Advisory Opinions - Fog in Kenosha

Episode Date: August 27, 2020

Violent riots escalated quicky in Kenosha, Wisconsin, after the police shooting of Jacob Blake. . On Wednesday, 17-year-old Kyle Rittenhouse was charged with first-degree homicide for the shooting deaths of two people in Kenosha on Tuesday evening. Sarah and David break down what we know and don’t know about the Jacob Blake shooting on today’s episode of Advisory Opinions and talk through the legality of vigilante justice during times of unrest. “These really traumatic events are playing out in front of all of us,” David says on today’s episode. In one sense they’re playing out in a way that’s quite transparent because you can see the actual shootings on tape. “But there’s still a disturbing amount of fog around all of the incidents,” he adds. As Sarah explains, “We’re never talking about black and white cases but then everyone treats them like they’re black and white cases.” From a legal standpoint, law enforcement officials will have to fill in those gaps before they can render a clear legal judgment in all of these shootings. Sarah and David also take a walk down memory lane by revisiting Bush v. Gore, while also diving into the recent TikTok lawsuit and a fun conversation about our podcast hosts’ favorite parts of adulthood. Show Notes: -Video of Jacob Blake shooting, Bush v. Gore. Learn more about your ad choices. Visit megaphone.fm/adchoices

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It's poutine mixed with kimchi, maple syrup on halo halo, Montreal-style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we're going to cover, we're not going to have as many things that we're going to cover today, but they're going to be consequential. So we're going to talk a little bit about what's happening

in Washington, some of the law and surrounding the events that are happening in Wisconsin, what we don't know and need to know, for example, about the Jacob Blake shooting and some of the law surrounding the vigilantism we've watched unfold over the last couple of nights, including some legal complications around the shooting that occurred last night where two people were killed,

one person seriously injured, really an awful night of violence. So we're going to talk about that. We're also going to go take a walk down memory lane, a legal memory that might become pretty darn relevant really soon, a little case called Bush v. Gore. We're also going to talk about TikTok. And then we're going to end up with an interesting question that Sarah asked during the Dispatch pod

that bears further conversation in this, the premier pod in the Dispatch network. Sarah, so you've been monitoring what's been going on in Wisconsin. You've watched all of the relevant videos that are out there, including the really rough, they're all really rough video. Just tough to see the Jacob Blake shooting, the video of the shootings last night. What are your initial thoughts? And we've talked the politics of this in the Dispatch pod that will be coming out before this podcast comes out. But what were some of your thoughts as you've seen this unfold? what were some of your thoughts as you've seen this unfold?

Per usual, these videos are incredibly hard to watch. And it's upsetting to say per usual, but that's what's happening. David, you know this because you have children and you have a wonderful wife. But there are certain things that happen postpartum to your brain chemistry as a woman that are just different. And, um, for me, it's been some anxiety related to my little baby. Um, that especially as I get tired during the day, my anxiety increases and I know that it's not always rational, but I have to just say, knowing that his kids are in the back of that car as you watch the video, for me, was even more difficult than I think it would have been a year ago. And I was watching the video and I was a little tired. And so it's just very, very hard to know

that there were children in the back of that car and that that was their father that they were watching. Set aside the law, you know, just as a human. And then you have the video from Wisconsin last night. And what struck me about that is how preventable that was. Oh, my goodness. That was a loss of life that, you know, everyone in that situation didn't need to be doing what they were doing in a lot of ways. And then the result is this catastrophically tragic result.

We can talk about the legal aspects of that. But if you're the family of everyone involved in that, you're just what a waste. Yeah. I mean, and in some ways, I felt like what happened ultimately last night in Kenosha, where again, two, two people were killed. One was seriously wounded.

This was in my view, and I hate to say this inevitable. Um, there was, there were only so many circumstances where you were going to see clashes between violent protesters and armed militia before somebody was going to pull a trigger and it looks like somebody certainly did and it looks like probably two somebodies did last night killing two people um you know one of the things and i and i mentioned earlier, that is tough about this is that these really traumatic events are playing out in front of all of us.

In one sense, they're playing out in front of us in a way that's quite transparent. In other words, you can see the actual shootings. I mean, the actual shootings were captured on camera, but there's still a disturbing amount of fog around all of the incidents. And so everyone can impute all of their priors into both incidents and come away completely convinced of sort of the rightness of their preexisting view. Should we kind of talk about like what we don't know convinced of sort of the rightness of their pre-existing view.

Should we kind of talk about like what we don't know and know and don't know about both of them? Yeah, absolutely. Okay. Well, let's start with the Jacob Blake situation. There are two, I have been looking at these police shootings a lot over the last several

years and, and breaking them down and analyzing them from a legal and cultural standpoint a lot. And there's a couple of things about this that stand out to me. One in which indicts the police and one in which might exonerate the police so the one that indicts the police is that when you see a lot of police shootings one of the things that you will often need to do is rewind the tape minutes before or you know you know minutes before the actual moment of the shooting a lot of people will focus down on the actual moment of the shooting. A lot of people will focus down on the actual moment of the shooting and try to judge everything by that.

And one of the questions that I have about this is when the police arrived, under what circumstances were they arriving? There's been a dispute on that. Was Jacob Blake trying to break up a fight that other people were involved in? Was Jacob Blake the subject of the complaint when the police arrived? He apparently had a warrant out for his arrest.

At what point were the officers aware of that? What did they believe that he had been, what was their state of mind on what his prior criminal record was to the extent to which influences the way in which they thought he was potentially violent did they believe that he had a weapon with him at any point all of these are questions we don't have definitive answers to but there is something that i'm very curious about and that is why could four officers not control him physically before he walked into the car and i think that that is walk to the car because i think that that is going to be a very important question to answer

as to why things got so bad the actual reach into the car um there have been recent cases sarah in which juries have exonerated officers who have fired on a suspect who reached into a car and they could not see what the suspect was reaching for. The most recent example of that is the shooting Betty Shelby, a Tulsa police officer who shot an African-American man named Terrence Crutcher. This was a couple of years ago where he was in the street was not obeying her commands she asked him not to reach into the car he reached into the car she fired a shot and she was exonerated from that in that circumstance because of him the fact that he reached for something in defiance of commands created a reasonable sense of risk to the officer. And so there's actual

recent cases where that reaching has been deemed to be sufficient justification. But again, this time an officer was right on top of him. What did the officer see when he started firing? Or did he, you know, so there's so much we don't know right now that makes it so difficult to draw a definitive conclusion about the event. And a couple things on that. One, there's two officers right there behind him at the door of the car. One's in front of the other. As you said, there's a lot we don't know. But the officer in front should have been able to see more than the officer behind him so if you haven't seen this video it's

basically three people back to back to back right um you know did the front officer yell gun we don't know um and then the back officer shoots we actually i do not know who fired these shots i both did um there's also been some discussion about taser was used earlier we've talked about this before but the reasonable use of force question is one that is a very very narrow time frame it is in that moment Did the police officer fear for their life? Reasonably. Reasonably. It is not. Did they allow it to escalate too much before that? And so I think for a lot of non-lawyers who watch a video like that, you're like, this was preventable. Every step of the way, this could have happened and this could have

happened and this could have happened. That is true, and it's an odd part of our law that when it comes to these things, that usually does not factor in to the legal question of whether the officer reasonably feared for their life in the moment that they fired the shot. I'm really glad you brought that up. This is one of those cases I think that's going going to stun people. And you're going to have a lot of people who think that that is a really unfair legal analysis of it. Yeah. As I've looked at a ton of these cases, I've generally grouped them into three general three general categories. So category one is a shooting by the police that is righteous and prudent from the get-go all the way through. So you will see this and you can find these on the internet. And there is an active shooter. Somebody is in the process of shooting and a police officer rolls up and takes care of the situation. That's from start to finish. The officer does the right thing. Or officers at a traffic stop routine, somebody pulls a gun, officer responds in the moment. So that's the kind of shooting that happens a lot in this country where from start to

finish, you cannot fault the officer. Officer is doing the right thing. Then there's this other form of a police shooting or police killing like George Floyd, there was no killing where you can, I mean, no shooting where you can see in the moment the officer was wrong. One of the paradigmatic examples of this is the shooting of, for example, Walter Scott as he was running away. Clearly wrong. Then there's this other category, Sarah, that happens more than we would want to see, where the police make a series of mistakes that culminates in a crisis that the police resolve with deadly force. Exactly.

That's actually the majority of these cases that we deal with in the public. And by the way, this feels true in our politics as well. We're never talking about black and white cases, but then everyone treats them like they're black and white cases. The majority of these videos that I have had to watch in my job have been cases where I am disgusted by the actions that lead to the reasonable use of deadly force. the actions that lead to the reasonable use of deadly force. Yeah, I can think of examples just sort of off the top of my head. I mean, there's an awful case involving a guy named Daniel Shaver.

And I would urge you not to look at this video because it's one of the most heartbreaking things you'll ever see. The police gave conflicting commands. Crawl towards us uh don't use your hands i mean it was that i i can go through the whole thing but the police get we're screaming at this guy who i believe was intoxicated who had done nothing wrong giving him conflicting commands and the guys trying to crawl to the police and his pants start to fall down and he reaches for his pants to pull his pants up and he's shot dead.

And the police officer was exonerated in that circumstance. Conflicting commands, police created the confusion. The confusion created an action that led the police officer to believe that he was in danger. The police officer fires a shot. But legally all that matters is in that moment, could he have reasonably

feared for his life when, you know, could the person have been reaching for a weapon in his pants? And as long as a reasonable police officer could have believed that, it does not matter what happened before that. Again, for the most part, there's exceptions to everything. But that is going to be so frustrating to non-lawyers and frankly to lawyers oh another one is you know another paradigmatic example is the philando castile situation where philando castile tells the officer i have a gun the officer does two things he says don't reach for it meaning the gun but he's also asking for the registration and all the documentation. So how do you comply with both commands simultaneously?

Well, you don't reach for your gun, but you reach for the registration. And so what ends up happening is he says, don't reach for it. And Castile says, I'm not reaching for it. Bang. And so there were these conflicting commands created an immediate panic in the officer that the officer resolved by firing the shot. I can go down. Gosh, I can do this all day, Sarah. I mean, there was an awful case in California where officers had a guy asleep at the wheel. He was asleep in a drive through. He had a gun in his lap. gun in his lap the officers essentially startle him awake they startle him awake and as they're screaming at him he's in a car with the windows uh pulled rolled up so they can't really hear as they're screaming at him show me your hand show me your hands show me your hands the guy who has a gun wakes up confused and they kill him within three seconds but he had a gun right in his lap and you know so these kinds of things are occurring quite a bit where there is officer confusion

that is resolved by deadly violence and the law as it's written doesn't deal with this well yeah so and that this just goes back to what we don't know about what we're seeing in this video that everyone is treating on both sides as if it tells only their story yeah the police were absolutely justified because he was reaching in his car they couldn't see what he was reaching for they had to fire they were afraid for their lives why you know he was walking to his car for a good 10 seconds before that there were four officers there. If they wanted to stop him, why didn't they stop him? Uh, were they telling him to go to his car? Could the officer who was directly behind him see where his hands were

going and they weren't going anywhere? What, you know, what commands was he being given? Uh, we don't know. And I guess, you know, David, per usual on this podcast, we're the unpopular ones who have to say, we're going to have to wait to find out what happened here, both from a narrative standpoint, political standpoint, et cetera, but also from a legal standpoint. Yeah. Yeah. We're going to have to wait. And this is one of those situations where actually there has been less public information rather than more. And in some of these other circumstances,

we've seen police reports pretty quickly. We've had comprehensive press conferences from public officials that have given us sort of a TikTok. We've not really had that as much here. So we have to wait and see what the full picture was before we can render the final judgment because as you said the law here is actually really pretty pro-police

that and because the question is is it going to be reasonable to believe in that moment of the shooting that the officer was in danger, their life was in danger, or they're in danger of serious bodily harm. And we just don't know the answer to that yet. So fast forward three days. Fast forward three days, and we have rioting going on. We've had, for example, an older gentleman, I don't know if you saw this beaten unconscious when he tried to defend his business with a fire extinguisher

police are present but they're obviously not stopping the rioting and so as has happened in some other places when there has been a strong presence of rioters, you've begun to see armed citizens. I don't know if you'd call them militia, but they're not the business owner. They're not the homeowner like the McCloskeys who were in the Republican National Convention, but armed citizens who show up to, quote, protect property.

And you can see some of these folks being interviewed. up to, quote, protect property. And you can see some of these folks being interviewed. And my goodness, Sarah, is that a bad idea to grab your AR-15 and to head downtown as an untrained person with heavily armed and to purport to defend other people's property um it's a bad idea for obvious common sense reasons but there's some legal reasons here as well so one of them is that you may not be as a matter of law entitled to use force to defend the property that you're defending. That'll be a problem. Yeah, so let me read to you the relevant Wisconsin statute. A person is privileged to defend a third person's property

from real or apparent unlawful interference by another under the same conditions and by the same means as those under by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided, always read after provided, that the person reasonably believes the facts are such as would give the third person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the third person's property and the third person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the third person's property, and the third person whose property the person is protecting is a member of his or her immediate family or household,

or a person whose property the person has a legal duty to protect or is a merchant, and the actor is the merchant's employee or agent. This is an odd additional sentence. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection. I guess there must be some... Okay, well, that has a story behind it, but we'll skip over that. So in other words, it has to be your family's property your household's property um a property you have a legal duty to protect or you have to be for instance if you're a security guard or uh yeah you've entered into some contractual relationship there yep or you have to be a merchant uh and an

employer agent of the merchant so if i'm showing up with my AR to the local 7-Eleven to defend it, I don't have the right to do that. Yeah, there could be some questions. For instance, if you show up to a business, the business owner is there also trying to defend his property. Can he create an agent relationship in the moment with you? Maybe. Maybe. But if the business owner isn't there and you just are like, pew, pew, I'm here to defend random property that I don't know about, that is certainly not covered by what you're talking about. And it looked like that was what was going on in Kenosha last night, not referring even specifically to the video that we're going to talk about, but just in general, that some people thought that they were deputized to just go protect property generally speaking in

downtown kenosha and and also here's another relevant wisconsin statute it is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property. So, um, so that's true in every state I'm aware of. You cannot use deadly force. It basically, it's like rock,

paper, scissors and life always trumps property. Right, right. Now, there are some states where you don't have, you have the stand, the stand your ground.

You have stand youryour-ground status the instant someone sets foot on your property. You have zero duty to retreat. That's Missouri, for example, where we had the McCloskey situation. So here you have, it is not reasonable to use deadly force to defend property. And if you're a third party and you're not the employer agent of the merchant, you don't have the right to defend their property. And then let's throw the other complicator here on there, which is that it's actually also a crime to point your weapon at somebody.

Okay. But David, we have all of those things that apply before that video starts, potentially. So if you're walking around downtown Kenosha with a gun, quote unquote, defending property, you can be charged with a number of crimes based on what you're reading, David. You're criming. You're criming. if you're sitting there outside of a 7-Eleven and you point an AR at somebody to defend the 7-Eleven that is not yours and you've not been deputized to defend it, you have committed a crime. Flat out, you've committed a crime. Now, at the same time, I also have a right to defend myself. Right. And that's where we get into the video that we watched and the controversy around it. Yes.

So in the video we watched, a young man is running. He's got a rifle. And he's running with his rifle through protesters. He apparently trips and falls and people yell, get him. At which point, two or three guys kind of cluster around him. The guy who falls opens fire. Everyone scatters.

One person falls, another person staggers away injured, and then you hear other gunshots. So, now here's where this gets so tangled. So, if he's pointed his weapon at people unlawfully the people he points at suddenly have a right of self-defense themselves okay this is how this gets so tangled um remember the ahmad arbery shooting yep um a lot of people said well arberybery was attacking the person who had blocked his way. Well, as soon as, you know, when they blocked his way, when those gentlemen blocked his way, and I use that term loosely, when those guys blocked his way and pointed a weapon at him, Arbery had a right to defend himself. really, really complicated.

And it's like reasons one through 1,000 why you don't strap on a weapon and go head towards the riot. You just don't do that. But, you know, it's funny. I'm seeing a little bit on sort of this right-wing Twitter world, Sarah. I'm seeing people, you know, how the right piles on the left

when the left won't condemn Antifa. Why aren't you condemning Antifa? I'm not seeing much condemnation of the vigilantes. And two people are dead who did not need to be. Exactly. Regardless of where the law ends up falling. Yeah. Yeah.

Exactly. Exactly. Well, we'll learn more. exactly exactly well we'll learn more we can update this as we learn more if it uh you know becomes relevant yeah you know it's i i um there's this i believe it's an i saw this in slate but somebody asked a question what would you think if you saw these things unfolding in other countries like if you're watching video of them unfolding say in you know spain you would worry what's happening in spain what is going very alarmed by what's happening. Shall we take a walk back into history?

Yeah. Should we go from like... Simpler times? Yeah. Doesn't Bush v. Gore sort of feel like, I don't know, the Oxford debating club compared to what we're going through now? Ugh, yeah.

Who knew that we'd long for the days of Bush v. Gore? That felt pretty catastrophic at the time. Yeah, it didn't it though? So this was your idea to bring up Bush v. Gore. And when it was your idea, you seemed to have a very specific kind of legal thought in your mind as you brought it up.

So I'm very curious as to why, aside from the obvious of this was the last time the Supreme Court got directly involved in a presidential election, what was in that Sarah cranium specifically about Bush v. Gore? So we all just sort of like throw Bush v. Gore around talking about like, oh, election recounts Bush v. Gore. recounts Bush v. Gore. But if you remember the actual issue in Bush v. Gore, the election had gotten thrown to Florida. That was clearly where it was going to matter. Catherine Harris, who was the Florida Secretary of State and a Republican, declared Bush the winner of the 25 electoral votes. of the 25 electoral votes. And then there was a recount and the Supreme Court was asked to decide whether the recount was constitutional. Basically, the Supreme Court said that it wasn't. The recount was forced to stop and it fell back on the last certification of the count, which was Republican Florida Secretary

Catherine Harris saying that Bush had won. The end, everyone's super upset. Why does this matter? Because the reason that the Supreme Court stopped the recount could be quite relevant to what we're looking at in November. Now, remember I told this horrible scenario where on November 3rd, this horrible scenario where on November 3rd, there's in-person voting counts that we have, but then we have 40 million absentee ballots scattered around the country, millions of which will be in battleground states. And you could have recounts in, let's be conservative here, David, eight, eight battleground states. Right. And so we need to count all these absentee ballots there are objective measures and there are subjective measures which i talked about but let's take a subjective one which is signature matches the signature would need to match the

signature card here's the problem the supreme court it was actually 7-2 that Florida's recount mechanisms violated the Equal Protection Clause. Everyone thinks that Bush v. Gore is 5-4. It was 5-4 on the remedy, let's call it, for that, which was, could we come up with other ways to do the recount in time before the December 12th, or sorry, December 18th meeting of the Electoral College? or sorry, December 18th meeting of the Electoral College. And four members of the court thought that they could do it or should do it. And five members of the court said, nope, it's done and we're out of time. But seven justices agreed that it was a violation of the Equal Protection Clause. Here's the problem for November, David. Yeah. Well, there's a few, right? But let me read you a little section here. The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.

Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another. Remember, seven justices agreed with that. But we have a problem, David, because that was a recount, meaning we already had an initial count of the ballots. What happens when we don't have an initial count, so the court can't just say, and we're done, which is what the court did in Bush v. Gore. There was a count to then rely on. They will not have that as an out. There will have

to be counts across the country of absentee ballots. And those counts will have to be on equal terms because of Bush v. Gore. How do you do that across not just eight states, but within those states where, you know, one person is saying most of the signatures, you know, I think that generally speaking, signatures match. And I'm going to, for the most part, defer and have a presumption that the signatures match. And someone else has a presumption that the signatures don't match. You have to prove that the signatures match. someone else has a presumption that the signatures don't match. You have to prove that the signatures match. And what if that's a stated policy? What if it's just in their heart and you have statistics showing that in one county, 95% of the signatures were held to match. And in the county right over from that, only 45% of the signatures were held to match. What is the Supreme Court going to say about policies that differ from state to state, policies that differ within state, which would look exactly like Bush v. Gore,

or statistical anomalies similar to our disparate impact versus disparate treatment jurisprudence? Hot mess, David. Hot, hot steaming mess. So you mentioned Bush v. Gore and in the back of my mind, I was like, oh yeah,

I remember Bush v. Gore. I remember it was an equal protection issue. I remember it was about the method in which the ballots were going to be counted. And so then I went back and I reread it and it just brought back a flood.

A flood of memories. So as we record this, I'm wearing my Cornell Law t-shirt, ironically enough, because I was teaching at Cornell Law School at the time, living in Ithaca, New York. The legal issues were so fascinating that I divided the class in half and one half of the class was arguing the Bush side and one half of the class was arguing the Gore side and they were writing legal memos. It was really fantastic as a teaching tool. So I was so well-versed in this stuff at the time. And then also at the time, right when this is reaching its absolute apex nancy goes into labor and it was kind of a difficult labor and the doctor was in the room with us this is

not normal um the doctor was in the room with us the entire labor why that's not normal why because he was asking me question after question about Bush v. Gore. If I were Nancy, I'd be so angry at that moment. On the one hand, it's nice to have the doctor in the room, but also you've got to be kidding me. Oh, we were absolutely talking it through. I mean, nurses were coming in. Other doctors were coming in. We were talking through Bush v. Gore. I was doing my law-splainer, law professor thing. And at one point, Nancy says, hello, mother in labor here.

Like literally she said that. Yeah. She's right. That's how I remember this so well. But yeah. So the signatures are a glaring thing. And it's probably going to be tough for a judge to come in afterwards.

And well, not that they wouldn't, but the equal protection analysis to the inherently subjective signature matching process is a mess. But a lot of these mail-in votes, they have a lot of other aspects to them other than just the signature. That's right. Outer seals, inner seals, all kinds of other elements. And so if you begin to have a situation where, let's say you're an electoral official. Let's go back to the Florida greatest hit, shall we? Broward County. You're a Broward County election official. And look, I'm just

throwing this county out there. I don't know the actual Florida sealing requirements, etc. Let's just say Broward County is allowing ballots with an intact outer seal, but a broken inner seal. And Palm Beach County is saying, nope, the ballot has to have intact outer seal, intact interseal. And the reason why Broward went with allowing the broken interseal is because it was so common that it was excessively disenfranchising voters

and the subjective view was the outer seal's enough. Well, Bush v. Gore is going to come in like Thor's hammer in that circumstance and unlike in bush v gore they will have to also have a remedy right as they'll have to say from now on all inner seals must be sealed or not and that's you know that's what bush v gore didn't do which i think would have made it mean you thought bush v do, which I think would have made it, I mean, you thought Bush v. Gore was bad. This would have made it worse if then the Supreme Court had also needed to fashion a remedy or throw it back to the Florida Supreme Court to

fashion a remedy somehow in the five days remaining. I mean, just mess after mess, and these counts will be going on in the meantime. Yeah, exactly. Going on against a backdrop of American polarization that is orders of magnitude worse than it was in 2000. I'm hoping I'm wrong that by the time the election comes around, we will still have a partisan breakdown in absentee ballots. It'd be great if the absentee ballots for the most part were evenly split. I mean, not great because we'd still have a mess, but like a different mess. Yeah. I'm hoping I'm wrong that people will lack the patience and calm and fortitude to let a legal process play out. And that when that process has to make a decision, that's going to make half the country angry one way or the other, that the half the country that is on the losing side will accept that result, which we can talk about Bush v. Gore and that the Democrats didn't accept the result.

I've heard that so much. No, they did actually accept the result. They did. They may be pissed off about it. They may have commented on it. They may have snidely said that Bush didn't win the popular vote for eight years. But as a country, the result was accepted. The bottom line is Al Gore gave a remarkably gracious speech, remarkably gracious after the decision was announced. I don't know if you remember that, but I remember watching that and going, you know, Al Gore, I was really against you, but my goodness, this is a gracious concession. There was absolutely no threat to the peaceful transition of power. I mean, yeah, in the sense that people say, hey, actually, I think really, honestly, more people went to the polls in November 2000 intending to vote for Al Gore than intending to vote for George W. Bush. That might be right. Yep. That might be right. Y'all, this was so close. And one of the

interesting aspects of the Supreme Court opinion is how upfront they acknowledge that about 2% of all ballots, 2% of all ballots have some sort of issue with the presidential slot. And that's so much more than the margin of victory here that I think only God in heaven knows who a majority of Floridians intended or plurality of Floridians intended to vote for. But God could not decide this one. And so our legal process had to pick. Now, theologically, Sarah. God did have a winner?

I'm going to dispute that he could not. Oh, sorry. But no, the bottom line is, to this day, I mean, there were some really interesting newspaper recounts that were done after that sort of reached a conclusion that you could have, to a greater or lesser degree, confidence that Bush won, actually. But still, there's a lot of metaphysical uncertainty about this. And there was no threat to the peaceful transfer of power. And I'm not going to begrudge- And also, I guess what I would say is, our system actually is not supposed to determine

who people intended to vote for that day. That's not how we determine a winner of the presidency. We determine a winner of the presidency based on our constitution. And our constitution in, in this case valued, um, a date certain by which you would know over the exactitude of people's intended votes. So that's an interesting debate, but it's not relevant to who should have become president, if that makes sense. Right, right. There were time limits that had to be observed constitutionally.

Because we decided as a society, we valued that over perfection right exactly exactly and that's going to happen again this time so anyway that's that's the bush v gore thing happy memories uh well can i read the opinion yeah can i inject a tiny bit of optimism okay um all of the stuff that we have laid out, like this sort of dystopian voting stuff that we've laid out and sort of tried to raise the alarm about in the last couple of podcasts,

I classify it as foreseeable, but not probable. So I'm going to be wildly optimistic and I'm going to say state officials have learned lessons from the terrible failures earlier this spring in the primaries. I'm also going to believe that the margin of victory

is going to be outside the margin of error. I think both of those things are, I'm hoping, probable. But it's foreseeable that they won't be. We'll see. All right. Let's do some quick TikTok. Yes.

Yes. So TikTok has filed suit. And just to make sure, just in case anyone had any doubt, a previous podcast, I declared that I had a TikTok channel in which I was doing viral dance moves to Taylor Swift songs. That was fake news. That was fake news. It's TikTok to 80s hairband metal. Oh, God. No.

My kids have loved TikTok. I don't have it on my phone. But TikTok has filed suit to live, to try to stay in business. And it's an interesting lawsuit. It's interesting and it basically is going to add... So essentially what has happened is that the president has invoked his emergency powers under the International Emergency Economic Powers Act

to try to force the sale of TikTok or end TikTok's operations in the United States by mid-September. It seems pretty clear that two things are going on at once one this is not the typical invocation of emergency powers in other words this is uh seems to be outside the intended scope of the statute and the justification put forward for the invocation of the statute is pretty uncertain and speculative. So here's what actually comes from the executive order.

TikTok's data collection threatens to allow the Chinese Communist Party access to America's personal propriety or information, potentially allowing China to track the locations of federal employees and contractors. TikTok also reportedly censors content that the Chinese Communist Party deems politically sensitive. TikTok may also be used for disinformation campaigns that benefit the Chinese Communist Party. So what we do not have in the executive order is an indictment based on facts of TikTok's wrongdoing, but rather a punitive action based on potential future misconduct. And essentially, I think the legal issue

is just going to basically boil down to, Sarah, how much discretion is a federal court going to give a president in the invocation of the International Emergency Economic Powers Act? If the court's going to impose any real meaningful review, it would seem to me that the Trump administration will have to come forward with more than may potentially reportedly. But I'm very skeptical that the court will get involved here. Well, let me ask a real politic question, David. Where was this lawsuit filed?

Question, David. Where was this lawsuit filed? This lawsuit was filed. Oh, let's see. Central District of California. Oh, how interesting. Western Division. So you're saying that will go to the Ninth Circuit, are you? I'm saying it will go to the Ninth Circuit. Yes. Yes, indeed. Well, I think that may tell you something.

Well, TikTok is represented by Covington Burling, and they are not... Covington Burling, they are not dumb. Nope. They're not filing this in the Western District of Texas. Middle District of Tennessee. No, sir. Central District of California, Western Division.

So what'll be interesting is if they put in an injunction, because I believe that the president gave a September 12th deadline for TikTok to be divested. So if the Ninth Circuit, if the district court puts in an injunction,

the Ninth Circuit upholds that injunction, will the Supreme Court step in? And if Trump loses, you could end up the election. I mean, if Trump loses the election, you could end up where just another situation where, you know, and this isn't good. It isn't good no matter who the president is. Right. And administration does not get to have a policy in place, you know, until they're out of office, which is messy.

You know what I'm smelling right now? I'm sniffing in the air. I'm sniffing in the air more Roberts, Justice Roberts impatience with administrative sloppiness. That's what I smell. Interesting. Because, okay, I believe that you could, in fact, fashion an executive order

that could lay out, chapter and verse, the very real tech vulnerabilities that exist through TikTok. There are reasons why, for example, if you're a DoD employee, you're not supposed to have TikTok on your phone. And you could dot your I's and you could trot your T's

and you could put something together and maybe even have a classified appendix that is for the court size only that dot your I's and crosses your T's and says, here are this precise

technical reasons why this creates unacceptable vulnerabilities hands off court. And even if the Central District of California favored was, you know, issued an injunction in the Ninth Circuit, upheld the injunction, Supreme Court's going to step in and say, no, I'm sorry, this is squarely within the president's powers. But we have seen recently in a couple of circumstances, census and DACA,

something that seems to be pretty squarely within the president's powers where the chief justice has not been impressed with the president's work product. My teachers used to say that to me all the time. Sloppy work product, Sarah. So I do wonder about that. I do. But that's TikTok. Okay. Adulthood, David. So here's my thing. As I stare at my two and a half month old son,

it looks nice to be a baby. I'm not going to lie. He naps whenever he wants. There's food whenever he thinks about even eating. I mean, every comfort is thought of and provided, but my son is not happy with that. He's not satisfied with being a baby. He, in fact, as best I can tell, finds the whole thing to be one indignity after another. He does not like to cuddle with me. He does not like me kissing his face. We got him a little floaty that goes around his little neck in the bathtub. And it's supposed to be like super fun, you know, to like watch your kid. And lots of parents are like, oh, my son cried at first, but eventually liked it. No,

my son immediately kicked away from me to the other side of the bathtub, having the best time ever. And like, was like, when do I get to sign a lease on my own apartment? He is so ready to be a little adult. So I was thinking, you know what? He has a point because there are so many moments in adulthood when I'm like, damn, it feels good to be a gangster. Nobody can tell me what to do now. Yeah. So I talked on the Dispatch podcast that one of those things for me is setting the air conditioner to whatever I want. Yeah, adulthood.

So setting aside the temperature of your house, what is that moment where you're like, I'm an adult, I'm gonna do this, and nobody can stop me? Well, it was a slowly evolving process of growing into adulthood and experiencing the joys of it. It began, simply enough, with a defiant purchase of Lucky Charms cereal, which I was never allowed.

We wouldn't buy Lucky Charms. We did not have sugar cereals in the house. Same. Cheerios only. Yeah, Cheerios. Cheerios are good. Oh God, and there were grape nuts, but that's like for a kid, a fate worse than death. Oh, yeah, yeah.

You might as well like be issued dried broccoli for breakfast cereal. So Cheerios, it was Cheerios. And I had an uncle that we'd visit and he had Lucky Charms and it was just like walking into the Disney World with the Lucky. So the defiant purchase of the Lucky Charms. That was like sort of like one of the markers.

And then the other one, honestly, the open road. I can get in a car, grab some friends, and I could just go somewhere. And I don't have to say. Look at that. Yeah. Yeah And I don't have to say... Look at that. Yeah. Yeah. I don't have to be back my midnight. You know, I had my curfew. And so if I want to get in a beat-up Chevy Nova and drive to Colorado and be an amateur backpacker,

by golly, yes. I'm doing it. And this is not hypothetical, friends. So we know this will be very upsetting to a small, small minority of you. But we will not have a Monday Advisory Opinions because David has decided to risk life and limb to recreate a college moment with his buddies.

And so we will be recording on Tuesday next week. Indeed. Indeed. But yeah, so it was the lucky charms followed by the open road. And I can't remember. I think. Oh, then the other one was turning the key on my first real adult apartment. Yeah. That was pretty sweet. Not my law school crap apartment that had rats running in the walls and mice living in the couch.

Oh God, in the couch. In the couch. And I would set mouse traps and I'd be laying there watching TV late at night and I would hear the mousetrap go snap while I'm watching television. Not that one. No, when I had a law firm job and I could afford a nice apartment and having that. So what about for you, Sarah? I will also do three quick ones. I already said the AC, but I don't think you understand how traumatic my childhood was. And it wasn't the AC. It was the heat. In the winter,

my mother would refuse to turn on the heat in the house. I will grant you that we lived in Houston, but Houston gets cold-ish and the house would get really cold and she would just tell me to put on more clothes. And when we moved into this house

and I was super cold and like putting all these clothes on, my husband was like, darling, turn up the heat. It's like this dramatic fashion of like, we've made it. We've arrived. You can be a temperature that you're comfortable at. And I was just like, whoa. So that was a big one is not having to just put on all the clothes that I own. Cause it turns out David, it's not just like me complaining. I run very, very cold. Like I, my body temperature will get so cold that I can't warm myself back up without submersing myself in hot water. So it's also a time suck and it's very unpleasant and I'm like, you know, shaking. Okay. So that's one. Two, oh man, the car thing is so real. When I got my license, I went first

thing in the morning with my mother, dropped her off back at home, got into the car, was supposed to head back to school, but I did not. I instead headed to the grocery store that was behind my high school and went in for jelly bellies and I sat in my car and I just ate some jelly bellies for a few minutes, David. I just did it. Yeah. My time, my space. Sweets and the road. That's not that different. Okay. But the last thing, and this is, I think the biggest one, my mother, who I previously mentioned would not turn on the heat. It's just notoriously cheap. She was the youngest of 10 children. Um, you know, immigrant parents grew up on a dairy farm. The woman does not spend money on anything ever, ever, ever. And I was inculcated into that culture. And I do, I really do follow it in a lot of ways. I, I do not have, um have many spendthrift tendencies. So when I do spend frivolous money on something, it is a thrill. And I don't mean big purchases. I mean little ones.

So this week, I purchased two, David, two frivolous things. One I've already described to you, which is the inner tube to play with the baby in the bathtub, which is called an Otteroo. And it was a stupid, like it was $25. That's a stupid amount of money for what this thing is. But you know what? It has brought me so much joy. And the second one, cane toads are a real problem. They're a pest, David. They were introduced to kill off another pest, but it turns out that nothing kills cane toads. So while the cane toads wiped out that pest, they also have wiped out then like everything in their path. You know, they're omnivorous little things. They eat like baby bunnies basically and everything else,

baby birds and all of the plants and everything else. Anyway, cane toads are a problem. The way you get rid of them as you kill cane toads. Oh, and there's no predators for cane toads. Cause again, they were an introduced species.

So these people take the murdered cane toads, leather them and turn them into coin purses with their little cane toad facial expressions on them on Etsy. And I hope I'm not ruining the surprise for my friend because she's going to get it tomorrow. So hopefully she doesn't listen to this podcast between tonight and tomorrow, Casey. But she is getting a cane toad congratulations on 61 hours of labor present from me tomorrow. Wow. Wow to 61 hours of labor and wow to the idea that getting a change purse with terrified dying cane toad face on it. It's the whole toad, David. The feet, the little butt,

the whole thing has been perfectly preserved as leather. Sarah, feel free not to buy me presents. You know you'll get a gift that says I care. Yeah, our friendship is too strong for presents, really. There's just no need. There's just no need. Good to know. Yeah. Wow. But I'm not going to hold that against you because you still have the greatest business idea I've ever heard. The queso burro. Yep. I've ever heard. The queso burro.

Yep. Exactly. Exactly. Oh, my goodness. Well, on that note, on that abysmal cane toady note... Caleb, our producer's face. You can find them on Etsy, folks.

Your cane toad changed purse with their surly faces. And each surly face is unique, of course. So for the first time, I'm going to ask you not to review this podcast after hearing about cane toads. So ignore that we're an Apple podcast. Ignore that rating. Don't resist that urge to press one star but do check out the dispatch.com and please do subscribe to this uh podcast because normally we have better gift ideas than that if

you follow me on twitter i'll tweet a picture of the cane toad tomorrow right when i give it to her oh my goodness and that Twitter handle is at WIGs. WIG Newton is like the political party. Yeah. Yeah. We got to break down that Twitter handle one day. Yeah, maybe we will. Yeah, I'd look forward to that. This has been Advisory Opinions with David French and Sarah Isker.

And we will be back next week after I have summited, hopefully, Mount Elbert in Colorado. And we will talk to you then.