Advisory Opinions - Impeachment Briefs and Font Choices

Episode Date: February 5, 2021

On Wednesday, Wyoming Rep. Liz Cheney survived an intra-party effort to oust her from her GOP leadership position, meanwhile Republican Party Leader Kevin McCarthy decided he will not strip firebrand Rep. Marjorie Taylor Greene of her committee assignments. When it comes to all the latest intra-GOP squabbles, Sarah and David have the scoop. On today’s episode, our hosts also break down the Supreme Court’s latest orders and the good, the bad, and the ugly of the impeachment briefs. Show Notes: -“I’m Comic Sans, Asshole” by Mike Lacher and Saturday Night Live’s Papyrus Skit. -“U.S. Nazi hunter has one active case” by Evan Perez, Alexander Rosen, Wesley Bruer, Jeremy Moorhead, Alex Lee and Josh Gaynor in CNN. -“Your Type May Be Ripe For Review” by Chris Mincher in the Maryland Appellate Blog. -Rule 32. Form of Briefs, Appendices, and Other Papers. -Democrats’ impeachment trial brief and Trump’s response to the impeachment article. -Salinas v. United States Railroad Retirement Board, Republic of Hungary v. Rosalie Simon, Federal Republic of Germany v. Philipp, Wednesday’s Supreme Court orders, Howard J. Bashman’s “How Appealing” appellate litigation blog. Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast, Olive Branch Edition. Those of you who listen to the secondary Dispatch Podcast, or maybe the tertiary, we don't want to demote Jonah's Remnant Podcast. But this, of course, is the flagship podcast of the Dispatch.com Advisory Opinions. I'm David French with Sarah Isker. And if you listen to our other podcast, our Dispatch podcast, where Sarah, Jonah, Steve Hayes, and I talk about the news of the day, yesterday, Sarah and I had a rather, was it a spicy disagreement? No, no. No, no, nowhere near Alito level. No.

We had a disagreement about Marjorie Taylor Greene. I would say it was more like Gorsuch versus Kavanaugh level of disagreement, not Alito versus Gorsuch and Bostock or anything like that. Right. Okay. Okay. I've been worried about it all day since. Okay. been worried about it all day since. So, no, we're going to talk about the House vote not to

depose, the House GOP vote not to depose Liz Cheney, the upcoming House vote today to potentially strip Marjorie Taylor Greene of her committee assignments. And fun fact right now, Sarah, guess where I am sitting? I know you're not in your house. No, I am on location in Marjorie Taylor Greene's district. Yes, I'm getting ready to speak to students at Covenant College, a Christian college here in Georgia, right near the Georgia-Tennessee line. And so I've crossed into Marjorie Taylor Greenland. And so we're going to talk about the Liz Cheney vote. We're going to talk about the Marjorie Taylor Green vote coming up. I've got a olive branch proposal for Sarah that I think she might agree with. She might come to terms with. I doubt it. We're also going to talk some SCOTUS updates. And then

we're going to break down the good, the bad, the ugly of the impeachment briefs. Trump's impeachment defense team, newly named, that we talked about last or not last week, but on Monday, has filed its brief. The House impeachment team has filed its brief. And David, I have done some. Last night was date night. David, I have done some, last night was date night, and I did about, I don't know, two hours of really important homework on these briefs that I'm very excited to share with you and listeners. I'm thrilled, frankly. I did my homework on these briefs after watching the season finale of The Expanse, season five, which was so good. It was so good, Sarah.

There were moments I stopped in the middle of the show and rewound like two to three minutes to make sure I just took it all in again. Do you ever do that? So listeners, based on that, it could be that The Expanse is very good. It could be that it's totally awful. We have no additional information about the season finale of the Expanse.

All right, David, we do not have much time today. Jump in. Yes. Okay. So yesterday, after much fanfare and also sort of a lot of boasting from what I guess we'll call the Matt Gaetz wing of the House GOP caucus, the Jim Jordan wing of the House GOP caucus, that there was going to be accountability against Liz Cheney. There was a raucous, what, four-hour meeting of the House GOP. And as always happens now, if you have a big meeting of the House GOP or the House Democrats

or Senate Democrats or Senate GOP, there's leaks throughout the time. You presume that you've got members texting their favorite members of the press and they're talking about it's angry, it's emotional. Liz Cheney is not backing down one inch, was the message, and demanding a vote. And so a vote was conducted, a secret ballot, which we need to talk about that, a secret ballot. And after Matt Gaetz said he had the votes to depose Liz Cheney and he was just worried the establishment would deprive him of the opportunity of voting against her, she insisted on a vote and she won. And what was the final score? It was 145 to 61 with one member voting present. to 61 with one member voting present. Now, maybe we need to start with the member voting present because this was a secret ballot. Well, I have a really important question for you, David. Did

you ever run for office in like elementary school or, you know, student government type stuff? Oh, I ran for student body president of Lipscomb University the beginning of, or the end of my junior year for my senior year. And that's not elementary school. No, but it's contentious because I lost in like a Florida style razor thin margin. Okay, well then perhaps it's a little relevant. Did you vote for yourself? Of course.

So I remember very distinctly at elementary school thinking it was sort of dishonorable to vote for yourself. And having this discussion with my father about like, how is one supposed to vote? You know, do you vote for the other person? Because that is sort of a kind and generous thing to do. Do you vote for yourself? Which feels like really self-aggrandizing. They did not have such thing as voting present, as I recall, in fourth

grade. But I will bet dollars to donuts that vote is Liz Cheney. And I bet that she also felt in fourth grade that voting for yourself was perhaps self-aggrandizing. That's fascinating. And now you've just made me feel bad about voting for myself in the student body election. Well, if it was a razor thin margin, though, I mean, that makes it really interesting. I think that Liz Cheney genuinely did not know what the outcome would be. She wanted to vote because, you know, if they kick her out, great. Good to know. If it's a blowout like this was great. Good to know. But either way, she didn't. And just in case it was that close, she wanted to be able to say that, like, no, she was not the tie breaking

vote that kept her job, which I think was smart in this case. Now, the initial tweet, the first tweet that came out, I believe, was from a Washington Post reporter and it said, Justin, Liz Cheney has managed to cling on to her leadership job. Vote was 145 to 61. Now, look, on the one hand, my first initial reaction was like, that's not clinging. That's a that's a pretty blowout vote. On the other hand, I mean. Sorry, it's a big dissent, not Washington.

Yeah, it's a big dissenting vote. That's a pretty big dissenting vote, 61 people. But if you remember back to the impeachment vote, and now they're very different, totally different votes, whether a member should be able to vote their conscience and leadership and whether you agree with their vote of conscience. Those are different. Those are different. Those are different. Fair. But one wonders how the impeachment vote might have turned out if it had been by secret ballot.

I mean, I think you can state with some pretty decent degree of confidence that there would have been more than 10 votes, GOP votes. How many more than 10? Gross rank speculation. Would there have been more than 10? I feel pretty confident about that. It also means that there's 61 members of the Republican caucus who, I think it's fair to say definitely don't agree with the vote to impeach fine, but they also don't believe that a member of leadership should be able to vote against the majority of the Republican caucus, which is interesting. Um, now, and then this is, this is less obvious based on how they voted. But it also seems to me that

I you know, these are the hardest of hardcore Trump supporting Republicans in the House, and there's 61 of them. That ain't nothing. No, nope, it's not nothing. But I can tell you that it's a heck of a lot fewer people than was advertised. Well, that's true. Now, Matt Gaetz, this is part of my rant from yesterday, David. The job, the only job responsibilities of a backbencher are to vote on legislation, draft legislation to the extent anyone cares what they say, but still, amendments, whatever. And three, send mail to their constituents for free, the franking privilege. Never forget the franking privilege. But Matt Gaetz has said that he considers it really his main job to go on television. If your main job is to go on television, you have to be entertaining and saying like, I'm sure we have the votes is a lot better than, well, I'm not totally sure because I

don't have a whip team and I'm one guy and a lot of people don't like me that much. And so who knows? Who knows how this vote could turn out? I mean, Matt Gaetz is good at going on TV and that gets incentivized for all of the reasons that I said yesterday. And when we get those this quarter's fundraising numbers, I'm going to hit you over the head with them. Yes, I know you're going to. I know you're going to, but this is bringing me to my olive branch. Okay.

So here's my olive branch. So as we know, the source of the disagreement was how much should, not should the mainstream media pay attention to Marjorie Taylor Greene, not how much should the Democrats pay attention to Marjorie Taylor Greene, but how much should we, so not just me at the Dispatch, Jonah, Steve, but sort of broader responsible right-wing media or conservative media or whatever you want to call it, responsible media. How much should responsible media pay attention to Marjorie Taylor Greene? And Sarah very wisely issued a reminder. We were operating under competing 2016 narratives. One of the narratives that Sarah offered of 2016 was, look at what all the attention got Donald Trump. One of the things that got him was arguably the presidency. And so giving a ton of attention to this radical, more radical outlier compared to

other candidates is a problem. And yeah, I agree. And my counter was, but a lot of the people who could have done something about Donald Trump were just kept waiting for him to fail and didn't take their own affirmative action to derail Donald Trump, including a lot of the candidates in the race, aside from the one that Sarah worked for, Carly. Poor one out for Carly's campaign, which I loved. And Sarah, you know, I was there for you in the campaign. We didn't even know each other yet. We didn't.

You were my feminist ally before we'd ever met. I went back and I mentioned this in the Dispatch podcast, but while we were recording the podcast, I pulled up some of my 2015 era writings about Carly. And I was I was going to we ran out of time, but it's going to read something that I wrote back in 2015. I don't have it right in front of me, but it was something like this. And this tells you how I might have slightly misjudged the tenor of the Republican primary voters in 2016. And I wrote that, yes, Republicans want a fighter. They want somebody who's going to fight back against the media, against the

mainstream media, which Carly had done on a number of occasions, including, as I recall, a pretty memorable interview about climate change with Katie Couric, if I'm remembering that correctly. But they also want somebody who's going to explain how conservative values lift up our nation, that how conservative values lead to human flourishing, and how conservative values represent the best of American politics. And that part of it, there wasn't quite as much demand. So, here's my proposal, Sarah. In the military, there's a kind of missile that is called fire and forget. Okay. It is a, you launch the missile and it has its own intelligence, its own guidance system. So it goes straight to the target and you, the pilot who launched the

missile can hightail it back to safety. You don't have the pilot who launched the missile, can hightail it back to safety. You don't have to continue to guide the missile to its home. So my proposal would be, with Marjorie Taylor Greene, you fire and then you forget. And by that, I mean you get the sufficient attention to her conspiracy theories and her malice. I mean, she's expressed a desire that Nancy Pelosi should be shot. You raise attention. You hold the vote to strip her of all of her committee assignments, removing her from any form of tangible political power in the House other than that one vote that she has. And then you forget. Fire and forget. So you have to raise enough attention to create the demand for the vote. You hold the vote. You see where the GOP caucus stands,

and then you focus on, you know, however many of the GOP caucus that would want to keep her in power, but you then forget about her. How's that? I want to make a concession here, which is I, right, there's two problems. One is, you know, the sort of naivete of like, if we lived in an ideal world, if we lived in an ideal world, there would be no need to fire because the Republican caucus would deal with this on its own. Right. Or it wouldn't or whatever. And like, we would just sort of be like, well, with this on its own or it wouldn't or whatever. And like, we would just sort of be like, well, you know, uh, they're going to deal with it or, or they've chosen to ignore her also. And we can sort of, um, have faith that the Republicans are keeping tabs on their own. I acknowledge we don't live in that world and I get that. And therefore to your point,

there is some responsibility for outsiders outside of the House members in the Republican caucus to sort of raise a ruckus and force such a vote. But yes, I guess to that extent, we entirely agree. I think it's totally appropriate, of course, to hold a vote and strip her of her committeeship. That's what they did with Steve King. Right. And my main complaint is that, in fact, she's being treated very differently from Steve King. I thought that the Steve King treatment was about right.

You say that you don't understand what happened to the good old days when white supremacy wasn't a bad word? We're going to we're going to note that that's that's noteworthy. We're going to question your confusion over over that. But we're also going to be dismissive of it. The Republicans, you know, didn't need a whole lot of attention to strip King of his committee, the primary voters, and voted him out. This guy had been in office for a long time saying horrible, horrible things, being a terrible person. And it didn't lead

the Sunday shows. In fact, I'm not sure I ever remember a Sunday show segment dedicated to Steve King, the worst congressman in Congress. And boy, there's a race there, by the way. If you think he's the only worst guy in Congress, there's plenty of them. But I'll even acknowledge Steve King probably won. My complaint is that the treatment she's gotten is disproportionate. She's getting treatment beyond simply what she has said because I think there is this Trump-sized hole left behind of people missing the outrage and the smugness and everything else, and that the treatment that she's getting is more than was needed to force

Republicans to notice that they had a lunatic in their midst. However, all that aside, of course. Yeah. I, I would fully accept that. And, uh, because I am, I am talking to, um, girlfriends, of course, uh, relationship advice and, um, you know, there's that phrase, small kids, small problems, big kids, big problems. That gets true. Like even for adults, like, uh, big kids, big problems. Right. So I was texting a girlfriend last night and I was like, yep, all that's true. You don't control his actions. You control yours. Uh, so David, while I don't control your actions, I, you know, I sort of have some sway over your actions. Nevertheless, um, are you going to put your money where your mouth is on this?

Oh, on the fire and forget? Yeah, like they're holding the vote. Are you done writing about her for your newsletters? I would say so, unless there is some indication that she's leading a block of, like she has influence above and beyond

what a normal person, freshman stripped of committee assignments would have. Um, but yeah, I would also stripped of committee assignments. I think she's, I think she's about to be, but I'm just curious, like if that would change your calculus, but if she's not stripped of committee assignments, one thing that would tell me is that she's got more influence and clout than... Well, she has no influence. The only question is whether these people are sort of making an anti-anti-vote

as is our current political climate. Well, I know, but that tells me a lot. But that's not her influence. That's not her. That is that actually she has been made into something by us. Okay, there's another thing that you're missing in the analysis here that is also that there was the sacking of the Capitol by people who shared her worldview. Like, this person is almost like an avatar of these very extremists who attack the Capitol.

Uh-huh. QAnon. I agree. She's QAnon. She's QAnon. She's stopped the steal. She's Nancy Pelosi is treasonous. She is an avatar. Stop making her one

because by doing so, you make her a hero to them. Martyr is the wrong word because we're not doing a lot of damage to her. She then raises all of this money. This is what I talked about, right? When we look at her fundraising numbers

for this quarter, they're going to be outrageous for a freshman, not just a freshman, a freshman in her first three weeks in office, raising hundreds of thousands of dollars because of that anti-anti vote. I don't care if, you know, she's the decal on the front of the car.

It's the car that matters. Focus on the car, not the decal. Well, but what I'm going to say is this. If she wins her committee vote, which would be a travesty, like that would be an absolute travesty. Particularly being on the education committee. Is that many hundreds of congressmen who wouldn't who wouldn't vote to strip her of her assignments. story is, look, defending this person for whatever reason, to own the libs, to sort of hang, because she would have to win the vote through getting some Democrats. If the Democrats wish to troll the conservatives and hang her around their necks, I mean, all of these things are just flat out irresponsible. Then the focus shifts to where the locus of, the actors of the locus of power. But my intention, my hope is fire and forget. My hope is you raise the elevate, you elevate that this person, you have to elevate this person to trigger this vote. And then you trigger the vote, you stripper of power, and then you move on.

Speaking of fire and forget, I'm ready to forget. All right. Well, we fired ready to forget. All right. Well, we fired off that conversation. Now let's forget about it. Can I give you some Supreme Court updates? Please. So remember I said they were adding an opinion hand down day while they were like not in their normal oral argument session. So that day was Wednesday of this week.

It was yesterday. Exciting. Lots of anticipation around that because there was some thought in the appellate nerd world that perhaps the reason that they had added this, which is unusual now it's COVID. So everything's a little weird, I guess, weird, I guess. But this was like, this doesn't really happen, was to hand down the Affordable Care Act case so that the Biden administration would not need to formally switch positions and sort of save them. It's saving them face, but really it's like this institutional point that if we can prevent the institutions from having to look stupid and flip floppy uh we can we can help that cause and right we all know john roberts chief institutionalist it made a lot of sense to appellate nerd folks and so with much anticipation 10 a.m on monday

or on wednesday rolled around see I'm used to saying Mondays. And we got three cases. None of them were the Affordable Care Act. There was one on the Foreign Sovereign Immunities Act, which like isn't interesting and we're not going to talk about it except to just like sort of explain to you why it's interesting. So there aren't that many Holocaust cases left. If you know this, David, it's fascinating, but there has been a little bitty segment of the Department of Justice dedicated to Nazi hunting. You're right, yeah.

And these are people who basically skated out of Nuremberg, didn't ever get held accountable, managed to get to the United States and hide here under false identities, etc. While being, you know, Nazis, war crime committers. The last Nazi was found not too long ago. And the chief Nazi hunter at the Department of Justice, his job was done. And I hope they make a movie out of this because how rare is it in any public sector job, David, to finish your work? Yeah, successfully. Successfully finish your work. Fascinating. Yeah. The only Nazi hunter that I'm super familiar with is Magneto from the X-Men.

And doesn't it start with X-Men First Class with him in Argentina having tracked down some Nazis? I can't remember if it was X-Men First Class, but it was one of them. But, no, that would be a tremendous story. And, of course, Israel has had a very famous Nazi hunting wing. And it wasn't at Adolf Eichmann that they captured and brought back for trial in Israel. And I believe it was Eichmann, or listeners will instantaneously correct me if I'm wrong, which I definitely appreciate. But yeah, that's fascinating. So special shout out to Eli Rosenbaum, who joined the Office of Special Investigations in 1979, like basically right when it was created and saw it through all of its work.

So neat. The people who he has managed to hold accountable and wonderful, wonderful, interesting life and person and lots of movies, I hope, are in the making about him. But there was a case of the Supreme Court that touched on this. And this was that these folks basically sued in United States courts, in United States federal court against Germany and Hungary saying like, oh, hey, remember when you put us on these trains and took all our belongings and didn't give them back? We would like those back. Now, normally the Foreign Sovereign Immunities Act prevents you from suing a foreign country for stuff like this. But they said that there was an exception because of violations in human rights, which it's pretty clear that World War II

had plenty of violations of international human rights. And the Supreme Court said, you know, the phrase, quote, rights in property taken in violation of international law as used in the Foreign Sovereign Immunities Act doesn't count here, basically. And so, and really they're pointing to like exactly how bad it would be if we let people sue Germany and Hungary and American court and like what would

prevent people from suing the United States and German court and sort of, you know, the whole point of the foreign sovereign immunities act. Uh, the other case was on the railroad retirement act, which is definitely in the top three most boring things you never want to see as a clerk when they like, you know, we have to split up the various briefs of cases and we split them up pretty randomly. Usually you don't want ERISA. You don't want Railroad Retirement Act. So we're not, I'm not even, no, we're not doing that. And then the other one was a PC of the Hungary case to send it back because of the German case about the Foreign Sovereign Immunities Act.

But the interesting part of what happened at the Supreme Court on Wednesday was that they accepted the Biden administration asking to cancel argument and basically dismiss two Trump cases, one on the funding for the border wall, the U.S.-Mexico wall, which the funding, if it had been paid for by Mexico, of course, would not have needed to reach the Supreme Court. But this was U.S. taxpayer funding for that wall. And the other one was the remain in Mexico asylum policy.

David, I will say, like, I understand. I understand this is how it has to be. But it is frustrating, legally speaking, to have a case get all the way to the Supreme Court. We're about to have sort of legal resolution on interesting legal questions. For me, the border wall legal question wasn't that interesting, but the remain in Mexico asylum policy question was interesting. And it's gone now. And I'm also speaking of DOJ, the Biden DOJ, like they dropped the civil rights case against Yale for discriminating against Asian American students. Right. Yeah.

There's still a Harvard case out there that's brought by private parties. Correct. And it's fine. And thank goodness. But I think it's really something, actually, for the Department of Justice to drop a civil rights case

from one administration to another. I think I am not aware of something like that happening in the past. And there was sort of a yawn from the mainstream media that like, oh, of course they dropped it because this had like partisan overtones. Yeah. Civil rights cases should not be seen through that lens. If there is a right to vindicate, it should, even if you lose, you should follow it through. lens. If there is a right to vindicate, it should, even if you lose, you should follow it through. Yeah, I agree with that. I think, you know, there's so much partisan bitterness surrounding

the college admissions issue. And, you know, but the facts of a lot of these anti-Asian discrimination cases are really pretty sobering. They're really pretty sobering. And it was not a frivolous case. No, no, not by any stretch. No one should say that it was, of course, going to prevail. But it was absolutely a credible piece of litigation. The one thing I would say, two things in response, and then we'll move on to our briefs. One, on the Retirement Act, Railroad Retirement Act, that reminds me of a time, my first year out of law school, no, second year out of law school, I'm clerking or working at a firm in Manhattan, and I worked on a railroad retirement case tangentially. And quite literally, Sarah, the partner who handed me the case to do some research on, apologized as he did it.

Because he said, this is going to be some of the most boring research you ever do. So there you have it. And then the second thing is, I was actually really interested in, I was interested in the asylum case. I was also actually really interested in the military funding case because that was going to raise some real issues about statutory control over appropriations. How much statutory control over appropriations remains when the appropriations slide into the military and then the commander-in-chief starts to dispense those funds? Because it's sort of the collision of the two branches of government at the apex of their powers, right? One is the commander-in-chief authority of the President of the United States,

and the other one is the core appropriation authority of Congress. And there was going to be a collision there because if you read the statutes pretty closely. There was not grounds for diverting that money. It wasn't there. And so a lot of the a lot of the administration's argument had to rest sort of on, well, you don't really want to be interfering with the commander in chief when he's directing the military. And so this statutory language is going to have some flexibility to it. So I thought it was going to be really an interesting case. But c'est la vie. Indeed.

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with some pretty big personalities is another. It's a new season of Canada's ultimate challenge and sparks are going to fly. New episode Sundays. Watch free on CBC Jam. All right. So that brings us to our impeachment briefs. Now, David, you assigned this homework to me. I did. I did. And okay. Backing up for a

second. Appellate work, legal work is very different than trial work. And not only is it different in terms of what you're doing, it's like a whole different, well, there's different rules. There's the FRAP, the Federal Rules of Appellate Procedure. And everything about appellate work looks different than trial work. Like actually looks, if you look at, you know, trial complaints, things like that, they look really different than appellate briefs. The only sort of overlap is motions work. And motions work is often different than appellate briefs. The only sort of overlap is motions work and motions work is often done by appellate attorneys in the practice because motions work can often look like appellate stuff. So there's some overlap, I guess, but it appears that one side is doing sort of motions work appellate. And one side is doing trial work, complaint response.

And the two near the twain shall meet. It was really weird to open them both up. And like, if we're that far apart as a society on so many issues, I have to say these two briefs did a really good job visually making that metaphor clear. Yes. I'm so glad you brought that up. I'm so glad you brought that up because if you read the two, we'll just call them pleadings, although they're not pleadings, but just for my sake, we'll just call them pleadings. If you read the two pleadings, but just for my sake, we'll just call them pleadings. If you read the two pleadings, you would think not just that, I mean, you would think one side is taking this very seriously and the other side is not taking it all that seriously, to be honest.

Can I tell you one of the reasons why I feel like that jumps out on page one, even if you didn't read it? And we'll put both of these in the show notes, listeners. And again, I would urge you to open both links. Do not read the words on the page, but look at the pages and see which one you think are the real dudes and which ones are not the real dudes. So this is what set me down my two-hour rabbit hole last night, David. Do you want to guess what it is? Because I didn't tell you ahead of time. No, you didn't tell me. What would set... I don't know. I give up. I give up. The fonts. I should have known. I should't know. I give up. I give up. The fonts. I should have known. I should have known.

Oh, David. Oh, okay. So the brief from the impeachment managers is 80 pages. It is in Garamond, roughly, I don't know, maybe 11 or 12 point font. Garamond's a little tricky, Roughly, I don't know, maybe 11 or 12 point font. Garamond's a little tricky, as you probably know, if you're Garamond familiar, because Garamond basically lets you use a larger font technically, but actually it looks pretty small. Now, Garamond was very popular back in appellate world when things were based on page limits,

because Garamond let you fit a whole lot into fewer pages. Now that almost every court that I'm aware of uses word limits, Garamond has largely fallen out of favor. However, David, I will tell you, biases up front. I still use Garamond on the regular. It's an attractive font. It is a very attractive font, one must say. It's fine. I mean, you just have to like kind of, I don't have, I haven't purchased any of the fancy fonts on this current computer that I write my newsletter on, for instance. And so like, there are far better fonts, but I don't have them on this newsletter. So federal rule of

appellate procedure number 32, as of course you're all familiar with, says you must use a proportionally spaced face, must include serifs, but sans serif type may be used in headings and captions. So I will tell you that both briefs did use FRAP rule 32 acceptable fonts. rap rule 32 acceptable fonts. Um, the Trump brief used Bookman. This is not a font I was familiar with. And so I was reading up, you know, there's plenty of people who are font enthusiasts. And this is why two hours later, I I'm'm honestly if any listener has a great book recommendation on like fonts i would read it like i'm in now so the maryland appellate blog which is awesome by the way describes bookman like so the court of appeals has also authorized the use of bookman old style a curvy serif font that resurfaced in the 60s and 70s as a way to convey a sense of relaxed sophistication. It's a mellow, sunny font, perfect for a little light

reading as you let a couple buttons loose on your designer jumpsuit and stretch out on your luxury earth-toned shag carpet. In other words, the Bookman font family is outdated and kind of cheesy. If you're going to use a Bookman font, consider figuring out a way to have your brief softly play a little James Taylor for the judges as they flip through it. Do we even need to continue the podcast? Should we just hand it over to these wonderful people who write this Maryland Appellate blog, because that is fantastic and so fitting because their brief was 14 pages with lots of weird spacing choices, headers that I couldn't follow, and Bookman font. The James Taylor would have been a nice addition, frankly, and I feel like they missed an opportunity.

Before I leave this font conversation, just because like, let's go down the font cul-de-sac. The only court that only allows you to use one font is the Supreme Court. You must use a font in the century family if you are filing anything at the Supreme Court. That's a fun fact that you can, you know, now wow people with at cocktail parties. I urge you to, like, try out some Century fonts at home. See what you think of them. Little fun fact, Sarah. Yeah.

Fun fact. I type my newsletters exclusively in Century Schoolbook. Is that why you do it? I think so. I think so. He's like, I'm not sure how it started. But now that you say that, it's ringing some bells. So the biggest news,

the biggest news in legal font world, David, is that the Fifth Circuit, as of just a few months ago, has switched the font that it uses to hand down opinions in. Now, they're going through a bit of a transition phase, but they announced that they are switching to equity font.

You know, I don't want anyone to ever say that we don't break important news on this here podcast. But can we continue down the font rabbit hole just a minute longer? Oh, I hope so. So that I can bless the readers with two great pieces of art. So I don't know, Sarah, if you're familiar with one of the greatest essays written in the history of the English language. It's by, I don't know, Mike, if I'm mispronouncing your last name, Mike Lachey, L-A-C-H-E-R. I don't want to get into a whole

parlor parlay thing. Mike Lachey, Lachey, whatever. Mike wrote at McSweeney's on June 15, 2010, one of the greatest essays you will ever read. It is entitled... I love McSweeney's. Love, love, love. It is entitled, I'm Comic Sans, Asshole. And it is a letter written by the Comic Sans font to America. And it begins like this. I'm going to censor a little bit of the words. Listen up. I know the crap you've been saying behind my back. You think I'm stupid.

You think I'm immature. You think I'm a malformed, pathetic excuse for a font. Well, think again, nerd hole, because I'm Comic Sans, and I'm the best thing to happen to typography since Johans freaking Gutenberg. Oh, that's the way you start an essay, and I butchered it totally. And here's the other thing. We'll also put this in the show notes. Yes, we shall. And we'll put this. Have you seen the SNL papyrus sketch? No. Oh, Sarah, this has to go in the show notes as well. The SNL papyrus sketch. No. Oh, Sarah, this has to go in the show notes as well. The SNL papyrus sketch is about a person who obsesses over the fact that the opening credits

and title of the highest grossing movie in the history of humanity, Avatar, are done in the papyrus font. I mean, that's a little bit how I felt about this impeachment brief, honestly. I have never looked up what font someone is using ever, but I was so offended by this. You have to screenshot it, create a JPEG of it, put it, like upload it into this website. Like I had to do real work to figure out that this disgusting font was Bookman. Yeah. Yeah. But I promise you, listeners, you will thank me. The McSweeney's Comic Sans essay,

I was howling when I first read it. And every now and then I just go back and read it again when I need to be happy. And the papyrus sketch, which is just so, so good. Okay. Well, I just want to congratulate the Fifth Circuit on moving to the equity font. It is a good font. That font will serve you well, my former court. And so proud, so proud today to be a Fifth Circuit clerk and be part of the equity family. Well, let us lest we be accused of being Lade Swilling font elitists who do not focus on the substance of briefs published by Real America. briefs published by Real America. Shall we dive in? Honestly, if you're listening to this podcast because you think we reflect Real America, I don't know how many more episodes we can dedicate to the proof, the evidence that, nope, this is not the podcast for you. Was it the multiple episodes we did on going to Harvard Law School? That wasn't enough? No? Okay, let's do one on fonts then, by all means.

Okay, Sarah, what were your first blush assessments of substance? You know, I thought I'm going to talk about the 80 pages on the impeachment managers. No, I thought I'm going to talk about the 80 pages on the impeachment managers. The thing that jumped out at me the most and just like 2021, here we are. Fascinating. The Federalist Society was founded in 1982. And if you go back and you read briefs from 1982 and before and far after, for that matter, while the Federalist Society is picking up steam, you are never going to read a brief that reads like this impeachment brief, which takes it for granted that most of their brief are dedicated to arguments on originalism, on textualism. And it is a remarkable thing. There are paragraphs dedicated to what the term person and the term party would mean. There's a section dedicated to the fact that it says removal and disqualification, not removal followed by disqualification and the work that that and is doing. There's a lot of originalism

on what the founders would have understood the term impeachment to have meant based on British common law that they were inheriting and the state constitutions at the time of the U.S. Constitution's ratification. And what's fascinating to me is that, you know, I think sometimes when I see opinions written by some of the liberal justices on the Supreme Court, you can say like, well, look, they were trying to court conservative votes and that's how you get a conservative vote. That's not what this was. Like, no, frankly, this wasn't meant to persuade someone like me, I don't think. And so the fact that they chose to go with originalism and textualism as their two main philosophical persuasive arguments, I found really fascinating.

Now, in terms of whether I found it persuasive, Yes, there were parts of it that were very persuasive. Some of the historical examples from Britain about impeaching former officials I think would have informed the founders in terms of what they thought impeachment meant.

I will tell you that I actually thought they wildly undermined their case in talking about the state constitutions in which some explicitly included former officials. Right. None explicitly excluded former officials. Mm-hmm. That means they very much knew, like it was not then taken for granted. It undermines their whole argument that like, oh, well, the term impeachment always included former officials. Well, then why would some state constitutions feel like they needed to include former officials? Look, I think overall, their point on impeaching former officials was well made and I found it persuasive.

Yeah. But like, I felt like they handed that argument a little bit to the other side, and I could have bludgeoned them with that cudgel just a little bit. Now, another part that was interesting was, you know, normally the prosecution would sort of lay out its case, and the defense would poke holes in it.

This was kind of reversed. The prosecution, who files their brief first lays out all the things they think the Trump team will say and then pokes holes in that, some of which the Trump team didn't say. So it's a little bit mismatched because of that. But, you know, so be it. They took 80 pages.

They got to all of it. I don't know. I thought it was very well done, written in a way that anyone could read very quickly because I actually don't have a lot to say on the Trump brief. I think it was very difficult to read. And I think lay people think that's how lawyers talk. A lot of aver, their two fours. I don't know why they didn't write it in English. It was written not as a narrative, but as an answer to the actual impeachment articles themselves. The way in which you would read an answer to a legal complaint filed in court, Like the way in which you would read an answer to a legal complaint filed in court, which is, you know, you'll have numbered paragraphs. The paragraphs will contain the allegation. You'll immediately respond with admitted or denied or admitted in part and denied in part.

And you specify what you admit and what you deny. And reading an answer to a complaint is a painful process because it's not actually making a coherent argument from start to finish. It's just essentially responding sentence by sentence to an allegation. And I would say this about the two documents. I felt like, in an interesting way, both sides knew their audience, okay? The impeachment managers were kind of doing two things at once, I think. I think they were, on the one hand, they're writing in the hopes of persuading, and so they wrote a classic persuasive legal brief, one that tells a narrative story, one that matches the facts to the law and to history and to text, all the ways, you know, I had the exact same feelings there. Like, I'm sitting here watching originalism triumph in real time. Because the interesting thing

about originalism, you know, one thing that's so compelling about originalism is that it has a persuasive logic, all its own, sort of independent of the larger law school scholarly debates. If you can go to a regular person who's not a lawyer and say, you know, here's what the words say, and here's what the drafters believed that these words meant, and here's what the original public meaning was of these words. That has sort of an independent persuasive authority just in sort of the real world. And so I thought that was really- And what a treat to see Joaquin Castro, Eric Swalwell, Ted Lieu, all of these people signing on to a brief that was entirely originalism

and textualism. Cool, cool. Yeah. So on the one hand, I think you to a brief that was entirely originalism and textualism. Cool, cool. Yeah, so on the one hand, I think you had a brief that was written in such a way as to, so it had the two audiences, one are the senators and Senate staff who, to the extent that any of them could be persuaded, this was a document that was well crafted to persuade. There's another audience here, and the other audience is sort of the witness of history. Why would we do this? What is it that occurred that made us feel like it was necessary to impeach and then impeach before he got out of office right at the end of his term and then

convict him? And actually, I thought the factual discussion here and the way in which they emphasized not just the incitement, but the actions after the incitement that were, I thought that that was very effective. And for me, if you're going to try to excuse Trump, and this is something that I've seen a lot of people do thing that I've seen a lot of people do on social media, on, you know, elsewhere is say he never wanted this to happen. He was horrified by this. This is not what he wanted to happen. And I'm going to read this. Incited by President Trump, his mob attacked the Capitol. This assault unfolded live on television before a horrified nation. But President Trump did not take swift action to stop the violence. Instead, while Vice President Pence and Congress fled and while Capitol Police officers battled insurrectionists, President Trump was reportedly, quote, delighted

by the mayhem he had unleashed because it was preventing Congress from affirming his election loss. This dereliction of duty, this failure to take charge of a decisive securities response and quell the riotous mob persisted until late into the day. In fact, when congressional leaders begged President Trump to send help or urge his supporters to stand down, instead he renewed his attacks on the vice president and focused on lobbying senators to challenge election results. Only hours after his mob first breached the Capitol did President Trump release a video calling for peace. And even then, he told the insurrectionists who were at the very moment rampaging through the Capitol, we love you and you're very special. President Trump then doubled down at 6.01 p.m., issuing a tweet that blamed Congress for not surrendering to his demand that the election results be overturned. Quote, these are the things and events that happen when a sacred landslide election victory is so

unceremoniously and viciously stripped away from the great patriots who have been badly and unfairly treated for so long. Go home and with love and peace and remember this day forever. I had forgotten about that particular statement. And so what I think that that did very effectively was say, look, if you're going to argue that Trump was, you know, just engaging in standard political hyperbole and then is shocked and appalled at what unfolded, you're pretty wrong about that. I thought that was effective. And then there's less time to spend on the defense statement because there's just less to it. And I felt like they knew their audience as well in an important way. And they knew their audience just needs a fig leaf.

They just want a fig leaf. They don't want to engage. The bulk of the people who are going to vote to acquit Trump are not actually truly, let's just be honest, Sarah, engaging in a searching constitutional inquiry. No, although it's frankly embarrassing because the defense turns on really two issues. One, he's a former president, and you can't impeach a former president. They just keep saying it over and over again. There's no real argument to it. It's a declaration. Yeah. It's a declaration. And by not engaging with the textualism and originalist arguments in the manager's brief, it's embarrassing to then have to vote for these

guys who are just like, nope, can't do it. La, la, la, la, la. What about the example from, you know, 1780? La, la, la, la. Now, I think you'll hear some better defenses actually from senators who, you know, Hawley, Cruz, Cotton, I don't know, like some of these actually good lawyers who believe in textualism and originalism, I feel might come with better arguments than this. Their second argument was that the president had a First Amendment right to what he said. Also, absolutely no argument. It's just that he does. There's no legal argument. There's no history of First Amendment speech being protected by office holders, just like the First Amendment, dude. Whether impeachment, I don't know. Anyway, that was frustrating because actually, I would have been very interested in a brief that talked about the First Amendment rights

of office holders and how that would apply to the executive branch. There were interesting things to do here. They chose not to do them. And frankly, the senators should be a little bit embarrassed by that because they're now being the one, you know, put in the position to have to defend a brief that doesn't argue anything, just states as fact. I did in the manager's brief, by the way, David, this one quote, which you just know that some, you know, staffers stumbled across. It was like, we got to include this, even though former president John Quincy Adams, John Quincy Adams, isn't in anyone's top presidents. He's not really in anyone's bottom presidents. No one would remember this guy if he wasn't the son of another president.

He's a pretty, not, he's not the best the best. Kind of an ornery little fella. Quote, I hold myself so long as I have the breath of life in my body, amenable to impeachment by the House for everything I did during the time I held any public office. Well, that's a pretty clear statement of history, at least in terms of what a president, actually not particularly at the founding, thought impeachment meant. And David, it undermines my Tucker Carlson argument very nicely because he does limit it. There is a limiting factor, and the limiting factor is it has to be for actions held as a public official, regardless of when you are then impeached. So you don't get to

impeach Tucker Carlson for the purpose of preventing him from running for office, per my wonderful argument last time. Well, let me just say this, speaking about the argument last time. The arguments we made on Monday were far better. Far better. They were arguments. They were arguments. They were arguments. I mean, you could take the transcript and I'm not saying that like we're the best legal advocates in the world. This is not a exaltation of the Advisory Opinions podcast. This is a slam on this. Yeah. So when I said they knew their audience, I'm not there was a compliment neither to the brief nor to the senators in their audience. This this is the only this they just needed a fig leaf. They just want a fig leaf. And it's you know what it reminds me of, it reminds me of, there were times, some of the frustrating aspects of the practice of law

every now and then is that you would walk into a courtroom and you knew you were going to lose, regardless of the merits of the case. You knew you were going to lose. You know, maybe it was, you're taking on a very popular party in a local jurisdiction where the judge is elected, and everyone knows the real battle is going to be in the Court of Appeals. Everybody knows this. And so what are you doing? You're writing, I would be writing for the Court of Appeals. So I'm putting together this document that's just as meticulous as it can possibly be. And opposing counsel might file like a four-page summary statement of arguments, and I know exactly what's going to happen. And I had this sort of deja vu to that kind of dynamic here. But the thing is, it's even disrespectful of the process. Like, that filing to me from the Trump team felt disrespectful of the gravity of

the process. This is something you throw into a rural trial court to get past some rejudgment on your slip and fall case. It was not an argument that you make on behalf of a president of the United States dealing with serious textual, originalist doctrines and arguments and very grave facts like a very grave thing just happened on january 6th but rant over i think you're the one thing i'll disagree with is that i think it was the defense team's job to give the senators something it didn't need to be good or maybe even correct but you know after know, after they spend their, you know, 15 minutes going through the history of Belknap, you needed to give them something to say, well, actually, you know, X, Y, and Z, you know, 23 senators didn't believe that you could impeach a former

official. That's not in here. And so what you're doing is forcing the senators to go do that research and their staff to go do it. I don't know. I'd be annoyed. I guess nobody cares anymore. But I'd be annoyed that I have to go do my own homework. It's sort of like a justice when the one side drops the ball.

That doesn't mean that you just get to rule for the other side. You still have to go do your homework. It just means I have to do it instead of you doing your job. So I was sad. I wanted more because I think that there is, it's an unresolved question about the former officials. We should have a real discussion about that. The First Amendment thing I find straining, but let's have a real discussion about that. Let's have two sides advocate for a position so that we can better seek truth. Yeah.

And not in bookman font. I agree with you. I agree with you. And now speaking of the pursuit of truth, I'm going to give a chapel talk at Covenant College right now called Speaking Truth in an Age of Lies. How appropriate. In Marjorie Taylor Greene's district. So it's an act of dissent. It's an act of dissent in Marjorie Taylor Greene.

Fire and forget, David. We do not talk about her anymore. The vote hasn't happened yet. The vote hasn't happened yet. Listeners, thank you for listening. Please go rate us at Apple Podcasts. Please leave a review. And please subscribe and check out, speaking of writing and fonts, please go check out thedispatch.com where Sarah's newsletter, The Sweep, and my newsletter, French Press, are neither in papyrus font nor Comic Sans.

And please, please do not flood my inbox with defenses of Bookman font. I don't want to hear it. You 1970s, you know, jumpsuit wearing, James Taylor listening font defenders. Don't do it. Please do that, but don't copy me. So Sarah at the dispatch. I don't remember my email. David at the dispatch. No, I don't think that's quite it. I don't think that's quite it. It's David with a Z.

David with a Z. Thank you for listening. And we will be 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. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just

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