Advisory Opinions - Ignore the Gaslighters on the Hur Report

Episode Date: February 13, 2024

Memory issues, ghost writers, and presidential prosecutions. Media outlets are cherry picking bits and pieces from the Hur Report on Biden’s handling of classified documents, but Sarah and David spend a full episode analyzing its legal standards and implications. The Agenda: —Disclosing biases —Standards of evidence —Biden’s too old —Can we get the full recordings? —No security clearance for the ghost writer —Partisan brains reading the report —“No Zionists Allowed” in a bookstore Show Notes: —The Hur report Today's episode is supported by Burford Capital. Follow the link to learn more: http://burfordcapital.com/ao Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgert. And David, I am unusually energetic about this podcast episode. Guess what, Sarah? I am unusually energetic about this one as well. So maybe for the same reason, maybe for different reasons. I have feelings. So we're going to talk about the Rob Herr report in all of its 388 pages of glory, then a little public accommodation law hypothetical. And finally, if we have time, we'll talk about that Hawaii Second Amendment case.

But David, let me tell you why I'm feeling feisty about the Rob Herr report. And it's because I see just endless cherry picking from across the political spectrum from this 388 page report, where it can say anything you want. It can mean anything you want. It's really unfair to Biden or it's actually just really damaging for Biden. Everyone seems motivated, like it's motivated reasoning, right? Everyone's trying to get to a place they want to get to that was already the place they were. And then they're trying to pull you into it. Some of it is just cherry picking. Some of it's straight up gaslighting. And I just feel like this is where AO is called to be. We are missionaries in the gaslighting cherry picking world. This is our core calling, Sarah. It is eliminating legal gaslighting. So I want to be

clear about where we're coming from. Because the other problem is I feel like people are holding themselves out as neutral legal experts and purporting to give you their opinions of this report and then privately saying, oh, man, that part's really hard to justify. But they're not telling the public that. Oh, I know. So let me tell you where I'm coming from. I worked at the Department of Justice. Actually, I worked at the Department of Justice three times. But this last time, right, I worked day to day. I was doing Mueller report, Mueller investigation related things.

And as part of that, I worked with Rob Herr, who was the, what we call pay dag, the principal assistant deputy attorney general, who is basically the deputy deputy attorney general, which is why you need a better word for it because deputy deputy isn't a great title. But it's an incredibly powerful position at the Department of Justice. I worked with Rob for a year. So, A, I know Rob and I like Rob. B, I didn't know Rob before DOJ. So I grew to know Rob and like Rob in the context of a work relationship where I found him incredibly trustworthy and principled.

So, yes, it is true. As I read this report, I'm bringing to this already. I trust Rob, right? Like because I worked with him and I know him and I've seen him, you know, I've seen how he operates. Right. And also that I've worked at DOJ and I know how internal DOJ sort of protocols happen. So as we walk through this, I'll try to explain some of the internal DOJ stuff, some of why I trust Rob about this stuff, but it is fair for people to know my bias on that. Well, and I'll just say, I'm the neutral legal analyst here. No, I'm the one, no. I do not have your experience on this, not any way, shape or form. So that's absolutely crystal clear. My bias coming into this is I like transparency. You know, I wanted

to see the whole freaking Mueller report. I want to see all of these reports. I'll want to see the videotape deposition with the president. I mean, I'm I like transparency. And so and I like and I like reasoning. And so when people say, hey, you should have just offered the top line conclusion, that's all you should have done. Everyone's saying that right now was not saying that when the Mueller report came out. Let's just get that out there. They were not saying that.

Always be suspicious when reporters are telling you they, or pundits, anyone in this line of work is telling you they wanted less transparency. They're not being truthful with you. They just don't like what was in the transparency. Well, and also they're not saying they want less transparency on all of the explanations as to why Biden was different from Trump. No one's complaining about that. Right. It's and then again, you know, when the Mueller report was released, people on the right were livid that why didn't he just say there wasn't sufficient evidence to charge, you know, on collusion slash conspiracy, not sufficient evidence to charge on obstruction?

Why was it done in this way? I want people to show their work. That's my bias. Show your work. So we have 388 pages of showing your work. And if you would like to know where most of our conversation will be, A, you can always go read the executive summary. And obviously we're putting this report in the show notes. B, I would point you to chapters 11, 12, and 13. They start around page 200. And they're not as long or as dense as you think. So just get to chapter 11 and you're gonna see almost all of what

I'm gonna be reading from. Okay, so that's number one. Number two, I wanna explain standards of evidence slash proof, because we've talked about preponderance of the evidence, meaning more likely than not. Obviously, if you're listening to this podcast, you know that that doesn't fly in a criminal prosecution. But it's out there, right? So that's preponderance. That's going to be in civil cases. In criminal cases, because all of you have at least watched an episode of Law & Order, if you're a human being living on planet Earth for the last 30 years.

You know, there was a time, David, I believe this is absolutely correct. There was a time where somewhere on the planet at any given moment, all 24 hours of the day, there was a Law & Order showing on TV. Is that correct? Yeah. Because, like, remember, it was on TNT and it was on NBC. And anyway, I believe that is a true statement. Wow. I love Law & Order.

Yeah. Okay. So beyond a reasonable doubt, and this is where things are going to get tricky because a prosecutor needs to believe that the person committed a crime beyond a reasonable doubt themselves. The prosecutor must believe that. But as you can imagine, the prosecutor also needs to clear, every prosecutor needs to be able to clear the hurdle

that they believe they can prove that the person committed the crime beyond a reasonable doubt. Those are slightly separate standards. You have to believe it and you have to be able to prove it. And one can be true without the other being true, either direction, actually. You think you could prove that they committed the crime beyond a reasonable doubt, but you actually have doubts yourself of whether they did it and vice versa. You're 100% sure that they did it,

but you just don't think you can prove it to a jury. Okay, so both of those things have to be true for any prosecution in the United States. But at the Department of Justice, there is an additional level, and it's from the Justice Manual. This is not only that you have to believe the person committed the crime beyond a reasonable doubt and that you can prove that they committed the crime beyond a reasonable doubt. You have to believe that a jury will convict them.

And again, that may seem like a subtle distinction, but it's actually a huge hurdle and one that I struggle with whether it should be in the Justice Manual. So I'll read what Rob Herr from the report, how he described his understanding of his responsibilities under the Justice Manual. The department's Justice Manual requires federal prosecutors to determine whether the person under investigation committed a federal offense and, quote, the admissible evidence will probably be sufficient to obtain and sustain a conviction, end quote. Next, the manual directs prosecutors to evaluate relevant, aggravating, and mitigating facts and to determine whether criminal charges are supported by a substantial federal interest. A prosecutor should seek criminal charges only after considering each of these questions and making a policy judgment that the fundamental interest of society require the application of federal criminal law to a particular set of circumstances.

David, I spent so much time on this justice manual thing because it's going to make all the difference in this report. Right. As I read the report, absolutely there's a preponderance of the evidence standard met. If this were a civil case, this would be open and shut. Right. of the evidence standard met. If this were a civil case, this would be open and shut. I believe that you can read between the lines that Rob Herr believes beyond a reasonable doubt

that Joe Biden willfully retained national security information. And we'll go through some of the other things that he looks at charges for. Then you're going to see throughout the report him referring to jurors might find,

jurors could believe, a reasonable juror might. That's going to go to both things, right? Whether he believes he can prove it beyond a reasonable doubt and separately, and this is the most important where it's not even a close call, is whether he believes he can and will secure a conviction if he goes to trial. So David, if we can just pause for a moment, because I really struggled with this when I was at DOJ, because in my heart, I believe you should bring the cases that you believe the person committed the crime and you believe you can prove it. And you shouldn't be getting into jurors' minds about whether you'll win the case, because there's all sorts of reasons you could lose the case. And then we don't bring the case

at all. It feels like too high a bar and not a morally, I don't know, not a good moral bar to me. So can I defend it? Because I actually think it's a very interesting and I think ultimately helpful construct. And let me use a reporter analogy to sort of help flesh it out. So I don't know if you remember the movie She Said or the book, the whole story about my colleagues at the Times disclosing the Harvey Weinstein story, that they're the ones who broke the Harvey Weinstein predator story.

And what's interesting is you can see the evolution. When you watch that movie, you can see the evolution of building a case, building a case. But in this case, it was building a story, reporting out a story. And there's this really interesting scene where they know he's bad.

They know he's bad. You know, they've got all of the puzzle pieces, but they're lacking the one piece, which would be, you know, a source coming forward to say, to put the name out there, to absolutely establish. And then that's when, you know,

the editors say, that's when you've, quote, got the story. So they know the truth, but they don't have, in the reporter parlance, he didn't have the story. In other words, it wasn't substantiated enough. But see, that to me is the difference between

believing the person's guilty beyond a reasonable doubt and being able to prove that they're guilty beyond a reasonable doubt. I think both of those are necessary for any prosecution. Yeah. But that's different than believing you'll win at trial. Anyway, I had this debate and I hope he doesn't mind me outing him. I had this debate with, you know, the deputy attorney general. By the way, like when you think about your time in public service, there's just these moments where you like, what a, people throw this term around too much.

What a privilege to get to debate a question like that with the deputy attorney general who had spent 30 years as a federal prosecutor. And I'll tell you in the end, I'm not 100% convinced that should be the justice manual, but I did come around to it. Because as we saw with the Durham investigation, for instance, he basically didn't follow that justice manual guideline. He brought cases that he believed beyond a reasonable doubt and thought he could prove beyond a reasonable doubt.

But no prosecutor would have thought you could win at trial, basically. Yeah. And he lost at trial and it undermined the department's credibility so that the next time the department, you know, knocks on someone's door and says, hi, you're under federal indictment. That person's going to be more likely to say, yeah, but do they have it? Are they going to win? And it actually helps the department as an institution if their win record is, you know,

98%. Yeah. No, it's a really interesting issue. When I think about it, I think you have to look at it through the jury's eyes, really as almost like a check on yourself. So I feel it. I believe I can do it. Exactly.

And then let me add this additional filter, which is kind of step outside myself. Yes. And see, and that that makes a lot of sense to me. Because otherwise the two can collapse the I believe it beyond a reasonable doubt. And he can I prove it beyond a reasonable doubt can collapse onto each other unless you force the prosecutor now say, okay, now put yourself in the, you in the shoes of a reasonable juror. Yeah. Well, a unanimous jury basically always convict that person, probably convict that person. OK.

And it's also interesting. Could that actually sometimes lead to corruption in this sense? I believe they're guilty beyond a reasonable doubt. I believe I have evidence to prove it. I don't have confidence the jury will get there yet. So I'm going to add some evidence. I'm going to plant. Oh, I'm going to put something else in there. I don't have confidence the jury will get there yet. So I'm going to add some evidence. I'm going to plant, I'm going to put something else in there. I don't know. That's just talking out loud. I was just sort of thinking that through because there's so many, so many stories of prosecutors and police believing they have the person

they've got. We've got our guy. And then clearing the road, you know, from an evidentiary standpoint. Well, like we've said before, I am not aware of any case where a prosecutor or police officer framed someone they thought was innocent. They're always framing someone they already think is guilty and then they're wrong.

Yeah, exactly. Well, I think additional checks are good. It's just a sign that none of them are foolproof. True. True. Okay. So we've gone over our standard that Herr's gonna use to decide whether, and remember, he can't actually indict Joe Biden

because Joe Biden's president. So he is simply saying whether he would indict Joe Biden after he left the presidency or without regard to whether he were president, basically. I just wanna run through quickly the outline of all of the different areas Herr's going to look at. So the first is the marked classified documents about Afghanistan.

These are documents from fall of 2009. They have classification markings up to the top secret slash sensitive compartmentalized information level. That's the top, man. T-S-S-C-I. Next, there's going to be his notebooks that are found in Delaware.

Those are not going to have classification markings. They're going to be his handwriting that contain classified information. Next, he is going to read some of this classified information to his ghostwriter, and they have the audio recordings of that. So did he willfully

disclose national defense information when he was reading classified information to his ghostwriter who did not have security clearance? Then there were additional marked classified documents at the Penn Biden Center, elsewhere in Biden's Delaware home, in collections of his Senate papers at the University of Delaware. Lastly, last bucket, did the ghostwriter commit obstruction when he deleted audio recordings after he learned about the special counsel's investigation? All right. So we'll take those roughly in order. David, as I said, in order to be as transparent as possible on this podcast, I'm going to read large portions of the report. I think that's good. I think that's good.

OK, so this is the marked classified documents about Afghanistan, TSSCI. They were found in a box in Mr. Biden's Delaware garage that contained other materials of great personal significance to him and that he appears to have personally used and accessed. to have personally used and accessed. In February 2017, about a month after he left office, Mr. Biden told his ghostwriter while referencing his 2009 Thanksgiving memo that he had, quote, just found all the classified stuff downstairs. At the time, he was renting a home in Virginia

where he met his ghostwriter to work on his second memoir. Nevertheless, Rob Herr is going to summarize, we do not believe this evidence is sufficient as jurors would likely find reasonable doubt for one reason, one or more, several reasons. Both when he served as vice president and when the Afghanistan documents were found in Mr. Biden's Delaware garage in 2022, his possession of them was not a basis for prosecution because he was vice president and president. He had authority to keep classified documents in his home. So the only time for the willful retention is basically in 2017 when you hear that conversation

where he says, hey, I found all the classified stuff. Ways that a juror could find reasonable doubt. For example, Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully. His cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some

jurors that he made an innocent mistake rather than acting willfully, that is, with the intent to break the law, as the statute requires. Given Mr. Biden's limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight word utterance to his ghostwriter. The hey, I found all the classified documents. Right. We have also considered that at trial, Mr. Biden would likely present himself to a jury as he did during our interview of him as a sympathetic, well-meaning elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him by then a former president

well into his 80s of a serious felony that requires a mental state of willfulness. All right, that's the summary. From this point forward, if I read something, it's going to be from the chapter on this that expands on that summary. But frankly, it's a very good summary and it touches everything. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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$30 off plus free shipping on their best-selling frame. That's A-U-R-A Frames.com. Use code advisory at checkout to save. Terms and conditions apply. David, initial reactions. So when I read that initially, if you remove it from politics, let's just, I know, that's so, so, so, so hard to do. Hilar Let's try to remove it from remove this from politics. It made all the sense in the world. Like it was very down to earth, grounded and real. So there are documents there. They didn't teleport themselves there. Somebody had to physically move them there. He found documents that he then used that were, you know, in connection with the book. All of that indicates, hey, there's classified information. He knew it was there. Isn't that a formula for prosecution? And then if you have had the experience of interviewing the defendant and you find that in that experience, they

can't remember basic things, then you're not going to A, win in front of a jury, and B, how can you possibly believe that you can prove willfulness under that circumstance? If someone, just remove it again from the presidency, if you're talking about prosecuting an 81-year-old man with obviously decaying faculties, that would be seen, again, drained of the political context, and he's not Joe Biden, the president, he's Joe Biden, maybe a retired veteran insurance agent, you know, you would find that prosecution gratuitous and cruel, right? Not because he had the documents, but because of the other circumstances. And so when I saw that, it made all of the sense in the world.

And the interesting part about that, Sarah, is people are kind of sleeping on an element of this, which is Robert Hearst saying, otherwise, he'd be prosecutable. Yeah. So this is the, I want to read this paragraph, what I'm calling the reasonable doubt paragraph. This evidence provides grounds to believe that Mr. Biden willfully retained the marked classified documents about Afghanistan.

It's not phrased this way, but I think you should read that sentence as I, Mr. Herb, believe beyond a reasonable doubt that Mr. Biden willfully retained classified information. Second sentence. If he was not referring to those documents later found in his garage when he told his ghostwriter he had just found all the classified stuff downstairs, it is not clear what else Mr. Biden could have been referring to. Nevertheless, for the reasons below, we believe this evidence is not strong enough to establish Mr. Biden's guilt beyond a

reasonable doubt. And when he's going to run through the rest of it, it does get harder to parse whether he's saying he doesn't believe he has the evidence to prove it beyond a reasonable doubt, or he believes that a reasonable jury would not convict based on the justice manual standards. And so on page 208, this is the entirety of the debate that appears to have been motivated, you know,

online. I'm just going to read it all. This is the entire section on the memory stuff, okay? Okay. 208. Mr. Biden's memory also appeared to have significant limitations, both at the time he spoke to the ghostwriter in 2017, as evidenced by their recorded conversations, and today as evidenced by his recorded interview with our office. Mr. Biden's recorded conversations with the ghostwriter from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries. In his interview with our office, Mr. Biden's memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended,

quote, if it was 2013, when did I stop being vice president, end quote, and forgetting on the second day of the interview when his term began, quote, in 2009, am I still vice president, end quote. He did not remember even within several years when his son Beau died, and his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he had real difference of opinion with General Carl Eikenberry, when in fact, Eikenberry was an ally who Mr. Biden cited approvingly in his Thanksgiving memo to President Obama. In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall.

This is getting to the justice manual standard. Yeah. The jury, what would a reasonable juror think? We also expect many jurors to be struck by the place where the Afghanistan documents were ultimately found in Mr. Biden's Delaware home. In a badly damaged box, in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood. A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents critical to his legacy. Rather, it looks more like a place where a person stores classified documents he has forgotten about or is unaware of. We have considered and investigated the possibility that the box was intentionally placed in the garage to make it appear to be there by mistake,

but the evidence does not support that conclusion. This is why he included the memory stuff. Yes. This is what the gaslighters are not telling you. It goes to the justice manual standards of whether they could secure a conviction, not whether they can believe it beyond a reasonable doubt, not whether they can prove it beyond a reasonable doubt, not whether they can prove it beyond a reasonable doubt, but whether a jury would convict, which is the final hurdle that you must clear to bring charges at the Department of Justice.

The interesting thing here is all the partisans who are saying, how dare you? He's mentally sharp. Robert Herr's response is, okay, then I'll prosecute him. Or, you know, after he leaves the presidency, okay, then the findings change. The findings change to he's susceptible to prosecution. Which one do you want here, guys? And yeah, I do know that there are distinctions between with the Trump situation, which Robert Herr very helpfully for Biden lays out at length to show that it is not as severe.

And it isn't only the memory issues that, you know, come into play on the decision, but the memory issues are important to the decision. They're not the entirety of the decision, but they're important to the decision. And not enough people have zeroed in that in the absence, though, of that finding about his memory, the odds that the report would have been written in a substantially different way, much worse for Joe Biden, are greater. As it is, this closes the case. And then honestly, Sarah, it just states what we've already seen. Well, that's why the gaslighting doesn't really work. Also, you can gaslight pundits and reporters in D.C., but I found it is very hard to gaslight, you know, Americans. Well, and here's the other

thing. And here's a symbol of how hard it is to gaslight Americans. ABC poll, 86 percent of Americans believe Joe Biden's too old. Right. And the argument that that's the media, like the media covers it first and then Americans reflect that 86% of Americans aren't absorbing the media. Like they don't watch Sunday shows or cable news. So that's just, again, you're like trying to switch the causality in a way that just, you don't have a lot of evidence for that. Like it started with the media. In fact, there's a lot more evidence that it starts with the American people feeling this way, including lots of Democrats. Lots of Democrats feel like this is the thing that drives me nuts is what we're starting to get to in the Biden situation, Sarah, is the green room dichotomy. So, yes,

you know, and during the Trump era, we've hammered this. Joan has hammered this. Everybody's hammered this who grew up in conservative movement circles that we began to notice the green room dichotomy or the green room divergence. Trump is horrible, Trump is horrible, Trump is horrible, they say to you in the green room before they go on camera.

And on camera, they say, how dare you attack Donald Trump? I'm starting to see some of the same thing because there is not a Democrat I know that believes that Joe Biden is as sharp as he was. And I know a lot of Democrats who are really, really concerned, really concerned. But that's not the messaging. So we're getting this dichotomy.

And then you have, of course, Sarah, the social media swarm. getting this dichotomy. And then you have, of course, Sarah, the social media swarm. And this is the real difference between sort of, we'll call it online brain and touch grass brain. So when you're outside of the online hothouse and you're just sort of approaching the world as a normal human being

and not someone who, for example, thinks that how many New York Times op-eds on a particular topic are published or whatever the New York Times headline is determines the fate of Western civilization, but you're a normal person who interacts with the world in a normal way, you look at Joe Biden, and the concerns are obvious. It's just obvious. And the other thing about being a normal person interacting with human beings in the normal way is you know that we all have people that we love who reach a certain point in age

and the decline becomes obvious and then it never gets better. You don't get younger. And so this is what's so maddening about all of this, Sarah, is they're just yelling at you, screaming at you, don't look and pay attention to what's plain as a nose on your face. Now, if you want to argue that a obviously decaying Joe Biden is a better president than an obviously decaying Donald Trump,

have at it. Like, have at it. Yes, absolutely. I'm going to agree with that. I think if it comes down to obviously decaying Joe Biden versus obviously decaying and super corrupt standing trial for crimes found responsible for sexual assault Donald Trump. Look, let's talk about that. I agree with you. I've written that. But this idea that no, this is not a problem. But this idea that, no, this is not a problem. What are you, where is that even, how is that even possible, Sarah? How is that even possible that that's not a problem? I also find it really funny, the defense that like, yeah, but Donald Trump says things wrong and forgets things all the time. Yeah, you think I think he should be running for president? Yeah.

That's not a defense. Right. Wait, Donald Trump also is bad? I agree. Agree. What have you accomplished? Donald also is bad? I agree. What have you accomplished? Donald Trump is worse? I agree. But here's the thing that also gets me, Sarah, because here's what partisan brain does is it partisan brain makes you not see things clearly. And it also makes you demand that others not see things clearly.

That's what partisan brain does. And so then the answer becomes, well, if you believe that Joe Biden, you know, too old Joe Biden would be ultimately better than too old Donald Trump, then what partisan brain does is you cannot say anything bad about Joe Biden. So once there are, the determination is made of one over the other, then the imperative says, don't say true negative things about your

team because you've made the call. And once the call is made, you have to get on board. This is what's causing people to go nuts, Sarah. This is one of the things that's disrupting our political process because everyone else who's not, you know, in this mindset looks at it and says, why can't you say true things anymore? Why can't you acknowledge plainly obvious facts anymore? And the answer is, well, because I have partisan online brain. All right. Back to the report. I found this paragraph, this doesn't really, you know, fit into any bucket in particular, but if I were a juror and this were argued to me, I was like, oh, actually that is a little persuasive. Many

will conclude that a president who knew he was illegally storing classified information in his home would not have allowed a search of his home to discover those documents and then answer the government's questions afterward. While various parts of his argument are debatable, we expect the argument will carry real force for many reasonable jurors. These jurors will conclude that Mr. Biden, a powerful, sophisticated person with access to the best advice in the world, would not have handed the government classified documents from his own home on a silver platter he had willfully retained if he had willfully retained those documents for years just as a person who destroys evidence and lies often proves his guilt a person who produces evidence and cooperates will be seen by many to be innocent again do notice the phrasing here

rob's not saying he buys any of this he's saying a reasonable juror might again that's the justice manual thing it's not the reasonable doubt standard. On the other side of this, though, I found this also convicting. According to Mr. Biden, quote, I may have used the word classified with the ghostwriter in a generic sense to refer not to the formal classification of national security information, but to sensitive or private topics to ensure that the ghostwriter would not write about them, end quote. Mr. Biden qualified this answer by explaining, quote, I do not recall the specific conversations you referenced with the ghostwriter, which took place more than six years ago, end quote. This explanation that classified does not mean classified is not credible. For instance, he notes in the actual audio recording when talking to the ghostwriter, Mr. Biden asked

if he can read his handwriting. Mr. Biden warned the ghostwriter, quote, some of this may be classified, so be careful. I'm not sure. It isn't marked classified, but yada, yada, yada. So yeah, classified clearly meant classified. And you're not telling the truth in your interview. Now, is that enough to actually bring perjury charges?

Of course not. But it goes to the sort of guilty mind element. Right. Right. This is all about mental state. And boy, that sounds like someone with a guilty mental state that you're coming up with an explanation that is not plausible. Right. Yes. So here's her is going to lay out his four reasons why not to bring charges. First, the Afghanistan documents are now almost 15 years old, meaning they're not valuable. Second, not valuable to the United States. Right. Second, Mr. Biden was allowed to have the Afghanistan documents in his home for eight years as vice president and, of course,

now as president. Third, as discussed to some extent above, Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning elderly man with a poor memory. Finally, while jurors might not find reasonable doubt in any one of the evidentiary shortcomings identified above, some jurors may find reasonable doubt because of the cumulative effects of some or all of these shortcomings. Again, Justice Manual standard. So, David, this is what gets really interesting to me. I hope that people feel like we're presenting this as fairly as possible here. Me trying to read lots of portions of this.

You can make up your own mind. There's one other piece of this that we didn't discuss that frankly, I was wholly unaware of. And that's the Reagan counter example. I was wholly unaware of that. So her is going to bring up multiple times because Biden brings up multiple times. So we've talked about the marked classified documents in Afghanistan. But the other thing I

mentioned, of course, was the notebooks that were in Delaware. These are his handwritten notebooks that contained classified information. Interestingly, his staff moved all of his note cards into the National Archives. And there's lots of back and forth with Biden and his staff about that and why they have to do it. But it appears Biden never told anyone, never asked anyone, never sought advice about taking his basically diaries to his Delaware home and keeping them. Now, one inference from that is because he knew they would otherwise go to the National Archives. And he didn't want to tell anyone because he just wanted to keep those notebooks because he wanted them and he wanted to write a memoir. I think that is the most reasonable explanation.

unrelated litigation, basically, after Reagan's left the White House, it comes to the attention of the Department of Justice and the National Archives that Ronald Reagan has kept his private diaries. The Department of Justice then reviews those private diaries and returns them to the president. The National Archives doesn't ask for them. And in fact, these diaries, which contain classified information, but they're his personal diaries from being president, stay in Ronald Reagan's home until his death in 2004. Boy, David, first of all, of course you can't indict Biden then for doing the exact same thing that Ronald Reagan did. Biden now claims that he did it because he knew the Reagan precedent. I don't believe that for a hot second. I mean, maybe it's true, but I believe this is now under very good advice of counsel.

leave that for a hot second. I mean, maybe it's true, but I believe this is now under very good advice of counsel. But that seems like a real no-brainer to me. So much so that I now want to go back through all of the documents that Trump is charged with retaining and see if any of them are handwritten, because if so, they've got a big problem. Now, huge difference between handwritten diaries, which is the Reagan precedent, and marked TSSCI classified documents that are not basically from your notes, your contemporaneous memory, et cetera. We know that Donald Trump has been charged with retaining several marked classified documents, for instance.

So this wouldn't blow up the case against Donald Trump. But absolutely, it's a compelling reason that you can't charge Joe Biden for the notebooks in Delaware. Yeah. You know, this reminds me something, Sarah, of a story of what I was told all the way back to the Hillary Clinton classified information scandal going back 2015, the emails and the server and everything. And ever since I've heard it, everything that has happened since has convinced me that what I heard was true.

Because I was talking to a senior JAG officer, a much more senior JAG officer than I was, and we're walking through, it was one of these gut check calls where I was talking about early in 2016, when I'm trying to really evaluate my impression that Hillary should have been prosecuted. And one of the things that colored my impression that Hillary should be prosecuted was, I don't have the slightest doubt, not the slightest doubt that had the exact same fact

pattern unfolded, and she was in uniform, that she would have been subject to court martial. Like, there's just no question in my mind. And I was talking to someone more senior, and I said, do you, am I wrong about this? And he said, no, you're not wrong. That's absolutely what would happen in the military. And he said, but David, you have to understand, there's like three cultures of classified information.

There's the military culture. Then there's the civilian slash State Department culture, and then there's the actual political principle culture. And of those three cultures, the military is most strict, the State Department, for example, engaged in practices that we would not permit, and then the actual political principles

are a constant struggle to keep on board. Like the actual president, vice president, et cetera. It's a constant struggle of education and compliance. And ever since then, we've seen that play out, right? We've seen that these senior leaders are consistently finding things in their home with an oops when a soldier, and if you said, if you found stuff in a soldier's home and their response was oops,

it would not, that oops isn't the defense. And so it is a very interesting thing. And we're seeing this unfold because again, remember, we've now got the rain getting example. We've had the Pence example, which that's all dealt with. We've had, I mean, we've just gone through Trump, we've gone through Biden, we've gone through so many examples of this. Now it's not universal. But I've thought back to that conversation. And again, that conversation isn't a, it doesn't exonerate. It's not a rationalization. He was just reflecting a reality. And we're living with that reality now. So interesting moments as Biden's talking about the notebooks. So first of all,

remember, reporters ask him about President Trump, what he thought when he first learned that President Trump was keeping classified documents in Mar-a-Lago or saw the pictures. I forget exactly how the question was phrased. And remember, Joe Biden said he wondered how, quote, anyone could be that irresponsible and voiced concern about, quote, what data was in there and that may compromise sources and methods. But during the interview with the special counsel, Mr. Biden was emphatic, declaring that his notebooks are, quote, my property and that, quote, every president before me has done the exact same thing. That is kept handwritten classified materials after leaving office. Ah, hypocrisy.

Love the smell in the air. Can I can I take a really short digression here? There is an issue that has come up and I've seen this discussion online. And in fact, a lot of lawyers saying this online in a way that has some superficial persuasiveness, but is ultimately most common thing in the world to coach a deposition, a witness at a deposition, when they don't have precise command of all of the facts to say, I don't know, I don't recall, I don't recall is the typical way to say it, or I don't remember is the typical way to say it. And that if you take a deposition, I don't recall or I don't remember is often the most common answer, whether somebody is 25 or 95, because this is sort of what you're told to do.

Don't speculate. Don't make assertions when you're totally confident because you're they're under oath and it is not actually inaccurate to say, I don't recall if you don't recall details and all of their particulars, et cetera. I don't recall, if you don't recall details in all of their particulars, et cetera. And so how on earth isn't this just totally gratuitous taking a common tactic in a deposition and turning it into an indictment

or some accusation of dementia? That's not what happened here. This is, Robert Herr is not saying, the president said, I don't recall frequently in response to questions. Therefore, therefore, he is, you know, has this declining mental capacity. What was alarming is some of these things that were these comments were not the kind of responses when you're talking about. I'm saying, you know, did you do where is this specific Afghanistan document? I don't recall versus Mr. President in the year 2010, where was this document? And he says, 2010, was I vice president

then? That's a different thing. That's a, it's the additional details of not remembering these major things these major events these major dates in fact saying things completely wrong like there was a general who he said was very opposed to his point of view who actually was in agreement with his point of view and so the this is not saying that the use of a common deposition tactic of saying i don't recall means that he has declining memory. But they're saying were there other details other than that common I don't recall tactic that demonstrated that he had a memory problem.

And I think it's really important to distinguish between that because it is very persuasive sort of on a surface level to say, well, don't witnesses say I don't recall all the time. Heck, I've interviewed, I mean, I've deposed 30 year olds who say that, but this is different from that. Yeah, because saying I do not recall does not normally implicate the justice manual standard.

Okay, to run through the last few sections, this is the willfully disclosed national defense information to his ghostwriter when he read it out loud. This is her conclusion. The evidence does not show that when Mr. Biden shared the specific passages with his ghostwriter, that he knew those passages were classified and intended to share classified information. Mr. Biden's lapses in attention and vigilance demonstrate why former officials should not keep classified materials unsecured at home and read them aloud to others. But jurors could well conclude that Mr. Biden's actions were unintentional. At one point, he says this is probably classified, but that's not enough, of course, to show that he knew it was classified.

Right. On the other classified, marked classified documents that were at all those other places, he says the evidence suggests that Mr. Biden did not willfully retain these documents and that they could plausibly have been brought there, brought to these locations by mistake. That's the one area where you're going to see her saying, I do not believe beyond a reasonable doubt that he violated the law here. So you don't even get to parts two and three. And then did the ghostwriter commit obstruction

by deleting the audio? While the ghostwriter admitted that he deleted the recordings after he learned of the special counsel's investigation, the evidence falls short of proving beyond a reasonable doubt that he intended to impede an investigation, which is the intent required by law. In his interviews, the ghostwriter offered plausible, innocent reasons for why he deleted the recordings. He also preserved the transcripts

that contain some of the most incriminating information against Mr. Biden, including his statement about finding, quote, all the classified stuff downstairs, end quote, in 2017, which is inconsistent with an intent to impede an investigation by destroying evidence. And the ghostwriter voluntarily produced to investigators his notes and the devices from which the recordings were recovered. So that's why they're not charging the ghostwriter.

All right, David. Now, looking forward of what happens next, there's more legal process to go, which is Congress is gonna subpoena these recordings. There are transcripts, there are audio recordings, there are not video recordings. The audio recordings are both the dozens of hours of Biden with the ghostwriter that is sort of evidentiary stuff. And then there's the interview between the special counsel's office and Biden. That's the five hour's office and Biden. That's the five-hour audio recording in, you know, 2023.

So you've got the 2017 sort of evidentiary recordings and then the 2023 interview recordings. Congress, I presume, is going to subpoena all of those. The Department of Justice would normally not turn over anything like that to Congress, but there's a few problems here. One, the investigation's over. Two, Congress is going to claim

to have a legitimate legislative purpose in seeking these recordings, i.e., is the president competent to be president? So what generally would happen then is that Congress and the Department of Justice would go to court and there is an accommodation process because there's actually when you have two co-equal branches, and some people really get triggered by that term. So forgive me for those who were just triggered by me saying co-equal. But when you have two co-equal-ish branches going to court, it's not clear that one side automatically wins or the other. And so this accommodation process is where basically each side says what their interest is, and they try to more or less negotiate how to satisfy Congress's interest without betraying DOJ's interest in preserving the integrity of investigations. Except the investigation's over. So what is DOJ's interest in holding back the material? A little hard to say, right?

I think there is still an important interest, which is when the department declines to prosecute someone and the investigation's over, you shouldn't just turn over all of the evidence to Congress and basically let them relitigate the investigation. But Congress would need to have a legitimate legislative purpose in those cases, et cetera, et cetera. Basically, I'm running you through what the incombination process would look like right now,

but I'm gonna tell you in the end, with pretty high certainty, Congress is gonna win this one. And so then, if you believe that, the department slash the White House has a really interesting decision to win this one. And so then if you believe that the department slash the White House has a really interesting decision to make. Yeah. Would you rather try to delay this and maybe be turning over these recordings in June, August, October, October, or would you rather just turn them over now? And for all people defending biden's memory and how

this is a gross misrepresentation of their own interactions with him and what they've observed it's going to be hard for them to then say but dear god don't turn over the audio recordings what i think you're going to see is them saying let's compromise and turn over the transcripts not because the transcripts will be better exactly, though I think they will be because a lot of what he's describing is sort of a slowness. And the transcripts going to get rid of all of that, but also, because we know how media works, and having to read something just isn't as narrative forming, as, you know, damaging, frankly, as an audio, and video would have been even more damaging than audio,

which is presumably why they didn't agree to a video interview with the Department of Justice in the first place is because they had some inkling that this was all gonna come out at some point. So they limited it to audio. I don't, it'll be very interesting to see in the next few weeks whether the White House actually encourages the department

to turn over the recordings. I'm very interested in that as well. And I'm very interested in sort of the political response because I'm seeing this dichotomy, Sarah, between those people who are telling me, there are many, many people who are just gang tackling. I put up something on threads that was right after the report came out

saying it's worse than I thought it was, which is true. And the memory items are disturbing. And the gang tackling that ensued was something to behold. And yet how many of those people, because Biden actually can dispel some of these concerns if he gets out on the campaign trail, if he agrees to a whole bunch of interviews, if he gets on the radio, if he gets on podcasts and shows during the course of this campaign that he's on it, he's sharp. And, you know, as one Obama advisor said, the only way past this is through it. You just got to push through and show the American people.

But then when you say that, then some of the very same people who are just gang tackling you for mentioning Biden's age suddenly go get nervous at the same time because they kind of know, Sarah, what's happening is they've made that decision, that partisan decision I talked about earlier that he's got to win. And so therefore, anything that can undermine he's got to win has to be sort of dealt with,

perhaps even bullied away. And yet the bottom line is he can dispel most of these concerns, but we all know he can't. In theory, he can. Well, let me push back on that, which is part of the reason that he can't is because he could give 50 hours of interviews that are all flawless,

but if he makes one mistake, then he didn't do himself any favors. So they're basically in a no-win situation. Now, I think that's insane because not doing the Super Bowl interview with the largest American audience, you can pick your interviewer, yada, yada. That shows a lack of confidence in any ability that he may have. When you get to pick your interview, and it's a pretty softball interview, and it's in front of basically the largest, not basically, in front of the largest audience of Americans that exists on television every year, once a year, and that's it. Your staff isn't doing you any favors. And David, I've seen versions of this, and I think I've talked

about it on the podcast, where staff derives some power from saying no and protecting their principal because then they're the gatekeeper, right? And so you build up your own power on the podcast where staff derives some power from saying no and protecting their principal because then they're the gatekeeper, right? And so you build up your own power by people having to go through you. I think it's a huge mistake that staff make. It doesn't serve their principal well. That's very different than saying no to the Super Bowl interview, for instance. No staff would do that to enlarge their own authority unless they truly believed that they could not put their principle out there safely. Now, it doesn't mean that he would fail, but like they just aren't confident in it. So, yeah, they're in a lot of trouble here because you're right.

The only answer is to put your guy out there. But at this point, like when he gives the press conference to defend his memory and then mixes up Egypt and Mexico. Yeah. It doesn't matter that the rest of the press conference was fine. Yeah. He made one big mistake. Right. But the thing also thing to remember is that this this report isn't landing on sort of like clear, undisturbed pond on this.

This this report is landing after a lot of incidents before. Well, before this, I would have friends who are, again, they're deeply committed Democrats. They're going to vote for Joe Biden no matter what. And every speech he gives, they're nervous. Every speech he gives, they're nervous. And in other campaigns and with other presidents, as we've seen over the years, some of the times the imperative is get them out there. Let them make their case. Sometimes the imperative is get them out there. Let them make their case. In previous administrations, if you're talking about some of the best communicators, the imperative was, hey, look, let's get our guy out there because you know what? They're better at this than their Republican or Democratic opponents. And that's just utterly absent from any real sense of this in the Biden administration, which is, again, why I keep coming back to the highly partisan online swarms are just

missing this. They're just completely missing or they're not really missing. They're trying to deny and minimize what is just so obvious. And the report didn't tell us, that's the thing, Sarah, the report didn't tell us anything that lots and lots of people fairly wondered. You know, well, let me put it,

they didn't tell us anything that we didn't already fairly wonder, that this didn't come out of nowhere. So this perhaps goes to a larger question that i've heard other complaints about like when people who are upset in good faith about this report yeah so one they argue it's gratuitous i think we've gone over some of the legal reasons why it was not gratuitous because of the justice manual standard and why he's saying why it could be relevant to reasonable jurors

and he doesn't think he can secure a conviction. And here's one of the reasons. And you'll note he also said, because that's how Biden presented himself to us. He says, basically, in the interview that I conducted, he presented himself as a well-meaning elderly man with limited recall and poor memory. He presented himself that way to us.

So of course he's gonna come that way to a. So of course, he's going to come that way to a jury, but more so. But there's another part of the gratuitous angle that I think, first of all, I think that argument can be made in good faith. They're like, he had all these other reasons. He didn't need to include this. And he especially didn't need to include the line about Beau Biden. There's lots of people who don't remember what year a loved one died. You know what? I'm actually pretty persuaded that that line did not need to be included. I will tell you, and this is my bias coming out, knowing Rob, he was not trying to have a political hit there, that Rob just isn't a very political person. As far as I know,

Rob's never worked in politics. He's always been a career prosecutor at USA until he was the US attorney for Maryland. And again, I'm speaking only for my knowledge of Rob, not Rob. But, you know, if he knew that that was the line out of a 388 report, 88 page report that everyone was going to focus on a debate, I don't know that he would have included it. I don't know that I would have included it. I'll put it that way. So that's part of the gratuitous conversation that I find, you know, what it is. But the other part that I think would be fair if it were true, if after a five hour interview with the president, the special counsel was so stunned, as in if the audio comes out and it's so much worse than this report makes it sound, would the special counsel feel a duty to warn? Right. would the special counsel feel a duty to warn?

Right. Totally and separately from the legal standards required. And that's not his job. And if that's the reason it was included, I would agree that it was gratuitous, although one could maybe forgive if you think you have a duty to your country and a duty to warn under those circumstances, but it would not be okay.

It would not be under the rules to include that in the report. And I think that's maybe a separate gratuitous argument that people are making, that they feel like, yeah, maybe Biden's really bad. And maybe Rob Hurd was like, oh my God, it's so much worse than anyone's been telling, you know, when I watch the news

and when I see the president in these press conferences and other people need to know that. To the extent that's what people think about those three paragraphs included on page 208, I think that's also fair. Again, there's no evidence that that's why Rob included it, but that would be a gratuitous argument that I would buy into. The other argument that I've heard is that basically the Jack Smith Trump special counsel, Garland should have made that move faster. He should have appointed a special counsel sooner. Yeah.

And therefore, basically, they would have gotten this special counsel sooner. Sort of, this is all A.G. Garland's fault. Her owes Garland the report. Garland then voluntarily turns it over to Congress. Like that was ever going to happen any other way, but okay. And then Garland is responsible for the timing of all this and he should have sped them up. Here's my push back on that. Garland appoints a special counsel for Trump right after Trump declares he's running for president. If you're going to argue to me that it should have been

faster, you're going to need to tell me why there should have been a special counsel sooner. What's the conflict at the Department of Justice to investigating a former president at that point? Just because you think he might run again or he constitutionally could run again, that's not going to cross that line for me. And then we get to like why special counsels are exploding right now and why I think that's bad. And basically everyone else who's ever worked with or under a special counsel in the last now nearly eight years. I don't know a single person that doesn't agree with that statement that special counsels are bad and it's getting worse and we shouldn't be doing this anymore, even though each of these

special counsels was totally justified, as in fit under the requirements of the Department of Justice, because this is how the Department of Justice moves. This is the speed at which it moves. This is the tempo because those prosecutors have a whole lot of other cases they're looking into. When you appoint a special counsel, you're telling them to look at one person only. You give them a team that is exclusively focused on that one person. And so, yes, the investigation was moving more slowly before the special counsel was appointed at the normal pace for the Department of Justice and for other criminal targets of the Department of Justice. Then there's a special

counsel and they start moving a lot faster. But with all of these sort of myopic problems, they're focused on one person. You're sort of highly encouraged to bring charges if possible. You have these reports that are due that are, you know, rip the country apart once again. So the idea that A.G. Garland was supposed to appoint more special counsels and sooner. No, these special counsels are bad and they should only be appointed when absolutely necessary, because otherwise you're going to end up with a lot more of these reports. And you think the special counsel's report is bad because it came out in February of 2024? You think six months ago it wouldn't have been as damaging?

Of course it would have been. It's the report that's unhelpful. Because otherwise you do not have 388-page declination decisions that are given to the public. So I wholly reject the idea that it's Garland's fault that this didn't move faster, that it should have moved faster, that a special counsel should have been appointed sooner, all of that. And then the last thing I'll say is that there's a lot of attack on Rob Herr. This is a partisan hit job and politically motivated. Boy, you don't know Rob Herr. Again, if I had one complaint, and I hope he doesn't mind me saying this out of school, if I had one complaint about working

with Rob Herr, it was that he didn't understand politics and that my job was to deal with a political media, right? Yeah. Compare that to then Ed O'Callaghan, who becomes the paydag after and is the paydag when the Mueller report comes out, who had had a lot of experience on campaigns. He had defended Sarah Palin as her attorney at one point

during the 2008 McCain campaign. So here's what you need to decide, American people. Do you want sort of legal special counsels or do you want political special counsels? Because there's going to be upsides and downsides to both. Rob Herr's not a political special counsel. And therefore, he didn't really know that including that Beau Biden line was going to be the lightning rod of the 388 page report. Maybe there's arguments that that's worse. We should have had someone more page report. Maybe there's arguments that that's worse. We should have had someone more political. Or maybe there's arguments that that's better,

because then you sort of know that the rest of the report wasn't shaded because he clearly didn't know what the lightning rods were going to be. I would argue that you always want the legal special counsel. You don't want the political one. And just because it would have been better or worse or more shaded, you don't want that to be a consideration for special counsels. It's not for Jack Smith. I don't believe for a second that Jack Smith is a political guy. Nothing in his career has been political except that he keeps prosecuting corrupt political officials. But there's nothing to make me believe that his reports or indictments are shaded for the purpose of politics. And that gives me great comfort. Yeah. I think you,

I'm so glad you raised the timing issue. I'm so glad you raised all the difficulty that arises from this special counsel construct, which I agree is not optimal in the macro sense, but in the micro sense, it was entirely appropriate to appoint a special counsel here. But there's a prime mover here to all of this, Sarah. And the prime mover here is we have politicians who keep behaving really irresponsibly.

And when they behave irresponsibly, even when it doesn't cross over into criminality, it puts the system under so much strain because then everything gets again filtered through that partisan lens. So it becomes very difficult to hold people accountable in a way that's clean and creates some sort of consensus rather than additional division. But we just keep having these politicians again and again. I mean, my goodness, you have the private server with Hillary. Who would defend that as a responsible thing to do? And then you have all of the Trump nightmare.

And then you have, you know, even Pence who probably was the most responsible of all of this collection of people. It was, you know, there were still problems there. We just keep having this. And when you have low trust, you have high polarization. It puts an even greater premium

on going above and beyond, quite frankly, rather than playing fast and loose and then trying to rally all your defenders to your side when you play fast and loose and you're caught. How about we do this the right way the first time? And you know what we don't have to do? Debate special counsels. We don't have to wonder if like,

hey, should I? Yeah, I know. Hey, how should, I literally saw this on Sarah. How should we view that mess in the garage where classified documents is? Is that, that's horrible. I can't believe you put classified documents

in a mess in the garage versus, oh, that's so relatable. Looks like my own garage. I'm like, okay. I don't know how that's a defense. But it's a mess, Sarah. It's a mess. All right, David. We've got a couple more things to tick through here. First of all, a wonderful, kind, gentle friend of ours recently went into a bookstore. The bookstore is called Blue Stocking in New York City. And they have many signs, but one of the signs says, No Zionists Allowed. This person walked into the store wearing a, you know, like a chain, a small chain necklace with a Star of David on it. He saw the sign and left the store without purchasing anything.

And I want to run through a few public accommodation hypotheticals to figure out where the line would be for this store violating the law. So David, I'm going to give you the hypotheticals and then you tell us when they violate the law. Yeah. First hypothetical, they just have a sign on the door

and it says no Zionists allowed. Did they violate public accommodation laws? No. Okay. I walked through the store and I'm wearing my little Star of David necklace. And I see people kind of looking at me and they don't look very friendly toward me, but they don't say anything or do anything. But I feel that it's a hostile environment. Did they violate public accommodation laws? No. I walk in the store, I'm wearing my Star of David necklace. And the person behind the cashier, when I approach with the book that I want to purchase, taps on the sign that says, No Zionists Allowed, and looks at me and then stares directly at my Star of David necklace.

Did they violate public accommodation laws? We're getting close. Oh, come on. That was a yes. That one's an obvious yes. The only thing that says, because they're just looking at you. Okay. They tap at the sign.

Yes, yes. But I'm talking about, are they looking at you or do they actually carry through and deny you service? Okay, fine. The number four is they tap on the sign and said, like we said, no Zionists allowed no service. Then they definitely violated public accommodation. Definitely. Definitely. No, that's why I say if they point and then somebody goes, I'm not a Zionist and they go, Oh, what a relief, you know, but we all know that's not what's going on. Yeah. That's actually, that's maybe the hypothetical that I want to focus on. Because if they're tapping on the sign

and basically interrogating you because they identify you as Jewish, whereas they wouldn't have done that if you were wearing a cross and they would have simply checked out your book, I still think they violated public accommodation laws. I OK, I'm going to pull back from. Yes, I think you're right, because the other thing is, you know, if you had to, you know, if you had, say, like no gangsters allowed, as we've

talked about in the green room, and then somebody comes in, young male, black or Hispanic or whatever, and you tap the sign, no gangsters, and point at them, you've done some racial stereotyping right there, right there. If you're gonna make like black or Hispanic young men deny their gangster identity as opposed to, or make a Jewish person deny their Zionist identity based on gross racial stereotyping,

making someone based on their identity deny a political affiliation, that's, yeah, that's a problem. So this gets to public accommodation law as a whole, right? It's the idea that if you hold yourself out to be a place the public can come in to get services, whether it's food or a store, a hotel, things like that, you cannot discriminate on the basis of race, religion, ethnicity. Let's just use those three for now. The Supreme Court hasn't actually ruled that gender identity and sexual orientation are covered, although they did in the employment context. And then state laws often cover that for places of public accommodation. Let's just focus on race, religion, and ethnicity for a second, David,

because if you simply had a sign that said, no Zionists, there's a reason you said that was fine, and that's because that is seen as a political statement. And you are very much allowed to have a sign that says no democrats in my store or no ccp members ccp is it three c's cccp yes yeah wait yes cccp was soviet union but cc yeah because in cyrillic right anyway the point is you're allowed to discriminate on the basis of politics but you're not allowed to use that as a pretext for discriminating on the basis of some other uh you know thing like for instance and this has come up in the bats and um you know juror uh striking jurors you know if you say no no i just struck them because they have dreadlocks i wasn't striking them because of their race like, I don't think you could have a sign that says no dreadlocks because that would be such

an obvious pretense for race. Right. But I wonder, David, I don't know. We have these public accommodation laws coming up during and in the wake of the civil rights movement. The reason that they exist is because of the 14th Amendment, which is, I want to be careful, like intended to be about race, intended to remedy a race discrimination problem in the country. And I say that because I think there's some debate about that. Maybe it was intended to discriminate, sorry, to, you know, address other types of discrimination. But certainly the history of the 14th Amendment and the badges and incidents of slavery are much more focused on race than they were about religion or ethnicity, for instance. In a time where our public accommodation laws are increasingly being used as weapons as much as they're being used as shields, I wonder how we'll view them 50 years from now, looking back, and whether we should have kept public discrimination laws focused on race because it is perhaps most insidious, most obvious, and the thing that we were trying to remedy.

My Jewish, my kind, gentle Jewish friend walks into a store that says no Zionist, feels deeply uncomfortable and feels like he can't be in that store. And I reevaluate it. Yeah, I have had a change in my opinion on some of this stuff because pre-Trump years, pre-hyperpolarization, I was actually wondering if aside from race, the public accommodation laws should sort of start to melt away. That, in fact, that perhaps they were becoming more of a sword than a shield in some ways. That we didn't actually have a systemic problem with discrimination that would be cause for such a large scale governmental sort of intrusive legal regime. I'm no longer of that opinion because as we've become much more polarized, in many ways, we're almost reverting to the kind of identity based hatred that you that created the necessity for these laws in the first

place. And the more we're moving towards this identity-based hatred, the more the necessities of these laws might reemerge. I put it like this. I was talking to somebody at the National Constitution Center event that we were at, which was a great event. And I said, my whole life, living here in the South, for example,

I felt like each year was better than the year before in moving away from Jim Crow, right? Each year, we weren't perfect, we weren't right, we were getting a lot of things wrong, but gradually, steadily, the cultural momentum was towards equality, towards acceptance, towards toleration. There was strong cultural momentum. I don't know what year it was, but I now don't believe that momentum is moving in the same direction any longer. I think we are moving back towards more balkanization in many

ways, more identity-based hatred. And so that momentum is moving in the negative direction. And in that environment, you know, our friend's experience demonstrates how important public accommodations laws might be, again, just to protect your right to engage in commerce and stay where you want to stay, eat where you want to eat, consume, you know, be a consumer at the stores, you know, shop at the stores you want to shop. It's very distressing, Sarah. So David, just to be clear, Star of David necklace, maybe people are thinking that's, you know, just on the religion question. But if you walked into a store wearing an Israeli flag t-shirt, they also cannot turn you away or tap on the sign

or anything else because that is your national origin slash ethnicity that is also protected under public accommodation laws. Yes, and this actually directly, this is directly relevant to the BDS context, the boycott, divest, and sanction. So a lot of people say, how dare you disrupt

or how dare you oppose the BDS movement or how dare you try to suppress the BDS movement? It's just a boycott and a boycott is entirely, it's protected by the First Amendment. Yes and no, okay? Yes, boycotting based on, yes, boycotts are protected by the First Amendment in certain contexts, but here's where your boycott turns into a violation of non-discrimination law. Let's suppose you're, to take a hypothetical that I dealt with, not a hypothetical,

a real world case I dealt with. You have an academic society having a conference in a hotel subject to public accommodation laws. And it's involved in BDS. So it says no Israeli citizen can attend the conference because we're boycotting Israel.

Regardless of their views on the Netanyahu government, et cetera, that violates public accommodation laws because it's national origin discrimination. And some people on the left came after me when I made that point. They said, you're being hypocritical. You're a First Amendment guy. Like, look, this has been settled law. You know, if you go back to Newman versus Piggy Park, you don't have a free speech right to engage in identity based discrimination in places of public accommodation. This is settled law. Yeah, because of the law. You want to change the law? Fine. Change public accommodation law,

but you can't have it both ways. You can't use the public accommodation law as a sword against others and then say, no, no, no. But like my first amendment rights, Trump, no, no, that's not how that's going to work. Um, so I would just say to blue stockings, cooperative bookstore, I'm not going to talk on this podcast about whether you topped on the sign or gave my friend dirty looks. I'll just note that my friend left without buying anything and that I think it would behoove you both legally and, let's be honest, just morally, to make clear that Jews and Israelis are welcome in your store, and that you are simply making a political point and not a religious or national origin point.

And David, just before we leave this conversation, off Chain Bridge right now, Chain Bridge Road, down the street from where I live, but I drive by it pretty frequently because it's a major thoroughfare i don't know what the speed limit is but like i don't know it's at 45 miles an hour 35 miles an hour secretary blinken lives on this road and there are people who are camped out on the road to protest secretary blinken at his house where his small children live. And they yell at him all day long. And they have put tents on the side of this very busy road. The police have now created concrete barriers to protect them in their tents and put up a big sign that says slow down so that they're not injured by passing cars, despite the fact that they step

into traffic all the time for the purpose of blocking cars. And David, I'm just I'm left wondering what happened to time, place and manner restrictions. First of all, just from a legal standpoint. But let me just also tell you from a sort of political standpoint, you have no idea, protesters, how many people who, I don't know, were sympathetic to your point. I'll put it that way. Now think that you're the bad guys. You're yelling at someone and their small children. You're preventing hardworking people from getting to work, dropping their kids off at school. You're now causing huge delays back and forth every day on that major public road that we're

all supposed to be able to use. And I'll just note how I find it notable that despite all sorts of people in the administration being involved in this administration's policy towards Israel and Gaza, that they're sitting and yelling at the Jewish member of the cabinet. Yep. And it gets to my public accommodation point, right? You can say you're against Zionism, but then why are you only standing outside the Jewish guy's home and yelling at his children? Yeah. Yep. Yep. You nailed Yep. You nailed it. You nailed it. So my son, three and a half years old, asked when we drove by yesterday and said, why are those people yelling? And I will say, I really sort of don't think parents

should be having political conversations with their kids. But also when your kid asked that question, I don't know what I'm supposed to say other than it's not nice to yell at people. And if you have something to say or you disagree with someone, you should find a kind way to bring it to them. Right. And he's like, so are they the bad guys? I just like sort of chuckled to myself. I was like, yep, they're the bad guys. Maybe the police will come and take them away. Like an only a three and a half year old voice. Yes. And I thought, no, I didn't tell him this. I was like, no, instead, the police are treating them far and away better and differently than they treat other people who violate time, place, and manner restrictions. But that's where we are. Isn't that the truth, Sarah? And, you know,

I will note also that this is creating a dynamic on the left of center that is very similar in some ways to the dynamic that was created right in center with the rise of a much more radical, sort of quasi, much more radical, sometimes violent, very threatening movement on the MAGA right, which was often aimed internally at other people on the right, which was often aimed internally at other people on the right and has created massive friction in our worlds. It's just created extreme disruption of relationships in our worlds.

And a lot of people on the left are now experiencing that post-October 7th. I've had a number of people say to me, words to the effect of, now I kind of get what you've experienced, which is people on your quote unquote own side of the aisle, in other words, broadly left, turn on you with a vengeance as if you're a traitor that you're committing, and in many ways with greater fury because they see you as somebody that should have been allied with them. And it's

causing the same kind of deep disruption in relationships and bitterness and angst that we have seen on the right side of the aisle now for almost a decade. Again, I'm a pretty free speech absolutist, but I also absolutely believe in time, place and manner restrictions, which have been enforced against all sorts of other groups of people. So we should enforce those. You know, it's like the campus free speech stuff. I think you should have more First Amendment principles on your campus. I think you should have First Amendment, like basically you should mirror the First Amendment on your campus by and large. I might have some exceptions to that, but not worth getting into

at this moment. But most of all, I think you have to be consistent. That's my biggest thing. So like, it's not, I don't think it's hypocrisy on my part when I'm upset that the University of Presidents

say context matters in their hearings. I'm not upset because they're wrong on the First Amendment. I'm upset because that's not what their answer would be if it had been a different context. Indeed, to them, context mattered. And that's what I'm upset about. Context shouldn't matter when it comes to speech principles. So same thing for time, place and manner restrictions. Context shouldn't matter one bit. Right. And it doesn't matter to those

children in that house. I'll tell you that. They didn't choose for their dad to be secretary of state. So why are they getting yelled at and called names? And I mean, it's awful. And one other thing on that, there are people who would say to people who are very critical of those university presidents, not to belabor all the university president thing again, but this is an important point.

They say, wait a minute, you've been after them for years to engage in free speech and to protect free speech and academic freedom. And now they are, and you're mad at them. Yep. Okay. Okay. I'm not a goldfish. You know, I have a memory. And so if the standard is we're going to protect a lot of favored groups, and then when Jews on campus are under fire, it's full free speech. So we're going to protect a lot of favored groups. And then when Jews on campus are under fire, it's full free speech. So we're going to violate free speech principles to protect other groups. And then when Jews are under fire on campus, we're going to say free speech.

You're not sudden. And then people like us are supposed to be like, yeah, you see, they're for free speech principles sometimes. And we should be happy when they are. Don't worry about that. It's not always consistently applied as long as they're doing it. Sometimes we should applaud them when they are doing it. It's crazy. No, it's not. The rule is not we get to protect everybody. But Jews on campus experience all the pain of free speech and other communities that we maybe like better. We're going to coddle and protect from all the

pain of free speech. That's not a sustainable world. Now, if they had come in, because some of those presidents were new, President Harvard was new, right? If they came in and said, I acknowledge that in the past, my institution has not fully protected the free speech rights of its students and faculty. We are taking the following concrete steps to make sure that doesn't happen again. We have adopted the Chicago Statement. We have adopted the Calvin Statement. So we have done A, B, C, and D that are policy changes that are concrete, that establish a free speech regime on campus.

That's a different message than coming in with and essentially saying, well, we're reviewing our policies to potentially update. But in the meantime, Jewish students, you're getting your lesson in free speech. Other students, you know, maybe you need a little more help. That's just not the way this can work. And with that, we're obviously going to not talk about the Hawaii case today. And we'll talk about that for the next episode. Because what if we get off on tangents about Hawaii and ignoring Supreme Court precedent and all that? There's actually quite a bit to dig into there on the

Hawaii Aloha doesn't mean Second Amendment decision. So next time on Advisory Opinions, and I know, American Nightmare. I know, I know, I know. Bye. Thank you.