Advisory Opinions - Hiding in the Proverbial Attic

Episode Date: February 11, 2025

Sarah Isgur and David French steal away to sunny Stanford University to talk shop with law students and bask in a friendlier climate. The Agenda: —Casual antisemitism at Cooper Union? —How to handle disagreement at elite schools —Gender identifiers for government employees —Bad injunction takes —Rejecting the president’s understanding of the Constitution —Q&A Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger and that's David French and we are live here at Stanford Law School. And David, we just can't cover it all. As you just told me before we walked in, we've had our fifth injunction today. We can't cover all those because we like to know what we're talking about. So we have an action packed pod and we're going to pick and choose our targets. Yeah, I was just saying when we were right when we were coming in that I had a very good

friend in law school after his 2L year, he transferred to finish at Stanford and I'd never been out on the West Coast. I'd never been out here. And I said, why would you leave for Stanford? And he said, the fact that you asked that question means you've never been here. So true facts, true facts. This is just an absolutely beautiful place. Let's start with Cooper Union, a little light, happy story of anti-Semitism. Well, it's a, I'll let you say that Sarah, I think this is a good response to something dreadful. Yes, it's a, so there, and we've been following this for some time because in the aftermath of the

encampments and some of the violence and unrest on campuses after October 7th, 2023, this has really been a stress test for Title VI of the Civil Rights Act of 1964. What does Title VI mean? Where does free speech end and harassment begin? We have covered cases against Harvard. We have covered cases against MIT. We've talked about cases against Columbia. Here's a case against Cooper Union for the advancement of science and art. And some of you guys may remember this incident.

And the case really centers around not one specific incident, but one incident was the worst. And this was a case brought by a coalition of Jewish students against Cooper Union based on the harassment that they experienced after October 7th. And I want to read to you the worst, the worst moment. Here it goes.

Now, this is a response, this is a order, this is an order that is in response to a motion to dismiss. And so it is taking the plaintiff's account as true. If you're a long time advisory opinions listener, you know that in these preliminary motions to dismiss, the judges are required to take the plaintiff's account as true to determine whether or not there's a legal claim. So what I'm gonna tell you is the plaintiff's account.

And this is how the court describes it. But the worst occurred hours after the October 25 walkout. This is a walkout for protest. At about 4pm that day, the demonstrators stormed into the foundation building of building on campus, shoving past the campus security guard standing watch. After first attempting to locate Cooper Union's president, the mob descended on the building's library where a group of students wearing recognizably Jewish attire were sheltering behind locked doors. The demonstrators surrounded the library and proceeded to bang loudly on the library's doors

and on its floor-to-ceiling glass windows, shouting demands to be let in and continue to direct anti-Israel slogans and wave a Palestinian flag at the Jewish students inside the library. During the roughly 20-minute ordeal, Cooper Union's administrators did nothing to disperse the protesters and instead directed law enforcement to stand down even as the college's president had just escaped the building through a back exit.

Profiles and courage, ladies and gentlemen, none of the protesters subsequently faced any discipline. This friends is a Title VI violation. If you can prove these facts and this account is proven in court, this is a Title VI violation because what you're talking about here is not just merely speech. Now remember, if you're speaking, you can call for violence as long as you're not inciting violence. You can call for extreme levels of violence as long as you're not inciting imminent violence.

But the one thing you absolutely cannot do is you cannot place students in fear for their safety because of their ethnicity. You cannot do that, place them in fear for their safety. So this is a very good example of how Title VI locks in the moment that the ethnically, religiously, well, the ethnically targeted activity extends into actions, extends into creating an environment where if you are there,

your ability to enjoy, if you're one of the besieged students, your ability to enjoy the benefits of the educational program, which is the Title VI test, is being taxed to the limit. And then one other thing about this, if you'll note, the judge made it very, was very clear to say the

administrators did nothing to disperse the protesters and directed law enforcement to stand down. Why is that so important? We had cases that we talked about with MIT and Harvard where the same judge, with very similar facts, allowed the case against Harvard to proceed, dismissed the case against MIT. Why did it allow the case against Harvard to proceed? Because according to the facts of that case, Harvard allegedly did not do anything meaningful

to stop or try to address the worst of the protests, whereas MIT, even though it was ineffective frequently, was trying. It was trying. Here, the facts seem to be much more similar to Harvard where the court is saying there wasn't the effort. There wasn't even an effort to protect the students. It was just shelter in place in essence. And that's going to be a red flag from a Title VI standpoint. And David, notice what we haven't talked about in any of this is severe and pervasive. This standard that pre-October 7th was the real question is something, you know, think longitudinal and latitudinal, severe enough and pervasive enough. You know, in a pre-October 7th world, that would be over whether a single use of or appearance

of the N-word could be both severe and pervasive. We don't talk severe and pervasive anymore in these post-October 7th cases because that's so clearly met. The question now is much more about whether the schools were trying and failing. Because basically, you're allowed to try and fail, which is what MIT's best legal argument was. Was, no, no, no, we are trying to prevent this. We understand that it is ethnically, religiously-based harassment that violates Title VI on its own, is severe and pervasive,

and we simply suck at this. And that was their best argument. Whereas Harvard, and I think to a far greater extent, Cooper Union here, they don't got much. They're not arguing it wasn't severe and pervasive, and they're not arguing that they did anything to stop it. They're kind of just saying, no, please no. I want to be very clear.

I think that both in the Harvard case in particular, after we've talked about it, I've gotten a lot of emails and input from folks in the Harvard community who say, when this thing goes to trial, you're going to see that there was more efforts at Harvard to try to address it. They also sucked. Yeah.

But they were bad at it. Yeah. And MIT, frankly, was bad at it, but they had a much more clear record of attempting it. And the interesting thing here, which I think was a message that is being received in the larger higher education world, is one of the things that the judge said in the MIT case that remember the same judge for Harvard and MIT was he said, MIT's problem was that it expected the students to live up

to the values of diversity and inclusion it had been teaching. And that is a stinging indictment of sorry, the students. And it does really raise a question about how can universities take steps to ensure that they're admitting people who are coming into school and coming into college with a posture of curiosity, a posture that they are actually students learning versus coming in as activists having figured out all the tough questions already. And I know a vast majority of this room has been through the application process, has

been through that sort of, and my kids have been through this as well, this sort of obsession of what is it that really builds the resume for a top level legal education. And for a long time, there's kind of been this consensus that one of the things that really builds the resume is a record of activism. If you haven't started five nonprofits by the time you're 15, just forget about Stanford. Like, I bet the median number of nonprofits started in this room is 7.2 per person. But what has really happened is this emphasis or in the relatively recent past, activist, activist, activist. That is a very different thing from being a student, a student, a student. And we're beginning to see, I believe, a shift

in some of these schools to where they're now wanting to know, not just say how much of an activist have you been, but they also want to know how do you handle disagreement? How do you handle it when somebody says something that offends you or makes you angry? What is your response to that? And I think that that's a very wise shift

and slight change in the admissions process because we want people who are curious. That's not to say you can't have convictions, but this sort of recognition that fundamentally I may not have figured everything out quite yet. And so there are still things I need to be curious about even when they offend me or even when that I strong, everything in my background tells me to strongly disagree. I mean, this is good arts law at work. The metric becomes the goal.

If the metric is activism, then the goal becomes activism because the goal is to get into Stanford Law School. If the metric is, and by metric here, I kind of mean like what the essay question is that they're asking you. If you have to write an essay to get into Stanford Law School about how do you handle disagreement, well, then the goal will be to be the type of student who has a really good answer to how you handle disagreement. It's a reverse of what I've talked about about getting rid of the filibuster for judicial nominees. Well, if the metric used to be that you needed votes from the other side, then guess what?

The goal is gonna be to be the type of person who could get votes from the other side and vice versa. And I'm sure we have a lot of tech people here who are like, that's not really a correct reading of Goodhart's law or a pronunciation of the word good art, but it's mine, so ha. Just to end this conversation, I wanna read that one part of Judge Cronin's opinion here,

and it's worth noting Judge John Cronin in the Southern District of New York was the one who issued this opinion. If you were casting a movie and looking for the guy who most embodies what an anti-terrorism, southern district of New York, assistant U.S. attorney, federal prosecutor should look, act, and sound like in your to kill a mockingbird version of SDNY, not your billionaire's version of SDNY. It is John Cronin. He is incredible and his stories about some of

the cases that he prosecuted and tracked down are incredible. So if anyone's looking for like the most amazing trial court clerkship in America, let me just give a plug to Judge Cronin out there. But let me read you this because he's also, you know, brilliantly smart and whatever. That's not important. The court is dismayed by Cooper Union's suggestion that the Jewish students should have hidden upstairs or left the building or that locking the library doors was enough to discharge its obligations under Title VI. These events took place in 2023, not 1943, and Title VI places responsibility on colleges and universities to protect their Jewish students from harassment, not on those students to hide themselves away in a proverbial

attic or attempt to escape from a place they have a right to be. In sum, the physically threatening or humiliating conduct that the complaint alleges Jewish students in the library experienced is entirely outside the ambit of the free speech clause. The proverbial attic. Chef's kiss. No notes. 10 out of 10, Judge Cronin. The point was made.

Okay. We have lots more to cover. Next up, David, can we move from what's not free speech to a quick conversation perhaps over pronouns in signature blocks as a federal employee. One of the many memos that went out at some point last week, this was instructions to State Department employees. I believe it also included, or similar emails went out to the Labor Department, Veterans Affairs.

So David, we have talked a lot about the Garcetti standard, for instance, of government employees that like you don't lose your First Amendment rights when you become a government employee. So like on Saturday night, you're at your kid's soccer game, you happen to be a government employee, but here you're a really angry soccer dad and you know you Burn a flag or something You have a First Amendment right to burn that flag because you're not It escalated quickly at this soccer game this dad was real angry And on the other hand, you know, you don't get to go out on your prosecutor podium at the Department of Justice and like

spout off your random thoughts on Taylor Swift. Email signature blocks is kind of interesting. It's on your government email. So that would seem to seem closer to the press conference. And on the other hand, it's sort of like your name and you could have like a little quote there. What about like a Bible quote? I've certainly seen employees have something like that. So my question to you is, is this government speech in the signature block and is this then email content based restriction?

It's a really good question. And you would think that it's an easy, easy, easy answer. Signature block and a government email is that is your speech as a government official. Garcetti says that is not protected by the constitution when you're speaking as a government official in your official job responsibilities. But I've already talked to a couple of people that I've met who are former military, that are, you know, come out of the federal government. And I don't know if it's this way currently, but when I was in the military, that signature block was often a free speech zone. And so people would have quotes, I cannot tell you the number of officers mainly in like infantry and armor who have the Teddy Roosevelt man

in the arena quote. Down there you had people quoting like Gandalf. You had people- That was just you David. I mean, I counted people, you know, so you had people, I mean, literally quoting Babylon 5, like a sci-fi movie or show from the 90s and early 2000s, if I remember correctly, the timeframe. So you had a lot of quotes, a lot of Bible verses. And so in that circumstance, if you have sort of opened the door and you say, well, you can quote Teddy Roosevelt, you can quote Gandalf, you can quote Jesus,

you cannot say preferred pronouns. I think you might have a legal issue there if you have had this sort of blanket rule that you've been extremely permissive. It reminds me of cases that you have involving teachers in high schools. So teachers in high schools, in most parts, in most circuits, it's pretty darn clear that teachers in high schools, in most circuits, it's pretty darn clear that teachers in high

schools, in the K through 12 system, their speech, while they're on school grounds, as a general matter, is going to be considered government speech. But if you've allowed, say, somebody to have a Black Lives Matter flag that they've sort of hung from their desk, or a pride flag that they've hung of hung from their desk or a pride flag that they've hung from their desk, could you tell them to take down, say, a don't tread on me or to go back to our endless conversations about Martha Annalito under the appeal to heaven, some of the founding era Tea Party flags. So in that circumstance, if you've allowed some speech, if you've allowed private speech, you can't then do the viewpoint or content-based discrimination to say, yeah, the flags I like

are cool and the flags I don't like are not cool. And this is, again, old stuff when you're talking about college litigation. Gosh, the amount of controversy over what people allow to be put on dorm room doors that you would deal with until the administration's finally said nothing on dorm room doors. It's all gone. But I don't think it's as easy a case. It will depend a great deal on what is the pattern or practice in the agency. Yeah, I find it interesting. It's sort of a version of the Donald Trump is evil and stupid.

It's kind of like, well, no, you need to pick one. Do you? Yes. This is like all the people who were like, they were so prepared for this. But then they're sending out emails like this where they could have just said, email signature blocks from now on will only have names and titles in them. That would have been legally bulletproof at that point. Sort of like the shirtless Boston flag case.

Boston can limit the flags in Boston City Hall to just the American flag and the Boston flag is Boston. Sure. Boston has a flag as of right now. What you can't do is say, and we have an additional flagpole where we let everyone raise their flags except you over there because we don't like your message. So same thing here. And again, I just feel like if a lawyer had seen that it was really easy to fix, I think they'll lose this. If anyone- If they have allowed other kinds of signature blocks, yeah. Correct.

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Okay. So now let's get to the injunction tweet wars of 2025. This is where we talk about people who tweeted bad takes about the injunctions. And we will dismantle them and their Twitter takes, one of whom's the vice president. So they're not just one of them. Elon Musk. Okay. So these are people who matter a little. I want to start though with a lesser one. So Judge Carl Nichols is the judge who has the USAID case and has enjoined that over and over again. Interesting note, by the way, if you actually dig into his order, remember there's two parts of it.

You can't furlough all these employees right now and you also can't call them back from their overseas assignments. And there's this little nugget that's hidden in there where he says, and the government didn't brief the bringing them back from overseas part. And the other side did. And, you know, we've got a bunch of law students in here. They're pretty aware of waiver issues. It's a problem if you don't brief something. Now, sometimes the judge will give you some leeway to amend, file supplemental briefing, but the government in particular, I think should be held to pretty square corners here. If the government forgets to brief something, you're done. Why should

we give you the benefit of the doubt when you have an army of lawyers? I think that's a little bit of what you see here. I think if you read into that even a little bit, Judge Nichols is saying, probably it was fine for you to recall people from their overseas assignments. But since you didn't explain why that would be okay, and the only arguments I have are from the other folks who have kind of a not frivolous argument of why that's not okay. Basically, the reason they're doing it is wrong. And therefore, even if they could do it, the reasons matter. So therefore, you can't call them back. He kind of shrugs and is like, so that's part of this order as well. You get Mike Davis who runs the Article 3 project.

And here was his tweet about this. The temporary restraining order by DC US District Judge, Carl Nichols against the president's USAID personnel decision is truly lawless and dangerous. The president cannot order US officials overseas to come home within 30 days. Seriously, judges actually think that they have that power? Nichols proves even former Clarence Thomas clerks who go to DC big law are unreliable

picks for the federal bench. Spoken like a true Gorsuch clerk. So I picked this one, David, because I think you have like a Twitter storm around this about how insane it is that the president of the United States can't call back American government officials serving overseas. But then if you go read it, the government forgot to brief it. I also think this is interesting because of the CT on NMG clerk violence and what it says about the types of people that at least, you know, this is a main supporter of Donald Trump and the,

you know, a person who's going to have a lot of vocal opinions about who should be these next judges. I don't know who's left if you're going to say that clerks, people who clerked for Clarence Thomas are squishy. Yeah. Well, you know, this gets to a kind of argumentation you see online that is unfortunately leaking a lot into sort of real world dialogue, leaking into sort of our national debate on a much more broad level. And that is the sort of thinking that says,

I am so obviously correct. The only thing that can explain your disagreement with me is your cowardice. Is that you're too squishy or you're too weak, or you are trying to curry favor with somebody else. That kind of argument is 99 times out of 100 in the absence of actual evidence of favor occurring, which you do see on occasion, is a complete dodge. It barely even qualifies as an argument. But you see it again and again. I'm so obviously correct in my assessment. And here we

can go straight to the tweet. And if you've actually read the case, as Sarah has pointed out, there's a reason why it came out that way that has nothing to do with squishiness and everything to do with how the case was litigated. Process matters. And so this is again and again, this happens, especially in social media discussions of court cases. These cases are complicated. They involve a lot of competing arguments. And then you have to dive into the case itself. And maybe the case itself actually answers the reason. The case itself

presents a reason for its decision that might be completely different than your thought process going in. And here, look, Mike, I mean, if it's that obviously correct that you could bring them in, just why don't you make the argument to the court? Just a modest proposal. If you make that argument to the court before you complain about the squeesh. Okay. Next up, we have Judge Engelmeyer. He has the doge trying to access

the Treasury Department systems. This is going to be a conversation about writing precisely. Because unfortunately this order, I'm sure seemed really precise when they drafted it. And now we're all arguing over it. Okay. The defendants are one, restrained from granting access to any treasury department payment record,

payment systems or any other data systems maintained by the treasury department containing personal identifiable information, blah, blah, blah, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations.

Two, restrain from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department to any Treasury Department pay record, pay systems or any other data systems maintained that contain personally identifiable information or confidential financial information of payee. Okay. So here's the question. Did political appointees there, was that just all political appointees or was it political appointees detailed from it political appointees

detailed from an agency outside the Treasury Department, which was at the end of the phrase? I don't know and I'm not going to be able to answer that here except to say my reading of it at first and continues to be that it applies to all political appointees and that that other clause applies only to government employees, which would be such a general term that of course it would need a clause.

So I'm going to read it to you again. Restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department. I think the natural reading is that the three of those are each separate and complete clauses on their own, meaning that he actually restrained all political appointees from accessing these Treasury systems, which I think is bonkers town. I will say bonkers town to bonkers town adjacent. Yeah.

Also note in that number one, the reason I read that is because he does say they're restrained from granting access to all of these records other than to civil servants, which also I think bolsters my claim that when he then talks about all political appointees also being restrained, that is in contrast to all civil servants. Anyway, I think I'm right. I'm not 100% sure. I'm not 100% sure, which is why I think maybe suburbs of Bonkers Town. But I think that if you have an order that says all political appointees are barred from accessing any

Treasury Department payment record payment system or any other data systems containing personal identifiable information, that is way overbroad. But at the same time, I do not think it is the case that every political appointee has a right of access to all taxpayer identifi- identifying information. If I'm a, you know, if I'm a Secretary of Defense, for example, and- Well, if you're the, you know, the public affairs

officer for the Department of Treasury, for example. And if you're the, you know, the public affairs officer for the Department of Treasury, me and DOJ did not just go in and like look through people's grand jury stuff. Right, exactly, exactly. This needs to be more precise. So I think that what we have here is maybe the first example, again,

with the caveat that we stated up front, we've not read all 813 of these injunctions, but this is the first injunction that I read where I say, I see a clear problem with this injunction. And that leads us straight to the tweet. If the injunction was bonkers town, let me read you the tweet from the vice president. If a judge, just to be clear,

the vice president with a law degree from another school, Yale Law School, a Stanford graduate would never tweet something like this. And to be clear, they don't actually teach law at Yale Law School. In fairness to him, that's true. Yeah, okay. So let's give them a little grace here. Do they at Stanford? By reputation.

I don't know. I mean, maybe like Silicon Valley, like tech law. I don't know. Like they know a lot about crypto. Okay. From the account of vice president Vance. If a judge tried to tell a general how to conduct a military operation, that would be illegal.

If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power. What? There, I, my head fell off my shoulders Still, judges aren't allowed to control the executive's legitimate power. What? There, my head fell off my shoulders when I sent that to you, David, and to state some

really obvious things like the entire Supreme Court docket from the Iraq War was the Supreme Court saying, no, you can't do that to the military. You have you. So number one is a conceptual matter. It is just not true that a judge has no say over a general like that. That's just absolutely not true. Now there are circumstances where that would be true. There are circumstances.

Absolutely. It says try to tell a general how to conduct a military operation. So for instance, if you say, you can't hold those guys at Gitmo without habeas corpus and use a military commission, that feels like exactly what I don't. Right.

And further, the judge tried to- He was a Marine! He knows this! I mean, the UCMJ guys, the Uniform Code of Military Justice is a legal doctrine that is fought over in court that directly impacts military operations. So that's just not true. Judges aren't allowed to control the executive's legitimate power. That last sentence though, I want to land on that for a minute.

Judges aren't allowed to control the executive's legitimate power. One glance, you would say, OK, I get that. But on the other hand, under our system, guess who ultimately determines what is the executive scope of legitimate power? It is, in actual actuality the judicial branch. And if you have any question about that, there's a really, I think, interesting Notre Dame speech that several years ago, I'm not sure quite how long ago, but several years ago

from none other than Brett Kavanaugh. Oh, I was hoping you were going to save it. No, you have to redo it. Okay, you ruined it for them. No, I didn't ruin it. We're heading towards the Q&A. Okay. So anyway, Kavanaugh gives an address about separation of powers and prosecutorial discretion

in these kinds of matters, and he has this quote about Marbury versus Madison. This is a critical aspect of Marbury that is often overlooked. The court not only has the power of judicial review of legislation, it also has the power to reject the president's interpretation of the Constitution. That is a really, really, really important sentence. And it is one sentence because it has a semicolon, but it is, that is a very important, I'm going

to read that last part again. The court also has the power to reject the president's interpretation of the constitution. That is a very important thing to think of, and this is Marbury. This is since 1803. That is a very important thing to ponder as we move through these cases. And as you see, more and more sort of agitation towards the idea of defying court orders.

Now, one thing about this sort of whole concept of defying court orders in response to all these district court determinations, slow your roll, guys. Haven't you heard of an appeal? You know, you can appeal these decisions. You don't have to just immediately jump to violating court orders. You have a right of appeal. But I think that is a very, very important part of understanding

Marbury. The court has the power to reject the president's interpretation of the Constitution. And of course, how interesting coming from one of the nine votes that will decide once again, perhaps. And one of the most friendly to executive power justices. That is actually to me, like a big underline. And, you know, he has this other piece in Minnesota law review that I want to talk about in the next episode that gets into some of his more granular thoughts on executive power.

So we'll talk a little bit more about this Notre Dame piece, the Minnesota piece, and sort of Justice Kavanaugh as perhaps the Supreme Court's thought leader on executive power at this point and where exactly we think his thoughts at least were 10, 15 years ago. Okay. Oh, and also note on that tweet, David, if a judge tried to command the attorney general and how to use her discretion as a prosecutor, that's also illegal? Well, kind of depends, right? I mean, this is the whole claim over DACA is that it isn't an appropriate use of prosecutorial discretion, that a president can't simply decline to prosecute not from lack of resources, but from disagreement with the policy as a way to

abrogate the policy itself. Again, a conversation that I think we'll have next episode, a little deeper dive on prosecutorial discretion versus impoundment and how they're the same and how they're not the same. Different cases, different facts may lead to different outcomes. Okay, last tweet to discuss today. Here we have Elon Musk response to I think the same order, but it doesn't really matter honestly.

I'd like to propose that the worst 1% of appointed judges as determined by elected bodies be fired every year. This will weed out the most corrupt and least competent. I've never seen so many logical fallacies in one sentence in my whole life, let alone constitutional problems. So we're going to leave it up to elected bodies, plural, whatever that means. and whichever judges they don't like are by definition the most corrupt and least competent. So first of all, most corrupt and least competent now are the same thing. No, very much not the same thing.

You could be very corrupt and very competent. Those are the people I fear the most. Second, of course, as we've said over and over again, the whole point of the judiciary, the federal judiciary, as contemplated by the founders was a counter-majoritarian institution. In fact, the whole federal government was supposed to be, in many respects, a counter-majoritarian institution. So, the idea that we would leave it up to elected bodies to determine which judges they don't like is going to be on outcome, not process. It's going to be very maturitarian. Guess what?

They're not going to like the Nazis marching in Skokie. Anyone who is not part of the majority is not then going to be voted as the majority. It undoes the entire constitutional structure in one stupid tweet. Fortunately, that's not going to happen. I'm still, I'm mad not because it's going to happen. I'm mad because it betrays such an ignorance of not just like the constitution, like this isn't some gotcha on constitutional text. This is like a gotcha on the whole effing point of the constitution. And there are two children here, minors, and I apologize for that.

F was for flipping. Yes, forking, forking from the good place. Okay, so yeah, so I am mad about it. We have a giant, giant problem in this country with civic ignorance, just a giant problem. And when we have some of the most influential people in the entire United States of America contributing to it using their massive platform, the massive platform of the Vice President of the United States, the massive platform of the most wealthy person in the world who owns one of the largest social media platforms in the world, just spewing out just completely wrong, completely anti-constitutional

thoughts as if it's just plainly the facts. Like an interesting idea to float out there. What if we just undid, I don't know, the whole Constitution? Cool, cool, cool, cool. Yeah. Yeah. Like to float out there. What if we just undid like, I don't know, the whole constitution? Cool. Cool. Cool. Cool.

Cool. You know, and I've had people sort of in the real world say, judges can't tell a general how to conduct in your way. Hold on. That's completely wrong. So angry. And then you get to what says you, the Yale Law School educated vice president and oh, by the way, David, did you get into

Yale Law School? No, no, I did not. Okay, so why do you think you know what you're talking about? No, it's a... In fairness, I got my Stanford and Yale rejection letters on the same day. I didn't even try for Stanford. It was... Well, I just didn't...

I was so unsophisticated in my understanding of what law school was, like everything west of the Mississippi, I didn't even know about hardly. And so I applied basically to the law schools I knew something about, which was about four. But yeah, when you have these just blatantly incorrect statements and you have millions of people hanging on your every word Millions of people who are completely politically obsessed and also very charged up We have a lot of people right now who are very very charged up. This is dangerous Okay, so like I said, we're going to do a deeper dive into prosecutorial discretion,

that part of the tweet, and into executive power according to former staff secretary, now Justice Brett Kavanaugh. But before we go to Q&A, I do have one other thing. It is the most common email, comment, DM, everything that I'm getting right now from every long lost cousin that I've never met. And it is what if they ignore it? Yeah. So I do want to spend just a couple of minutes on the law and then the not law part. So the law part is pretty easy. And we're already sort of seeing that we already had an order

from a judge today who felt that the Trump administration was ignoring his order, staying their freeze on releasing federal funds to various recipients. So generally speaking, and this is again broad strokes here, but the first thing you do is you get an order of mandamus. So you can go and say, they're not doing the thing, make them do the thing. And then the judge can say, aha, order of mandamus granted, do the thing. Order of mandamuses, order of mandami, I don't know, are extraordinary, considered extraordinary. So this would be a real, ugh, you're pay attention to me thing. If then you ignore that, contempt. And a lawyer who gets held in contempt

can go to lawyer jail. I mean, it's like real jail, but yeah, a judge can order the marshals in the courtroom to have you arrested and take you off to a holding cell or whatever your punishment ends up being. You can also get disbarred, for instance, and disbarment will be an important part of this conversation because the question

that I always get next is, but what if they ignore that? But what if they ignore that? So like, okay, the judge says to hold them in contempt. Who actually holds them in contempt? Well, you're right. That would be the US Marshals and the Bureau of Prisons, which are under the Department of Justice, which are controlled by the executive branch.

Or what if he pardons the person preemptively, you know, or says, promises he'll pardon them after? Yes, I don't know what to tell you. The rule of law does not have its own force. It is a thing we've all agreed to do. So if you elect someone who then decides that we don't have the rule of law, it cannot police itself. It cannot create itself. It cannot enforce itself. But we're not there.

Yeah, we're not there yet. We're not there yet. You know, I had a conversation with Judge Sutton of the Sixth Circuit recently and asked that very question. And the answer was... You had a conversation with my number one judicial crush and didn't tell me? I did. What? It was published in this very obscure hometown newspaper of New York. But it was a great conversation. And he was very, very blunt that there's just not a lot of tools

that judges have, that the judicial branch has to enforce orders. And it's not something that when you're out there practicing law, you really ever think about. Like if you're a plaintiff's lawyer and you get a $10 million judgment and that $10 million judgment is upheld on appeal, you expect to collect, unless there is bankruptcy

or some attenuating circumstance, if you get an injunction ordered against opposing party, you expect that to be complied with. It is exceedingly rare to see someone defy court orders, but at the end of the day, an enormous amount of the American system rests on an honor code. I think Americans are only just now beginning to realize, many Americans are only just now beginning to realize how true it was when John Adams said in a letter to the Massachusetts militia right after the ratification of the constitution, that our constitution is not strong enough to restrain an amoral or immoral people. He said in the absence of morality, vices like avarice, ambition, greed, et cetera,

would cut through the cords of our constitution like a whale goes through a net. And this was 1800. Nets did not do well against whales in 1800. Yeah, I was like, wait, that's actually a huge problem. OK, but yeah. Yeah, we're 2024, whales, nets are unfortunately quite effective against whales. But 1800, not so much. And so in this circumstance, we have a republic

that in many ways rests upon an honor system, rests upon an honor code. The rule of law in many ways in this country rests upon that honor code. And I think the thing that is alarming to people is that when the rule of law fails is when the bayonets come in. And in our system, only one branch of government has the bayonets, and that is the president. And so I think that's why people are so alarmed right now, is they realize that when the honor code fails, when the honor system fails, then it turns to the bayonets. The bayonets are only in one branch of government, and that's the executive. But I want to emphasize that we're not there yet.

I'm concerned about it. Very, very serious people like Jack Goldsmith and Bob Bauer, who wrote about this recently, are very concerned about it, but we're not there yet. Also, don't forget the appeals. We haven't even gotten to the appeals yet, y'all. Yes, Judge O'Donnell issued this order saying you're ignoring me. I'm going to hold you in contempt next time. They're going to appeal that. I do think there's this assumption that like, oh, they want to ignore the court order. No, they want to get to the appeals. And frankly, I think if they lose at every level, including the Supreme Court, there's

not going to be a whole lot of popular will win. Let's turn to questions from you guys. As I said, you'll say them and I'll repeat them. To repeat the question, there are all of these lawyers filling the Justice Department political ranks who are making these arguments. Can the system react? Look, on the one hand, I actually think you're seeing the system respond as you would have imagined.

You have judges saying, are you seriously here making this argument to Brett Shumate, who's the acting head of the Civil Division, and he's having to say kind of sheepishly, yes, I am? On the other hand, because they are inundating themselves with litigation because of all these EOs, you also, as we mentioned previously in this podcast, you see them missing arguments, like failing to brief certain things. This is with an army of lawyers because they're just having to move so fast. Again, we're only at the first level of this.

We're only at the district court right now. We haven't seen the appellate courts yet. The Trump administration 1.0 was the least successful presidential administration at the Supreme Court in all time, or at least since we started counting FDR era, hitting under 50%. Every presidential administration has been over 50%. As we're looking at this, I don't see how they're going to perform better in 2.0. So, you know, maybe David has a different answer, but right now I feel like the system is performing incredibly well under what I will tell you is not even that much of a stress test. A president throws out a bunch of

EOs and a whole bunch of different judges get handed one EO, maybe two, and they're like, no, no, maybe administrative stay so I can think about it for three days. No, no, no, no, no, no, no. What's, you guys have seen Lego Batman, right? My son's favorite part is when he goes, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no. Yeah. So that's, this is a little bit of the, yeah, they know that part. He's at the fireplace. It's really cool. That's a great question. And I had an interesting conversation recently where the question was, why do the Democrats seem to be in such disarray in responding to Trump? That the Democratic, the political branches, the Democratic Party just don't seem to be

very effective right now. Well, and there's a very good answer for that. They control nothing at the federal level. They don't control the presidency, that Senate, the House, the judiciary. Sort of this idea that the Democratic Party has some rabbit to pull out of its hat right now. Republicans didn't in 2009, when Obama had the presidency, the House, and the Senate. There's just no political rabbit to pull out of the House. And also there was some discussion, well, why isn't there the giant wave of street protests

that you saw in 2017? Well, I think there's a pretty good answer there to that. One is 2025 and 2017 are very different. In 2017, Trump had lost the popular vote. He'd won the election through what seemed like pulling, you know, drawing this inside straight with these three Midwestern states winning by a very small margin. In the aftermath of Russian interference allegations, there was a sense that this was not supposed to happen. And a lot of people were pouring into the streets because this was not supposed to have

happened. 2025 was so different. He won the popular vote. He didn't just win the electoral college by more than he did in 2016. He swept all the battleground states. And also we're in an environment where a lot of the street protests have not necessarily worked out well for the cause of the protesters. They have been in many ways very counterproductive to their cause. However, however, as we have seen from injunction after injunction after injunction, there were people who were very prepared for Trump 2.0 and that was lawyers.

They were ready to go and it turns out that the judiciary is the most, a place far more immediately effective when the Trump administration violates the law than the political branches or certainly than street protest. As we have seen injunction after injunction, there was I think the third separate injunction against the birthright citizenship order came down today. As these things are locking in, and it's not all deep blue judges from deep blue jurisdictions, it's not. locking in and it's not all deep blue judges from deep blue jurisdictions. It's not. And so as we're seeing this come into play, what we are seeing is the separation of powers for now is actually functioning.

Okay. So the question is, what are the cases that I think are likely to get to the Supreme Court since they have discretion over what to grant cert on and what are the cases that we think like they're going to not dock on cert. So I don't know which of the cases in these buckets will end up at the Supreme Court, but I feel very confident saying that a birthright citizenship case will end up at the Supreme Court and impoundment case. And that's where I think the administration has the biggest problem because they're not going to get to pick which impoundment case. And I think there's better ones and worse ones for them to argue that. And in fact, the court may get to pick, which as you all know, generally when the court

has a lot of options and they get to pick their facts, it tells you a lot about how the case is going to come out. So I'll be paying careful attention to which impoundment case they decide to take. Then a firing case. Same idea there. I don't know that the administration will have a lot of say over whether it's going to be firing the inspectors general, for instance, which I think actually would bode very well for the administration versus firing FBI agents because they worked on January 6th versus firing USAID. All of those I consider in the firings bucket and I don't know which one will get there

or whether you'll have the court sort of know that they're going to get a lot of pitches over the plate on that bucket for instance. So they'll go, pass, pass. Oh, we'll swing at that one. I don't know, will they take the first one or will they wait for one right over home plate? But those are the three buckets that I feel very confident they'll take one in each of those buckets, if not more.

As for the ones that I don't think they're gonna take, like, I don't think we're gonna have a USAID, can the president move it to the State Department reaching the Supreme Court? I could be wrong about that. That one seems like we can handle that at the lower courts. What else, David? I would say I'm completely agreement on your trilogy. You know, the birthright citizenship firing impoundment, complete agreement on that. I do wonder if we could have an agency closing case.

In other words, if you functionally shut down all the operations of the CFPB, if you functionally shut down all of the operations of USAID, essentially just, but that might even be- It could be in the impoundment bucket. Impoundment adjacent, right? So there are, I would put that more like if we have the trilogy It could really be in either bucket.

It could be in a fire rings Humphreys executor bucket or it could be in an impoundment bucket because they're not and that itself I think would actually tell you because I think this court is very likely to overturn Humphreys executor which is the case that as we talked about in that episode with Aaron Hawley, kind of allowed the F, the Federal Trade Commission in that case to continue as an independent agency. I think that this court's narrowed that to its facts to the point that we may just get

rid of that, you know, fairy tale now. But on the impoundment and birthright citizenship, I think very likely to lose. The Trump administration would be very likely, yeah. Yeah, and you know, I would think about the CFPB or the status of the CFPB, status of USAID, or any other agency that is created by statute that President Trump wants to shut down.

I think that would be, that's impoundment adjacent, but goes a little bit beyond impoundment. So that would be the only one that I would say, okay, if it actually, if they actually shutter, truly shutter the CFPB or USAID, that's shuttered. I could see that happening. So the question was, wait a minute, didn't Biden do lawfare against Trump? Didn't Biden, pardon his family and didn't he also promulgate a student loan forgiveness rule that was unconstitutional? Yes to all. So, but however, the yes to all and well, let me say this, yes to two and three, no

to one, okay. Well, let me say this, yes to two and three, no to one. Okay. So do not confuse the Manhattan state prosecution of Donald Trump, which I believe was, do not confuse this New York state court case over the Stormy Daniels hush money with the federal cases regarding documents and January 6th. Both those cases were very solid cases predicated on, I would say, far more than probable cause. I absolutely understand that there are corrupt countries that prosecute political opponents simply because they're political opponents, but a functioning country

under the rule of law upholds the rule of law on every person in the chain, in the chain of government, from the lowest level employee to the highest level. So for example, we might see a prosecution of the South Korean president for ordering, essentially ordering martial law with no real foundation. I would say that would be a sign of a healthy rule of law based democracy in South Korea. We have had chief executives of multiple, a very high percentage of our 50 states be

prosecuted for violations of the law, governors of states being prosecuted, including being prosecuted by state, you know, by state officials who are from a different party. And so, but this happens in a country governed by the rule of law. So the question is not, did Biden's Department of Justice prosecute Trump, it's were the prosecutions legally justified. So for example, had, say, a Carter Department of Justice prosecuted Richard Nixon, I don't think that anyone really looking about that with historical perspective would say, that would have been clearly out of bounds and political prosecution. We would have said, why would he prosecute Richard Nixon?

Well, let me tell you why. And you would have reasons A, B, C, D, E, and F. You do not have a republic under the rule of law. If you say presidents are immune from prosecution simply because of the fact that they were president. So I strongly dispute number one. Number two was pardoning his whole family was terrible, was terrible. Said so loudly at the time. We have a massive problem with the pardon power.

I think it should be yanked from the president. It is a vestige of royalty that should not exist. I am in complete agreement with an anti-federalist by the name, the pseudonym, an old Whig, W-H-I-G, an old Whig. So an old Whig was looking at the powers of the president as outlined in the 1787 Constitution and highlighted the pardon power as a particular arena of potential

corruption and we have seen presidents of both parties abuse the pardon power and sadly you know in the ratification debate that pardon power was seen as particularly dangerous and so the in the ratification debates some of the founders were saying yes dangerous but it's dangerous, but guess what? We have the safety valve. Impeachment. Well, we now know that impeachment just is a dead letter because Congress is prostrate before the president, which is never intended. The final provision, this is the attempt to use the student loan forgiveness that violated the Constitution.

Look, that was, as we said and explained on advisory opinions at length, that was unconstitutional. I mean, unlawful. That was unlawful. I don't think he was even really that close a case, to be honest, as to whether it's unlawful. But we have a very long history of, sadly, of presidents of both parties kind of pushing at the edges of their constitutional authority, either having the Supreme Court ratify it, and they've gobbled up that additional amount of power, or the Supreme Court saying no. And when the Supreme Court says no to a president, that is not proof of presidential wrongdoing.

It's proof that they lost a court case. Now wrongdoing would be if you brought a case or you made a legal argument with absolutely no foundation. There's a concept, there is a federal rule of civil procedure, rule 11, a federal rule of civil procedure. And there's lots of people in this room who've marinated in rule 11 and 1L civil procedure. You have to have a good faith basis for making your argument. That is our core assessment of whether or not the argument that is being made in court,

because there's a difference between win and lose, and good faith and bad faith. And every lost argument is not evidence of a bad faith attempt to violate the Constitution or to violate the law. And so I think that's very important for people to realize. To reach a point where you're going to say somebody is involved in a bad faith attempt, a bad faith attempt to breach the rule of law, I'm looking for a lot more than they just lost at court. I'm looking for evidence of say, for example, I'm going to do it anyway.

I lost, I'm going to press forward, and I'm going to do it anyway. Or if you have cases that are brought in such or actions that are brought in such volume with so little regard for precedent that you begin to wonder is, are we dealing with regular legal process here or something else? And so as Sarah was saying, most presidents have a record at the Supreme Court that they tend to win more than they lose. But the fact that presidents have lost is not proof that the presidents are operating outside the bounds of the rule of law. I think we have time. Let's do one more. We just had our fifth anniversary together. Yes. Thank you. Thank you. What is one thing that we have said to each other feedback

that we've given that has made us better? So an important part of the story is that while we had met before we started this podcast, we had like literally like met one time many years previously. We were not friends. So it was sort of an arranged marriage. And we're five years into I think a very happy union. It's been phenomenal.

And I think that the reason why it works is that we value what each other has to say, right? So I think that's a huge part of it. I start a podcast, and we don't walk through it all beforehand, but I'm genuinely curious. I want to hear what Sarah has to say. And I think that mutual spirit of curiosity is something that makes the podcast better. And that that mutual respect that we respect each other's views. And then

part of it also for me is, I think the podcast has gotten better because I listened to it. And there are times when I'm like, I really wasn't that great. And now Sarah will not say to me, you were awful in that podcast, but I do listen and I've sometimes noticed when, you know, the way I approach that just wasn't very good. I mean, so I engage a lot of self-critique, but I think the really core of it is we just respect each other's point of view.

And also Sarah's a fun person. How could you not have fun doing this podcast if you're doing it with Sarah? So I think adding the joy element, it's just fun and the mutual respect. I think that's, you know, that and I promise you don't listen to our first like five podcasts. Really, please don't.

Because we didn't know each other, we didn't know what this thing was gonna be. I feel a lot of need not to let David down. And I think vice versa, right? We both prepare a lot for each podcast. And I think some of it is you guys, we don't want emails telling us how stupid we are and how much we got stuff wrong because like anything we say, there's some expert

out there who will tell us. But even some of that is because I don't want to let David down to have someone email because if that person emails both of us and David's going to see that I got something wrong. And so I think each of us drive the other to prepare. And so it's been a bit of a treadmill of like at some point, we will reach infinite preparedness for every podcast. Because I think our preparation per podcast time continues to increase. Yeah. Every month. And we've become friends and I you know, you don't ever have a expectation. Well, you have a hope that you will work with friends, right?

That's your hope. You hope you'll work with friends. You don't always get to do that, right? And so it's a great joy to be able to work with a friend. Hey, friend, right here. Like how my son calls you Grandpa Steve. Yeah, great Grandpa Steve. Sorry, great Grandpa Steve.

Great Grandpa Steve. Which that does train your friendship. Because how old have you told him I am? I'm not that old. But that leads me to one great piece of career advice that I got. And that was when I was interviewing at law firms, my uncle said to me, he said, you need to know, he said, how is it phrased? He said, when you're going through the interviewing process, make sure that you like the people who

you're interviewing with, because you're going to spend more waking hours with them than with your spouse, which in big law, let me tell you, that's true, at least for a while, right? And so... And in podcast law, it is too. No, it's not. It is. No, we don't spend that much time.

But no, there is an important element of joy in work and in life to enjoy being with your colleagues and have friendships with colleagues and try and I think there should be, you know, make that as a priority. I intentionally want to establish friendships with colleagues. I think that's a very important part of life. To five more years, friend. That's right. Thank you, Stanford Law School for having us. This has been a real treat, mostly because of the weather.