i don't mer mer um so yeah there's problems david i like 4.4 in bold face it says bold certainly but this election was stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage. We're no longer playing by Queensberry rules. not facially crazy legal argument about the manner of the election. Now, it's not facially crazy. It

was also litigated and rejected, but not facially crazy. And then moves into coup town very quickly. And the bottom line of this is, if this reasoning reasoning held that Kamala Harris decides the next presidential election. Yeah. And what's interesting about that is it doesn't matter whether the next presidential election is close. Nope. It doesn't matter whether the states all follow their own rules or there's illegal voting. None of that matters. All that matters is that

the losing campaigns slate of electors, it doesn't even matter how many of them, some number of them, more than one, I guess, two people from the Biden team meet together

and send in their own quote unquote slate. And now Kamala Harris gets to decide the election, according to John Eastman. That's odd. And then to your point, he actually says that like, no, I think his argument would be no, because this election was special because what you just read, it was a democratic conspiracy to steal the election. Well, who gets to decide that? Well, and who gets to decide that is entirely the VP in his reasoning. Right, right.

Exactly. But, you know, this is something. I was on a Zoom with a really interesting group of people earlier, and they were talking, and we were talking about the necessity of civics education. This kind of thing demonstrates why a lack of civics can actually be dangerous. Because if you don't understand the basics of how the American system works, and you're deeply, angrily partisan, and you're quite convinced that something's wrong, and you get a law professor, law professor, FedSoc practice group chair, Claremont fellow or Claremont center for whatever,

whatever, credential, credential, credential, credential, credential. And he can say, Jefferson Adams,

Lawrence tribe, 12th amendment. Here we go. And how do you know better? How do you know better? Here's where I disagree with you. A, clearly civics education didn't help John Eastman. B.

Well, I don't think he's operating in good faith. Fair. B, we have endless now, it's not even polling at that point, I guess it's polling, showing that civics education awareness in the country has skyrocketed under the Trump administration. People are far more aware of the three branches of government can name various members of our, you know, the Supreme Court and their senators, whatever. That has not been to the good. As it turns out, people are more civically engaged because they feel threatened. threatened. And number three, the amount of civic engagement that you would need to decipher the Electoral Count Act of 1887 and decide whether it's constitutional, I think is beyond what we

should be asking most people in terms of their time commitment to engage with. Okay, two things. One, you just were saying that it's too much to ask people to listen to this very podcast. that it's too much to ask people to listen to this very podcast. Because this very podcast... Maybe it is, David. Maybe it is. It is not. It is not. This podcast should have an audience of tens of millions. It's only two hours a week. That's it. So, number one, you're undermining our own podcast.

Shame on you. That's it. So number one, you're undermining our own podcast. Shame on you. Number two, I'm not talking about Electoral Count Act of 1887 knowledge. I'm just talking enough knowledge to be able to say, you know what? If he's arguing the VP gets to decide

the presidential election, something seems fundamentally off there. This is fundamentally off. See, and that to me isn't civics education. That and Steve and I interviewed the author of this book, The Scout Mindset. And I thought she just made this wonderful point in her book. Julia Galef, by the way, is her name. G-A-L-E-F, Scout Mindset, Why Some People See Things Clearly and Others Don't. It's a fabulous book. And our interview with her was wonderful. And I have this enormous girl crush on her.

Hey, Julia, if you're listening, give me a call, girl. But her point is, so often, if you have a point of view, when you see information that confirms that point of view, you ask, can I accept this new information? And if you see information that disputes that point of view, you ask, can I accept this new information? And if you see information that disputes that point of view, you ask, must I accept this information? That is what you're talking about, that people who want Trump to win see the Eastman memo and say, can I accept this? I don't know. He seems pretty credentialed. Great. Whereas if that same memo had been in favor of Kamala Harris picking the next president, they would say, must I accept this as accurate? Let me dive into the details and the vice

president gets to pick. Oh, goodness. No, that can't possibly be constitutional. That to me is the problem. It is not one of civics education. All right. Well, I'm going to give one last pitch for better civics education because better education influences the answer to, can I accept it? But not civics education, just good education and good parenting and making your children read the scout mindset, I guess. I don't know. That sounds like a great book, though. I talk to my students a lot about the difference between cynicism and skepticism. Skepticism is something we should be teaching in school, how to bring a skeptical eye to any new information that someone is trying to use to persuade you of anything, even to

persuade you to believe more strongly in something you already think. Cynicism is something eroding. And I think we have a lot more cynicism than skepticism. And again, don't think it's a civics education problem. And in fact, the fact that civics education has gone up has tracked with our partisan divide and negative partisanship and polarization

in general in the country. So David's wrong, I'm right, but we can move on to the next topic if you'd like. Okay, well, we will. All right, we'll table this one for now. Okay. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories

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That's A-U-R-A frames.com to get $30 off plus free shipping on their bestselling frame. That's a U R a frames.com use code advisory at checkout to save terms and conditions apply. Next topic, the protecting our democracy act. Now, uh, full disclosure, some of the guys who are, uh, at the organization protect democracy who have been working on this legislation are good friends of mine, and I like a lot of it. Now, don't disagree with me again, Sarah, because I like this, but you brought this up to us

as a potential subject. Did you just do the royal us? Who is this us business? I brought it up to you. Us? Is legendary producer Caleb not part of this team? Are you kidding me? That felt very royal.

Do we not have multiple? My goodness. Okay. Okay, let me read to you. Caleb, I am not dehumanizing you. I am not othering you. Okay? All right.

Excellent. I'm already in trouble with Caleb for any number of things right now. So this isn't good. This is taking a bad turn. All right. Let me read to you the summary of what's in it. The Protecting Our Democracy Act would make it harder for presidents to take a series of actions, including offering or bestowing pardons in situations that raise suspicion of corruption, in situations that raise suspicion of corruption, refusing to respond to oversight subpoenas, spending or secretly freezing funds contrary to congressional appropriations, firing inspectors general or retaliating against whistleblowers, and taking, quote,

emoluments or payments while in office, including from commercial transactions. So, David, there's, of course, two things here, going back to Jurassic Park. One is the can you, and one is the should you. I would like to start with the should, actually, before we get to the can. So why don't you give us the defense of the why should we be in favor of this? give us the defense of the, why should we be in favor of this? Okay. So first on the should, it's really hard for me, Sarah, just to separate the can and the should. So let me make the shoulds where I think the can is most clear. Okay. Okay. So for example, the no president is above the law act, which is a part of this, that would toll statutes of limitations so that presidents can be held accountable for criminal conduct like every other

American. In other words, so if while you're president in the United States, the statute of limitations on whatever offense you may have committed doesn't run, I think that that is a very sensible legal reform that allows for criminal or civil accountability when people actually break the law. The other one, enforcement of congressional subpoenas. Okay, this is an issue that I think is really important, and the toothlessness of Congress in its subpoena oversight as if the toothlessness of Congress in its oversight role has been made apparent by the fact that congressional subpoenas have been and are flouted with near impunity. So the ability of Congress to exercise its oversight role has been essentially gutted because Congress has so little authority to actually enforce their subpoenas. So on the

one hand, yeah, you have to comply under pain of legal penalty. And then you say, well, okay, of legal penalty. And then you say, well, okay, make me. And there's just not that much that Congress can do. So even marginal increase. So how does this add the toothiness? What teeth are they adding? Well, that's the problem. It's, you know, at least at the very least, you know, because one of the problems here is where you're can and you're should. Oh, there's some can problems. There's a lot of can problems. But one of the important things is the ability to enforce subpoenas through civil suits and to provide for a more efficient ability to enforce through civil suits, I think is key. The problem on enforcement, criminal enforcement of the subpoenas is still going to run into a lot of the can aspect because criminal prosecution is an executive function.

One of the problems when someone's been held in contempt of Congress is then they're therefore referred to a U.S. attorney for prosecution. The U.S. attorney is part of, you guessed it, the executive branch. And we've got we're right back where we started. So I'm not saying this is a cure all. I'm saying that this is an improvement. Okay. I like the civil lawsuit beefing up. And I think in general, Congress trying to take back its power is to be lauded. I'm for it. I'm even for it if there's a tie right now, the tie should go to Congress. You know, I mean, a constitutional tie of sorts. But I'm dubious of the ability to I'm dubious of the ability to regulate the pardons. Yes.

The ability to do that. OK, so let's start with that then. to Clause 1 of the U.S. Constitution, the president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. On the one hand, it doesn't say that you can't limit that to be also in cases of potential corruption. On the other hand, there is a canon of interpretation that says by including one thing, you necessarily exclude others. So when it says, except in cases of impeachment, and only says except in cases of impeachment, that perhaps we could read into that, that if you thought that he was granting pardons because of corruption, that you could impeach him. So I think that's a problem with adding other limitations to the pardon power, David. Right. Now, the pardon power is one of the closest things that we have

in American constitutional law to sovereign power that kings used to exercise. So this is sort of the president of the absolute apex of his unchecked constitutional authority. So this is sort of the president of the absolute apex of his unchecked constitutional authority. So I'm dubious of the ability of a statute to be able to pull that in. Worth trying, perhaps. Worth testing, perhaps. What's your thought on the

foreign and domestic emoluments reform? That I actually think they can do. Totally. It is the one thing in this that is a can and a should. I mean, it's not a should that weighs highly on my mind, but no problem. I don't see any reason why presidents should be needing to make money. We pay them $400,000 a year to live in the White House. That should be more than enough to live on. We pay them $400,000 a year to live in the White House. That should be more than enough to live on. And absolutely nothing in the Constitution says that presidents or even implies that presidents should be able to make an outside income. Now, it only bans foreign emoluments, which the courts have found, of course, is something pretty specific in terms of like foreign governments giving the president

money, basically. And his business through the hotel was found not to do that. Fair enough. I actually think probably that was legally correct. But yeah, absolutely nothing preventing Congress from preventing the president from a side hustle. But David, you agree with that, I assume. Yes. Yes, I agree with that. I actually think the biggest problem in this is the firing inspectors general. That is, boy, that's the executive, that is the executive authority question, isn't it?

That is absolutely the executive authority question.'t it that is absolutely the executive authority question and has been answered you know and and more so just in the last couple years there's a reason that biden is going through and firing all of these um trump appointees that have terms because under the supreme court's last term term before basically, no matter what the statute says, every executive employee has to be at will. They can't be for cause, which was new. It had been debated since Humphrey's executor, like 100 years later, we're finally dealing with this. Now, here's what's interesting about inspectors general. There is some argument that they actually are Article 1s sitting in Article 2s. And so the argument from Congress would no doubt be, no, no, no.

These are our employees that we have sent out into the executive branch by force. A parasite that just sits on the hindquarters of the executive. But there's a big problem with that. First of all, they're not. I think you could rewrite them to actually be Article I employees. Bingo. Sit in Congress, but whose sole job it is

to investigate a single brand, a single department of the executive. But that's not what they are right now. They are clearly Article II employees. That's why the president can fire them at all. And he can by statute that Congress passed. And those inspectors general have access to executive branch deliberations, a whole bunch of stuff that clearly makes them Article 2 and not Article 1. And if they have access to that Article 2 stuff, then the president has to be able to fire them at will. So here's my, here's my modified agreement with that. Okay.

So a lot, I agree with you completely that if you're going to try to protect inspectors general from the term from termination by the executive, you have to pull them with an article one. They have to be employees of Congress. Their salary has to be paid for out of appropriations from Congress, Congress's budget. Now, here's the interesting question. Since a lot of these executive agencies are creatures of statute to begin with,

can they draft the statute to essentially give the inspectors general full form free access to crawl all through the woodwork of the agency that Congress has created. So I think though you run into, you're back to the subpoena power, like in the end, it would still come down to congressional subpoena power.

That would be the power of the inspector general. But you also have this overarching power that Congress has always had and needs to use the power of the purse. David, you could always say if you don't give our meaning our Congress's inspector general access to all these materials. You lose your appropriation. The end. They could do that. They're just not willing to.'s the actual power congress really truly only has two powers well three they have the power to declare war they have the power to impeach a president and they have the power to appropriate funds why why do they pretend like that third power like they don't really have because they don't want to have that because

the power to appropriate funds is also the power for everyone to complain at your priorities. And that's, that is the power I think that Congress has chiefly relegated to the executive. Right. Right. No, I, we are going to put into the, into the show notes, cause this is a big bill. There's a lot to it. The house analysis of the bill sort of explaining each of the provisions and the reason and justification for it. So this is a big bill there's a lot to it the house analysis of the bill sort of explaining each of the provisions and the reason and justification for it so this is this is one one side of the argument this is the the democrat side of the argument so be clear about that um but yeah it's very interesting i think a lot of it i would like to see become law a lot of it i would some of it i think has some of the issues that Sarah identified and I agree

with. But a lot of this I would like to become law. Will it? Will it? And some of these things, to be clear, some of these elements Republicans have liked when Democrats should, of course, want Congress's subpoena power to have teeth. That's the most hilarious part to me that if you just did that part alone, that should have 99 votes with someone like sneezing and hitting the no button. That one's a no brainer because really Republicans are the ones who were so frustrated and thwarted during the Obama administration, whether it was fast and furious Benghazi. I don't mean that necessarily those were worth all the time they spent on it, but boy, were they mad that they weren't getting the documents they wanted.

So give it some teeth boys. If you care about that, otherwise shut up, put up or shut up. All right. One last quick thing. Cause we're running out of time. So Reuters earlier this week did a big story.

Cause you guys remember we've talked about CRT. How many times? How many times, Sarah? So many times. So many times. And my state, as loyal listeners know, is one of the ones that has passed a very broad anti-CRT law. CRT law. I have written in opposition to these anti-CRT laws at length in multiple publications, including the dispatch multiple times. And one of the arguments that I made is these laws are extremely broad, they're extremely vague, and they don't actually ban CRT. They ban more than CRT without banning CRT. Other than that, Sarah, they're just fine.

But so I live in a very conservative town. You put in my neighborhood, you put in my address in the New York Times tracker, my neighborhood, Sarah, is 85% Republican. And we are, much to my surprise, the hotbed right now in the state of the CRT debate. Not because there's CRT in Williamson County, Tennessee, Sarah, but because the law is so stinking broad and vague that it empowers parents to essentially complain about any curriculum on race they don't like. And why don't they like it? Because it makes them feel bad. And so there is one of the first of the actual written complaints against a school district on the basis of these anti-CRT laws actually comes from my town, Franklin, Tennessee. And it is centered around four books, Martin Luther King Jr. and The March

on Washington by Francis Ruffin, Ruby Bridges Goes to School, My True Story by Ruby Bridges, The Story of Ruby Bridges by Robert Coles, Separate is Never Unequaled by Duncan, and I'm going to mess up the pronunciation, forgive me, Tonatia. And these books are not Natia. And these books are not critical race theory. They are second grade level written books chronicling some pretty bad parts of our history that also have some hopeful elements, such as desegregation. That's good. Segregation. But it details segregation. That's bad. Martin Luther King Jr.'s March on Washington, a great moment in our history when the tide began to turn. Why did it have to turn?

Because of bad things that were happening. And the complaint says these books reveal both explicit and implicit, explicit and implicit anti-American, anti-white, and anti-Mexican teaching. anti-white and anti-Mexican teaching. And essentially, so this is something that is made, a complaint made under the anti-CRT law. So it's not CRT, it's actual history. And there is an argument about, is it appropriate to teach second graders these things? Well, I'll tell you what, Sarah, when my youngest daughter was in second grade, what did she encounter? She encountered some pretty blatant racism. So is it too early to teach second graders about this? You know who else encountered quite a bit of racism

on her way to school? Hmm, let's see. Would it be Ruby Bridges? to, I mean, to call it a desegregated school is kind of a joke because it was all white students in Ruby Bridges. But I mean, you're losing at that point. And to call that CRT is disgusting to me. Again, I'm not saying this needs to be mandatory reading for every second grader, Okay. But to try to ban Ruby Bridges' own words from being taught to your second grader, I start to question what you're teaching your second grader at home, frankly. Yeah, that's a great way to put it. It's a great way to put it. And so we're going to put the complaint in the show notes. We'll put the Reuters story and there's more to you know they're so it's these books and then teachers guides connected to these books but if you look at what they are objecting to is actual historical so for example this is something that they're objecting to page 22 and

23 of martin luther king jr in the march on washington shows photographs of white firemen blasting black children to the point of bruising their bodies and ripping off their clothes. These aren't cartoons, right? Like this is, you're not objecting to critical race theory. That is a pedagogical, you know, concept that we've talked about at length about why it really should be more in law schools or college at most. should be more in law schools or college at most. But you're objecting now just to race history of the United States because you don't like it and because it makes you feel uncomfortable and because you hate that this country was segregated and racist and that it had slavery. And I understand that feeling of hating that that is part of our history. But it is part of our history. And those pictures are part of our history, but it is part of our history.

And those pictures are part of our history. And what happened to Ruby Bridges is part of our history. And to refuse to teach your students about that is a disservice to them. It is also a disservice to our country and to its history. Right. Right. I mean, I could go on in this. I won't go on in this because we've got to draw to it. And by the way, just on the legal side, real quick, real quick. I just have to. Yeah, yeah, go, go. You can't teach your students about the importance of the rule of law and the importance of our constitution and the importance of textualism and originalism. You can't do that without

teaching the bad parts of our history. It doesn't make sense without the bad parts. It's important because of the bad parts of our history. That's why we've built this whole thing in. And so to just skip over that is actually, to me, to undermine what you said, David, about civics education. But something more fundamental to me about civics education is the rule of law, the rule of our law, the rule of our self-government. You have to teach the Ruby Bridges part of our history to understand that. Absolutely. Absolutely. And the idea that some of these attitudes are entirely a part of our

history is fiction. And one of the things that teaching that history does and teaching and demonstrating sort of the depth and the viciousness of racism is a way to try to inoculate people against racism. I mean, this is the kind of thing where you, I really don't, I dislike the idea that says America's made no progress since these terrible times. Of course, we've made immense progress, but I also dislike the idea that says America has solved this problem. And all of this history does is make you feel bad about a country that's already passed all this. And look, when I grew up, I was taught that we're past all this sort of school of this. And I'm growing up in the 1970s and 80s, and I'm being taught that we're past this, which is just less than 20 years after the Civil Rights Act. Like that, that's all over now. And, and that was a disservice to me. I mean, it was a disservice to me as a student.

It was disservice to me as a citizen. And so I think teaching this history is incredibly important. And look, if you're introducing the Revolutionary War, you know, when kids are in young, young age, you can introduce some of these other elements as well. But okay, all right, off the soapbox. Off the soapbox. But this is what I was arguing would happen. That people would see history, they would feel bad about it, and believe that these

statutes gave them authority to have the state swoop in and solve their bad feels. And that is not the role of state in American education. So that's my soap. Okay, I climb back on briefly. I just think Ruby Bridges wrote this book for students that age. Like, thank you, Ruby Bridges. Thank you for taking that experience and making

something really positive out of it and sharing it with us um and i plan to very much have nate read it absolutely and um so we're going to put the complaint in we'll put the reuters story in and if i've got time we there are links you can go on youtube on YouTube and people read these books aloud on YouTube. It's kind of nice. But anyway, thank you guys for listening. We've hit a bunch of different topics. And we'll be back on Monday, but without Sarah. I don't know what I'm going to do yet, Sarah. I don't know what you're going to do.

I mean, who knows? Y'all keep an eye on him for me. Take good care of him while I'm gone. You're going to have an actual vacation. A real one. It's going to be fantastic. Well, we'll muddle through in your absence, but we'll be back Monday.

So please rate us based on these episodes and not next week, which won't be as good on Apple Podcasts. Subscribe on Apple Podcasts and please check out thedispatch.com. And I and maybe probably somebody else will talk to you on Monday. Thank you.